Sex offender fails in legal bid for more time to appeal against conviction

The Appeal Court of the High Court of Justiciary refused the application after noting that the applicant had previously been granted extra time and that the request for a further extension came some four-and-a-half months after that additional period had expired and almost nine months since his conviction.

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the applicant Kenneth Solomon was sentenced to six years’ imprisonment after being convicted in June 2018 of the attempted rape of a 14-year-old girl a year earlier.

In terms of section 109 of the Criminal Procedure (Scotland) Act 1995, which provides that a person who wishes to appeal against conviction shall intimate that fact in writing within two weeks of sentence (final determination), he lodged a notice of intimation of intention to appeal within the requisite two-week period.

Section 110 provides that a note of appeal should be lodged within eight weeks of intimation of intention to appeal, meaning he was required to lodge his note of appeal by 4 October 2018.

That period was extended on 1 October so that it expired on 1 November, but no note of appeal was lodged. 

The applicant applied for a further extension of time on 15 March 2019 – some four-and-a-half months after the extended period for lodging had expired and almost nine months since the conviction.

The application stated that, after sentence, the applicant had been given advice about an appeal against conviction and sentence, but the nature of that advice was not stated in the application, nor was it stated at the hearing. 

The current agents were instructed prior to the expiry of the period for lodging an appeal on 3 October and because of “difficulties in obtaining papers” an extension was sought and granted. 

A consultation took place on 12 October, during which “potential sources of fresh evidence and further enquiries that might assist an appeal” were explored, with a further consultation held on 31 October – the day before the relevant period expired – but no further extension was sought at that time.

The question of whether a reasonable jury could have returned a verdict was discussed and the applicant raised further issues regarding CCTV images and potential additional witnesses.

On 28 January 2019, another consultation was held, by which time notes from the trial had been obtained and enquiries were said to have been concluded.

The draft grounds of appeal raised four grounds.

The first was that no reasonable jury could have returned a guilty verdict, having regard to the complainer’s evidence and the discrepancies or contradictions between her account and her statement to the police and other evidence led. 

The second ground was that the trial judge erred in failing to direct the jury to ignore comments made by one witness during cross-examination that the applicant was a paedophile.

The third ground was that the trial judge erred in directing the jury that evidence of distress could corroborate “lack of reasonable belief”.

The fourth ground was that the judge erred in not directing the jury that there could be no reasonable belief in the absence of steps having been taken by the applicant to find out if the complainer had consented. 

The applicant was also seeking to argue that the sentence imposed was “excessive”, having regard to his lack of previous criminal record, his “low risk” of re-offending, and personal circumstances.

In refusing to allow a further extension of time in which to lodge a note of appeal, the judge at first instance commented that the application made a number of “generalised statements” about discussions with the applicant and enquiries which had been conducted in relation to fresh evidence.

However, no specification of what was done or why such enquiries were not undertaken or completed at an earlier stage were given.

By the time of the consultation in January 2019, the appeal had been deemed “abandoned” and no explanation for the passage of a further six weeks thereafter was provided.

The question for the appeal judges was whether the judge at first instance erred in his determination of the application, but the court was “unable to fault his reasoning”.

Delivering the opinion of the court, the Lord Justice General said: “The applicant required to establish exceptional circumstances because the time within which a note of appeal could be lodged had expired unextended. No such circumstances exist.

“In relation to all the grounds proffered in the draft note of appeal, there is no satisfactory explanation for these not being the subject of a timeous appeal, especially those alleging misdirections by the trial judge and those relating to sentence.”