Achogbuo, R v

Under section 20 of the Criminal Appeal Act 1968, the Court of Appeal may summarily dismiss an appeal or application that is frivolous or vexatious and can be determined without a full hearing. Serious non-disclosure in an application for an extension of time, coupled with grounds that are plainly bound to fail, may satisfy that threshold.

Fresh representatives who advance allegations of incompetent trial representation must exercise due diligence. They must obtain objective and independent support, including by making enquiries of the former lawyers, before lodging such grounds.

The applicant had been convicted at Snaresbrook Crown Court of two counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003, and sentenced to concurrent terms of 18 months’ imprisonment.

An earlier application for leave to appeal, based on an asserted hearsay ruling, was conceded to be misconceived after enquiries showed that no such evidence had been admitted. A later application alleged deficient advice about a no-comment police interview, but did not disclose the earlier application. The Registrar referred the later application for summary determination under section 20 of the Criminal Appeal Act 1968.

1. The court summarily dismissed the second application for leave to appeal under section 20 of the Criminal Appeal Act 1968. It could be determined without a full hearing and was frivolous and vexatious.

2. The application for an extension of time materially failed to disclose the earlier application for leave to appeal and its concession. The court did not investigate why the omission occurred, but held that the non-disclosure was serious. The substantive ground was also hopeless: the former solicitors’ notes showed that the applicant had denied the allegations, could offer no explanation for them, and had been advised of the possibility of an adverse inference before choosing to make no comment.

3. The court gave guidance on appeals alleging incompetent representation. It approved the earlier indication in R v Doherty and McGregor [1997] 2 Cr App R 218 that fresh representatives should contact former counsel. Given the increasing frequency of such appeals, this was no longer merely a matter of professional courtesy. Representatives would fail in their duty to the court if they advanced allegations based solely on a convicted person’s account without first making enquiries of the trial lawyers and obtaining other objective and independent evidence.

4. The court warned that it would consider using section 20 more frequently where these standards were not met. It directed the Registrar to refer the serious non-disclosure surrounding the second grounds of appeal to the Solicitors Regulation Authority, without expressing a view on its cause.

• Court of Appeal (Criminal Division): The Registrar referred the second application for leave to appeal under section 20 of the Criminal Appeal Act 1968. The court dismissed it summarily as frivolous and vexatious.

• Court of Appeal (Criminal Division): An earlier application for leave to appeal, based on an alleged hearsay ruling, was conceded to be misconceived after enquiries established that no hearsay evidence had been admitted.

• Crown Court at Snaresbrook: The applicant was convicted of two counts of sexual assault of a child under 13 and received concurrent sentences of 18 months’ imprisonment.