R v James Francis Hockey

A signed abandonment of an appeal is irrevocable unless treated as a nullity. It may be a nullity where the applicant’s mind did not go with the notice. That may occur where abandonment followed positively wrong legal advice. Advice expressing an opinion on a difficult issue, including prospects of success, is not necessarily positively wrong. The applicant must provide evidence of the relevant advice and its causal connection with the abandonment. The surrounding circumstances, including a lengthy delay before challenging the abandonment, may support an inference that the advice was an assessment of the appeal’s lack of merit rather than positive legal error.

The applicant was convicted in the Crown Court at Peterborough in December 2001 of wounding with intent, having pleaded guilty to theft. He was sentenced in February 2002. His application for leave to appeal was refused by a single judge, and his renewed application was later abandoned by a signed Form A.

More than 20 years later, he applied for the abandonment to be treated as a nullity. He said that he had not known of the renewal application or abandonment and had been told that no further legal aid or legal steps were available. The central issue was whether he had received positively wrong legal advice such that his mind did not go with the abandonment.

The application was refused.

1. The court applied the principles distilled from earlier decisions, including R v Medway (1976) 62 Cr.App.R 85, and stated in R v Smith (Paul James) [2013] EWCA Crim 2388. An abandonment is irrevocable unless treated as a nullity. It is a nullity if the applicant’s mind did not go with the notice. Incorrect legal advice may have that effect where the abandonment followed because of the advice. For this purpose, the advice must be positively wrong, rather than an opinion on a difficult question.
2. The applicant’s assertion that he was unaware of the renewal application and abandonment conflicted with his signed Form A, which unequivocally abandoned the appeal after the renewal application had been made.
3. The advice that no further legal aid was available after refusal by the single judge was correct. The advice that the solicitor could do nothing more could either have been positively wrong or could have represented an assessment that the appeal had no merit. The circumstances favoured the latter conclusion. In particular, the applicant waited 23 years before raising the matter.
4. The applicant provided no evidence that he had received positively incorrect advice or that his mind did not go with the abandonment. The abandonment therefore remained effective and the application was refused.

1. Court of Appeal (Criminal Division): Application to treat the abandonment of the appeal as a nullity refused, [2025] EWCA Crim 425.
2. Crown Court at Peterborough: The applicant was convicted on 21 December 2001 and sentenced on 7 February 2002. Leave to appeal was refused by a single judge, followed by a renewed application which was abandoned on 9 November 2002.