Appellant: MC Mackenzie; Rubens, Lochgilphead

Respondent: Shand QC, AD ; Crown Agent

31 January 2012

[1] The applicants were charged with a contravention of section 1(5)(a) of the Wildlife and Countryside Act 1981 by recklessly disturbing a mating pair of white tailed sea eagles, whilst they were building a nest, in pitching a tent less than 100 metres from the nest and repeatedly photographing the eagles on 1 May 2010 at Killiechronan, Mull. The charge also libelled that they had been advised by a RSPB officer not to do so. The Minutes reveal that the case first called on 17 January 2011 and a diet of trial was fixed for 16 and 17 May 2011. The applicants were represented throughout by separate agents. The trial did not conclude on these dates and an adjourned diet took place on 6 and 7 October 2011. It still did not conclude and a further diet was fixed for 23 and 24 November 2011, at the end of which the applicants were found guilty and fined respectively £600 and £500.

[2] In terms of section 176(1) of the Criminal Procedure (Scotland) Act 1995, the applicants had seven days to appeal this summary matter. That meant that the applications for a stated case had to be lodged by 1 December 2011, unless the court permitted a late application under section 181(1). In that regard, any application required, in terms of section 181(2A), to state the reason for the failure to meet the time limit and the proposed grounds of appeal. It would have been a requirement, when lodging the application for a stated case, to make "a full statement of all the matters which the appellant desires to bring under review".

[3] On 2 December 2011, the Justiciary Office of the court received letters from new agents instructed by both applicants dated 1 December. These requested extensions of time in which to lodge an application for a stated case. The letter on behalf of the applicant Takev narrated that he had returned to his home in Norwich, but had telephoned the agents on 28 November 2011 (the St Andrew's Day holiday) and, having failed to obtain a response, again on 29 November. Instructions were given to lodge an appeal. The applicant had arranged for the previous agents to forward their bulky set of papers to the new agents on 30 November. The application narrated that:

"We require to obtain Legal Aid for the conduct of appeal proceedings consult with counsel and take instructions on an appeal".

Coincidentally, the application from the applicant Panayotov stated that he had returned to his home in London and had done exactly the same as his co-accused by way of telephoning and instructing the new agents.

[4] A period of 14 days was requested in both applications. However, the applications were not intimated to the Crown nor were they accompanied by proposed grounds of appeal. The applications were accordingly not processed.

[5] On 20 December 2011, Justiciary Office received further applications for extensions of time, this time until 13 January 2012. These adopt the previous narrative and specify the proposed grounds as follows:

"1. There was no evidence led from a rebuttal expert in ornithology who might have confirmed that the white tailed sea eagles would not necessarily have been disturbed by the erection by the accused of a camouflaged hid (sic) or tent some 100 metres from the nest and that there was some other innocuous explanation for the birds' erratic behaviour.

2. The actions of both accused were for the purposes of photography by them. Section 1 excludes from proscribed disturbance, activity carried out for the purpose of photography if done in accordance with the terms of a licence granted by the appropriate authority (Section 161 (WCA 1981). This opens the way to a submission that it was for the Crown to prove that the accused were not so licensed and, not having done so, conviction is not justified. The libel does not contain an averment that the accused were not licensed".

There is also an oblique reference to "allegedly inconsistent police statements".

[6] In a letter to the new agents dated 21 December 2011, the Crown pointed out that the terms of the 1995 Act require accused persons to prove any exceptions in statutory offences (Schedule 3, para 16). In submissions to the court, it seemed to be accepted that this provision did apply and no argument was presented on the merits of ground 2. However, it was argued that ground 1 was one alleging defective representation and that time was required to ensure that the grounds of appeal were properly presented. Reference was made to Grant v HM Advocate 2006 JC 206.

[7] Compliance with statutory time limits is important if the system of appeals is to operate efficiently and fairly for all involved in the justice system. In summary cases, the time limit for lodging an application for a stated case is relatively short, but it is well known to practitioners and the procedure which follows allows time for reflection and adjustment. It is not suggested in this case that the applicants were unaware of the time limit. The first question is whether any reason has been advanced for the failure to make an application for a stated case within that limit. It has to be borne in mind that the trial proceedings had gone on for some time before the eventual conviction with both applicants being separately represented. A voluntary change of agency does not, of itself, provide an applicant with an advantage in relation to compliance with statutory prescriptions and no other reason for a late application is stated.

[8] The central ground for granting the application came to be that this was a case in which allegations of defective representation were being made and that therefore time was required to explore that. This was coupled with a submission that the dictum of the Lord Justice-Clerk (Gill) in Grant v HM Advocate (supra) somehow prohibited such an allegation being made as a ground of appeal without extensive and time consuming research into the presentation of the defence by agents. It is important to note, however, that the Lord Justice-Clerk did not suggest that the existence of this type of allegation over-rode statutory time limits. In the context of a solemn case, where an appellant has in excess of two months to formulate his ground of appeal, what the Lord Justice-Clerk stressed was that any such ground should be (1) prima facie relevant; (2) specific; and (3) objectively supported (see para [25]).

[9] The reasons behind the current applications for extensions of time are weak. There is no reason why the applicants' instructions could not have been taken (if they were not taken) immediately after the trial, beyond the fact that it is now said that they changed to agents who now seem to wish to formulate a defective representation ground. Despite this deficiency, were the applicants to have proffered proposed grounds of appeal which advanced a prima facie relevant and specific arguable case that a miscarriage of justice had occurred, based on defective representation or otherwise, that would have to be regarded as a strong reason for allowing further time to formulate finalised grounds of appeal for inclusion in the application to the sheriff.

[10] No such ground is advanced. The ground of appeal, which is stated, is not phrased in terms of defective representation and, in any event, does not begin to meet the test for such grounds as set out in Grant (LJ-C at para [21]). All that the ground says is that there was no evidence led from an expert about certain matters of ornithological possibility. There is no statement that such evidence from an expert actually exists. There is no statement that this was part of the defence to be advanced by either applicant. There is no contention that their instructions were disregarded or that the agents at trial had conducted whatever defence was to be advanced in a manner which no competent agent could reasonable have done. So far as can be seen, the ground of appeal is no more than a vague speculation about what might have been. It is devoid of any substantial merit. In these circumstances, the court considers that the interests of justice dictate that the applications be refused.