England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
His Honour Judge Joseph
T200440697

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 July 2005

The Hon Mr Justice Hedley :

1. This is an application by Myha Grant that his Notice of Abandonment of his appeal given on 13^th May be treated as a nullity. It is an unusual application and in the circumstances of this case not free from difficulty. Accordingly we decided to put our judgment into writing.
2. On 20^th January 2005 the applicant was convicted of robbery. It was an offence committed during the unexpired licence period of an earlier sentence he had received for offences which included robbery. On 3^rd December 2004 he had pleaded guilty to an offence of dangerous driving and on 17^th February he was sentenced to 5 years detention in respect of the robbery and a consecutive term of 4 months for the dangerous driving all of which was to begin after he had served 183 days of his unexpired licence period.
3. He sought leave to appeal against his sentence on 8^th March 2005. As we have said he gave Notice of Abandonment dated 13^th May 2005. He maintains a wish to pursue that appeal. The question is whether the court has, on the facts of this case, jurisdiction to allow him so to do.
4. Abandonment of an application is governed by rule 10 of the Criminal Appeal rules 1968. So far as is material that provides:

i) An appeal or an application for leave to appeal under Part I of the Act may be abandoned before the hearing of the appeal or applications by serving on the Registrar notice thereof in form 14.

ii) The notice shall be signed by, or on behalf of, the appellant……

iv) Where an … Application for leave to appeal is abandoned, the … application shall be treated as having been … refused by the court.

5. A notice in due form was lodged signed by the solicitor on the record for the applicant.
6. On the face of the Rule once a duly signed form is lodged at court, being a creature of statute, appears to be deprived of jurisdiction. Whether this was in fact so had been the subject of conflicting judicial decision. It was in those circumstances that in R –v- Medway [1976] 62 Crim App Rep 85 a five judge court convened to consider the question. The judgment of the court was given by Lawson J. The essence of the decision may be gleaned from this passage on page 98:

"The answer to the first question that we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the court to say that that abandonment should be treated as a nullity, there co-exists and inherent jurisdiction, in other special circumstances, enabling the court to give such leave.

We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the "nullity test" is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list … which purports to be exhaustive of the types of case where the jurisdiction can be exercised."

7. It follows that the question for us is whether it can be said that the mind of the applicant did not go with his Notice of Abandonment entered on his behalf by his solicitors. In order to answer that, it is necessary to piece together what happened so far as it related to this applicant subsequent to his lodging his application for leave to appeal against sentence. To that end we have been greatly assisted by Mr Alured Darlington, the Solicitor Advocate of Messrs Veja & Co who at all material times represented the applicant.
8. On 30^th March 2005, no doubt following a conversation with Mr Iain Jenkins, a solicitor with Veja & Co, the solicitors received a letter from the applicant in the following terms:

"… I have spoken to you on the phone and you have instructed me to write to you and confirm that I do not want to appeal against sentencing so whatever measures you have to take to cancel the appeal do so. I would like all my case papers to be sent to me … anything that has to be taken into account with my trial and conviction …"

9. Mr Darlington, on instructions, says that what the applicant really meant was that he did not want Veja & Co to act further and that he wanted to go elsewhere. He added that this applicant had so acted before. The plain fact, however, is that this was a clear act of abandonment so far as sentence was concerned even if he might have been reserving his position over conviction.
10. We are also unable to accept the applicant's current instructions to Mr Darlington as accurately reflecting even his subjective intention on 30^th March 2005, bearing in mind the wording of his letter dated 30^th March (and now also the telephone note of his preceding telephone conversation with Mr Jenkins, of which we were sent a copy by Mr Darlington after the hearing before us).
11. Correctly and unsurprisingly the solicitors informed the Registrar of this development who replied pointing out that a formal Notice of Abandonment was required and enclosing the correct form. On 6^th April Mr Darlington wrote to the applicant inviting him if he wished to abandon his appeal to complete the form. Receiving no reply he wrote a reminder letter on 19^th April and on 5^th May he wrote as follows:

"… in view of the fact that I have not heard from you I propose writing to the Court of Appeal after a period of 7 days serving formal notice of abandonment on your behalf. Accordingly if you do not want me to take that course please contact me as a matter of urgency to let me know."

12. All those letters were sent to HM Prison Portland. Having received no reply her served the notice as we have said. On 16^th May 2005, Mr Darlington received an internal memo timed at 4.30pm in these terms:

"T/C from Myer Grant. Re letter you sent him re: his appeal. – he has been unable to contact you but he would like to tell you that he wants to carry on with the appeal. Please contact him a.s.a.p. He is now in HM Prison Rochester."

13. There is no doubt that on 30^th March 2005 the applicant knew that he was abandoning his application for leave to appeal against sentence. However, on 1^st April he was transferred to HM YOI Guys March and on 6^th April from there to HMP Exeter. On 10^th May he was again transferred to HMP Rochester. It was on his arrival at Rochester that all his solicitor's correspondence was awaiting him in a package. We do not know when he saw it but fairness requires that we assume he rang his solicitor promptly when he had done so. It was, of course, too late to stop the Notice of Abandonment.
14. These are the circumstances then in which Mr Darlington seeks to persuade us that we should treat the notice filed by him as a nullity. If it be not such then the application is by Rule 10(4) deemed to have been refused and pursuant to the decision in Medway the court has no further jurisdiction in the matter. There is, of course, no doubt that Mr Darlington, at the time he lodged the notice, was in possession of instructions to act as he did. He argues, correctly that no set of facts like this has been considered by the authorities. It is perhaps wise to resist the temptation to try to find in the authorities cases as near to this as there are. It is wise because the question is: did the mind of the applicant got with the act of the solicitor in lodging the form? It is not a question of discretion but of fact.
15. At all times the applicant must be taken to have known of his letter to his solicitors and the effect of that letter. Although he may not have received his solicitor's correspondence, he knew what the state of their instructions were. He must further be taken to know that those instructions would stand unless and until countermanded by him. It follows that it is not possible to infer a change of instructions until he telephoned the solicitors on 16^th May. Had the solicitors simply lodged prompt Notice of Abandonment based on his instructions received on 30^th March there is no question but that he would have been bound by that.
16. What has caused us real anxiety in this case is that Mr Darlington, who had advised seeking leave to appeal against sentence, clearly wanted confirmation of instructions to abandon and for that reason wrote as he did in 6^th April. He took silence to be confirmation of his earlier instructions. It looks as though the applicant may well not have seen Mr Darlington's correspondence until after the notice had been lodged. There is no fault in the applicant that he did not see it earlier. On the other hand he knew at all times what the position would be unless countermanded by him.
17. At the end of the day, after careful and anxious consideration, we feel driven to a conclusion of fact that on 13^th May 2005 the applicant's position remained as it was on 30^th March 2005. Given his knowledge of what he had written and his subsequent silence, no other inference can reasonably be drawn. What he has lost by his correspondence having gone astray is the opportunity, which Mr Darlington had undoubtedly sought to afford him, to change his mind. In fact he did so too late. Once that finding of fact is made the court has no discretion to exercise because it no longer has jurisdiction in the case.
18. Accordingly we are constrained to refuse the application that the Notice of Abandonment be treated as a nullity. It could be thought that there is here a hint of injustice. Perhaps there could have been but, for the reasons set out in the next paragraph, none has been occasioned in this case.
19. The applicant is only 18. Nevertheless since 2001 he had before this conviction been convicted of a total of 30 offences which included a previous robbery and four custodial sentences albeit that some were imposed before an earlier one had been completed. The instant offences were committed whilst on licence from the robbery sentence. Thus it was inevitable that he would have to serve that balance before starting this sentence. The dangerous driving involved high speeds in a built up area as well as other bad driving. It merited a custodial sentence in its own right and, given that it occurred on a separate occasion, merited a consecutive sentence. The real question is whether the sentence for the robbery, having in mind both its gravity and the principle of totality was arguably too long. It was imposed in respect of conviction after trial. The robbery was a truly dreadful offence in which the applicant approached a man in a car at a 'drive-through' restaurant. In the car was the complainant, a friend and a 2 year old child. The applicant snatched a chain (value £1,000) from the complainant's neck. When he resisted another man joined in and the complainant was punched to face and arm. He was then threatened and ordered to remove a ring and watch or the child would be shot. The other man threatened also to shoot the complainant and he had his hand in his waistband as though concealing a gun. It seems to us that even when full account is made of the applicant's youth and questions of totality, it is inconceivable in these circumstances that leave to appeal against sentence would ever have been granted.

Mr Justice Elias:

20. I agree.

Lord Justice Mance:

21. I also agree.