McCook, R v

An application for leave to appeal may be summarily dismissed under section 20 of the Criminal Appeal Act 1968 where it is plainly frivolous or vexatious and needs no full hearing. Fresh solicitors or counsel must obtain and check the relevant facts with those who previously acted. This is required unless exceptional circumstances provide good and compelling reasons not to do so; such circumstances will be rare. The obligation is especially important where proposed grounds criticise former representatives or rest solely on the applicant’s account.

The applicant was convicted of robbery at Guildford Crown Court in 2011. The Court of Appeal set aside that conviction in July 2012 because an admitted list of previous convictions was incorrect, and ordered a retrial.

At the retrial in November 2012, further medical evidence was placed before the jury and the applicant was again convicted of robbery and sentenced to six years’ imprisonment. His trial counsel and solicitors advised that there were no grounds of appeal. New solicitors later filed a late application for leave to appeal, but its sole ground attacked the first conviction, which had already been set aside. The Registrar referred the application under section 20 of the Criminal Appeal Act 1968 for possible summary dismissal.

1. The application for leave to appeal was summarily dismissed. The court held that the application was frivolous and vexatious and could be resolved without a full hearing under section 20 of the Criminal Appeal Act 1968.
2. The only substantive ground alleged inadequate medical evidence at the first trial. That conviction had already been quashed and replaced by a retrial at which more extensive medical evidence was before the jury. The ground therefore could not sustain an appeal from the retrial conviction. Counsel had settled the grounds without the relevant information and, once the error was identified, returned the case as unsustainable.
3. The court reaffirmed the guidance in R v Achogbuo [2014] EWCA Crim 567. Where new representatives propose to criticise former representatives, or advance grounds based only on an applicant’s account, they must consult those who previously acted. The court extended that practical requirement: whenever fresh solicitors or counsel are instructed, they must approach former solicitors and/or counsel to ensure factual accuracy, unless there are exceptional circumstances supported by good and compelling reasons. Such circumstances were expected to be very rare.
4. The solicitors did not attend when required to explain events. The court made no finding on their conduct, but referred the matter to the Solicitors Regulation Authority, which could consider whether any issue concerning counsel should be referred to the Bar Standards Board.

• Court of Appeal (Criminal Division): The Registrar referred the applicant’s late application for leave to appeal under section 20 of the Criminal Appeal Act 1968. The court summarily dismissed it as frivolous and vexatious.
• Crown Court at Guildford: Following the Court of Appeal’s order for a retrial, the applicant was again convicted of robbery on 7 November 2012 and sentenced to six years’ imprisonment.
• Court of Appeal (Criminal Division): In July 2012, the court allowed an earlier appeal against the 2011 conviction because the admitted list of previous convictions was incorrect, and ordered a retrial.