APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Clark of Calton Lord Philip	[2011] HCJAC 119 XC667/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPLICATION FOR LEAVE TO LODGE A LATE INTIMATION OF INTENTION TO APPEAL by COLIN KELLY Applicant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Applicant: Shead; John Pryde, Edinburgh

Respondent: Prentice, Q.C., A.D.; Crown Agent

15 November 2011

[1] This is an application under section 111(2) of the Criminal Procedure (Scotland) Act 1995 by Colin Kelly for an extension of the period of time within which to lodge an intimation of intention to appeal against conviction. The applicant was convicted of rape in January 2009 and was sentenced in respect of that crime to a term of six years' imprisonment, a term which he is still at this date serving.

[2] The basis upon which it is contended that any appeal would proceed, if we were to extend the period, is concerned with evidence which was led at the trial of an interview which the applicant had with police officers in circumstances in which he had not been offered the services of a lawyer for the purposes of that interview. That, therefore, was a situation to which the European Court decision of Salduz, issued in November 2008, was applicable, as is the decision of the Supreme Court in the case of Cadder v HM Advocate 2010 SCCR 951, which was decided in the latter part of 2010.

[3] The matter of cases which might be brought forward for review at a time remote from the date of conviction was dealt with in particular by Lord Hope in the Supreme Court in Cadder where he refers in paragraph [60] to the circumstances in which it would not be permitted to reopen closed cases. In identifying what were closed cases he says at paragraph [62], amongst other things:

"... in the light of these authorities I would hold that convictions that have become final because they were not appealed timeously, and appeals that have been finally disposed of by the High Court of Justiciary, must be treated as incapable of being brought under review on the ground that there was a miscarriage of justice because the accused did not have access to a solicitor while he was detained prior to police interview."

Clearly, as was accepted by Mr Shead on behalf of the applicant, the present case falls within the first of the two categories referred to in that sentence. Accordingly, if the sentence is to be taken at face value, the applicant's conviction must be treated as incapable of being brought under review on the ground that there was a miscarriage of justice for the reason given. Mr Shead urged us not to accept that proposition as being as absolute as its terms would appear to suggest. We are prepared for the purposes of this decision to proceed on the basis that that particular observation need not be treated as absolute and that there may accordingly be circumstances, where intimation has not been lodged timeously, which would justify extending the time. However, we are not at all persuaded that the circumstances of the present case fall into such a category. We were referred to the developed jurisprudence in this field in the Court of Appeal in England, where it is quite clear that the general rule is that cases of this antiquity should not be allowed to be reopened except in special circumstances. The only special circumstances upon which Mr Shead relied were that the applicant is still serving his sentence and that the crime of which he was convicted, namely rape, was a serious matter. We are not persuaded that these factors are such as to justify bringing his case into any exceptional category that might be available.

[4] This application was decided against the applicant by Lord Eassie as a single judge. We see no reason to differ from the decision he arrived at. Accordingly, this application is refused.

DL