M, R. v

An appellate court may treat a notice abandoning an appeal as a nullity only where the abandonment was not the product of a deliberate and informed decision. Mistake, fraud, wrong advice and misapprehension are illustrative rather than exhaustive grounds for exercising that jurisdiction. A later change of mind, or a concern which does not show that the appellant misunderstood the effect of abandonment, does not suffice.

An applicant seeking that relief should normally support the application with a sworn declaration or affidavit explaining why the decision was not deliberate, informed, or both.

The applicant pleaded guilty in the magistrates’ court to burglary and theft, and was committed to the Crown Court at Woolwich for sentence. He received consecutive terms of detention in a young offender institution totalling five years.

After lodging an application for leave to appeal against sentence, he signed and submitted a form abandoning all proceedings. He later applied under Part 65.13 of the Criminal Procedure Rules to have that abandonment treated as a nullity. He relied on concerns about accommodation following any earlier release and said he lacked information that abandonment was final.

The central issue was whether his abandonment had been a deliberate and informed decision.

1. Application refused. The court held that the jurisdiction to treat an abandonment as a nullity arises only where the appellant’s mind did not accompany the act of abandonment. This occurs where the decision was not deliberate, not informed, or both.

2. The court applied the principle stated in Medway [1976] 62 Cr App R 85, and recently affirmed in Bellos [2011] EWCA Crim 1421. The recognised descriptions of mistake, fraud, wrong advice and misapprehension are guides to the exercise of the jurisdiction. They do not form a closed list.

3. The applicant had discussed with his solicitors whether to continue the appeal before he signed the abandonment form. His decision was therefore deliberate. It was also informed. His concern that he would have no accommodation if released before 2013 did not show a misunderstanding of the legal effect of abandonment. Unlike Bellos, this was not a case in which the applicant had been misled about that effect.

4. The court added that applications of this kind should normally be supported by a sworn declaration or affidavit from the applicant addressing the circumstances said to make the decision uninformed or involuntary. No such evidence had been provided here.

• Court of Appeal (Criminal Division): refused the application under Part 65.13 of the Criminal Procedure Rules to treat the abandonment of the sentence appeal as a nullity.
• Crown Court at Woolwich: imposed consecutive terms of detention in a young offender institution totalling five years for burglary and theft.
• Magistrates’ court: accepted guilty pleas to burglary and theft and committed the applicant to the Crown Court for sentence.