Conaghan, R. v

An unqualified third party has no general right to address the Court of Appeal (Criminal Division). Although the court may exceptionally grant a right of audience under its inherent jurisdiction, each request must be decided case by case. Permission to conduct litigation does not itself justify advocacy.

Applications substantially out of time require a proper explanation. Evidence presented as fresh must be genuinely fresh, credible and adequately investigated. The court may reject post-conviction expert evidence that could have been obtained at trial or is unsupported by sound expertise. Unmeritorious renewed applications may justify a loss of time order.

This combined judgment determined four renewed applications for leave to appeal against conviction. Each applicant had received assistance from an unqualified third party, and the Registrar invited general guidance on the assistance such persons may provide in criminal appeals.

Conaghan relied on a report challenging Low Copy Number DNA evidence nearly nine years after his murder conviction. James, Ramchaitar and Solomon advanced late challenges to convictions for sexual offences, robbery and grievous bodily harm, and child sexual offences respectively. Several applicants also sought to adduce fresh evidence under Criminal Appeal Act 1968, section 23.

The central issues were the proper limits of third-party assistance, whether the long delays and proposed fresh evidence justified reopening the convictions, and whether loss of time orders should follow unmeritorious renewed applications.

1. All four renewed applications were refused. The court also made loss of time orders of 28 days against James and Solomon. It made no such order against Conaghan or Ramchaitar because, on the circumstances identified, it would serve no useful purpose.

2. Under Part 3 of the Legal Services Act 2007, conducting litigation and exercising a right of audience are reserved legal activities. Following D v S (Rights of audience) [1997] 1 FLR 724, the court retains an inherent jurisdiction exceptionally to grant an unqualified person a right of audience. The discretion is case-specific and should be exercised only in exceptional circumstances. A Registrar's exceptional permission for a third party to conduct litigation does not entail a right to address the court.

3. The Registrar's practice guidance was generally consistent with the law and best practice. The court recommended clearer terminology and staged guidance. Third parties should be warned not to renew a refused application without the applicant having advice about the possible consequences. Where an appeal criticises trial representatives, the procedure in R v McCook [2014] EWCA Crim 734 must be followed.

4. The exceptional delay in Conaghan's and Ramchaitar's cases lacked a proper explanation. The fact that pro bono student bodies have limited resources does not excuse leisurely pursuit of an application. The proposed evidence in each case was not properly fresh within section 23. In Conaghan's case, the report attacking the trial DNA analysis was inadequately investigated, lacked credible expertise, could have been addressed at trial, and amounted to impermissible post-conviction expert-shopping.

5. The remaining grounds largely sought to reargue jury issues or challenged matters that could and should have been raised at trial. The court endorsed the single judges' conclusions that none rendered the convictions unsafe. Applying R v Gray & Ors [2014] EWCA Crim 2372, the court held that loss of time orders remain the available means of deterring applications that needlessly consume appellate resources.

• Court of Appeal (Criminal Division): Renewed applications by Conaghan, James, Ramchaitar and Solomon for extensions of time, leave to appeal against conviction and, where sought, permission to adduce fresh evidence were refused.
• Crown Court: Conaghan was convicted of murder at the Central Criminal Court in 2007. James was convicted at Reading Crown Court in 2014. Ramchaitar was convicted at Inner London Crown Court in 2003. Solomon was convicted at Taunton Crown Court in 2011.