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8.1 APPEAL PROCEDURES

"Justice delayed is Justice denied" [1]

Introduction

8.1.1 It has been a singular aspect of the Scottish criminal justice system that it has strict time limits within which an accused person must be brought to trial. In custody cases, the law was laid down as early as 1701 in an Act of the Scottish Parliament [2] requiring diets of trial to be set down within 60 days of a request to do so, which failing the prisoner would be free forever of the charge. By the beginning of the last century, the period had extended to 110 days after first appearance on petition [3]. It is now 140 days [4]. Where an accused is not in custody, the period within which to start the trial in solemn cases is twelve months from that first appearance [5]. In summary cases, the time limit for custody cases is 40 days from the service of the complaint [6]. Traditionally, Scotland has taken a pride in these time limits even although, in the modern era, they are very often extended, at the discretion of the court, especially where the defence wish further time to prepare.

8.1.2 If procedures for an appeal are to be regarded as part of the overall trial process, which they must be seen to be in terms of the Convention jurisprudence, it must be recognised that the reasonable time requirement of Article 6 applies to appeals [7]. Although there are several time limits stipulating periods for the lodging of appeals and related documents, there are no time limits within which the court must hear and determine an appeal. It is not unreasonable to observe that, in recent years, the reputation of the system has been tarnished by the lengths of time which it has taken to progress some appeals [8]. This has been particularly worrying in the cases where the appellant has ultimately been successful.

8.1.3 It has not been possible to conduct an in-depth analysis of all the reasons for the delay in individual cases. These will be varied, although the ultimate responsibility lies in practical terms with the court. However, it was disturbing to note, during the course of the Review, that some practitioners did not see it as part of their responsibility to progress appeals with due speed and diligence. Rather, the approach taken by a few of those practitioners was that it was for the court, and the court alone, to do so. The legal responsibility in terms of Article 6 rests with the United Kingdom Government, but it is, or at least ought to be, the ethical obligation of everyone in the legal profession engaged in appellate work to assist the court in ensuring that cases are progressed efficiently.

8.1.4 One peculiarity of the system is that, even in the most serious cases, it is unusual for trial counsel to appear to argue the appeal. Indeed, it appears common for solicitors, who may or may not have been the trial solicitors, to instruct different counsel to frame the grounds of appeal and/or to conduct the appeal at the final hearing. The effect of this is unfortunate, especially in an appellate process which does not normally, without cause, proceed upon a transcription of the first instance proceedings but upon reports from the trial court. The peculiarity, first, deprives the appellate court of immediate access to trial counsel's knowledge of what occurred at the trial diet and, often of greater importance, why it occurred. Secondly, it involves a significant duplication of work, since the new counsel will have little knowledge of the issues before and at the trial beyond what is contained in the reports. Such circumstances make it almost inevitable that the new counsel will seek to obtain a picture of events already known to his predecessor. This is often reflected in applications for a transcription of the first instance proceedings or the disclosure of evidence already made available. The Review has ascertained that this is not a common feature of other Commonwealth or European appellate systems. The Review has been unable to discover the reason for what is a significant problem and a major cause of unnecessary delays. It is something which ought to be addressed by the courts and the legal profession, but the Review does not consider that it is an area where it has sufficient information upon which to recommend any positive changes.

Current Law

8.1.5 A person convicted on indictment [9] or summary complaint [10] may be permitted to appeal against conviction and/or sentence on the ground that a miscarriage of justice has occurred. A miscarriage of justice in relation to a conviction may occur in a number of ways, notably where there has been insufficient evidence or a misdirection of the jury. It can also occur because of the discovery of "fresh" evidence. A miscarriage of justice in a sentence appeal usually involves a first instance disposal which can be classified as incompetent, inappropriate or excessive [11]. The High Court is empowered to interfere with a sentence simply if it considers that, having regard to all the circumstances, a different sentence ought to have been passed [12]. This is assessed at the time of the appeal hearing and new information can be taken into account.

Solemn Appeals

8.1.6 The starting point in an appeal against conviction or conviction and sentence in solemn cases is the lodging of a Notice of Intention to Appeal. There is a short time span of two weeks [13] for doing this; the Notice being only a formal document stating that intention [14] and no more. The Notice does not specify any grounds of appeal. The time runs from the date of final determination of the case (i.e. the sentence) and that is very often, where reports have been called for, four weeks after the jury's verdict. After lodging the Notice, there is a further eight week period [15] during which the applicant for leave to appeal, as the potential appellant then is, must lodge his/her Note of Appeal. It is this document [16] which is supposed to contain a "full statement of all the grounds of appeal" [17]. Appeals against sentence proceed on the basis of a Note of Appeal lodged within two weeks of the sentence [18].

8.1.7 All appeals against conviction and/or sentence require leave from a single judge of the High Court or, if that is refused, the Court itself sitting with a quorum of at least three (conviction) or two (sentence) judges. The test for the grant of leave is whether the stated ground is "arguable" [19]. The requirement for leave to appeal had been abolished following recommendations of the Thomson Committee [20]. Thereafter, a convicted person had an automatic right of appeal against conviction and/or sentence. In practice, "unstateable" appeals were largely eliminated from the system because counsel, who had exclusive rights of audience in the High Court at that time, were ethically bound not to present cases which had no basis in fact or law. Counsel required to advise accordingly and an appellant with no "stateable" case would either have to abandon his/her appeal or present it himself/herself without further legal assistance. Following the successful challenge to that practice before the European Court [21], the requirement that all cases must have leave was introduced. Thus, as had been indicated was the Government's intention [22], the automatic right of appeal was abolished.

8.1.8 Appeals against preliminary rulings, made during the first instance process but in advance of a trial diet, proceed by way of Note of Appeal, but leave of the court of first instance (not the appellate court) must be obtained [23]. The time limit for appealing is seven days [24]. This period cannot be extended. If leave to appeal is refused, or no appeal is timeously marked, any person subsequently convicted can attack a preliminary ruling in the context of an appeal against conviction, if the ruling caused a miscarriage of justice.

8.1.9 Once a Note of Appeal is lodged, whether allowed late or timeous, the trial judge is required [25] to write a report on the case generally and on the specific grounds of appeal "as soon as is reasonably practicable". The papers are placed before a single judge to determine whether to grant leave to appeal [26]. This is commonly known as the "first sift". There are no specific time limits for the completion of any of these processes. The determination is made in chambers without any oral hearing [27]. If leave to appeal is refused, the applicant may, within fourteen days [28], require the High Court to reconsider the issue [29]. This is also done in chambers without an oral hearing. If leave to appeal against conviction is granted, the appellant has forty-two days in which to lodge his/her written case and argument [30]. Thereafter, the appeal will normally be rolled for a procedural hearing, at which it ought to be appointed to a full hearing. At the full hearing, the appellant's written argument is treated as his/her principal submission without being read over.

8.1.10 In sentence appeals, the case will be rolled for a full hearing after the grant of leave. Not later than 21 days before the hearing, the appellant must lodge a written case and argument [31], which is taken as the appellant's submission at the hearing [32]. In recent times, it has become common in sentence appeals for the written submission not to be lodged timeously. Sometimes they are lodged on the eve of the hearing and, occasionally, on the day of the hearing. This disadvantages appellants, in that the court may not have had adequate notice of the full argument in advance of the oral hearing. The court has no effective sanction to deal with such failures or with those in the rarer, but not uncommon, situation of a late case and argument in a conviction appeal.

8.1.11 Bills of Suspension are not competent in solemn procedure [33], but the Crown can use the Bill of Advocation procedure to appeal decisions taken prior to the jury's verdict [34]. This might be used, for example, where a judge has refused to adjourn a trial, thus effectively bringing the case to a premature end.

Late Appeals (solemn cases)

8.1.12 An applicant can apply to the court, at any time, for an extension of either of the periods [35] for lodging a Notice of Intention to Appeal and a Note of Appeal against conviction and/or sentence. This does not apply to appeals against decisions at preliminary hearings. There is no long stop provision beyond which no application for permission to lodge a late Notice or Note can be made. Accordingly, an appellant can apply for an extension of time years, and in some cases many years, after conviction or sentence. This does happen. It is of note in this context that the SCCRC will usually, quite correctly, be reluctant to deal with a case in which the applicant has failed to exhaust the appeal procedures.

8.1.13 Where an application to lodge a Notice or Note late is made, there is no statutory or other defined test that has to be satisfied. An overall "interests of justice" requirement ought to apply, balancing the need to remedy miscarriages of justice in individual cases with the wider need for finality and certainty in the criminal process. However, in the recent past, there has been considerable indulgence in this area in favour of tardy applicants [36]. This is in contrast to earlier decisions [37] suggesting that "special grounds" ought to be present to justify an exception to the limits laid down by Parliament.

8.1.14 The 2010 Act went some distance towards remedying some of the problems in this area by providing that, in the case of an application to allow a late Notice of Intention to Appeal, the applicant must now: (a) specify why he/she failed to comply with the time limit; and (b) state what his/her grounds of appeal are [38]. However, there is no statutory guidance on the basis upon which the court should grant such an application. There is also a minor problem in that the legislation does not provide an equivalent procedure, where the applicant has lodged a formal Notice but has not followed that up with a timeous Note of Appeal. In this latter event, the court administration normally treats the process of appeal as abandoned, but there is no statutory provision to that effect.

8.1.15 Applications for late appeals are normally dealt with on paper, initially by a single judge of the High Court in chambers [39]. An unsuccessful applicant may apply to the High Court (i.e. sitting with a quorum of three) to have the decision reconsidered [40]. For reasons which are not immediately clear, this is done at an oral hearing. At either stage, the Court may be given a variety of reasons for the applicant's failure to appeal in time. These are normally: (i) administrative errors by his/her agents in marking an appeal; (ii) failure on the part of his/her former (trial) agents to comply with instructions to mark an appeal; (iii) the applicant's error in being unaware of the time limits or the existence of a ground of appeal; and (iv) the applicant's confused mental state following conviction and/or sentence. The Court seldom has the time or resources to examine the accuracy of these contentions, even if it is almost always prepared to accept solicitors' accounts of administrative error.

Summary cases

8.1.16 In summary proceedings, there are no less than four potential modes of appeal: stated case (appeal against conviction), section 174 (preliminary rulings), Bill of Suspension and Bill of Advocation. Bills of Suspension can normally only be employed to challenge final judgments [41], i.e. at the conclusion of a summary trial [42]. They have traditionally been used in cases where the facts are not in dispute and there is a crisp issue of competency [43]. Advocation, although usually resorted to by the procurator fiscal, is available generally to review decisions other than final judgments, again on the basis of some exceptional procedural irregularity [44] which cannot be remedied by an appeal by stated case at the end of the trial process. It can, for example, be used to appeal against the grant or refusal of adjournments at trial diets.

8.1.17 The applicant for leave to appeal against conviction requires to request a stated case within one week of the final determination of the case [45]. Thereafter there are a variety of time limits designed to expedite the summary stated case process. The High Court may extend the time periods "as it may think proper" [46] and these applications are normally dealt with on paper by a single judge of the High Court in chambers. There is no appeal to a three judge bench against a refusal to extend a time limit in summary cases [47].

8.1.18 In relation to preliminary rulings in the summary courts, there is a statutory right of appeal, but only with leave of the court of first instance, within seven days of the decision taken [48]. There is no power to extend this time limit. However, as in solemn cases, in the event of a conviction, the applicant can re-raise any matter dealt with by a preliminary ruling even although he/she did not exercise his/her right of appeal, or was refused leave to do so, at the earlier stage. Accordingly, there is a right of appeal against conviction, which can be exercised late if the court deems that appropriate, and there is a right of appeal, with leave, in relation to preliminary rulings.

Nobile Officium

8.1.19 There have, over recent years, been several causes of delay in the progress of appeals despite what ought to be a straightforward process. These can be prompted by late attempts to amend grounds of appeal and by late changes of agency. These matters are primarily for the High Court to regulate in practice, provided that it is confident that it has the statutory powers to do so. What is of more concern is the invocation of the nobile officium of the High Court to challenge decisions of that Court before, during and after the completion of the appeal process.

8.1.20 Without indulging in an academic essay on the subject, the nobile officium is an ancient power of superintendence available to the High Court to deal with circumstances which are "extraordinary or unforeseen and where no other remedy is provided for by law" [49]. Despite some authority to the contrary, it was not until recently regarded as a remedy available to review interlocutors of the High Court, whether at appellate or first instance level [50]. It is very much a remnant from a bygone age before criminal procedures were regulated by the detailed statutory provisions which exist today. Indeed, it comes from an era before the creation of the right of appeal from first instance High Court verdicts in 1926 [51] and the introduction of the SCCRC in 1997.

8.1.21 The 1995 Act provides [52], in relation to appeals in solemn proceedings, that:

"every interlocutor and sentence pronounced by the High Court… shall be final and conclusive and not subject to review by any court whatsoever…".

It might have been thought that this was quite clear. A decision of the High Court (i.e. one with a quorum of at least three) cannot be overturned by another decision of the same court. It is final. But in Hoekstra [53] the court appeared to overturn one of its own decisions. Although the facts there were very special, this was, and is, in some quarters perceived as authority to use this procedure to challenge any decision of the High Court in solemn appeals. Attempts to discourage this have been made [54], but applications for the use of the power continue to be lodged; designed to challenge the merits of final decisions of the Court, whether directly or under the guise of identifying some fundamental nullity, after the refusal of an appeal or leave to appeal [55]. This undermines the finality of decisions taken by the High Court at appellate level.

8.1.22 A petition to the nobile officium is an additional potential avenue of appeal in summary cases. There is no equivalent of the finality provision [56] for summary procedure. This is, no doubt, because it was previously accepted that a decision on an appeal to the High Court from an inferior court was final. Nevertheless, its absence has been used to permit the High Court to review its own decisions in summary appeals [57]. Thus, for example, where leave to appeal has been refused by the High Court itself, an unsuccessful applicant may try to have that decision reversed by an identically composed court (i.e. with the same quorum). This has actually been achieved in one case [58], albeit in circumstances widely regarded as incompetent [59]. Indeed, it is not unknown for a party, who has been refused leave to appeal by stated case, to attempt to circumvent that decision by lodging a Bill of Suspension and a petition to the nobile officium [60].

Consideration

Solemn Appeals

8.1.23 The High Court has, in recent years, attempted to introduce procedures which ensure that appeals, in which leave has been given, are pursued to a conclusion with suitable vigour. Nevertheless, perhaps especially in cases where the appellant has been allowed interim liberation, there may be little incentive to progress an appeal when the prospects of a possible refusal and a return to custody beckon. The court has set down some timetables for the pursuit of appeals, notably the forty-two day period for the written case and argument. It can, and in many cases does, attempt to set out advisory ad hoc timetables for particular appeals by appointing a party to complete a particular procedural step, to do a specific thing by way of investigation or to lodge documents, by a certain date. Yet there are no specific statutory sanctions, as there are in civil procedure, which can be applied in the event of a party failing to comply with any time limits or other procedural order set by the Court. This leads to a degree of laxity in such compliance. It seems appropriate to provide the Court with a clear statutory power to introduce sanctions, including that to dismiss an appeal, or hold it to be abandoned, or to order that particular steps should not be paid for out of public funds [61], in order to enforce procedural time limits and decisions and to ensure the efficient running of the system of appeals in general as well as the orderly progress of individual cases.

Late Appeals (solemn cases)

8.1.24 Where an application for leave to appeal comes outwith the timescales set by statute, there is a balance to be achieved. On the one hand, if an appeal clearly has merit and a refusal to allow an application for leave to be received late would make a reference from the SCCRC inevitable [62], the appeal should be allowed to proceed. On the other hand, if statutory timetables are to have any purpose, a late applicant should be required to show greater cause than the mere "arguability" of grounds needed for leave to appeal in timeous applications [63].

8.1.25 Late appeals present substantial practical problems. The trial judge may have difficulty reporting accurately on matters which occurred months, and perhaps years, previously. The productions may have been returned to their owners or destroyed. Other notes or papers may have gone missing.

8.1.26 Late appeals undermine the principles of finality and certainty, which a statutory time table is designed to promote. Yet there is no test laid down in the 1995 Act for allowing a late Notice or Note. It is not said that any cause or special cause is required [64]. In England and Wales, where the time limit for lodging an appeal is only twenty-eight days from the conviction [65], there is also no statutory guidance on the reasons required for a late appeal. However, there are dicta to the effect that "substantial" reasons must be advanced as to why the application is late [66]. Furthermore, at that stage the applicant requires to show that there are "such merits that the appeal would probably succeed" [67].

8.1.27 In order to clarify the position, it is recommended that the 1995 Act be further amended to provide that: (i) where an applicant fails to lodge a Note of Appeal timeously, having lodged a Notice of Intention to Appeal, his/her appeal will be deemed to be abandoned; (ii) where an applicant seeks to lodge a Notice of Intention to Appeal late or seeks to have his/her abandoned appeal revived by lodging a Note of Appeal, having earlier failed to do so, the court may allow this but only if: (a) specific cause is shown why a late Notice or Note should be allowed; and (b) the grounds of appeal are such as disclose that, were the appeal to be received late, it would probably succeed on the grounds stated. Put another way, the Court would have to apply a similar test as that employed by the SCCRC; that it is satisfied that a miscarriage of justice may have occurred.

8.1.28 It is important that the victims of crime, including the relatives of the deceased in homicide cases, be told why an appeal is being allowed to proceed late. After all, finality and certainty play a significant part in their need for closure. The potential for a sense of despair, which may be engendered in victims, when an appeal is lodged after they had thought that the time in which to do so had expired, should not be ignored. Accordingly, where a judge decides to allow an appeal to proceed out of time, reasons for that decision must be given and be capable of communication to the relevant victims or relatives.

8.1.29 If the application for leave to appeal late is refused by a single judge, then any further application to the High Court should be dealt with on paper in chambers [68] without an oral hearing unless the court otherwise directs. As is required with other provisions in the 1995 Act, it should be made clear, if it is not already [69], that the decision of the High Court refusing to allow an appeal to be received late is final.

Bills of Advocation and Suspension

8.1.30 The 2010 Act has applied certain time limits within in which a person can appeal by way of Bill of Suspension or Advocation [70]. However, a more fundamental question is whether appeals by these methods should continue in existence at all, especially where leave to appeal, either at the preliminary ruling stage or at the post conviction sift stage, has been refused. The starting point for a consideration of this issue is that the relatively recent provisions of sections 174 and 175 provide a comprehensive code governing appeals from the summary courts. Section 184 of the 1995 Act provides that:

"(2) Subject to section 191 of this Act, on the [stated] case being lodged… the appellant shall be held to have abandoned any other mode of appeal which might otherwise have been open to him".

Yet section 191 provides:

"(1) Notwithstanding section 184(2) of this Act, a party to a summary prosecution may, where an appeal under section 175 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the High Court, by bill of suspension against a conviction or, as the case may be, by advocation against an acquittal on the ground of a miscarriage of justice in the proceedings".

8.1.31 The processes of Suspension and Advocation are archaic in form. They do not require the leave of the court of first instance. They do not require leave to appeal from a judge of the High Court. They thus provide a tempting route, especially in conviction cases, circumventing such hurdles. They are not infrequently used in situations where, were a conviction to follow, an appeal in the normal way would be available. Recently, for example, Bills of Advocation have been used to challenge the refusal or grant of applications to adjourn trials in summary cases. That type of decision is a discretionary one and appeals should seldom succeed [71]. It is not in the wider interests of justice to delay summary proceedings by permitting the lodging of a Bill of Advocation in such circumstances. Bills of Suspension have been used, again for example, in an attempt to challenge decisions to commit an accused to prison pending his trial in solemn cases. This type of decision is one where, if an appeal is to be competent, it ought only to proceed with leave of the court of first instance.

8.1.32 In summary proceedings, both parties have a right to appeal final judgments, provided, in the case of a convicted person, leave from a judge of the High Court or that Court itself is obtained. There is a power to appeal preliminary rulings, with leave of the court of the first instance. There appears to be little reason why there should not be a general power to appeal all pre trial interlocutory decisions, with such leave. In that event, there would be little place for Bills of Suspension and Advocation as a mode of review of summary court decisions in a modern appellate regime. It is recommended that such Bills be abolished as a mode of review of court decisions by accused or convicted persons.

8.1.33 In certain situations, it may be that a convicted person wishes to challenge a summary conviction on the basis of some radical incompetency. There is force in the argument that such cases would be better challenged in an appellate process less complex than that involved in a stated case. However, proceeding by way of a Note of Appeal, rather than stated case, might be a matter which could be authorised by the summary court on an application for that purpose made at the same time as the application for a stated case. This could be achieved by providing, in section 176 of the 1995 Act, that, in cases where the application concerns only the competency of the conviction, the summary court may treat the application as if it were a Note of Appeal and report accordingly. The case could proceed in the same way as a summary appeal against sentence, other than in respect of the quorum provisions.

8.1.34 In relation to the use of Advocation by the Crown in solemn cases, its current use is probably restricted to those situations in which the trial judge has made some form of ruling, against which an appeal is not available, where the decision effectively terminates the prosecution. It is recommended that this process be abolished in favour of a right to appeal, without leave, where such termination is the effect of any decision of a court of first instance. This could be achieved by amendment of section 74 or the new section 107A [72] provisions of the 1995 Act.

Late Appeals (summary cases)

8.1.35 It is recommended that the same test for leave to appeal late as is suggested for solemn cases be applied to summary cases. It ought also to be made clear that, in accordance with current practice, there is no appeal from the decision of a single High Court judge refusing leave to appeal late in a summary case [73].

Nobile Officium

8.1.36 Because: (a) appellate procedure is now regulated in some detail by statute and Act of Adjournal; (b) any decision by the High Court on the merits of a case is final; and (c) in any event, there is the right to apply for a reference to the SCCRC, the utility of the nobile officium remaining as a mode of review in the modern era may be regarded as questionable.

8.1.37 In summary cases it is an additional method of attempting to undermine decisions already taken under one of the existing four appellate routes. Thus, for example, where leave to appeal has been refused by the High Court (sitting as a quorum of three) the unsuccessful applicant may, as narrated above, try to have that decision reversed by an identically composed court.

8.1.38 The capability of one mode of appeal interfering with another is inevitably going to cause confusion and with it delay, uncertainty and expense. Having regard to the need for certainty and finality, this cannot be justified in a modern system of appellate justice. There is no reason why, in all summary cases, a convicted person cannot avail himself/herself of the ordinary mode of statutory appeal by way of an application for a stated case (or appeal, with leave, from a preliminary ruling). If leave is refused, then that ought to be the end of the matter, subject to the jurisdiction of the SCCRC.

8.1.39 What should not occur is that petitions to the nobile officium be employed to review decisions refusing leave to appeal or refusing an appeal. There should be clear statutory provision that a decision that concludes a properly conducted appeal procedure should not be capable of circumvention, recognising the authority with which that decision was made. This is the intention, in relation to solemn cases, of section 124 of the 1995 Act. It is therefore recommended that, for the avoidance of doubt, a statutory provision that applies the same finality to summary case appeal decisions that section 124 provides in relation to solemn cases, should be introduced. If the High Court has made some error in deciding a case and this has resulted in a miscarriage of justice, the route to go down ought to be to apply to the SCCRC. It is therefore recommended that it be made clear in statute, again for the avoidance of doubt, that it is not competent to review a decision of the High Court granting or refusing an appeal, or leave to appeal or an application to appeal late, by use of a petition to the nobile officium.

8.1.40 Although the Review considered carefully whether petitions to the nobile officium should be abolished entirely, it was ultimately persuaded that the power ought to be retained on the basis that it should continue to be available to deal with circumstances which are truly extraordinary or unforeseen and where there is no other remedy available. But this is on the basis that the High Court is alert to the potential abuses which this equitable procedure can create if it is allowed to be used to challenge quorate final decisions of the High Court exhausting an appeal process or an application for leave to appeal in terms of the 1995 Act.

8.1.41 There is now an opportunity to simplify and modernise the current system of criminal appeals, making it less complex, more accessible and more efficient without compromising an individual's right to appeal decisions that may require to be reversed.

Recommendations

I therefore recommend that:

• the High Court should be provided with a statutory provision to impose sanctions, including that to dismiss an appeal or to order that particular steps should not be paid for out of public funds, to enforce time limits and its own procedural decisions;
• the 1995 Act should be amended to provide that:

(i) where an applicant fails to lodge a Note of Appeal timeously, having lodged a Notice of Intention to Appeal, his/her appeal will be deemed to be abandoned;

(ii) where an applicant seeks to lodge a Notice of Intention to Appeal late or seeks to have his/her abandoned appeal revived by lodging a Note of Appeal, having earlier failed to do so, the court may allow this but only if:

(a) special cause is shown why a late Notice or Note should be allowed; and

(b) the grounds of appeal are such as disclose that, were the appeal to be received late, the appeal would probably succeed on the grounds stated;

(iii) discussions on whether to grant leave to appeal late shall all take place in chambers without the requirement of an oral hearing unless the Court otherwise directs; and

(iv) the decision of the High Court refusing to allow a Notice of Intention to Appeal or a Note of Appeal to be received late is final.;

• where an application for leave to appeal late is granted, the Court must give a reason for that decision in a form capable of being communicated to any victim of the crime or next of kin of any deceased;
• the processes of Bill of Suspension and Bill of Advocation should be abolished. The provisions of sections 74 and 174 of the 1995 Act should be expanded to permit appeals from any pre trial decision of a court of first instance but only with leave of that court. Where the decision has the effect of terminating a prosecution by acquitting the accused of a charge, or part of a charge, or otherwise the Crown should have the right of appeal without leave;
• section 176 of the 1995 Act should be amended to permit an applicant for a stated case based solely on the incompetency of a conviction to request the court to authorise that the appeal proceed by Note of Appeal rather than Stated Case. The court should be permitted to grant such authorisation. Other than in relation to the quorum of the Court, the appeal should proceed in the same way as a Note of Appeal against sentence;
• the same test for leave to appeal late as is suggested for solemn cases should be applied to summary cases. It ought also to be made clear that, in accordance with current practice, there is no appeal from the decision of a single High Court judge refusing leave to appeal late in a summary case;
• the High Court's nobile officium should continue but there should be a statutory provision that applies the same finality to summary case appeal decisions that section 124 of the 1995 Act provides in relation to solemn cases; and
• further consideration by the court and the legal profession should be given to whether the practice of trial counsel not appearing in the appeal proceedings constitutes a problem and, if so, what steps should be taken to solve that problem.

[1] attr. W E Gladstone

[2] Act Anent Wrongous Imprisonment 1701

[3] Criminal Procedure (Scotland) Act 1887 s 43

[4] 1995 Act s 65(4)(aa)(ii)

[5]ibid s 65(1)(b)

[6]ibid s 147(1)

[7]Gillespie v HM Advocate 2003 SLT 210

[8] see e.g. Coubrough's Extrx v HM Advocate 2010 SCCR 473 which took four years from a SCCRC reference in respect of a murder conviction in 1971. The appellant had died by the time of the final hearing

[9] 1995 Act s 106(3)

[10] 1995 Act s 175(5)

[11]Donaldson v HM Advocate 1983 SCCR 216, LJ-C (Wheatley) at 218; Addison v Mackinnon 1983 SCCR 52, LJ-C (Wheatley) at 55

[12] 1995 Act ss 118(4) and 189

[13] 1995 Act s 109

[14] Act of Adjournal (Criminal Procedure Rules) 1996, Form 15-2A

[15] 1995 Act s 110(1)

[16] Act of Adjournal (Criminal Procedure Rules) 1996, Form 15-2B

[17] 1995 Act s 110(3)(b)

[18] 1995 Act s 110(1)

[19] 1995 Act ss 107(1) and 180(1)

[20] Third Report (Cmnd 7005) (1977) para 2.09

[21]Boner v United Kingdom 1995 SCCR 1, the appeal being resisted by the Lord Advocate (Lord Rodger)

[22] ibid para 42

[23] 1995 Act s 74

[24] ibid s 74(2)(b) as amended prospectively by the Criminal Justice and Licensing Act 2010 s 72

[25] 1995 Act s 113

[26] ibid s 106-107

[27] Ibid s 107(6)

[28] ibid s 107(4A)

[29] although this is not an appeal, it is often called one to the "second sift"

[30] Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.15A(4)

[31] ibid 15.16(3)(a)

[32]ibid rule 15.16(5)(a)-(b)

[33] 1995 Act s 130

[34] ibid s 131

[35] ibid s 111

[36]Birrell v HM Advocate 1993 SCCR 812, LJG (Hope) at 817

[37]Spence v HM Advocate 1945 JC 59, LJ-C (Cooper) at 61, following Cockerell v HM Advocate 1943 JC 69, LJG (Normand) at 63-64

[38] s 5 (2) inserting s 111(2A) into the 1995 Act

[39] 1995 Act s 103(5)

[40] ibid s 103(6), Act of Adjournal (Criminal Procedural Rules) 1996 Form 15-3B

[41] it can also be used to suspend warrants, a procedure outwith the scope of the Review

[42]Morton v Macleod 1981 SCCR 159

[43]Fairley v Muir 1951 JC 56, i.e. where the stated case procedure would be unnecessarily cumbersome

[44] see generally Renton & Brown : Criminal Procedure paras 33-19 et seq, especially 32-22 under reference to MacLeod v Levitt 1969 JC 16 and Durant v Lockhart 1985 SCCR 72

[45] 1995 Act s 176

[46] 1995 Act s 181

[47] ibid s181(3)

[48] ibid s 174 as amended prospectively by The Criminal Justice and Licensing (Scotland) Act 2010 s72

[49]Anderson v HM Advocate 1974 SLT 239, LJG (Emslie) at 240

[50] Hume ii 508; Alison: Practice of the Criminal Law i. 23 referring to inferior courts

[51] now including a right to appeal from preliminary rulings with leave under the 1995 Act s 74

[52] s 124 see Mitchell v HM Advocate [2011] HCJAC 35, LJG (Hamilton) at para 12

[53]Hoekstra v HM Advocate (No 2) 2000 JC 387

[54]Beck Petitioner 2010 SCCR 222

[55] Uttley v HM Advocate [2009] HCJAC 95

[56] 1995 Act s 124

[57]Allan, Petnr 1993 SCCR 686, dealing with an admittedly incompetent sentence imposed by the High Court on appeal

[58]Akram v HM Advocate 2010 SCCR 30

[59]Beck ( supra) para 42

[60] see the extraordinary proceedings in Shepherd v PF (Dornoch) [2010] HCJAC 114, cf 1995 Act s 184

[61] see e.g. Prosecution of Offences Act 1985 s 19A and the Costs in Criminal Cases (General) Regulations 1986

[62]R v King (2000) Crim L R 835

[63] 1995 Act s 107(1)(a)

[64] although there is authority to that effect under earlier similar legislation: Spence v HM Advocate 1945 JC 59 following Cockerell v HM Advocate 1943 JC 62

[65] Criminal Appeal Act 1968 s 18

[66]R v Rigby (1923) 17 Cr App R 111

[67]R v Marsh (1935) 25 Cr App R 49

[68] i.e. in the same way as a timeous application for leave to appeal; 1995 Act s 107(6)

[69] 1995 Act s 124

[70] s 6, introducing 1995 Act s 191A

[71] cf Hunter v PF Livingston 2011 SCCR 130; Donald v Kelly 2004 SCCR 153 following Tudhope v Lawrie 1979 JC 44

[72] inserted by Criminal Justice and Licensing (Scotland) Act 2010 s 74

[73] 1995 Act s 181(3)

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