APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Reed Lord Emslie	[2011] HCJAC 39 Appeal No: XC588/08 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPLICATION by DAVID LILBURN Applicant; for Leave to amend the grounds of appeal _______

Appellant: Macara, Q.C., Solicitor; Beltrami & Co., Glasgow

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

1 April 2011

[1] The applicant was on 18 July 2008 convicted of the murder of his wife, his contention that at the material time his responsibility was diminished having been rejected by the jury. He was sentenced on 5 September 2008 to imprisonment for life, a punishment part of 19 years being specified. On 23 January 2009 a note of appeal against conviction and sentence was lodged. In respect of conviction, four grounds (identified as grounds 1(a) - (d) inclusive) were advanced. Leave to appeal was on 17 March 2009 granted but, in so far as concerned conviction, only in respect of ground 1(b) (the incidence of the onus of proof where diminished responsibility is raised). After procedure under section 107(8) of the Criminal Procedure (Scotland) Act 1995, leave to appeal was also granted in respect of ground 1(c) (the judge's directions in relation to diminished responsibility). In June 2009 the applicant's legal advisers intimated that the appeal was ready to proceed. A diet of hearing in March 2010 was discharged as the applicant was not then fit to attend. By May he was fit and a diet was arranged for August. On 12 August 2010 the court refused ground of appeal 1(c) but, on the application of the applicant, remitted ground 1(b) to a court of five judges. Written submissions were directed to be lodged. The applicant's written submission was lodged on 9 September. At a procedural hearing on 20 October a full hearing of two days duration was appointed before five judges. The dates assigned for that hearing were 22 and 23 March 2011.

[2] To accommodate another professional commitment of the applicant's then counsel the court did not sit on 22 March but used that day for pre-reading the written submissions and the authorities referred to therein. The hearing proceeded on 23 March. At the very close of his submissions counsel adverted to the possibility that there might be additional grounds of appeal. On being pressed by the court on this matter he tendered a document entitled "Note of Appeal" which set forth two proposed additional grounds of appeal, one directed to fresh (medical) evidence on diminished responsibility and the other relating to the use made by the prosecutor of responses which the applicant had made when questioned by the police in the absence of a solicitor. On that day the court refused to receive the tendered document but indicated that before giving its ruling on ground 1(b), on which it was to make avizandum, it would afford to the applicant an opportunity to address the court on whether his grounds of appeal should be allowed to be amended to incorporate the proposed additional grounds.

[3] Today we afforded that opportunity and refused the application, indicating that we would give our reasons later. That we now do. We should add that following the hearing on 23 March the applicant dispensed with the services of his then counsel. He was today represented by Mr Macara, Q.C., Solicitor Advocate.

[4] Mr Macara had earlier been instructed in a different capacity. In February 2009 he had been approached by a relative of the applicant and in due course visited the applicant who was then held in Shotts Prison. The applicant expressed concern to him as to the adequacy of the psychiatric and psychological information which the solicitors who had acted for him at his trial had secured to lay before the jury on the matter of diminished responsibility. These solicitors continued to act for him in his appeal. In July 2009 the applicant, who had received some psychiatric care while in Shotts Prison, was transferred to the State Hospital, Carstairs. On the applicant's instructions Mr Macara instructed a psychiatric report from Dr William Black, consultant psychiatrist at the State Hospital. A report dated 16 July 2010 was obtained from Dr Black. Meantime Mr Macara had obtained a psychiatric report dated 28 February 2010 from Dr Sharat Shetty, consultant forensic psychiatrist. Each of these reports suggested that, contrary to the conclusions of the jury based on the evidence it had heard - which evidence had included testimony from medical experts who had seen or treated him close in time to the offence - there were grounds for concluding that the applicant's mental responsibility at the time of the offence was diminished. On 5 March and 27 August 2010 respectively Mr Macara sent to the solicitors acting for the applicant copies of Dr Shetty's and Dr Black's reports. These solicitors are believed also to have had a psychological report dated 23 July 2010 from Dr Lynda Todd, consultant clinical psychologist, which also raised issues of the mental state of the applicant at the time of the offence. Each of these three reports is referred to and relied on in the proposed additional grounds of appeal.

[5] Despite the dates of these reports and their availability to the advisers of the applicant, the court was not told of their existence or terms until they were tendered on 23 March 2011 with the proposed additional grounds of appeal. Neither the counsel referred to, nor the solicitors who had been acting for the applicant - but whose services had also been dispensed with by him - were present to give any explanation for what, on its face, would seem to involve a serious dereliction of professional duty. Until they respectively have an opportunity of explaining themselves, it is inappropriate to reach any concluded view on their personal conduct. But so far as concerns the applicant, it was necessary to proceed on the basis of the information before us.

[6] Section 109(1) of the 1995 Act provides that where a person desires to appeal under section 106(a) or (f) of the Act (an appeal against conviction only or against both conviction and sentence) he shall within two weeks of the final determination of the proceedings (effectively, when sentence is pronounced) lodge with the Clerk of Justiciary written intimation of intention to appeal. Section 110(1)(a) provides that within eight weeks of lodging intimation of intention to appeal the convicted person may lodge a written note of appeal, which note is to contain a full statement of all the grounds of appeal (section 110(3)(b)). Except with the leave of the court on cause shown it is not competent for an appellant to found any aspect of his appeal on a ground not contained in his note of appeal (section 110(4)).

[7] There will be occasions (particularly where fresh evidence is sought to be relied on) where it will not be practicable to adhere to the timetable specified by sections 109(1) and 110(1). But it is essential to the due administration of justice that any application to amend grounds of appeal be presented as soon as any proper basis for any such application becomes available. Expeditious disposal of appeals is in the interests of appellants, of victims (including the families of deceased persons) and of the public generally. Disruption of the due processing of appeals tends to defeat the efforts of the court to ensure that, within its available resources, grounds of appeal for which leave has been granted are heard and disposed of without undue delay. Concerns about the lateness with which applications to amend grounds of appeal were advanced have been expressed by this court on more than one occasion recently (Ahmad v HM Advocate [2011] HCJAC 16; Strachan v HM Advocate [2011] HCJAC 28). Reference is also made to Johnston v HM Advocate 2009 SCCR 518, especially at para [26].

[8] On the face of the information before us, the present case appears to show a particularly outrageous disregard for the efficient disposal of appellate business. It seems that the report from Dr Shetty was in the hands of the former solicitors significantly prior to the hearing on 12 August 2010. It is probable that Dr Todd's report was also available long before that date. Dr Black's report was received shortly thereafter but in advance of the written submission for the applicant being lodged on 9 September and of the procedural hearing on 20 October. On 12 August the applicant's counsel had invited the court to refer the issue raised by ground of appeal 1(b) to an enlarged court. That inevitably involved the deployment of five judges for the hearing, with consequential diversion of judicial resources from other cases. Yet, when that application was made, and certainly by late August when Dr Black's report was received, it must have been apparent to the applicant's legal advisers that an evidential foundation was now available for seeking leave to introduce a ground of appeal which, if admitted and successfully presented, would have obviated the need for a five judge hearing. No steps were, so far as appears, taken prior to the last few minutes of the applicant's submission on 23 March 2011 to alert the court to the circumstance that there were additional matters which the applicant wished to lay before it. Correspondence produced by Mr Macara suggests that the applicant had for some months been pressing his legal advisers to present a ground of appeal based on the psychiatric evidence obtained in 2010. No explanation is tendered for why these advisers did not act earlier. Nor is there any explanation for the failure to advance earlier the proposed ground in relation to the applicant's responses at police interview. This ground is in the circumstances closely related to the fresh evidence ground, since it concerns the use by the prosecutor of these answers to challenge the applicant in the witness box about his mental state at the time of the offence. The legal basis for challenging the use of these answers was available not later than the decision of the Supreme Court in Cadder v HM Advocate [2010] SCCR 951, issued in October 2010. Many appeals involving such a challenge were presented in anticipation of that decision.

[9] There appears to be a growing tendency, in some quarters, to extend the time taken to dispose of appeals by seeking to introduce at a late stage proposed additional grounds of appeal which might have been advanced much earlier. Such a tendency is inimical to the due, fair and efficient disposal of appeals and must be firmly discouraged.

[10] For the foregoing reasons we refused the application to amend the grounds of appeal as proposed.