Lee, R. v

Newly instructed lawyers advancing a criminal appeal must make sufficient enquiries to establish the facts underlying the proposed grounds. Where a ground implicitly alleges error or incompetence by former representatives, they should seek an account from those representatives and obtain independent material capable of substantiating the allegation.

The Court of Appeal will not determine an appeal application on unverified instructions where the factual basis is materially disputed or incomplete. It may adjourn the application so that proper enquiries are made and the prosecution can respond.

R v Lee concerned an out-of-time application for leave to appeal against a 2007 conviction for conspiracy to supply cocaine. Leave had been refused by a single judge.

New counsel contended that recorded telephone conversations intercepted in the Netherlands should not have been admitted. They submitted that the trial judge had wrongly directed the jury about their admissibility because the interceptions must have involved the United Kingdom telecommunications system.

The Court of Appeal was not provided with the material said to support that contention. Nor had new counsel contacted trial counsel or otherwise established why the evidence had been admitted without objection. The central issue was whether the application could properly be determined on that incomplete factual basis.

1. The application for leave to appeal was adjourned. The court could take the matter no further on the material before it.

2. The proposed intercept-evidence ground depended on an unsubstantiated factual premise. There was no evidence before the court that the overseas recordings had involved an interception within the United Kingdom, and the statements relied upon by new counsel had neither been supplied to the court nor served as part of the allegation advanced against the prosecution.

3. The court applied the procedural approach in Doherty & McGregor [1997] 2 Cr App R 218 and the later authorities. Newly instructed lawyers must take steps to become fully informed about relevant events while the case was conducted by former lawyers. Where a ground alleges, expressly or implicitly, that former lawyers erred or acted improperly, enquiries should be made of them and independent evidence should be sought.

4. Those requirements also apply whenever accurate factual information is essential to a proposed appeal ground. It was therefore critical to investigate why the recordings had been admitted without challenge and, if alleged, why the trial judge had been permitted to give the challenged direction. The further details were to be given to the Crown Prosecution Service so that it could respond. The renewed application was reserved to the President and Globe J, if available.

• Court of Appeal (Criminal Division): on an out-of-time application after refusal of leave by a single judge, the court adjourned the renewed application pending further enquiries and a response from the Crown. [2014] EWCA Crim 2928
• Crown Court at Inner London: the applicant was convicted by a majority jury verdict on 13 March 2007 and sentenced to 22 years’ imprisonment less time spent on remand.