Mackreth, R. v

Where a criminal appellant seeks a very substantial extension of time and relies on matters concerning trial advice about an appeal, the court may require a waiver of legal professional privilege before deciding whether the extension should be granted. Without information enabling inquiry into that advice, the appeal may be unable to proceed.

Allegations of historic sexual offending may require careful consideration of whether a fair trial was possible where the contemporaneous history was not put before the jury and relevant records have disappeared.

The applicant was convicted at Liverpool Crown Court in 2000 of 23 counts of indecent assault and ten counts of rape alleged to have occurred between 1973 and 1977 at Derwent House Care Home. He received five years’ imprisonment and died in 2006. With the court’s approval, his daughter conducted the appeal initiated shortly before his death.

A single judge had refused both an extension of time and leave to appeal. On renewal, the court considered the exceptional delay and concerns about the trial judge’s refusal to stay the prosecution for abuse of process. The central issue was whether the historic allegations could fairly be tried without the full contemporaneous history and supporting records.

1. Leave to appeal was granted and the matter was referred to the full court. The application for the substantial extension of time could proceed only if legal professional privilege was waived within 14 days. The waiver was required to permit inquiries of trial counsel about any advice concerning an appeal. Without it, the appeal would fall because the court needed that information to decide whether an extension should be granted.
2. The court identified a substantial issue on the proposed appeal. The alleged offences dated from 1973 to 1977, but the trial proceeded without the precise contemporaneous history of allegations, police investigations, suspension, an earlier prosecution and acquittal, reinstatement, and later allegations.
3. Relevant contemporaneous documentation had disappeared. The jury therefore determined the case principally from recollection, without being told material matters which might have been checked against reliable records. The court considered that this raised a serious question whether a fair trial had been possible and whether the prosecution should have been stayed for abuse of process.
4. The court requested the Crown to renew efforts to locate documentation concerning those matters. The full appeal was provisionally estimated for one day, subject to later case management.

• Court of Appeal (Criminal Division): Leave to appeal was granted on renewal, subject to a waiver of privilege within 14 days. The application for an extension of time and the merits were referred to the full court.
• Single judge of the Court of Appeal: Refused an extension of time and leave to appeal.
• Liverpool Crown Court: In 2000, convicted the applicant of 23 counts of indecent assault and ten counts of rape, and imposed a total sentence of five years’ imprisonment.