Appellant: Gilchrist QC et Collins; Paterson Bell, Edinburgh

Respondent: A Brown AD; Crown Agent

26 January 2011

[1] The appellant was convicted on 10 March 2006 of three charges under the Proceeds of Crime Act 2002. He was sentenced on 11 April 2006 to concurrent sentences of 2 years' imprisonment on charge 1 and 6 years' imprisonment on each of charges 2 and 3. A note of appeal was lodged on 28 June 2006. It contained three grounds of appeal against conviction, and an appeal against sentence, although no ground was specified at that time. Leave was granted at second sift on 26 October 2006. The appellant was then granted interim liberation. Since then the appeal has taken a protracted period to be determined. In large part, that appears to have been due to periods of time during which those acting for the appellant requested further time to investigate possible additional grounds of appeal, to obtain transcripts of evidence and to carry out other preparations. In March 2007 additional grounds 4, 5, 6 and 7 were lodged, and the original ground 3 was withdrawn. In September 2008 counsel informed the court that the appeal was ready to proceed to a hearing. The court then directed that a hearing be fixed to consider grounds 6 and 7. That hearing proceeded in April 2009, and resulted in the refusal of ground 6 and also of ground 7 in so far as it related to charge 1. Following that hearing, counsel then acting for the appellant sought further transcripts of evidence and in April 2010 submitted an additional ground of appeal, ground 8, alleging defective representation at the trial.

[2] After that ground had been redrafted and had passed the sift, counsel for the appellant informed the court, at a hearing on 15 September 2010, that there were no further outstanding matters. The court then assigned the appeal to a full hearing, to proceed on 1 February 2011 and the three succeeding days. In the note of argument submitted for that hearing, which was lodged on 5 January 2011, it was indicated that the appellant was no longer insisting in his appeal against conviction on charges 2 and 3. That left only charge 1. So far as that charge was concerned, grounds 1, 7 and 8 were withdrawn. That left grounds 2, 4 and 5, which had been before the court since 2007, and the appeal against sentence.

[3] On 17 January 2011 a revised note of appeal was lodged containing two proposed additional grounds of appeal, grounds 10 and 11 (ground 9 being the ground of appeal against sentence, which had eventually been lodged). On 18 January 2011 a related devolution minute was also lodged. As the proposed additional grounds of appeal relate not only to charge 1 but also to charges 2 and 3, the revised note of appeal represents a significant change in the appellant's position since the note of argument was lodged, less than two weeks earlier.

[4] The court has now been asked to grant leave to the appellant to amend his grounds of appeal under Rule 15.15 of the Act of Adjournal, so as to allow the two proposed additional grounds to be argued. Those proposed grounds of appeal are based upon the decision of the Supreme Court in the case of Cadder v HM Advocate 2010 SCCR 951.

[5] It appears to us that the effect of the amendment, if allowed, will be to bring an appeal for the first time on the ground that the leading of the evidence in question by the Crown, during the appellant's trial, was incompatible with his Convention rights, and that section 100 of the Scotland Act 1998 therefore applies. The time limit imposed by section 100(3B) expired during 2007, one year after the trial, unless the court considers that a longer period, until the date when the revised Note of Appeal was lodged, is equitable having regard to all the circumstances. Quite apart from section 100, the court must in any event be satisfied that it is appropriate to grant leave to the appellant to amend his grounds of appeal.

[6] We note that the trial in this case took place a number of years before the Grand Chamber of the European Court of Human Rights issued its judgment in Salduz v Turkey (2008) 49 EHRR 19. It is submitted however on behalf of the appellant that Salduz did not innovate upon the previous case law of the Strasbourg court.

[7] On behalf of the Crown the application for leave to amend is opposed as coming too late. If the amendment were to be allowed, the Crown's position is that the additional grounds could not be dealt with at the hearing due to commence on 1 February as relevant factual enquiries could not be completed in time. Such enquiries relate in particular to whether the appellant had waived his right of access to a solicitor. In that regard the Advocate depute explained that the officer who had detained the appellant was now working with the UK Borders Agency, but was currently on leave.

[8] On behalf of the appellant it is accepted that the evidence contained in the appellant's police interview was not essential to the Crown case. The point sought to be argued is that the Crown relied on that evidence to undermine the appellant's credibility, and that its admission may therefore arguably have resulted in a miscarriage of justice. We note that if, as is contended, Salduz did not innovate upon the Strasbourg law the point is one which might have been taken at the trial, or at any point during these appeal proceedings (apart from the period between the decisions in HM Advocate v McLean 2010 SCCR 59 and Cadder). If the point had been taken at an earlier stage it might have been possible to obtain a report on the relevant circumstances, including the potential impact of the evidence in question, from the trial judge. That is however no longer possible, the trial judge having died in June 2007.

[9] Counsel for the appellant submitted however that the domestic law had appeared to be settled, and that that constituted an explanation for the failure to take the point prior to the decision in Cadder. We have some difficulty accepting that submission, not only because the point was taken in other cases, such as McLean and Cadder themselves, but also because, at least by the time of the procedural hearing in September 2010, when counsel informed the court that there were no further outstanding matters, the decision in Cadder was awaited and its outcome was widely anticipated.

[10] Even if we confine our attention to the period following 26 October 2010 when the Supreme Court issued its decision in Cadder, there appears to us to be no satisfactory explanation for the delay until 17 January 2011. The explanation given was there had been difficulty in instructing junior counsel. But the fact of the matter is that senior counsel had already been acting for some time, and legal aid for junior counsel had also been granted. The delay in advancing the proposed additional grounds of appeal has serious implications. As we have explained, this appeal has already taken an exceptionally long time to be determined. The forthcoming hearing was fixed on the basis of representations made by the appellant's counsel at a time when the decision in the Cadder case was awaited. If the proposed amendment is allowed, the appeal will not be concluded at the hearing which has been fixed.

[11] We also observe that if this appeal, on its existing grounds, had been progressed without delay, there would be no question of a Cadder appeal now being entertained, consistently with the opinions delivered in that case. It does not appear to us to be equitable to treat the appellant more favourably than other appellants whose appeals progressed with ordinary expedition and in consequence were heard and disposed of before the decision in Cadder. In those circumstances, we consider that it is too late to raise the proposed devolution issue. In addition, and quite apart from the issue arising under section 100, we are in any event not persuaded in the circumstances that we have described that it is in the interests of justice to allow the proposed amendment at this stage of the proceedings.

[12] We shall therefore refuse the application for leave to amend. We shall also refuse to receive the devolution issue.