Ahmed, R. v

An abandonment of a criminal appeal may be set aside only where it is a nullity. The applicant must show that the abandonment was not a deliberate and informed decision, so that their mind did not accompany the act of abandonment. The court has no separate inherent jurisdiction to grant relief merely because special circumstances exist.

Mistake, fraud, misapprehension and materially bad legal advice are non-exhaustive guidelines. Bad advice can assist only where it has caused an unintended or ill-considered abandonment. Cogent evidence of the applicant’s state of mind is required.

In 2004, the applicant was convicted at Birmingham Crown Court of wounding with intent and sentenced to life imprisonment, with a minimum term of 77 months under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.

He sought leave to appeal against conviction. A single judge refused leave in January 2005, after considering responses from his former legal representatives. The applicant then signed a form abandoning all proceedings in the Court of Appeal.

In 2010 he applied to have that abandonment treated as a nullity. He relied on advice allegedly given after the single-judge refusal and on complaints concerning the withdrawal of his trial counsel. The central issue was whether there was evidence that his abandonment had not been a deliberate and informed decision.

1. Application refused. The court refused leave to withdraw the notice of abandonment. An appeal abandonment may be withdrawn only where it should be treated as a nullity.
2. The governing test was that stated in R v Medway [1976] 62 Cr App R 85. The essential question is whether the abandonment was not the product of a deliberate and informed decision, so that the applicant’s mind did not go with the act. There is no separate inherent jurisdiction to allow withdrawal simply because special circumstances are present.
3. The categories capable of showing a nullity cannot be exhaustively defined. They may include mistake, fraud, wrong advice and misapprehension. Offield [2002] EWCA Crim 1630 confirmed that bad advice by a legal adviser may be relevant where it has produced an unintended or ill-considered decision to abandon an appeal.
4. On the facts, the advice said to have been given accurately warned of the risk of loss of remission if the applicant renewed an unsupported application and failed. It was not bad advice. More importantly, the applicant had provided no sworn declaration, affidavit or other evidence of his state of mind when he abandoned the appeal. Even if the advice had been defective, there was no evidential basis for finding that the Medway nullity test was satisfied.

1. Court of Appeal (Criminal Division) — In [2010] EWCA Crim 1937, the court refused leave to withdraw the applicant’s notice abandoning his appeal.
2. Court of Appeal (Criminal Division) — On 28 January 2005, Pitchers J, sitting as the single judge, refused leave to appeal against conviction. The applicant abandoned all proceedings on 20 April 2005.
3. Crown Court at Birmingham — On 4 August 2004, the applicant was convicted of wounding with intent and sentenced to life imprisonment with a 77-month minimum term.