Kirk, R. v

An out-of-time application for leave to appeal may be refused where the proposed appeal is hopeless and the explanation for substantial delay is inadequate. A refusal of an extension of time which necessarily prevents leave to appeal being obtained amounts to dismissal of the application for leave for the purposes of section 18(2) of the Prosecution of Offences Act 1985. The Court of Appeal therefore has jurisdiction to order an unsuccessful applicant to pay just and reasonable costs. It would be artificial to grant an extension solely in order to refuse leave and obtain that costs jurisdiction.

The applicant pleaded guilty in the Crown Court at Teesside to offences concerning the making and possession of indecent photographs of children. He received concurrent two-year detention terms for those offences and a consecutive 12-month term for burglary.

Nearly two years and 11 months later, he sought an extension of time and leave to appeal against conviction. He alleged failures of disclosure and inaccuracies in a forensic report. A single judge had refused leave and directed consideration of prosecution costs. The renewed application raised both the merits of the proposed appeal and whether refusal of an extension permitted a costs order under section 18(2) of the Prosecution of Offences Act 1985.

1. The renewed applications for an extension of time and for leave to appeal were refused. The challenge to convictions entered on guilty pleas was wholly without merit. The material said to have been withheld had been received by the applicant’s solicitors, and there was no attempt to vacate the guilty pleas. The approximate quantification in the forensic report could not affect the obvious fact that very substantial numbers of indecent images had been found.

2. The delay was very substantial and the explanation for it was inadequate. An extension would have been pointless because the proposed appeal was hopeless.

3. Section 18(2) of the Prosecution of Offences Act 1985 applied. Construed sensibly, its reference to dismissal of an application for leave to appeal includes a refusal of an accompanying application for an extension of time where that refusal necessarily means that leave cannot be obtained. An application for an extension cannot realistically be separated from the related leave application. The procedural rules reinforced that conclusion because the notice of appeal is to include or attach applications for leave and, where required, an extension of time.

4. The contrary construction would produce an irrational distinction between a hopeless in-time application, for which costs could be ordered, and an equally hopeless late application. It would also be artificial to grant an extension solely to refuse leave and thereby invoke the costs power.

5. A loss-of-time order under section 29 of the Criminal Appeal Act 1968 was unavailable because the applicant had been released from custody, although it would otherwise have been appropriate. The court ordered the applicant to pay costs of £400 within 28 days.

• Court of Appeal (Criminal Division). On a renewed application following a single judge’s refusal, the court refused an extension of time and leave to appeal against conviction, and made a costs order: [2015] EWCA Crim 1764.
• Crown Court at Teesside. The applicant pleaded guilty and was sentenced on 12 April 2012.