Application for extension of time to lodge note of appeal refused over failure to show ground of appeal ‘would probably succeed’

The Criminal Appeal Court ruled that the applicant failed to show that his ground of appeal “would probably succeed” or that there was “some other compelling reason” why his appeal should be allowed to proceed.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Brodie and Lord Matthews, heard that David Glass was convicted in August 2014 after a trial at the Sheriff Court at Dunfermline and the following month was sentenced to three-and-a-half years’ imprisonment.

On 1 October his trial agent timeously lodged a notice of intention to appeal against conviction.

He then had eight weeks in which to lodge a note of appeal, but he failed to do so.

On 13 October 2015, over a year after conviction, he presented an application for an extension of time in which to lodge a note of appeal, claiming 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, which could lead to a longer prison term.

The court was told that the agent accepted that he had tendered this erroneous advice, and 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 to instruct a new firm of agents, but was unsuccessful in doing so for several months until a third party intervened on his behalf and wrote to his current agents, some time in May 2015.

On 18 June 2015, the agents were instructed and 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, which complained 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 was 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.

However, 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 came “very late”, the explanation was not “adequate” and because “the prospect of success were poor”.

The appeal judges agreed. Delivering the opinion of the court, the Lord Justice Clerk said: “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 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.”