Life in crime

The Court of Appeal recently heard five joined applications for leave to appeal against conviction in order to re-iterate the principles behind s 29 of the Criminal Appeal Act 1968. The judgment in the case of R v Brind [2008] EWCA Crim 93 is the result of that judicial consideration.

The single judge, in considering the matter under s 31 of the Criminal Appeals Act 1968 is now able to indicate whether in his or her view that appeal is one which is without merit on the appropriate form: 'Where that part of the form has been so completed by the single judge, the would'‘be applicant must expect that this court will order that time served should not count.' (R v Brind [2008] EWCA Crim 934 at paragraph 2.1).

All five cases were considered to provide good example of unmeritorious appeals where loss of time would be appropriate. Although their applications for leave pre-dated the new appeal form, they are a cautionary tale for potential applicants.

Protected by counsel's advice

The protection afforded by counsel's advice in favour of an appeal is only as strong as the quality of the advice itself. The court were resolute that if the original advice from counsel was flawed, it did not provide an applicant with complete immunity if he chose to renew an application for leave following refusal by the single judge.

Anthony Brind was convicted after a trial of possessing a controlled drug of class A with intent to supply. He was sentenced to four years imprisonment on the basis that he was involved in commercial street dealings in retail quantities.

He sought leave to appeal both conviction and sentence. He was supported by counsel's advice at first instance in both regards. However the single judge refused leave. Mr Brind renewed both applications. The court very quickly dismissed his grounds for appealing against conviction. He had simply asserted his innocence in the renewed application for leave. However, in dealing with sentence, the court went further: 'It falls into the category of case where even where counsel has advised that the sentence was one which this court could interfere with, is one where the single judge would have been justified in indicating that it was totally without merit and given this court accordingly the basis upon which to make an order under s 29.'

Counsel had relied on the case of Afonso [2005] 1 Cr. App. R. (S). The court were of the view that the case cited by counsel: 'simply did not give any basis upon which the sentence could be said to be arguably excessive.'

As the appeal had no prospect of success, loss of time would have been appropriate.

Criticism of counsel

Nazakat Khan pleaded guilty to conspiracy to burgle. His co'‘defendants were his brothers, Rayisat Khan and Mohammed Ishrat. He was sentenced to 45 months' imprisonment. He renewed his application for an extension of time and for leave to appeal against conviction following refusal by the single judge.

The prosecution case was that the applicant, together with his brothers, had carried out a substantial number of burglaries

The applicant's basis for seeking leave to appeal was that his legal team acted contrary to his instructions. Surprisingly, given what was to follow, the applicant waived privilege. On hearing from counsel, the court took the view that the applicant had in fact made a full admission to counsel, evidenced by a joint basis of plea signed by him. He had also endorsed counsel's brief with those instructions. Unsurprisingly, the court felt this might also be an appropriate case for ordering loss of time.

Delay

The Court of Appeal re-iterated the importance of timely applications. In Mr Khan's case, his application for leave was lodged six months and 12 days out of time. The court confirmed that substantial delay without good reason would always be an important factor in considering whether to order loss of time.

Caught red-handed

Maurice Young was convicted of three counts of theft. He was sentenced to a total sentence of four years' imprisonment. He applied for leave to appeal against his conviction and an extension of time of one month and four days. He also renews his application for leave to appeal against sentence, having been refused leave by the single judge.

The applicant was found guilty of stealing bags from unsuspecting members of the public. In relation to all three counts, CCTV footage was available which supported the various counts either showing the applicant in position by the bag, assisting another or touching the bag himself on each occasion. He was clearly identifiable on the footage. His grounds for appealing his conviction were on the basis the CCTV did not provide evidence of his guilt.

The court gave his grounds short shrift. This is perhaps the classic example of an unmeritorious appeal where the applicant is caught red-handed. It is an application which the court will not look kindly upon.

Of concern is the position of the applicant who receives poor advice from his representative. Solid advice from experienced and qualified representatives is essential in protecting potential applicants from additional time in custody.

It remains to be seen whether the new format will act as sufficient deterrent against unmeritorious appeals. It will depend upon the frequency with which the single judge is prepared to certify such cases. While calls for sound high quality advice cannot be argued with, it is equally important not to discourage the fearless protection of the client's interests. The responsibility of the single judge will be to tread this fine balance.