In this issue
Welcome
AG References and Double Jeopardy
Financial Criminal Appeals
Northern Ireland Case Summaries
Hong Kong Case Summaries
Caribbean Case Summary
Paul Taylor and Katy Thorne sworn in as Queen’s Counsel
Appeals against conviction - England and Wales
Appeals against conviction - England and Wales

By Paul Taylor 

Fresh appellate lawyers – renewed application for leave –

new grounds that were not considered by the Single Judge

 

R v James and others

[2018] EWCA Crim 285

These four otherwise unrelated applications for leave to appeal each involved lawyers, who did not represent the applicant at trial, lodging new Grounds of Appeal after refusal of the written application for leave to appeal by the single Judge.

The CACD expressed its concern that there has been a significant rise in the number of such applications. “The burden on the Criminal Appeal Office is considerable” and delayed consideration of meritorious applications. The Court “concluded that each of the four applications is totally unmeritorious and the 'fresh grounds' should not have been advanced.”

The CACD emphasised the power to make a loss of time direction.

This judgment was intended to provide a greater structure for applications advanced by 'fresh' lawyers instructed after the single judge's determination. “We hope that in the light of this judgment, 'fresh' lawyers will be in a better position to assess whether an application has sufficient merit for them to advise an application to renew.”

At paragraph 38 of the judgment the CACD stated that they had extracted “the following principles from the statutory provisions and the case law:

  1. As a general rule, all the Grounds of Appeal an applicant wishes to advance should be lodged with the Notice of Appeal/ Application; subject to their being perfected on receipt of transcripts from the Registrar.
  2. The filter mechanism provided by section 31 of the CAA 1968 (consideration of the application for leave by the single judge) is an important stage in the process and should not be 'bypassed' solely on the basis that lawyers instructed post-conviction would have done or argued things differently from the trial lawyers. Fresh Grounds advanced by fresh counsel must be particularly cogent.
  3. Once an application for leave has been considered by a single Judge, if the applicant wishes to advance fresh Grounds that have not in substance been considered by the single judge, they require the leave of the court. Applications to advance fresh Grounds must be accompanied by an application to "vary" the notice of appeal. If there is any doubt as to whether a Ground is 'fresh', an application to vary should be made.
  4. The advocate should address in writing the relevant factors which the full Court is likely to consider in determining whether to allow variation of the notice of appeal and an extension of time for the renewal if required.
  5. In deciding whether to vary the Grounds of Appeal, the full Court will take into account the following (non-exhaustive) list of issues:
  1. The extent of the delay in advancing the new ground/s.
  2. The reason for the delay in advancing the new ground/s.
  3. Whether the issues / facts giving rise to the new Grounds were known to the applicant's representative at the time he or she advised the applicant regarding any available Grounds of Appeal.
  4. The overriding objective (Crim PR 1.1) namely acquitting the innocent and convicting the guilty and dealing with the case efficiently and expeditiously
  5. The interests of justice.

 

  1. The application to vary would not require "exceptional leave" (by demonstrating substantial injustice) but the hurdle for the applicant is a high one. Counsel should remind themselves of the provisions of the PD. 39C.2 namely that "Advocates should not settle grounds unless they consider that they are properly arguable. Grounds should be carefully drafted." They should also bear very much in mind their duty to the court.

 

  1. Advocates should also remind themselves of the rules relating to time limits. Leave will not be given to renew out of time unless the applicant can persuade the court that very good reasons exist. If the application to renew out of time is accompanied by an application to vary the Grounds the hurdle is higher.

 

  1. For pragmatic reasons we suggest the application to vary should be considered by the full Court and not on the papers. An applicant would have a right to require a review of a decision not to vary if it were made by the Registrar or single Judge and a full Court hearing would in any event be required.

 

  1. Assuming that the applicant will have received advice and assistance on appeal from his trial advocate, who will have advised that no grounds exist on which to challenge the safety of the conviction or settled the original Grounds of Appeal in the notice of appeal, fresh counsel should in every case be required to comply with the duty of due diligence as explained in McCook [2014] EWCA Crim 734. Waiver will almost certainly be required. 

 

  1. Once the trial lawyers have responded, 'fresh counsel' should again consider with great care their duty to the court and whether the 'fresh grounds' should be advanced as properly arguable and particularly cogent.

 

  1. The Registrar should obtain, in advance of the full Court hearing, transcripts relevant to the new Grounds and (where required) a Respondents' Notice relating to the new Grounds.

 

  1. The Crim PR Committee may wish to consider formulating rules for the lodging of a Notice of Application to vary a notice of appeal.

 

  1. On any renewal the full Court when refusing an application to vary the notice of appeal has the power to make a loss of time order or order for costs in line with R v Gray and Others. By analogy with R v Kirk [2015] EWCA Crim 1764 (where the Court refused an extension of time) the Court has the power to order costs of obtaining the Respondent's Notice and or transcripts.

Commentary:

This is an important case for those involved with “second opinion appeals”. However, the extent that it actually amends existing practices is limited. The main changes are that applications to advance fresh Grounds not considered by the single judge “must be accompanied by an application to "vary" the notice of appeal”, and the application to vary is likely to be considered by the full Court and not on the papers. The other general principles emphasise the need to adhere to existing practices and procedures, and reflect the court’s concern that there are an increasing number of applications that fail to do so. The strength of the application together with the cogency of the grounds remain the central issues for the CACD.

It was recognised at the outset of the judgment that “We acknowledge that on occasions legitimate grounds have been identified by fresh lawyers that trial lawyers have missed and miscarriages of justice have been avoided.”

In so far as directions for loss of time [LOTD] are concerned, the CACD continues to encourage their use as a tool to combat the increase in wholly unmeritorious applications. However, the disproportionate nature of the periods ordered is a serious concern and there appears to be no correlation between the original sentence and the length of the LOTD. In this case all the applicants were directed to lose 60 days each, despite the sentences ranging between 32 months, 7 years and 8 years. In fact, in Robinson it appears that the CACD ordered him to lose 60 days despite having been released some months earlier. It is not clear what power (if any) the Court has to make such a direction, or how it would be enforced.

[In response to a query from the author, the Criminal Appeal Office responded: “Where the Registrar is aware that an applicant has been released, the court will be advised of that fact because any order for loss of time would be of no practical effect. However, the court could still make an order for costs in accordance with Kirk [2015] EWCA Crim 1764”.]

For an analysis of the CACD’s use of LOTD see my article in the Criminal Law Review.

https://www.doughtystreet.co.uk/documents/uploaded-documents/Grey.pdf

 

Writ of venire de novo – nullity – application to magistrates court decisions in CACD –

D was impersonated by another at trial

 

R v Bahbahani

[2018] EWCA Crim 95

In 2014 B was convicted at Ealing Magistrates' Court of two offences of being in breach of an enforcement notice under the Town and Country Planning Act 1990. Sentence, including the question of a confiscation order, was committed to the Crown Court.

In 2017 the Crown Court fined the applicant £2,000 and ordered him to pay £31,080 towards the prosecution costs. In addition he made a confiscation order in the sum of £4,310,311 under the Proceeds of Crime Act 2002 ["POCA"].  He imposed a sentence of eight years' imprisonment in default of payment of the confiscation order and in default of payment of the fine.

B sought leave to appeal against the sentence imposed and also to quash the conviction in the Magistrates' Court, on the following bases:

  1. His trial was a nullity and a writ of venire de novo awarding him a new trial on the basis that the proceedings in the Magistrates' Court were of no effect because he was impersonated at his trial. That impersonation was by an associate, to whom he had given a general authority to conduct legal proceedings on his behalf.  He says that he was unaware of the proceedings in the Magistrates' Court until after the conviction.  The proceedings were a nullity because of a failure to comply with the strict requirements of section 17 and 17A of the Magistrates' Courts Act 1980 ["the 1980 Act"] about conducting proceedings in the presence of the defendant;
  2. The sentence proceedings were an abuse of process once it became known that he had not personally appeared in the Magistrates' Court.  The recorder should have stayed them;
  3. In any event, the confiscation order made was wrong in principle.

The CACD considered the legal framework surrounding a writ of venire de novo and concluded that “Such power did not include a power to declare a summary trial a nullity, or quash a conviction recorded in such proceedings, and remit the matter for retrial.  Venire de novo was, and is, concerned only with trials on indictment, and with fundamental irregularities which render such a trial a nullity.”

The alternative abuse of process ground was rejected because B “was himself the cause of the very matters of which he complained. To the extent that the process was abused, it was by Mr Abdul-Jalil in a way which was initially endorsed by the applicant for his own advantage.”

The applicant also argued that the committal for sentence to the Crown Court was defective, thereby rendering the sentence and confiscation proceedings a nullity. It was submitted that the committal was "bad on its face" because the applicant was not present when the committal was made. The CACD stated that “In the absence of an appeal against conviction to the Crown Court, the proper and well-established course in circumstances such as alleged by the applicant is to challenge the conviction and committal for sentence in the High Court. The Crown Court had no jurisdiction to quash the committal; neither could it decline to proceed on the basis that the committal was bad on its face.”

The sentence appeal in this case is analysed by Richard Fisher QC.

Commentary:

Cases in which a writ of venire de novo are sought are rare. It seems that years can go by without a mention of the writ. However, only last month the CACD adjourned an application based on this remedy for full argument. See here

 

Procedure – application to CACD to re-open an appeal after final determination – non-disclosure

 

R v Gohil; R v Preko

[2018] EWCA Crim 140

 

G’s renewed applications for leave to appeal his convictions were dismissed. P’s appeal against conviction was dismissed. The defendants applied to reopen the final determinations of the full court in their cases.

The CACD reviewed the circumstances in which it had jurisdiction to reopen final determinations. There were two situations in which it could do so.

  1. First, in cases of nullity, strictly so-called and distinguished from mere irregularities.
  2. Where the principles of Taylor and another v Lawrence and another ([2002] 2 All ER 353) were applicable, namely where the necessary conditions were satisfied:
  1. the necessity to avoid real injustice;
  2. exceptional circumstances which made it appropriate to reopen the appeal; and
  3. the absence of any alternative effective remedy.

Material failures in disclosure were capable of constituting procedural errors. However, both in non-disclosure and fresh evidence cases, almost invariably, the availability of the CCRC would tell decisively against exercising the jurisdiction. Complaints as to non-disclosure and the emergence of fresh evidence following concluded proceedings might properly be viewed as paradigm cases for the CCRC, the more especially where investigation was required or would be beneficial.

See the commentary on Hockey [2017] EWCA Crim 742 regarding re-opening hearings:

http://doughty-street-chambers.newsweaver.com/Appeals/s63faf74x71

 

Appeal against conviction and AG Reference – order of applications – doli incapax –

standard of proof - retrial

 

 

R v AM

 

[2018] EWCA Crim 279

 

The CACD considered two applications. The Registrar referred an application for leave to appeal against conviction and the Solicitor General sought the leave of the court to refer the sentence imposed as unduly lenient. 

 

The offences involved historic sexual abuse allegedly committed over 50 years ago.

 

The grounds of appeal contended that the judge had failed to direct himself appropriately with regard to the issue of doli incapax and to withdrew the counts from the jury on the basis the prosecution had no evidence to rebut the presumption; he directed the jury inappropriately in relation to the standard of proof by introducing to the jury the concept of certainty.

The CACD considered the order in which they should consider the applications (appeal against conviction and AG reference). Whilst normally they would consider the AG reference first, in the unusual circumstances of this case they “decided that we were obliged to hear the appeal against conviction before the Reference.”

 

Whilst the complaint about the direction on standard of proof “Standing alone” would not have been sufficient to render the conviction unsafe, the cumulative effect of the grounds and, in particular, the fundamental doli incapax issue led to the convictions being quashed.

 

The CACD rejected the application for a retrial. It was not in the interests of justice:

  1. “The offences were allegedly committed over 50 years ago when the appellant was 11 or 12 living in a 'brutal and dysfunctional household'.
  2. The evidence that, if he did the acts, he knew what he was doing was seriously wrong was barely adequate. We are told that that position cannot now change.
  3. If we did order a retrial, this would be the third time the complainant would have to attend court to give evidence.
  4. Furthermore, there would be considerable (albeit not insuperable) difficulties in presenting the evidence on the three counts given the jury's acquittal on the other more serious counts.

 

If you have questions about any of these cases please do get in touch with Paul Taylor