James & Ors, R v

After a single judge has considered an application for leave to appeal, an appellant who seeks to rely on genuinely fresh grounds must obtain permission to vary the notice of appeal. The single-judge filter cannot be bypassed merely because fresh lawyers would have conducted the trial or appeal differently. Fresh grounds must be particularly cogent.

The court will assess delay, its explanation, what earlier representatives knew, the overriding objective and the interests of justice. Fresh counsel must exercise due diligence, ordinarily obtain a waiver of privilege, and reconsider the grounds after receiving the trial lawyers’ response. An application to renew out of time faces a high hurdle, especially when coupled with an application to vary.

Four unrelated applicants renewed applications arising from convictions in the Crown Courts at Oxford, Sheffield, St Albans and Liverpool. Each was represented at trial and had received appeal advice from trial representatives. After a single judge had refused leave, fresh counsel sought to advance new grounds, in some cases abandoning the grounds previously considered.

James challenged a drugs conviction. Butler challenged a conviction for rape of a child under 13. Robinson, who had pleaded guilty to arranging or facilitating a child sex offence, challenged his conviction after his sentence appeal had succeeded only as to a Sexual Harm Prevention Order: Robinson (Aaron Dwayne) [2016] EWCA Crim 1546. Seddon sought a substantial extension of time and challenged convictions for sexual offences.

The common issue was the proper approach to fresh grounds advanced after refusal by a single judge, including variation of a notice of appeal and the consequences of wholly unmeritorious applications.

1. All applications were refused. The court refused permission to vary the notices of appeal and to advance the proposed fresh grounds. It also refused Seddon’s application for an extension of time. Each application was totally without merit. A loss of time order of 60 days was made against each applicant.

2. All grounds should ordinarily be served with the notice of appeal, subject to perfection after transcripts are obtained. The single-judge process under the Criminal Appeal Act 1968 is an important filter. It must not be bypassed because fresh lawyers would have adopted a different trial or appellate strategy. A ground not substantively considered by the single judge is fresh, and requires permission to vary the notice of appeal. If there is doubt, an application to vary should be made.

3. The full court should assess the delay, its explanation, the extent to which the material was known to earlier representatives, the overriding objective and the interests of justice. The list is non-exhaustive. Fresh grounds must be particularly cogent. Fresh counsel must comply with the due-diligence requirements explained in R v McCook [2014] EWCA Crim 734, ordinarily including waiver of privilege and comments from trial representatives.

4. Exceptional leave based on substantial injustice is not required merely because fresh grounds are advanced after the single judge. It remains essential, however, to observe time limits. Leave to renew out of time requires very good reasons, and the hurdle is higher where an out-of-time renewal is accompanied by an application to vary.

5. The individual grounds disclosed no arguable error. James’s directions, disclosure, juror and hostile-witness complaints did not render his convictions unsafe. Butler’s complaint, identification and demeanour arguments did not affect the safety of his conviction. Robinson’s signed admissions established that he believed his co-accused would engage in sexual conduct and that his own conduct facilitated it. Seddon’s summing-up complaints were unfounded.

6. The court confirmed that it may make loss of time or costs orders on renewal of a wholly unmeritorious application, even where the single judge did not indicate that course.

• Court of Appeal (Criminal Division): Refused the four renewed applications, declined permission to vary the notices of appeal, refused Seddon’s extension of time, and made 60-day loss of time orders.

• Crown Court at Oxford: James was convicted of possession of diamorphine and cocaine with intent to supply.

• Crown Court at Sheffield: Butler was convicted of rape of a child under 13.

• Crown Court at St Albans: Robinson pleaded guilty to arranging or facilitating a child sex offence. His separate sentence appeal was allowed only to quash the Sexual Harm Prevention Order: Robinson (Aaron Dwayne) [2016] EWCA Crim 1546.

• Crown Court at Liverpool: Seddon was convicted of specimen counts of indecent assault and assault by penetration.