R v Charles (Jerome) (Leave to Appeal); R v Tucker (Lee Nigel)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOOPER |
| Judgment Date | 29 January 2001 |
| Neutral Citation | [2001] EWCA Crim 129 |
| Docket Number | Case Nos: 199900331 X4 and 200006210 W2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 January 2001 |
[2001] EWCA Crim 129
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Vice President (Lord Justice Rose)
Mr Justice Hooper and
Mr Justice Goldring
Case Nos: 199900331 X4 and 200006210 W2
Mr Noone appeared for the Crown
Mrs Marion Smullen appeared for the Applicant Charles
Mr Gareth Rees appeared for the Applicant Tucker
Mr David Perry appeared as amicus curiae
Introduction
4. On 17th December 1998 in the Crown Court at Aylesbury the applicant Jerome Charles was convicted of robbery and having an imitation firearm with intent to commit an indictable offence. Just prior to the start of the summing-up, he absconded. He was arrested in March 2000 and on 10th April of that year was sentenced to 7 years' imprisonment on each count concurrent. He renews his application for leave appeal against conviction following refusal by McKinnon J. He also applies for any extension of time which may be necessary.
5. On the 4th October 2000, Lee Nigel Tucker was convicted of 4 counts of buggery, 4 counts of indecent assault and 1 count of causing a stupefying drug to be taken with intent to commit an indictable offence. He was subsequently sentenced to a total of 8 years' imprisonment. Tucker is still unlawfully at large. He seeks leave to appeal his conviction. Tucker's application was referred to the Registrar who stated: "I take the view that this application is ineffective as he is not available to receive advice or give instructions." Following a letter from the applicant's solicitors, the matter was referred by the Registrar to the Full Court,
6. Given that the two cases raised similar issues they were listed together before the Full Court with a view to the Court giving guidance as to what should be the proper approach in these and similar circumstances.
7. Both applicants were represented by counsel having been granted legal aid to make the applications. Mr David Perry appeared as amicus curiae. We are grateful to all counsel for the assistance which they have given us. We are also grateful to the Criminal Appeal Office for the assistance which we have received.
8. In the case of Charles, Miss Mullen dealt with the merits of the application. Mr Rees was not invited to deal with the merits.
The relevant legislative provisions
9. Section 18(2) of the Criminal Appeal Act 1968 provides that an application for leave to appeal must be given within 28 days from the date of conviction or, in the case of an appeal against sentence, from the date on which the sentence was passed. Section 31 provides that the power to grant leave to appeal or to extend the time within which an application for leave to appeal may be given, may be exercised by a single judge. Rule 2 of the Criminal Appeal Rules 1968, as amended, provides that notice of an application for leave to appeal shall be given by completing Form NG. In the form used by the solicitors for Charles and Tucker, there is a warning to a person in custody that if the Court is of the opinion that the appeal is plainly without merit then an order may be made that time spent in custody as an appellant shall not count towards sentence. There is also a warning to all would-be appellants that an order of costs may be made against them. The form continues:
"This form shall be signed by the appellant but may be signed by his/her legal representative providing the WARNING set out above has been explained to him, and he is sent a copy of this form."
10. There have now been modifications to the forms, but the differences in wording do not affect the nature of the warnings and the requirement on the part of the legal representatives to ensure that the effect of the warnings has been explained to the applicant. If solicitors have been unable to give the warning, then that fact should be noted.
11. There is then a place for the signature of the appellant or the signature of someone signing on behalf of the appellant. That form, by virtue of Rule 2, has to be served on the appropriate officer of the Crown Court. Accompanying it must be the grounds for the application.
12. Rule 12 provides:
"(1) Where a judge of the court has refused an application on the part of an appellant to exercise in his favour any of the powers referred to in section 31(2) of the Act, the appellant may have the application determined by the court by serving a notice in Form 15 on the Registrar within fourteen days, or such longer period as a judge of the court may fix, from the date on which notice of the refusal was served on him by the Registrar.
(2) A notice in Form 15 shall be signed by, or on behalf of, the appellant.
(3) If the notice is not signed by the appellant and the appellant is in custody, the Registrar shall, as soon as practicable after receiving the notice, send a copy of it to the appellant.
(4) If such a notice is not served on the Registrar within the said 14 days or such longer period as a judge of the court may fix, the application shall be treated as having been refused by the court."
13. In Dixon [2000] 1 Cr. App. R. 173 it was held (at page 181) that:
"Rule 12(4) cannot have the effect that it purports to have of precluding the Full Court from determining whether or not an extension of time should be granted for the service of a notice in Form 15 under Rule 12(1)."
Following that decision the Registrar directed that, contrary to previous practice, all applications to extend time to renew should be listed before a Full Court.
14. Rule 21(1) (c) provides that service of a document may be effected:
"in the case of a document to be served on any other person [other than the Registrar or on an appropriate officer in a Crown Court]-
(i) by delivering it to the person to whom it is directed, or
(ii) by leaving it for him with some person at his last known or usual place of abode, or
(iii) by sending it by post addressed to him at his last known or usual place of abode."
15. If the appellant is in custody then the period of 14 days starts from the date upon which the appellant receives the notice of refusal by the single judge. In all other cases the period starts from the date upon which notice of the refusal was served on the appellant. In the case of an applicant who has absconded, service for the purpose of Rule 12 may be effected, by virtue of Rule 21(1) (c) (iii) by sending it by post addressed to him at his last known or usual place of abode. By virtue of section 7 of the Interpretation Act 1978 service will then be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.
16. The Guide to Proceedings in the Court of Appeal Criminal Division (available at www.courtservice.government.uk) states that no-one convicted or sentenced in the Crown Court in circumstances where an appeal lies to the Court of Appeal Criminal Division should be without advice or assistance on appeal. Under the heading Initial Steps, paragraph 1.1 provides:
"Provision for this is included in the trial legal aid order—section 2(4) Legal Aid Act 1988. Solicitors should not wait to be asked for advice by the defendant."
Under the same heading, paragraph 1.6 provides that solicitors should not leave the completing and lodging of Form NG to the defendant.
The procedural steps in the Charles case
17. We turn to a more detailed history of the procedural steps in the Charles case. He absconded on the same day on which he was convicted. On 13th January 1999 an application for leave to appeal the conviction was submitted on form NG to the Crown Court at Aylesbury by Yung and Co. solicitors. The form gave an address for the applicant in Southall. It was signed on behalf of the appellant by Ms Yung. There was nothing on the form to suggest that the warning had not been given. The application was placed before McKinnon J. On 13th April 1999 McKinnon J. refused leave observing:
"It does not seem to be arguable that this is one of those "most exceptional cases" where leave should be granted despite the applicant having absconded just before the trial judge began his summing-up and thus not having given authority after conviction for this appeal to be commenced (see R v Jones (1971) 55 Cr. App R. 321). As the applicant has not given the appropriate authority, leave to appeal is refused."
We return to the case of Jones later in this judgment.
18. On 16 th April 1999, a copy of the order of McKinnon J refusing the applicant leave to appeal was sent to the solicitors who had filed the notice of appeal and to Charles himself at the address in Southall entered on the Form NG. Thus the Registrar effected service on the applicant in accordance with Rule 21(1) (c) (iii) on the 17th. The solicitors did not seek to renew the application before the Full Court.
19. Having been arrested in March and sentenced in April a further Form NG was submitted to Aylesbury Crown Court on 5th May. That form was signed by the appellant himself and had been submitted by the same solicitors, Yung and Co. That application has been rightly treated as an application to the Full Court under Rule 12 to renew the application following refusal by a single judge. In the light of the letter sent to the applicant on 16th April 1999, he needs an extension of time of just over 1 year.
20. For reasons which we shall set out later, we grant the applicant leave to appeal his conviction and grant him the necessary extension.
The procedural steps in the Tucker case
21. We turn to...
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