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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 14
HCA/2021/135/XC
Lord Justice General
Lord Woolman
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the
APPLICATION FOR AN EXTENSION OF TIME UNDER SECTION 111(2) OF THE
CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
ROBERT GARDEN
Applicant
against
HIS MAJESTY'S ADVOCATE
Respondent
Applicant: Mackintosh KC; John Pryde & Co SSC (for Moir & Sweeney Litigation, Glasgow)
Respondent: CG McKenna (sol adv) AD; the Crown Agent
28 April 2023
Introduction
[1]
This application is about the circumstances in which the court will allow an appeal to
proceed late notwithstanding that it is marked almost two years after the conclusion of the
trial. There is no issue about the general law. An extension of time requires there to be
exceptional circumstances (Criminal Procedure (Scotland) Act 1995, s 111 (2ZA)).
2
The charges
[2]
The applicant faced some 16 charges relative to two former partners. In due course,
the Advocate depute withdrew some of these charges, which were evidential in nature, and
the applicant was acquitted of others. Charges 4, 7, 8 and 9 all related to the complainer JM.
Charge 4 libelled a significant number of physical assaults from October 2011 to February
2014. The applicant was convicted unanimously of this charge. Charges 7 and 8 libelled two
incidents of rape. According to the trial judge's report to the Parole Board, the first involved
the applicant seeking to placate the complainer, who had found compromising messages on
his phone. Although she did not wish to engage in intimacy, the applicant pulled down her
trousers and raped her. Charge 8 involved the couple having consensual sex when they
were disturbed by the crying of their infant. The complainer attempted to go to his
assistance, but the applicant would not permit her to do so without completing intercourse
in the absence of her consent. Charge 9 was an assault of a bizarre nature, involving
masturbating on the complainer's feet. The applicant was convicted of these three charges
by majority.
[3]
Charges 14 and 16 involved rapes of the other complainer, CD, in October and
November 2017. The first of these involved the complainer having been so intoxicated that
she could not consent to intercourse. Her memory was of waking up naked in the
applicant's bedroom. Intercourse had occurred while the complainer had been asleep or
otherwise incapable of consent. The second incident occurred perhaps a few weeks later, by
which time she seems to have been prepared to overlook what had happened previously
and to continue in some form of relationship with the applicant. An argument arose about
the content of her social media exchanges. The applicant became violent, pushed her onto a
3
bed, pinned her down and raped her. The applicant was convicted of these charges by
majority. He was acquitted of the remaining charge 15, which was of attempted rape of CD.
[4]
In order to convict on the rape charges, the jury required to find mutual
corroboration in the testimony of both complainers.
The procedure
[5]
The procedure was lengthy. The applicant was indicted to a Preliminary Hearing on
21 October 2019. A trial diet had originally been scheduled for 30 March 2020, but Covid
intervened. A further PH was held on 5 November 2020. It was not until Wednesday
24 February 2021 that the case called for trial. At that diet, defence counsel was Mr M.
According to the applicant, as early as August 2020, he had provided his agents with 369
pages of Facebook entries, some of which were said to suggest that at least some sexual
activity with CD in October 2017 had been consensual. The applicant's defence on charge 14
was that the sexual activity had been consensual, although he maintained that the incident
libelled in charge 16 had not happened. Mr M declined to advise the lodging of the
Facebook material as he did not intend to put it to CD. Exactly why he took that view is
unknown, as he has not been asked about it, but there are a number of possible
explanations. His instructing agent told the applicant that it was not possible to link the
Facebook material to CD. This may have been because the exchange was with a person
using a different name, although it is reasonably clear from her name being used by the
applicant that it was with the complainer. Again according to the applicant, at the trial diet
on 25 February, he withdrew the instructions to his agents and counsel because of their
approach to the Facebook material. This was after the jury had been balloted.
4
[6]
Another agent was instructed and new counsel, Mr McK, picked up the reins. The
evidence commenced on Tuesday 2 March 2021. No application to lodge the Facebook
material was made. Other than certain pages which the Crown had already lodged, it was
not used in cross or spoken to by the applicant. Mr McK was unaware of the material
because, according to the new agents as reported by the applicant, it had not been supplied
by the old to the new agents.
[7]
The jury returned their verdicts on 8 March. At the sentencing diet on 8 April,
Mr McK's instructions were withdrawn because of his failure to use the Facebook material.
At a continued sentencing diet on 21 April 2021, the applicant was made the subject of an
extended sentence of 16 years, with 13 years as the custodial element.
The appeal process
[8]
A notice of intention to appeal was lodged timeously. The Note of Appeal was due
by 18 June 2021. Meantime, a solicitor advocate (Mr P) had been instructed to provide an
opinion. He did so on 14 June. The opinion is a lengthy document, but the part relating to
the Facebook messages is in short compass. Mr P expressed the view that, even with the
new messages, Mr M would not have changed his mind about the admissibility of the
material. Mr P carried out his own evaluation of the messages. His view was that they
would not have made a material difference to the case. Some of them might have been
admissible, but no miscarriage of justice could be established. The messages could have
been potentially detrimental to the defence case, although the applicant maintains that Mr P
misunderstood who had sent particular communications.
5
[9]
In the absence of a Note of Appeal, the appeal was deemed abandoned on 25 June
2021. The complainers, who had been somewhat anxious, were told that this is what had
occurred.
[10]
On 15 March 2023, the applicant sought an extension of time. His application
explains that for a period of almost a year, from June 2021 until May 2022, another agent
(Ms H) had been instructed. In due course, she said that senior counsel (unknown) had not
been able to assist and junior counsel had died. Another junior had provided an opinion to
the effect that there was no stateable ground of appeal.
[11]
In May 2022, the applicant's family contacted their MSP, who suggested instructing
the applicant's current agents, Messrs Moir & Sweeney. It took until November 2022 to
obtain the papers from Ms H. Matters did not progress with junior counsel until January
2023, when senior counsel (Mr Mackintosh) was instructed. There were various
communings until 13 March 2023 when the extension of time application and draft grounds
of appeal were prepared and lodged.
The Facebook entries
[12]
The Facebook entries consist of exchanges between the applicant and "LKS ...", who,
as already noted, appears to be the complainer CD. They start on 16 October. They mostly
contain harmless streams of consciousness interspersed with multiple expletives and sundry
vulgarities. At page 41 there is an exchange occurring on 23 October. This starts with the
applicant explaining that his phone had run out of charge on the previous night and he had
left it at home in the morning. There is a later reference to the complainer posting a video of
the applicant and mention of what seems to be a dead cat. The applicant said that he did not
know that the complainer was recording him. This then follows:
6
"COMP
Hahaaaaa its nae that bad tho was a good laugh xxxxxxx
APP
Aye I know it was good I liked it anyway and the sex was amazing lol
I'm lucky I managed to do anything tbh xxxxxxxxx
COMP
Hahaaa we had far to much sex ur a horny devil lol xxxxxxxxx
APP
I honestly couldu f****d
1
you for hours and I'm not joking haha easy
Xxxxxxxxx
COMP
Hahaaaaaa xxxxxxxx".
[13]
The chat on 23 October continued (p 63) as follows:
"APP
Do you even like me lol xxxxxxxx
COMP
Yeh trust me im not wasting ur time ... Yeh I do from first
impressions a was sound u was a bit full on wit the kissing n sex but if
I didn't want it I would just have left !! ...
APP
... F**k sake was it? Sorry I can be a very passionate person ... tbh I
didn't mean to stick it in you yet it just sort of happened ... ok well
that's good to know and I'm sorry if it was too full on lol ... if you said
no I would have stopped it? Xxxxxxxxx ..."
Moving on to 24 October, the exchanges refer to a third party who had a relationship with
the complainer. The applicant said that he had messaged him as follows (p 79):
"I f****you bird lol
Ahahahahaha
Stop greeting ya fanny n man the f**k up! She want ti be with me nae you look at
yourself".
The complainer replies:
"Hahaaaaa f**k him I want get know u now xxxxxx
Had more sex with u in one nighy than with him since June [emojis] xxxxx".
[14]
So the romance continued into November. On 15 November the following occurs
(p 252):
"APP
Your needing a good f*****g!!!!! By me [devil emoji] ...
COMP
[laughing emojis] no your just a fanny that can't type hahaaa xxxxxxx
1
The expletives have been redacted by the court.
7
APP
Your getting it next time I see you madam! Xxxxxxx
COMP
Not gonna lie not gonna complain hahahaaa xxxxxxxdd
APP
Its not gonna be nice lol your not meant to like it! ...
COMP
Well that's not very nice then!!! ...
APP
Your bums getting raped next time bby [emojis] hahahahaha!!!
COMP
Hahahaaa u can try it aint happening sex was good enough as it was
hahaha [emojis] xxxxxxxx
APP
No bums needed yet you right its been ace! You got such a sexy body
[C] your almost perfect [emojis] XXXXXXXXXX
COMP
Aw thank you!!! So are u your so fit and sexy and great company."
Submissions
Applicant
[15]
The ground of appeal is defective representation by the original defence agents in
relation to the handling of the Facebook material. The applicant maintains that some of the
messages amount to previous inconsistent statements which, if they had been put to CD,
would have caused the jury to doubt her credibility and reliability on her level of
intoxication and lack of consent in respect of charge 14. First, the original agents had
incorrectly concluded that it was not possible to identify CD as one of the persons sending
the messages. This was clearly wrong. Secondly, they had not passed on the complete
record of messages to the new agents. That meant that the applicant's defence "was not
put". Although this is not in the draft grounds, it was also argued that Mr M ought to have
used the messages.
[16]
The Crown opposed the application. Due regard had to be made to the principles of
finality and certainty (Toal v HM Advocate 2012 SCCR 735 at para [108]). A reasonable
explanation was a prerequisite for the court in determining where the interests of justice lay
(Graham v HM Advocate [2013] HCJAC 149 at para [9]). There had been significant periods of
8
inaction after the appeal had been deemed to be abandoned in June 2021. Although some
messages may have been advantageous to the defence, others were not. The most difficult
issue concerned admissibility. So far as they evidenced a general consensual relationship,
the messages were collateral and inadmissible (CH v HM Advocate 2020 SCCR 410). Any
messages suggesting that CD would have welcomed sexual intercourse in the future would
also have been inadmissible (GW v HM Advocate 2019 JC 109 at para [27]). It was difficult to
identify any messages specifically relating to the incidents libelled. The messages, in so far
as bearing upon credibility and reliability, would have been inadmissible in terms of
section 274(1)(c) of the 1995 Act as "other behaviour" not occurring immediately before or
after the events libelled. The prospects of a successful section 275 application would have
been low. It was understandable why Mr M, looking at matters in the round, had concluded
that it should not be used.
The Judge at First Instance
[17]
The judge at first instance reasoned that:
"The application to extend the time for lodging a Note of Appeal is beset by a
number of substantial and ... ultimately overwhelming difficulties. Obviously, it
comes very late, some two years after the conclusion of the trial. In itself, that is a
powerful factor for disallowing a late appeal. The principle of finality in criminal
proceedings is one of cardinal importance.
There are further difficulties for the applicant. Fundamental to the proposed
appeal is the proposition that the small pieces of evidence now said to be critical
would have been admissible at the trial. I consider this to be doubtful. The messages
appear to have been created in the course of a continuing or developing relationship
and it is far from clear what conduct between the applicant and the [complainer]
they were referring to ... the whole question of what the passages in the messages
were truly referring to is clouded by uncertainty.
At least some parts of the messages are likely to have been considered as
collateral to the real issues in the case and simply inadmissible for that reason; for
example there is reference to an ongoing sexual relationship. ... other aspects are
likely to have required an application under section 275; for example the reference by
9
the applicant to raping the [complainer] anally `next time'. In so far as the messages
might be read as suggesting that the victim consented to sex on other occasions ... a
section 275 application would have had to be made. I consider it unlikely that any
such application would have been granted. The reality is that the issues surrounding
the admissibility of the messages are speculative and impossible to address with any
reasonable degree of certainty so long after the trial.
A further substantial difficulty is that there is no detailed information as to
whether ... counsel who conducted the trial would have chosen to try to introduce
the messages into the evidence. ...
Any application under section 275 would by the stage of the trial have been
late. It is entirely speculative as to whether it would have been or even might have
been granted.
It is clear from the judge's charge that the applicant's defence of consent was
fairly and squarely put before the jury and that the credibility of the victim was
challenged. The applicant gave evidence. The jury must have rejected his account.
...
Overall, the messages ... are ... of marginal significance in the context of the
issues that arose at the trial. It is impossible to conclude that even if they had been
used at the trial the outcome would have been different.
The application is fatally undermined by the very lengthy periods of delay
which have occurred since the conclusion of the trial. ... Between June 2021 and
November 2022 no substantial progress ... was made. ... the only reasonable
conclusion that can be drawn is that the proposed appeal has not been progressed
with reasonable speed.
Looking at the totality of the circumstances ... the application falls well short
of meeting the test of exceptionality. It comes far too late. The proposed grounds of
appeal are unconvincing. An appeal based on defective representation would be
likely to fail."
[18]
Since then Mr McK has produced a Note, agreeing that the admissibility of the
messages was speculative so long after the trial. Some of the messages could be
characterised as prior inconsistent statements. If he had had access to them, he would have
sought to lodge some of the pages. Establishing special cause for lodging this material late
would have been problematic.
10
Decision
[19]
The applicant requires to demonstrate exceptional circumstances before the court
will entertain a late appeal. Such circumstances must involve, first, a consideration of the
level of tardiness when set against the generous statutory time limit, within which to lodge a
Note of Appeal, of eight weeks from the lodging of the notice of intention. In a case such as
this, where there was a deferral for sentence, the convicted person will have at least three
months from the jury's verdict in which to consider and frame the Note.
[20]
There are good reasons for imposing time limits in terms of finality and certainty as
integral parts of the justice system. The expeditious disposal of appeals is in the interests
not only of appellants, but also victims of crime and the public in general (Toal v HM
Advocate 2012 SCCR 735, LJC (Gill) at para [108]). When the complainers in this case were
told of the deemed abandonment of the appeal, they ought to be able to rely on that
statement other than, as the statute says, in exceptional circumstances.
[21]
As the judge at first instance observed, the fact that the application comes some two
years after the jury's verdict is in itself a powerful factor pointing towards refusal. The
applicant has had several changes of agents and counsel, but this does not provide him with
some form of advantage. Prior to the expiry of the period for lodging a Note of Appeal in
June 2021, the applicant had received an opinion from a solicitor advocate advising that the
Facebook material, even if admissible, did not demonstrate a miscarriage of justice.
Thereafter, nothing concrete happened until May 2022 when the applicant was directed to
Messrs Moir & Sweeney. Again nothing occurred until Mr Mackintosh received the papers
in January 2023. Given these significant delays, the applicant would have to present a very
strong case on the substantial merits before leave to appeal would be given. This is what the
applicant submitted; at least to the extent of showing that the Facebook material would have
11
been likely to have affected the jury's view on CD's credibility or reliability and hence,
because of the necessity to find mutual corroboration, on all of the jury's verdicts on the rape
charges.
[22]
Accepting that the Facebook material did record exchanges between the applicant
and CD and had been given to his law agents in August 2020, the next question becomes one
of whether the decision of the applicant's counsel and/or agent not to lodge or deploy the
material in cross amounted to defective representation. The test is a high one. The
circumstances in which the conduct of a defence will constitute defective representation are
narrowly defined. They must have led to a miscarriage of justice; that is, deprived the
accused of a fair trial. That occurs only when the conduct was such that the accused's
defence was not presented to the court. That can happen when counsel acts contrary to his
instructions on what the defence is or because his defence was not presented to the court
(Guthrie v HM Advocate 2022 JC 201, LJG (Carloway) delivering the opinion of the court, at
para [39]). An appeal could not succeed where all that was said is that the defence would
have had a better prospect of success if a certain line of evidence or a difference strategy had
been pursued (DS v HM Advocate 2008 SCCR 929, Lord Carloway, delivering the opinion of
the court, at para [43]).
[23]
The critical time in relation to the potential use of the Facebook material was (at the
latest) the Preliminary Hearing on 5 November 2020. Although the applicant sought to
categorise the material as consisting of prior inconsistent statements (see DS v HM Advocate
2007 SC (PC) 1, Lord Hope at para {46], Lord Rodger at para [76], cf CJM v HM Advocate
2013 SCCR 215, LJC (Carloway) at para [45]), much of what is contained in the material would
have required an application under section 275 of the 1975 Act in advance of the PH. In any
event, the material ought to have been lodged before the PH (1995 Act, s 78(4)(a)(ii)). The
12
court may have allowed such applications to be lodged late, but it is highly unlikely to have
allowed this mass of material to be lodged at the trial diet. That would almost inevitably
have led to an application to adjourn the diet; a matter which the court is unlikely to have
countenanced.
[24]
One question is whether Mr M, or his instructing agents, can be faulted in not
lodging the Facebook material in the sense that no competent counsel or agents could have
adopted that course. The answer is firmly in the negative. It was a matter for counsel's
professional judgement whether to lodge or use the material. No doubt some counsel
would have attempted to use it, but others would have taken a more cautious view. First, it
is not at all clear that the material relates to the particular October incident to which the
complainer spoke. Secondly, whether the complainer was accepting in her messages that
the sexual intercourse was consensual is dubious. Thirdly, from what the applicant said in
his messages, he may have been accepting that it was not consensual (eg "I didn't mean to
stick it in you yet it just sort of happened ... I'm sorry if it was too full on ..."). Fourthly, the
tone and content of the conversation may not have reflected well on the complainer but it
does the same in relation to the applicant. The reference to anal rape would have been
unlikely to have assisted his cause.
[25]
It may be that the applicant's original agent was at fault in not passing on a complete
record of the Facebook messages. However, the court is not, for the reasons given,
convinced that this amounted to defective representation resulting in a miscarriage of
justice. The applicant's case was put to the jury. The complainers' testimony was
challenged in cross-examination. The applicant gave evidence in support of his defence.
The use of the Facebook material was fraught with danger even if the trial judge could have
been persuaded to admit the material at such a late stage in the process.
13
[26]
The application for an extension of time in which to lodge a Note of Appeal is
refused.
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