Grant,R. v

A notice abandoning an application for leave to appeal may be treated as a nullity only where it was not the product of the applicant’s deliberate and informed decision. The question is one of fact: whether the applicant’s mind went with the act of abandonment. The court has no residual discretion or inherent jurisdiction to revive a validly abandoned application. A client who has instructed solicitors to abandon an appeal remains bound unless the instructions are countermanded. Failure to receive later correspondence may remove an opportunity to change those instructions, but does not itself make the solicitor’s notice a nullity.

The applicant had sought leave to appeal against sentences imposed at Croydon Crown Court following convictions for robbery and dangerous driving. He later wrote to his solicitors saying that he did not wish to appeal against sentence. After receiving no response to several requests for formal confirmation, his solicitor filed a notice of abandonment on 13 May 2005.

Prison transfers meant that the applicant did not receive the solicitor’s later correspondence until after the notice had been filed. On 16 May he asked to continue with the appeal. He applied to the Court of Appeal for the notice of abandonment to be treated as a nullity. The central issue was whether he had made a deliberate and informed abandonment at the time his solicitor lodged the notice.

1. Application refused. The notice of abandonment was not a nullity. Accordingly, the application for leave to appeal against sentence was deemed refused under rule 10(4) of the Criminal Appeal Rules 1968.
2. The court followed R v Medway, [1976] 62 Cr App Rep 85. That authority confined the nullity jurisdiction to cases where the abandonment did not result from a deliberate and informed decision. The decisive question was factual: whether the applicant’s mind went with the solicitor’s act of filing the notice. It was not an exercise of discretion.
3. The applicant’s letter of 30 March clearly instructed his solicitors to abandon the sentence appeal. Although he did not receive the solicitor’s later letters because of prison transfers, he knew both what he had written and that those instructions would continue unless countermanded. His silence therefore supported only the conclusion that, on 13 May, his position remained unchanged.
4. The later correspondence had been intended to give him an opportunity to reconsider. Its non-receipt did not invalidate the existing instructions or the notice filed pursuant to them. Since the abandonment was effective, the court had no jurisdiction to permit the appeal to proceed.

The court further observed that there was in any event no realistic prospect that leave to appeal the robbery sentence would have been granted, given the gravity of the offence, the consecutive dangerous-driving sentence, the unexpired licence period and totality.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 2018, refused the applicant’s request to treat his notice of abandonment as a nullity.
• Croydon Crown Court: His Honour Judge Joseph sentenced the applicant on 17 February 2005 to five years’ detention for robbery and four months’ consecutive detention for dangerous driving, to commence after service of the outstanding licence period.