West Law Report

Refusal sufficient for appeal

Posted in Times Law Report by mrkooenglish on November 16, 2008

From The Times
November 5, 2008
Refusal sufficient for appeal

Privy Council

Published November 5, 2008

McDonald v HM Advocate

Before Lord Hope of Craighead, Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Neuberger of Abbotsbury

Opinion October 16, 2008

The refusal by the High Court of Justiciary in Scotland to receive a devolution minute was the determination of an issue sufficient to give jurisdiction to the Judicial Committee of the Privy Council to hear an appeal.

The Judicial Committee so held, when dismissing an appeal by the defendant, John McDonald, against his convictions for, inter alia, murder and assault. On December 21, 2007, the High Court of Justiciary (Lord Justice-General Hamilton, Lord Nimmo Smith and Lord Philip) refused to allow a devolution minute to be received. On April 14, 2008, the Privy Council granted the defendant special leave to appeal.

Miss M. E. Scott, QC and Ms C. A. Smith for the defendant; Mr Frank Mulholland, QC, Solicitor-General for Scotland, Mr W. James Wolffe, QC and Mr Gordon Balfour for the Crown; Lord Davidson of Glen Clova, QC, Advocate-General for Scotland and Mr Michael Howlin, intervening.

LORD HOPE said that the devolution minute averred, inter alia, that the Lord Advocate had not discharged her obligation to disclose to the defence any information which might tend to exculpate the defendant or undermine the case against him.

The Judicial Committee of the Privy Council had no original jurisdiction to consider devolution issues. In criminal cases its jurisdiction was entirely dependent upon there having been first a determination by two or more judges of the High Court of Justiciary of the issue which the defendant sought to raise before the Judicial Committee.

The question was whether the Committee had been deprived of its jurisdiction to hear the appeal by the judges’ decision. In his Lordship’s opinion, their decision did not have that effect.

The Judicial Committee had its own rules which did not stipulate that the receipt of a devolution minute by the lower court was a prerequisite to the hearing of an appeal against the determination of a devolution issue by the Committee.

A decision by two or more judges of the High Court of Justiciary not to hear and determine a devolution issue that had been brought before it could be treated as a determination of the issue for the purposes of paragraph 13 of Schedule 6 to the Scotland Act 1998. The word “determination” could include a decision which disposed of an issue in the lower court, including a refusal to consider the issue.

It was for the Judicial Committee, not for the lower court, to decide whether special leave to appeal should be given. It was also for the Judicial Committee to decide whether it had jurisdiction to entertain an application for special leave.

It was open to the Committee to take a different view from the court below and, if it was persuaded that the issue that the defendant sought to raise in the High Court of Justiciary was a devolution issue and was the same issue as that which he now wished to raise before the Committee, to determine that issue by way of an appeal against that court’s decision. Lord Rodger delivered a concurring opinion; Lord Bingham and Lord Scott agreed with Lord Hope; Lord Neuburger agreed with Lord Hope and Lord Rodger.

Solicitors: Capital Defence Lawyers, Edinburgh for McArdle Solicitors, Glasgow; Crown Office Edinburgh; Solicitor to the Advocate-General for Scotland, Edinburgh.

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