R v Medway

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
Judgment Date06 November 1975
Judgment citation (vLex)[1975] EWCA Crim J1106-2
Date06 November 1975
Docket NumberNo. 3895/C/753

[1975] EWCA Crim J1106-2



Royal Courts of Justice


The Lord Chief Justice of England (Lord Widgery)

Lord Justice Stephenson

Mr. Justice O'Connor

Mr. Justice Lawson


Mr. Justice Jupp

No. 3895/C/753

Andrew George Medway

MR. L.J. BLOM-COOPER. Q.C. and MR. A. NEWMAN appeared on behalf of the Applicant.

MR. F.BIENNERHASSETT, Q.C. and MR. C. SEAGROATTT appeared as amicicuriae.


Notwithstanding the terns of the Daily Cause List, and notwithstanding the physical absence of Lord Justice Stephenson and Mr. Justice Jupp, they are both nevertheless parties to the judgment which Mr. Justice Lawson is about to read, which is the judgment of the Court.


This is an application by Andrew George Medway for leave to withdraw a notice of abandonment of all proceedings in this Court in relation to orders made in his case under sections 60 and 65 of the Mental Health Act, 1959 (that is to say a special hospital order without restriction of time). These orders were made by Mr. Justice Mais at Birmingham Crown Court on the 30th July, 1973.


The Applicant applied on the 21st May, 1973 to the single Judge for leave to appeal against the section 65 order. This application was considered and refused by the single Judge on the 22nd March, 1974 (the delay at this stage was attributed to requests for time to be allowed made on behalf of the Applicant. The single Judge's refusal was communicated to the Applicant on the 2nd April, 1974.


On the 4th April, 1974 the Applicant renewed his application in the form that he then sought leave of the full Court to appeal against both the orders made under section 60 of the 1959 Act and as well as that made under section 65.


On the 16th May, 1974 the Applicant completed a signed form A, stating that he abandoned all proceedings in the court of Appeal. This form was received at the Court on the 20th May, 1974. It had been preceded by a letter from the Applicant dated the 28th April, 1974 to the Registrar indicating his intention to abandon the proceedings.


This application came before the Court of Appeal Criminal Division constituted by my Lord, the Lord Chief Justice, Mr. Justice O'Connor and Mr. Justice Jupp. Having regard to the state of the authorities on one of the questions arising, the hearing of the application was adjourned for a full Court of five Judges as we are now constituted, of the Lord Chief Justice Lord Justice Stephenson, Mr. Justice O'Connor, Mr. Justice Jupp and myself. The Director of Public Prosecutions was invited to be and was represented by Counsel as amici curiae at the resumed hearing. This took place on the 23rd and 24th October, 1975 when Mr. Blom-Cooper, Q.C. and Mr. Newman appeared for the Applicant, and Mr. Blennerhassett, Q.C. and Mr. Seagroatt appeared as amici instructed by the Director.


The matters which we have to decide are: firstly, it being conceded that this Court has jurisdiction to allow a notice of abandonment of an application for leave to appeal to be withdrawn, what are the conditions to be satisfied for the exercise of that jurisdiction? and, secondly, the conditions for the exercise of this jurisdiction having been determined, does the present application satisfy them?


Similar questions would in fact arise in a case which involved an abandonment of an appeal – not the present case which concerns the abandonment of an application. In this judgment we will therefore refer to the matter as abandonment of an application.


For the purposes of this judgment, the relevant facts apart from those already mentioned may be shortly summarised. The Applicant, who is now aged 26 years 5 months, has a history of mental illness which began in 1971. On the 16th March, 1973 he pleaded guilty to an offence of arson with intent to endanger life at Northampton Crown Court when Mr. Justice Caulfield placed him on probation for three years.


On the 3rd May, 1973 at Northampton Magistrates' Court the Applicant was convicted of dangerous driving and of insulting words and behaviour. These convictions related to a series of incidents which took place on the 20th April, 1973. In respect of these offences the Magistrates committed the Applicant in custody for sentence to the Crown Court under section 56 of the Criminal Justice Act, 1967; at the same time he was also committed to the same Court for breaches of the earlier probation order constituted by the offences of the 20th April.


On the Applicant's appearance upon these committals Mr. Justice Mais on the 30th July, 1973 had before him the necessary medical reports and evidence to support the making of orders under sections 60 and 65 of the Mental Health Act, 1959. The Applicant's Counsel did not resist the making of the section 60 order, did not challenge the need for the Applicant to be in a secure hospital and with regard to the order under section 65 told Mr. Justice Mais that the Applicant would prefer that such an order should not be made.


On the 21st August, 1973 whilst in prison awaiting his removal to Broadmoor special hospital the Applicant, acting for himself, applied on form I? for leave to appeal against the section 65 order. This application was dealt with by the single Judge on the 22nd March, 1974. We have already explained the delay but should add that the grounds considered by the single Judge had been drafted by the Applicant's solicitors and were not submitted until the 14th March, 1974. An independent psychiatrist's report dated the 18th December, 1975 from Dr. Gordon under whose care the Applicant had first come for his mental illness in 1971 was attached to those fresh grounds.


In refusing leave the single Judge gave the following reasons: "I think this application is misconceived. When the Hospital Order, with restrictions, was made, the evidence for the making of it was unchallenged and apparently sound in opinion upon your mental state. I do not see how the Judge could have avoided sending you to Broadmoor in the circumstances made known to him.


"It may be that you are now in better health and should have your situation reviewed. If so, it is I think the Home Secretary who should be causing a review of your case and possibly refer it to a Mental Health Review Tribunal. I suggest that representations are made on your behalf to him with the opinion of Dr. Gordon accompanying them."


The single Judge's refusal was communicated to the Applicant now at Broadmoor on the 2nd April, 1974. According to his affidavit sworn on the 21st October, 1975, the Applicant discussed this with Dr. Loucas, the medical officer then responsible for him. Dr. Loucas told the Applicant that there was not much point in pursuing the matter and that in his opinion to do so would be disruptive of his treatment. It is clear that the Applicant did not accept this advice because he deposes as follows: "nevertheless (that is after receiving this advice) I returned form S.J. indicating that I would renew my Appeal. I wrote to Messrs Wilson & Berry (his then Solicitors) informing them of this but as they had been informed of the outcome by my Mother my letter crossed with theirs to me expressing their sympathy at the outcome of my Application and urging me to co-operate fully with the treatment offered by my Doctors so that there might be a happier outcome to a Mental Health Review Tribunal hearing my case."


As we have already said, the Applicant in fact renewed on the 4th April, 1974. On the 23rd April he wrote to the Registrar indicating intention to withdraw his renewed application and on the 16th May he abandoned by completing and signing form A.


As a matter of history a Medical Review Tribunal hearing took place in November 1974, but the result was not favourable the Applicant who, early in 1975, consulted fresh solicitors. Those Solicitors, having been informed of the single Judge's decision, and the Applicant's abandonment, wrote on the 24th June, 1975 to the Registrar intimating that the Applicant proposed to apply to withdraw his notice of abandonment. They gave three reasons, firstly, that the single Judge had overlooks the provisions of section 11(3) of the 1963 Act empowering this Court to quash or substitute an appropriate sentence on material available subsequent to the original sentence and thus the Applicant would have been misled.


Secondly, the warning in Part 6 of form SJ that dismissal of an application to the full Court might result in loss of time – clearly inappropriate to hospital order cases – had not beer deleted and may have misled the Applicant; and, thirdly, that as a Broadmoor patient he was not in a good position without legal advice to judge the merits of an appeal against sentence.


We shall deal later on with the first point made in this letter. As to the second and third points, we do not think that these are borne out by the Applicant's affidavit, but in any case we do not, for reasons which will appear, find that these points would support the grant of leave to withdraw a notice of abandonment.


The Applicant's affidavit indicates, in our judgment, a deliberate decision on his part to abandon his application.


We turn now to the first question which we have to answer. The jurisdiction of this Court and its predecessor the Court of Criminal Appeal is and always has been statutory. Until 1966 it stemmed from the Criminal Appeal Act, 1907 and since the from the Criminal Appeal Act,1966, now replaced by the consolidated Criminal Appeal Act, 1963. It is not without significance in relation to abandonment by applicants or appellants to observe that under the earlier Act there was power on the hearing of an appeal to increase a...

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    ...to abandon the application. A reading of the letters which culminate in that letter and e-mail clearly confirms that position. 3 In R v Medway (1976) 62 Cr App R 85, this court said that the kernel of the nullity test is that the court must be satisfied that the mind of the applicant did no......
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