James & Ors, R v

This is a judgment of the court to which all three members have contributed.

In three of the applications before us (Butler, Robinson and Seddon) nothing should be published that might identify the complainants.

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.

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.

The present applicants were each represented by fresh counsel on a private or pro bono basis. The prosecution was represented at the hearing by Mr Polnay in relation to the overarching issue of the Court’s approach to applications for leave to advance new Grounds of Appeal.

James renews the Grounds of Appeal upon which leave was refused and which were drafted by him in person. Some, but not all, of the new Grounds advanced on his behalf by fresh counsel are related to the original Grounds.

The new Grounds upon which leave is now sought for the other three applicants are unrelated to the original Grounds of Appeal and the applicants no longer pursue the original Grounds of Appeal which were considered by the single Judge.

The applicant Seddon renews his application for an extension of time within which to apply for leave to appeal against his conviction; his original notice of application having been lodged two years and five months out of time. No requirement for an extension of time within which to apply for leave to appeal arises in the other applications; the notice of applications of Robinson and James having been lodged within the statutory 28 day period (s.18(3) CAA 1968) and the single judge having granted the requisite six day extension to the applicant Butler.

All four applications were renewed to the full Court within 14 days following notification of refusal by the single Judge in accordance with Crim PR 36.5(b); consequently no extension of time within which to renew is required by any of the applicants.

It is worth noting that each of the applicants was represented at trial and prior to lodging applications for leave to appeal, they each received from their trial representatives advice as to the existence of any grounds upon which it was arguable that their convictions were unsafe.

In order to place the Court in a position where it is able properly to consider the merits of the new Grounds of Appeal advanced, it has been necessary for the Registrar to request additional Respondent’s Notices from the prosecution and for the applicant’s original representatives to be asked to comment (sometimes for the second or third time) on issues raised in the new Grounds in line with the judgment in R v McCook [2014 EWCA Crim 734]. The Registrar has also been obliged to obtain additional transcripts. In addition to resource implications, (for the Registrar’s staff, the Crown Prosecution Service and the original trial representatives) the need to obtain further material leads to delay. This impacts not only on applicants but also on certainty for victims and upon the potential for a retrial.

It is established law that (save in exceptional circumstances) s 1 of the CAA 1968 confers a single right of appeal (R v Pinfold (1988) 87 Cr.App.R 15 applying the decision in R v Grantham (1969) 53 Cr. App. R 369 and see also R v Yasain [2015] EWCA Crim 1277).Where an appeal or application has been determined by the full Court and the decision or order has been pronounced and recorded, the order is final; the Court is at this point functus officio. However there has been no final determination in the present applications and the Court cannot be said to be functus officio.

Section 18(2) of the Criminal Appeal Act 1968 requires that notice of appeal, or of application for leave to appeal, be given within 28 days from the date of conviction, verdict or finding appealed against, or in the case of appeal against sentence, from the date on which sentence was passed.

Crim PR 39.3 provides the form an appeal notice must take, including a requirement that it:

“…(i)dentify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support…” (Crim PR 39(3) (b))

It is the Registrar’s usual practice, once relevant transcripts have been obtained, and prior to submission of the application to a single judge, to allow counsel 14 days to “perfect” the Grounds of Appeal by reference to the transcripts.

In the Guide to Commencing Proceedings in the Court of Appeal Criminal Division (“The Blue Guide”) the rationale for this practice is explained:

“A5. Perfection of grounds of appeal

A5-1. The purpose of perfection is (a) to save valuable judicial time by enabling the Court to identify at once the relevant parts of the transcript and (b) to give the advocate the opportunity to reconsider the original grounds in the light of the transcript. Perfected grounds should consist of a fresh document which supersedes the original grounds of appeal and contains inter alia references by page number and letter (or paragraph number) to all relevant passages in the transcript.”

Once the Grounds of Appeal are ready to be considered, they are sent to a single High Court judge who exercises his or her powers under section 31 of the CAA 1968 to grant or refuse leave or refer the application to the full court. It is modern and best practice for the single judge to specify any of the Grounds on which leave is granted or refused.

An applicant who is refused leave to appeal by a single Judge of the Court of Appeal is entitled to have the application determined by the full Court pursuant to s31(3) of the Criminal Appeal Act 1968. Crim PR 36.5 provides that:

The legislation and the Crim PR do not lay down a general time limit for lodging Grounds of Appeal as opposed to lodging a notice of appeal; there appears to be an assumption that all the Grounds upon which an applicant seeks to rely will be lodged with the notice of appeal. Furthermore, they do not specifically provide for the lodging of additional Grounds of Appeal before or after consideration by the single Judge. Crim PR36.3 (b) and (d) simply provide that “the court or Registrar may allow a party to vary any notice that that party has served” and to “allow a notice or application to be in a different form or presented orally.”

The Crim PR do, however, expressly provide that where a single judge has granted leave to appeal on some, but not all the Grounds advanced, an appellant who wishes to renew the refused Grounds must apply to do so within 14 days. Crim PR 36.14 states:

CAA 1968 Section 18 (3) provides that the time for giving notice “may be extended, either before or after it expires, by the Court of Appeal.” Crim PR 36.4 requires that a person seeking an extension of time in which to serve a notice or make an application (a) to apply for that extension of time when serving that notice or making that application; and (b) to give the reasons for the application for an extension of time.”

In Hughes [2009] EWCA Crim 841 the court considered the importance of time limits. At para 20 Lord Justice Hughes (then Vice President) observed:

“….Any application for leave to appeal sentence requires leave and, in this case and no doubt any others like it, an extension of time. The right to appeal given by section 9 of the 1968 Act is subject to section 18, which requires an application to be lodged within the time stipulated – which is, by section 18(2), 28 days. An extension of time is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. ……Wholly unmeritorious applications which are no more than an attempt to ventilate second thoughts or to re-litigate decided issues are likely to be met by an order for loss of time under section 29 of the 1968 Act..”

In R v Thorsby [2015] EWCA Crim 1, the Court held at paragraph 13:

“Neither the Criminal Appeal Act nor the Rules limit the discretion of the court on the issue whether an extension of time should be granted. In this court’s experience the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so. There are, however, several components that contribute to the interests of justice. The court will have in mind the public interest in the proceedings of the Court generally, in particular in the finality of Crown Court judgments, the interests of other litigants, the efficient use of resources and good administration. However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual…….

Where there is no good reason why an applicant should not have complied with well-known time limits this court will be unlikely to grant an extension of time unless injustice would be caused in consequence. Accordingly, the court will examine the merits of the underlying grounds before the decision is made whether to grant an extension of time. The judgment is judicial and not merely administrative.”

The Court has since stressed in R v Wilson [2016] EWCA Crim 65 that it:

“must receive details of the delay and an explanation for it, before considering whether it will grant an extension of time. It will need to be satisfied as to the reasons for the delay and whether there is anything that justifies an extension long after the event.” (para 15)

The Court stated that “for ten years the papers were touted around, no doubt hoping to find someone who would put forward grounds of appeal.” The Court made clear that relying upon the merits of an appeal was not enough and that it could “see nothing whatsoever that could conceivably amount to any injustice.” (para 14)

Subsequently in R v Roberts & Others [2016] EWCA Crim 71, the Court observed that granting an application for an extension of time was within the discretion of the Court and it always required reasons as to why it should grant the extension of time. At paragraph 37, the Court stated:

“In deciding whether to grant an extension, the court will consider all the material circumstances, including the explanation for the delay and the cogency of the reasons in seeking an extension when determining whether it is in the interests of justice to grant an extension: see, for example, Hamilton v R [2012] UKPC 21, [2013] 1 Cr App R 13, at paragraph 17 and R v Thorsby [2015] 1 Cr App R (S) 63 at paragraphs 12 – 18. There is no limit on the court’s discretion.”

At paragraph 39:

“….Time limits are set for good reason and in the interests of justice. They must be strictly observed unless there are good and exceptional reasons for their not being so observed. As was made clear by Lord Taylor CJ in R v Burley – an unreported decision referred to in Williams [2010] EWCA Crim 3289 at paragraph 5 – the interests of justice as a whole require the strict observance of time limits.”]

In adjourning an application for extension of time and leave in the case of R v France on 11 May 2016, the Vice President observed to fresh counsel:

“Trial counsel advised on appeal, they knew what the issues were at the trial, and they had a far greater feeling for the dynamics of the trial. This court has faced a large number of applications in recent years from fresh counsel. Sometimes (but not in this case) they will trawl through everything looking for arguable grounds and ignoring tactical decisions taken or the nuances of the trial. As a matter of principle, where there may be arguable but fresh grounds advanced by fresh counsel, we prefer to keep decisions on extensions of time and leave for the full court. The full court will be in a far better position to decide. “

We endorse all those observations on the importance of time limits and recommend them to those considering applications for an extension of time.

Recent Supreme Court and Court of Appeal Criminal Division case law has confirmed the need for applicants seeking extensions of time in “change of law” cases to obtain exceptional leave to appeal out of time by demonstrating that the applicant would otherwise suffer “substantial injustice” (see para 100 R v Jogee; Ruddock v The Queen [2016] UKSC 8, [2016] UKPC 7, and R v Johnson & Others [2016] EWCA Crim 1613 para 24-28).

A suggestion is made in Mr Polnay’s Respondent’s Notice that the need to demonstrate “substantial injustice” might be relevant to applications to renew out of time on the basis of new Grounds of Appeal. However, the Court’s attention was drawn to the recent judgment of R v YMH [2017] EWCA Crim in which the Court rejected the proposition that the judgment in Ordu [2017] EWCA Crim 4 could be read to imply that exceptional leave would be required in cases where the decision did not turn on a change in law; stating that there was no rationale for extending the requirement for exceptional leave to other cases. He did not pursue the point.

Mr Polnay invited the court to consider whether an application to vary Grounds of Appeal might properly be considered without a hearing.

Crim PR 36.5(5) provides that a judge of the Court of Appeal and the Registrar may exercise any of their powers at a hearing in public or in private; or without a hearing but Crim PR 36.6 provides a general rule that the Court of Appeal must hear in public an application, including an application for permission to appeal.

Were applications for leave to appeal on fresh Grounds of Appeal (or applications to amend or vary the notice of appeal) to be referred for consideration to single Judges for determination (without a hearing), applicants would retain the right to renew the application to the Full Court pursuant to Crim PR 36.5. Additionally, where an applicant had renewed his or her original Grounds in addition to seeking leave to advance fresh Grounds, a hearing before the full Court would be required in any event in relation to the renewed Grounds.

CPD IX Appeal 39C: APPEAL NOTICES CONTAINING GROUNDS OF APPEAL:

“39C.1 The requirements for the service of notices of appeal and the time limits for doing so are as set out in Crim PR Part 39. The Court must be provided with an appeal notice as a single document which sets out the grounds of appeal. Advocates should not provide the Court with an advice addressed to lay or professional clients. Any appeal notice or grounds of appeal served on the Court will usually be provided to the respondent.

39C.2 Advocates should not settle grounds unless they consider that they are properly arguable. Grounds should be carefully drafted; the Court is not assisted by grounds of appeal which are not properly set out and particularised. Should leave to amend the grounds be granted, it is most unlikely that further grounds will be entertained.

39C.3 Where the appellant wants to appeal against conviction, transcripts must be identified in accordance with Crim PR 39.3(c). This includes specifying the date and time of transcripts in the notice of appeal. Accordingly, the date and time of the summing up should be provided, including both parts of a split summing up. Where relevant, the date and time of additional transcripts (such as rulings or early directions) should be provided. Similarly, any relevant written materials (such as route to verdict) should be identified.”

Finally, in Cox & Thomas [1999] 2 CAR 6 Lord Bingham, Lord Chief Justice emphasised that consideration of applications and the granting of leave in relation to specific Grounds of Appeal was: “the lynchpin of our appellate system in the field of criminal justice” commenting that:

“The purpose of the leave requirement in our judgment, like any other leave requirement, is to act as a filter: to weed out appeals that would have no reasonable prospects of success if leave were to be granted, and to enable the court to concentrate its judicial resources on cases that have something in them. The purpose of requiring grounds to be specified is to require appellants and their advisors not only to make clear that they are aggrieved at an outcome but also to specify the grounds upon which their grievance is based”.

Once an applicant has exhausted his rights to appeal, should he or she remain aggrieved, they may apply to the Criminal Cases Review Commission to review their conviction.

We have been invited by the Registrar to consider the following:

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

We turn to the facts of the individual applications.

On 9 September 2016 in the Oxford Crown Court, at the end of a retrial before Ms Recorder Laney, the applicant was convicted, by a majority of 10 to 2, of possessing 91.7 grams of diamorphine (Count 1) and 189.59 grams of cocaine (Count 2), with intent to supply. On the same day, and given that he had two previous relevant Class A convictions, the applicant was sentenced to a mandatory term of 7 year’s imprisonment concurrent on each Count, pursuant to s 110 Powers of the Criminal Courts (Sentencing) Act 2000.

He now renews his applications for leave to appeal against conviction following refusal by the Single Judge.

On 27 August 2015, police carried out a raid at a house in Cranley Rd, Oxford. As officers were entering the house, the Applicant was seen by one officer emerging from the downstairs rear bedroom. A search of the bedroom found a large quantity of Class A drugs (diamorphine and cocaine) on a box next to a TV stand. A full search of the property recovered multiple bags containing different quantities and types of drugs (with a total estimated street value of approximately £28,000), a glass bowl containing powdered crack cocaine in the process of being manufactured, 2 sets of digital scales, 4 rolls of cling film, approximately £1,000 in cash, and mobile phones. The Applicant’s fingerprints were on a blue plastic bag and his DNA was on a piece of cling film which contained four drug wraps. Multiple documents relating to the Applicant and his family were found inside the downstairs rear bedroom, and keys to the property were found on him.

He was arrested. Prior to interview he put forward a prepared statement in which he asserted that the house belonged to a friend of his; that he had only arrived at about 7.30 to 8 that morning, about two hours before the raid, having come up to Oxford to visit his children; and that he was simply staying at the house and had no knowledge of, or involvement in, any drug dealing or paraphernalia. Thereafter, he declined to answer questions in interview.

The applicant gave evidence denying that he had stayed at the house, and any involvement in drug possession or dealing. He denied leaving the bedroom when the police had entered the property and gave explanations for the presence of his fingerprints and DNA on otherwise incriminating items. He called his partner and expert DNA evidence.

Grounds of Appeal of the applicant’s own composition were advanced before the Single Judge, namely:

The applicant was invited to waive privilege and did so, after which the observations of his trial counsel were obtained. The Single Judge gave detailed reasons for refusing leave to appeal, and concluded that the Grounds of Appeal were wholly without merit

The Applicant is now represented by fresh counsel, Mr George, who seeks to advance four Grounds of Appeal, aspects of which cover some of the points advanced before the Single Judge. The Grounds are that:

These Grounds were sent to trial counsel for any comments that he may wish to make.

Ground (i) divides into three separate issues:

As to the circumstantial evidence direction, Mr George contrasts the Recorder’s directions with the model example in the Crown Court Bench Book 2010, and contends that whilst the Recorder set out the circumstantial strands of the Prosecution case, and what the Defence case was, her direction failed to make clear that the jury needed to examine the circumstantial strands with great care, to assess whether each strand was neutral or consistent with any other conclusion than guilt, failed to direct the jury to look for co-existing explanations for the evidence or any that might undermine the conclusion which the Prosecution were seeking to prove its case on.

On behalf of the respondent, Mr Underhill submits that, in view of the decision in Kelly [2015] EWCA Crim 817 at [39] there is no longer the need for a direction using specific words or phrases, and that the Recorder’s directions rightly followed the form and substance of the Crown Court Compendium 2016, and were proper, carefully balanced, and appropriately tailored to the specific needs of the applicant’s trial.

As to the adverse inference direction, and relying on Knight [2004] 1 Cr.App.R. 9, Mr George submits that the applicant’s prepared statement was full and covered all matters that it needed to, in consequence of which there was no basis for the Recorder to give such a direction in relation to four matters, namely that the applicant had not said that he was coming out of the downstairs bedroom; that he was an occasional visitor; that he had only leant into the downstairs bedroom; and that the cash found was nothing to do with him.

In response, Mr Underhill submits that the applicant went further in his evidence than he had done in his prepared statement; that the Respondent had been entitled to rely upon the instances where he had done so; and that therefore an adverse inference direction was fair to both parties. The Recorder had heard the evidence and full legal argument on the point, and her decision was not unreasonable.

As to the factual inaccuracy, the Recorder initially summed up to the effect that the applicant had said in evidence that it was “a couple of months” after the Police raid that he had collected documents from his previous solicitors. The applicant disputed that was what he had said. Initially it was agreed that the Recorder should listen to the court recording of the applicant’s evidence to check the position. She did so with the court clerk and concluded that what she had said was accurate. The applicant and his counsel were then permitted to listen to the tape and concluded that the Recorder was in error. In those circumstances, the Recorder had the relevant passage played to the jury in open court, and without comment, and invited them to make up their own minds on the issue.

Mr George complains that the Recorder ought to have heard submissions after all parties had heard the recording and, if possible, after the parties had agreed what the applicant had said – which agreement should then have been adopted by the Recorder and included in the remainder of the summing up. As it was, a risk of the applicant’s credibility being diminished was left open when it should not have been.

In response, Mr Underhill submits that the Single Judge was right to conclude that the issue was correctly dealt with by the Recorder by the playing of the tape so that the jury could decide for themselves what was said.

In our view, essentially for the reasons advanced by the respondent, there is no arguable merit in any aspect of Ground 1.

Ground 2 is concerned with the juror who revealed prior to empanelment, that she might have spoken to PC Oliver-Jacques (one of the searching officers, the Officer in the Case, and the Disclosure Officer) on the telephone. At the request of the Recorder she wrote a note as to the circumstances, which indicated that the officer had telephoned the juror to inform her of the “unexpected death” of her mother. In those circumstances, neither counsel objected to her continuance as a juror.

However, Mr George submits that it was clear that the police evidence was in dispute and that therefore an informed reasonable bystander would not be able to rule out the possibility of the juror being biased.

On behalf of the respondent, Mr Underhill underlines that neither party considered that there were sufficient grounds to disqualify the juror, and submits the Recorder was right not to do so.

This Ground was considered by the Single Judge, who concluded that the transcript of what happened revealed that the issue had been properly dealt with by the Recorder. We agree, there is no arguable merit in this Ground either.

Ground 3 relates to the disclosure process. Mr George submits that there appear to have been three schedules of non-sensitive unused material provided in the case. They were dated respectively 7 September 2015, 11 July 2016 and 18 July 2016. The first two were completed by PC Oliver-Jacques, the third (which related only to scene of crime material) was completed by Lisa Ann Wilcox and was of relatively limited value.

Mr George submits that the first two schedules were deficient in that:

Mr George further submits that there did not appear to have been any proper reply to the Defence Statement. In the result he asserts that there are grounds for suspecting that the disclosure process might have been deficient – such as to render, or to potentially render, the Applicant’s conviction unsafe, as he was entitled to put forward all other candidates who might have placed the drugs in the house, and any other person who lived there, or regularly visited there or had any other connection with the address, if they had any connection with drugs.

On behalf of the respondent, Mr Underhill submits that the respondent met its disclosure duties in the case, and that there is no merit in this Ground. In the Respondent’s Notice he sets out an item by item rebuttal of the points made on behalf of the Applicant, and invites the Court to note that there were clear tactical reasons why many of the matters raised in relation to others were not actively pursued by the Applicant at trial – namely that the Applicant had successfully excluded bad character evidence as to his previous drug convictions, and pointing the finger of blame at any particular individual would risk its resurrection.

In our view, and as Mr George effectively accepted in argument, the highest that this Ground could be put was that it may be arguable after further investigation. That is well below the cogency required on an application to add a new Ground at this stage. In any event, for the reasons advanced on behalf of the respondent there is no arguable merit in it.

Ground 4 is concerned with the witness Michael Sinclair being allowed to be treated as hostile – as to the initial stages of which there is no transcript. Mr George submits that it is, nevertheless, clear that Sinclair had made it clear, before going into the witness box, that he did not want to do so because the judge at the first trial had told him, after he had finished giving evidence, that he did not have to come back. Given that the word adverse in s.3 of the Criminal Procedure Act 1865 means hostile, and not merely unfavourable, Mr George submits that Mr Sinclair was not a hostile witness but an unwilling one. Before the hostile witness procedure was embarked upon, other steps should have been taken to persuade him to give evidence. In any event, the Recorder had failed to address the criteria in s.3. Finally, the process was not carried out in the presence of the jury, as it should have been, and what had happened overall affected the safety of the conviction.

On behalf of the respondent, Mr Underhill submits that the Recorder was well placed to determine the issue and had a wide discretion. The witness was clearly unwilling to answer questions and demonstrated that in front of the jury. There is no distinction between a witness who gives evidence inconsistent with a witness statement and one who is reluctant to say anything. In any event the discretion involved can only be interfered with in exceptional cases (see R v Williams (John) 8 Cr.App.R. 133), which this case is not.

The common law has long recognised that when a witness refuses to give evidence, and thus s.3 of the 1865 Act is not engaged (because the previous statement of the witness is not inconsistent with their present testimony), the judge nevertheless has a discretion to allow cross-examination – see Thompson 64 Cr.App.R. 96. In the result, and whilst it would have been better if all questioning of the witness had been in the presence of the jury, the witness was plainly refusing to give evidence, and thus the Recorder was entitled to permit him to be cross-examined. Hence, in our view, there is no arguable merit in this Ground either.

In conclusion, there is no arguable merit in any of the Grounds now sought to be advanced. Indeed, in our view, they are all totally without merit. In those circumstances and for the reasons given earlier in this judgment and in the judgment in Gray and others, we make a loss of time order of 60 days.

On 28 July 2016, at the end of a trial before Her Honour Judge Wright in the Sheffield Crown Court, the applicant was convicted of rape of a child under 13 and sentenced to 8 years’ imprisonment with an extended licence period of 1 year (pursuant to s.236A of the Criminal Justice Act). An SHPO was made until further notice.

He now renews his application for leave to appeal conviction after refusal by the Single Judge (who granted an extension of time of six days, but indicated that, in the event of renewal, the full Court should consider making a loss of time order).

In 2015, the complainant, L, then aged 13, was interviewed by police following an accusation by his mother of child sex abuse. L said that, when aged 8 or 9 years old, he had been left alone with the applicant while his mother, pregnant with his sister, was being taken to a hospital appointment by their next-door neighbour’s son N. The applicant was N’s boyfriend and lived with N and his family. He had been trusted to take care of L. L’s family were close to N’s family, and L and his siblings had been looked after by N and his mother on previous occasions.

According to L, he and the applicant were playing videogames in L’s bedroom and the applicant had his arm around L in what L thought to be a friendly gesture. The applicant tightened his arm, pushing L back, face down, onto the bed they had been sitting on. L said ‘stop’ and was wriggling to get back up. The applicant, in his early 20s and much stronger, held L down and told him to ‘shut up’. L was aware of the applicant pulling down his own trousers and lifting his knees one at a time onto the bed. After several attempts, the applicant inserted his penis into L’s anus, having spat on his hand first and then moved back and forth. L continued to try and get away but the applicant held one hand hard on his back. L felt wet but was unsure whether it was the spit – he thought the applicant had not had time to put on a condom.

The applicant stopped moving and pulled his trousers back up. He told L not to say anything and left. L was alone in the house, in considerable pain, which made him feel nauseous, until his mother came home. L did not tell his mother what had happened because he did not want to upset her while she was pregnant. He stayed out of the applicant’s way, taking a longer route to school to avoid the neighbour’s house, and was not left alone with him again.

L’s mother gave evidence that the occasion when N had taken her to hospital, and the applicant had looked after L, was in October 2011. She said that L was rude to her when she returned from the hospital and wanted to be left alone. He did not eat his tea that night, claiming to be feeling unwell. He barely ate over the next few days and did not want to go to school, which was unusual for him. N’s family moved from the area in February 2012, and L’s family moved in March 2012.

In January 2015, L’s mother was concerned enough about his behaviour to check his phone. She found a message from him to a friend saying he had been raped by the next-door neighbour’s friend. She spoke to L and he told her what had happened. The next day she called the police.

The applicant was arrested on 5 February 2015. He admitted that he knew L but claimed to have left the relevant area in March 2011. He denied ever being alone with L and denied the allegation in its entirety.

The applicant gave evidence that L was not telling the truth. He relied upon his good character, the delay in reporting the matter, and the continued assertion that he was not living in the relevant area at the material time.

Trial counsel and solicitors advised against an appeal. The applicant sought advice from another firm of solicitors and counsel, in consequence of which five Grounds of Appeal were advanced before the Single Judge, as follows:

As we have touched on above, in rejecting those Grounds, the Single judge concluded that they were entirely without merit.

Those Grounds have all been abandoned by Mr Barlow, who now appears as fresh counsel for the applicant. He puts forward three new Grounds of Appeal, which are concerned with the following:

Mr Barlow asserts that the trial rested upon an assessment by the jury of the reliability of L’s evidence, and the correctness of his identification of his abuser.

Ground 1 arises against the background that the jury heard evidence from L that he had told B, firstly face to face, and then via the text message that was seen by his mother, about what had been done to him. However, B (who had been ABE interviewed by the police on 11 February 2015) was not called.

Mr Barlow accepts that the judge’s directions in relation to that issue were reduced into writing, agreed with counsel, and cannot be said to be legally wrong. The difficulty, Mr Barlow submits, is that the jury did not hear from B, which was highly relevant to the issue of credibility and reliability.

Mr Barlow submits that if B had given evidence it would have emerged that B’s account was that the incident had only been mentioned in one face to face conversation with L, and not in any text(s); that L had not said the name of his abuser; that L had not told him exactly what had happened; and that L had not mentioned that his abuser had been baby-sitting whilst L’s mother was in hospital.

B’s account was, Mr Barlow submits, of particular importance given that, by the time of the trial, it was asserted that the text (or KIK) messages about which L and his mother had spoken were no longer available, and it was L’s claim that he had told B the name of his abuser.

Against that background, Mr Barlow submits, the jury were misled. The Crown had chosen not to call B, and the judge had erred in refusing to permit the applicant’s trial counsel to cross-examine the Officer in the Case as to what B had said in his ABE interview. In consequence the Applicant had not received a fair trial.

Miss Harrison, who was originally instructed to appear for the respondent at trial but was not able to do so, points out that a summary of B’s ABE interview was disclosed in January 2016, followed by the full transcript in March 2016 – four months before the trial.

Miss Harrison explains that the respondent decided not to call B because L’s mother was able to give more detailed evidence of complaint than B, and B’s evidence did not add to the respondent’s case.

Correctly viewed, Miss Harrison submits, there were three very minor matters that could have been elicited from B in evidence – that he had said that L did not name his abuser (whereas L said that he had told him his abuser’s first name); that L had not told him that his mother had had to go to hospital at the time (when L did not suggest that he had mentioned it); and that he had said that he and L had not discussed the abuse via text (or more likely KIK) message (when L’s mother said that it was seeing such a message that had instigated her conversation with L). None of those matters, Miss Harrison submits, could have undermined the prosecution case. If they had done so, the applicant’s experienced trial counsel would have obtained appropriate admissions from the prosecution about them or, failing that, could have called B to give evidence. Yet that was not done. In the result, Miss Harrison submits, the applicant did receive a fair trial.

We note that the applicant’s trial counsel confirms, in his comments to the Registrar dated 5 October 2016, that B’s ABE interview was in the unused material and was used in the cross-examination of L. He too regarded the differences between the accounts of L and B as being minor and understood that B’s parents did not want him to be a witness. They would not have co-operated with the Defence solicitors if the Defence had attempted to call him.

We can see nothing arguably improper or unfair in the way in which either the parties or the judge dealt with this issue, and no consequent arguable impact on the safety of the conviction. Ground 1 fails.

As to Ground 2, Mr Barlow (whilst recognising the need to clarify matters with trial counsel) submits that it is unsatisfactory that it is not clear from the evidence at what point L was shown Facebook photographs in which he identified the applicant, and that the absence of formal identification procedures and safeguards raises a fundamental issue as to the safety of the purported recognition of the Applicant by L. He submits that, contrary to the requisite approach consequent on the decision in Alexander & McGill [2013] 1 Cr.App.R. 26, the images that were used were not kept, and no detailed records were made.

Miss Harrison underlines that, in her 999 call, L’s mother gave the operator the Applicant’s name as the abuser, and his date of birth. Miss Harrison nevertheless accepts that there was some confusion, and that the evidence of L’s mother was that the police had brought a picture of N, that L had said that it was not N, and that they had then found the picture of the applicant on Facebook. That said, Miss Harrison submits that logic dictates that L was not shown the photographs by the police. In any event, Miss Harrison submits, in this case there was only one opportunity for the applicant to commit the offence, namely the occasion when L’s mother was taken to hospital by N and (as L’s mother said in evidence) the applicant had looked after L. Hence the identification evidence was not such as required any use of Facebook by the police.

The real point in relation to this Ground, as is obvious from the transcript of the Defence closing speech at trial, is that the issue as to the identification of the applicant by L and his mother was credibility not reliability.

That is hardly surprising because L and his mother were next door neighbours of the applicant and had been for some months prior to the alleged offence in October 2011. Even on the applicant’s evidence, which the jury clearly rejected, that he had moved away in March 2011, they were all known to each other by sight and name.

In those circumstances it is equally unsurprising that no one suggested to the judge that specific directions in relation to photographs were required, and that no such directions were given. Neither they, nor any sort of Turnbull direction, were required. They would only have confused the position. Instead and rightly, the evidence was correctly summarised, and it was made clear that credibility was the critical issue.

In any event the combination of the evidence of L’s mother to the effect that there was one occasion, in October 2011, when she had been taken to hospital by N, and had left the applicant to look after L, and L’s evidence that on that occasion the applicant had raped him, provided a strong case against the applicant which was supported by the obviously false alibi which the applicant had put forward and which he sought to maintain in the face of overwhelming evidence to the contrary.

Therefore Ground 2 fails. It provides no arguable basis for the contention that the Applicant’s conviction is unsafe.

As to Ground 3, Mr Barlow points out that L’s mother gave evidence as to L’s demeanour at about the time that the alleged rape had taken place, and for a number of months thereafter. Mr Barlow submits, by reference to Venn [2002] EWCA Crim 236 and Keast [1998] Crim.L.R. 748, that that evidence was inadmissible. It was not evidence of long-term depression or change in personality, but rather of purported recalled teenage attitude. Further, it appeared that, at the time, his mother had asked if he was fine, and he had replied that he was.

Further, Mr Barlow points out that the judge gave no directions in relation to the evidence and submits that there was therefore a real danger that the evidence may have been used by the jury to add credibility to L’s account, when there was no concrete basis to do so.

Miss Harrison submits that the evidence of L’s behaviour in the aftermath of the alleged incident plainly had the concrete basis required by Keast and was not generic behaviour of the type that was of concern in Venn. Hence the evidence was properly admissible.

Miss Harrison accepts that there was no specific direction in relation to this evidence in the summing up but emphasises four separate passages in the summing up in which the judge indicated that the jury’s view of the truth or otherwise of the allegation would depend upon their assessment of L himself. Therefore, Miss Harrison submits, the overall strength of the prosecution case means that the conviction is not rendered unsafe by the failure to give such a direction.

We agree with Miss Harrison. The evidence was admissible, and the lack of specific direction does not provide an arguable basis upon which to suggest that the conviction was unsafe. Ground 3 also fails.

In the result we conclude that, like their predecessors, all the new Grounds are totally without merit. In those circumstances, and again for the reasons identified earlier and in Gray and others, we make a loss of time order of 60 days.

On 1 June 2016, in the Crown Court at St Albans the applicant changed his plea to guilty of the offence of arranging or facilitating the commission of a child sex offence, contrary to s.14(1) Sexual Offences Act 2003 (count 2 on the indictment). On 2 June 2016, HHJ Carroll sentenced him to 32 months’ imprisonment, and imposed a Sexual Harm Prevention Order for period of 5 years. His sentence appeal was heard by the Full Court on 5 October 2016 and the appeal was allowed solely to the extent of quashing the Sexual Harm Prevention Order. (Robinson (Aaron Dwayne) [2016] EWCA Crim 1546).

His co-accused Imran Dustagheer was convicted of one count of rape of a child under 13 (count 3) and one count of making an indecent photograph of a child (count 5). He was sentenced to a total of 64 months’ imprisonment.

The applicant renews his applications for leave to appeal against conviction following refusal by the single judge. Mr Richmond QC, who did not appear at trial, represents the applicant on a pro bono basis and intends to advance Grounds of Appeal that were not considered by the Single Judge.

The applicant who was 27 at the time of the offence, and Ms X who was 12, were “friends” on a social media website and began to communicate via its instant messaging service. On 6 December 2015, the applicant collected X and took her to a hotel. Shortly after they arrived she was found by the hotel staff in a distressed state apparently hiding. She was partially undressed and screaming. Shortly after this she was seen by hotel staff leaving in a car driven by the applicant. The applicant took her to another hotel where sexual activity occurred between X and Imran Dustagheer.

On arrest the applicant falsely claimed to be his twin brother and persisted in the lie for some 12 minutes. His mobile phone had text messages on it such as “Got pussy for me and you” sent by him at 01:38 on 6 December 2015. When he was with X he sent another “I’m with a dirty slag ask tel if he wants a piece.”

The applicant pleaded guilty and submitted a basis of plea, within which he contended that he had believed that X was 17 years old. There was no Newton Hearing, but the judge noted that in her “Facebook” page X had given a false year of birth 1998 as opposed to 2003. She had represented herself as being in a relationship. The Facebook page showed “selfie” photographs of the complainant in sexually provocative poses and she had described herself as 17 on an online messaging site. There were therefore genuine grounds for the applicant and Dustagheer to conclude that she was aged older than 12 years.

The judge also described her as a very troubled, very immature young girl with “quite difficult personal issues to resolve who in many ways sadly needs protecting from herself”.

The applicant had sought to argue that the judge erred in his ruling on the mens rea required to establish that an offence contrary to s 14 Sexual Offences Act 2003 has occurred. The applicant is now represented by fresh Counsel (Mr Richmond QC) and he renews his application on Amended Grounds of Appeal dated 20th June 2017. They were submitted after the single Judge had refused leave and the applicant argues that trial Counsel did not properly address the issue that the applicant “would not be guilty of facilitating a child sex offence unless he took the complainant to the hotel for the purpose of sexual intercourse (either himself or another) or in some way intentionally arranged or facilitated another to do so.”

The applicant contends that the assertions contained in his amended grounds of appeal amount to a defence to the offence. An undated and unsigned witness statement from the applicant is appended to the Grounds of Appeal, along with numerous other documents including his own amended grounds of appeal. In view of the criticisms made of trial counsel, the applicant waived his privilege. Trial counsel has prepared a response to the amended grounds of appeal. The thorough and comprehensive response includes parts of the applicant’s proof of evidence and reference to his belief that what his co-accused would do with the victim was of a sexual nature. All correspondence has been put together in a bundle and has been considered by the court.

There are no merits whatsoever to this application to vary the grounds and to the fresh ground. There is no evidence to support his contention that his counsel acted negligently or failed to give him comprehensive legal advice. He signed an endorsement that when he left the room where the victim was with the co-accused he “believed that something of a sexual nature would take place between Dustagheer and [the victim]; and, I accept by driving them to the hotel and leaving them alone, my actions facilitated this.” He was under no pressure to sign the endorsements and had had lengthy conferences with counsel. Moreover, the ground of appeal fails to deal adequately with the part of s14 (a) which provides “or believes that another person will do”.

The plea of guilty does not fall into any of the categories set out in Asiedu [2015] EWCA Crim 714 nor was the applicant in all likelihood deprived of a good defence in law. The evidence against him was and remains strong and the assertion he now makes that he made an assumption as to sexual conduct was contradicted by his instructions at the time, including his own signed basis of plea, the fact that when he had left Dustagheer and the victim alone they were kissing and the victim had previously told the applicant that she liked Dustagheer. Prior to this the applicant and the victim had had numerous conversations of a sexual nature. Sexual conduct was something he believed another person (Dustagheer) would do. This case does not fall into the limited category of cases where an appeal is allowed after a guilty plea. It should not have been advanced. There is no arguable merit in any of the Grounds now sought to be advanced. In those circumstances and for the reasons given earlier and in the judgment in Gray and others we make a loss of time order of 60 days.

On 8 November 2013, at the Liverpool Crown Court, the applicant was convicted by a jury of 5 specimen counts of indecent assault (counts 6-10 contrary to s14 of the Sexual Offences Act 1956) and 2 specimen counts of assault by penetration (counts 11 and 12 contrary to s2 of the Sexual Offences Act 2003). He was acquitted of counts 1 to 5, and 13 (indecent assault, attempted rape).

The complainant, Y (now 32), is the applicant’s natural daughter. In May 2011, when Y was about to get married, she told work colleagues and her future husband that the applicant had sexually abused her from the age of 13 years to 21 years. She would return from school and he would make her undress completely and put on a pair of white tights. The applicant would then use his “tongue on her privates”, insert his tongue into her vagina, rub her legs and masturbate himself to ejaculation. This occurred two to four times a week. If she refused to co-operate, the applicant took it out on her mother including using violence against her. Y left home in 2009 and did not speak to her parents for several years.

On 18 August 2012, the applicant’s sister, attended St Helen’s Police Station and complained that both she and the complainant Y had been sexually abused as children. The jury acquitted the applicant of all counts 1-4 involving the sister.

He renews his application for an extension of time (2 years 5 months) in which to seek leave to appeal against conviction. The application for an extension is predicated on the fact that trial counsel provided negative advice and alternative counsel was instructed. An advice and grounds were then lodged and considered by the single judge. Fresh counsel was instructed and he lodged grounds of appeal dated 18 May 2016. The one ground, which was considered by the single judge, was that the applicant’s trial counsel had erred in failing to call three witnesses. On 1 March 2017 the single judge refused leave and the applicant renewed his application.

On 16 April 2017 further and different counsel was instructed and it was indicated that he had accepted instructions to represent the applicant, the ground considered by the single judge, was no longer being pursued and amended grounds were lodged. The fresh grounds are (1) the judge’s direction concerning the complainant’s complaint evidence was unhelpful in the particular circumstances of the trial, (2) the judge made comments that were unfair and prejudicial to the applicant, namely raising the issue about why the applicant had not been invited to the complainant’s wedding and, (3) the evidence of the complainant wearing “white tights on every occasion” should not have been given the significance it was.

We have considered the renewed application and the renewed, and amended grounds of appeal, and do not consider that that the trial judge fell in to error. Specifically, the complaints and in what circumstances the complaints arose were properly before the jury and the judge’s directions on them were not ‘unhelpful’, wrong or misleading. The jury had seen the complainant give evidence and be challenged in cross-examination, along with three witnesses to whom she had made disclosure. Albeit MD’s complaint to one witness about her father had not been as it was to other witnesses, it formed part of the circumstances in which the complaints arose, and as such properly before the jury. The judge was punctilious in reminding the jury as to their separate roles; and in reminding them that they were the sole judges of fact throughout his summing up.

The judge’s summing up in respect of why MD did not want the applicant to give her away at her wedding was fair and appropriate because it was an obvious question that had arisen during the trial and course of the evidence. The judge was careful to leave it to the jury how to consider the evidence about it. The judge was, again, careful to put the defence case.

The white tights were a feature of the evidence of MD regarding the complaints she made about the sexual assault. The significance of the white tights was an issue raised by the defence as well as the prosecution. The judge summarised the prosecution and the defence arguments and left the question as to their significance to the jury. There was no discernible prejudice to the applicant in this or in any other aspect of the judge’s summing up which was lucid, careful and fair.

This application is totally unarguable and should not have been advanced. The explanation for the extension of time is also inadequate. We make a loss of time order for the reasons given earlier and in Gray and others of 60 days.