McCook, R v

There is before the court a reference by the Registrar under section 20 of the Criminal Appeal Act 1968 in respect of an application for leave to appeal which the Registrar has referred to us on the basis that we should consider the case to see if we should summarily dismiss it as an appeal which is frivolous or vexatious and can be decided without a full hearing.

The facts can be briefly set out. The applicant was charged with robbery. He raised various defences, including a wrong identification and that his medical condition was inconsistent with his being able to carry out the crime of robbery. On 14 December 2011 he stood trial in the Crown Court at Guildford before His Honour Judge Matthews QC and a jury. Medical evidence was read to the jury. He was convicted of robbery on 15 December 2011 and was subsequently sentenced to six years' imprisonment.

An application was made to this court on the basis that the list of previous convictions, which the judge had admitted as bad character evidence, was not correct. In a judgment given on 4 July 2012 this court allowed the appeal and ordered a retrial.

In pursuance of that order, on 27 July 2012 there was a hearing for directions in the Crown Court at Guildford. It is evident from a transcript of that hearing that further steps were to be taken on behalf of the applicant to obtain medical evidence in respect of the further trial. On 5 November 2012 the retrial commenced. Medical evidence (more extensive than that at the first trial) was placed before the jury in the form of statements. On 7 November 2012 the applicant was again convicted and sentenced to a period of six years' imprisonment.

It is apparent that, immediately after the trial, pursuant to the arrangements that exist for advice to be given in respect of conviction and sentence, counsel who had represented the applicant throughout advised that there were no grounds on which an appeal could be brought. That written Advice was sent by the solicitors to the applicant on 19 November 2012. The solicitors endorsed the view of counsel.

In April 2013 new solicitors named Prime Solicitors were instructed.

On 13 February 2014 an application was made for an extension of time and for leave to appeal against conviction. The grounds of appeal that were before the court were directed at the first trial, the conviction for which had been set aside by this court in July 2012. From the papers that were served on this court on 13 February 2014 it was apparent, first of all, that on 9 September 2013 the Legal Aid Agency had extended the amount of money that could be spent on this case with their authority to £1,503.87, and on 21 January 2014 they had further extended the authority to spend from £1,503.87 to £2,056.56. It was also clear from the papers that at least the solicitors had the Advice of counsel and solicitors given after the retrial. Also contained in the papers was the first summing-up, but it appears not the second.

The grounds of appeal were settled by counsel. They contained essentially one point: that there had been a failure to call proper medical evidence at the first trial.

After these matters were drawn to the attention of the applicant's solicitors and counsel, counsel returned the case on the basis that he had not been given the relevant information and the grounds of appeal could not therefore be sustained. The solicitors attempted to withdraw the appeal, but did not obtain the necessary forms. There was a further attempt by the applicant's mother who said that her son did not wish to continue with the appeal. None of those is effective.

It is plain from the facts that we have set out that the appeal is frivolous and vexatious, and can be summarily dismissed without a hearing.

This case illustrates, however, two matters. First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed. In R v Achogbuo [2014] EWCA Crim 567 we stated that it was necessary to do so where criticisms of previous advocates or solicitors were made, or grounds were to be put forward where there was no basis for doing so other than what the applicant said. Second, it is clear from this case that we must go further to prevent elementary errors of this kind. In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare.

Unfortunately, although we had asked the solicitors to return at 2pm to explain what has happened, they have not done so. This court cannot in the circumstances delay the matter further. It will not comment in any way on the conduct of the solicitors concerned, but merely refer them to the Solicitors Regulatory Authority. If, in the course of the investigations by the Solicitors Regulatory Authority, it transpires that there are issues involving counsel, they will no doubt consider whether they should refer the matter to the Bar Standards Board.

For those reasons, therefore, this application for leave to appeal is summarily dismissed.