APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Emslie Lord Osborne	[2011] HCJAC 114 Appeal No: XC137/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST CONVICTION by GUO XIN WANG Appellant; against THE LORD ADVOCATE Respondent: (Section 110(4) Application) _______

Appellant: Shead; Drummond Miller, Edinburgh

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

7 October 2011

[1] The appellant was on 25 January 2011 convicted after trial in the sheriff court at Dunfermline of being concerned in the supplying of cannabis at a rural location in the vicinity of Kincardine. He sought and obtained leave to appeal on the single ground that there was insufficient evidence in law to allow of such conviction. Intimation that leave had been granted was made on 12 July. On 24 August the appellant lodged a document detailing two proposed additional grounds of appeal, both criticising the directions given by the sheriff to the jury. His application to amend the grounds of appeal by adding these grounds was heard by a bench of three judges on 2 September. The court refused the application to amend holding that no cause had been shown to excuse the late tendering of the proposed additional grounds.

[2] When the substantive hearing of the appeal, together with that of a co-appellant who had lodged a similar single ground of appeal, opened this morning Mr Shead for the present appellant invited the court to allow these grounds now to be advanced. Apart from an additional aspect which is of no materiality, the basis upon which this application was made - that new counsel had been instructed and had taken a fresh view of the case - was the same as that upon which the application to amend had been made and refused on 2 September.

[3] We refused the application, stating that our reasons would be issued in due course. They are these.

[4] Section 110(4) of the Criminal Procedure (Scotland) Act 1995 provides:

"Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal."

The subsection does not limit the time at which such leave might be sought and granted. In an appropriate case it might be granted in the course of the substantive hearing of the appeal - for example, where some ground emerged in the course of the hearing which had not been, or could not have been, anticipated by the appellant or his advisers. The introduction of grounds of appeal late, and in particular on the day of the substantive hearing, is in general inimical to the efficient and fair administration of justice. It gives the Crown inadequate notice of the points to be met; it introduces the risk that the substantive hearing of the appeal may have to be adjourned - to obtain a report from the presiding judge or sheriff, to allow the appellant's case and argument to be amended or for other reasons - with delay in the disposal of the instant appeal (and potentially that of any co-appellant) and disruption to the orderly organisation of the business of the court. It may be that amendment of the note of appeal, with a remit for the purposes of reconsideration at leave stage of the proposed grounds, is the only practical option.

[5] Rule 15.15 of the Act of Adjournal (Criminal Procedure Rules) 1996 (as amended) provides:

"(1) On cause shown, the High Court may grant leave to an appellant to amend the grounds of appeal contained in the note of appeal."

[6] This is a similar power to that contained in section 110(4) - with the exception that this rule envisages amendment of the note of appeal while under section 110(4) leave can be granted without such amendment. The scheme of the 1995 Act is that a written note of appeal may be lodged by an appellant within eight weeks of the lodging of intimation of intention to appeal (section 110(1)(a)). This reasonably generous timescale should allow, in the ordinary case, ample opportunity for a full statement of the proposed grounds of appeal. That is what section 110(3)(b) envisages. As this court observed in Strachan v HM Advocate [2011] HCJAC 28 it should only be in exceptional cases that leave to amend ought to arise as an issue at all and thereafter be permitted (para [15]).

[7] Against that background it is wholly unsurprising that this court on 2 September refused leave to amend the grounds of appeal. What is surprising is that, that having been done, an attempt should be made this morning to invite the court to revisit the same matter on essentially the same grounds. There may be a question of competency - though the issue of granting leave to amend the grounds of appeal may technically be distinct from that of allowing the appellant to found on a ground not contained in the note of appeal. On the assumption that the court could in the circumstances entertain an application under section 110(4), it is plain that, where leave to amend to a like effect has earlier been refused, it should be only in the most exceptional of circumstances that the court might exercise its discretion in the appellant's favour. No such circumstances obtain here. All that Mr Shead was able to suggest was that, not having been trial counsel and having come into the case relatively recently, he had conceived the proposed additional grounds to be arguable and that, at the previous hearing, Crown counsel had not disputed that they were so. There was also a faint suggestion that the appellant was being denied his right of access to the court. There is no substance in either of these suggestions. The substitution of counsel, without more, cannot be a justification for departing from the statutory timetable. The appellant has full access to the court in respect of his timeously advanced grounds of appeal. It cannot be said that the proposed additional grounds are so manifestly well-founded that it would be a denial of justice to refuse to entertain them at this stage.

[8] This application was accordingly refused.