Gray & Ors, R. v

A loss of time order under Criminal Appeal Act 1968 may properly be made where an applicant, despite clear warnings, renews a totally unmeritorious application and thereby wastes resources needed for arguable appeals. The court must give reasons and cannot make such an order where the statutory exceptions apply. Advice from counsel does not necessarily justify pursuing a hopeless renewal.

The fact that a public interest immunity hearing has occurred does not show that undisclosed material could assist the defence or undermine the prosecution. The trial judge must review the material and order disclosure if fairness requires it.

Five renewed applications for leave to appeal were heard together because each was said to be wholly unmeritorious. Gray challenged convictions for conspiracy to burgle and burglary, contending that a public interest immunity ruling had wrongly prevented further surveillance disclosure. Crawford, Ridley and Harris advanced extensive challenges to their convictions, and in Harris’s case also sentence. Udu sought to challenge guilty pleas and sentence after unsuccessfully asking the trial judge to permit a change of plea.

The common issue was whether the renewed applications justified leave and, if not, whether the court should direct that time spent in custody pending the applications should not count towards sentence.

1. The renewed applications were refused. Each was wholly unmeritorious. Gray’s application was based on a mistaken premise about the public interest immunity process. The material did not assist his defence or undermine the prosecution, and there was no arguable basis for impugning the safety of his convictions.
2. Loss of time orders were made. Under section 29 of the Criminal Appeal Act 1968, time in custody pending an appeal ordinarily counts towards sentence. The court may direct otherwise, provided that none of the statutory bars applies and it states its reasons. The guidance in R v Jerry Fortean [2009] EWCA Crim 437 remained applicable. A renewed application which should never have been pursued after clear warning may justify an order, even where lawyers have advised on or supported the renewal.
3. The court emphasised that unmeritorious renewals consume judicial and administrative resources, delay arguable conviction appeals, and can incur public expense. In every such case, the single judge and, on renewal, the Full Court should consider a loss of time order or a costs order. The absence of an indication by the single judge that such an order may be considered does not remove the Full Court’s statutory power.
4. Public interest immunity and disclosure. A public interest immunity hearing does not itself establish that the defence has been deprived of favourable material. The judge must assess whether disclosure is required for a fair trial, notwithstanding the Crown’s reservations. The judge had performed that function, had no obligation to give an unnecessarily detailed open ruling, and had kept the position under review.
5. Two months of Gray’s time in custody as an applicant was ordered not to count towards sentence. Three months was ordered in each of Crawford’s, Ridley’s, Harris’s and Udu’s cases.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal were refused. Loss of time orders were made for each applicant.
• Crown Court: Gray was convicted at Kingston Crown Court; Crawford at Luton Crown Court; Ridley at Newcastle Crown Court; Harris at Shrewsbury Crown Court; and Udu at Chester Crown Court. Udu’s application followed the trial judge’s refusal to permit him to change his guilty pleas.