Applicant: Allan, QC, Prais; George Mathers & Co, Aberdeen

Respondent: Brown, QC; the Crown Agent

24 October 2013

[1] This is an application to lodge a Notice of Intention to Appeal late. A convicted person has some two weeks after conviction to lodge such a Notice (Criminal Procedure (Scotland) Act 1995, s 109). It is only a formal document, but it is far from being without importance. First, it alerts the trial judge to the prospect of an appeal. Secondly, it triggers the extension of any charge to the jury. Thirdly, it preserves any evidence, in the form of any documents and labels, extant at first instance court level (1995 Act, s 106(5)-(9)). After the Notice is lodged, a person has eight weeks in which to lodge a Note of Appeal containing all the grounds to be relied upon (see 1995 Act, s 110). These provisions have not been enacted with a view to obstructing justice but to ensure, so far as is reasonably practicable, that the system of appeals runs efficiently and achieves justice for all. In contrast to the situation where a convicted person has complied with the relatively generous statutory periods permitted for the lodging of appeal papers, this applicant seeks the leave of the court to allow an appeal process to be commenced almost five years after her conviction for murder.

[2] An application, in slightly different form, came before the court on 24 October 2012, when the court allowed it to be withdrawn and re-presented, if advised. A number of defects in the application had been detected at that time, including a failure to have regard to the strictures in Grant v HM Advocate 2006 JC 205 ( LJC (Gill) at para [25]), concerning leave to appeal upon grounds of defective legal representation at trial. Those had been the only grounds presented then and that remained the position when the present application was refused by a single judge almost a year later on 20 September 2013.

[3] In his report to the Parole Board, the trial judge explains that the applicant was unanimously found guilty by the jury of the murder of her cohabitee by repeatedly stabbing him. There was no dispute that the applicant had killed the deceased. The only issue at the trial was whether she was guilty of murder or culpable homicide. A defence of diminished responsibility had been advanced on the basis of the evidence of two psychiatrists, who had been instructed by the Crown. However, this defence was withdrawn from the jury by the trial judge, since the psychiatrists' opinion was that, although the applicant had an emotionally unstable personality disorder, she was not mentally disordered at the material time. Any underlying disorder had been superseded by the amount of alcohol and drugs that she had taken on the day of the incident. An additional defence of provocation, based on the applicant's account of being first attacked by the deceased, was rejected by the jury.

[4] The applicant did not lodge a Notice of Intention to Appeal. She instructed her present agents on or about 17 July 2009, approximately six months after the conviction. Still no Notice was lodged. This cannot be regarded as without significance. At a distance of six months post conviction, those personally connected with the case and those involved in the criminal justice system generally would be entitled to assume that, barring exceptional circumstances, the trial process (including any appeal) was at an end.

[5] A legal aid certificate was obtained in September 2009, but the applicant does not appear to have been seen by agents until 2 December. It was not until July 2010 that the files from the applicant's previous agents were recovered. Thereafter, there was a further period before junior counsel was instructed in December 2010 and produced an opinion in the following month. Senior counsel was instructed in March 2011 and consultations took place in April, June and October of that year, during which there appear to have been efforts to obtain further psychiatric advice from a Professor Thomson.

[6] Professor Thomson had been instructed at the time of the trial, but had not been called as a witness. Her detailed report (dated 6 November 2008) had been noted by the trial judge, who appended it to his report to the Parole Board. It confirmed the Crown psychiatrists' view that the applicant had an emotionally unstable personality disorder with substance dependence abuse. It addressed the issue of "battered person syndrome". However, Professor Thomson noted that it was the applicant's extensive abuse of substances on the day of the incident that was the most relevant factor. Essentially, she shared the view expressed in evidence by the Crown psychiatrists. She stated expressly that she had no recommendations to make regarding a psychiatric defence.

[7] Professor Thomson produced a new report in May 2011; this time supporting a plea of diminished responsibility based upon a combination of her underlying disorder and battered partner syndrome. The obtaining of this report prompted further efforts to obtain a second opinion on whether it was possible that there had been a defence of diminished responsibility available at the time. A report from Dr Olley, consultant psychiatrist, dated June 2012, supported Professor Thomson's revised view.

[8] It was not until August and September 2013 that the appropriate application for an extension of time in which to lodge a Notice of Intention to Appeal was made and a Note of Appeal, setting out the relevant grounds (1995 Act, s 111(2A)), was lodged with Justiciary Office. The grounds stated remain rooted in defective representation.

[9] Ultimately, the question for this court is where the balance of justice comes to rest. However, in dealing with an application of this type, the court has sought to emphasise the need for any applicant to persuade the court that there is some reasonable explanation for the delay which has occurred and that the grounds of appeal proffered are likely to result in the sustaining of the appeal. The greater the delay, the stronger the grounds require to be. In the context of the present case, where the application is made years after the conviction, the court has regard particularly to the principles of finality and certainty which exist within an overall concept of justice (Toal v HM Advocate 2012 SCCR 735, LJG (Gill) at para [108]).

[10] The judge, at first instance hearing the present application, was not satisfied that there had been any adequate explanation for the delay which has occurred since the conviction and indeed since agents had been instructed six months later. In relation to the prospects of success, she commented that she did not accept that there was any basis for contending that the defence representatives, at the time of the trial, ought to have led the evidence of Professor Thomson, which, it was now said, could have supported a plea of diminished responsibility. Rather, having analysed the evidence of the Crown experts and the report of Professor Thomson at the time, the position of all three experts seemed to have been substantially the same; notably, that there was an underlying personality disorder, but its effects had been masked by alcohol and drug use at the time of the incident. The judge at first instance therefore reached the view that the applicant had not established anything approaching the probability of success required to advance a defence based upon the principles in Galbraith v HM Advocate 2002 JC 1.

[11] In relation to the ground of appeal which is based solely upon defective representation, it was submitted that the content of the report from Professor Thomson, obtained some years after the trial, amounted to a volte-face from her position at the trial. In these circumstances, it is difficult to see how a defective representation claim could properly be advanced. It is of note in that regard that it is not contended that the volte-face itself can be converted into a fresh evidence appeal. Thus, whatever the explanation for the delay, and whatever the applicant's personal involvement in that delay may be, the court is quite unable to depart from the conclusion of the judge at first instance that there is no substantial merit in the defective representation contention, based on the material presented to the court. On that basis, and in the absence of an explanation for the delay, this application would fall to be refused.

[12] However, that is not an end of the matter. At the appeal hearing today, a new report was produced, this time from another consultant psychiatrist, Dr Quinn. It is dated 18 October 2013 and was said to have been received by agents, to whom it is addressed, entirely unsolicited. It is relatively short and confirms, what was already known, that the applicant was (and is) suffering from an underlying disorder of a type which might, in certain circumstances, ground a plea of diminished responsibility. It was accepted that this too undermined the defective representation ground, given that the report suggests that the applicant's condition would not have been readily evident to psychiatrists at the time of the trial and may only have become clear as a result of significant prolonged observation. The report expresses concerns over the findings of the psychiatrists expressed at the trial, although it does not seem to address the crucial point that any disorder suffered by the applicant had been superseded by the effects of alcohol and drugs.

[13] Ultimately, the submission for the applicant came to be a somewhat oblique motion to allow further time to consider whether a fresh evidence ground of appeal might be investigated and ultimately advanced; that is to say that the applicant was suffering from a relevant mental disorder at the time of the offence, which amounted to a substantial cause for her actings. In light of the prolonged history of this case, the court does not consider that any proper basis has been presented for allowing further time in which to explore a matter which has already been under investigation for many years. It will, accordingly, decline to afford the applicant such time. If there is any scope for considering new psychiatric opinion, then the applicant may, of course, apply to the Scottish Criminal Cases Review Commission, who may be better placed than the court, at what is a time far removed from the trial process, to look in detail at all the relevant material now available in order to determine, in the first place, not only whether a miscarriage of justice may have occurred at the time of the trial, but also whether it is in the interests of justice, having regard to the need for finality and certainty (1995 Act, s 194C(2)), that the case should be referred back to this court for consideration on that basis.

[14] For all of these reasons, this application is refused.