Fortean, R v

A renewed application for leave to appeal must be supported by properly arguable grounds. Where it is plainly without merit, particularly after clear warnings, the Court of Appeal may use its power under section 29 of the Criminal Appeal Act 1968 to direct that part of the applicant’s custody pending appeal shall not count towards sentence. The power protects the court’s ability to determine arguable applications promptly. Representation or legal advice is relevant, but does not necessarily preclude a loss-of-time order where there was no justification for pursuing the application.

The applicant sought leave to appeal against his conviction for causing grievous bodily harm with intent to his former partner and, insofar as necessary, against a sentence of four and a half years’ imprisonment.

A single judge had considered the application in depth and refused leave. The applicant renewed it before the full court. He alleged deficiencies in police enquiries and disclosure, sought to adduce further evidence, challenged the use of a previous conviction, and relied on photographs which he said did not show the complainant’s injuries.

The central questions were whether any ground gave rise to an arguable challenge to the conviction or sentence, and whether the renewed application justified a loss-of-time order.

1. The renewed application for leave to appeal was refused. It disclosed no arguable ground against either conviction or sentence. The suggested additional police enquiries were, even if available, tangential to the narrow issue of responsibility for the injuries. The proposed further witnesses could not assist on that issue, and no trial disadvantage arose from the late disclosure alleged.

2. The jury had ample evidential basis for its verdict. The applicant admitted being present, confronting the complainant and struggling with her shortly before she was found semiconscious with a broken jaw. The blood evidence, his contemporaneous letter expressing grievance and referring to brutal action, and the absence of any case of accident or self-defence strongly supported the prosecution case. His alternative account, involving an unseen stranger attacking the complainant in the brief interval, was speculative. Post-conviction admissions reinforced that conclusion, although the court did not rely on them in reaching it.

3. The sentence challenge was equally without merit. The offence was a cowardly and vicious attack against a background of unpleasant behaviour towards the same victim, leaving her seriously injured.

4. Under section 29 of the Criminal Appeal Act 1968, the court had express power to direct that custody pending appeal should not count towards sentence. That power may be exercised where a meritless application is pursued after due warning, so that applications with properly arguable grounds can be dealt with promptly. The applicant had received clear warnings on both application forms and from the single judge. The court therefore ordered that 42 days’ custody should not count towards his sentence. The involvement of counsel or solicitors may be relevant, but does not necessarily avoid such an order.

• Court of Appeal (Criminal Division): A single judge refused leave to appeal. On renewal, the court refused the application and made a 42-day loss-of-time order under section 29 of the Criminal Appeal Act 1968.

• Trial court: The applicant was convicted by a jury of causing grievous bodily harm with intent and was sentenced to four and a half years’ imprisonment. The court and date are not stated in the judgment.