R v Charles Okedare
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett DBE |
| Judgment Date | 27 February 2014 |
| Neutral Citation | [2014] EWCA Crim 228 |
| Docket Number | Case No: 2013/03661 2013/05556 2013/00384 2013/00394 2013/00393 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 February 2014 |
[2014] EWCA Crim 228
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURTS AT
CROYDON CROWN COURT (HHJ STOW QC & HHJ BAUCHER)
NEWCASTLE CROWN COURT (HHJ GOSS QC)
BIRMINGHAM CROWN COURT (MR RECORDER FEEST)
HULL CROWN COURT (HHJ BURY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett VICE PRESIDENT OF THE CACD
Mr Justice Silber
and
Mr Justice Green
Case No: 2013/03661
2013/02416
2013/05556
2013/00384
2013/00394
2013/00393
Geoffrey Payne for Charles Okedare
Michael Greenhalgh for Mohammed Ashraf
Clare Wade and Taimour Lay for Tuan Kao
Edward Renvoize for Zammer Hussain
Simon Csoka QC for Majed IqbalandAbdul Iqbal for Yasar Hussain
Tom Little for The Crown
Lady Justice Hallett DBE, Vice-President of the Court of Appeal Criminal Division :
This is the judgment of the Court.
General background
The Court has before it six applications for leave to appeal against conviction and or sentence from four separate trials. In each case an applicant has either deliberately absconded or disappeared. Notwithstanding the absence of a lay client, their lawyers wish to argue a variety of grounds. The first issue for the Court, therefore, is whether or not it is prepared to entertain applications for leave to appeal and appeals from people whose whereabouts are unknown; and if so in what circumstances. In recent years, there has been some confusion over the appropriate procedure to be adopted and a degree of inconsistency in practice.
The position was once straightforward. In Flower [1966] 50 Cr App R at page 34 Widgery J giving the judgment of the Court declared that the practice of the Court where an appellant escapes is either "to adjourn the appeal or dismiss it according to the justice of the case."
In Jones No 1 (1971) 55 Cr. App. R. 321 the Court went further. It found (at pages 327–329) that a decision whether or not to appeal against conviction "cannot rationally be taken before the verdict is known". It concluded that in all "save the most exceptional cases" the proper time for a defendant to take advice as to the prospects of an appeal and to give instructions to initiate appeal proceedings is after conviction and sentence. Where a defendant had absconded during a trial and "put it out of his power to give instructions at the proper time" the Court, as a general rule, would take the view that his solicitors did not have authority to initiate appeal proceedings and any notice of appeal was a nullity. This was so even if the defendant had given express instructions to appeal conviction (should it occur) post a failed submission of no case.
Accordingly, it became the general policy of the Registrar of Criminal Appeals to treat any application for leave to appeal lodged by the solicitors for an applicant who had absconded, on the basis that that the solicitors were "without proper instructions".
Yet, in Gooch [1998] 2 Cr App R 130, in what it described as an "exceptional case", the Court found no difficulty in proceeding to hear an appeal where leave to appeal conviction and sentence had been given and the appellant absconded before the appeal against sentence could be determined. At the invitation of the Crown (who wanted the appeal resolved so that it could enforce a confiscation order), the Court declined to follow the "normal course" and adjourn the appeal of an absconder. The Court declared there is no rule of law that an appeal cannot be heard in the absence of the appellant. Buxton LJ, giving the judgment of the Court, explained at page 134 F that in civil proceedings where a " fundamental (our emphasis) matter with regard to an order is being complained of, the Court will not necessarily treat the fact the order has been disobeyed as a reason for not hearing the person who complains of it. We think these considerations must apply strongly in a case where the issue is a matter of criminal punishment…." However, the Court cautioned that a person who absents himself "is in the mercy of the Court and there may be circumstances where the only sensible or proper course is to dismiss the appeal without proper consideration of the merits" (see page 133A).
The practice as laid down by Jones changed after the enactment of the Human Rights Act 1998 and the decision in R. v. Charles and Tucker [2001] 2 Cr. App. R. 15. The applicant Charles absconded on the day he was convicted shortly before the summing up. He was arrested over a year later and sentenced. He gave instructions to his solicitors to advance and renew his applications for leave to appeal conviction and the necessary extension of time. The applicant Tucker absconded two days before he was convicted and remained unlawfully at large at the time of the hearing before the Court of Appeal Criminal Division ("CACD"). His solicitors submitted grounds of appeal against conviction and maintained that they were still in touch with him and had his authority to proceed.
Their applications were listed before the then Vice President of the CACD, Hooper and Goldring JJ. The Court heard submissions from the parties and from an amicus. Hooper J gave the judgment of the court. We extract three passages relevant to our deliberations from his paragraphs 52 to 54:
"(i) there could well be a breach of Article 6(1) if an applicant who has absconded could not succeed with an application for leave to appeal solely because it is treated as ineffective by the Registrar or dismissed for the reason in Jones…".
"(ii) there seems to us a good policy reason for not taking such an inflexible approach. If an applicant, for example, has been sentenced to an unlawful sentence then the sooner it is so declared the better".
"(iii) Having considered the matter carefully, we do not share the view expressed in Jones (No.1) that where a defendant has, by absconding, put it out of his power to give instructions, his solicitors have not been duly authorised to prosecute appeal proceedings on his behalf. We derive some comfort from the case of Gooch in reaching this conclusion. Whilst accepting the remote risk that the absconder does not want to appeal, we take the view that a single Judge or the Full Court is entitled (but not bound), to conclude that the legal representatives submitting the application for permission have the actual or implied authority so to do. The applicant might have wished grounds to be advanced further to those which his legal representative decides to advance. That must be a risk which he takes. Nor do we think that it is appropriate for the Registrar in future to treat an application in these circumstances as ineffective. Applications should be put before the single Judge. We direct that Tucker's application should now be submitted to a single Judge. Should the single Judge refuse leave, then notices of that refusal (as in the Charles case) should be sent in accordance with regulations 12 and 21(c). Any application for renewal will be put before the Full Court in the usual way."
The Court went on to give Charles leave to appeal against conviction on grounds which criticised the trial Judge's approach to the Code of Practice governing identification procedures introduced by the Police and Criminal Evidence Act 1984.
Since Charles and Tucker was decided there have been a number of important developments in the Criminal Law and in particular the introduction of the Criminal Procedure Rules in April 2005.
Part 1.1 of the Criminal Procedure Rules ["Crim PR"] is in the following terms:
"(1) The overriding objective of this new code is that criminal cases be dealt with justly. "
(2) Dealing with a criminal case justly includes—
acquitting the innocent and convicting the guilty;
dealing with the prosecution and the defence fairly;
recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
dealing with the case efficiently and expeditiously;
ensuring that appropriate information is available to the court when bail and sentence are considered; and
dealing with the case in ways that take into account—
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases."
Part 2.1(1)(b) makes clear that the overriding objective applies to proceedings in the CACD.
Further, the Court has considered the issue of whether to entertain an application in the absence of appellants on a number of occasions. We give a few examples.
In McGing [2005] EWCA Crim 1651, the Court, proceeding on the basis the appellant's counsel "had her instructions", heard and determined an application to appeal sentence from a man who had absconded. It quashed an order "for return to prison" made in error and in ignorance of an administrative recall to prison for the same period.
In Macguire [2006] EWCA Crim 1239, the Criminal Cases Review Commission ("CCRC") referred an appeal against sentence of an absconder who had been sentenced in error on the basis of his brother's antecedents. The CCRC do not need the authority of an appellant to make a referral. The Court decided to remove a stay on the appeal imposed when the appellant absconded, hear the...
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