England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
(HHJ POWNALL QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th June 2003

Mr Justice Mackay :

1. This is an application for an extension of time within which to apply for leave to appeal against conviction. The extension required is one of some 5 years. It is necessary in the circumstances to set out the relevant timetable of this case which is as follows.
2. On the 20^th May 1996 after a trial lasting just over two months the Applicant was convicted at the Central Criminal Court of murder. A verdict of not guilty on the Second Count on the Indictment namely violent disorder was entered pursuant to S. 17 of the Criminal Justice Act 1967. Two co-defendants with whom he stood trial were acquitted. A fourth man named Umran Wali Qadir was convicted. Qadir was granted leave to appeal against his conviction. His appeal was dismissed by the Full Court on the 5^th February 1998. Qadir's defence at trial was different from that of the Applicant. Qadir accepted he was present on the occasion when the victim was killed but said he took no part in what went on. So far as his appeal was concerned the Full Court's view was that there was no possibility of any material weakness in the identification evidence against him having been overlooked by the jury as a result of the summing up and that his conviction was safe.
3. The Applicant's trial counsel filed preliminary grounds of appeal in June 1996 in wide and general terms, complaining only of an absence of balance in the summing up, there being no transcripts available at that time. As will be seen later the Applicant soon dispensed with his trial counsel and solicitors' services and put in his own grounds of appeal which extended over 6 closely typed pages and set out 32 different grounds.
4. In March 1997 Mr. Justice Hooper refused his application for leave to appeal, (notice of such referral being sent to the Applicant on 24^th March 1997). He dealt with each of the points, so far as each was discrete or comprehensible, individually. He particularly dealt with the Turnbull point since this was a case in which the Applicant's defence was that he was elsewhere and not involved in the events leading to the victim's death at all. His views prefigured those which the Full Court would later express (albeit without seeing his comments) in Qadir's appeal. He said:

"The jury were provided with a schedule of those witnesses who had given evidence either identifying you as being there or not identifying you as being there. Your counsel as did the other counsel dictated to the jury the various comments they wished to make on those witnesses. The Judge told the jury that the entries which had been made upon the schedules were correct and thus reinforced as strongly as he could the arguments which were being made on your behalf".

Otherwise the single judge was of the view that the Applicant's case had been put fairly to the jury, the summing up was fair and impartial and:

"The evidence that you were the person that killed Ayotunde Obanubi was overwhelming and the conviction is safe".

This decision was passed in the normal way to the Applicant who was then held at HM Prison Brixton.

5. On 1^st April 1997 the Applicant wrote to the Registrar of Criminal Appeals Office saying he had no legal representation at that time and that he wanted to submit fresh evidence. He wrote as follows:

"As you can appreciate I am in an extremely difficult situation. Yes I want to renew the application for Leave to Appeal but I also want the new evidence presented to the Full Court but this cannot realistically be done in two weeks. I cannot stress the importance of this new evidence enough. Therefore can I submit Witness Forms W after sending you the SJ Form? How can I present the new evidence before the Full Court hearing?"

He indicated that he was intending to instruct new legal representatives.

6. On the 14^th April 1997 the Criminal Appeals Office sent him a letter in succinct and accurate terms stating that if he wanted to renew his application:

"You must complete and hand in Form SJ at your place of detention. If you do not do so within 14 days of the date upon which it was served upon you, you must give cogent reasons explaining why you could not or did not do so. Those reasons will be put before a judge who will consider whether or not to permit you to proceed. If there is now fresh evidence you wish to seek the leave of the court to present you should complete and lodge Form W in respect of each such witness".

No Form SJ or Form W was ever received in the Criminal Appeals Office thereafter, either within 14 days or at any time over the next 5 years.

7. On the 9^th April 2002 a fresh Form NG was received with a covering letter. Within the grounds which it enclosed were extensive references to documentary evidence explaining the delay. This Court therefore postponed its decision to enable the Applicant to supply that evidence in response to a letter from the Criminal Appeals Office of 11^th June 2003, which also asked him to provide a copy of the transcript. In response, part of the transcript of the summing up and a transcript of the evidence of some of the witnesses has been provided. Further documentation, including copies of certain correspondence with solicitors, was also later supplied. The summing up does not include pages 10 – 13 and 15 – 30 inclusive and the missing pages, which almost certainly contain important parts of the summing up, are said to be no longer available. This is but one of the unfortunate consequences of the lapse of time in this case. We stress of course that Mr. Justice Hooper had the full summing up before him when reaching his decision.
8. The fresh grounds of appeal and their supporting argument can only be described as voluminous. The Form NG seeks an extension of time in which to apply for leave to appeal, and Legal Aid. There is no application for Leave to Call a Witness and no Form W accompanies it.
9. The first 31 pages of this document deal with the question of an extension of time. They include copious references to authority and statute, notwithstanding the fact that this Court's jurisdiction and approach to the matter of such extensions is well established. We have to look at this application under three headings.

I. Length of delay: Here it is very substantial indeed, just under 5 years, which speaks for itself. On the Applicant's case, with which we deal in more detail below, the first 6 months or so of that time is not to be attributed to him. When looking at delay of this order the Court has to remind itself that the time limits allowed for applications for leave to appeal are short and indicate the requirement for appellants to act promptly where appeals to this Court are concerned.

II. The reasons for the delay: These appear from page 11 onwards in the document and we will summarise them, as originally presented, as best we can.

10. The Applicant dismissed his trial counsel after they had settled the preliminary grounds of appeal referred to above. His reason was that they had failed to challenge the crucial identification evidence in a way which he considered appropriate. He then consulted a second firm of solicitors Steel and Shamash who, he says, gave pessimistic advice about his prospects of appealing. That advice is not reflected in any of the correspondence from that firm with which he has now supplied us. Nevertheless he settled his own perfected grounds "hastily", though to our eyes these showed every sign of careful, even laborious preparation. He describes Mr. Justice Hooper's refusal of his leave under S.31 of the Criminal Appeal Act as "an injustice".
11. He then in his grounds claims that he

"signed, dated and resubmitted the required renewal [Form SJ] before the 14 day limit to the then Legal Aid Officer in C Wing at HMP Brixton".

And,

"proceeded as if it were sent and delivered".

He has now disclosed a letter dated 25^th April 1997 from a third firm of solicitors Dundons. This is quite evidently not the complete correspondence he had with that firm. It appears that he had (by letter which has not been put before us) "indicated" that he had renewed his application for leave within time, but that they had contacted the Criminal Appeal Office and been told that the application had not been renewed so far as the Court was concerned. These solicitors then advised the Applicant in appropriate terms. The writer said:

"Normally there is a 14 day time limit for the renewal of applications but the Court tells me that your original application will not lapse, providing they hear from you within the next 14 days. I understand that your co-defendant Qadir renewed his application on 3^rd April and I can only advise that you do the same with your application at the earliest opportunity".

12. In his grounds he says that after six months having heard nothing he telephoned the Criminal Appeals Office and was told that, "the case papers were lost". He was then told that the office had not received his renewal application and that this non-receipt was confirmed by an examination of postal records.
13. On 14^th September 1997 he instructed (directly) a barrister Saeed Rafique who gave unfavourable advice on the prospects of the appeal.
14. In January 1998 he instructed a fourth firm of solicitors McMillen, Hamilton, McCarthy who wrote to his mother, noting that the Applicant had stated that he had renewed his application for leave to appeal, but that:

"Your son seems to think that the papers may never have arrived".

That solicitor indicated he was unable to handle the case.

15. He went to a fifth firm of solicitors TMK in March 1998. Principally they seem to have acted for him for about a year in connection with representations to the Home Office as to his tariff term. The first letter they wrote includes this sentence:

"I note that you have taken part in an appeal procedure that seems to have come to an end when the Court of Appeal Office lost your paper work".

The matter of the status of the appeal is thereafter never referred to by these solicitors in their correspondence with the Applicant until 16^th March 1999, when they advised that the appeal against conviction would be unsuccessful.

16. On 17^th October 2000, he having approached a sixth firm of solicitors Thanki Novy Taube, they indicated that they were unable to "take on any new cases". It is unclear what advice they had been asked to give the Applicant. From the documents provided it is plain that he made an application to the Criminal Cases Review Commission some time in 1999. He then had extensive correspondence with that body, the effect of which was that he was seeking an extension of time from it within which to submit his full case; they were not prepared to grant this to him in the terms in which he sought it. He therefore discontinued his application, as it would seem, in about November 2000.
17. Throughout this period the Applicant says that he was, in addition to the sources of advice we have been able to identify above, being advised on a pro bono basis by a QC "and his colleagues and the College of Law" as well as "advice answered (sic) on a pro bono basis from several legal sources". He argues that the facts of this case were overwhelmingly difficult to marshal and arrange. In a letter to a prison official of 28^th March 2001 concerning his access to IT facilities while in prison he makes it plain that he was in the course of preparing a fresh application for Leave to Appeal, and had reached page 264 having completed 5 out of the 7 grounds. The final form of the documentation he now presents is, as we have stated, voluminous in the extreme, stands several inches high and runs to 347 pages.
18. It remains the Applicant's case notwithstanding his submission of a fresh Form NG with supporting documentation that his original renewal of his first application for leave to appeal remains in being, properly filed as it was within the 14 day limit, and has never been adjudicated upon. We are satisfied as a matter of fact that it never reached the Criminal Appeals Office, which is the crucial point: see Criminal Appeal Rules 1968, rule 12(1)-(4) stating that:-

"Determination by full court

12.-(1) Where a judge of the court has refused an application on the part of an appellant to exercise in his favour any of the powers referred to in section 31(2) of the Act, the appellant may have the application determined by the court by serving a notice in Form 15 on the Registrar within fourteen days, or such longer period as a judge of the court may fix, from the date on which notice of the refusal was served on him by the Registrar.

(2) A notice in Form 15 shall be signed by, or on behalf of, the appellant.

(3) If the notice is not signed by the appellant and the appellant is in custody, the Registrar shall, as soon as practicable after receiving the notice, send a copy of it to the appellant.

(4) If such a notice is not served on the Registrar within the said 14 days or such longer period as a judge of the court may fix, the application shall be treated as having been refused by the court"

No records now exist at HM Prison Brixton, as we find, which cover the period of April 1997 nor can HM Prison Kingston find any correspondence or documentation relating to his renewed application for leave.

19. The proposition that the Applicant did in fact renew his original application is dependent entirely on his uncorroborated evidence. The terms of his letter 1^st April and the Criminal Appeals Office's reply dated 14^th April 1997 make it improbable that he would have lodged any renewed application for permission to appeal "in time" (as he apparently asserted to Dundons that he had) After Dundon's letter of 25^th April 1997, he was also on notice that, so far as the Criminal Appeals Office was concerned, he had not done so. Further, by the end of that year, on his own case, he had again been told by the Criminal Appeal Office that the form had been lost if filed as it had never arrived with them. He knew this fact by about October 1997 at the latest.
20. There is not one letter or other communication from him or any of the many people who have acted on his behalf over the years complaining of the loss within the system of his renewed application or asking for it to be reinstated. This in our judgment invites a certain amount of scepticism as to whether he ever did lodge the Form SJ as he claims.
21. But in fairness to the Applicant we propose to assume in his favour that he did in fact seek to renew the application by lodging it at the prison and that it was never delivered by the prison to the court. On that basis it was ineffective under rule 12 which he knew from 1997 on, was also the Criminal Appeals Office's position. We therefore have to consider the reasons for his own delay thereafter, that is from about October 1997 to April 2002. Over this period he was aware that some application on his part was required to the court, if there was to be any prospect of this court entertaining any appeal. The only explanation that is now put forward is that he chose to spent this period of approximately 4½ years constructing his elaborate "new" application for leave. But neither the length nor the complexity of the resulting new application can excuse what must have been a conscious decision to ignore the time limits which he knew were in place governing his appeal. It may well be that he believed that the very size and complexity of the documentation on which he was labouring would serve to push all procedural objections to one side. We are unable to accept this motivation on his part as either an acceptable or reasonable explanation for injecting a delay of this length into an appeal of this nature.
22. III. The merits

We should, however, before reaching a final view on this application, form a view of the merits of the proposed appeal as best we can. If these appear to be compelling a more generous view of the delay will be taken than would otherwise be the case. In this exercise the Applicant is his own worst enemy, as his grounds can only be described as daunting. Many of the hundreds of pages are nothing more or less than a list of dozens, sometimes scores, of legal authorities.

23. This was nothing more or less than a case where the issue was whether the applicant was part of the group, acting as a joint enterprise to cause serious bodily harm to the victim, which chased and attacked Mr. Obanubi on 27^th February 1995. 13 witnesses gave evidence which implicated him in various ways in violence towards the victim, either on the occasion on which he was killed or within the preceding few days; 8 of these witnesses' evidence directly implicated him as the man who stabbed the victim. In addition he was said to have confessed his participation to a friend; his fingerprints were on a plastic bag containing a number of weapons one of which had the deceased's blood on it; incriminating material was found at his home; he made two telephone calls shortly after the murder to his co-defendant Qadir; and he told extensive lies in interview. This was the case against him. Clearly it called for a careful direction bearing in mind that, in addition to the evidence we have summarised above, there were many other witnesses who failed to identify the Applicant, whose appearance was distinctive, among the attacking group. It was also the case that those who did identify him were open to criticism in a variety of ways.
24. Because of the great number of witnesses who gave evidence (over 30) trial counsel had produced an appropriately annotated schedule of all the witnesses who had and who had not given identification evidence implicating each of the four defendants. It is apparent (transcript 33D) that the Applicant's leading counsel had played a prominent role in this exercise. The Judge endorsed the accuracy of this schedule and its factual correctness in explicit terms in his summing up. We have not seen this schedule and doubtless it cannot now be recovered. But it seems to us in principle to have been an eminently sensible way of putting before the jury in written form the competing contentions about the effect and reliability of the eyewitness evidence.
25. As to the Judge's standard or general Turnbull direction we cannot now see it. It must have been in those parts of the transcript of the summing up which have not survived the passage of time and the transfer of this case between the various firms of solicitors outlined above. We can therefore only do the best we can which is to note that Mr. Justice Hooper, who unlike us saw the complete transcript, was evidently satisfied that it followed an acceptable form and the same view was expressed by the Full Court in 1998 albeit in the appeal of Qadir.
26. The next main question which emerges from the documentation is whether this Applicant's defence, which was one of alibi, was put fairly to the jury. Mr. Justice Hooper believed that it had been. We have read that part of the transcript in which it is summarised (173E – 194C) and are of the same view. We see no merit in the criticisms about lack of balance. In most cases, where these can be comprehended, they seem to reflect no more than the fact that the Judge also reminded the jury of those parts of the evidence which were unfavourable to the Applicant. He was entitled and indeed bound to do that. The evaluation of the evidence was on this basis properly left to the jury, and we see no justification for regarding their verdict as leaving any "lurking doubt".
27. As to the other grounds there is no specific application on the Form NG to call fresh evidence, albeit that was prefigured in the Applicant's letter of 1^st April 1997 in which he said that he could not "stress the importance of this new evidence enough". No Form W identifies a particular witness who is to be called or explains why that evidence was not available at trial.
28. We see nothing in the suggestion now made that it was wrong and abusive to add a second count (violent disorder) to the primary charge of murder, or that this in any way unbalanced or made unfair the trial summing up.
29. We regard the delay to making the present application is itself fatal to the present application. But, even if we were to overlook that, our judgment is that this appeal even if presented with leave would not enjoy arguable prospects of success. For all the above reasons we therefore refuse this renewed application for an extension of time within which to apply for leave to appeal against conviction.