David Glass v. Her Majesty’s Advocate [2015] HCJAC 116

Application for extension of time to lodge a note of appeal against conviction:- On 15 August 2014, at Dunfermline Sheriff Court, the appellant was convicted following a trial on indictment of a number of sexual offences committed against children. On 24 September 2014 he was sentenced to 3 ½ years imprisonment and a notice of intention to appeal was lodged timeously, however, a note of appeal was not lodged within the period of 8 weeks as required by section 110(1) of the Criminal procedure (Scotland) Act 1995. On 13 October 2015 the appellant, in terms of section 111(2) of the 1995 Act, lodged an application for an extension of time in which to lodge a note of appeal. The circumstances were that the applicant was advised by his trial solicitor that if he were successful in appealing his conviction, a re-trial would follow and, in the event that he was convicted again, he might receive a longer sentence and, on the basis of that advice, which it was accepted by the agent had been wrong, the applicant did not proceed with the appeal. Subsequently, however, the applicant became aware that the advice he had been given was incorrect and he sought to instruct a new solicitor, and did so around May 2015 and who was formally instructed in June 2015. A proposed note of appeal was lodged containing grounds of appeal relating to alleged misdirections by the trial sheriff in relation to a failure to mention the significance of prior inconsistent statements made by a number of witnesses. On 15 October 2015 the application for an extension of time was refused by a single judge of the High Court when the lateness of the application was noted as was the inadequate explanation for that lateness together with the poor prospects of the appeal succeeding on the limited information contained in the note of appeal. Here the court refused that application and noted that the single judge considered all of the necessary issues and there could not be said to be any compelling reason why the appeal should be allowed to proceed at such a late stage.