Nobile officium used to recognise English High Court orders due to statutory casus improvisus

One of the classic applications of the nobile officium is where the court supplies legal norms deemed absent or omitted from statute.  This has tended to be known as a casus improvisus or casus omissus.  The essential idea is that the legislature has inadvertently omitted from statute some aspect, detail or mechanism relating to an unforeseen situation that has now arisen.  It is important that the omission is inadvertent, as the role of the court is not to modify, supplement or extend the scope of the statute when using its nobile officium in this way.

An example of this was seen in the recent case of Cumbria County Council, Petitioners [2016] CSIH 92.  The case related to orders made by the High Court of England and Wales for the placement of children in secure accommodation in Scotland.  However, the English courts essentially had no legal power to make orders for those children placed in Scotland due to the lack of a corresponding statutory power in the relevant legislation.  The issue had previously been raised in the High Court of England and Wales in In the Matter of X (A Child) [2016] EWHC 2271 (Fam), in which it was held that the appropriate way forward was for the English local authorities to petition the nobile officium in Scotland.  These proceedings followed from that decision, with petitions being presented by Cumbria County Council, Stockport Metropolitan Council and Blackpool Borough Council.

The Inner House was satisfied that there was a casus improvisus in the legislation, as the recognition of a Scottish order in England and Wales had express statutory provision, whilst the recognition of an English/Welsh order in Scotland had no express statutory provision.  The petition was further supported by the fact that the welfare of children was involved, invoking the parens patriae jurisdiction with which the nobile officium has a degree of overlap (but which remain distinguishable).  As interim orders were sought, the balance of convenience test was applied and satisfied.  Accordingly, the court held that the measures adopted by the High Court of England and Wales would be recognised and enforceable in Scotland as if they had been made by the Court of Session.

There are a few points worth noting about this case in relation to the nobile officium.

First, the court agreed with my assessment of the applicability of precedent to the nobile officium (see the judgment at para. 21 and Thomson, The Nobile Officium, pp.241-252).  In a nutshell, the court will take encouragement from prior analogous applications of the nobile officium, but precedents are not decisive for the competency of a petition.  The important of this latter point in particular was explained by Lord Drummond Young (para. 21):

“it is no bar to its [the nobile officium’s] application that no precedent exists that is applicable to the precise circumstances of the case.  That conclusion is supported by the fact that the primary use of the jurisdiction is to deal with unforeseen circumstances, which obviously may be unprecedented.  Nevertheless, before the jurisdiction is exercised, the court will normally consider whether there has been an analogous application in the past, and if there has that will support the exercise of the jurisdiction.  If there has been no previous analogous decision, however, that is not decisive:  in such a case the court must decide whether injustice and oppression will result if it does nothing, and if that is so there is clearly a good case for the invocation of the jurisdiction.  On the applicability of precedent to the nobile officium, we should record that we have obtained great assistance from the discussion at pages 241-252 of Professor Stephen Thomson’s work, The Nobile Officium, the first monograph to be published on the subject.”

Second, an aspect of the court’s conclusion that there was indeed a casus improvisus (as opposed to a deliberate statutory omission) is worth noting.  The court will be required, on the evidence, to be satisfied that the omission is indeed inadvertent.  It is interesting to note the following passage of the judgment in this regard (para. 37):

“We were informed that officials of the Scottish and United Kingdom governments have held discussions about the possibility of promoting new legislation to address the anomaly in the existing legislation.  The provisional view of both administrations is that the best way to resolve the problem would be primary legislation in the United Kingdom to amend section 25 of the Children Act 1989.”

One wonders to what extent this recognition from officials in the Scottish and UK governments played a role in the court’s satisfaction that the statutory omission was unintended.  In the High Court of England and Wales, Sir James Munby P suggested a joint reference to the Scottish Law Commission and the Law Commission of England and Wales – in the Inner House’s view, that would not be necessary in view of the fact that “discussions are in progress between the Scottish and United Kingdom governments about remedying the problem in the legislation” (para. 38).

Third, the court has continued the commendable trend of placing greater emphasis on the practicality of the facts and issues, than being deterred by procedural minutiae:  “The critical objective is to ensure the welfare of the child concerned, in the particular circumstances which have arisen.  This requires a practical approach, so that procedural niceties are not allowed to stand in the way of the fundamental policy that underlies the jurisdiction. ” (para. 26)  This is consistent with the rationale of the nobile officium as a device for alleviating procedural obstacles which result in sufficient injustice to justify the court’s extraordinary equitable intervention.

Finally, the court considered an additional reason for its intervention ex nobile officio in the following terms:  “if nothing is done, it is likely that repeated applications to the Court of Session will be required to cover every case where the English High Court places a child in secure accommodation in Scotland; such cases are likely to recur regularly.  That situation clearly calls for a statutory remedy.” (para. 37)  This brings to mind the recurring applications to the nobile officium made in the areas of trusts and bankruptcy, covered in detail in the book, the necessity of which was eventually reduced or removed by legislation which provided for the circumstances in question.  Clearly, and rightly, the court is concerned not to see the nobile officium become the go-to remedy whenever this situation arises in future.

It remains to say that this case brought to the author’s mind Wan Ping Nam v Minister of Justice of the German Federal Republic, 1972 JC 43.  Though a case in the High Court of Justiciary, it too concerned a casus improvisus relevant to inter-jurisdictional issues.  The Extradition Act 1870 provided that a criminal accused of an extraditable crime shall, if a foreign warrant for his arrest is duly authenticated and certain evidence produced, be committed to prison by a police magistrate.  A statutory right to apply for a writ of habeas corpus was conferred, but the Act purported also to extend these provisions to Scotland where, of course, habeas corpus does not form part of the law.  The High Court of Justiciary held, however, that the “plain intention” of the Act was to provide the opportunity of relief to persons committed to prison under the legislation, and the court therefore exercised its nobile officium to provide a remedy to the effect of a writ of habeas corpus.  “Procedural niceties” relevant to the inter-jurisdictional application of legal rules were not permitted to stand in the way of ascertained legislative intention to the detriment of the petitioner.

Wan Ping Nam, and Cumbria County Council, show the continuing utility of the nobile officium in  tackling unforeseen or unprovided for issues of a cross-border or inter-jurisdictional nature, in particular to smooth out unintended asymmetries between the UK’s constituent jurisdictions.  These issues can be found across many areas of law, but it would be interesting to consider whether the nobile officium might find relevance in the devolution or constitutional context which, as recent legal developments show, are a continuing source of inter-jurisdictional controversy.

– Stephen Thomson

Harold Wilson, Thornhill and the nobile officium

I was asked at a legal event a short while ago if there were any “funny cases” concerning the nobile officium.  It was not a question I was anticipating, and what one person might find amusing, another might find decidedly dull.

One case which did spring to mind as at least vaguely amusing was that of Ferguson, Petitioners, 1965 SC 16.  It also raised an important issue of principle to which I will return in a moment.  The case concerned two electors – Mr and Mrs Ferguson (though it is unclear whether they were husband and wife) – who were looking forward to casting their votes in the General Election of 1964.  Upon examining their local electoral register for Thornhill, however, they were surprised to find that their names had been deleted from the register.  Even more surprisingly, it came to light that their names had been removed by the electoral registration officer on the basis of information received from a third party that they were dead!

The identity of the third party is not revealed in the facts, nor is it clear what information was given to the electoral officer, and with what motivation.  The petitioners claimed that they were “unaware of the precise nature and manner of the said statement”, and that they were neither responsible for the making of the statement, nor aware that it had been made.  What was more certain was that the electoral registration officer had acted ultra vires when deleting the petitioners’ names from the register, having failed to execute a statutory duty to inform the petitioners that an objection had been made to the inclusion of their names, and giving them an opportunity to respond to that objection.  Perhaps the officer did not have the morbid curiosity to invite objections from the deceased.

It was observed that there was no machinery in the relevant legislation – the Representation of the People (Scotland) Regulations 1950 – for restoring the petitioners’ names to the electoral register, at least before the next electoral lists would be compiled.  The problem with waiting until the compilation of those lists was that it would next occur in November 1964, whereas a general election was to be held on 15th October 1964.  Accordingly, the petitioners would have been unable to vote in that election.  They therefore petitioned the nobile officium for an order to restore their names to the electoral register in order that they could vote in the forthcoming election.

The Court accepted that there was no statutory machinery for restoring the petitioners’ names to the register, and accordingly granted the prayer of the petition.  However, there are two peculiar features about this.  First, if the removal of their names from the electoral register was ultra vires, this would seem to be a case for judicial review which, though not trading by that name, was already well established in functional terms in the Court’s own jurisprudence.  A possible explanation for allowing the nobile officium to be used may, however, have been the urgency of the petition and the need for expeditious action to allow the petitioners to vote:  the case was heard on 13th October, just two days prior to the General Election.  It is possible – though this is speculation – that a petition to the supervisory jurisdiction would have taken longer.

Second, there is an argument for saying that, if the deletion of the petitioners’ names from the electoral register was ultra vires, then they had never been validly deleted as a matter of law.  In other words, their names could legally still be considered to be on the register.  However, it is an odd (though perhaps inevitable) feature of judicial review that one needs to obtain a decree of the Court holding that an act or decision is unlawful, before it is formally considered, from a legal perspective, to be unlawful.  There is also the paradox that in a successful case for judicial review, a court will acknowledge the factual existence of an ultra vires act or decision, whilst simultaneously proclaiming its legal invalidity.  That, however, is a matter for the complex but fascinating area of voidness and voidability in judicial review.  Perhaps a petition to the nobile officium was the simplest option, after all – though the Court has, on many occasions, required petitioners to use other avenues of redress even where they were less “expedient”.

Behind this amusing (or so I thought) case was therefore an interesting matter of principle.  The interface between the nobile officium and judicial review has not been explored in any detail, beyond my own observation that they probably share the same doctrinal heritage in the Court’s broad equitable jurisdiction.  Perhaps, as I have published work in both areas, I will come to explore that interface in more detail.

For those that are interested in such matters, the General Election in question was won by Harold Wilson who narrowly edged the Labour Party into government for the first time since 1951.  Who knows whether Mr and Mrs Ferguson were satisfied that their petition had been worth the effort?

– Stephen Thomson

Lord Carloway installed as new Lord President and Lord Justice General

Happy new year to all readers of this blog!  I have a couple of updates to make, belated by the Christmas festivities, but one is timely to make today.  That is to note that Lord Carloway has today been formally installed as the new Lord President of the Court of Session and Lord Justice General of Scotland, i.e. as the most senior judge in Scotland.

Why is this of especial note on this blog?  Because Lord Carloway does not seem to be the greatest fan of the nobile officium.  As I discuss elsewhere, the Carloway Review 2011 on criminal law and procedure (available here) looked at various problems that the nobile officium was seen to throw up in criminal procedure.  It was even considered whether the jurisdiction might be abolished altogether in the criminal sphere, though Lord Carloway essentially resiled from this position.  Will the new Lord President and Lord Justice General bring any influence to bear on the ways in which the nobile officium is, and is not, used?  It will be interesting to see.

I will post my other observation shortly; in addition, however, I see that there is a petition to the nobile officium by a Mark McSkimming on the court roll scheduled for 14th January.  No more information on that for now but I will keep an eye on it.

– Stephen Thomson

Book review and short article published in Journal of the Law Society of Scotland

A book review on The Nobile Officium:  The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland, has been published today by the Journal of the Law Society of Scotland.  The review can be read here.

I have also contributed a short article to the Journal, entitled ‘The Nobile Officium:  Still Relevant, Still Useful’, which can be read here.  Your comments are very welcome (e-mail stephen.thomson@cuhk.edu.hk).

High Court dismisses petition to nobile officium in appeal against contempt of court

The High Court of Justiciary has dismissed a petition to the nobile officium against a sheriff’s finding of contempt of court.  The judgment was handed down by Lords Brodie, Bracadale and Matthews in Howden, Petitioner [2015] HCJAC 91.

The nobile officium is usually reserved for situations giving rise to extraordinary or unforeseen circumstances, but is a standard way of appealing against a finding of contempt of court.  As such, it is not necessary to look for some extraordinary or unforeseen element in a contempt of court case in order to determine its susceptibility of appeal to the nobile officium.  In this particular case, there was indeed nothing that was particularly extraordinary or unforeseen.

The petitioner, Elizabeth Howden, had been selected for jury service at Kilmarnock Sheriff Court.  When questioned by the sheriff about whether the jurors knew the accused, anyone else named in the indictment or anyone likely to be called as a witness in the case, the petitioner did not respond positively.

A challenge to the maintenance of impartiality in court proceedings and the guarantee of a fair hearing / trial is the role and availability of social media, with platforms like Facebook and Twitter providing extensive opportunities to share information and research information about others.  Clearly mindful of that reality, the sheriff instructed the jury at several points throughout proceedings not to try to access or research any information about the accused or related information, including on social media.  The sheriff made it clear that Facebook and Twitter should not be used to share any information in relation to the case.

A Crown witness gave evidence on the second day of the trial and, on the following morning, the sheriff was informed by her clerk that Mrs Howden had accessed Facebook to verify whether she knew the sister of the Crown witness.  The sheriff called the petitioner to her chambers and decided that she should be removed from the jury and return to court at a later date with legal representation as the sheriff was considering the question of her contempt.  At those proceedings, the sheriff found the petitioner in contempt, though she did not impose a sentence of imprisonment due to the limited nature of the petitioner’s research on Facebook, and the fact that she volunteered the information to the sheriff clerk.  Instead, she imposed a fine of £500 payable in instalments.

Mrs Howden appealed against the finding of contempt on the basis that the sheriff had erred in law.  Mrs Howden had not enquired into the nature of the charge nor any matter surrounding the allegations in the indictment.  She had simply consulted Facebook to determine whether she knew the sister of the Crown witness with a view to ensuring that she “was in a position to fulfil the oath she took at the commencement of the trial”.

The High Court dismissed the petition.  The court was of the view that the sheriff had given very clear instructions about Facebook and other internet resources, and the petitioner had disobeyed them.  She was therefore in contempt of court.

This is a fairly straightforward dismissal of a petition against a finding of contempt.  Had the petition been successful, it would likely have resulted in recall of the finding of contempt.  Alternatively, it would have been possible for the penalty to be quashed, either in full or with a substituted penalty, as has happened in other petitions to the nobile officium.

–  Stephen Thomson

Petition to nobile officium by convicted rapist dismissed as incompetent

Two events took place on 4th June 2015 at Parliament House, Edinburgh, on the subject of the nobile officium.  One was the launch of my book The Nobile Officium:  The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland.  The other, a few rooms away, was the handing down of the judgment in the case of Gordon, Petitioner [2015] CSIH 51.

The case concerned a petition presented to the nobile officium by Graham Gordon, who was convicted of rape at the High Court in Stonehaven in 2002.  Gordon challenged his conviction via a number of channels, including the Scottish Criminal Cases Review Commission (SCCRC).  In 2007, the SCCRC referred his case to the High Court on the basis of a possible miscarriage of justice.  This was ultimately refused.

The SCCRC later accepted Gordon’s case for a second review relating to an item of evidence, however the SCCRC decided not to refer the case.  Having been unsuccessful in seeking judicial review of that decision in [2013] CSOH 13, the petitioner now sought to invoke the nobile officium on the averment that the SCCRC had failed to uphold his human rights having failed to conduct an independent investigation of his case.

Lady Dorrian delivered the opinion of the Inner House of the Court of Session, with Lord Bracadale and Lord Malcolm also on the bench.  The judgment was critical of the petition as “somewhat difficult to follow”, containing irrelevant material and failing to be sufficiently clear as to the remedy sought.  In my view it is also slightly puzzling why this petition was presented to the Court of Session rather than the High Court.

In addition, a question of competency was said to arise in that decisions of the High Court of Justiciary were not reviewable in the Court of Session.  The Court gave its usual caveat about the exceptional and extraordinary nature of the nobile officium, but interestingly added that the jurisdiction is “not designed for review of administrative decisions of bodies such as the SCCRC, either on the merits of the decision or on grounds of the kind which appear to be advanced here”.

The Carloway Review had pointed out the potential for abuses of the nobile officium in the criminal sphere, and noted that the existence of the SCCRC changed the nature and scope for “appeals” (I use the term loosely) against criminal judgments / convictions.  This was also not the first time that the court (though in that case the High Court) had taken the view that the SCCRC was a remedy that a petitioner had at his disposal, defeating the idea of him having “no remedy available” and therefore opening up the possibility of petition to the nobile officium.

The court in Gordon did not explicitly state that the existence of review by the SCCRC was a remedy which would defeat the contention that the petitioner had no other remedy open to him.  However, it did say that it was “surprising” that the petitioner should make that claim “since he has previously applied a second time to the SCCRC and presented a petition for judicial review” and that the “availability of other remedies is thus a further ground upon which it may be stated that the petition is incompetent”.  It is worth bearing in mind the doubt expressed by Lord Osborne in Akram v HM Advocate [2009] HCJAC 67 that review by the SCCRC might not constitute a remedy due to the wide discretion at the disposal of the Commission.  That point was not specifically addressed by the court in Gordon.

However, I do not think the statement that the nobile officium is “not designed for review of administrative decisions of bodies such as the SCCRC, either on the merits of the decision or on grounds of the kind which appear to be advanced here” should be overstated or read too narrowly.  There is ample authority for the nobile officium being used in the criminal sphere to challenge otherwise competent decisions on the basis that they were excessive or oppressive – in other words, on their merits.  I would also caution against reading this statement too readily as one prohibiting the use of the nobile officium as a means of challenging administrative decisions.

More likely, the court was trying to discourage other petitioners from coming forward and attempting to invoke the nobile officium as a means of reviewing unfavourable decisions of the SCCRC.  In other words, it was trying to ensure that the nobile officium does not become an extension of the criminal appeals process in the way that it has done (to some extent) in summary procedure.  This was precisely the danger that the Carloway Review was pointing to, and the court can probably not be criticised for guarding the nobile officium in this way.

– Stephen Thomson

The Book

The Nobile Officium:  The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland
Stephen Thomson
Avizandum Publishing, 2015
300 pages
ISBN:  9781904968337

Reviews

“A work of real scholarship which makes a significant contribution to the literature on Scots law.”
–  Lord Hope of Craighead KT

Cover Text

The nobile officium of the Court of Session and the High Court of Justiciary is a long-established but elusive power.  The extraordinary equitable jurisdiction of the Supreme Courts of Scotland continues to be relevant and useful today but its scope and limitations are poorly understood.  This is the first book to systematically examine the nobile officium.  Placing it in its historical and conceptual context, the book explores the development and application of the nobile officium in such diverse areas as:

  • Trusts
  • Judicial factors, curators, tutors and guardians
  • Bankruptcy, insolvency and sequestration
  • Custody of children
  • Public officers
  • Statutory omissions
  • Civil procedure
  • Criminal law and procedure

This ambitious text provides original and informative commentary and analysis for practitioners, teachers and students of Scots law.

“A work of real scholarship which makes a significant contribution to the literature on Scots law.”  Lord Hope of Craighead

Stephen Thomson is an Assistant Professor at the Faculty of Law, The Chinese University of Hong Kong.

Book launched with lecture at Parliament House, Edinburgh

‘The Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland’ (Avizandum, 2015) was launched with a lecture delivered to a distinguished audience of practitioners, scholars and invited guests at Parliament House, Edinburgh – home of the pre-Union Scottish Parliament and now the Faculty of Advocates and Supreme Courts of Scotland.  The lecture was generously sponsored and hosted by Terra Firma Chambers, and was followed by a question and answer session and drinks reception.  The event was a great success and has been reviewed here.

The book was published by Avizandum in May/June 2015 and carries a foreword by Lord Hope of Craighead KT.  It is available for purchase through Avizandum and a number of other outlets.