Hart, R. v

Under section 29 of the Criminal Appeal Act 1968, the Court of Appeal may direct that time served after sentence does not count towards sentence where a renewed application for leave to appeal is wholly without merit. The discretion depends on all the circumstances. A clear refusal by the single judge and the absence of advice supporting arguable grounds may strongly justify a loss-of-time direction. Conversely, a potentially arguable issue and supporting advice may make such a direction inappropriate, even if the application ultimately fails. Advice from counsel that grounds exist is relevant but does not itself prevent the court from finding that a renewed application is totally without merit.

Four renewed applications for leave to appeal were listed together after refusals by a single judge. The court considered whether to exercise its power under section 29 of the Criminal Appeal Act 1968 to order loss of time.

Hart challenged conviction and a sentence of 21 months’ imprisonment for exposure. Clarke challenged concurrent three-year sentences for possession of crack cocaine and heroin with intent to supply. George challenged an extended sentence imposed after guilty pleas to assault offences. Brown challenged consecutive 12-month sentences for theft and sexual assault.

The common issue was whether each renewed application was so lacking in merit that a direction for loss of time was justified.

1. The renewed applications were rejected. The court ordered, under section 29 of the Criminal Appeal Act 1968, that 28 days served by Hart and Clarke after sentence should not count towards their sentences. It made no such direction in George’s or Brown’s case.

2. The statutory power is discretionary and is directed to renewed applications that are wholly without merit. The court had repeatedly warned applicants of that consequence. It was appropriate to exercise the power more frequently where plainly unmeritorious applications consumed the time of single judges and the full court.

3. Hart’s original and additional grounds could not affect the jury’s verdict. He had no advice from counsel identifying arguable grounds, and the single judge had clearly explained why neither conviction nor sentence disclosed merit. Clarke had likewise received negative advice from counsel and his three-year sentence was plainly within the appropriate range. Their renewals justified loss-of-time directions.

4. George’s sentence and the use of section 227 of the Criminal Justice Act 2003 were appropriate. However, the limited reduction for her guilty plea, against a five-year maximum determinate sentence, meant that the renewal could not fairly be treated as totally devoid of merit. Brown’s challenge also did not justify a direction because counsel had identified an arguable concern, although the proper appellate assessment was of the total sentence rather than its individual components.

5. The court corrected counsel’s advice that it could increase sentence. It no longer had that power, but counsel and applicants should recognise that the separate power to order loss of time remains available. Counsel’s advice supporting grounds of appeal is relevant but is not invariably a sufficient answer to an application for a section 29 direction.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal were considered following refusals by a single judge. The court ordered loss of time for Hart and Clarke only.
• Harrow Crown Court: Hart was convicted of exposure and sentenced to 21 months’ imprisonment.
• Leicester Magistrates’ Court and Crown Court at Leicester: George pleaded guilty in the Magistrates’ Court, was committed for sentence, and received an extended sentence in the Crown Court.
• Crown Court: Clarke received concurrent three-year sentences after guilty pleas to possession of class A drugs with intent to supply.
• Crown Court: Brown was committed for sentence after guilty pleas and received consecutive sentences totalling two years’ imprisonment.