Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

 [2015] HCJAC 116

HCA/2014/4164/XC

Lord Justice Clerk

Lord Brodie

Lord Matthews

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPLICATION FOR EXTENSION OF TIME TO LODGE A
NOTE OF APPEAL AGAINST CONVICTION

by

DAVID GLASS

Applicant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Applicant: S Collins, Solicitor Advocate; Capital Defence

Respondent: R Goddard AD; the Crown Agent

13 November 2015

[1]        On 15 August 2014, after a trial at the Sheriff Court at Dunfermline, the applicant was found guilty of a series of sexual offences against four children.  On 24 September 2014, he was sentenced to 3½ years imprisonment.  On 1 October, his trial agent timeously lodged a Notice of Intention to Appeal against conviction.  He then had 8 weeks in which to lodge a Note of Appeal (Criminal Procedure (Scotland) Act 1995, s 110(1)).  He did not do so.

[2]        On 13 October 2015, over a year after conviction, he presented an application for an extension of time in which to lodge a Note (1995 Act, s 111(2)).  He avers that he was advised after his trial that, even if he were successful in appealing his conviction, a re-trial would follow and, if convicted, he would require to be re-sentenced.  According to his trial agent, he could then receive a longer prison term.  The court was told that the agent accepted that he did tender this erroneous advice.  Having decided that he did not want to take the risk of an increased sentence, the applicant took no further action until he became aware, in or about January 2015, of the erroneous nature of what he had been told.  He then attempted, for several months, to instruct a new firm of agents.  He was unsuccessful in doing so until a third party intervened on his behalf and wrote to his current agents, some time in May 2015.

[3]        On 18 June 2015, these agents were instructed.  Thereafter, a potential defective representation appeal was considered.  However, after due enquiry, the new agents did not consider that ground to be well founded, nor another in relation to the potential existence of fresh evidence about the psychiatric state of some of the complainers.  Eventually, however, a proposed note was lodged.  This complains of a misdirection by the sheriff, in that he failed to mention in his charge to the jury the significance of prior inconsistent statements made by various unspecified witnesses.  There is no information on what these inconsistencies might have been, nor what their materiality was in the context of the trial, although there was an offer at the hearing to provide that information. 

[4]        On 15 October 2015, the application for an extension of time was refused by a single judge of the High Court on the basis that it “comes very late”, the explanation was not “adequate” and “the prospect of success were poor”.

[5]        In approaching this decision, the judge at first instance addressed the central elements in an application of this type: that is to say, how late the appeal is, whether there is an adequate reason for its lateness and what are the prospects of success?  With an appeal lodged so late, an applicant requires to show that, if made out, his ground would probably succeed (Carlin v HM Advocate 2013 SCCR 706 following Toal v HM Advocate 2012 SCCR 735) or there is some other compelling reason why the appeal should be allowed to proceed.  That simply cannot be said in this case.  Given the absence of any information on the nature of the contradictory statements and their significance, the court could not possibly, on the basis of the proposed Note of Appeal, conclude that a miscarriage of justice had occurred.

[6]        The application is accordingly refused.