Avoiding time limits in criminal appeals

The decision in Kelly v HMA [2010] HCJAC 20 is not of itself of much import, but there are interesting comments from the Court of Criminal Appeal on the process whereby individuals are applying ot the Scottish Criminal Cases Review Commission, having previously failed to meet statutory time limits for appeals, or to apply for extensions to those limits.

The court notes at paras [14] and [15],

"We would only add that this case appears to give rise to questions similar to those raised by the court in Hunt v Aitken 2008 SCCR 919 following a referral by the Commission. In that case an appeal by way of stated case was deemed abandoned by reason of the appellant's failure to comply with certain statutory requirements, and an application by him to the court for further time within which to comply was refused. Notwithstanding this the Commission referred the matter to the court, which heard an appeal presented by way of bill of suspension. Reflecting on its statutory discretion to allow further time, the court observed that the "court's exercise of its discretion, in the interests of justice, is not dictated by an assessment of the merits of any ground of appeal", and further that the interests of justice were "not well served by an approach which too readily excuses failures to comply with the statutory requirements." The court went on to say:

"(5) Against that background, the question of interest to the court was whether, in a case where the statutory requirements had not been complied with and the court had refused to allow further time, those statutory provisions could be circumvented, and effectively set at nought, by means of an application to the Commission and the subsequent referral to the court, or whether (and if so, how) the appellant's failure to comply with those statutory provisions should be taken into account: for example, by the Commission (in the exercise of its discretion to refer under Section 194B, or its consideration under Section 194C of whether a miscarriage of justice might have occurred, or of whether it was in the interest of justice that a reference should be made), or by the court (in its consideration of whether there had been a miscarriage of justice)."

[15] There are a number of obvious differences in the present case, perhaps the most significant of which is that at no stage did the appellant seek to appeal against his sentence or seek an extension of time within which to do so. But the effect of the referral by the Commission is that this court is bound to consider the appeal regardless of what it might have done if an application for an extension of time had been made, and by virtue of the Act of Adjournal (Criminal Procedure) Rules 1996 (Rule 19B.1(3)) leave to appeal is treated as having been granted without the need for any sifting exercise. Although in terms of Section 194B(1) of the Criminal Procedure (Scotland) Act 1995 it is, of course, competent for the Commission to refer a case even where there has been no appeal, the court understands that the Commission not infrequently requires applicants to apply for leave to appeal late before any application is considered. For whatever reason this was not done in the present case. It is, we consider, unfortunate, against the background of Hunt v Aitken, that it is not made clear in the Statement why this was not done, or whether any assessment was made of whether there was good reason for the appellant not appealing timeously or seeking an extension of time, and if so whether considerations of that kind played any part in the decision to refer, in particular the decision that it was, in the view of the Commission, in the interests of justice to do so. Although the fact that an appellant has failed to observe a statutory time bar, or failed to seek an appropriate extension, does not of itself necessarily mean that there has not been a miscarriage of justice, or that it is not in the interests of justice for the matter to be referred to the court, it ought, on the face of it, to be a relevant (perhaps highly relevant) factor, at least in relation to the latter consideration. As in Hunt v Aitken, however, there is a need to proceed with expedition in this case and the court was not favoured with submissions on these questions, which in an appropriate case would benefit from full discussion."