THE COURT OF APPEAL

JUDGMENT (ex tempore) of the Court delivered on the 5th day of February 2019 by Ms. Justice Baker

1. This is an application by Mr. Black for an extension of time within which to lodge a notice of appeal in respect of sentences imposed on him on the 6th December 2017 by Judge Martin Nolan. The sentences amounted to four and a half years deriving from one sentence of two and a half years and a further two years’ consecutive in respect of two robberies and a further two years’ concurrent for possession of drugs for sale or supply.

2. The explanation giving by Mr. Black for why he did not lodge the appeal on time was that there was a confusion between him and his solicitors. He says that he expressed a desire to appeal the sentence immediately upon the imposition of the sentence by the trial judge. He says he thought his lawyers had lodged the appeal and he says his solicitors thought that he had done so through a system which is available in the prison whereby a prisoner may lodge an appeal against sentence or, I suppose, against conviction, directly through the prison.

3. He did make an attempt to lodge papers towards the end of July but those papers were not in order and, in fact, the proper papers were not lodged until October 2018. It would be correct in the circumstances having regard to the fact that documentation was lodged on the 27th July 2018 to test the case as if the papers had been lodged on that date because it probably is fair to say that the intervention of the long vacation might have made it impossible for Mr. Black to have his lawyers get the proofs in order at that stage.

4. I note as well for the purposes of completeness that Mr. Black entered a guilty plea.

5. The test with regard to an application for an extension of time has been well established in the authorities and as long ago as 1982 in the decision of DPP v. Eamonn Kelly it was made clear that the test which applies to civil cases as explained in the case of Eire Continental is not the appropriate test in a criminal case and that the appropriate manner by which a judge is to determine an application for an extension of time is to look at all stages as to where the interests of justice lie.

6. Those interest of justice may amount to a number of relevant factors, some of which have been explained in later authorities. Certain factors are important. One factor that is important in this case, and it is only co-incidental that it is a factor explained in Eire Continental, but it is found in some of the later judgments, is that Mr. Black did express an intention to appeal immediately. I accept the argument made by Mr. Collins that if that was so it is hard to understand how his solicitors would not have lodged the appeal immediately.

7. But for the purposes of the interests of justice it seems to me that I must conclude:

(a) that Mr. Black did come to a decision to appeal immediately, and

(b) that I must take his evidence at its height, namely that he thought his solicitors would do so as he had instructed them to do so and they thought he would do so through the system available in prison.

9. Mr. Black has engaged with at least one question which he says is a matter that ought to have been considered by the trial judge and is a basis on which he would appeal the sentence, namely that Judge Nolan failed to have sufficient regard to the requirement that his sentence be back dated to the time when he was first in custody which was in February 2017.

10. It seems to me that the fact that the period in question is about ten months is a significant fact, and indeed if one was to apply a test of proportionality in terms of the amount of the sentence of four and a half years, those months are very significant and the test of proportionality would suggest that there would have to be some regard had to that issue.

11. Others matters that go into the mix are the prejudice both to the system, to the fact that the criminal justice system ought not to be over burdened with unmeritorious appeals but also to the fact that there were two robberies in question and the victims will now have to be notified of the fact that a sentence appeal is intended by Mr. Black. That is a factor that weighs against Mr. Black and it is a factor which is not insignificant in the circumstances.

12. Taking all of the factors into account it seems to me that this is a case where Mr. Black should get an opportunity to lodge a notice of appeal notwithstanding that he is late. He was seven months late. That is not an insignificant time. He did however express an intention to appeal within an hour or less of the imposition of the sentence and he does have at least arguably a basis on which he might argue to an appellate court that there was a miscalculation, taking it at its broadest, by the trial judge in a consideration of the sentence.

13. A number of factors did however occur to us in the course of hearing this application as follows. I accept what Mr. Collins says that Mr. Black’s explanation for the delay was that he thought his solicitors had lodged the papers and his solicitors told him that they thought he had done so. If that is an explanation given by an applicant seeking an extension of time it seems to us that in general Mr. Collins is correct that the affidavit of the solicitor ought to be furnished as part of the proofs for the hearing of an application where an explanation like that is given.

14. Another matter that concerns us, and was raised by Mr. Collins in the course of his submissions, is that it may be that the sentencing judge did, in fact, have regard to the question of back dating. We do not know that. Indeed, neither of the counsel instructed here knows that and in those circumstances it would seem that it would be at least desirable, and perhaps more than desirable, and perhaps mandatory in many cases that some engagement is had by one or other side as to what precisely was said at the sentencing hearing. We appreciate that counsel who were instructed to move and oppose this application today were not the counsel in the case. That may be so but in most cases the solicitors are the solicitors who were formerly in the case or at the very least the DPP’s office or the Chief State Solicitors office and the clients themselves would be in a position to at least outline the circumstances.

15. Those are factors which it seems to us ought to be taken into account in general in the preparation of these papers and I would say that the documentation of Mr. Black was somewhat too generic and vague to meet those exacting standards.

16. However, they are not the standards which seems to have been applied throughout the case law but are factors which having considered it together as a panel would be factors that would be fed into our thinking in the future.

17. So, for the reason that those were not factors which were apparent in the approach of some earlier judgments that we were referred to, we will not impose those restrictions on Mr. Black and we will grant him an extension of time.