Charles, R v [2001] EWCA Crim 1755 (29th January, 2001)

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R v. JEROME CHARLES R v. LEE NIGEL TUCKER [2001] EWCA Crim 1755 (29th January, 2001)

1. On 17th December 1998 in the Crown Court at Aylesbury the applicant Jerome Charles was convicted of robbery and having an imitation firearm with intent to commit an indictable offence. Just prior to the start of the summing-up, he absconded. He was arrested in March 2000 and on 10th April of that year was sentenced to 7 years' imprisonment on each count concurrent. He renews his application for leave appeal against conviction following refusal by McKinnon J. He also applies for any extension of time which may be necessary.

2. On the 4th October 2000, Lee Nigel Tucker was convicted of 4 counts of buggery, 4 counts of indecent assault and 1 count of causing a stupefying drug to be taken with intent to commit an indictable offence. He was subsequently sentenced to a total of 8 years' imprisonment. Tucker is still unlawfully at large. He seeks leave to appeal his conviction. Tucker's application was referred to the Registrar who stated: "I take the view that this application is ineffective as he is not available to receive advice or give instructions." Following a letter from the applicant's solicitors, the matter was referred by the Registrar to the Full Court,

3. Given that the two cases raised similar issues they were listed together before the Full Court with a view to the Court giving guidance as to what should be the proper approach in these and similar circumstances.

4. Both applicants were represented by counsel having been granted legal aid to make the applications. Mr David Perry appeared as amicus curiae. We are grateful to all counsel for the assistance which they have given us. We are also grateful to the Criminal Appeal Office for the assistance which we have received.

5. In the case of Charles, Miss Mullen dealt with the merits of the application. Mr Rees was not invited to deal with the merits.

6. Section 18(2) of the Criminal Appeal Act 1968 provides that an application for leave to appeal must be given within 28 days from the date of conviction or, in the case of an appeal against sentence, from the date on which the sentence was passed. Section 31 provides that the power to grant leave to appeal or to extend the time within which an application for leave to appeal may be given, may be exercised by a single judge. Rule 2 of the Criminal Appeal Rules 1968, as amended, provides that notice of an application for leave to appeal shall be given by completing Form NG. In the form used by the solicitors for Charles and Tucker, there is a warning to a person in custody that if the Court is of the opinion that the appeal is plainly without merit then an order may be made that time spent in custody as an appellant shall not count towards sentence. There is also a warning to all would-be appellants that an order of costs may be made against them. The form continues:

"This form shall be signed by the appellant but may be signed by his/her legal representative providing the WARNING set out above has been explained to him, and he is sent a copy of this form."

7. There have now been modifications to the forms, but the differences in wording do not affect the nature of the warnings and the requirement on the part of the legal representatives to ensure that the effect of the warnings has been explained to the applicant. If solicitors have been unable to give the warning, then that fact should be noted.

8. There is then a place for the signature of the appellant or the signature of someone signing on behalf of the appellant. That form, by virtue of Rule 2, has to be served on the appropriate officer of the Crown Court. Accompanying it must be the grounds for the application.

"(1) Where a judge of the court has refused an application on the part of an appellant to exercise in his favour any of the powers referred to in section 31(2) of the Act, the appellant may have the application determined by the court by serving a notice in Form 15 on the Registrar within fourteen days, or such longer period as a judge of the court may fix, from the date on which notice of the refusal was served on him by the Registrar.

(3) If the notice is not signed by the appellant and the appellant is in custody, the Registrar shall, as soon as practicable after receiving the notice, send a copy of it to the appellant.

(4) If such a notice is not served on the Registrar within the said 14 days or such longer period as a judge of the court may fix, the application shall be treated as having been refused by the court."

"Rule 12(4) cannot have the effect that it purports to have of precluding the Full Court from determining whether or not an extension of time should be granted for the service of a notice in Form 15 under Rule 12(1)."

Following that decision the Registrar directed that, contrary to previous practice, all applications to extend time to renew should be listed before a Full Court.

"in the case of a document to be served on any other person [other than the Registrar or on an appropriate officer in a Crown Court]-

(ii) by leaving it for him with some person at his last known or usual place of abode, or

(iii) by sending it by post addressed to him at his last known or usual place of abode."

12. If the appellant is in custody then the period of 14 days starts from the date upon which the appellant receives the notice of refusal by the single judge. In all other cases the period starts from the date upon which notice of the refusal was served on the appellant. In the case of an applicant who has absconded, service for the purpose of Rule 12 may be effected, by virtue of Rule 21(1)(c)(iii) by sending it by post addressed to him at his last known or usual place of abode. By virtue of section 7 of the Interpretation Act 1978 service will then be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.

13. The Guide to Proceedings in the Court of Appeal Criminal Division (available at www.courtservice.government.uk) states that no-one convicted or sentenced in the Crown Court in circumstances where an appeal lies to the Court of Appeal Criminal Division should be without advice or assistance on appeal. Under the heading Initial Steps, paragraph 1.1 provides:

"Provision for this is included in the trial legal aid order - section 2(4) Legal Aid Act 1988. Solicitors should not wait to be asked for advice by the defendant."

Under the same heading, paragraph 1.6 provides that solicitors should not leave the completing and lodging of Form NG to the defendant.

14. We turn to a more detailed history of the procedural steps in the Charles case. He absconded on the same day on which he was convicted. On 13th January 1999 an application for leave to appeal the conviction was submitted on form NG to the Crown Court at Aylesbury by Yung and Co. solicitors. The form gave an address for the applicant in Southall. It was signed on behalf of the appellant by Ms Yung. There was nothing on the form to suggest that the warning had not been given. The application was placed before McKinnon J. On 13th April 1999 McKinnon J. refused leave observing:

"It does not seem to be arguable that this is one of those "most exceptional cases" where leave should be granted despite the applicant having absconded just before the trial judge began his summing-up and thus not having given authority after conviction for this appeal to be commenced (see R v Jones (1971) 55 Cr. App R. 321). As the applicant has not given the appropriate authority, leave to appeal is refused."

15. On 16^th April 1999, a copy of the order of McKinnon J refusing the applicant leave to appeal was sent to the solicitors who had filed the notice of appeal and to Charles himself at the address in Southall entered on the Form NG. Thus the Registrar effected service on the applicant in accordance with Rule 21(1)(c)(iii) on the 17th. The solicitors did not seek to renew the application before the Full Court.

16. Having been arrested in March and sentenced in April a further Form NG was submitted to Aylesbury Crown Court on 5th May. That form was signed by the appellant himself and had been submitted by the same solicitors, Yung and Co. That application has been rightly treated as an application to the Full Court under Rule 12 to renew the application following refusal by a single judge. In the light of the letter sent to the applicant on 16th April 1999, he needs an extension of time of just over 1 year.

17. For reasons which we shall set out later, we grant the applicant leave to appeal his conviction and grant him the necessary extension.

18. We turn to the history in the case of Tucker. Tucker absconded on the 2nd October 2000, 2 days before the conclusion of his trial. The trial continued in his absence and, as we have said, he remains unlawfully at large. An application for leave to appeal against conviction using Form NG was submitted to the Bristol Crown Court on the 17th October. The address of the applicant was given as 1 Godstone House, Pardoner Street, London SE1 4DT. There is an indecipherable signature purporting (probably) to be the signature of the solicitor.

19. Subsequently the Registrar concluded that the application was ineffective for the reasons which we have already set out.

20. The view of the Registrar was communicated to the firm of solicitors which had filed the application for leave to appeal. In a letter dated 18th December those solicitors wrote:

"I am concerned about the first paragraph of your letter which states that the Registrar is of the view that the appeal is ineffective since Mr Tucker is not available to receive advice or give instructions.

I do not accept that this a correct analysis of the situation. My covering letter which accompanied the Form NG made it quite clear that Mr Tucker had been in contact with this firm since absconding by the media of letter, telephone and e-mail. Use of these media has enabled Mr Tucker both to receive advice and give instructions. He remains in touch by e-mail. I can both send and receive communications by this medium."

21. Attached to the letter was an example of the contact with Mr Tucker. One example showed an e-mail from Tucker to his solicitor and the other was a letter from Tucker to his solicitor with the address in London to be found on the Form NG.

22. Assuming that Tucker is arrested and assuming that, following his arrest, he wishes to proceed with the application, then the Registrar will place the application before a single judge. However, the applicant would then need an extension of time in which to submit his application for leave to appeal against conviction if, as the Registrar stated, the original application was ineffective. For this reason we will also look at the way in which judges and courts approach applications for extensions.

23. In order to assist the Court, the Registrar asked the Professional Ethics Division of the Law Society to comment upon the ethical position of solicitors who continue to act for clients in circumstances similar to those in the present case. The head of guidance, Mr Austin O'Malley, wrote the following letter on 11th January:

The position would appear to be covered by Principle 12.03 "A solicitor must not act, or continue to act, where the client cannot be represented with competence or diligence."

The position is also considered in Principle 12.08 which reads "A solicitor must carry out a client's instructions diligently and promptly". The notes to the Principle include the following:

"1. A solicitor must act within his or her client's express or implied authority. It is essential at the outset for a solicitor to agree clearly with the client the scope of the retainer and subsequently to refer any matter of doubt to the client. If a solicitor limits the scope of the retainer it is good practice for the limits of the retainer to be precisely defined in writing to the client.

2. A solicitor has implied authority to bind the client in certain circumstances. As a matter of good practice, however, it would not be appropriate for a solicitor to rely upon implied authority for non-routine matters other than in exceptional circumstances, e.g. where it was impossible to obtain express authority."

If a client absconds, and the solicitor has clear instructions as to how to proceed, then it could be argued that he has either express or implied authority to continue to represent him.

Note 2 refers to the limitation of not acting upon implied authority for non-routine matters except in exceptional circumstances.

We have taken the view that if a client absconds at the end of a case, when in fact there is no further imput required from the client then it could be argued that the solicitor has implied authority to continue to represent him in his absence.

The position is different if the client absconds where his instructions would have an effect on how the case progressed. In the absence of express instructions, I believe that it would be inappropriate for the solicitor to presume to have implied instructions in such circumstances. In our view at that stage the solicitor must make it known that he can no longer act for the client.

In the example that you give, where the client continued to give instructions to his solicitor, although absconding, I believe that it is reasonable for the solicitor to act upon those express instructions and progress his application for leave to appeal. This is, of course, provided that the solicitor can satisfy himself that they are his client's instructions, and not from anyone else. Indeed, if he did not act upon those instructions, it could be argued that he was in breach of Practice Rule 1 by not acting in the best interests of his client.

24. Paragraphs 16.3.1 and 2 of the Bar Council Guidance issued with the Code of Conduct for the Bar of England and Wales (but not forming part of the Code) provide:

"16.3.1 If during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the barrister's professional client, in accordance with the ruling of the Law Society, withdraws from the case, then the barrister too should withdraw. If the trial judge requests the barrister to remain to assist the Court, the barrister has an absolute discretion whether to do so or not. If he does remain, he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in this brief save for such part as has already been established in evidence before the Court. He should request the trial judge to instruct the jury that this is the basis on which he is prepared to assist the Court.

16.3.2 If for any reason the barrister's professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence."

25. By virtue of paragraph 609 of the Code, a barrister is not obliged to withdraw from a case "where he is satisfied that (a) his instructions have been withdrawn". He may withdraw (subject to paragraph 610).

26. We have not thought it necessary to consider in what circumstances (if any) a legal representative preparing or presenting an appeal on behalf of a person who he knows to be unlawfully at large, might be doing an act intending to assist that person to evade lawful arrest and might thus be guilty of the offence of attempting to pervert the course of justice (as to which offence see paragraph 28-7 of Archbold 2001).

27. The case of Jones was considered twice by this Court ((1971) 55 Cr. App. R 321 and (1972) 56 Cr. App. R. 413). During his trial Jones absconded having told his legal representatives that, if convicted, he wished to appeal on the basis that the submissions made on his behalf at the close of the prosecution case should have succeeded. He was duly convicted and his solicitors submitted an application for leave to appeal the conviction, relying on this ground and a further ground relating to the continuance of the trial in his absence. It was submitted that the judge should have discharged the jury. The application was referred to the Full Court for directions. The judgment of the Court was delivered by Cooke J. He said (at pages 324-325):

"The question may be put in general form in this way: where in the course of a criminal trial the accused expresses to his solicitors a wish to appeal if convicted, and then absconds and is convicted in his absence, can his solicitors be regarded as properly authorised to prosecute an appeal on his behalf? The answer depends not only on a true appreciation of the relationship between the accused and his solicitors after he has absconded, but also on considerations relating to the practice of this Court.

In approaching the question, we dismiss at the outset as irrelevant the fact that the legal aid granted to this applicant covered `advice and assistance in regard to the making of an appeal to the Criminal Division of the Court of Appeal.' The fact that legal aid will be available for an application, if made, of no assistance whatever in determining the prior question whether the application may properly be made at all."

"It seems to this Court that, at any rate in all ordinary cases, it is quite impossible for a defendant whose trial is still proceeding to give rational instructions to his advisers to initiate appeal proceedings either against conviction or against sentence. In order to consider whether an appeal against conviction is advisable, and if so, on what grounds, it is necessary to know the verdict, and, if there are several counts, the verdict on each of them. If there are two or more co-accused, it is or may be necessary to know what verdicts have been returned in the case of each defendant, and of course it is vitally necessary to know the terms of the summing-up.

It is really no answer to these self-evident propositions to say that where at the end of the prosecution case there has been a submission of no case to answer on a point of law, and that submission has been overruled, the defendant may then and there instruct his advisers that they are, at all events, to prosecute an appeal on that ground. The summing-up may reveal other and better grounds. In a case where the defendant has absconded, are his advisers to confine themselves to the one point on which they have instructions to proceed, leaving it open to him to try and seek leave to raise further points later if and when he chooses to surrender? And if a defendant absconds in the middle of his trial, leaving his solicitors to pursue on his behalf any points of appeal which occur to them as having some validity, are they to take the responsibility of choosing the grounds on which they will proceed without having discussed those grounds with him? In the ordinary course of events there would be discussion between the defendant and his advisers as to whether there were any and, if so, what grounds of appeal. That discussion would take place after and not before conviction, and the defendant's advisers would take the opportunity, at that stage, of advising him as to any risks which he might run as to costs or loss of time.

If it is obvious that a decision whether or not to appeal against conviction cannot rationally be taken before the verdict is known, it is if anything even more obvious that a decision whether or not to appeal against sentence cannot rationally he taken before the sentence is known. The Court observes that in the present case leave to appeal against sentence is sought, although the sentences were not of course known before the defendant absconded, and although it has not, as the Court understands the matter, been suggested that the defendant left any instructions which would cover an appeal against sentence.

The conclusion which the Court draws from these considerations is that in all save the most exceptional cases the proper time for a defendant to take advice as to the prospects of an appeal, and to give instructions to his solicitor to initiate appeal proceedings, is after conviction and sentence. Equally, that is the proper time for his solicitors to receive such instructions. In a case where a defendant has, by absconding in the course of his trial, put it out of his power to give such instructions at the proper time, this Court will as a general rule take the view that his solicitors have not been duly authorised to prosecute appeal proceedings on his behalf. That is the view which the Court takes in this case and accordingly it follows that the notice of application for leave to appeal is not a valid notice and no further proceedings can be taken upon it.

In reaching this conclusion the Court has taken account of rule 2 (5) of the Criminal Appeal Rules 1968. That paragraph does not of itself confer any authority on anybody to sign on behalf of an appellant. It merely provides that the signature of an agent shall be acceptable, if he is otherwise duly authorised. It is, therefore, of no assistance in determining the matter now before us.

If the applicant should at any time surrender and should then decide that he wishes to apply for leave to appeal, it will be open to him, if so advised, to seek an extension of time, although it is of course obvious that in the circumstances of this case an application for extension of time would be subjected to a rigorous scrutiny.

Finally, it is right to say that the decision of the Court involves no kind of criticism of those representing the applicant, who have done their utmost to help him in the face of great difficulties and in the absence of any authority as to whether the application for leave to appeal would be entertained."

29. The application for permission to appeal was duly dismissed. Following his return from Denmark on an extradition order, Jones sought the extension of time to which Cooke J had referred. Such an extension would, in the words of Cooks J., be "subjected to a rigorous scrutiny". Roskill L.J., giving the judgment of the court said (at page 417):

"I do not think Mr. Lloyd-Eley [counsel for the applicant] would complain that this application has not been subjected to such rigorous scrutiny."

30. In his application for an extension it was said that, before he had absconded, he had been subjected to threats, of which limited particulars were later given. This contrasted with the explanation given by a Danish lady to the trial judge, HHJ Gillis. She had received a message from the applicant that the trial was "going bad" ((1972) 56 Cr. App. R. 413, at 414, 417 and 418). The Court considered what appears to have been by now the only ground- the failure to discharge the jury following the departure of the applicant. Having considered the authorities, Roskill L.J. said:

"The only question this Court has to decide is whether Judge Gillis exercised his discretion properly. In the view of this Court, he plainly did so exercise it.

Mr. Lloyd-Eley has asked the Court to hear the applicant and to let him give evidence why he absented himself; then he has asked the Court to grant the extension and hear further evidence which he accepted was in fact available at the trial, evidence of accountants and others and then in the light of that evidence order a new trial. As Lawson J. pointed out during Mr. Lloyd-Eley's argument, the applicant is really saying; `give me a ten-month extension of time, although I absconded deliberately and absented myself and made myself not available to give evidence or enable my witnesses to be called, and also notwithstanding the fact that I deliberately refused to come back and make this application earlier, but put the authorities to the trouble and expense of bringing me back in custody by extradition proceedings in Denmark.'

To grant this application at this stage would, in the view of this Court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so. It might also have as a side effect, increasing the reluctance of a court in a very long trial to grant bail lest the applicant's conduct be repeated by others. To put a premium on jumping bail is something which this Court is not for one moment prepared to countenance. This application is entirely without merit, notwithstanding the skill with which it has been advanced. There is no ground whatever for granting this extension of time. The applicant has brought this entirely on his own head, and he must now take the consequences. The application therefore is refused."

31. It is to be noted, as Mr Perry pointed out in argument, that the Court did consider the merits of the application.

32. In Araf 8.02.96, CACD unreported , the applicant had absconded at an early stage of the trial. His legal representatives withdrew and he was later convicted. Following his arrest he applied for leave to appeal the conviction and an extension of some 13 months to do so. HHJ Coles giving the judgment of the Court said that it was difficult to see how the Court could extend time because "we have been given no explanation for this applicant's absconding". The merits of the application were then considered and the application dismissed.

33. In fact it will only be in very rare cases that there could be an acceptable explanation for absconding.

34. The facts in Gooch [1998] 2 Cr. App. R. 130 are set out sufficiently in the headnote:

"In May 1993, the appellant was convicted of being knowingly concerned in the importation of a class B drug. He was sentenced in January 1994 to 11 years' imprisonment and a confiscation order was made in the sum of £650,000. Leave to appeal against both conviction and sentence was granted. The appeal against conviction was dismissed in May 1995. The Court adjourned the appeal against sentence. However, before the appeal against sentence could be relisted, the appellant absconded from prison and remained at large. The Crown sought directions so that the appeal against sentence could be determined, without which the confiscation order could not be enforced."

"We have been referred in considering what action the court should take in respect of a man who has absconded principally to the case of Flower (1966) 50 Cr.App.R. 22, [1966] 1 Q.B. 146. The position there was that there were three appellants: Richard Flower, a man called Siggins and a man with whom this part of the case is concerned, Eric Flower. Eric Flower h ad not appeared for the appeal, he also having absconded from prison, nor was he represented. That latter fact is not the position of Mr Gooch who has been represented before us today by Mr Lederman Q.C. who has urged us to list the appeal for substantive consideration. Despite the fact that Mr Eric Flower was neither present nor represented this Court felt able to deal with at least part of the matters of which he complained. Widgery J. explained how and why that was at p. 34 and at p. 151 of the respective reports. He said this:

`I am reminded that it may be appropriate to state why Eric Flower's appeal has been dealt with in his absence. The practice of this Court where an appellant escapes, and for that reason is not present when an appeal is called on, is either to adjourn the appeal or dismiss it, according to the justice of the case. We have carefully considered in this case whether it would be proper to adjourn Eric Flower's appeal, but it is quite apparent that all the points which he seeks to raise are points which have been raised and thoroughly canvassed by experienced counsel on behalf of the other appellants, between whom and Eric Flower there is no sort of conflict of interest. We have gone, as we see it, to the limit to which the Court could possibly go in Eric Flower's appeal by quashing the two convictions to which I have referred and it therefore seems pointless to keep that appeal alive.'

So in that case the Court, being in possession of argument that enabled it to grant part of Flower's appeal, did so even though he was not present. The Court came to the conclusion, if we read the report rightly, that the remainder of the appeal had no prospect of success. But, in any event part of the appeal was allowed.

Following the guidance given in Flower it is apparent that the normal practice in a case such as this would indeed be a further adjournment of the appeal, or its dismissal if the justice of the case permitted the latter course to be taken. In this case, as we have already made clear, an adjournment could not assist the prosecution, nor do we think would it promote the public interest for the reasons that we have already indicated. So the prosecution's application before us today is that the appeal should be dismissed. If we were to conclude, however, that such a dismissal would not meet the justice of the case, the alternative for which Mr Gooch's counsel contends is, as we have said, that the appeal should be listed for hearing even in the continued absence of Mr Gooch.

That last course is in our view not precluded by authority. The burden of what was said in Flower seems to us to be that it is open to the Court to deal with an appeal if it properly can, either by allowing such part of it as is allowable or by dismissing such part of it as cannot clearly be sustained. It follows from what the Court in fact did in Flower that there is no rule that an appeal cannot be heard in the absence of the appellant even where his

absence can be said to be in one or in a general sense contumacious. At the same time, however, a person who absents himself is in the mercy of the Court, and there may be circumstances where the only sensible or proper course is to dismiss the appeal without consideration of the merits. An example where that appears to have happened is the case of Carter (1994) 98 Cr.App.R. 106."

35. In Carter the appellant had been given leave to appeal and granted bail, subject to the condition to surrender to custody before the hearing. She did not do and it was decided that the proper course was to dismiss the appeal. Buxton L.J. said of Carter:

"Although the matter was not gone into in detail in that case, we feel bound to comment that it seems to have been a somewhat special example in that it was sought in the appeal to cross-examine police witnesses and investigate matters that had occurred at or after the trial. It appears that no instructions had been given to the appellant's lawyers to pursue that course, or at least there was no confirmation that they were required to continue in that unusual course before the Court, and no one appeared on behalf of the appellant to indicate that the appeal was indeed going to be persisted in.

That is not this case. The points on the confiscation order and on sentence require no further instructions or the presence of the appellant for them to be pursued, and we assume from the fact that he is here today that Mr Lederman's instructions to settle and pursue the appeal, leave for that appeal having been given, have not been withdrawn."

36. Mr Barnard, for the respondent, submitted that the appeal against sentence should simply be dismissed. The respondent argued that Mr Gooch's conduct was contumacious and, on an analogy with civil proceedings, he should not be allowed to proceed. The Court rejected that argument and said that if this part of the prosecution's argument had been correct it would be difficult to explain why the appeal was considered at all in the case of Flower. Buxton L.J. then turned to the second argument

"Secondly Mr Barnard ... suggested that on the particular facts of this case to permit the appeal to be pursued would in effect be allowing an abuse of process, in the sense of allowing something to happen that might bring the administration of justice into disrepute among right thinking persons. ...

... we think that the Court should be cautious before making assumptions of the type we are asked to make in this case about what in the court's process would shock right thinking people. ... If we have to speculate on this matter it seems to us just as plausible to think that citizens might be shocked, or at least surprised, that a man who had been given leave by the Court to argue that a penal order had been wrongly made was prevented from pursuing that argument on the ground only that he had absconded from prison.

We emphasize that this is an exceptional case. The normal course is to adjourn the appeal of a person who is absent, and that is what we would do in this case if the prosecution did not urge us against that course. But granted that in these particular circumstances that course would be very unsatisfactory from all points of view, we have to decide what other course to take. We do not think that dismissing the appeal in limine is forced on us by authority, nor that in this case such a dismissal would in fact meet the justice of the case. We therefore propose to order that this appeal be listed for hearing.

We emphasize the unusual circumstances in which we have taken that step. Other persons who abscond from prison should not assume that any outstanding appeal that they may have would be dealt with by this Court in the way that we have dealt with this particular matter of Mr Gooch."

37. In Towers (1985) 80 Cr.App.R. 231, at 234 the Court said this upon an application made for an extension of time in which to renew an application for leave to appeal against conviction:

"The problem for counsel is created by a decision in Hatfield (unreported) which was decided on September 29, 1971, in which the then Lord Chief Justice, Lord Widgery, gave the judgment of the court. It is important to repeat verbatim the learned Lord Chief Justice's words. He said: `It is only quite recently that the Court has recognised its own power to grant an extension in these cases' - i.e. a case of renewal of an application to the full court - `and it is important that it should be made clear at once that such extensions will be granted only in exceptional circumstances. The first time limit which a would-be appellant meets is the time limit of 28 days within which his initial application for leave to appeal must be entered. That is a fairly generous period of time, and it is made generous for two reasons: first because the appellant may be suffering from the shock of his conviction and sentence, and also because it is hoped that during that time he will receive advice from counsel who represented him in the court below. In any event, this court is always ready to listen to applications for extension of that time for any reasonable grounds.' ... The learned Lord Chief Justice continued: "When, however, the matter has passed beyond the making of the original application, and when it has been before the single judge and has been refused by the single judge, a very different situation presents itself. Now there can be little fear that the applicant is still suffering from the effects of his conviction, and furthermore no question of legal assistance or advice should be required at this stage. He had legal advice on the prospects of an appeal before the application was made, and there is no reason that the court can see why one should expect such an applicant to be seeking legal advice afresh at this later stage. Indeed, the time limit of 14 days imposed on this stage itself shows that no such proceedings are contemplated. When a would-be appellant is faced with the question of whether he shall renew his application to the full court or not, this is a decision which he is expected to take for himself, and it is expected he will be in a position to take it for himself; and any excuse for delay based on his inability to obtain further legal advice is an excuse to which this Court will not normally respond."

"The principle of Hatfield has been applied in more recent cases and it is high time that those who are concerned with applications to the full court should recognise that the rules as to the running of time will be applied strictly so far as renewal applications to this Court are concerned".

It is to be noted that the Court did, in any event, consider the merits, albeit briefly, and expressed its agreement with the views of the single judge.

"In Doherty (1971) 55 Cr.App.R. 548, [1971] 1 W.L.R. 1454 the applicant applied for leave to appeal against conviction and sentence. He abandoned his application for leave to appeal against conviction, the sentence application was refused by the single judge. Some time later, he applied for leave to withdraw the abandonment of his conviction application and to renew his application for leave to appeal against sentence. The matter came before the full Court. Lord Widgery referred to the decision in Ward and continued at page 549:

"The principle therefore is established that, although this applicant did not apply to have the matter referred to the full Court within the fourteen days prescribed by rule 12, yet this Court has power to extend that time if it thinks fit.

The question for us today therefore is whether we ought to exercise that power. The Court would wish to say that in general principle the power to extend time under rule 12 should be very rarely used. It must be remembered that before this question can arise the applicant must have given notice of his application for leave to appeal, the necessary transcripts and papers will have been prepared, the matter will have been before the single judge and the applicant will have received the single judge's decision. In those circumstances, as it seems to us, the situation will be very rare in which it is appropriate or proper to grant the applicant an extension of the fourteen days which the rules prescribe in which he has to make his final decision."

The Court in fact granted an extension of time because the applicant had been misled as to the appropriate procedure."

40. In Hawkins [1997] 1 Cr. App. R. 234 the Court considered the principles regarding extensions of time in cases where, following conviction, the law had been clarified or changed in a way which could undermine the conviction. Lord Bingham C.J. said (at page 239):

We have ... had the benefit of an outstandingly able and sustained argument by Mr Perry on behalf of the Crown. He submits that while the Court of Appeal has power to extend the 28 day time limit for applying for leave to appeal, the Court has traditionally been reluctant to do so save where the extension sought is relatively short and good reason is shown for the failure to apply in time. In the ordinary run of cases the extension sought is a matter of days and the application is usually made because of some mishap or misunderstanding or administrative delay in the settlement of documents. Such indulgence has not traditionally been shown where the defendant, acting on advice, has pleaded guilty or where he has taken a conscious decision not to appeal. In our view the submission is well founded and the Court should be satisfied that good reason exists for granting leave to appeal out of time in circumstances such as the present.

Counsel goes on to submit that a change in the law since the date of conviction or plea of guilty has not usually been regarded in the past as a good reason for granting an extension of time in which to appeal. In support of that submission he has drawn our attention to Lesser (1940) 27 Cr.App.R. 69, Ramsden [1972] Crim.L.R. 547, Re Berkeley [1945] Ch. 1 and Mitchell 1977) 65 Cr.App.R. 185.

In the last of those cases it is to be noted that leave to appeal against conviction out of time following a change in the law was in fact granted. It was however a case in which there was already outstanding an extant and timely appeal against sentence and the effect of the intervening decision was to show that the appellant had in fact committed no offence--that is, that there was no offence of which he could have been convicted. Even on those unusual facts, described by Lane L.J. as `unusual if not almost unique', the Court showed considerable reluctance to grant leave. At p. 189 Lane L.J. said:

`It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.'

`This seems to us therefore to be the very rare case where the Court should exercise its undoubted discretion to allow the extension of time and grant leave to appeal against conviction. We wish to make it clear, however, that this is not to be taken as an invitation to all and sundry who have been convicted of this type of offence to present applications to this Court for leave to appeal out of time, because they will not be greeted with very much enthusiasm.'

It is also perhaps noteworthy that Lane L.J. drew attention to the outstanding appeal against sentence, of which he observed that if the Court were to refuse the extension of time which was prayed for in order to allow the appellant to appeal against conviction, they would be faced with the totally unreal task of endeavouring to determine what the correct sentence was for an offence which had not been committed.

That practice may on its face seem harsh. On the other hand, the consequences of any other rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions. If such convictions were to be readily reopened it would be difficult to know where to draw the line or how far to go back."

41. In practice judges and courts are probably not as reluctant to grant extensions of time as the authorities may suggest. It has been the experience of the members of this Court that consideration will usually be given to the merits before declining to grant an extension of time. Both in Jones (No. 2) and Asraf, the merits were considered notwithstanding the absence of any proper explanation for the delay. There are some cases, such as those where the applicant wishes to rely on fresh evidence unavailable at trial, where the extension of time will be readily granted. There are cases such as those envisaged in Hawkins where it will not be. Delay may often have the effect of casting doubt on the validity of the grounds pleaded. If an applicant delays making an application in time and later complains about the conduct of his legal representatives or of the judge or complains that the jury may have been improperly prejudiced by something said or done during the trial or complains that, on the facts, the conviction is unsafe or the sentence too long, complaints are likely to be seen as less meritorious in the absence of a good explanation for the delay. If the applicant (or his legal advisers) believed the complaint to be justified, why was it not made earlier? As Mr Perry said in argument, a judge or court faced with an application to extend time must exercise the power to grant or refuse the extension by balancing up the various considerations.

The proper approach to applications for leave to appeal made whilst the applicant is unlawfully at large

42. If the approach taken in Jones remains the right approach, then the procedural difficulties in most cases will be insurmountable. In the words of Cooke J., already quoted:

"In a case where a defendant has, by absconding in the course of his trial, put it out of his power to give such instructions at the proper time, this Court will as a general rule take the view that his solicitors have not been duly authorised to prosecute appeal proceedings on his behalf."

43. In Tucker's case instructions have been given by email and letter following conviction. Applying Jones this might take his case out of the general rule, although it seems unlikely that the Court in Jones (No.1) or (No.2) would have been very impressed with any such instructions.

44. If a very stringent approach was taken to applications for an extension of time following the arrest of a person who had absconded and whose earlier application for leave to appeal had been treated as ineffective by the Registrar or dismissed (as in Jones (No.1)), then the consequence of absconding would be the dismissal of the application by the Full Court with no further right of access to an appeal. Mr Perry pointed out that there would be a right to bring the matter before the Criminal Cases Review Commission. He accepted, however, that the existence of such a right would not, of itself, make the appellate process fair for the purposes of Article 6 (1).

45. Rule 2(6) requires the Registrar to serve a copy of Form NG on the applicant if he has not signed it and he is in custody. In practice we are told that this is not always done, but he will always get a note asking him whether he wishes to have a copy. Similarly, if an applicant is in custody he must be served with the notice of a refusal by the single judge. The Registrar cannot fulfill his obligations under rule 2 or 12 when an applicant is unlawfully at large. He cannot advise him of the date of any hearing or its outcome.

46. The grant of legal aid can cause difficulties. If an applicant is in custody the Registrar will ordinarily rely on Regulation 23(4)(b) of the Legal Aid in Criminal and Care Proceedings (General) Regulations, 1989, to grant legal aid without an assessment of means. That provides:

"A statement of mean and supporting documentary evidence shall be required unless -

a) it appears to the court or proper officer that, by reason of his physical or mental condition, the applicant is for the time being incapable of furnishing such a statement;

b) the applicant has already submitted such a statement in connection with a previous application in respect of the same case and his financial circumstances have not changed; or

47. If an applicant is not in custody then legal aid will not ordinarily be granted without a statement of means. It is obviously difficult to apply Regulation 23(4)(b) in the favour of an applicant who is unlawfully at large. In the case of Tucker there is evidence that he is suffering from a life threatening illness and it may be, therefore, that the Registrar would not require a statement of means under this Regulation. In the case of Charles it might be possible to decide that his financial circumstances are very unlikely to have changed.

48. If an absconder's application for leave to appeal is treated as ineffective by the Registrar or dismissed for the reason in Jones (No.1) and if any subsequent applications for an extension of time to make or renew the application were summarily dismissed because there was no good reason for the delay, then, as Mr Perry accepted in argument, there would be a serious risk that an applicant could successfully complain of a breach of Article 6(1).

49. In Omar v France (2000) 29 EHRR 210, the Court had to consider a long-standing principle of French criminal procedure that prevented a convicted person who had voluntarily not complied with a warrant for his arrest issued following his conviction, to declare the appeal inadmissible with the consequences that the conviction became a final determination. The French Government sought to justify the rule, citing a passage in a dissenting opinion given by Judge Pettitti in an earlier case before the E.C.H.R, Poitrimol v. France (1994) E.H.R.R. 130. The Judge had emphasised:

"the needs of a criminal policy whose aim is to avoid conferring any impunity or privilege on persons seeking deliberately to evade justice."

In argument in Omar, the French Government emphasised that the rule had a moral basis and that "it would be shocking to allow a person who has deliberately failed to comply with a court order to appeal on points of law" (paragraph 38 of the Judgment).

"34. The Court reiterates that the right to a court, of which the right of access is one aspect, is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved.

35. In the present case the Court of Cassation declared the applicants' appeal on points of law inadmissible on the grounds that:

`It follows from the general principles of criminal procedure that a convicted person who has not complied with a warrant for his arrest is not entitled to act through a representative in order to lodge an appeal on points of law. It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. As no such evidence has been supplied by the three appellants, against whom arrest warrants were issued after they had appeared in court for the hearing, their appeal, which has been lodged by an attorney practising in the Court of Appeal, must be declared inadmissible.'

36. The Court must therefore determine whether, in the circumstances of the present case, the fact that the applicants' appeal on points of law was automatically declared inadmissible because they had not complied with the warrants for their arrest infringed their right of access to a court.

37. The Court notes in the first place that the obligation for a defendant sentenced to a non-suspended term of imprisonment accompanied by a warrant for his arrest to surrender to custody at the time when he gives notice of his intentions to appeal on points of law, that is within five days of delivery of the Court of Appeal's judgment, is derived from the very long-established and consistent case law of the Criminal Division of the Court of Cassation.

40. The Court can only note that, where an appeal on points of law is declared inadmissible solely because, as in the present case, the appellant has not surrendered to custody pursuant to the judicial decision challenged in the appeal, this ruling compels the appellant to subject himself in advance to the deprivation of liberty resulting from the impugned decision, although that decision cannot be considered final until the appeal has been decided or the time limit for lodging an appeal has expired.

This impairs the very essence of the right of appeal, by imposing a disproportionate burden on the appellant, thus upsetting the fair balance that must be struck between the legitimate concern to ensure that judicial decisions are enforced, on the one hand, and the right of access to the Court of Cassation and the exercise of the rights of the defence on the other.

41. In that connection, the Court emphasises the crucial role of proceedings in cassation, which form a special stage of the criminal proceedings whose consequences may prove decisive for the accused.

Article 6(1) of the Convention does not, it is true, compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6.

The inadmissibility of the appeal on points of law, on grounds connected with the applicant's having absconded, ... amounted to a disproportionate sanction, having regard to the signal importance of the rights of the defence and of the principle of the rule of law in a democratic society.

44. Having regard to all the circumstances of the case, the Court considers that the applicants suffered an excessive restriction of their right of access to a court, and therefore of their right to a fair trial.

51. Whilst noting the considerable differences between French criminal procedure and our own, nonetheless it seems to us that there could well be a breach of Article 6(1) if an applicant who has absconded could not succeed with an application for leave to appeal solely because it is treated as ineffective by the Registrar or dismissed for the reason in Jones (No.1) and because any subsequent applications for extensions of time to make or renew the application were summarily dismissed because there was no good reason for the delay.

52. There seems to us to be a good policy reason for not taking such an inflexible approach. If an applicant, for example, has been sentenced to an unlawful sentence then the sooner it is so declared the better. If the result of an appeal is to be an order for a retrial it will usually be in the interests of the prosecution to have that retrial started as soon as possible after the appellant's arrest.

53. Having considered the matter carefully, we do not share the view expressed in Jones (No.1) that where a defendant has, by absconding, put it out of his power to give instructions, his solicitors have not been duly authorised to prosecute appeal proceedings on his behalf. We derive some comfort from the case of Gooch in reaching this conclusion. Whilst accepting the remote risk that the absconder does not want to appeal, we take the view that a single judge or the Full Court is entitled (but not bound), to conclude that the legal representatives submitting the application for permission have the actual or implied authority so to do. The applicant might have wished grounds to be advanced further to those which his legal representative decides to advance. That must be a risk which he takes. Nor do we think that it is appropriate for the Registrar in future to treat an application in these circumstances as ineffective. Applications should be put before the single judge. We direct that Tucker's application should now be submitted to a single judge. Should the single judge refuse leave, then notices of that refusal (as in the Charles case) should be sent in accordance with regulations 12 and 21(c). Any application for renewal will be put before the Full Court in the usual way.

54. We turn now to the application made by Charles for leave to appeal his conviction. He was convicted. At the end of what was the fourth trial of the matter. The first trial started on 29th September 1997 during which there was a successful submission of no case to answer on behalf of a co-defendant, Richard Sutton. The jury had to be discharged just before closing speeches. The second trial started on 15th June 1998. At this trial there was a successful submission of no case to answer on behalf of Nadeem Hussain, another co-defendant. Following that submission the jury were discharged from bringing in a verdict in respect of the applicant. The next trial started on 30th November 1998 and again the jury had to be discharged. The fourth and final trial started on 7th December 1998. The defendant had been on bail since approximately June 1996 and it was on the day of the summing-up that he absconded.

55. We turn to the facts. On 24th April 1996 at about 10.15 a.m. two men drove up Sycamore Road in Amersham and parked a stolen Volkswagen Golf motor car with the hazard lights on. One man, said by the prosecution to be the applicant, went into Threshers off-licence shop and brought some cigarettes. His image and the time that he entered was recorded on the shop security video. The time was 10.14. From Threshers the man went into the next door travel agent "Going Places". He looked at the brochures. Marie Turney asked him whether there was a particular brochure he was looking for and he replied Canada. He said that he wished to take the brochures away. Shortly after that a second man, who the prosecution had said was Richard Sutton, entered Going Places and produced a sawn-off shotgun. The robbers ordered the staff to open the safes and money amounting to some £25,000 was handed over. The two robbers drove off in the stolen Golf motor car with the hazard lights on. Police Constable Anthony Wing saw the car being driven with the hazard lights on and, intending to warn the driver, followed it. He saw the car turn into the empty driveway of a house. He stopped his vehicle and walked across to the car containing the two robbers. He then became aware that both of them were running away. One of whom, said by the prosecution to be the applicant, was carrying a bag. He chased them into an area containing some garages and car park spaces. As he entered that area the getaway car, a Daihatsu, moved off driving at him at speed. As he jumped out of the way he was able to see that there were two occupants in the car. It was the prosecution's case that the two occupants were the driver of the getaway car, said to have been Hussain, and the robber who had the gun. It was the prosecution's case that the applicant had not had time to get into the car and the car had gone off without him. It was further the prosecution's case that the applicant had ran off into the footpaths which criss-cross Amersham Hill and that at some stage he had jettisoned the bag. The bag was actually found at about 12.50 p.m. that same day. It was further the prosecution's case that the applicant had come back that evening into the area where the bag had been thrown in order to find it.

56. The Threshers' video was seen by a number of officers and Sergeant Beirne purported to identify the applicant as the man seen on the video at 10.14. In addition to that evidence, the prosecution relied as against the applicant upon the identification nearly 3½ months later on a video shown to Gail Haddon, a member of the staff at Going Places. Earlier on 26th April she had attended an identification parade. The applicant was not present on that parade but another suspect was present. Gail Haddon had picked out a volunteer and not that suspect. It was the intention of the police to replace the suspect with the applicant, make no other changes to the volunteers and then ask her to look at the parade again. Not surprisingly the applicant's solicitors objected to that course.

57. The prosecution also relied on the evidence of a number of officers who saw a man in the area of the footpath at about 7.15 that evening. They described the clothing of that man and gave other descriptions which were compatible with the person being the applicant. There was no dispute that the clothing which they described was being worn by the applicant when he was arrested the following day. One of them, Wayne Mooney, said that he had no doubt that he would recognise the man again. He, however, was not asked to attend an identification parade.

58. The prosecution relied against the applicant upon what was said to be a false alibi for the evening. The applicant gave evidence that he had been at home that evening with his girlfriend whereas she gave evidence (for the defence) that he and Richard Sutton had gone out at about 6 o'clock that evening. One of the many issues in the case concerned a note said to have been made by an Inspector in his notebook purporting to record a conversation with the girlfriend about the time of departure of the applicant that evening. We understand she supported the applicant's alibi for the morning and had done so from the outset.

59. Two grounds of appeal ((a) and (f)) relate to the manner in which the trial judge dealt with alleged breaches of the Code. It is submitted that there were breaches of D 1.9, D 2.17, D 2.21A and D 2.3. In summing-up the judge said that there were admitted breaches (15C-D). It is said that there was a breach in the failure to hold an ID parade at which Gail Haddon and Wayne Moody would attend. In summing-up the judge described the proposed procedure for the Gail Haddon ID parade as "total incompetence" and "quite amazing" (22-23). The absence of an ID parade to give Wayne Moody an opportunity to pick out the man he saw by the footpath, was mentioned to the jury in the summing-up (30B-E). It is said that there should have been a timed and dated note of any description given at the time by Gail Haddon. The judge apparently agreed (24C-D). There was a breach, it is said, when the Threshers video was shown to a group of officers, rather than to the officers individually. As to this the judge in summing-up said it was a matter for the jury whether there was any impropriety in that happening (20F-G). It is submitted that the was a breach in that the sleeve of the Threshers video showing who had seen it, had been lost.

60. The judge was asked to rule on the admissibility of the identification evidence and said, in a very short ruling (later affirmed in a further ruling) that he had not identified "any specific unfairness". It seems to us arguable, on the material available to us, that the judge did not properly consider the matter and, for this reason, we grant the applicant leave to appeal.

61. We have not considered the other grounds. If the appellant wishes to pursue those grounds then leave to do so must be sought from the Full Court at the hearing of the appeal.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Charles, R v [2001] EWCA Crim 1755 (29th January, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/1755.html Cite as: [2001] 2 Cr App R 15, [2001] EWCA Crim 1755

England and Wales Court of Appeal (Criminal Division) Decisions

R v. JEROME CHARLES R v. LEE NIGEL TUCKER [2001] EWCA Crim 1755 (29th January, 2001)