Report and Recommendations - Scottish Government

Late Appeals (solemn cases)8.1.12 An applicant can apply to the court, at any time, for an extension of either ofthe periods 35 for lodging a Notice of Intention to Appeal and a Note of Appealagainst conviction and/or sentence. This does not apply to appeals againstdecisions at preliminary hearings. There is no long stop provision beyondwhich no application for permission to lodge a late Notice or Note can bemade. Accordingly, an appellant can apply for an extension of time years, andin some cases many years, after conviction or sentence. This does happen. Itis of note in this context that the SCCRC will usually, quite correctly, bereluctant to deal with a case in which the applicant has failed to exhaust theappeal procedures.8.1.13 Where an application to lodge a Notice or Note late is made, there is nostatutory or other defined test that has to be satisfied. An overall “interests ofjustice” requirement ought to apply, balancing the need to remedymiscarriages of justice in individual cases with the wider need for finality andcertainty in the criminal process. However, in the recent past, there has beenconsiderable indulgence in this area in favour of tardy applicants 36 . This is incontrast to earlier decisions 37 suggesting that “special grounds” ought to bepresent 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 inthis area by providing that, in the case of an application to allow a late Notice35 ibid s 11136 Birrell v HM Advocate 1993 SCCR 812, LJG (Hope) at 81737 Spence v HM Advocate 1945 JC 59, LJ-C (Cooper) at 61, following Cockerell v HM Advocate 1943JC 69, LJG (Normand) at 63-64338