APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway	[2012] HCJAC 58 XC145/12 NOTE by LORD CARLOWAY in EXTENSION OF TIME APPLICATION by SEAN CHARLES ROBERTS Applicant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: I.M. Paterson; Paterson Bell

Respondent: A. F. Stewart QC, AD; Crown Agent

21 March 2012

[1] On 6 April 2009, at Edinburgh Sheriff Court, the applicant was found guilty of two charges of wilful fire raising and one each of assault by threats and assault to severe injury. On 29 April he was given consecutive sentences totalling 45 months, backdated to 5 November 2008. He was released from those sentences some time ago.

[2] This application is for an extension of time in which to lodge a Notice of Intention to Appeal against his conviction on the second fire raising charge, which attracted a 15 month sentence. It is said that, at some point after conviction or sentence, the applicant's agents had only visited him once and that was after the two week period for an extension had expired. It is also said that, at a later stage, the applicant had instructed a different agent, who is no longer in practice, and had discussed the prospect of an appeal with him. The applicant maintains that he had always intended to present an appeal. He eventually instructed his present agent on 28 October 2011 and completed legal aid forms in the following month; legal aid being granted on 12 December. Thereafter, in January 2012, substantial quantities of paper were received from the trial agents, including the court minutes.

[3] The proposed ground of the appeal is a misdirection of the jury in respect of mutual corroboration. In particular, it is said that such a direction was an error because of insufficient connection between the two fire raising incidents. The time gap is about 5 months. The indictment reveals, however, that the first of the incidents occurred at Flat 13/5 Castleview House, the mode being by pushing lighted paper through the letter box. The second incident was at Flat1/2 Castleview House, by setting fire to the door.

[4] In determining this type of application, the court is concerned to know, first, whether there is an adequate explanation for not lodging an application timeously. In this case, it has been said, no doubt correctly, that the applicant is of low IQ, but, apart from that, there is essentially no explanation available. The applicant was represented by counsel and agents at the trial and again at the subsequent sentencing diet. It is not conceivable that he was not given some advice on the issue of an appeal. The application is silent on that aspect of the case. The court is, secondly, interested in the strength of the ground of appeal. Greater prospects of success than mere arguability must be demonstrated in respect of a late appeal and, the later the lodging of the appeal is attempted, the stronger these prospects must appear. In a case such as this, where the appeal is so late that the sentence has already been served, the application would have to demonstrate something approaching a probability of success were the ground to be advanced at an appeal hearing. The ground in this case does not appear to meet even the arguability test. This application is accordingly refused.

rfc