REGINA v Achogbuo

Factual and Procedural Background

The court considered a reference by the Registrar under section 20 of the Criminal Appeal Act 1968 concerning an appeal application. The applicant, a 45-year-old man, was convicted on 15 August 2011 at the Crown Court at Snaresbrook before Judge Tudor Owen and a jury of two counts of Sexual Assault of a Child under the age of 13, contrary to section 7(1) of the Sexual Offences Act 2003, and sentenced to 18 months' imprisonment concurrently on both counts.

The complainant was the applicant's 9-year-old stepdaughter. The applicant had married the child's mother in Nigeria in 2007 and moved to Britain in 2008, living with the family including the mother, three children, and grandmother. The complainant testified that the applicant had on occasions lifted her top and sucked her breasts while alone in the mother's room between July 2008 and January 2009. The applicant was arrested and declined to comment during interview. At trial, the applicant claimed the allegations were fabricated by his wife, the grandmother, and the child.

The applicant's initial trial counsel advised against appeal, and the trial was conducted skillfully, with the judge praising counsel's closing speech. After a delay in obtaining trial papers from the original solicitors, new solicitors were instructed, and eventually the papers were provided following intervention by the Legal Services Ombudsman.

The first application for leave to appeal was made in July 2013 on the grounds of a supposed hearsay evidence admission, which was later found to be misconceived as no such hearsay application had been made or granted.

The second application for leave to appeal was received in January 2014, reusing factual summaries from the first application but failing to disclose the existence of the earlier application. The grounds alleged that the applicant was not properly advised by his legal team regarding waiving privilege about his no comment interview and that this failure interfered with his right to a fair trial due to professional negligence.

The court obtained explanations from trial counsel and solicitors, who confirmed that proper advice had been given to the applicant regarding the no comment interview, including warnings about adverse inference.

Legal Issues Presented

1. Whether the second application for leave to appeal was frivolous or vexatious under section 20 of the Criminal Appeal Act 1968, warranting summary dismissal.
2. Whether the applicant's legal representatives failed in their duty by not disclosing the first application for leave to appeal in the second application.
3. The proper standards and duties of solicitors and counsel when making applications alleging incompetence of trial legal representation.

Arguments of the Parties

Appellant's Arguments

• The applicant contended that he was not properly advised by his legal team about waiving privilege concerning his no comment interview, which prejudiced his right to a fair trial.
• The applicant sought an extension of time to lodge the appeal, citing difficulties in obtaining case papers from former solicitors, only resolved through intervention by the Solicitors Regulation Authority.

Respondent's Arguments

• Trial solicitors provided evidence that proper advice was given regarding the no comment interview, including the implications of adverse inference.
• There was a serious non-disclosure in the second application for leave to appeal by failing to mention the first application, undermining the integrity of the appeal process.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the second application for leave to appeal under section 20 of the Criminal Appeal Act 1968, which permits summary dismissal of appeals or applications for leave to appeal if they are frivolous or vexatious and can be determined without a full hearing.

The court identified two principal reasons for summary dismissal: first, the failure by the applicant's legal representatives to disclose the existence of the first application for leave to appeal constituted a serious non-disclosure, undermining the court's ability to properly consider the matter; second, the grounds of appeal themselves were bound to fail because the trial solicitors had properly advised the applicant regarding the no comment interview, negating the claim of professional negligence.

The court expressed concern about the increasing frequency of appeals based on allegations of incompetent legal representation made without proper enquiry of the trial lawyers involved. It emphasized the duty of new counsel and solicitors to undertake due diligence, including consulting former legal representatives and obtaining objective evidence before lodging such appeals.

The court noted the significant costs and delays caused by such unsubstantiated applications and indicated it would more frequently exercise its powers under section 20 to summarily dismiss frivolous or vexatious appeals.

Finally, the court referred the matter of the non-disclosure to the Solicitors Regulation Authority for investigation, underscoring the importance of maintaining high standards in legal practice and the administration of justice.

Holding and Implications

The court held that the second application for leave to appeal was frivolous and vexatious and had no prospect of success, and therefore it was summarily dismissed under section 20 of the Criminal Appeal Act 1968.

The direct effect of this decision is the termination of the applicant's second appeal attempt without a full hearing, affirming the conviction and sentence imposed at trial. The court also signaled a stricter approach to similar future applications, requiring rigorous disclosure and due diligence by legal representatives to prevent abuse of the appellate process. No new legal precedent was established beyond this procedural enforcement.