Factual and Procedural Background
This judgment addresses four unrelated applications for leave to appeal, each involving applicants represented by fresh counsel who were not their trial representatives. These fresh lawyers lodged new Grounds of Appeal after a single judge had refused leave under section 31 of the Criminal Appeal Act 1968 ("CAA 1968"). The applications were listed together due to the common procedural issue of bypassing the single judge filter mechanism.
The court noted a significant rise in such applications, many of which are unmeritorious and place a heavy burden on court resources, delaying meritorious appeals. The court emphasized the importance of deterring unmeritorious applications by using statutory powers, including loss of time or costs orders.
The applicants had all received advice from their trial representatives regarding arguable grounds of appeal before lodging their applications. The court considered the procedural framework governing appeals, including time limits, the perfection of Grounds of Appeal, and renewal procedures following refusal by a single judge.
The four applicants renewed their applications to the full Court within 14 days of refusal by the single judge, complying with procedural rules. One applicant sought an extension of time due to a late original application, while the others applied within the statutory periods or with granted extensions.
The judgment also provides detailed factual backgrounds and appeal grounds for each applicant:
- Applicant 1: Convicted of drug possession with intent to supply following a police raid at a residence. Grounds of appeal include alleged errors in the judge’s summing up, juror bias, disclosure issues, and treatment of witness evidence.
- Applicant 2: Convicted of rape of a child under 13. The appeal concerns admissibility of complaint evidence, identification evidence, and evidence of demeanour, with detailed factual background regarding the complainant and circumstances of the offence.
- Applicant 3: Pleaded guilty to arranging or facilitating a child sex offence. The appeal challenges the mens rea element and contends trial counsel failed to properly address certain legal issues.
- Applicant 4: Convicted of multiple sexual offences against his daughter. He applies for an extension of time to appeal, advancing new grounds related to trial judge's directions and evidentiary issues.
Legal Issues Presented
- What is the correct approach to applications for leave to advance fresh Grounds of Appeal not contained in the original notice of appeal?
- Does the process require consideration of an application to amend or vary the notice of appeal pursuant to Crim PR 36.3(b)?
- What factors are relevant in determining such applications, including whether considerations similar to those for extensions of time apply?
- What is the appropriate procedure for applying to amend Grounds, vary a notice of appeal, or seek leave to advance fresh Grounds after single judge refusal?
- Should the Criminal Procedure Rules Committee be invited to prescribe further rules relating to lodging fresh Grounds of Appeal?
Arguments of the Parties
Applicant 1's Arguments
- The summing up was deficient, omitting relevant legal issues and containing errors affecting fairness.
- A juror's prior contact with an officer involved in the case tainted the jury panel.
- Disclosure was deficient and incomplete, potentially rendering the conviction unsafe.
- The procedure for treating a key witness as hostile was flawed, affecting the safety of the conviction.
Respondent's Arguments
- The summing up complied with relevant authorities and was appropriate for the trial circumstances.
- The juror issue was properly addressed by the trial judge; no bias was established.
- Disclosure obligations were met, with tactical reasons explaining the defence's approach.
- The trial judge’s discretion regarding the hostile witness was properly exercised and not subject to interference.
Applicant 2's Arguments
- The absence of a witness's evidence misled the jury, denying a fair trial.
- Identification evidence was unsafely admitted due to lack of formal identification procedures.
- Evidence of complainant's demeanour was inadmissible and lacked proper judicial directions.
Respondent's Arguments
- The witness's interview was disclosed and used in cross-examination; differences were minor and did not undermine the prosecution case.
- Identification was credible given the known relationship and circumstances; no special directions were required.
- The demeanour evidence was admissible and the overall summing up sufficiently addressed credibility issues.
Applicant 3's Arguments
- Trial counsel failed to properly address the mens rea for the offence, which would amount to a defence.
- New grounds contend that the applicant did not intend to facilitate a sexual offence.
Respondent's Arguments
- No evidence supports claims of ineffective counsel or failure to advise.
- The plea and evidence strongly contradicted the new grounds, which lack merit.
Applicant 4's Arguments
- Trial judge’s directions on complaint evidence were unhelpful and unfair.
- Comments made by the judge were prejudicial.
- Evidence regarding complainant’s clothing was improperly given undue significance.
Respondent's Arguments
- The judge’s directions were appropriate and the evidence was properly before the jury.
- No prejudice resulted from the judge’s summing up.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Gray and Others [2014] EWCA Crim 2372 |
Use of statutory powers to deter unmeritorious applications including loss of time or costs orders. |
Guided the court’s approach to making loss of time orders for unmeritorious applications. |
| R v S |
Guidance on applications for extensions of time. |
Instructed single judges to carefully consider applications for significant extensions of time. |
| R v Pinfold (1988) 87 Cr.App.R 15 |
Establishes that, save in exceptional circumstances, there is a single right of appeal. |
Confirmed that once a full Court decision is pronounced, the Court is functus officio. |
| R v Grantham (1969) 53 Cr. App. R 369 |
Supports the principle of a single right of appeal. |
Applied in confirming the finality of full Court decisions. |
| R v Yasain [2015] EWCA Crim 1277 |
Supports the principle of a single right of appeal. |
Referenced in relation to finality of appeal decisions. |
| R v McCook [2014] EWCA Crim 734 |
Duty of due diligence by fresh counsel in assessing grounds of appeal. |
Fresh counsel must comply with due diligence and waiver requirements when advancing fresh grounds. |
| R v Hughes [2009] EWCA Crim 841 |
Importance and strictness of time limits and extension of time applications. |
Emphasized that extensions are granted only for good reason and that wholly unmeritorious applications may be penalised. |
| R v Thorsby [2015] EWCA Crim 1 |
Principled approach to extensions of time balancing interests of justice and public interest. |
Applied in considering merits and reasons for delay before granting extensions. |
| R v Wilson [2016] EWCA Crim 65 |
Requirement for explanation of delay before granting extension of time. |
Applied to ensure reasons for delay justify extension long after the event. |
| R v Roberts & Others [2016] EWCA Crim 71 |
Discretion in granting extensions of time and need for good reasons. |
Reinforced strict observance of time limits unless good and exceptional reasons exist. |
| R v France (2016) |
Preference for full Court decisions on extensions and fresh grounds advanced by fresh counsel. |
Endorsed full Court consideration over single judge decisions in such cases. |
| R v Jogee; Ruddock v The Queen [2016] UKSC 8 |
Requirement for exceptional leave to appeal out of time in "change of law" cases demonstrating substantial injustice. |
Clarified that exceptional leave is not generally required for fresh grounds not involving change in law. |
| R v Johnson & Others [2016] EWCA Crim 1613 |
Requirement of substantial injustice for exceptional leave out of time. |
Applied in considering extension applications. |
| R v YMH [2017] EWCA Crim |
Rejected extension of exceptional leave requirement beyond change of law cases. |
Clarified the scope of exceptional leave requirements. |
| Kelly [2015] EWCA Crim 817 |
No requirement for specific wording in circumstantial evidence directions. |
Supported the court’s acceptance of the summing up in Applicant 1’s case. |
| Knight [2004] 1 CrAppR 9 |
Admissibility of adverse inference directions where prepared statements exist. |
Considered in evaluating the propriety of the adverse inference direction. |
| R v Williams (John) 8 Cr.App.R. 133 |
Discretion of trial judge in hostile witness procedure. |
Applied to uphold trial judge’s discretion in Applicant 1’s case. |
| Alexander & McGill [2013] 1 Cr.App.R. 26 |
Requirements for identification evidence and directions. |
Referenced in Applicant 2’s appeal regarding identification procedures. |
| Venn [2002] EWCA Crim 236 |
Admissibility of evidence of demeanour and behaviour. |
Considered in Applicant 2’s appeal on demeanour evidence. |
| Keast [1998] Crim.L.R. 748 |
Admissibility and relevance of demeanour evidence. |
Applied to uphold admissibility in Applicant 2’s case. |
| Asiedu [2015] EWCA Crim 714 |
Categories of appeals allowed after guilty pleas. |
Referenced in Applicant 3’s appeal to reject grounds based on guilty plea. |
| R v Kirk [2015] EWCA Crim 1764 |
Power to order costs and loss of time where extensions refused. |
Applied by analogy in ordering costs and loss of time. |
Court's Reasoning and Analysis
The court analysed the applications within the framework of the Criminal Appeal Act 1968 and the Criminal Procedure Rules, emphasizing the importance of the single judge filter mechanism to prevent unmeritorious appeals from overburdening the court system.
The court reiterated that fresh Grounds of Appeal advanced after refusal by a single judge require leave of the full Court and must be accompanied by an application to vary the notice of appeal. Fresh grounds must be particularly cogent and properly arguable given the prior advice from trial counsel and the duty of due diligence on fresh counsel.
The court considered factors such as delay in advancing new grounds, reasons for delay, knowledge of issues by original counsel, the overriding objective of efficient justice, and the interests of justice. The hurdle for applicants to vary grounds or renew out of time is high, and applications lacking merit should be deterred by loss of time or costs orders.
Applying these principles to each applicant’s case, the court found that none of the fresh Grounds of Appeal had arguable merit. The court accepted the respondent’s submissions that trial procedures, evidentiary rulings, and judicial directions were appropriate and that the applicants’ complaints either lacked substance or were tactical decisions made at trial. The court also noted the burden on court resources caused by the applications and the importance of maintaining finality in convictions.
Holding and Implications
The court DISMISSED all four applications for leave to appeal on fresh Grounds of Appeal.
Each application was found to be totally without merit and unarguable. In consequence, the court made orders for loss of time of 60 days against each applicant, in line with the guidance from R v Gray and others and related authorities.
The decision directly affects the parties by refusing their attempts to renew or vary their Grounds of Appeal and reinforces the procedural safeguards and high threshold for advancing fresh Grounds after single judge refusal. The judgment underscores the court’s commitment to efficient case management and discourages unmeritorious applications, but does not establish new legal precedent beyond clarifying procedural expectations for fresh Grounds of Appeal.