R v Jose Ernesto Real

An exceptional and inadequately explained delay in seeking permission to appeal against conviction may by itself justify refusal of the necessary extensions of time and dismissal of the renewed application. This is particularly so where the applicant was advised of the right to appeal and of the applicable time limit, and also delayed substantially after the date on which he claimed to have discovered that right.

An asserted complaint about the absence of an intermediary will not demonstrate an arguable unsafe-conviction ground where the trial judge had required a fresh, supported application, but no further report or application was obtained.

The applicant was convicted at the Crown Court at Woolwich on 21 March 2016 of rape and assault by penetration, following a third trial. The first trial had been ineffective and the jury at the second trial had not agreed.

At the second trial the applicant had received intermediary assistance. The judge who conducted that trial later concluded, after observing him, that no intermediary was required for a further trial unless a new application supported by a further psychologist’s report was made. No such report or application was made before the third trial.

More than five years after conviction, the applicant sought extensions of time to appeal and to renew an application for permission to appeal. He contended that he had not known of his appeal rights until 2020 and relied principally on the absence of an intermediary at the third trial.

1. The court refused the renewed application for permission to appeal against conviction and both applications for an extension of time. The application was dismissed.

2. The required extension to commence the appeal was five years and one month. The court rejected the applicant’s explanation that he had not known of his right to appeal until 2020. Trial counsel’s response, obtained under a signed waiver, established that counsel had advised him after conviction of his right to appeal, counsel’s view that there were no grounds, his entitlement to seek a second opinion, and the applicable time limit.

3. There was also an unexplained further delay of nearly nine months after the date on which the applicant said he learned of the right to appeal. Difficulty obtaining documents and reliance on the asserted merits did not adequately explain that delay. The exceptional delay was itself sufficient to refuse the application.

4. In any event, the proposed conviction appeal lacked merit. The judge at the second trial had observed the applicant and had decided that an intermediary would only be reconsidered on a fresh application supported by a further psychologist’s report. Neither was obtained. The absence of an intermediary at the third trial therefore disclosed no arguable basis on the material before the court.

5. The court agreed with the single judge’s careful reasoning and refused the renewed application in all respects.

• Court of Appeal (Criminal Division): The court refused the renewed application for permission to appeal against conviction and refused extensions of time to appeal and to renew.

• Crown Court at Woolwich: On 21 March 2016, following a third trial, the applicant was convicted of rape and assault by penetration and was sentenced to six years’ imprisonment, with two years’ imprisonment concurrent for the latter offence.