R v Carl Toner

An exceptionally late application for an extension of time to seek leave to appeal requires an adequate explanation. Where the explanation is inadequate, the court may nevertheless consider the proposed appeals on their merits and refuse the extension if granting it would serve no useful purpose.

A guilty plea is a formal admission of guilt. In the absence of a proper basis for treating it as equivocal or improperly entered, an appellant cannot withdraw that admission merely by later denying guilt. Leave to appeal sentence will also be refused where the sentence was properly reached and is neither wrong in principle nor manifestly excessive.

The applicant pleaded guilty at Newcastle Crown Court to attempting to incite a child to engage in sexual activity, contrary to section 1(1) of the Criminal Attempts Act 1981. He received 20 months’ imprisonment and a ten-year Sexual Harm Prevention Order.

After the single judge refused his applications, he renewed applications for extensions of 891 days to challenge conviction and 911 days to challenge sentence. He relied on homelessness and efforts to find work after release. He alleged inadequate representation, an unjustified prosecution, insufficient evidence and unfairness; he also challenged the sentencing approach. The central issue was whether the substantial delay should be excused and whether either proposed appeal had merit.

1. The court refused both extensions of time. The applicant’s explanation for delays of 891 and 911 days was inadequate, particularly because it did not explain why he had not applied while serving his sentence. The court nevertheless considered the applications’ merits and held that an extension would serve no useful purpose.

2. The conviction challenge was wholly unmeritorious. The evidence was recorded on the applicant’s telephone. The possibility that the purported child was fictitious was addressed by charging an attempt. The contemporaneous records showed that the applicant had been properly advised, accepted that he was inviting a person he believed to be a child to engage in sexual activity, and raised no objection to pleading guilty.

3. There was no basis to regard the plea as equivocal. Applying the principle stated by Lord Hughes in R v Asiedu [2015] EWCA Crim 714, a guilty plea is a formal admission made in open court and cannot ordinarily be denied on appeal simply because the defendant has changed his mind.

4. The sentence challenge also lacked merit. The sentencing judge had applied the guideline fairly and in a manner favourable to the applicant. Although the judge sentenced by reference to category 3A, other judges could properly have placed the offending in category 1A. The 20-month sentence was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): On renewal after refusal by the single judge, the court refused extensions of time to apply for leave to appeal against conviction and sentence: [2024] EWCA Crim 992.
• Newcastle Crown Court: On 22 February 2021, the applicant pleaded guilty and was sentenced to 20 months’ imprisonment, with ancillary orders including a ten-year Sexual Harm Prevention Order.