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Lord Rodger of Earlsferry: I do not feel able to accept this amendment. I do not go along with the description by the noble Lord, Lord Macaulay, of the position in a civil jury trial in relation to a note of exceptions being easy enough to devise. It was quite a heavy burden on any counsel involved in a civil jury trial to get that right.

At the end of the day, looking at the whole position, if one could detect that there had been a miscarriage of justice, would our system be improved if the matter could not be raised because somebody below had failed to spot the omission at the time? By the wording of the amendment—I do not tie the noble and learned Lord, Lord McCluskey, to it —it is a movable feast to say the least. One does not know how long it will take before the jury returns a verdict. To tie the right of appeal to the need to put in a note of exception within that time would be too hard.

If everyone were as acute and quick as the noble and learned Lord, Lord McCluskey, is now and undoubtedly would have been as a counsel, this provision might be all right. But one has to allow for people who are not necessarily quite so quick and who may on occasion overlook something. If it is overlooked, as the noble Lord, Lord Macaulay, said, by counsel or the agent appearing, it would be too hard to say that in the situation it could not be raised.

Nonetheless, having had on occasion the honour of defending a charge by the noble and learned Lord, Lord McCluskey, against what looks like a good deal of hindsight by counsel in the Court of Appeal, I have some sympathy with the point he makes. But on the whole, from time to time, though the Court of Appeal may allow itself to accept points which may not have been live points in the trial, it is conscious that what must be dealt with are the issues that arise at trial. If on occasion a matter gets through on appeal which was not a live issue and when, on looking back at it, one feels that the appeal court took a harsh line, that is probably a price worth paying rather than having what would, in practice, come to be thought of as being too draconian a rule which would be capable—though the noble and learned Lord does not intend it—of wreaking injustice if it were applied in that way.

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Therefore, while I acknowledge the problem which the noble and learned Lord seeks to address, I do not feel able to accept the amendment.

Lord McCluskey: I am forced to write to the Sutherland Committee to ask its members to consider the matter. Perhaps I may deal briefly with the points of substance that were raised. The noble Lord, Lord Macaulay, is concerned about the absoluteness of the rule. That can easily be dealt with by introducing what the Americans call the "gorilla" rule; in other words, the phrase is put in, "except with the leave of the court".

Lord Macaulay of Bragar: Will the noble and learned Lord spell "gorilla" for us?

Lord McCluskey: Not at this time of night.

Lord Macaulay of Bragar: Are we talking about the animal or the activity?

Lord McCluskey: We are talking about the animal. When one puts in an expression like "except with the leave of the court on cause shown", the Americans describe it as the "gorilla" rule. The gorilla rule is formulated in this way: when one asks where a 600lb. gorilla sleeps at night, the answer is, anywhere a 600lb. gorilla wants to sleep. That is the way the court in America seems to approach the matter in that it does what it wants.

I do not believe that we would treat the rule in precisely those terms. The Lord Advocate said, "If in the court below people failed to spot the point"; that is exactly my point. I can think of a specific case and it wounds me. I sometimes wake up in the middle of the night suffering from a recollection of it. Undoubtedly nobody spotted the point because there was nothing very much to spot. Eventually, with hindsight and with infra-red vision, somebody spotted the fault which had been missed at the time and the court was persuaded to regard it as a misdirection. However, I do not want to bring tears to your Lordships' eyes at this time of night.

On the point, technically, about how difficult it is to do this during the course of a trial, if those who represent the accused—or for that matter the Crown, because the Crown must be alert to what is said by the judge in the charge to the jury—find that there is a misdirection, they may have difficulty in deciding whether to take the point or to formulate it. But there is nothing to stop them coming forward to the court and saying, "Would your Lordship not accept a verdict from the jury until we have had an opportunity to lodge a note of exception?"

I shall reflect upon what has been said and put these matters in my submissions which I hope to make shortly to the Sutherland Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 101:


Page 25, line 33, leave out ("and").

The noble Lord said: Amendment No. 101 is grouped with Amendment No. 102. It seeks to amplify the documents which a judge should consider before

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deciding on leave to appeal and to provide for oral representation on the need for leave to appeal. The important document is probably the charge to the jury, which is not normally available. Nevertheless, the submission by the appellant or on his behalf is equally important to give the judge a rounded view of what is in issue. I beg to move.

Lord Rodger of Earlsferry: I am sympathetic to the intention behind these amendments. Amendment No. 101, which the noble Lord does not press and which concerns the note of appeal, I do not believe to be necessary. Where there is a note of appeal there should not be any need for a further submission.

One can debate Amendment No. 102, but I see no objection to putting on the face of the statute a need for the judge's charge to be included. However, the amendment is technically defective because, as the noble Lord will immediately accept, in a case where the appeal is only against sentence, there is no question of the judge's charge arising; or, indeed, where the judge's charge was not in issue. I am therefore happy to accept the spirit of Amendment No. 102 and come forward on Report with a suitable amendment.

Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for accepting that point. I accept his criticisms of the defect in drafting. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102 not moved.]

The Deputy Chairman of Committees (Lord Skelmersdale): Before calling Amendment No. 103, I should inform the Committee that if the amendment is agreed to I cannot call Amendment No. 104.

Lord McCluskey moved Amendment No. 103:


Page 26, leave out lines 11 to 13 and insert:
("(6) Consideration whether or not to grant leave to appeal under subsection (1) or (5) above may take place in chambers without the parties being present, but the judge, in the case of subsection (1), or the High Court, in the case of subsection (5), will have the right to order a hearing with the parties present to enable the application for leave under section 228(1) or under subsection (1), (4) or (5) of this section to be the subject of submissions.").

The noble and learned Lord said: I wish to raise a serious matter in relation to Clause 35 which I believe to be in breach of the European Convention on Human Rights. However, I shall develop that point on the Motion that the clause stand part. Subject to that, if we are to introduce for the first time in Scotland a provision of this kind whereby a person may not appeal other than with leave from a judge or from the High Court itself, we should at least allow the court to entertain oral submissions if it chooses to do so.

The Committee will see that what is to be new Section 230A of the 1975 Act starts on line 14 on page 25 of the Bill,


    "The decision whether to grant leave to appeal for the purposes of Section 228".

That is the standard section which provides that any person convicted on indictment may appeal in accordance with the provisions of this part of the Act to

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the High Court against conviction/sentence or conviction and sentence. The later provision deals with summary cases. The matter therefore goes first to a single judge who sees a number of documents which are specified in subsection (2); namely, the note of appeal, the certified copy of proceedings and the trial judge's report.

The court itself, when reading the documentation, may decide that it is appropriate to hear representations on specific points. For example, in answer to some point made in the note of appeal, the Crown may wish to receive submissions from the advocate depute, from Crown counsel, to see whether the point is one on which Crown counsel can offer some assistance in the form of authority or argument. Furthermore, the note of appeal does not have to set forth the argument. Again, I dealt with that in the book that I wrote. That is well understood in the profession: the note of appeal should set forth the grounds of appeal, not the argumentation in support of it. There is no quotation of authority for it, for example, in the note of appeal. The submissions of the party therefore are not put before the judge and the judge may want to know whether there is any real substance in the matter; whether he can be given any guidance on the matter. But also the court itself may see a point that was missed and it may be a point that appears at first glance to be one of fundamental nullity.

As the Committee will appreciate, if a point of fundamental nullity is noticed, for example by the court itself or for that matter by the Crown, and drawn to the attention of the court, the court must take notice of the point of fundamental nullity, whether or not it is contained in the note of appeal. It may be that some point in the note of appeal is not very well put and ought to be developed. There are many reasons why either the single judge who is considering the documentation or the appeal court which is considering the documentation might want to have some representations. Accordingly, I am saying that the court itself—either the single judge or the High Court—might wish to raise some matter and have further submissions on it from the parties. That is what my amendment is concerned with.

The new subsection (6) would simply say:


    "Consideration whether or not to grant leave to appeal under subsection (1) or (5) above may take place in chambers without the parties being present, but the judge ... or the High Court ... will have the right to order a hearing with the parties present to enable the application for leave under section 228(1) or under subsection (1), (4) or (5) of this section to be the subject of submissions".

I cannot see what can be wrong with that in the context of a provision for leave to appeal. Although I do not think it would cure the fundamental defect in Clause 35, I beg to move.

9 p.m.

Lord Rodger of Earlsferry: The provisions of Clause 35 are intended to introduce a new procedure which will allow the High Court to filter out frivolous and unmeritorious appeals quickly and simply. The decision whether to grant leave to appeal will be made on the basis of all the papers which will be available to the appeal court at an appeal hearing without the need to convene a full hearing of the appeal court. The noble and learned Lord has referred to the documents and we

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have already indicated that we think they would be supplemented by the charge. There is no question of these new arrangements reducing the level of scrutiny of appeals in general since only appeals which are clearly without merit —those which are unarguable is the way it is expressed—would be refused leave to appeal. Any appeal which appeared to demonstrate arguable grounds would be granted leave and would proceed to an appeal hearing in open court.

These amendments, which require the consideration of whether to grant leave to appeal to be carried out in certain circumstances in open court, would transform what is intended to be a simple and entirely preliminary consideration of what is, we conceive, a narrow question into a full hearing which would duplicate in effect the role of the appeal hearing. We conceive that that would be undesirable. It might give rise to questions as to how much thought had to be given to whether something was or was not arguable whereas we consider that if a judge thinks that it may be arguable or is arguable he should grant it.

The noble and learned Lord raises an interesting point in connection with the question of fundamental nullity. I should like to reflect further on that. But as a provisional matter it is noticed that he may give his reasons in writing. I should have thought that a judge who had perceived a fundamental nullity would have it in mind to put that matter into the document which he prepared. If he did so I would envisage that that matter would then be raised by the applicant if he then took it on to appeal under the later provisions in subsection (4). But subject to looking at that, I believe that there is everything to be said for stressing that the only question here is whether it is arguable, and that matter can be decided, as it is at the present time in England, on the paperwork. It can then be reconsidered by two or three judges on appeal in terms of the later provisions of the clause.

I took the point which the noble and learned Lord made at Second Reading that there is a danger that a single judge might not always be as vigilant as he might. The fact that he has to express his reasons in writing and the fact that he has the prospect of the matter being considered on appeal should ensure that it is, as far as one can predict, properly dealt with. I would suggest that the provisions which we have, subject to the point which the noble and learned Lord has raised, are proper in the circumstances.


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