Smith, R. v

A notice abandoning a criminal appeal is irrevocable unless the Court of Appeal treats it as a nullity. The decisive question is whether the appellant’s mind truly went with the abandonment. Incorrect legal advice may satisfy that test, but only where the advice was positively wrong. A defensible professional opinion on difficult issues is not wrong advice merely because later lawyers take a different view.

An appellant cannot use criticism of former counsel to pursue an inconsistent defence after trial without a proper basis for impugning the earlier advice or conduct. An out-of-time challenge to a minimum term will fail where the sentencing judge applied the statutory starting point and correctly assessed aggravating and mitigating features.

The appellant was convicted of the murder of a ten-year-old girl who died after a Christmas party. He was sentenced to life imprisonment with a minimum term of 14 years.

His original application for leave to appeal against conviction was refused by a single judge. He later renewed it but signed a notice abandoning it after receiving leading counsel’s advice that the proposed grounds lacked merit. Years later, relying on new expert reports and new counsel’s criticisms of the earlier advice, he sought to have the abandonment treated as a nullity. He also sought leave, with a lengthy extension of time, to appeal against sentence.

The central issue was whether the abandonment resulted from incorrect legal advice such that the appellant’s mind did not go with it.

1. The court refused to treat the notice of abandonment as a nullity. Applying the test derived from R v Medway [1976] QB 779 and the later authorities, an abandonment is irrevocable unless the appellant’s mind did not truly go with the act of abandonment. Incorrect advice may have that effect, but the advice must be positively wrong. A reasonable opinion on difficult issues does not become wrong because other lawyers would have advised differently.

2. The advice given in 2006 was not incorrect. Defence counsel had reasonably decided not to call Dr Cary’s evidence about the mechanism of asphyxia. It would not realistically have supported accident or absence of intent to cause grievous bodily harm. It would also have undermined the appellant’s primary case that he was not the killer. The proposed use of that evidence did not make the evidence of the earlier attack on ChS inadmissible or less damaging.

3. The same conclusion applied to the psychiatric evidence. It could have supported diminished responsibility only by materially weakening the appellant’s maintained denial that he killed the child. The appellant faced a choice between relying on diminished responsibility and maintaining his denial. He could not properly advance both inconsistent courses through an allegation that former counsel had acted incompetently. The court held that neither trial counsel’s decisions nor leading counsel’s advice provided a proper basis for the suggested criticism.

4. The court also refused an extension of time for an application to appeal against sentence. The minimum term had been fixed by using the applicable starting point in Schedule 21 to the Criminal Justice Act 2003, followed by a correct assessment of mitigation and aggravation. The sentencing judge was entitled to treat the sexual motivation, planning and prior attacks on young girls as aggravating features. The proposed sentence appeal had no prospect of success.

• Court of Appeal (Criminal Division). The court refused to treat the 2006 abandonment of the renewed conviction application as a nullity. It also refused an extension of time to seek leave to appeal against sentence.
• Crown Court. The appellant was convicted by a jury of murder and sentenced to life imprisonment with a minimum term of 14 years. A single judge had earlier refused leave to appeal against conviction; the appellant later abandoned his renewed application.