Appellant: Mason; Rhodes & Co, Dundee

Respondent: Wade, QC, AD; Crown Agent

4 October 2013

[1] This is the application of William Carlin for an extension of time to lodge grounds of appeal and also, we infer, to lodge a late intimation of intention to appeal.

Background

[2] The applicant was convicted on 19 September 2007, after a 4 day trial at Glasgow High Court, of a charge of robbery and a charge of possession of a firearm, those offences having been committed on 6 February 2007. Whilst there was another charge of robbery and possession of a firearm on the indictment (in respect of a robbery carried out just over a week before 6 February 2007), the jury returned a verdict of not proven in relation to that charge. We understand from the papers provided to the court in relation to an earlier attempt to appeal late, that there were two eye witnesses to the robbery of which the appellant was convicted, both of whom identified him as the perpetrator of the offence. One of them also identified his car in which there was found, later that day, the box that had contained the money that was stolen.

[3] The circumstances of the robbery were, put shortly, that the applicant had approached a courier from a Group 4 Securicor van as he was carrying a box of cash to a cash machine to replenish it, presented a handgun at his face and demanded that he hand over the money, which he did. The box contained £19,000. The two eye witnesses who gave evidence were the security courier and a woman who was en route to use the cash machine when the robbery took place. She had attacked the applicant with her handbag.

[4] It appears that the Crown had sought to invoke the Moorov doctrine in relation to the two sets of charges. Equally, however, it seems clear that, given that there were two eye witnesses to the charges of which the applicant was convicted who had identified him, the Crown did not need Moorov to be applied to secure a conviction on those charges.

Sentence

[5] At the time of the offence the applicant was subject to the unexpired portion of an 8 year sentence which had been imposed at Newcastle Crown Court on 12 September 2001 in respect of a directly analogous offence. The information before the trial judge was that that sentence was due to expire on 10 November 2008. He was sentenced for these offences for a total of 8 years imprisonment, to run from 19 September 2007.

Attempts to Appeal

[6] No timeous intimation of intention to appeal was ever lodged with this court. On 18 August 2008, some 11 months after conviction and sentence, an application to be allowed to lodge intimation of intention to appeal late was presented. It was refused on 25 August 2008 for the reasons set out by Lord Eassie in a note that was appended to the relevant interlocutor of the court. Put shortly he was not satisfied that any real explanation was given for the delay in presentation of the application. On 2 December 2008 that application called before three judges and, on the motion moved by the applicant's counsel, who sought time to complete certain investigations, consideration of the application was continued for a period of 2 weeks. It thus called again on 19 December 2008 on which date leave to withdraw it was sought by the applicant's counsel and was granted.

[7] At some point around 20 August 2012 the applicant was released on licence. On 20 September 2013, six years after his conviction, a fresh application for the applicant to be permitted to lodge an intimation of intention to appeal late was presented and proposed grounds of appeal were lodged the same day. They can be summarised as being that the trial judge erred in failing to backdate the applicant's sentence, that his directions on the Moorov doctrine were flawed, that in the light of the possibility of the application of the Moorov doctrine the verdict of the jury was not reasoned, that use of the evidence of the applicant's police interview was unfairly made and that the misdirections regarding sentence and Moorov raise compatibility issues within the meaning of section 228Z(a)(2) of the Criminal Procedure (Scotland) Act 1995.

[8] So far as any explanation for this lengthy delay is concerned, it is to be found in the written application and to some extent in the oral submissions that were made before us today. Various reasons are advanced. They include that the applicant changed agents when in summer 2010 he "realised" that he could still appeal, notwithstanding withdrawal of the application for an extension of time on 19 December 2008 and that time was then taken between summer 2010 and August 2012 to make various inquiries. A number of those inquiries appear to be the sort of inquiries that would not have been necessary if he had not chosen to change agents. It is also said that time was taken to consult with counsel.

[9] Matters were, however, brought to a halt by the applicant himself in August 2012 when he instructed his agents that, since he was due for release, he had decided to "just leave matters" regarding the proposed appeal. Not surprisingly his agents then closed their file. The applicant is said to have then committed another offence and was returned to custody.

[10] On 1 February 2013 the applicant contacted his agents and told them that he wanted to proceed again. The reason given by him was what he regarded as his "incompetently imposed sentence". It was, as he saw it, impacting on him once more. He then consulted with agents and counsel in March 2013 and there were raised what are referred to as "new issues". No explanation has been given either in the written application or in the submissions made to us today as to why these new issues could not have been raised earlier. Thereafter, inquiries were made of the probation service in Newcastle which were responded to by letter of 5 July 2013. Further inquiries then took place and the present application was drafted and lodged.

Submissions for the Applicant

[11] Before us today, Mr Mason submitted that the delay had been explained. So far as the merits of the appeal were concerned, he submitted that the merits were more than arguable. He accepted, however, that, contrary to what is stated in his first ground of appeal, the trial judge was not bound to backdate Mr Carlin's sentence. However the applicant was not on licence at the time and it is said that the trial judge's approach was flawed. So far as the second and third grounds of appeal were concerned, Mr Mason indicated that it was accepted that Moorov was not required for the jury to convict on the charges of which the applicant was convicted but the problem was that it was not clear how the jury had voted. It was not clear that they did not use the Moorov doctrine and misunderstand it. It was possible that they had done so. Issues of considerable importance were raised. He made reference to the case of RMM v HM Advocate 2013 SCCR 79 and submitted that the circumstances were comparable to the present case where the Crown had, he said, addressed the jury asking for four different ways of corroborating the charge. He accepted that juries were not, however, required to provide reasons and accepted that he was not saying that this was an ambiguous verdict. So far as his fourth ground of appeal was concerned, namely the ground in relation to the use of police interview evidence, he said there was nothing more to say about that at this stage. Regarding the fifth ground of appeal, it was, he said, parasitic to the earlier grounds. He accepted however that the Lord Justice Clerk had rejected in the cases of Duncan v HM Advocate 2013 HCJAC 102 and Carberry v HM Advocate the proposition that a compatibility issue could have arisen prior to April 2013. In relation to the case of Duncan, Mr Mason submitted that it demonstrated that a new "exceptionality" test had been raised and he would seek to challenge that on appeal. He added that Mr Carlin was released from his 2001 sentence at the halfway point. He was then subject to supervision on licence only up to the three-quarter point, until a date in 2006. He accepted, however, that the sentence had not expired until after the sentencing diet in the present case and he also accepted that had Mr Carlin re-offended he could have been recalled.

Submissions on behalf of the Crown

[12] This was a case in which the Crown had intimated that they sought to exercise their right to be heard. For the Crown, the advocate depute submitted that we should follow the case of BLSC v HM Advocate 2012 XC82/12 where, at paragraph 7, the court made it plain that in any application for an extension of time there required to be considered, first, the strength of the explanation tendered for the lateness and, secondly, the merits of the grounds of appeal. Further, that the court will look at both considerations and decide where the balance of justice comes to rest and the later the appeal the more substantial the grounds will require to be. She added that the Lord Justice Clerk had made it clear in the case of Duncan that he was not departing in any respect from what had been said in that case. In particular, Duncan did not represent any attempt or intention to set up a new and separate exceptional circumstances test.

[13] The advocate depute submitted that no strong explanation had been tendered for the lateness of this application. She observed that the applicant had withdrawn previous attempts at appealing and it might, on one view, be able to be said that he had acquiesced in the present situation whereby there was to be no appeal. Turning to the merits, she submitted that it was clear that the sentence was competent. Regarding Moorov, it was clear that the jury did not require to use Moorov for the verdict they returned. So far as the third ground of appeal was concerned, it was not unusual for the Crown to approach matters on the basis that one charge could stand alone, although others would require Moorov and if it was that the Crown said there were four different routes to corroboration all that that showed was that this was evidently a strong case. So far as ground of appeal 5 was concerned, under reference to Carberry the advocate depute submitted that it was not possible to have a compatibility issue in relation to a 2007 trial. There was no merit in the grounds advanced.

Decision

[14] The ability to rely on the finality and certainty of completed proceedings is of critical importance in all spheres of the administration of justice. That is why time limits exist for various matters including the exercise of a right of appeal. They play an important part in the overall concept of justice: Tole v HM Advocate 2012 SCCR 735. So it is that very careful consideration indeed will require to be given to the explanations that are tendered in respect of a late application and, as was said in the case of BLSC, the later the application the more cogent that explanation will require to be. Also, the court will require to be satisfied that the grounds are likely to result in the sustaining of the appeal in the sense that, as was accepted by Mr Mason, the court will normally look for them to be more than arguable. Not only can it be said that such an explanation and grounds require to be present before the court will countenance the lodging of any late notice of intention to appeal, but also that an applicant can legitimately expect such explanation and grounds to be scrutinised all the more carefully where a previous attempt to be permitted to lodge a late notice of intimation of intention of appeal was, with the benefit of legal advice withdrawn, and some 4 years and 9 months allowed to pass before that attempt is sought to be resurrected in the course of which the applicant, at one point, specifically instructed his agents to take matters no further. In these circumstances, it must be at least highly questionable as to whether it could be appropriate for the court to exercise its discretion so as to allow the late appeal to be entertained.

[15] Separately, we cannot accept that these grounds will even pass the test of arguability given the circumstances to which we have already referred, namely (1) that it is clear, contrary to what is suggested in the first ground of appeal, that the trial judge imposed a sentence which it was competent for him to impose and that he did so in implement of his statutory duty to have regard to all the circumstances, including any previous time spent in custody, and gave reasons for not backdating; (2) as we have already observed, it is clear that Moorov was not required for the charges of which the applicant was convicted; (3) nothing substantial is said in relation to the use of the police interview evidence; and (4) as has been made clear by this court, it is not open to parties such as the applicant to seek to rely on the principle of incompatibility in relation to something that occurred in 2007.

[16] Turning to the explanation for the delay, the applicant cannot have been in any doubt as to the need to progress his appeal if he wished to proceed with it. He is not unfamiliar with the courts and court procedures and he would appear to have had the benefit of a considerable amount of legal advice. Unexplained delays occurred prior to 2012. He chose to instruct his agents that he did not wish to proceed with the appeal in August 2012 and it ill-befits him now, for whatever reason, to change his mind and seek to be allowed to proceed with this appeal at this very late stage. In all these circumstances this appeal is refused.

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