Goumane, R (on the application of) v Canterbury Crown Court

Under rule 63.8 of the Crown Court Rules, an appellant may abandon an appeal without permission before the hearing begins. Identification of the appellant and calling on the appeal do not, by themselves, commence the hearing. Once the hearing has begun, permission is required, but refusal will ordinarily be justified only in exceptional circumstances. The court should not refuse abandonment merely because court time and resources have been allocated, because the appeal concerns sentence, or because it considers the original sentence too lenient. Where abandonment should have been permitted, the refusal may be quashed and the resulting increased sentence set aside.

The claimant pleaded guilty before magistrates to assaulting a police officer and an offence under section 5 of the Public Order Act. He received a total sentence of 30 days’ imprisonment and appealed to the Crown Court. Shortly before the appeal, he learned that he was due for release and instructed his solicitor to abandon the appeal.

After the appeal was called on and the claimant was identified, the Crown Court refused permission to abandon it and increased the sentence to 90 days. The claimant sought judicial review of that refusal. The central issue was whether the hearing had begun and, if so, whether the Crown Court had exercised its discretion lawfully.

1. Claim allowed. The Crown Court’s refusal to permit abandonment was quashed. The increased sentence imposed on the appeal was also quashed.
2. Rule 63.8 of the Crown Court Rules permits abandonment without permission where the notice is served before the hearing begins. After the hearing begins, permission is required. The abolition of the former three-day notice requirement means that notice may be served shortly before the appeal is called on.
3. The hearing does not begin merely because the appeal has been called on and the appellant has been identified. It begins when substantive steps are taken in pursuit of the appeal, such as an opening by the prosecution or an explanation to the judge of the circumstances giving rise to the appeal.
4. Following R v Manchester Crown Court, ex parte Welby [1981] 73 CrAppR 248, refusal before the hearing begins is justified only in exceptional circumstances. After the hearing has begun, leave to abandon should ordinarily be granted only in exceptional circumstances. The allocation of court time, the presence of justices, preparation of papers, the court’s view that the sentence was too lenient, and the public interest in imposing the correct sentence were not proper reasons for refusal in this case.
5. The claimant’s decision was reasonably based on his imminent release and was not an abuse or tactical manipulation of the appeal. There was nothing exceptional distinguishing the case from Welby. Remittal was unnecessary because there was nothing left for the Crown Court to reconsider: it should have allowed abandonment.

The judgment does not describe an appeal from another court. It concerns judicial review of a decision of the Canterbury Crown Court.