Convicted rapist’s petition to the nobile officium dismissed as incompetent

An Extra Division of the Inner House of the Court of Session comprising Lady Dorrian, Lord Bracadale and Lord Malcolm heard the petition of Graham Gordon, a convicted rapist, who sought a remedy – which was not entirely clear – in respect of a complaint against the Scottish Criminal Case Review Commission (SCCRC), whose conclusions in his referral he deemed irrelevant.

The petitioner was convicted of rape at the High Court in Stonehaven in 2002 and was imprisoned for five years. He unsuccessfully attempted to have this conviction overturned a number of times. The SCCRC accepted his case and referred it to the High Court in 2007, citing a possible miscarriage of justice based on the “cumulative effect of Grampian Police enquiry errors and other irregularities”. His appeal was refused in 2010 and so too was his motion to appeal to the Supreme Court.

Mr Gordon raised concerns about the SCCRC’s handling of the 2007 referral, as well as its scope, and sought a ruling on whether, first, his human rights had been violated and, secondly, whether it failed to conduct an independent investigation into the case.

The remedy sought by the petition was unclear and it contained a lot of irrelevant material. His complaint appeared to be that the SCCRC’s conclusion that allegations relating to “several oppressive acts and omissions by the police and Crown” were irrelevant.

In addition, he complained the SCCRC’s decision was not independent because one its caseworkers was a procurator fiscal depute on secondment from the Crown Office and Procurator Fiscal Service (COPFS).

The petitioner asked the court to rule whether the 2007 decision was unlawful and voidable. Another crave was directed at overturning the decision of the appeal court which followed that reference.

The first ground of incompetency was that the decision could not be reviewed in the Court of Session because the decision came from the High Court of Justiciary and, in any case, decisions of administrative bodies cannot be reviewed by petition to the nobile officium.

In Maclaren, Court of Session Practice, the nobile officium is described as “..the equitable power vested in the Court of Session to make provision for cases arising out of statutes, but for which no provision has been made in said statutes; or for unexpected, or exceptional, happenings, whether arising from statute or otherwise.”

Erskine provides it may only be used exceptionally (Institutes, I,3,22). Thenobile officium is meant as a remedy in unusual, unforeseen or unexpected circumstances and is used competently, for example, in Manson v British Gas Corporation 1982 SLT 77.

The second ground of incompetency related to the availability of other remedies. The petitioner’s averment that the nobile officium was the only option available to him was refuted: he had both judicial review and the option of including the matters of his petition in his outstanding appeal to the Supreme Court in relation to the refusal of the SCCRC to make a referral in 2012.

The petition was replete with other problems including inaccuracies about earlier proceedings and a lack of clarity as to the remedy sought.

This led to some observations on the operation of Rule of Court 4.2(5) which details the procedure by which a party litigant may proceed without the signature of counsel or another with a right of audience.

Lady Dorrian, who delivered the opinion of the court, explained it is implicit in the Rule that the person must have been “unable” to obtain the signature of one of the above persons.

She added: “It is unlikely that one request and refusal will satisfy the requirements of “unable”, but, be that as it may, before granting permission the Lord Ordinary must be satisfied that the individual in question has been unable to obtain the requisite signature. In the present case it is not asserted in either the petition or the letter submitting it that the applicant has been unable to obtain the requisite signature. There was no material upon which the court could conclude that this underlying prerequisite had been met.”

Finally, Lady Dorrian noted that permission should not have been given in this instance as the document was ex facie incompetent and that the Lord Ordinary himself noted other remedies were available.

She added: “Permission should not be given if the application appears ex facie to constitute an abuse of process. In a case in which the averments are plainly irrelevant, it may be difficult to conclude that there is a prima faciecase, but permission should not be given unless such a case is disclosed.”