Neutral Citation No:  NICA 47
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
STEPHENS LJ (delivering the judgment of the court)
"Criminal litigation is a process in which the defendant is required to make a series of irrevocable (or usually irrevocable) decisions: for example, whether to plead guilty, whether to give evidence and so forth. If things go badly for the defendant, he cannot simply go back to square one and try a different tack. Criminal litigation is not a tactical exercise."
He added that:
"The need for finality in litigation is a basic principle, which applies in all areas including criminal justice."
He also observed that:
"In the criminal context the principle of finality has less drastic consequences because there exists a safety net outside the courts."
That safety net is the Criminal Cases Review Commission ("the CCRC") which can refer a case to the Court of Appeal (see R v Mulholland  NICA 32) and which can be requested by the Court of Appeal to make a reference in circumstances where an appeal has been abandoned and the abandonment was not a nullity so depriving the Court of Appeal of jurisdiction but where the conviction is unsafe, see R v Burt  EWCA Crim 2826.
" Counsel were ad idem on the legal principles that govern the concept of abandonment. They cited well known authorities which included: R v Medway  QB 779, R v Grey  2 Cr App R 30, R v Grace  NIJB 113, R v Shawn Edward Offield  EWCA Crim 1630, R v Lambert  EWCA Crim 154, R v Elrayess  EWCA Crim 2252, R v Nelson Richards  EWCA Crim 3330, R v RL  EWCA Crim 1913 and R v Paul James Smith  Crim App R 1.
 From these authorities the following undisputed principles can be distilled:
(i) A Notice of Abandonment of Appeal is irrevocable unless the Court of Appeal treats that Notice as a nullity.
(ii) The "nullity test" is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision but that the mind of the applicant did not go with his/her act of abandonment.
(iii) It is impossible to foresee when and how such a state of affairs might come about and it is wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which would purport to be exhaustive of the types of case where this jurisdiction can operate.
(iv) Bad advice given by some legal advisor, which has resulted in an unintended or ill-considered decision to abandon the appeal, may constitute grounds for nullity of abandonment. This would constitute one of the clear cases of a fundamental misconception, the basis of a decision that was plainly and clearly wrong and that led the applicant to apply his/her mind in ignorance of a very material consideration."
"Joxer – was not able to receive incoming calls even thow (sic) told it could…
Europa – no good for receiving incoming calls"
The inference is they were listed for warning calls from a terrorist organisation. The list of telephone numbers also contained a Belgian telephone number (according to police) and what appears to be a note of arrangements for the timing of calls from Belgium to Northern Ireland on a particular telephone number. The police also found two pairs of binoculars and a pair of walkie talkies, which had the serial numbers partially removed.
(i) Making available a false passport and other false documents knowing, or having reasonable cause to suspect, they might be used in connection with terrorism, contrary to section 9(2)(a) of the Prevention of Terrorism (Temporary Provisions) Act 1989;
(ii) Belonging to a proscribed organisation, namely the Irish People's Liberation Organisation (IPLO) contrary to section 21(1)(a) of the Northern Ireland (Emergency Provisions) Act 1978;
(iii) Completing a passport application form in the name of Michael Collins with the intention that it be passed off as genuine, contrary to section 1 of the Forgery and Counterfeiting Act 1981;
(iv) Making false instruments, namely a number of NUJ membership cards bearing photographs and the NUJ stamp, contrary to section 1 of the Forgery and Counterfeiting Act 1981;
(v) Making a false instrument, namely a NUJ membership card in the name of Gerald Campbell, contrary to section 1 of the Forgery and Counterfeiting Act 1981;
(vi) Making false instruments, namely a number of blank NUJ membership cards, contrary to section 1 of the Forgery and Counterfeiting Act 1981;
(vii) Possessing an Irish passport in the name of Michael Collins contrary to section 5(1) of the Forgery and Counterfeiting Act 1981.
The reasons for the abandonment of the appeal
"All that I can remember about the appeal being withdrawn was that I had a consultation with Mr Murphy sometime prior to the withdrawal of my appeal. He told me that counsel were unable to draft grounds of appeal. He told me that this was as far as they could take the appeal at this time. I was not told, however, that this meant that if I withdrew the appeal I could not seek to reinstate it at a later stage."
The applicant repeated that he did not understand that this was an absolute bar to his raising his appeal at a later time. Rather he stated that he was never advised as to the consequence of withdrawing the appeal in the way that it occurred. In support of the proposition that he genuinely believed that the abandonment of his appeal was not a bar, the applicant relies on the fact that, after the appeal was abandoned, he was seen by Dr Ian Bownes on 17 February 1995 and 10 March 1995 to deal with another potential ground of appeal which was the issue of his susceptibility to suggestion and how that may have impacted upon what the applicant was supposed to have said at interview. On 25 May 1995 Dr Bownes sent a copy of his report to Mr Murphy. It appears from that report that at the time of the interviews on 17 February 1995 and 10 March 1995 the applicant was understood by Dr Bownes to be appealing against conviction on a number of offences of forgery whereas in fact he had abandoned his appeal. In relation to this Mr Murphy states that he notes that the applicant changed solicitors in relation to the civil proceedings on 11 January 1995 and, though he does not specifically recall, it may well be that the appointment with Dr Bownes related to the civil proceedings. In relation to this suggestion that the instruction of Dr Bownes was in connection with the civil case, it is asserted on behalf of the applicant that it is apparent from Dr Bownes' report that it was in relation to the appeal. It is submitted that this supports the applicant's claim that he was unaware of the consequences of the withdrawal of his appeal in December 1994. We refer to this as the third reason, namely that the applicant was not advised as to the consequence of the abandonment of his appeal and that he genuinely believed, given the lack of advice to him and what positively occurred, that he could bring a further appeal at a later date.