Dar, R. v

A notice abandoning a criminal appeal is irrevocable unless it is a nullity. The decisive question is whether the abandonment resulted from a deliberate and informed decision, so that the applicant’s mind went with the signed notice. Positively incorrect legal advice may, depending on the circumstances, establish that the applicant’s mind did not go with the abandonment. A later change of mind does not do so. Where the applicant knowingly abandons a conviction appeal while expressly continuing a sentence appeal, and no improper threat or other vitiating circumstance is established, the notice remains effective.

The applicant had been convicted at the Crown Court at Nottingham of arson, reckless as to endangering life, and received an extended sentence under section 226 A of the Criminal Justice Act 2003.

He made out-of-time applications for leave to appeal against conviction and sentence. After communications with the Criminal Appeal Office, he signed two notices abandoning only his conviction application while continuing his sentence application. His sentence application was later refused by both the single judge and the full court.

He then sought to have the earlier notice of abandonment treated as a nullity and to reinstate his conviction application. He alleged that he had understood communications from the Criminal Appeal Office as threats to abandon the conviction appeal.

1. Application refused. The notice abandoning the conviction application was not a nullity and the application for leave to appeal against conviction could not be reinstated.

2. The governing question was whether the abandonment was a deliberate and informed decision, such that the applicant’s mind went with the signed notice. A notice may be a nullity where the applicant’s mind does not go with it. Positively incorrect legal advice may have that effect, depending on the circumstances: R v Smith [2013] EWCA Crim 2388.

3. The applicant’s completion of Part 2 of the notice was decisive evidence that he understood its effect. He expressly abandoned the conviction application while retaining the sentence application. The court found that he was then choosing to pursue the route he considered more likely to succeed.

4. His later changes of mind, particularly after the sentence appeal failed, could not alter the unequivocal decision made in June 2020. The court rejected the allegation of threats by the Criminal Appeal Office. It had not been particularised and rested only on the applicant’s interpretation of the communications.

5. There was therefore no basis to treat the signed notice as a nullity.

• Court of Appeal (Criminal Division): Refused the application to set aside the notice abandoning the conviction application and to reinstate the application for leave to appeal against conviction.
• Court of Appeal (Criminal Division): The applicant’s renewed application for leave to appeal against sentence was refused by the full court on 4 November 2020, after a single judge had refused it on 24 July 2020.
• Crown Court at Nottingham: The applicant was convicted of arson, reckless as to endangering life, on 17 July 2019 and sentenced on 7 August 2019.