John Johnstone v Her Majesty's Advocate [2013] HCJAC 128

Application for leave to appeal to the Supreme Court:- On 1 August 2013 the appellant's appeal against sentence was refused. He had been made subject to a Hospital Order, following the advice of psychiatrists, following his plea of guilty to culpable homicide in 1995. Here the applicant sought leave to appeal to the United Kingdom Supreme Court in relation to the decision to refuse the applicant's appeal against sentence. It was submitted on behalf of the appellant that the appellant had been subjected to inhumane and degrading treatment contrary to Article 3 of ECHR. The appellant also sought to challenge the Mental Health, Public and Safety Appeals (Scotland) Act 1997 it being said that the Act breached Articles 3 and 7 (no punishment without law). It was further submitted that the absence of a statutory regime for the transfer of persons from hospital to prison amounted to a breach of Article 3. It was further submitted on behalf of the appellant that the manner in which the appeal court interpreted the meaning of "miscarriage of justice" in section 106 of the Criminal Procedure (Scotland) Act 1995 was incompatible with Article 6. Here the court described the application as "extraordinary" on the basis that none of the purported compatibility issues were raised in the appeal against sentence and, as such, could not be raised subsequently in an appeal to the United Kingdom Supreme Court. In addition, it was observed that in relation to the applicant's proposed challenge to the custodial regime, that was a civil matter and not for the criminal courts to adjudicate on.