Brind & Ors, R v

The Court of Appeal may use its power under Criminal Appeal Act 1968, section 29 where a renewed appeal is without merit. The power protects the court’s resources and avoids delay to applicants with legitimate appeals. A single judge’s indication on form SJ that an appeal is without merit will ordinarily lead an applicant to expect that time in custody pending appeal will not count towards sentence.

A renewed application must identify an arguable error or viable evidence. A bare denial of guilt, unsupported assertions about fresh evidence, or a challenge contradicted by the record will not justify an extension of time or leave to appeal.

Five defendants renewed applications for extensions of time and for leave to appeal against conviction, sentence, or both, following refusals by a single judge.

• Brind challenged drug-supply and driving convictions, and his sentence.
• Adu-Gyamfi challenged rape convictions after the admission of bad-character evidence and challenged an imprisonment-for-public-protection sentence.
• Michael S challenged multiple rape convictions and a 15-year sentence.
• Khan challenged a guilty plea to conspiracy to burgle.
• Young challenged theft convictions based on CCTV evidence and a four-year sentence.

The court considered whether any ground was arguable, whether extensions should be granted, and when an unmeritorious renewed application may justify consideration of a section 29 order.

1. All five renewed applications were refused. No extension of time or leave to appeal was granted.
2. The court reaffirmed the approach in R v Hart and others [2007] 1 Cr.App.R 31. Under section 29 of the Criminal Appeal Act 1968, a period in custody pending appeal may be ordered not to count towards sentence where a renewed appeal is without merit. The court stressed the burden that such applications place on the appellate system. A single judge’s indication to that effect on form SJ will ordinarily give notice that such an order should be expected. No application in this group had been so marked, so the court did not make a section 29 order.
3. Brind’s telephone-call evidence was relevant and admissible. There was no basis to exclude it under section 78 of the Police and Criminal Evidence Act. His repeated denial of offending did not provide a ground of appeal. His sentence for commercial street dealing was not arguably excessive.
4. Adu-Gyamfi’s sole conviction ground concerned the admission of bad-character evidence under section 98 of the Criminal Justice Act 2003. The single judge’s reliance on R v L [2007] All ER 81 was correct. Neither the convictions nor the sentence disclosed an arguable basis for appeal.
5. Michael S advanced no witness statements capable of supporting his asserted fresh evidence. His other complaints provided no possible basis for a successful appeal. Khan’s signed plea documentation and admissions defeated his allegation that counsel had acted contrary to instructions. Young’s CCTV challenge was untenable, and his severe sentence was not arguably manifestly excessive given his persistent professional offending.
6. The court also confirmed that delay may be relevant when considering the section 29 power.

• Court of Appeal (Criminal Division): Refused all renewed applications for extensions of time and leave to appeal.
• Crown Courts: The applicants had been convicted or had pleaded guilty in the Crown Courts at Cardiff, Southwark, Chester and Birmingham, and in proceedings concerning Young; each had sought leave to appeal after a single judge’s refusal.