Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2009] HCJAC 52 Appeal No: XC326/07 OPINION OF LORD CARLOWAY in the appeal by GRAHAM GORDON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; McClure Collins

Respondent: A. Brown, A.D.; The Crown Agent

24 April 2009

[1] The procedure required for the determination of solemn criminal appeals has grown more complex over recent years, but it remains relatively simple. The time limits, such as they are, give some indication of what is supposed to happen. Within two weeks of the final determination of the proceedings at first instance (i.e. normally the date of sentence), the potential appellant must lodge his notice of intention to appeal (Criminal Procedure (Scotland) Act 1995 s 109(1)). The appellant is then given eight weeks in which to lodge a written note of appeal:

"containing a full statement of all the grounds of appeal" (s 110(2), emphasis added).

The statutory scheme therefore envisages that all the grounds of appeal be stated within that time scale. Although the time limits may be extended, their extent is still instructive in illustrating what ought to occur, in the absence of exceptional circumstances. The limits can be compared with those specified for the commencement of the trial process; especially in cases where the accused person is in custody.

[2] Parliament has thus determined that "a full statement of all the grounds of appeal" should be specified within an eight week period. It is those grounds that are subject to the "sifting" process, whereby leave to appeal is either granted or not. That process is usually completed within a matter of weeks; at least where there is a prompt response from the trial judge in reporting on those grounds (s 113(1)). If leave is granted, the appeal proceeds. It proceeds, in the absence of further Court procedure on cause shown, on the basis of those grounds alone (s 110(4)). In short those grounds constitute the appeal. Once they are determined, the appeal process is at an end (s 124). The appellant's conviction, if it is sustained, cannot be challenged further except upon a reference from the Scottish Criminal Cases Review Commission (s 194B). Such finality, especially when it is in qualified form, is a necessary requirement of any modern judicial process.

[3] Current practice in solemn appeals involves the fixing of Procedural Hearings in order to determine the readiness of an appellant to advance to a full Appeal Hearing. This procedure was adopted because of the substantial number of Appeal Hearings which were being adjourned, when counsel appearing (often newly instructed counsel) intimated to the Court, on the morning of the Hearing, that there was some matter that still required to be done before the appeal could proceed. The Court tended to take a sympathetic view of these requests; but their grant caused significant disruption to the Court diary and acted to the prejudice of other appellants awaiting final hearings in their appeals.

The Act of Adjournal (Criminal Procedure Rules) 1996 (as now amended) thus provides:

"15.5A-(1) In any appeal against conviction or conviction and sentence, the Clerk of Justiciary may fix a procedural hearing for the purpose of determining whether the parties are ready to proceed to a hearing of the appeal (emphasis added).

...

(4) Not later than seven days before the date of the procedural hearing, the appellant shall complete and lodge a notice in Form 15.5A-B with the Clerk of Justiciary and send a copy to the respondent".

Form 15.5A-B contains the following section:

"5.

(a) If the appeal is not ready to proceed, what are the reasons and what is the current position?

(b) How much time is required to carry out the work?"

[4] It is important to observe, at the outset of this case, that what the Rule and the Form envisage is that the appellant will state his readiness to proceed with the appeal; that is to say the appeal contained in the grounds lodged and for which leave has been granted. If he is ready to proceed with those grounds, an Appeal Hearing should be fixed, proceeded with and the appeal determined. The procedure is not concerned with considering the prospects, remote or likely, of an appellant seeking to amend his grounds of appeal in the fullness of time. If an appellant seeks to amend his grounds of appeal then he usually requires to show cause (Rule 15.15(1)). If he succeeds, then the case will normally require to return to the stage of sifting (Rule 15.15(4)). That is a factor which the Court may require to take into account in deciding whether or not to grant leave to amend. Be that as it may, the point to be emphasised is that the orderly conduct of solemn criminal appeals, as provided by Parliament, requires that, in the absence of some exceptional circumstance ("cause"): full grounds be lodged within the statutory period; these grounds be sifted properly and promptly; and cases, for which leave has been granted, proceed expeditiously to an Appeal Hearing. The date of that hearing ought to be measured in months, and not years, from the date of the lodging of the Note of Appeal. In many cases, and this is one of them, this procedure is not being followed. This is causing unnecessary and excessive delay in the appeal process.

[5] On 5 September 2002, the appellant was convicted of the rape of SM in Aberdeen on 12 August 2001. He had also been charged with indecent assaults on BL and EG in August and October 2001, also in Aberdeen. The circumstances of the rape were that the complainer, a married but separated woman, had met the appellant at a night club in Aberdeen city centre. They repaired to the appellant's flat. When they arrived there, the complainer attempted to telephone for a taxi but the appellant refused to give her the address. He then seized her by the legs, pulled her to the floor, pulled her top off, bit her on the breast, pulled down her trousers, forced her legs apart and raped her. She escaped from the flat on a pretext. Evidence was led from two of her friends, namely CL (male) and DS (female), who spoke to her distress. There was medical evidence of a bruise above her left nipple and three small bruises to her right thigh, said by the doctor to be possibly consistent with her legs having been forced apart. For reasons not immediately obvious, the Advocate Depute declined to found upon the injuries to provide corroboration. The appellant did not give evidence, but the tape of his interview by the police, in which he admitted sexual intercourse but maintained it was consensual, was played to the jury. The defence founded upon a statement made by the complainer that she had been dragged from the nightclub and raped in a lane. There was also reference to deficiencies in the police investigation.

[6] BL spoke to meeting the appellant at a pub in the city centre and being assaulted by him in a car park by being bitten by him on the breast and private parts. The libel was withdrawn after the complainer's evidence. EG was a police officer who had detained the appellant for vandalising a windscreen wiper of a car. When in the police van, the appellant had twice put his hand on her knee, made inappropriate sexual comments and seized her buttock, before apologising. The appellant pled guilty to this charge.

[7] The appellant appealed on the ground of defective representation. He claimed that evidence should have been led of him kissing in the night club and of consensual oral sex before the act of intercourse. It was said that evidence could have been led from a witness about the kissing and from a neighbour about the lack of noise from the flat at the material time. Furthermore, it was said, evidence ought to have been led from a crown expert witness that the complainer had not been drugged but had been moderately intoxicated. There were subsidiary grounds connected with the change in the law of rape in 2002, after the incident which he had been involved in, and with prejudicial pre-trial publicity.

[8] Leave to appeal was refused at first sift, but granted in relation to the defective representation ground on 23 December 2003. At a Procedural Hearing on 30 April 2004, leave was granted to amend the grounds of appeal by adding one based on lack of "corroboration of mens rea" and a misdirection on that point. At the Appeal Hearing, it was only the new amended grounds which were relied upon. The appeal was refused on 29 September 2004.

[9] The appellant applied to the Scottish Criminal Cases Review Commission. The Commission investigated the matter with their customary thoroughness before referring the case back to the Court in March 2007. Their report extends to sixty one closely typed pages. The Commission did not consider that the Court had erred in rejecting the grounds of appeal proffered. They also rejected a number of other complaints made by the appellant. However, the appellant had advanced a new ground concerning police conduct and disclosure of evidence. Although the Commission rejected several aspects of this ground too, they considered that they ought to refer the case, first, because of what they describe as the "Cumulative effect of Grampian Police enquiry errors and other irregularities". These included the failure of the police to carry out any proper investigation at the time. Initially, the police had not considered that there was sufficient evidence to demonstrate that a rape had occurred. It was only in the October, after the assault on the police officer, that investigations had begun in earnest and statements were taken from, for example, CL and DS. Meantime: the CCTV recording at the night club had been lost; the taxi driver, who had picked up the complainer at the appellant's flat, could not be traced; the complainer's telephone records were not recovered; and the appellant had not been promptly medically examined. Secondly, the Commission deemed a referral appropriate because the Crown had failed to disclose a statement from the complainer to the defence. Thirdly, the Commission had uncovered "fresh" evidence concerning the relationship between the complainer and CL, which might have thrown a different light upon the complainer's de recenti distress.

[10] On 15 June 2007, the appellant lodged his Note of Appeal based upon the Commission report. There are seven pages setting out the grounds. These essentially reflect the matters raised by the Commission as potentially leading to a miscarriage of justice. First, there is the failure to disclose the complainer's statement (grounds 1 and 2). Secondly, there is the "fresh" evidence concerning the relationship between the complainer and CL (ground 3). Thirdly, there is the failure to investigate the matter properly (ground 5). There is also a ground (4) concerning an outstanding criminal charge against the complainer. These grounds have remained, and continue to remain, unamended since their lodging almost two years ago.

[11] What has happened since the Note of Appeal was lodged is instructive; and remarkably similar to what occurred in DS v HM Advocate 2008 SCCR 929 (paras 24 et seq). It has involved the appointment of twelve Procedural Hearings over a period of two years, during which the appeal process has not advanced at all. These Hearings were preceded by an application to have the evidence, submissions and charge transcribed. This application was granted, even although much of the evidence and the charge had already been transcribed during the initial appeal process and the volumes were with the appeal papers. The Commission had access to transcripts of the whole trial.

[12] The first Procedural Hearing was due to take place on 28 August 2007, but was withdrawn from the Roll because "there are flaws in the transcripts received by agents". The same thing happened to the next Hearing set down for 10 October; this time because a consultation was needed to discuss the transcripts with the appellant. Just what bearing the transcripts have on the grounds of appeal remains to be seen, in the context of the trial judge having produced a perfectly adequate report on the evidence.

[13] At this point the appellant withdrew his instructions from his then, extremely experienced, legal team because "you are not prepared to represent me in the way I would like at Appeal stage". This team had in turn replaced the trial representatives, also suitably experienced and skilled. The appellant was proposing to represent himself and to lodge additional grounds of appeal. A Hearing set down for 27 November therefore did not take place. The same happened to the next diet of 17 January 2008, when it was said that the appellant had requested the disclosure of documents from the Crown. A Procedural Hearing eventually did take place on 28 February, by which time new counsel and agents had been instructed, but "only recently". It was said that "the grounds presently before the court had been drafted by the appellant personally and it would be necessary for these to be re-visited and possibly re-formulated". A continuation was sought for that purpose and granted. However, the grounds of appeal before the court then and now are drafted by a solicitor advocate and signed accordingly.

[14] A new diet was fixed for 29 April, but that was cancelled because "recently recovered papers from those who formerly represented the appellant" required to be analysed and a consultation arranged. A diet of 26 June was cancelled because "the agent dealing with the case has been ill recently" and the work had not been carried out. The next diet of 5 August was cancelled because the Crown Office "official" "currently investigating matters raised by agents is on holiday". A diet of 10 September suffered the customary fate because "Having reviewed the papers agents have written to the Crown raising a number of matters... [A]gents are still waiting to hear from Crown Office". The same happened to the diet of 8 October because "agents are still waiting to hear from Crown Office". A diet of 14 November was cancelled because "material requested from Crown Office has now been received and requires to be analysed".

[15] The case called on 28 January 2009, two months after the previous diet had been cancelled, when it was stated that:

"substantial material has been made available to the representatives of the appellant by the Crown and it remained necessary for counsel and agents for the appellant to scrutinize that material with a view to consideration of any further grounds of appeal being lodged or to any amendment to the present grounds of appeal".

It was explained that, contrary to the Minutes, the material had become available only on 16 December, but was not uplifted by the appellant's representatives until 9 January.

[16] The case called again at a Procedural Hearing on 24 April. Paragraph 5 of Form 15.5 A-B had been completed as follows:

"(a) A helpful discussion with the Crown on 15/4/09 following disclosure requests indicated Crown counsel's opinion is being sought and a decision is expected shortly. Once a formal response is received the position requires to be considered. It is estimated that 4 weeks is required".

A further continuation of the case to another Procedural hearing was requested. It was explained at the Bar that there were sensitive issues involved concerning the police enquiry. It was counsel's position that he was under a duty to satisfy himself that the appeal was in a position to proceed and that he had an obligation to advise the appellant on any matters germane to the appeal. He appeared to complain that, because section 124 of the Act meant that the refusal of an appeal was final, an appeal could not be deemed to be ready until all possible avenues had been investigated. Thus, he reasoned, when completing the Form, he was not answering the question of whether the appeal, in the sense of that marked and for which leave had been given, was ready to proceed. He was answering a different question, namely whether investigations about other possible grounds of appeal had been completed.

[17] For the reasons set out above, the question which the Court wishes answered is the one asked on the form. It relates to the grounds of appeal lodged and for which, in the normal case, leave has been granted. If an appellant is ready to proceed with these grounds, or will be given a reasonable amount of time to do so, the appeal should proceed to a determination at a full Appeal Hearing. If matters were otherwise then the appeal process in some cases would become almost interminable. After all, an appeal process ought to take a considerably shorter period of time than that culminating in the trial at first instance. This approach is particularly apposite in a case which has been thoroughly investigated by the Commission. In that situation, there is no immediately obvious reason why ground already well turned over should require to be revisited.

[18] This case has spent two years languishing amongst Procedural Hearings after a straightforward reference from the Commission on three clear grounds. It should proceed to a full Appeal Hearing on these grounds now. If, and only if, further grounds are advanced will the Court be required to consider the procedural and practical implications of the incorporation of these grounds in light of the decision in Al Megrahi v HM Advocate 2008 SLT 1008.