The mysterious matter of Kinloch v. HM Advocate...

Ick. Lurgi. Plague. The Red Death. Whatever it was, for the second half of last week, I've been knocked horizontal by a foul ailment. Happily, consulting a peg-toothed crone, knotting a poultice about my neck, and skewering an amphibian to my lapel seems to have done the trick, and ousted the malady.  Before this ague claimed me last week, I composed this wee survey piece about the UK Supreme Court's Michaelmas term of sittings planned, and the Scottish cases and issues which Lords Reed, Hope, and the rest of the Justices will be weighing up before Christmas.

About five of the six cases to be heard, I was able to dredge up decent information, and the pertinent judgments of the Court of Session which litigants are seeking to challenge.  Only one case remained mysterious: Kinloch v. HM Advocate, the only criminal case on the Court's docket this term.  Of this action, I could find not a whisper, not a breath of judicial prose on any of the usual sources of information.

Hoping to make a bit of progress via more informal networks, I asked a couple of advocates specialising in criminal work if they had an inking about the case, and what the controversy might concern. The sterling Niall McCluskey went beyond the call of duty to dig out this information on the mysterious Kinloch.  

@peatworrier Kinloch v HMA . Appeal refused at 2nd sift, howeverappellant subsequently sought leave to appeal to the Supreme Court.
— Niall McCluskey (@NiallMccluskey) October 1, 2012

@peatworrier @bmcconnachieqc Leave granted on 2 Nov 2011. As there was no substantive appeal hearing there is no opinion of the court.
— Niall McCluskey (@NiallMccluskey) October 1, 2012

Curiouser and curiouser.  Despite his best endeavours, and these spare procedural discoveries, Niall couldn't find out what the case was about either.  By the by, that reference to the "second sift" concerns the process criminal appeals go through.  In the "first sift", appeal applications are considered by a High Court judge, who makes an assessment about whether there are arguable grounds of appeal.  If he or she decides there are no arguable grounds, and knocks back the application, the convicted person can apply to have this assessment reviewed. The papers are then nosed through by two judges (in appeals against sentence imposed) or three judges (appeals against conviction), again with a mind to assessing whether the paper submissions make an "arguable case". This is what's known as the "second sift".  Whatever Kinloch's lawyers' arguments, and whatever the bench's reasons for rejecting them, since the case was never orally argued, nor subject to a written judgment, it's impossible to say what the case concerned with any confidence.  

That it has ended up before the Supreme Court, however, strongly suggests that we can reasonably expect the appellant to be contending something in the human rights line, though that might concern the fairness of the criminal trial, or a broader case, based, for instance, on protected rights to privacy and a family life.  That said, unlike Cadder, and unlike Imperial Tobacco, the hearing before the Justices is due to last only one day, so we might expect submissions to be less exhausting in scope.  Until the Supreme Court chalks up its traditional wee summary on the web, it remains to be seen what Kinloch concerns, and whether or not it may put the poker in the greying embers of recent controversies about the UK Supreme Court's interventions in Scottish criminal cases.

UPDATE

Well that was quick.  It transpires that Brian McConnachie QC is in on the case of Kinloch v. HM Advocate himself.  He told me that:

@peatworrier @niallmccluskey It is about police surveillance and when it contravenes Article 8. Idea to review Gilchrist on that point.
— Brian McConnachie (@BMcconnachieQC) October 1, 2012

Gilchrist is a reference to the 2004 case of Gilchrist and another v. H.M. Advocate, which concerns a police tip-off, the controlled supply of drugs, covert surveillance, and the argument that for prosecutors to rely on evidence gathered in breach of article 8 rights (privacy) would render them ultra vires under the Scotland Act.  The judgment is short, and I must fly. Do give it a nosey for yourselves.