Ali, R v

A very long extension of time for a criminal appeal requires a good explanation for delay and merits sufficiently compelling to justify the exceptional course. The court may take account of the practical prejudice caused by delay, including the increased risk that trial records and files have been lost and that the appellate court cannot be fully informed.

Assertions of trial irregularity which conflict with contemporaneous professional advice, and are unsupported by evidence, will not establish merit in a proposed appeal.

The applicant sought a renewed application for leave to appeal out of time against his 2007 convictions for rape and assault occasioning actual bodily harm. He alleged defects in the summing-up, judicial bias, an unjustified refusal of an adjournment, wrongly admitted evidence, and shortcomings by his legal representatives.

Contemporaneous advice from trial counsel identified no ground of appeal. The applicant had indicated an interest in appealing years earlier but did not pursue an appeal against conviction. His former solicitors and the Crown Prosecution Service had subsequently destroyed their files. The provisions of the Sexual Offences (Amendment) Act 1992 applied to protect the complainant’s anonymity.

The central issue was whether the delay and the proposed grounds justified an extension of time and leave to appeal.

1. The court refused both the extension of time and leave to appeal. No good reason had been shown for the substantial delay after the applicant had indicated, in 2012 or 2013, that he wished to appeal against conviction. His detention under the Mental Health Act between 2016 and 2018 did not explain the earlier period of inactivity.

2. The proposed appeal was not sufficiently compelling to justify the exceptional grant of such a long extension. It appeared to have no merit. The allegations about the summing-up and trial process were inconsistent with trial counsel’s contemporaneous written advice that there had been no material irregularity and no error of legal direction. There was also no evidential foundation for the criticisms of counsel or solicitors.

3. The destruction of the prosecution file did not assist the application. It illustrated why an appeal should be pursued in time. Had an appeal been brought promptly, the solicitors’ and prosecution documents could have been produced and the court could have been fully informed. The passage of time increased the risk that the court would be unable to establish what occurred at trial if leave were granted.

• Court of Appeal (Criminal Division): An earlier application for leave to appeal against sentence was refused, save for correction of a technical error: [2013] EWCA Crim 2523.
• Court of Appeal (Criminal Division): The renewed application for an extension of time and leave to appeal against conviction was refused.