R v Mark Darren DAY
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,Lord Justice Buxton |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWCA Crim 1060,[2002] EWCA Crim 213 |
| Docket Number | No: 200105795/Z2,Case No: 2001/5795/Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 April 2003 |
[2002] EWCA Crim 213
Lord Justice Pill
Mrs Justice Rafferty and
Mr Justice Gross
No: 200105795/Z2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
MR C NICHOLLS QC and MR F FITZGIBBON appeared on behalf of the Appellant
MR J A BRIGHT QC appeared on behalf of the Crown
th January 2002
This is a directions hearing in the appeal of Mark Darren Day which has been referred to the court by the CCRC, their statement of reasons being dated 17th October 2001.
The draft grounds of appeal, which is an appeal against a conviction for murder, involve criticism of the conduct of the trial on the appellant's behalf by leading counsel. Counsel for the appellant, Mr Nicholls QC, and for the Crown, Mr Bright QC, are co-operating fully with the preparation of the case and the court very much welcomes that. It is clear that the co-operation is no mere formality but springs from an intention on both sides to see that the court is given every assistance in determining the appeal.
The court has received skeleton arguments as to directions which are sought. Having heard both parties, we are content to make the directions which are agreed. The formal directions should not, of course, exclude every possible co-operation on matters arising from them, or other matters which arise.
On behalf of the appellant permission is sought to provide a further, what has been called, compendious statement. We were initially surprised at that application, having regard to the passage of time and the statements already provided for the purposes of the application to the Commission and now the appeal to this court. However, we conclude that the appellant should have that opportunity. It is to be submitted to the court and disclosed to the Crown within 14 days.
Both parties see advantages in the interests of justice in written questions being submitted to the potential witness for the other party. It is clear on what we have been told that both the appellant and Mr Amlot QC are likely to be required to give oral evidence, though the procedure to be followed will, of course, be that for the court hearing the appeal. Questions to the appellant from the Crown and to Mr Amlot from the appellant should be submitted in writing within 28 days of today's date. Each side will have 14 days in which to answer those questions. The court makes an order for disclosure under section 23(1)(a) of the Criminal Appeal Act 1968 as prayed in paragraph 3.3 of the skeleton. It is further directed that the registrar should write to the three persons named in paragraph 3.4 of the grounds of appeal in the terms of that paragraph. It is agreed that the registrar should be supplied with a short summary which may assist the parties to recollect the trial itself and the issues now arising from it. The parties are to submit to the court by the short adjournment on Thursday a proposed summary of facts which, if the court approves it, will accompany the registrar's letter to the three persons named in the terms sought.
The case is to be listed for hearing as soon as possible next term, the parties agreeing that a listing this term is not practicable having regard to the timetable we have indicated and the need for consequential enquiries resulting from the directions we have given. The listing will, of course, depend upon the availability of court time and what other pressing claims upon it there may be. But we direct that the matter be listed next term, if at all possible, and as soon as possible during that term.
The appellant has liberty, by the short adjournment on Thursday and at the request Mr Nicholls, to make submissions as to any criteria which he would advocate for the constitution of the court hearing the appeal. We emphasise that in the end that is a matter for the court. Mr Bright is content to rely upon the discretion of individual members of the court, their discretion and judgment as to whether they should sit in this case, having regard to the prominence of leading counsel who we have mentioned, but Mr Nicholls seeks, and is granted, the opportunity to submit criteria. We underline that the court will not be bound by those criteria and must form its own judgment, both the registrar in fixing the constitution and the members of the court in their decision.
When the matter is listed for hearing any matters for determination will go before the presiding Lord Justice. But we do indicate that anything arising out of these directions which arises in the shorter term should be referred to me and to this constitution, because that may assist, bearing in mind that we have now heard in some detail submissions as to the issues which are likely to arise.
Is any further direction required?
My Lord, only by way of clarification. Your Lordship said that we should draft and submit, as we agreed we would, by the midday adjournment on Thursday a short history to go into any letter that the registrar sends to the solicitors, or for that matter junior counsel for the appellant. My intention, and I may have misunderstood what the court meant, was that we should actually draft letters as if from the registrar with all the material we would like him to ask by way of questions to the relevant person, as well as the history embodied it, and that we should submit, if you like, draft letters from the registrar to this court.
LORD JUSTICE PILLI would hope a draft letter, if by letters you meant that each side should be submitting one.
Well, no, I mean draft letters for the three recipients, three different letters are drafted, where the questions may not in every case be the same. I am only anxious that we have some input into the actual content of the letter, not merely the history that goes with it.
LORD JUSTICE PILLI don't think I'd use the word history. Summary of facts.
Summary of facts and questions.
LORD JUSTICE PILLWhat we had in mind was that there should be a short covering letter in the terms of 3.4, accompanied by a document headed "summary of facts", or whatever. But if you wish to put the whole thing into a proposed letter that's quite acceptable.
I think it might help the registrar if we did so, and obviously we can amend it as the court in any way thinks appropriate, but at least we have something to work on rather than leaving it to the discretion of the registrar.
LORD JUSTICE PILLThank you. And a draft minute of order by the end of the day.
I am much obliged.
LORD JUSTICE PILLWe are grateful for your assistance. It may be easier if we rise while counsel withdraw.
(Court adjourned)
[2003] EWCA Crim 1060
Lord Justice Buxton
Mr Justice Crane And
Mr Justice Fulford
Case No: 2001/5795/Z2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Peter Carter QC (instructed by Messrs Oury Clark for the Appellant)
Mr Andrew Bright QC (instructed by The Crown Prosecution Service for the Respondent)
Introduction
On 26 March 1993 Mr Day was convicted of murder after a trial before His Honour Judge Rant QC and a jury at the Central Criminal Court and sentenced to imprisonment for life. An appeal to this court was dismissed on 2 December 1994. None of the grounds on which that appeal was advanced are now persisted in. The present appeal arises from a reference of the case to the court by the Criminal Cases Review Commission [the CCRC].
Under the provisions of section 14(5) of the Criminal Appeal Act 1995 it is open to an appellant to advance any ground that he chooses in an appeal arising out of a CCRC reference, whether or not such grounds formed part of the reasons of the CCRC for referring the case. That provision has been criticised in previous judgments of this court: see Garner [2002] EWCA Crim 1166; Smith [2002] EWCA Crim 2097, The Times, 5 December 2002; and Bamber [2002] EWCA Crim 291. In the present case, the CCRC identified three grounds of appeal. One of those was abandoned by the appellant's advisers, but they added approximately eleven other discrete complaints in the perfected Grounds of Appeal, albeit not all of those were in the event pursued. This extension of the appeal, with the hearing not limited either by the guidance of the CCRC or, as in an ordinary appeal, by scrutiny under section 31 of the Criminal Appeal Act 1968, also seemed to lead the appellant's advisers to assume that further complaints, not even foreshadowed in the grounds, could be added in the course of the hearing. We give a number of examples of that in the course of this judgment. However, we did not think it right to limit the present appellant in the range of his contentions, and are satisfied that we are in a position to deal with the appeal in a proper manner. Nevertheless, the unstructured form that this appeal eventually assumed has much reinforced our agreement with the view of the constitutions of this court already referred to that, after a full investigation of the kind characteristically undertaken by the CCRC, it should only be necessary, in order to do justice, for this court to consider only the grounds identified by the CCRC, together with any other ground for which the court itself exceptionally grants permission.
The facts
The case turned entirely on a limited factual dispute as to the extent of Mr Day's participation in a...
To continue reading
Request your trial
-
R v Robert David Ekaireb
...Wolkind's conduct was incompetent to a degree that rendered the conviction unsafe in accordance with the principles set out by Buxton LJ in R v Day [2003] EWCA Crim 1060. 3 No criticism was made of junior counsel or of the solicitor. Each was called by the appellant to give evidence. Mr Wol......
-
R (Aston) v Nursing & Midwifery Council
...the incompetence of the representation. 8 The approach of that court is exemplified in two decisions. R v Bolivar [2003] EWCA Crim 1167 and R v Day [2003] EWCA Crim 1060. In R v Bolivar the Vice President at paragraph 52 stated the test as Wednesbury unreasonableness and such as to affect t......
-
David John Davies v R
...the other way, this may render a conviction unsafe: see R. v Clinton, 97 Cr. App. R. 320, CA.” 47 As explained by Buxton LJ in Day [2003] EWCA Crim 1060 (at [15]): ‘in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that th......
-
R v Christopher Wilmot and Another
...of Mr Lynch resulted in lack of safety in these convictions. It is common ground that on the authorities, the most material of which is R v Day [2003] EWCA Crim. 1060, that counsel's incompetence or error while to be deplored can only result in the quashing of a conviction if that incompete......
-
Table of Cases
...69 R. v. Davis, [2008] UKHL 36 ....................................................................................... 359 R. v. Day, [2003] EWCA Crim 1060 .............................................................................. 82 R. v. Dean, [2006] SACD 54 ................................
-
Court of Appeal
...Cases Review Commission and Grounds ofAppeal: Incompetence of Legal Representatives and JointEnterpriseR vDay (Mark Darren) [2003] EWCA Crim 1060The appellant was sentenced to life imprisonment in March 1993 at theCentral Criminal Court, having been convicted of murder following thedeath of......