REGINA v Fortean

Factual and Procedural Background

The Appellant applied for leave to appeal against his conviction for causing grievous bodily harm with intent to his ex-partner. The application was initially considered by a single judge who found no arguable ground of appeal and refused leave. The Appellant renewed his application, which was then considered by a panel of three judges, who also refused it as wholly without merit.

The central facts are that the Appellant admitted visiting his ex-partner to collect their daughter, acknowledged a history of conflict, and admitted a physical confrontation at the doorway. The ex-partner was found semi-conscious with serious jaw injuries shortly after the incident. DNA evidence linked the Appellant to the scene. The Appellant denied causing the injuries, suggesting an unknown third party was responsible. The Appellant also admitted guilt in communications following the trial.

Legal Issues Presented

1. Whether the Appellant’s application for leave to appeal against his conviction had any arguable grounds.
2. Whether the sentence imposed was excessive.
3. Whether late disclosure of prosecution evidence or failure to call certain witnesses affected the fairness of the trial.
4. Whether a previous conviction, later quashed on appeal, improperly influenced the jury.
5. Whether the court should exercise its power under section 29 of the Criminal Appeal Act 1968 to exclude time spent in custody pending appeal from counting towards the sentence.

Arguments of the Parties

Appellant's Arguments

• The police failed to make certain enquiries which might have undermined the prosecution case.
• The physical confrontation was trivial and the injuries were caused by an unknown third party during a brief interval.
• Some prosecution evidence was disclosed late, potentially disadvantaging the defence.
• The Appellant wished to call additional witnesses, including his elder daughter and an unnamed individual, to support his case.
• The jury was improperly influenced by evidence of a previous conviction that was later quashed on appeal.
• Photographs allegedly did not show the injuries as claimed.
• The sentence of four-and-a-half years was excessive.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Monnell and Morris v United Kingdom (1988) 10 EHRR 205	Statutory power under section 29 of the Criminal Appeal Act 1968 to exclude time spent in custody pending appeal from counting towards the sentence.	Referenced to justify the court's power to order that part of the time spent in custody does not count towards the sentence due to a meritless appeal application.
R v Howitt (1975) 61 Cr App R 327	Use of the court’s power to deal promptly with appeals that have arguable grounds and to manage meritless applications.	Cited to reinforce the court’s approach to handling leave to appeal applications and issuing loss of time orders for meritless appeals.
R v Hart [2007] 1 Cr App R 31; [2006] EWCA Crim 3239	Practice direction and principles relating to the management of appeals and the exercise of discretion to exclude time spent in custody.	Used to support the court’s reiteration of its established practice in refusing meritless appeals and imposing loss of time orders.

Court's Reasoning and Analysis

The court carefully reviewed the Appellant’s renewed application and found it devoid of merit. The single judge’s detailed reasons were adopted without significant addition. The court noted that the Appellant admitted key factual elements including the confrontation and proximity to the victim when she was found injured. The DNA evidence and the victim’s injuries were incontrovertible, and the Appellant’s theory of an unknown assailant was speculative and unsupported.

The court rejected the claim that late disclosure or failure to call certain witnesses prejudiced the trial, noting that the witnesses were either available but not called at trial or lacked relevance. The court also found that the jury was properly directed regarding the disputed previous conviction and that the evidence of another undisputed conviction and a civil injunction supported the prosecution’s case.

The court emphasized the importance of finality in the criminal trial process and the need to manage a large volume of appeal applications efficiently. It highlighted the statutory power to exclude time spent in custody for meritless appeals and the warnings given to the Appellant about the risks of pursuing such an application.

The Appellant’s subsequent admissions of guilt further undermined the appeal. The court concluded that the appeal was purely speculative and that the sentence was appropriate given the severity of the offence and the Appellant’s prior conduct.

Holding and Implications

The court REFUSED the Appellant’s renewed application for leave to appeal against conviction and sentence, finding it wholly without merit.

Additionally, the court exercised its statutory power to order that six weeks (42 days) of the time the Appellant spent in custody pending appeal shall not count towards his sentence, reflecting the meritless nature of the appeal. This decision directly affects the Appellant’s sentence duration but does not establish new legal precedent. The ruling reinforces the court’s approach to managing appeal applications and discourages pursuit of unarguable appeals.