R v Ardit Cela

An appeal based on alleged incompetence by trial representatives succeeds only if no reasonably competent counsel could have taken the course adopted on information available at the time, and that incompetence caused identifiable errors or irregularities making the trial unfair or unsafe.

An inconsistent-verdict appeal requires more than logical inconsistency. The verdicts must be such that no reasonable jury properly applying its mind to the facts could have reached them, and the inconsistency must demand appellate intervention. Separate counts require separate consideration and may rationally produce different verdicts. A properly informed decision not to call a witness cannot be reopened merely because it is later regretted. Directions must be read as a whole.

After a trial in the Crown Court at Leeds, the applicant was convicted of one count of rape and sentenced to eight years’ imprisonment. He had been acquitted on the digital-penetration count but convicted on the subsequent penile-penetration count.

An application for leave to appeal against conviction, together with an application to extend time, was filed 523 days late and refused by a single judge. The applicant renewed the applications, arguing that the verdicts were inconsistent and that his trial representatives had incompetently failed to call M, a potentially supportive witness. The central issues were whether time should be extended and whether either ground arguably rendered the conviction unsafe.

The court refused the renewed application for leave to appeal against conviction. The delay was not satisfactorily explained: the first ground had been advanced approximately 18 months late, while the process concerning the complaint about trial representation was also initiated only after substantial delay. The court nevertheless considered the merits in deciding whether an extension would serve the interests of justice.

1. Failure to call M. Applying the test in R v Day [2003] EWCA Crim 1060, an appeal based on trial representatives’ misconduct requires both proof that no reasonably competent counsel could have taken the course adopted on the information then available and proof that the incompetence caused identifiable errors or irregularities rendering the process unfair or unsafe. The lawyers had taken a proof from M, ensured his availability, assessed the helpful and harmful aspects of his account and advised the applicant. The applicant gave clear instructions that M should not be called after making a properly informed decision. There was no suggestion that he had been browbeaten or misled, and his later regret supplied no reasonable basis for reopening the decision.
2. Inconsistent verdicts. The court applied the test stated in R v Fanning [2016] EWCA Crim 550: the appellant must show both logical inconsistency and inconsistency so serious that no reasonable jury properly applying its mind to the facts could have reached the verdicts and appellate interference was demanded. The two alleged offences were separate. The jury had been directed to consider each count and its ingredients separately, and the verdicts did not have to be the same. As reiterated in R v Mundle [2024] EWCA Crim 1289, any objection to that approach should normally have prompted a request for different directions.
3. The verdicts were capable of rational reconciliation because the evidence differed. The jury might have been unsure about the initial digital penetration, or might have accepted a reasonable belief in consent at that stage but rejected it for the later penile penetration after C indicated that the applicant should stop. The court rejected the submission that one phrase in the written directions required proof of digital penetration before conviction on the later count. The directions read as a whole made the separate offences clear. The case was therefore distinguishable from R v Sham [2016] EWCA Crim 1649.

The court dealt only with the renewed application concerning conviction. Any sentence application had not been renewed and was not determined.

• Court of Appeal (Criminal Division): refused the renewed applications concerning extension of time and leave to appeal against conviction. The sentence application had not been renewed and was not before the court: [2024] EWCA Crim 1396.
• Single judge: refused the applications for an extension of time and leave to appeal against conviction.
• Crown Court at Leeds: convicted the applicant of one count of rape following trial and sentenced him to eight years’ imprisonment.