Section 107(8) “Cause Shown” Requires a Good Reason Beyond Arguability, and Applications Must Specify the Refused Grounds

Introduction

In Application by Stephen Stewart under section 107(8) of the Criminal Procedure (Scotland) Act 1995 by Stephen Stewart against His Majesty's Advocate [2026] HCJAC 32, the Appeal Court of the High Court of Justiciary (Lord Matthews, Lord Clark, Lord Ericht) considered an application under sections 107(8) and 107(9) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”).

The appellant had been granted leave to appeal on limited grounds at first sift, but sought permission to argue additional grounds that had been refused. The application itself was a brief letter that did not identify the refused grounds or explain why leave should nonetheless be granted; those details emerged only later in written submissions.

The case is significant less for its underlying facts (the appellant’s convictions included culpable homicide, abduction, extortion, and drugs offences) and more for its reaffirmation—and practical enforcement—of the strict procedural and substantive requirements for reinstating refused grounds of appeal.

Summary of the Judgment

The court refused the application. It held that:

  • An application under section 107(8) is not an appeal against the sift decision; the appellant must show cause (i.e., a “good reason”) to argue refused grounds.
  • It is “essential” (and good practice) that such an application itself sets out the basis on which leave is sought and identifies the grounds concerned; the court dealt with this application but signalled that future applications should contain the grounds.
  • The refused misdirection ground (ground 2(b), concerning assault and “words alone”) was not shown to be arguable as a directions complaint and, in any event, could be pursued (if relevant) through the already-admitted sufficiency ground.
  • The “no reasonable jury” ground (ground 3) was not “inextricably linked” to the admitted sufficiency ground on the facts of this case and amounted to disagreement with the sifting judge rather than showing “cause”.

Analysis

Precedents Cited

Beggs v HM Advocate 2006 SCCR 25, [2005] HCJAC 131

The court treated Beggs v HM Advocate as the core authority on section 107(8). Quoting para [5], it reiterated that “cause shown” is not satisfied merely because a refused ground is arguable; rather, the appellant must demonstrate a good reason for reinstatement.

Beggs provides non-exhaustive examples of what may qualify as a good reason:

  • a change of circumstance;
  • a patent error or misunderstanding by the sifting judge(s);
  • the refused ground being inextricably bound up with an allowed ground;
  • material not taken into account at sift (where relevant);
  • the ground being so significant that exclusion would not be in the interests of justice.

In the present case, the court applied these categories strictly and found none satisfied.

Birnie v HM Advocate 2015 JC 314, [2015] HCJAC 54

The court relied on Birnie v HM Advocate for the modern restatement of the same principle: a section 107(8) application is not a mechanism to re-argue sift. The sift decision is “final at that stage”, and reinstatement requires “good reason” of the kind described in Beggs.

Importantly, the appellant argued that it was unfair that a wholly unsuccessful appellant at first sift might proceed to second sift and thus be in a “better position” than a partially successful appellant who must show cause. The court rejected this, holding that the statutory requirement to show cause applies regardless of whether the case has been to second sift; there is no statutory distinction.

Kenny v HM Advocate 1951 JC 104 and Gordon’s Criminal Law (4th ed.)

These were invoked by the appellant to challenge the sifting judge’s view that the misdirection ground proceeded on an incorrect premise about assault (the assertion that “words alone cannot be an assault”).

The Appeal Court did not resolve any broader doctrinal dispute about assault in the abstract. Instead, it disposed of the point procedurally and contextually:

  • as a directions complaint (ground 2(b)), the court held the trial judge’s charge, taken as a whole, gave the jury a clear route to verdict, making the ground “unarguable”;
  • to the extent the case depended on whether the evidence disclosed “no more than words”, that issue could be pursued under the already-allowed sufficiency ground (ground 1).

Legal Reasoning

(1) The procedural discipline of section 107(8): “cause shown” is not “arguability”

The court treated section 107(8) as imposing a two-part discipline:

  1. Form and identification: even though no prescribed form exists and applications may be written or oral, it is “essential” that the application identifies the refused grounds and sets out the basis for leave.
  2. Substance: the appellant must show “cause”—a good reason of the Beggs/Birnie type—rather than seeking a rehearing of sift.

While the court proceeded on this occasion (having written submissions and oral argument), it issued a clear forward-looking practice signal: future applications should contain the grounds within the application itself.

(2) Ground 2(b): assault/“words alone” framed as misdirection

The court’s analysis separated (a) the correctness and adequacy of the trial judge’s directions from (b) the evidential question of what occurred.

  • On directions, the court held the charge as a whole provided a clear route to verdict, so a misdirection ground was not arguable.
  • On “words alone”, the court treated the point as potentially relevant to whether there was evidence of the crime libelled—i.e., a sufficiency question—already encompassed within the allowed ground 1.

This reasoning illustrates a recurring appellate approach: where a refused ground merely repackages an issue already capable of being argued under an allowed ground, it will be hard to show the additional “cause” required for reinstatement.

(3) Ground 3: “no reasonable jury” not shown to be inextricably linked

The appellant argued that the “no reasonable jury properly directed could have returned” ground was inextricably linked to sufficiency, because there can be “technical sufficiency” yet still an unreasonable verdict.

The court accepted the conceptual distinction: sufficiency and “no reasonable jury” tests are “not the same”. However, it held that on the circumstances of this case the grounds were not shown to be inextricably linked, and the submission did not engage with the “cause shown” criteria. It was characterised as disagreement with the sifting judge—insufficient under section 107(8).

Impact

The decision’s likely impact is procedural and practical:

  • Reinforced gatekeeping: it strengthens the message that section 107(8) is exceptional and cannot be used to re-run sift by re-arguing arguability.
  • No “fairness” workaround: the court declined to soften the test based on whether second sift has occurred; the statutory “cause shown” requirement applies uniformly.
  • Drafting expectations: it signals that applications should identify the refused grounds and reasons on their face, reducing inefficiency and surprise.
  • Anti-duplication principle: where the refused point can be advanced under an already-admitted ground, reinstatement will be difficult absent a distinct and significant added value.

Complex Concepts Simplified

“Sift” (first sift / second sift)
A permission filter in Scottish criminal appeals. Judges decide which stated grounds are arguable and grant leave only on those. Refused grounds cannot be argued unless section 107(8) leave is obtained “on cause shown”.
Section 107(8) “cause shown”
A higher threshold than “this might be arguable”. The appellant must show a good reason (e.g., an error at sift, a significant point that should be heard, or a refused ground tightly bound to an allowed one).
“Not an appeal against sift”
The court will not simply re-check whether the sifting judge was right. The question is whether there is a good reason to re-open what the sift has excluded.
Sufficiency of evidence vs “no reasonable jury”
Sufficiency asks whether there is legally enough evidence for the case to go to a jury (and to support a conviction). “No reasonable jury” accepts there may be sufficient evidence but argues that, properly directed, no reasonable jury could convict on it. They are distinct tests, but may overlap depending on the facts.
Misdirection
A legal error in the trial judge’s instructions to the jury. Appellate courts assess the charge as a whole, asking whether the jury was given a clear and correct route to verdict.

Conclusion

[2026] HCJAC 32 reaffirms that section 107(8) applications are exceptional: reinstating refused grounds requires “cause shown” in the Beggs/Birnie sense, not mere disagreement with sift or a restatement of arguability. The court also underscored a practical expectation that applications should identify the refused grounds and articulate the basis for reinstatement. On the merits of reinstatement, it refused to add a misdirection ground where the charge as a whole was held to provide a clear route to verdict, and refused to add a “no reasonable jury” ground where the appellant failed to demonstrate a qualifying good reason or true inextricable linkage to the allowed sufficiency ground.