R v James
| Jurisdiction | England & Wales |
| Judgment Date | 2018 |
| Date | 2018 |
| Year | 2018 |
| Court | Court of Appeal (Criminal Division) |
Crime - Court of Appeal (Criminal Division) - Practice - Renewed applications for permission to appeal on different grounds from those refused by single judge - Guidance
Guidance on renewed applications by fresh counsel, who did not represent the defendant at trial, for permission to appeal against conviction and/or sentence on grounds unrelated to the original grounds after refusal of the written application for permission to appeal by the single judge exercising his powers under section 31 of the Criminal Appeal Act 1968 (post, para 38).
The following cases are referred to in the judgment of the court:
R v Alexander
R v Asiedu
R v Cox [
R v France (unreported) 22 May 2016,
R v Grantham [
R v Gray
R v Hughes (James)
R v Jogee
R v Johnson (Lewis)
R v Keast [
R v Kelly
R v Kirk
R v Knight (Philip)
R v Lucas [
R v McCook
R v Ordu
R v Pinfold [
R v Roberts (Mark)
R v Singh (Kunwar) (Practice Note)
R v Thompson (Alfred) (
R v Thorsby
R v Turnbull [
R v V (J)
R v Williams (John) (
R v Wilson (David)
R v YMH
R v Yasain
No additional cases were cited in argument.
On 9 September 2016 in the Crown Court at Oxford, before Ms Recorder Laney and a jury, the applicant, Wayne George James, was convicted of possessing 91·7 grams of diamorphine (count 1) and 189·59 grams of cocaine (count 2), with intent to supply and was sentenced to a mandatory term of seven years’ imprisonment concurrent on each count, pursuant to section 110 of the Powers of the Criminal Courts (Sentencing) Act 2000.
The applicant renewed his application for permission to appeal against conviction following refusal by the single judge.
The facts and grounds of appeal appear in the judgment of the court.
On 28 July 2016 in the Crown Court at Sheffield, before Judge Wright and a jury, the applicant, LB, was convicted of rape of a child under 13 and sentenced to eight years’ imprisonment with an extended licence period of one year, pursuant to section 236A of the Criminal Justice Act 2003. A sexual harm prevention order was made until further notice.
The applicant renewed his application for permission to appeal against conviction after refusal by the single judge (who granted an extension of time of six days, but indicated that, in the event of renewal, the full court should consider making a loss of time order).
The facts and grounds of appeal are stated in the judgment of the court.
On 1 June 2016 in the Crown Court at St Albans the applicant, Aaron Duwayne Robinson, pleaded guilty to the offence of arranging or facilitating the commission of a child sex offence, contrary to section 14(1) of the Sexual Offences Act 2003 (count 2 on the indictment). On 2 June 2016 Judge Carroll sentenced him to 32 months’ imprisonment, and imposed a sexual harm prevention order for a period of five years. His appeal against sentence was heard by the full court on 5 October 2016 and the appeal was allowed solely to the extent of quashing the sexual harm prevention order [2016] EWCA Crim 1546.
The applicant renewed his application for permission to appeal against conviction following refusal by the single judge.
The facts and grounds of appeal are stated in the judgment of the court.
On 8 November 2013 in Crown Court at Liverpool (Judge Aubrey), the applicant, GS, was convicted of five specimen counts of indecent assault (counts 6–10) contrary to section 14 of the Sexual Offences Act 1956, and two specimen counts of assault by penetration (counts 11 and 12) contrary to section 2 of the Sexual Offences Act 2003. He was acquitted of counts 1–5 (indecent assault) and count 13, attempted rape.
The applicant renewed his application for an extension of time (two years, five months) in which to seek permission to appeal against conviction. On 1 March 2017 the single judge refused permission and the applicant renewed his application.
The facts and grounds of appeal are stated in the judgment of the court.
Dean George (instructed directly) for the first applicant.
Mark Barlow (instructed directly) for the second and fourth applicants.
Bernard Richmond QC (instructed directly) for the third applicant.
Jonathan Polnay, Rachael Harrison and Gareth Underhill (instructed by
8 February 2018. HALLETT LJ delivered the following judgment of the court.
Background1 This is a judgment of the court to which all three members have contributed.
2 In three of the applications before us (B, Robinson and S) nothing should be published that might identify the complainants.
3 These four otherwise unrelated applications for leave to appeal have been listed together because each involves 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 exercising his or her powers under section 31 of the Criminal Appeal Act 1968 (“the CAA 1968”). There has been a significant rise in the number of such applications. Essentially, the applications, if successful, by-pass the single judge filter mechanism.
4 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. However, such occasions are rare and all too frequently totally unmeritorious applications take up the precious time and resources of the staff and judges of the Court of Appeal Criminal Division. The burden on the Criminal Appeal Office is considerable. The four applications before us have taken days of judicial and officials’ time to prepare for this hearing, thereby delaying consideration of meritorious applications. The burden on the trial lawyers can also be considerable. As will become apparent below, we have concluded that each of the four applications is totally unmeritorious and the “fresh grounds” should not have been advanced. Our time and resources would have been far better spent preparing and considering applications from applicants with arguable grounds of appeal.
5 One way to deter the totally unmeritorious application for an extension of time and/or leave is to use the court’s statutory powers as set out in the judgment in R v Gray [2015] 1 Cr App R (S) 27 and to bear very much in mind the guidance in relation to applications for extensions of time given in R v Singh (Kunwar) (Practice Note) [2018] 1 WLR 1425 and elsewhere. Single judges must consider very carefully an application for a significant extension of time before granting it. Also, we urge single judges to indicate an application that is, in their view, totally unmeritorious so that it may merit a loss of time or costs order. Despite the judgment in R v Gray, some practitioners still believe that a failure to “tick the loss of time order box” means that the single judge does not consider the application wholly without merit. We also urge the full court sitting on a renewal of a totally unmeritorious application to consider using their power to order a loss of time or costs, even where the single judge has not “ticked the box” or where an advocate has advised and advanced an application (see the judgment in R v Gray).
6 Another way to deter unmeritorious applications may be to provide a greater structure for applications advanced by “fresh” lawyers instructed after the single judge’s determination. This judgment is intended to provide such a structure. 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. We emphasise that we are not here specifically concerned with “fresh evidence” applications. Different considerations may apply in “fresh evidence” cases, where issues of leave, renewal out of time and the application of section 23 of the CAA 1968 may interrelate or overlap and where advice on appeal from trial representatives could not have extended to the material advanced as fresh evidence. However, some of what we say may be pertinent to them.
7 The present applicants were each represented by fresh counsel on a private or pro bono basis. The prosecution was represented at the hearing by Mr Polnay in relation to the overarching issue of the court’s approach to applications for leave to advance new grounds of appeal.
8 James renews the grounds of appeal upon which leave was refused and which were drafted by him in person. Some, but not all, of the new grounds advanced on his behalf by...
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