R v MF

In a very late application for leave to appeal against conviction, the court must consider whether there is good reason to extend time and whether the proposed grounds arguably show that the conviction is unsafe. A refusal to accept negative advice about appeal prospects is not a good reason. Reasonable defence choices about evidence and editing, accurate jury directions, and opportunities to test the evidence will not support an appeal where they create no realistic prospect of success. A failure to mention an alleged offence when other abuse is disclosed may assist the defence, subject to proper caution about weight. The renewed application was refused.

The applicant was convicted after trial at Wolverhampton Crown Court on 12 May 2017 of indecent assault, assault by penetration and rape arising from allegations of sexual abuse of a family member during childhood and adolescence. He was sentenced on 23 June 2017. More than 5½ years later, a single judge refused the application for leave to appeal and the substantial extension of time required. The applicant renewed the application before the full court, advancing nine grounds concerning evidence, trial counsel’s preparation and the judge’s summing-up. The central questions were whether there was good reason for the delay and whether any proposed ground arguably cast doubt on the safety of the convictions.

Application refused. The court agreed with the single judge that there was no good reason to grant the substantial extension of time required. The applicant’s explanation amounted in substance to a refusal to accept negative advice about his prospects of appeal. The proposed grounds did not create a realistic prospect of success or arguably cast doubt on the safety of the convictions.

1. Evidence and trial preparation. The counselling report contained little beyond inconsistencies already before the jury and might have strengthened the prosecution case by recording a broadly consistent account given to an independent third party. The decision not to adduce it was understandable. Editing the ABE interview to keep it relevant to the charges and avoid prejudicial material was also a reasonable defence decision where any support for fabrication was tenuous. There was no basis for concluding that the evidence had not been properly considered or that the defence had been inadequately prepared and presented.
2. Summing-up. The jury received normal and correct directions concerning failures to complain in sexual-offence cases. Subject to proper caution about weight, failure to mention the alleged childhood rape when disclosing other sexual abuse would tend to assist the defence. The alleged errors in the judge’s reminders about dates, relationships and the evidence did not create a realistic prospect that the convictions were unsafe. The jury had been reminded that the summing-up was only a summary and that their own recollection controlled.
3. Other evidence and order. Evidence concerning a foster child did not show that the complainant’s account had been inadequately tested, since the relevant placement overlapped with the indictment period. The renewed application for leave to appeal was therefore refused. Although the court had power under section 18(6) of the Prosecution of Offences Act 1985 to order payment of transcript costs, it declined to do so because the amount was small and recovery costs were likely to outweigh it.

• Court of Appeal (Criminal Division): On 25 January 2024, the full court refused the renewed application for leave to appeal and the required extension of time: [2024] EWCA Crim 111.
• Single judge of the Court of Appeal: Refused the original application for leave to appeal, which was more than 5½ years out of time.
• Crown Court at Wolverhampton: Convicted the applicant after trial on 12 May 2017 and sentenced him on 23 June 2017.