Scottish High Court of Justiciary Decisons

Appellant: Mason, Drummond Miller (for Rhodes & Co, Forfar)

Respondent: Brodie, QC AD; the Crown Agent

1 August 2013

[1] The applicant was convicted on 26 August 2009 at the High Court in Glasgow of offences of indecency and sodomy in respect of two complainers. The verdict on the charge involving one complainer was unanimous but those on the two charges involving the other complainer were by a majority. The applicant was sentenced to seven years imprisonment on 23 September 2009. Throughout these proceedings he was represented by counsel. The applicant lodged a Notice of Intention to appeal timeously on 8 October. This Notice triggered the transcription of the trial judge's charge and this was completed on 19 October. The applicant had eight weeks from the lodging of his Notice to present his Note of Appeal (Criminal Procedure (Scotland) Act 1995, section 110(1)), but that period would have been extended administratively to take into account the date when the transcription of the charge had become available. The applicant did not lodge a Note of Appeal timeously and his appeal was treated as abandoned.

[2] On 4 July 2013, almost four years after his conviction and after the applicant had been released from prison on parole, he lodged this application for an extension of time in which to lodge a Note of Appeal. The Note raises issues concerning: the sufficiency of the directions of the trial judge in relation to mutual corroboration; a purported inconsistency between the jury's verdicts; and the compatibility of the verdicts with the need for a reasoned judgment in terms of Article 6 of the European Convention on Human Rights.

[3] In the application for an extension, it is explained that what occurred after the conviction was that the applicant had changed his agents on several occasions. His present agents were instructed as early as January 2010. They only met the applicant on 6 April 2010, when legal aid was transferred. They obtained some papers at the end of May and consulted with counsel in August. There is reference to further consultations in May and September 2011 and February and June 2012. These meetings appeared to have involved the exploration of a number of matters not directly relevant to the current application. There appear to have been problems in trying to understand what had happened at the trial diet; an obvious difficulty if a party elects to change his legal representation. What is of note is that still no Note of Appeal was forthcoming even months after the last consultation mentioned in the application. It was explained today that the reason why an application was now being made was simply that counsel presently instructed considered that the appeal was supportable, whereas that was not, presumably, the view taken by his predecessor(s).

[4] Leave to lodge a late Note of Appeal was refused by a single judge (Lord Eassie) for essentially two reasons. The first was that he did not consider that any "arguable" grounds of appeal had been stated. In particular, he reasoned as follows:

"The proposed grounds of appeal invoke, first, the proposition that the trial judge misdirected the jury respecting the Moorov doctrine on mutual corroboration [Moorov v HM Advocate 1930 JC 68]. Having regard to the careful exposition of that doctrine at p. 10 of the charge, which gives context to the subsequent directions adapted to its consequences for the particularity of its application, the ground is without evident foundation. Secondly, it is contended that the jury reached inconsistent verdicts. But that inconsistency is not explained; nor can I see any arguable inconsistencies. Thirdly, there is a complaint of a breach of article 6 ECHR in respect of an alleged absence of a 'reasoned judgment'. The compatibility of jury trial in Scotland has been settled by recent decisions of the ECtHR in, for example Judge v [United Kingdom 2011 SCCR 241]. Nothing whatever is advanced to suggest any arguable exception in this case."

The second ground for refusal was the absence of any explanation as to why it had taken such a long time for a Note of Appeal to be presented. The judge noted that the material supporting the proposed grounds was available at the conclusion of the trial and had been considered as not giving rise to any arguable ground at that time.

[5] In arguing that the extension should be granted, it was contended under reference to Goldie v HM Advocate 2012 SCCR 783, L v HM Advocate 2003 SCCR 120 and Cameron v HM Advocate 1999 SCCR 476 , that the single judge (and the trial judge) had erred in failing to recognise the inconsistency of the jury's verdicts. There was additional focus on his interpretation of Judge v United Kingdom (supra), which, it was submitted under reference to Liehne v HM Advocate 2011 SCCR 419, did not preclude an argument that the applicant had not received a reasoned judgment standing the inconsistency of the verdicts in light of the directions given by the trial judge on the law of corroboration.

[6] The principles of finality and certainty, which exist within the overall concept of justice (see Toal v HM Advocate 2012 SCCR 735, LJG (Gill) at para [108]), dictate that it will only be in exceptional circumstances, where there are grounds which are likely to result in the sustaining of the appeal and some reasonable explanation for the delay, that the court will countenance allowing a Note of Appeal to be lodged several years after conviction. The court agrees with the reasoning of the single judge that the grounds presented are not arguable. Indeed, even if they had crossed that limited threshold, they still do not reach the standard of probability of success which must be met in an application of this character (see Roberts v HM Advocate [2012] HCJAC 58, Lord Carloway at para [4], Toal v HM Advocate (supra), Lord Carloway at para [117]). In addition, there is no explanation for the delay in presenting the appeal, other than that a particular legal adviser has taken a different view on the law several years after the matter had already been considered and determined by others to the opposite effect. All the papers relevant to the proposed grounds of appeal, notably the charge (which includes a record of the verdicts), were readily available within weeks of final disposal. As has often been said, a decision to change agents does not afford an applicant an advantage in relation to compliance with the statutory time limits. That is especially so in a case such as the present, where it is not suggested that the applicant's representation at trial had been defective.

[7] In all of these circumstances this application is refused.