APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Brodie Lord Osborne	[2012] HCJAC 101 XM4/12 OPINION OF THE COURT delivered by LORD CARLOWAY in Petition to the Nobile Officium by ADEEL HAMID Petitioner; against PROCURATOR FISCAL, GLASGOW Respondent: _____________

Petitioner: I M Paterson, Solicitor advocate; Paterson Bell (for Gildeas, Glasgow)

Respondent: A F Stewart Q.C. A.D; Crown Agent

26 June 2012

[1] On 1 April 2011 the petitioner appeared at Glasgow Sheriff Court in answer to a complaint libelling an assault which took place at the Ramada Hotel,

Ingram Street, Glasgow. He was represented by Gildeas, solicitors. The complaint specified the petitioner's address as Flat 2/2, 39 Acre Drive, Glasgow.

[2] Because of a potential conflict of interest, agency in respect of the petitioner's case was passed to Mullane and Co. Ms Mullane appeared for the petitioner at the intermediate diet on 19 July 2011. By that time the petitioner had signed a legal aid application which also specified his address as Flat 2/2 etc. Mullane and Co have informed the court that, at the intermediate diet, the petitioner provided Ms Mullane with "his mobile number". He was advised that Mullane & Co would contact him by telephone each time the case called. Ms Mullane asked him to ensure that, if he changed his number, he should contact Mullane & Co immediately. That type of precaution is necessary on the part of agents because of the provision in section 148D of the Criminal Procedure (Scotland) Act 1995 that service on, or intimation to, a solicitor is equivalent to service on, or intimation to, the client.

[3] The trial diet took place on 19 September 2011, when the petitioner was again represented by Ms Mullane. He pled guilty to the charge. He was sentenced to 5 months imprisonment on 19 October 2011, when he was again represented. The social enquiry report obtained prior to the sentencing diet stated that the petitioner was living at Flat 2/1, 76 Buccleugh Street, which is the home of his mother, although he told the social worker that he also spent a number of nights each week with older siblings "within the Glasgow area".

[4] The petitioner was granted leave to appeal and, on 26 October 2011, he was granted interim liberation by a judge of the High Court. In accordance with normal practice, he signed a form of acceptance of bail conditions. That acceptance is in formal terms and is signed before two witnesses. It states:

"I Adeel Hamid, born 27 October 1993, of Flat 2/2, 39 Acre Drive, Glasgow, G20 0TR which is the address to which any citation to appear at any diet relating to the offence(s) charged and any other document or intimation may be sent...".

It contains the following statement:

"I further understand that, if I wish any citation or intimation to be sent to an address other than the one stated above, I must apply in writing to the High Court of Justiciary, Lawnmarket, Edinburgh: the Court will consider my application and will notify me of its decision but, until I hear to the contrary, the address stated above will continue to be my domicile of citation".

The petitioner was given a copy of that document and he signed to confirm that he had received a copy. That acknowledgement also gave his address as Flat 2/2 etc. It stated:

"If you move from the address on this form you must ask the Court to have the new".

The language ends abruptly there.

[5] A diet for the hearing of the petitioner's appeal was assigned for 5 January 2012. Agents wrote to the petitioner advising him of this diet, although the letter erroneously referred to it taking place at Glasgow High Court. The petitioner did not appear at that diet or at Glasgow High Court. The court continued the case until the afternoon in order to ensure that there had not been some practical problem which could be resolved. Efforts were made by agents to contact the petitioner on the mobile number, but with no success. At 2 o'clock the appeal was refused for want of insistence.

[6] The petitioner has presented a petition to the nobile officium which seeks to suspend the warrant which was granted following upon the refusal of the appeal. The contention, which is contained in the petition, is that the petitioner was unaware of the diet for the appeal hearing. In particular, it is said that the petitioner's address was not Flat 2/2, 39 Acre Drive, but Flat 3/2, 31 Acre Drive. The address in Buccleugh Street does not feature. There is no mention in the petition of the grant of interim liberation or the petitioner's acceptance of the bail conditions. There is no mention of the petitioner's association with Flat 2/2 etc, although in oral submission it was said that he had lived there 2 years ago. There is no reference to the mobile number, although, in response to questions from the court, it was said that this was actually the number of a relative, but that it had not been provided by the petitioner. It was submitted that whatever the position may have been in relation to the writings, the petitioner was not in fact aware of the appeal diet. The explanation for this was, it was said, his failure to read any of the relevant documents bearing the address at Flat 2/2 etc. He had, on the other hand, managed to appear at an appeal diet of his co-accused on 12 January 2012 thinking that that was also the correct diet for his appeal. In summary it was said that there had been a "procedural mishap" of the type which might merit the use of the nobile officium (Cobanogu, Ptnr [2012] HCJAC 35, LJC (Gill) at para.[17]).

[7] The court has not been provided by the petitioner with a satisfactory explanation as to: (1) how it came to be that the address of Flat 2/2 etc. was put on the complaint in the first place: (2) why no objection was taken to that address throughout the course of the summary procedure; or (3) why it was that the phone number, which was given to agents, did not seem to be operating when agents attempted to contact the petitioner. It is also not without significance that Mullane & Co have advised the court that, following upon interim liberation, there was no attempt by the petitioner to contact them to see when the appeal would be heard. The petitioner was aware that the case was to call in the Appeal Court in Edinburgh because he had been told that by the Edinburgh agents at the time of his interim liberation.

[8] The question for the court is whether a warrant for intimation should be granted in respect of this petition because there are sufficient circumstances narrated in it to merit, in due course, the exercise of the extraordinary remedy of the nobile officium. In Reilly v HM Advocate 1995 SCCR 45, the Court considered, albeit in the context of solemn procedure, whether the nobile officium ought to be applied in similar circumstances. The Lord Justice General (Hope), delivering the Opinion of the Court, said (at page 51):

"Certainty about the address which is to be the accused's proper domicile of citation is essential for the proper working out of the system of bail which the Act has laid down. The condition about appearance at any diet depends on there being a single and indisputable address at which the accused may be cited".

The importance of the domicile of citation for the proper working of the court's procedure is perhaps obvious. In this case, the petitioner signed the appropriate form stipulating his address to be Flat 2/2 etc. There was no effort to alter that address during either the appellate or first instance proceedings. Standing the absence of any satisfactory explanation for this, or as to why the petitioner was unable to receive communications either at that address or through the mobile number he had given to his agents, the court simply does not consider that the circumstances here are sufficient to merit the use of the extraordinary remedy which the exercise of the nobile officium may provide. In these circumstances the court will refuse to warrant this petition.

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