Sherry (AP) (Appellant) v The Queen (Respondent)

When deciding whether to extend time for an appeal, the merits are relevant, but lengthy delay requires a compelling explanation. Even an appeal bound to succeed does not automatically overcome the public interest in finality. A litigant cannot obtain a second appeal merely by developing a new argument. The slip rule permits correction only where an order fails to express the court’s actual intention. It cannot be used to revisit legal error or perceived injustice. For article 5 purposes, detention must have a domestic legal basis which is accessible and sufficiently precise to avoid arbitrariness. Absolute certainty is unnecessary. A sentencing discretion is not arbitrary merely because its consequences are not fixed with complete precision, provided they are reasonably foreseeable.

The appellant was convicted of assault in Guernsey in 1980 and sentenced to three months’ imprisonment. His appeal was dismissed for want of prosecution, and the Royal Court ordered him to serve the sentence less five days, although he had spent substantially longer in custody. In 2011 he sought leave to appeal out of time, correction of the Royal Court’s order under the inherent slip-rule jurisdiction, and relief under the Human Rights (Bailiwick of Guernsey) Law, 2000. Judge Finch dismissed all three applications. The Board considered whether the delay should be excused, whether the order contained a manifest error, and whether enforcing it would breach article 5.

The appeal was dismissed. The Board also dismissed, insofar as it was deemed to have been made, the application for permission to bring a second appeal out of time against the Royal Court’s order of 20 May 1980.

1. Merits are relevant to an application to extend time. At least some merit must be shown, since an appeal with no prospect of success should not proceed. However, even an appeal bound to succeed does not make an extension inevitable. The longer the delay, the better the explanation must be. A delay of about 33 years was largely unexplained, and the proposed appeal concerning credit for time on remand was not so overwhelming as to justify reopening the matter.
2. The appellant had already brought the Royal Court order before the Board in 1989 and had chosen to argue a different point. The circumstances in which a second appeal to the same court may be brought are very limited. A new argument which was available on the earlier appeal does not justify a second opportunity: see Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528.
3. The inherent slip-rule jurisdiction is confined to correcting a manifest error, namely an order which does not accurately record what the court intended. It is not a general jurisdiction to alter an order because it was legally wrong or unjust. The Royal Court intended to record five days, and that figure accorded with the contemporary understanding of section 5 of the Police Court Appeals Law, 1939. There was therefore no error capable of correction.
4. The modern approach is ordinarily to credit time spent in custody pending appeal, so that an unsuccessful appellant is not subjected to an unfair additional term, save where an additional penalty is justified to discourage frivolous use of the court’s time: see Ali v The State [2006] 1 WLR 269. That observation did not overcome the delay in this case.
5. Article 5 requires detention to have a domestic legal basis and that law to be sufficiently accessible and precise to avoid arbitrariness and permit reasonable foreseeability. Absolute certainty is unattainable and some discretionary or imprecise language is permissible: see Sunday Times v United Kingdom (1979) 2 EHRR 245. Section 9(10) of the 1939 Law gave the appellate court discretion to determine when the sentence took effect. The possible outcomes, including the usual credit for time already served and the power to increase sentence, were sufficiently foreseeable. Enforcement of the order would therefore not breach article 5.

1. Privy Council: On appeal from the Court of Appeal of Guernsey, the Board dismissed the appeal and the deemed application for a second appeal out of time: [2013] UKPC 7.
2. Guernsey proceedings: On 10 November 2011 Judge Finch dismissed the applications for leave to appeal out of time, correction of the 1980 order, and human-rights relief.
3. Earlier proceedings: The Royal Court dismissed the 1980 appeal for want of prosecution and made the sentence order. A 1984 petition to reopen was dismissed, and an earlier appeal to the Board was dismissed in 1989: [1989] 1 WLR 341.