Graham Gordon V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Neutral Citation | [2009] HCJAC 52 |
| Court | High Court of Justiciary |
| Date | 24 April 2009 |
| Docket Number | XC326/07 |
| Published date | 22 May 2009 |
| 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...
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...to each of these appellants to amend their grounds of appeal. We respectfully agree with the opinion of Lord Carloway in Gordon v HMA [2009] HCJAC 52 concerning the procedure in solemn criminal appeals. That procedure requires practitioners to give full consideration to the possible grounds......
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