Substantial preparation can bring reward

Alex Prentice describes the protocol and procedure of appearing at the Judicial Committee of the Privy Council

If, about five years ago, you went on a journey around the various Bar common rooms of the Sheriff Courts in Scotland and asked solicitors to tell you about the workings and procedure of the Judicial Committee of the Privy Council, I suspect that very few would have been able to tell you anything about it.

That, of course, has now changed. The change came about because of the Scotland Act 1998. Paragraph 13 of Schedule 6 to the Scotland Act 1998, provides as follows:

• 13.  An appeal against a determination of a devolution issue by –
• a.  A Court of two or more Judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under Paragraph 9); or
• b.  A Court of three or more Judges of the Court of Session from which there is no Appeal to the House of Lords, shall lie to the Judicial Committee, but only with leave of the Court concerned, or failing such leave, with special leave of the Judicial Committee.

This provided an Appeal route from the High Court of Justiciary sitting as an Appeal Court to the Judicial Committee of the Privy Council.

This route of Appeal has been criticised as being constitutionally incompetent.1 There have already been a significant number of appeals to the Judicial Committee of the Privy Council on Scottish Cases.2

For those interested in history, I refer readers to a very interesting article on the passing of the Scottish Privy Council.3

The purpose of this article is to give some guidance as to what is involved in having a case appealed to the Judicial Committee of the Privy Council. Those interested will be richly rewarded by reading (and re-reading) an excellent address by the Right Hon The Lord Hope of Craighead entitled “The Judicial Committee of the Privy Council – Its Practice and Procedure”.4

The Devolution Issue

It is only a “devolution issue” which can be determined by the Judicial Committee of the Privy Council (hereafter referred to as “the Board”). In one of the first cases5 Lord Hope of Craighead observed6 that for almost three hundred years since the Union Agreement of 1707, the Scottish system of criminal justice has survived as a self-contained and independent system and has no appeal to the House of Lords, unlike other areas of the United Kingdom. In that case, it was held that the right of the accused to receive a fair trial is the responsibility of the Lord Advocate as well as of the Court. A question could be raised before the trial took place as a “devolution issue” under Schedule 6 to determine whether the act of the Lord Advocate in prosecuting the offence was incompatible with Article 6 of the European Convention on Human Rights and Fundamental Freedoms (a right to a fair trial within a reasonable time before an independent and impartial tribunal established by law).

“Devolution Issues” are defined in Part 1 of Schedule 6 to the Scotland Act 1998 (Paragraph 1)

This is a very important consideration in determining whether or not to proceed with an appeal to the Privy Council. In Follen v HMA7, the Appellant sought special leave from the Board to proceed with an appeal and sought to raise as a devolution issue the question of whether the act of the Lord Advocate in continuing to prosecute him for offences under the Misuse of Drugs Act 1971 was incompatible with his right to a fair trial within a reasonable time. The Appellant presented two arguments before the Trial Judge. One was that he was entitled to the protection afforded by S65(4) of the Criminal Procedure (Scotland) Act 1995 (the eighty day and one hundred and ten day rules). The Trial Judge rejected this. The Appellant submitted a second argument that the Lord Advocate’s act in bringing him to trial was incompatible with his convention right to a fair trial within a reasonable time.  The latter would amount to a devolution issue.  The appellant appealed to the High Court of Justiciary where the appellant departed from the devolution issue and the Appeal Court refused the appeal affirming the decision of the Trial Judge.

The appellant then sought to appeal to the Board by way of special leave.  A hearing was constituted in London where it was accepted that there had been a departure from the devolution issue in the High Court. Accordingly there was no determination of a Devolution Issue by that Court and the issue could not be resurrected before the Board.

The Procedure

Once a devolution issue has been identified the correct procedure is to proceed under Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 which was inserted by the Act of Adjournal (Devolution Issues Rules) 1999.

Rule 40.2 of the Act of Adjournal provides that, where a party to proceedings on indictment proposes to raise a devolution issue, he shall give written notice of his intention to the Clerk of Court within seven days of service of the indictment, a copy of which notice is to be served on the other parties and on the Lord Advocate and the Advocate General. Rule 40.5(1) provides that no party to proceedings on indictment shall raise a devolution issue except in accordance with Rule 40.2 unless the Court, on cause shown, otherwise determines.

It is therefore necessary to quickly identify the devolution issue and to intimate it to all parties straightaway. This rule is not always observed and that fact has been criticised.8

It can be observed that there is in effect a “two-track system” in that it is now possible to take such points under the Human Rights Act 1998 without any reference to the devolution issue at all and, consequently, there would be no appeal to the Board.

Although there is no set procedure, the practice has been to fix a preliminary diet in terms of S72 of the Criminal Procedure (Scotland) Act 1995.   Thereafter the route follows the procedure set out for preliminary diets.

The Appeal to the Board

Once the matter has been determined by the High Court of Justiciary sitting as an Appeal Court, that Interlocutor represents the end of the case unless an appeal is allowed to the Board by way of leave from the High Court or by special leave.

An application for leave is made orally and, if refused, a further application for special leave can be made directly to the Board. The application for special leave is made by a petition for special leave to appeal. Special leave to appeal is regulated by Paragraph 5 of the 1999 Rules Order.9 A petition for special leave must be lodged within twenty eight days of the date on which the Judgment appealed from was made.  If the petition is lodged outwith that time limit then the petition must state that it is out of time and set out the reasons why it was not lodged within the time limit.  A petition for special leave to appeal lodged more than three months after the date of the Judgment appealed from will be allowed only in exceptional circumstances.10

If leave has been granted from the Court appealed from then a petition of appeal must be lodged within six weeks of the date on which the order appealed from was made or leave to appeal was granted. If special leave to appeal has been granted then the petition of appeal must be lodged within fourteen days of the grant of special leave.11

Anyone reaching this stage should make contact with the Registrar, Mr Watherston. Mr Watherston is extremely knowledgeable and helpful and has kindly agreed to his contact details being included in this article and they appear at the end.  

The Petition of Appeal

The Petition of Appeal must be lodged within six weeks of the date on which the order appealed from was made or leave to appeal was granted as the case may be.  If special leave to appeal is granted then the Petition of Appeal must be lodged within 14 days of the grant of special leave.12  The Petition of Appeal must be served on all other parties and on any law officer who is not already a party and who has a potential interest in the proceedings.  

A Respondent who intends to participate in the proceedings before the Board should enter an appearance to appeal within 14 days of receiving service of the Petition of Appeal and notify the Appellant in writing that he has done so.13

It is for the Appellant to prepare and lodge a Statement of the Facts and Issues involved in the Appeal.  It is desirable that this should be a single document agreed between the parties.  The purpose of this is to sharply focus the issue for determination.  Contact should be made with the Respondent in order to try and agree on common ground and a formulation of words to identify the issues in a succinct way.  

It is the responsibility of the Appellant to prepare and lodge an Appendix containing documents used in evidence or recording proceedings in the Court below.14

If the title used for the proceedings has been such as to conceal the identity of any person that fact must be clearly drawn to the attention of the Registrar at the time the Appeal is lodged.

The Appendix should contain only such documents as are necessary for the support and understanding of the argument of the Appeal and should not include anything which was not used in evidence or does not record proceedings relevant to the action in the Court below.  In a criminal case the appendix would normally contain the Indictment, the Devolution Minute, the Opinion of the Judge of first instance, the Note of Appeal and the Opinion of the High Court.  It is also practice to include relevant extracts from the Scotland Act 1988 and the European Convention on Human Rights and Fundamental Freedoms but this should be strictly limited to the relevant points for the purpose of the Appeal.  

The Statement of Facts and Issues must be lodged by the Appellant within 28 days of lodging the Petition of Appeal.  The Appellant must deposit in the Judicial Committee seven copies of the statement and seven copies of the Appendix.  

Please note that the binding ought to be carried out by someone familiar with the type of binding required by the Board.  The volumes are bound in red with red spines.  

The bound volumes should be paginated and it is good practice to include dividers for ease of reference.  

Once the Statement and Appendix is lodged the Appellant shall apply to set the Appeal down for a hearing.  The registrar will then notify the Appellant of the fact that this has been set down for a hearing and will require that Counsel consider the time, in hours, which it is proposed should be allocated for the hearing of the Appeal.  It should be noted that Counsel will be expected to confine their submissions to the time indicated in their estimates.   

Within 28 days after the setting down of the Appeal the parties shall each lodge seven copies of their cases and give notice of having done so to the other parties.  

The Case should be a succinct statement of a parties argument in the Appeal and should not repeat material contained in the Statement of Facts and Issues. It should consist of paragraphs numbered consecutively and references by page and line to the relevant portions of the Statement of Facts and Issues and the Appendix so far as practicable be reproduced in the margin.15 The case is an extremely important document and is necessary to give considerable thought to the argument and submission, which will be tendered.  The case must conclude with a numbered summary of the reasons upon which the argument is founded and must bear the signature of at least one Counsel who has appeared in the Court below or who will be briefed for the hearing before the Judicial Committee.  No party to an appeal shall be entitled to be heard by the Judicial Committee unless he has previously lodged his case.16

As soon as all the cases have been lodged parties exchange cases.  

Once the cases have been exchanged (and in any event no later than 14 days before the proposed date of the hearing) the Appellant must lodge eight bound volumes.  Each bound volume should contain

• a  The Petition of Appeal
• b  The Petition of cross Appeal (if any)
• c  The Statement of Facts and Issues
• d  The Appellant’s and Respondent’s cases
• e  The Appendix

The identity of Counsel should be intimated to the registrar.  

The conduct of litigation before the Board can be carried out by any person who has a right to conduct litigation in any of the superior Courts of England and Wales, Scotland or Northern Ireland.  This includes those solicitors who have extended rights of audience.  

At least seven days before the hearing of the Appeal solicitors for all parties should lodge a list or photocopies of the authorities and legislative texts (other than those included in the Appendix) to be cited at the hearing.  The list should indicate by reference and photocopies by highlighting those particular passages of the authorities and legislative texts on which Counsel rely.

This is a particularly onerous task and is certainly not one which should be left to the last minute.  It is good practice to try and identify the precise legal point and to gather all relevant authorities.  It is not necessary to slavishly include every authority which has a bearing on the case or which confirms matters decided in one particular case.  The lists of authorities can be extremely bulky documents.  

The presentation of the case is quite unlike anything else which will have been experienced in Scotland.  The members of the Board sit in a semi-circular table very close to the lectern from which the argument is presented.  It should not be assumed that those presenting argument would be able to simply follow a previously worked out structure.  The members of the Board will have studied the issues, cases and authorities in considerable detail before the hearing and, of course, many of the authorities referred to will be familiar.  The argument will be tested from the outset and it is at this point that the obvious need for substantial preparation is clear. If the subject has been researched thoroughly from top to bottom then although the experience can be daunting it can be extremely rewarding.  

Part of the novelty is that the Board sits in Downing Street and therefore a trip to London is necessary.  It has already been demonstrated that Scottish lawyers have much to offer the Board and I am sure that this will continue.  

ALEX PRENTICE is a partner with the Edinburgh firm of McCourts. A Solicitor-Advocate since 1994, he is a member of the Human Rights Committee of the Law Society of Scotland. He appeared before the Judicial Committee of the Privy Council for the Respondent(K) in K v HMA 2002 SCCR 220


UNDERNOTE:
J.A.C. WATHERSTON, REGISTRAR,
PRIVY COUNCIL OFFICE, DOWNING STREET
LONDON  SW1A 2AJ
TEL NO: 020-7276-0487
FAX NO: 020-7276-0460