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[2025] EWCA Crim 425 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT PETERBOROUGH RECORDER JEREMY RICHARDS T20017143 CASE NO 200200286/B3 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE JEREMY BAKER
MR JUSTICE GOOSE
MR JUSTICE CONSTABLE
REX
V
JAMES FRANCIS HOCKEY
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Computer Aided Transcript of Epiq Europe Ltd,
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Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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NON-COUNSEL APPLICATION
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J U D G M E N T
MR JUSTICE GOOSE: This is an application to treat the abandonment of an appeal against conviction and sentence as a nullity.
On 21 December 2001, when he was aged 20, the applicant was convicted in the Crown Court at Peterborough of wounding with intent. He had previously pleaded guilty to an offence of theft.
On 7 February 2002 he was sentenced as follows: for the offence of theft, to which he pleaded guilty, 12 months in a young offender institution and in respect of the second indictment, wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 a sentence of custody for life with a minimum term of 46 months under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.
An application for leave to appeal against conviction and sentence was received on 15 January 2002 with grounds of appeal settled by trial counsel. On 13 August 2002 the single judge refused leave to appeal. On 20 September 2002 the applicant renewed his application for leave to appeal against conviction, sentence and a representation order. On 9 November 2002 the applicant signed a Form A abandoning all proceedings in this court.
He now applies to have the abandonment treated as a nullity. In a letter from the applicant dated 22 January 2025 he states:
"I have no knowledge of renewing the application again, let alone then abandoning the application a couple of months later as again I was told that no more could be done ... and that there was no legal aid either."
The relevant legal principles in relation to the application to treat as a nullity an abandonment of an appeal to the Court of Appeal were distilled from previous decisions of this court including R v Medway (1976) 62 Cr.App.R 85. In the more recent case of R v Smith (Paul James) [2013] EWCA Crim 2388 at paragraph 58 in which it was said:
"From this review of the law we derive four propositions which are relevant to the present case:
A notice of abandonment of appeal is irrevocable, unless the Court of Appeal treats that notice as a nullity.
A notice of abandonment is a nullity if the applicant's mind does not go with the notice which he signs.
If the applicant abandons his appeal after and because of receiving incorrect legal advice, then his mind may not go with the notice which he signs. Whether this is the case will depend upon the circumstances.
Incorrect legal advice for this purpose means advice which is positively wrong. It does not mean the expression of opinion on a difficult point, with which some may agree and others may disagree."
Discussion and conclusion
The applicant's statement in his letter dated 22 January 2022 that he was not aware of either the renewal application or any notice to abandon his appeal is not consistent with his signature to the document on 9 November 2002. In that document which post-dated his renewal request he stated that he wanted unequivocally to abandon his appeal and signed the document.
The issue that we must address is whether that unequivocal step was because he had received incorrect legal advice, such that his mind did not go with his act of abandonment. Put simply, was the advice he states he received positively wrong or was it the result of an expression of opinion on a difficult point, namely whether his appeal had any prospects of success at all? He was told that there was no further legal aid after the single judge's refusal of leave, which was correct. He was also told that his solicitor could not do anything more for him. Was that positively wrong legal advice or simply the conclusion that the appeal had no merit? The fact that it has taken the applicant 23 years to raise the question of an appeal strongly suggests to us that there was little, if any, merit to his appeal which is why he was told there was nothing more to be done. As a consequence he expressly abandoned it on 9 November 2002, a fact which he had forgotten, and did nothing for a further 23 years.
We have come to the conclusion therefore that the applicant has not provided any evidence that he received positively incorrect advice such that when he signed the notice of abandonment his mind did not go with his act. Accordingly, we must refuse this application.
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