New Grounds not to be added to a Single Judges Refusal unless exceptional Circumstances – R v James and others [2018] EWCA Crim 285

This is a crucial decision for Appeal Lawyers or those who’s eek to have their convictions over turned . The court has made clear that fresh grounds are not to be added unless there are exceptional circumstances . The Court wen ton to emphasise that such an assessment was not of the nature of “substantial injustice” but nonetheless the threshold was a high one .

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 s.31 of the Criminal Appeal Act CAA 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.

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.”

Held: 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 and Others [2014] EWCA Crim 2372 and to bear very much in mind the guidance in relation to applications for extensions of time given in R v Singh [2017] EWCA Crim 466 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 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 Gray).

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.

We extract the following principles from the statutory provisions and the case law:

(i) As a general rule, all the Grounds of Appeal an applicant wishes to advance should be lodged with the Notice of Appeal/ Application; subject to their being perfected on receipt of transcripts from the Registrar.

(ii) The filter mechanism provided by section 31 of the CAA 1968 (consideration of the application for leave by the single judge) is an important stage in the process and should not be ‘bypassed’ solely on the basis that lawyers instructed post-conviction would have done or argued things differently from the trial lawyers. Fresh Grounds advanced by fresh counsel must be particularly cogent.

(iii) Once an application for leave has been considered by a single Judge, if the applicant wishes to advance fresh Grounds that have not in substance been considered by the single judge, they require the leave of the court. Applications to advance fresh Grounds must be accompanied by an application to “vary” the notice of appeal. If there is any doubt as to whether a Ground is ‘fresh’, an application to vary should be made.

(iv) The advocate should address in writing the relevant factors which the full Court is likely to consider in determining whether to allow variation of the notice of appeal and an extension of time for the renewal if required.

(v) In deciding whether to vary the Grounds of Appeal, the full Court will take into account the following (non-exhaustive) list of issues:

(a) The extent of the delay in advancing the new ground/s.

(b) The reason for the delay in advancing the new ground/s.

(c) Whether the issues / facts giving rise to the new Grounds were known to the applicant’s representative at the time he or she advised the applicant regarding any available Grounds of Appeal.

(d) The overriding objective (Crim PR 1.1) namely acquitting the innocent and convicting the guilty and dealing with the case efficiently and expeditiously

(e) The interests of justice.

(vi) The application to vary would not require “exceptional leave” (by demonstrating substantial injustice) but the hurdle for the applicant is a high one. Counsel should remind themselves of the provisions of the PD. 39C.2 namely that “Advocates should not settle grounds unless they consider that they are properly arguable. Grounds should be carefully drafted.” They should also bear very much in mind their duty to the court.

(vii) Advocates should also remind themselves of the rules relating to time limits. Leave will not be given to renew out of time unless the applicant can persuade the court that very good reasons exist. If the application to renew out of time is accompanied by an application to vary the Grounds the hurdle is higher.

(viii) For pragmatic reasons we suggest the application to vary should be considered by the full Court and not on the papers. An applicant would have a right to require a review of a decision not to vary if it were made by the Registrar or single Judge and a full Court hearing would in any event be required.

(ix) Assuming that the applicant will have received advice and assistance on appeal from his trial advocate, who will have advised that no grounds exist on which to challenge the safety of the conviction or settled the original Grounds of Appeal in the notice of appeal, fresh counsel should in every case be required to comply with the duty of due diligence as explained in McCook [2014] EWCA Crim 734. Waiver will almost certainly be required.

(x) Once the trial lawyers have responded, ‘fresh counsel’ should again consider with great care their duty to the court and whether the ‘fresh grounds’ should be advanced as properly arguable and particularly cogent.

(xi) The Registrar should obtain, in advance of the full Court hearing, transcripts relevant to the new Grounds and (where required) a Respondents’ Notice relating to the new Grounds.

(xii) The Crim PR Committee may wish to consider formulating rules for the lodging of a Notice of Application to vary a notice of appeal.

(xiii) On any renewal the full Court when refusing an application to vary the notice of appeal has the power to make a loss of time order or order for costs in line with R v Gray and Others. By analogy with R v Kirk [2015] EWCA Crim 1764 (where the Court refused an extension of time) the Court has the power to order costs of obtaining the Respondent’s Notice and or transcripts.

Categories: Caselaw, Criminal Appeals

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