Act: C Murray; Gilfedder & McInnes (for Callahan McKeown & Co, Renfrew)

Alt: P.W. Ferguson QC, AD; the Crown Agent

1 July 2011

[1] On 18 May 2010 the applicant went to trial at the High Court in Falkirk on two charges of repeatedly raping his two sisters. The offences were libelled to have taken place between 1976 and 1980, when the girls were aged between 9 and 13 and 6 and 10 respectively. The applicant was aged between 12 and 16 at the time. He had come from a very disturbed and deprived background, having been in care from the age of two years.

[2] The evidence was in relatively short compass. Along with the two complainers, there were two civilian witnesses and two police officers. The crown case closed on 19 May, when the applicant testified on his own behalf. He himself said that he had been sexually abused by his mother's partner and physically abused by his mother and her partner when on home visits. The evidence was concluded and the Advocate Depute and the applicant's solicitor advocate addressed the jury. The judge charged the jury on 20 May, directing them that they had to accept both complainers as credible and reliable in order to convict of the charges. The jury, by majority, found the applicant guilty. The case was adjourned for sentence until 17 June 2010 at the High Court in Glasgow, when a six year sentence was imposed. The trial judge notes in her report to the Parole Board that notwithstanding his childhood, which records revealed as showing early sexualisation and mental disturbance, the applicant had been able to live a relatively stable adult life. The trial judge regarded him as at low risk of re-offending. The sentence imposed reflected that, the age of the offences and the applicant's general lack of significant recent criminal record.

[3] No Notice of Intention to Appeal against conviction or sentence was lodged. On 12 May 2011, almost a year after the trial, the present application under section 111(2) of the Criminal Procedure (Scotland) Act 1995 was lodged for an extension of time in which to lodge the relevant Notice under section 109(1). The application contains the following averment:

"Following sentence, the applicant consulted with his solicitor-advocate and solicitor in the cells at the High Court in Glasgow. He was not advised in relation to appeal procedure or potential grounds of appeal. He had no further meetings with his trial solicitors (Messrs Belmonte & Co.)".

It continues to narrate a history whereby, in late June 2010, the applicant wrote to a voluntary association which supported those who contend that they are victims of miscarriages of justice. Despite further letters, nothing happened. He then corresponded with a new firm of solicitors and met them and counsel on 21 December 2010. Counsel requested further information, but the solicitors were then removed from the Criminal Legal Assistance Register resulting in them not being able to carry out further legal aid work. It was only in March 2011 that the applicant's legal aid certificate was transferred to another firm. They met with the applicant on 12 April and arranged a consultation with counsel on 5 May 2011, by which time Messrs Belmonte & Co's file had become available.

[4] There were no grounds of appeal appended to the application, but a proposed Note of Appeal was lodged on 17 May 2011. It contains seven paragraphs. The first alleges defective representation by the trial solicitor advocate, Mr Pollock, in failing to advance two material elements of the defence: first, that third parties had been responsible for the rapes; and, secondly, that there was evidence available to undermine the credibility of the complainers which was not deployed. It is said in the third paragraph that, although the applicant had said that during part of the libel he had been in residential care, no special defence of alibi had been lodged and none of his social work records were used to demonstrate his periods in care. The fourth paragraph refers to the mother's partner, whom the applicant had said might have been responsible for the rapes. Next there is an allegation that one of the complainers "had a reputation for dishonesty as a child" and had "got into trouble as a child for telling lies". None of this had been put to her. The sixth paragraph narrates that, after the period in the libel, the applicant had had continued contact with one of the complainers, who had continued to visit him in the late 1980s. It is said that the use of this material would have damaged the complainer's credibility.

[5] The Crown opposed the application under the new procedure set out in section 111 (2B) of the Act. When the application first called on 17 June 2011, it was continued so that enquiries could be made in relation to the allegation that, at the conclusion of the proceedings at first instance, the applicant had not received any advice on "appeal procedure or potential grounds of appeal". The court was aware that both the solicitor advocate and the firm of solicitors, who were entirely independent of each other, were experienced criminal practitioners and such a dereliction of duty would have been surprising.

[6] When the response from Mr Pollock was received, attached to it was his attendance record at Glasgow High Court stating that he had "post sentence discussions" in the course of which he advised that it was unlikely that the sentence would be reduced on appeal. Mr Pollock's letter confirmed that he would have advised the applicant on the relevant time limits. It also stated that he recalled discussing the prospects of an appeal against conviction with the appellant at the trial diet and had advised that no ground of appeal had been identified. There had been no misdirection and the case had turned on the complainers' credibility and reliability.

[7] The response from Messrs Belmonte & Co stated that their file note also contained reference to discussions about the sentence after it had been imposed in Glasgow. The solicitor recalled that both his advice and that of Mr Pollock had been that there was no likelihood of a successful appeal against conviction or sentence. Attached to the solicitor's response was a copy of a letter dated 18 June 2010 addressed to the applicant in the following terms:

"In the event that you wish to appeal either the sentence imposed or the conviction at Trial or both then intimation requires to be sent to the Appeal Court within 14 days of the date of the commencement of your sentence. Should you wish to appeal you should contact our office immediately upon receipt of this letter and we will endeavour to arrange a consultation with you.

Unless we hear from you to the contrary it is now our intention to close your file...".

In the face of this material, the applicant accepted that he had had a meeting with both Mr Pollock and his instructing solicitor. He accepted that sentence had been discussed, although he did not recall further details. He accepted also that he had received the letter, although he did not remember noticing the time limit.

[8] So far as procedure is concerned, the court is entirely satisfied on the material available that this was a case in which, contrary to what is narrated in the application, the applicant was advised on the prospects of an appeal and elected not to proceed with one. He did not advance any criticisms of his solicitors or solicitor advocate at the time of the trial or, from what can be seen, for many months thereafter. In respect of the substantive merits of the appeal, the grounds are all defective representation points. In respect of both, the views of the Lord Justice-Clerk (Gill) in Grant v HM Advocate 2006 JC 205 appear to be of direct relevance. These stress the seriousness of making allegations of the type encountered in this case, especially in the absence of any objective support. There is certainly no support for the allegations made about a failure to advise on an appeal. For the reasons put forward in Grant, regarding the trouble which defective representation grounds pose in these circumstances, neither the solicitor advocate nor the solicitors were asked for their comments on the merits of the allegations. However, it is clear that they relate primarily to matters of strategy and tactics within the ambit of reasonable decisions taken at the time of the trial. Especially where, as in this case, the applicant has given evidence, it is difficult to see how the grounds of appeal advanced, even if true, meant that the applicant's defence was "not presented to the court".

[9] The court has considered first whether any cause has been shown, relative to the failure to lodge a Notice of Intention to Appeal, to allow this applicant to present an appeal late. No such cause has been shown. There has been no excusable failure or similar incident. Secondly, the court has considered the proposed grounds of appeal. Had these grounds persuaded the court that the appeal would have a reasonable prospect of success if made out, the court would consider allowing a late appeal on the basis that, notwithstanding any procedural failures, a miscarriage of justice may have occurred. But this is not such a case. All that the grounds contain, after the elapse of a year from the trial diet, are unsupported allegations of defective representation, none of which suggest that this applicant's case was not presented to the jury. The application is therefore refused.