R v Huyen Phuong Thi Phan

A notice abandoning a criminal appeal is ordinarily irrevocable. The Court of Appeal may treat it as a nullity only where the applicant’s mind did not go with the act, so that the decision was not deliberate and informed. Mental distress and the traumatic consequences of conviction or imprisonment do not suffice where the applicant understood the effect of abandonment, weighed the competing options and instructed that the notice be lodged. A subsequent change of mind cannot retrospectively invalidate the notice. Evidence about the applicant’s condition at the time, including medical evidence, solicitor evidence and any explanation for delay, may be relevant to the assessment.

The applicant was convicted at Southwark Crown Court of concealing criminal property, contrary to section 327(1) of the Proceeds of Crime Act 2002, and was sentenced to 18 months’ imprisonment. Her application for leave to appeal was refused by a single judge and renewed. Her solicitors then signed a Form A abandoning all proceedings in the Court of Appeal.

After a co-defendant’s conviction was quashed and a retrial ordered in R v Hanh Nguyen [2023] EWCA Crim 769, followed by acquittals, the applicant sought to have her abandonment treated as a nullity. The central issue was whether her mental state and the circumstances in which the notice was signed meant that her mind had not gone with the abandonment.

1. Application refused. The Court of Appeal had jurisdiction to treat a notice of abandonment as a nullity, but the evidence did not satisfy the governing test.
2. The court followed the established approach in R v Medway (1976) 62 Cr App R 85. A notice is a nullity where the abandonment was not the result of a deliberate and informed decision and the applicant’s mind did not go with the act. The possible circumstances are guidelines rather than an exhaustive list. The court also relied on the four propositions restated in R v Paul James Smith [2013] EWCA Crim 2388, including the ordinary irrevocability of abandonment and the requirement that the applicant’s mind did not go with the notice.
3. The applicant’s affidavit showed that she understood the consequences of abandonment and had weighed the advantages and disadvantages of continuing. There was no suggestion that she had been materially misled or was unable to understand the effect of her decision. Her traumatic experiences and mental-health difficulties did not, on the evidence, deprive her of the ability to make that decision.
4. The absence of medical evidence demonstrating incapacity at the relevant time, evidence from the solicitors who lodged the notice, and an explanation for the delay also left important matters unresolved. The applicant had subsequently changed her mind, but that did not render the original abandonment a nullity. The notice was therefore treated as effective.

• Court of Appeal (Criminal Division): application to treat the notice of abandonment as a nullity refused; [2026] EWCA Crim 199.
• Criminal Appeal Office single judge: leave to appeal against conviction refused on 18 November 2022; the application was renewed on 2 December 2022.
• Crown Court at Southwark: conviction on 31 March 2022 and sentence of 18 months’ imprisonment on 5 September 2022.
• Criminal Appeal Office: Form A abandoning all proceedings in the Court of Appeal signed on 8 December 2022.