Moore, R v

A notice abandoning a criminal appeal is irrevocable unless the Court of Appeal treats it as a nullity. A notice is a nullity where the appellant’s mind did not go with the document, or where abandonment was not the product of a deliberate and informed decision. The court must assess the circumstances in which the appellant gave instructions. A later change of mind does not invalidate a free and effective abandonment.

The applicant was convicted at Lincoln Crown Court of five offences of fraudulent evasion of value added tax, contrary to section 72 of the Value Added Tax Act 1994, and sentenced to two years’ imprisonment.

She applied for leave to appeal against conviction, advancing complaints about her former solicitors, a prosecution witness and documentary evidence. After waiving legal professional privilege, she received trial counsel’s advice that there were no arguable grounds of appeal. Her solicitors filed a notice of abandonment signed on her behalf following written instructions which she accepted she had signed.

She then asserted that her solicitor had pressured her to abandon the appeal by threatening not to act in confiscation proceedings. The central issue was whether the notice of abandonment was a nullity.

1. The application was refused. The notice of abandonment was free and effective. The application for leave to appeal against conviction had therefore been abandoned and was at an end.

2. The court applied the principles in R v Medway [1976] 62 Cr App R 85 and R v Smith [2014] 2 Cr App R 1. A notice of abandonment is irrevocable unless treated as a nullity. It is a nullity where the appellant’s mind did not go with the signed document. The court must determine whether abandonment resulted from a deliberate and informed decision.

3. The applicant had received clear adverse advice from counsel and her solicitor had explained it in conference. The court found that the advice gave cogent reasons why an appeal would be hopeless and that the applicant understood the position when she instructed abandonment.

4. Although retaining the solicitor for confiscation proceedings made her position awkward, she had a choice. She could have maintained her complaints about the solicitor and obtained other representation. The court rejected her assertion that pressure deprived her decision of its free and informed character. Her subsequent change of heart came too late.

• Court of Appeal (Criminal Division): refused the application to treat the notice abandoning the application for leave to appeal as a nullity.
• Crown Court at Lincoln: on 21 March 2017, convicted the applicant of five offences of fraudulent evasion of value added tax and imposed a total sentence of two years’ imprisonment.