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URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_14.html
Cite as: 2023 SLT 532, 2023 SCCR 193, [2023] HCJAC 14, 2023 GWD 18-169, [2023] ScotHC HCJAC_14

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2023] HCJAC 14

HCA/2021/135/XC

Lord Justice General

Lord Woolman

Lord Matthews

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in the

APPLICATION FOR AN EXTENSION OF TIME UNDER SECTION 111(2) OF THE

CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

ROBERT GARDEN

Applicant

against

HIS MAJESTY'S ADVOCATE

Respondent

Applicant: Mackintosh KC; John Pryde & Co SSC (for Moir & Sweeney Litigation, Glasgow)

Respondent: CG McKenna (sol adv) AD; the Crown Agent

28 April 2023

Introduction

[1]

This application is about the circumstances in which the court will allow an appeal to

proceed late notwithstanding that it is marked almost two years after the conclusion of the

trial. There is no issue about the general law. An extension of time requires there to be

exceptional circumstances (Criminal Procedure (Scotland) Act 1995, s 111 (2ZA)).

The charges

[2]

The applicant faced some 16 charges relative to two former partners. In due course,

the Advocate depute withdrew some of these charges, which were evidential in nature, and

the applicant was acquitted of others. Charges 4, 7, 8 and 9 all related to the complainer JM.

Charge 4 libelled a significant number of physical assaults from October 2011 to February

2014. The applicant was convicted unanimously of this charge. Charges 7 and 8 libelled two

incidents of rape. According to the trial judge's report to the Parole Board, the first involved

the applicant seeking to placate the complainer, who had found compromising messages on

his phone. Although she did not wish to engage in intimacy, the applicant pulled down her

trousers and raped her. Charge 8 involved the couple having consensual sex when they

were disturbed by the crying of their infant. The complainer attempted to go to his

assistance, but the applicant would not permit her to do so without completing intercourse

in the absence of her consent. Charge 9 was an assault of a bizarre nature, involving

masturbating on the complainer's feet. The applicant was convicted of these three charges

by majority.

[3]

Charges 14 and 16 involved rapes of the other complainer, CD, in October and

November 2017. The first of these involved the complainer having been so intoxicated that

she could not consent to intercourse. Her memory was of waking up naked in the

applicant's bedroom. Intercourse had occurred while the complainer had been asleep or

otherwise incapable of consent. The second incident occurred perhaps a few weeks later, by

which time she seems to have been prepared to overlook what had happened previously

and to continue in some form of relationship with the applicant. An argument arose about

the content of her social media exchanges. The applicant became violent, pushed her onto a

bed, pinned her down and raped her. The applicant was convicted of these charges by

majority. He was acquitted of the remaining charge 15, which was of attempted rape of CD.

[4]

In order to convict on the rape charges, the jury required to find mutual

corroboration in the testimony of both complainers.

The procedure

[5]

The procedure was lengthy. The applicant was indicted to a Preliminary Hearing on

21 October 2019. A trial diet had originally been scheduled for 30 March 2020, but Covid

intervened. A further PH was held on 5 November 2020. It was not until Wednesday

24 February 2021 that the case called for trial. At that diet, defence counsel was Mr M.

According to the applicant, as early as August 2020, he had provided his agents with 369

pages of Facebook entries, some of which were said to suggest that at least some sexual

activity with CD in October 2017 had been consensual. The applicant's defence on charge 14

was that the sexual activity had been consensual, although he maintained that the incident

libelled in charge 16 had not happened. Mr M declined to advise the lodging of the

Facebook material as he did not intend to put it to CD. Exactly why he took that view is

unknown, as he has not been asked about it, but there are a number of possible

explanations. His instructing agent told the applicant that it was not possible to link the

Facebook material to CD. This may have been because the exchange was with a person

using a different name, although it is reasonably clear from her name being used by the

applicant that it was with the complainer. Again according to the applicant, at the trial diet

on 25 February, he withdrew the instructions to his agents and counsel because of their

approach to the Facebook material. This was after the jury had been balloted.

[6]

Another agent was instructed and new counsel, Mr McK, picked up the reins. The

evidence commenced on Tuesday 2 March 2021. No application to lodge the Facebook

material was made. Other than certain pages which the Crown had already lodged, it was

not used in cross or spoken to by the applicant. Mr McK was unaware of the material

because, according to the new agents as reported by the applicant, it had not been supplied

by the old to the new agents.

[7]

The jury returned their verdicts on 8 March. At the sentencing diet on 8 April,

Mr McK's instructions were withdrawn because of his failure to use the Facebook material.

At a continued sentencing diet on 21 April 2021, the applicant was made the subject of an

extended sentence of 16 years, with 13 years as the custodial element.

The appeal process

[8]

A notice of intention to appeal was lodged timeously. The Note of Appeal was due

by 18 June 2021. Meantime, a solicitor advocate (Mr P) had been instructed to provide an

opinion. He did so on 14 June. The opinion is a lengthy document, but the part relating to

the Facebook messages is in short compass. Mr P expressed the view that, even with the

new messages, Mr M would not have changed his mind about the admissibility of the

material. Mr P carried out his own evaluation of the messages. His view was that they

would not have made a material difference to the case. Some of them might have been

admissible, but no miscarriage of justice could be established. The messages could have

been potentially detrimental to the defence case, although the applicant maintains that Mr P

misunderstood who had sent particular communications.

[9]

In the absence of a Note of Appeal, the appeal was deemed abandoned on 25 June

2021. The complainers, who had been somewhat anxious, were told that this is what had

occurred.

[10]

On 15 March 2023, the applicant sought an extension of time. His application

explains that for a period of almost a year, from June 2021 until May 2022, another agent

(Ms H) had been instructed. In due course, she said that senior counsel (unknown) had not

been able to assist and junior counsel had died. Another junior had provided an opinion to

the effect that there was no stateable ground of appeal.

[11]

In May 2022, the applicant's family contacted their MSP, who suggested instructing

the applicant's current agents, Messrs Moir & Sweeney. It took until November 2022 to

obtain the papers from Ms H. Matters did not progress with junior counsel until January

2023, when senior counsel (Mr Mackintosh) was instructed. There were various

communings until 13 March 2023 when the extension of time application and draft grounds

of appeal were prepared and lodged.

The Facebook entries

[12]

The Facebook entries consist of exchanges between the applicant and "LKS ...", who,

as already noted, appears to be the complainer CD. They start on 16 October. They mostly

contain harmless streams of consciousness interspersed with multiple expletives and sundry

vulgarities. At page 41 there is an exchange occurring on 23 October. This starts with the

applicant explaining that his phone had run out of charge on the previous night and he had

left it at home in the morning. There is a later reference to the complainer posting a video of

the applicant and mention of what seems to be a dead cat. The applicant said that he did not

know that the complainer was recording him. This then follows:

"COMP

Hahaaaaa its nae that bad tho was a good laugh xxxxxxx

APP

Aye I know it was good I liked it anyway and the sex was amazing lol

I'm lucky I managed to do anything tbh xxxxxxxxx

COMP

Hahaaa we had far to much sex ur a horny devil lol xxxxxxxxx

APP

I honestly couldu f****d

you for hours and I'm not joking haha easy

Xxxxxxxxx

COMP

Hahaaaaaa xxxxxxxx".

[13]

The chat on 23 October continued (p 63) as follows:

"APP

Do you even like me lol xxxxxxxx

COMP

Yeh trust me im not wasting ur time ... Yeh I do from first

impressions a was sound u was a bit full on wit the kissing n sex but if

I didn't want it I would just have left !! ...

APP

... F**k sake was it? Sorry I can be a very passionate person ... tbh I

didn't mean to stick it in you yet it just sort of happened ... ok well

that's good to know and I'm sorry if it was too full on lol ... if you said

no I would have stopped it? Xxxxxxxxx ..."

Moving on to 24 October, the exchanges refer to a third party who had a relationship with

the complainer. The applicant said that he had messaged him as follows (p 79):

"I f****you bird lol

Ahahahahaha

Stop greeting ya fanny n man the f**k up! She want ti be with me nae you look at

yourself".

The complainer replies:

"Hahaaaaa f**k him I want get know u now xxxxxx

Had more sex with u in one nighy than with him since June [emojis] xxxxx".

[14]

So the romance continued into November. On 15 November the following occurs

(p 252):

"APP

Your needing a good f*****g!!!!! By me [devil emoji] ...

COMP

[laughing emojis] no your just a fanny that can't type hahaaa xxxxxxx

The expletives have been redacted by the court.

APP

Your getting it next time I see you madam! Xxxxxxx

COMP

Not gonna lie not gonna complain hahahaaa xxxxxxxdd

APP

Its not gonna be nice lol your not meant to like it! ...

COMP

Well that's not very nice then!!! ...

APP

Your bums getting raped next time bby [emojis] hahahahaha!!!

COMP

Hahahaaa u can try it aint happening sex was good enough as it was

hahaha [emojis] xxxxxxxx

APP

No bums needed yet you right its been ace! You got such a sexy body

[C] your almost perfect [emojis] XXXXXXXXXX

COMP

Aw thank you!!! So are u your so fit and sexy and great company."

Submissions

Applicant

[15]

The ground of appeal is defective representation by the original defence agents in

relation to the handling of the Facebook material. The applicant maintains that some of the

messages amount to previous inconsistent statements which, if they had been put to CD,

would have caused the jury to doubt her credibility and reliability on her level of

intoxication and lack of consent in respect of charge 14. First, the original agents had

incorrectly concluded that it was not possible to identify CD as one of the persons sending

the messages. This was clearly wrong. Secondly, they had not passed on the complete

record of messages to the new agents. That meant that the applicant's defence "was not

put". Although this is not in the draft grounds, it was also argued that Mr M ought to have

used the messages.

[16]

The Crown opposed the application. Due regard had to be made to the principles of

finality and certainty (Toal v HM Advocate 2012 SCCR 735 at para [108]). A reasonable

explanation was a prerequisite for the court in determining where the interests of justice lay

(Graham v HM Advocate [2013] HCJAC 149 at para [9]). There had been significant periods of

inaction after the appeal had been deemed to be abandoned in June 2021. Although some

messages may have been advantageous to the defence, others were not. The most difficult

issue concerned admissibility. So far as they evidenced a general consensual relationship,

the messages were collateral and inadmissible (CH v HM Advocate 2020 SCCR 410). Any

messages suggesting that CD would have welcomed sexual intercourse in the future would

also have been inadmissible (GW v HM Advocate 2019 JC 109 at para [27]). It was difficult to

identify any messages specifically relating to the incidents libelled. The messages, in so far

as bearing upon credibility and reliability, would have been inadmissible in terms of

section 274(1)(c) of the 1995 Act as "other behaviour" not occurring immediately before or

after the events libelled. The prospects of a successful section 275 application would have

been low. It was understandable why Mr M, looking at matters in the round, had concluded

that it should not be used.

The Judge at First Instance

[17]

The judge at first instance reasoned that:

"The application to extend the time for lodging a Note of Appeal is beset by a

number of substantial and ... ultimately overwhelming difficulties. Obviously, it

comes very late, some two years after the conclusion of the trial. In itself, that is a

powerful factor for disallowing a late appeal. The principle of finality in criminal

proceedings is one of cardinal importance.

There are further difficulties for the applicant. Fundamental to the proposed

appeal is the proposition that the small pieces of evidence now said to be critical

would have been admissible at the trial. I consider this to be doubtful. The messages

appear to have been created in the course of a continuing or developing relationship

and it is far from clear what conduct between the applicant and the [complainer]

they were referring to ... the whole question of what the passages in the messages

were truly referring to is clouded by uncertainty.

At least some parts of the messages are likely to have been considered as

collateral to the real issues in the case and simply inadmissible for that reason; for

example there is reference to an ongoing sexual relationship. ... other aspects are

likely to have required an application under section 275; for example the reference by

the applicant to raping the [complainer] anally `next time'. In so far as the messages

might be read as suggesting that the victim consented to sex on other occasions ... a

section 275 application would have had to be made. I consider it unlikely that any

such application would have been granted. The reality is that the issues surrounding

the admissibility of the messages are speculative and impossible to address with any

reasonable degree of certainty so long after the trial.

A further substantial difficulty is that there is no detailed information as to

whether ... counsel who conducted the trial would have chosen to try to introduce

the messages into the evidence. ...

Any application under section 275 would by the stage of the trial have been

late. It is entirely speculative as to whether it would have been or even might have

been granted.

It is clear from the judge's charge that the applicant's defence of consent was

fairly and squarely put before the jury and that the credibility of the victim was

challenged. The applicant gave evidence. The jury must have rejected his account.

...

Overall, the messages ... are ... of marginal significance in the context of the

issues that arose at the trial. It is impossible to conclude that even if they had been

used at the trial the outcome would have been different.

The application is fatally undermined by the very lengthy periods of delay

which have occurred since the conclusion of the trial. ... Between June 2021 and

November 2022 no substantial progress ... was made. ... the only reasonable

conclusion that can be drawn is that the proposed appeal has not been progressed

with reasonable speed.

Looking at the totality of the circumstances ... the application falls well short

of meeting the test of exceptionality. It comes far too late. The proposed grounds of

appeal are unconvincing. An appeal based on defective representation would be

likely to fail."

[18]

Since then Mr McK has produced a Note, agreeing that the admissibility of the

messages was speculative so long after the trial. Some of the messages could be

characterised as prior inconsistent statements. If he had had access to them, he would have

sought to lodge some of the pages. Establishing special cause for lodging this material late

would have been problematic.

Decision

[19]

The applicant requires to demonstrate exceptional circumstances before the court

will entertain a late appeal. Such circumstances must involve, first, a consideration of the

level of tardiness when set against the generous statutory time limit, within which to lodge a

Note of Appeal, of eight weeks from the lodging of the notice of intention. In a case such as

this, where there was a deferral for sentence, the convicted person will have at least three

months from the jury's verdict in which to consider and frame the Note.

[20]

There are good reasons for imposing time limits in terms of finality and certainty as

integral parts of the justice system. The expeditious disposal of appeals is in the interests

not only of appellants, but also victims of crime and the public in general (Toal v HM

Advocate 2012 SCCR 735, LJC (Gill) at para [108]). When the complainers in this case were

told of the deemed abandonment of the appeal, they ought to be able to rely on that

statement other than, as the statute says, in exceptional circumstances.

[21]

As the judge at first instance observed, the fact that the application comes some two

years after the jury's verdict is in itself a powerful factor pointing towards refusal. The

applicant has had several changes of agents and counsel, but this does not provide him with

some form of advantage. Prior to the expiry of the period for lodging a Note of Appeal in

June 2021, the applicant had received an opinion from a solicitor advocate advising that the

Facebook material, even if admissible, did not demonstrate a miscarriage of justice.

Thereafter, nothing concrete happened until May 2022 when the applicant was directed to

Messrs Moir & Sweeney. Again nothing occurred until Mr Mackintosh received the papers

in January 2023. Given these significant delays, the applicant would have to present a very

strong case on the substantial merits before leave to appeal would be given. This is what the

applicant submitted; at least to the extent of showing that the Facebook material would have

been likely to have affected the jury's view on CD's credibility or reliability and hence,

because of the necessity to find mutual corroboration, on all of the jury's verdicts on the rape

charges.

[22]

Accepting that the Facebook material did record exchanges between the applicant

and CD and had been given to his law agents in August 2020, the next question becomes one

of whether the decision of the applicant's counsel and/or agent not to lodge or deploy the

material in cross amounted to defective representation. The test is a high one. The

circumstances in which the conduct of a defence will constitute defective representation are

narrowly defined. They must have led to a miscarriage of justice; that is, deprived the

accused of a fair trial. That occurs only when the conduct was such that the accused's

defence was not presented to the court. That can happen when counsel acts contrary to his

instructions on what the defence is or because his defence was not presented to the court

(Guthrie v HM Advocate 2022 JC 201, LJG (Carloway) delivering the opinion of the court, at

para [39]). An appeal could not succeed where all that was said is that the defence would

have had a better prospect of success if a certain line of evidence or a difference strategy had

been pursued (DS v HM Advocate 2008 SCCR 929, Lord Carloway, delivering the opinion of

the court, at para [43]).

[23]

The critical time in relation to the potential use of the Facebook material was (at the

latest) the Preliminary Hearing on 5 November 2020. Although the applicant sought to

categorise the material as consisting of prior inconsistent statements (see DS v HM Advocate

2007 SC (PC) 1, Lord Hope at para {46], Lord Rodger at para [76], cf CJM v HM Advocate

2013 SCCR 215, LJC (Carloway) at para [45]), much of what is contained in the material would

have required an application under section 275 of the 1975 Act in advance of the PH. In any

event, the material ought to have been lodged before the PH (1995 Act, s 78(4)(a)(ii)). The

court may have allowed such applications to be lodged late, but it is highly unlikely to have

allowed this mass of material to be lodged at the trial diet. That would almost inevitably

have led to an application to adjourn the diet; a matter which the court is unlikely to have

countenanced.

[24]

One question is whether Mr M, or his instructing agents, can be faulted in not

lodging the Facebook material in the sense that no competent counsel or agents could have

adopted that course. The answer is firmly in the negative. It was a matter for counsel's

professional judgement whether to lodge or use the material. No doubt some counsel

would have attempted to use it, but others would have taken a more cautious view. First, it

is not at all clear that the material relates to the particular October incident to which the

complainer spoke. Secondly, whether the complainer was accepting in her messages that

the sexual intercourse was consensual is dubious. Thirdly, from what the applicant said in

his messages, he may have been accepting that it was not consensual (eg "I didn't mean to

stick it in you yet it just sort of happened ... I'm sorry if it was too full on ..."). Fourthly, the

tone and content of the conversation may not have reflected well on the complainer but it

does the same in relation to the applicant. The reference to anal rape would have been

unlikely to have assisted his cause.

[25]

It may be that the applicant's original agent was at fault in not passing on a complete

record of the Facebook messages. However, the court is not, for the reasons given,

convinced that this amounted to defective representation resulting in a miscarriage of

justice. The applicant's case was put to the jury. The complainers' testimony was

challenged in cross-examination. The applicant gave evidence in support of his defence.

The use of the Facebook material was fraught with danger even if the trial judge could have

been persuaded to admit the material at such a late stage in the process.

[26]

The application for an extension of time in which to lodge a Note of Appeal is

refused.