Luke Muir Mitchell v. Her Majesty's Advocate [2011] HCJAC 35

Leave to lodge additional ground of appeal in terms of section 110(4) of the Criminal Procedure (Scotland) Act 1995:- On 21 January 2005 the appellant was convicted of murder after trial. On 11 February 2005 he was sentenced to detention without limit of time with a punishment part of 20 years specified by the trial judge. On 2 August 2005 the appellant lodged a note of appeal in which he sought to appeal against both conviction and sentence. Leave to appeal was granted in respect of certain of the grounds of appeal against conviction and it was also granted against sentence. On 16 May 2008 the appeal court refused the appeal against conviction. On 2 February 2011 the appeal against sentence was refused. On 27 January 2011 the appellant lodged with the Justiciary Office an application for leave to lodge an additional ground of appeal under section 110(4) of the Criminal Procedure (Scotland) Act 1995 which related to a ground of appeal against conviction founded on the decisions in Salduz v Turkey (2009) 49 E.H.R.R. 14 and Cadder v H.M.A. [2010] U.K.S.C. 43. On 2 February, no application was made to postpone the advising on the appeal against sentence until the application lodged on 27 January 2011 had been disposed of. Here the court considered the distinction between appeals against conviction and appeals against sentence. The court considered the construction of section 110(4) of the 1995 Act which provides:- "Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.”The court considered whether by refusing the appellant's appeal against conviction on 16 May 2008 the avenues of appeal had been exhausted, subject to any reference by the Scottish Criminal Cases Review Commission or an appeal to the Supreme Court on any live devolution issue.