Kenneth Solomon v. Her Majesty’s Advocate [2019] HCJAC 28

Application for an extension of time in which to lodge a note of appeal against conviction and sentence:- On 29 June 2018, at the High Court, the appellant was found guilty after trial of a charge of attempted rape. On 3 August 2018 he was sentenced to 6 years imprisonment. The appellant lodged a notice of intimation of intention to appeal timeously within 2 weeks as required by section 109 of the Criminal Procedure (Scotland) Act 1995. Section 110 of the 1995 Act requires that a Note of Appeal is lodged within 8 weeks of any intimation of intention to appeal, in the present case that being 4 October 2018. On 1 October 2018 that period was extended so that it expired on 1 November 2018, however, no Note of Appeal was lodged by then. An application was then lodged for a further extension of time on 15 March 2019. It was contended in the application that the appellant been given advice about an appeal against conviction and sentence. Different agents were thereafter instructed, albeit prior to the expiry of the period for lodging on 3 October 2018. The initial extension had been granted on the basis of the new agents having difficulties in obtaining papers. During the course of consultations on 12 and 31 October 2018 certain information was provided which provided potential sources of fresh evidence and further enquiries which may be relevant to an appeal including CCTV evidence and potential defence witnesses. Draft grounds of appeal were lodged raising 4 grounds of appeal:- (1) 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; (2) 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; (3) that the trial judge erred in directing the jury that evidence of distress could corroborate “lack of reasonable belief”; and (4) 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. In relation to an appeal against sentence the ground contended that the sentence was excessive in light of his limited schedule of previous convictions. Section 111(2ZA) of the 1995 Act provides that an extension can only be allowed if the court is “satisfied that doing so is justified by exceptional circumstances” having regard to subsection section 111 (2ZB) which provides:- “...(a) the length of time that has elapsed between the expiry of the period and the making of the application; (b) the reasons stated ...; and (c) the proposed grounds of appeal.” The judge at first instance had refused the application and the court here considered whether he had erred in the determination of the application. The court stated that the reasoning of the judge at first instance could not be faulted and refused the application. The court was unable to identify any exceptional circumstances present. The court noted that by January 2019 the appeal had been deemed abandoned and no explanation for the further delay was provided. In addition, the court considered that the grounds of appeal did not identify anything which related to fresh evidence but, rather, related to conflicts in evidence and could have formed the basis of a timeous application months before. Further, in relation to criticisms of the trial judge’s charge, transcripts of the contents of the charge had been available since October 2018.