Betty, R. v

A notice abandoning a criminal appeal may be treated as a nullity only where it did not result from a deliberate and informed decision. The categories of mistake, fraud, wrong advice and misapprehension are guides, not exhaustive grounds, and there is no wider inherent jurisdiction based solely on special circumstances.

For Category 1 under the section 18 sentencing guideline, the injury must amount to greater harm in the context of an offence under section 18. It must therefore be more serious than the harm inherent in causing grievous bodily harm with intent. Where that threshold is not met, a Category 1 starting point cannot be used.

The appellant and his cousin were convicted at the Crown Court at Stoke-on-Trent of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. The appellant received five and a half years’ detention after the judge adopted a 12-year adult starting point and reduced it for age and time spent on remand in local-authority accommodation.

Although he had applied for leave to appeal sentence, the appellant signed a notice abandoning that application before he and counsel had discussed the merits. His cousin did not abandon his appeal. This court subsequently allowed the cousin’s appeal because the sentencing judge had wrongly classified the offence as Category 1.

The appellant applied under rule 36.13(5) of the Criminal Procedure Rules to reinstate his abandoned application. The central issues were whether the abandonment was a nullity and, if so, whether the same sentencing error required correction.

1. The application to reinstate was granted, leave to appeal sentence was granted, and the appeal was allowed. Rule 36.13(5) of the Criminal Procedure Rules is open-textured, but the jurisdiction is governed by R v Medway (1976) 62 Cr App R 85. A notice of abandonment may be treated as a nullity where it was not the product of a deliberate and informed decision. The recognised descriptions, including mistake, fraud, wrong advice and misapprehension, are guidelines rather than closed categories. There is no inherent jurisdiction to reinstate an appeal merely because special circumstances exist.

2. It was unnecessary to conduct a detailed inquiry into the appellant’s state of mind. Even if his signature represented a deliberate decision, it could not fairly be described as informed because he had not discussed counsel’s advice with counsel. The court also regarded it as wrong to leave uncorrected an error of principle already identified in the materially similar case of his co-defendant.

3. The sentencing judge had wrongly selected the 12-year Category 1 starting point. As explained in R v Fa Xue [2020] EWCA Crim 587, greater harm for this purpose must exceed the seriousness inherent in a conviction for grievous bodily harm with intent. The injuries in this case did not satisfy that requirement. The correct starting point was nine years.

4. Adding two years for the appellant’s previous convictions produced an 11-year adult notional sentence. Applying the same 50% reduction for age and immaturity produced five and a half years. A further reduction reflected his 18 months on remand in local-authority accommodation. The court quashed the five-and-a-half-year sentence and substituted four years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The concurrent four-month sentence for possession of a bladed article was unaffected.

1. Court of Appeal (Criminal Division) Granted permission to reinstate the abandoned application and leave to appeal sentence. The court allowed the appeal, quashed the sentence of five and a half years’ detention, and substituted four years’ detention.

2. Crown Court at Stoke-on-Trent The appellant was convicted of wounding with intent and sentenced to five and a half years’ detention in a young offender institution.