Report and Recommendations - Scottish Government

Late Appeals (solemn cases)8.1.24 Where an application for leave to appeal comes outwith the timescales set bystatute, there is a balance to be achieved. On the one hand, if an appeal clearlyhas merit and a refusal to allow an application for leave to be received latewould make a reference from the SCCRC inevitable 62 , the appeal should beallowed to proceed. On the other hand, if statutory timetables are to have anypurpose, a late applicant should be required to show greater cause than themere “arguability” of grounds needed for leave to appeal in timeousapplications 63 .8.1.25 Late appeals present substantial practical problems. The trial judge may havedifficulty reporting accurately on matters which occurred months, and perhapsyears, previously. The productions may have been returned to their owners ordestroyed. Other notes or papers may have gone missing.8.1.26 Late appeals undermine the principles of finality and certainty, which astatutory time table is designed to promote. Yet there is no test laid down inthe 1995 Act for allowing a late Notice or Note. It is not said that any cause orspecial cause is required 64 . In England and Wales, where the time limit forlodging an appeal is only twenty-eight days from the conviction 65 , there is alsono statutory guidance on the reasons required for a late appeal. However,there are dicta to the effect that “substantial” reasons must be advanced as to62 R v King (2000) Crim L R 83563 1995 Act s 107(1)(a)64 although there is authority to that effect under earlier similar legislation: Spence v HM Advocate1945 JC 59 following Cockerell v HM Advocate 1943 JC 6265 Criminal Appeal Act 1968 s 18345