England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 13th December 2006

1. THE VICE PRESIDENT: These four applications have been listed together before this court in order that this court can consider whether or not it would be appropriate to exercise its powers under section 29 of the Criminal Appeal Act 1968 to direct that the period, or a part of the period, served by the applicant since he was sentenced should not count towards his sentence on the grounds that his or her application lacks merit. This court has been concerned by the fact that despite repeated reminders it remains the case that a significant number of applications for leave to appeal against conviction or sentence, which are wholly without merit, are taking up the time of single judges dealing with the applications under section 31 and are being renewed to this court.
2. The position is clearly set out in the Practice Direction (Criminal Proceedings Consolidation) [2002] 1 WLR 2870, and II 16 provides as follows:

"Both the court and the single judge have power in their discretion to direct that part of the time during which an applicant is in custody after putting in his notice of application for leave to appeal should not count towards sentence. Those who contemplate putting in such a notice and their legal advisers should bear this in mind. It is important that those contemplating an appeal should seek advice and should remember that it is useless to appeal without grounds and that grounds should be substantial and particularised and not a mere formula. Where an application devoid of merit has been refused by the single judge and a direction for loss of time has been made, the full court, on renewal of the application, may direct that additional time should be lost if it, once again, thinks it right so to exercise its discretion in all the circumstances of the case."

3. This court last considered this matter in a decision of 12th April 2005 in R v Herbert K [2005] EWCA Crim 955. In that case this court, presided over by the Lord Chief Justice, reiterated the provisions of section 29 and the contents of the Practice Direction to which we have referred.
4. The position is, as we have indicated, that, despite those exhortations, the number of applications totally without merit is so substantial that it is necessary for this court to consider with greater frequency than it has in the past the cases in which the power under section 29 should be exercised. We take this opportunity, therefore, in these four applications to indicate some of the circumstances in which it may well be appropriate to exercise that power.
5. The first application is the application in Hart. He was convicted on 19th May 2006 in the Harrow Crown Court after a two day trial of exposure contrary to section 66(1) of the Sexual Offences Act 2005 and was subsequently sentenced to 21 months' imprisonment.
6. He applied for leave to appeal against both conviction and sentence. He also had to apply for an extension of time, which was 13 days, to make those applications. They were refused by the single judge. He has renewed those applications to this court.
7. The facts of the offence were that on the prosecution case the applicant had exposed his penis to the complainant on a bus, masturbating until he ejaculated. The witness, who was satisfied that he was doing it deliberately, in her view, and described that he had used Vaseline. She reported the incident to the driver. The applicant then got off. The complainant disembarked at the next stop, confronted the applicant, and asked people in the street to help. While she talked to him he dropped some photographs which turned out to be pornographic photographs. Passers-by assisted in apprehending the applicant until police arrived. When he was arrested by the police, he was found to have other pornographic pictures on him. His clothing was in disarray; his trousers were undone; his underpants exposed; and he had a jar of Vaseline with him.
8. In the course of the trial the prosecution applied for leave to put before the jury evidence of the applicant's previous conviction in 2000 for sexual offences involving a nine year old girl, which was granted. The applicant denied that he had exposed himself. He explained the fact that his clothing was in disarray on the basis that it had become disarrayed when he was apprehended by the members of the public who assisted the complainant. He kept the jar of Vaseline with him because he suffered from dry skin.
9. The judge in sentencing him to 21 months' imprisonment described the offence as one of the most serious types of indecent exposure, bearing in mind the circumstances, namely that it was done in full sight of a woman in a public place, namely the bus.
10. The applicant, in grounds drafted by himself originally made five complaints about the conviction. Firstly, he complained that counsel did not properly conduct his case. Secondly, he complained about the admission of the previous conviction. Thirdly, he complained that the CCTV camera on the bus, which had in fact identified him, did not show him masturbating. The applicant further complained about the use of some material in the interview, which should not have been used and then further complained about some evidence relating to a mobile telephone as to which he had been asked questions both in interview and at trial when he gave his evidence. Further, the applicant complained that the sentence that was imposed was manifestly excessive.
11. In refusing leave to appeal the single judge said:

"I have considered the papers in your case and your grounds of appeal. You were convicted of exposure contrary to section 66(1) of the Sexual Offences Act 2003. The exposure involved masturbation in front of a young woman on a bus.

Conviction

You seek leave to appeal your conviction on the basis that your barrister did not properly conduct your case (ground 1). I have seen the response from your barrister (Mr Wadling) and your comments on that response. I do not consider that there is any arguable basis of appeal on this ground. In relation to the particular matters raised in your grounds:

1. The fact that your previous convictions were mentioned (ground 2). There are no proper grounds of challenge.

2. Evidence by the victim of what she said to the police (ground 3). There does not appear to be any evidence of a conversation with you in her statement or before the court. It raises no arguable ground of appeal.

3. Evidence that you were going to take your son to play football (ground 4). The judge summed up your evidence which was not challenged and this does not raise a possible ground of appeal.

4. Evidence to the purchase of the mobile phone (ground 5). The judge summed up your evidence as to which there was no dispute and this does not raise a possible ground of appeal.

If there had been arguable grounds of appeal, I consider that an extension of time of 13 days would have been appropriate given the matters set out in your letter of 15th July 2006.

Sentence

You were sentenced to 21 months' imprisonment. This was an offence which was aggravated because it was carried out against a woman on public transport. It is also aggravated because of your previous convictions. The judge took into account mitigation and I consider that the offence justified a high sentence and that there are no proper grounds to appeal the length of sentence of 21 months. In the circumstances, no question of granting bail arises."

12. Subsequent to the single judge's refusal of permission the applicant has added two further grounds in a letter of 16th November 2006. Firstly, he says that he could not have unzipped his trousers with his right hand as he had been left with partial palsy in his right hand as a result of a car accident in 1992. Secondly, the applicant was wearing a short jacket which would not have covered his movements in a public place.
13. In our judgment, in relation to the original grounds of appeal, both against conviction and sentence, the judge was entirely correct to describe them, in effect, as without merit. As far as the two further grounds are concerned, those are matters which could have been dealt with at the trial; but, in any event, in the context of the evidence at the trial, as to which we have had an opportunity to see the account in the summing-up by the judge, it is quite plain that those were matters which could not have in any way affected the verdict of the jury.
14. As far as this court is concerned, accordingly, it sees no reason which could have justified the applicant renewing his application for leave to appeal against either conviction or sentence, having been firmly and clearly told by the single judge that it had no merit. This is a case in which it is clear that the applicant did not have any support from counsel to the effect that there were any arguable grounds of appeal.
15. In the circumstances, in the absence of there having been such advice, and in the face of the clear indication by the single judge as to the merits of the appeal, we consider that the renewal of this appeal falls into the category of a renewal of an appeal without merit which justifies this court in exercising its powers under section 29. We do so by ordering that 28 days of the period spent by the applicant since his conviction should not count towards his sentence.
16. We turn then to the second application which is the application of George. She appeared on 2nd February 2006 at the Leicester Magistrates' Court, pleaded guilty and was committed to the Crown Court for sentence, and two offences of assault occasioning actual bodily harm and assaulting a constable. On 29th June 2006 at the Crown Court at Leicester she was sentenced as follows. In relation to the assault occasioning actual bodily harm, an extended sentence of four years pursuant to section 227 of the Criminal Justice Act 2003, comprising a custodial term of three years' imprisonment and an extension period of 12 months. As far as the assault on a constable was concerned, no separate penalty was imposed.
17. She renews her application for leave to appeal against sentence after refusal by the single judge.
18. The circumstances of the offence for which she was sentenced were as follows. Steven Jeggo was a probation officer based at a probation hostel in Leicestershire. Whilst he was working on Christmas day 2005 he answered a knock at the door. He opened the door and found the applicant standing there. He recognised her because she had been a resident in the hostel a year or so before. She said that she had come to pick up a library book that she had left at the hostel. Mr Jeggo said there would be no record of a book being at the hostel. The applicant then lunged at him with a knife. She appeared to aim for his upper body. He put his hands to his chest. The knife caught his hand. He shouted to his colleague to call the police. He then tried to pin the applicant against a wall to restrict her movements and prevent further injury. The knife fell to the floor. The applicant then left. Mr Jeggo sustained a half inch cut to the middle finger of his left hand and a small cut to his thigh. He was seriously affected by that incident.
19. About a half an hour after the attack on Mr Jeggo the applicant was arrested. During the course of her being searched in order for the police to look for concealed weapons the applicant punched a female police sergeant to the face, causing swelling and a half inch cut to a finger that bled.
20. When she was interviewed by the police as far as the offences were concerned she made no comment, but in the interview for the pre-sentence report she described in more detail the circumstances which led up to the offence. She said she was alone in her flat. She had thoughts of revenge against the probation service and as a result she decided to go to the bail hostel with a knife and injure the first person who opened the door. No one in particular was targeted. She just wanted retribution for the harm that she felt that the probation service had caused her.
21. She is a woman of 38 years of age with a significant number of previous convictions and has served lengthy sentences of imprisonment. Her offending has involved assaults, arson and similar matters. The reports make it clear that she has felt resentment towards those in authority over a substantial period of time and that that resentment has been particularly directed towards the probation service. It was in those circumstances that the judge concluded that the sentence should be one of four years' imprisonment and justified the imposition of an extension period by reason of not only the offence itself but her background.
22. The single judge in refusing leave to appeal said as follows:

"This was an attack with a knife with intent to injure the head, committed by someone with numerous convictions for violence. The pre-sentence and psychiatric reports were unhelpful to the defendant. There was no alternative to a substantial custodial sentence. Three years was not too long."

23. In this case the applicant had received advice from counsel. Counsel had put forward in her advice two potential grounds of appeal. Firstly, that the recorder failed to give any, or any due, consideration to the defendant's guilty plea. Secondly, that he failed to give due, or any, consideration to the substantial mitigation forwarded on behalf of the defendant.
24. Whilst we have no doubt that the decision of the single judge was entirely correct and that the use of the court's powers under section 227 was appropriate, it is important to point out that in this case the maximum determinate sentence that could be imposed on this applicant was one of five years' imprisonment. In those circumstances, since the judge in the face of a plea of guilty had only made a reduction of one year, it is difficult to say that the application was totally devoid of merit; and the applicant had had the benefit of advice from counsel to the effect that we have indicated. In those circumstances, we do not consider that in this case it would be right for us to exercise our powers under section 29.
25. We turn then to the application of Clarke. The applicant pleaded guilty on 12th April 2006 to two offences of possession of a class A drug, one being crack cocaine and the other being heroin, with intent to supply. On 27th June 2006 the applicant was sentenced to three years' imprisonment with 41 days spent on remand to count towards sentence on both counts to be served concurrently.
26. He renews his application for leave to appeal against sentence after refusal by the single judge.
27. The facts can be shortly stated as follows. On 19th January 2006 police officers were on mobile patrol in the Shirley area of Croydon. They saw the applicant walking along the road. He seemed to realise that he was being observed and he started to fiddle with his left hand jacket pocket. One of the officers opened a car window and called out to the applicant to stop but the applicant kept walking and then started to run. He took his hand from his pocket, put it up to his mouth and then removed his hand. As he ran he turned his head and appeared to spit into a garden. Eventually he was stopped. Nothing was found on him, but when the officers went back to the garden, into which the applicant had appeared to spit something, six clingfilm wraps could be seen. When he was confronted with that the applicant replied, "I am just a user. I don't deal." He was arrested. When interviewed he said he had just obtained the drugs for himself and a friend. He had bought the drugs in Croydon and was on his way home. The drugs were for his own use and his friend's use and he was not a dealer. Four of the wraps contained crack cocaine and two wraps contained heroin.
28. The judge acknowledged that this was a very small scale possession with intent to supply at the very bottom rung, but the applicant had a bad record, including a number of offences relating to drugs and possession of drugs with intent to supply. He gave, he said, full credit for the guilty pleas, and in those circumstances considered that a sentence no longer than three years' imprisonment was appropriate.
29. The grounds of appeal were settled by the applicant himself, reflecting the fact that his counsel had advised that there was no prospect of persuading this court that the sentence was manifestly excessive. In those grounds of appeal essentially the applicant submitted that insufficient credit was given for the guilty pleas, insufficient account was taken of the fact that he had remained drug free for a significant period. He considered that the pre-sentence report was biased and had not explained that he was remorseful. Further, he had a different barrister for sentence from the barrister whom he had first seen, and, although there had been a psychiatric report ordered, he did not consider that that was of any relevance to him.
30. The single judge said as follows:

"You were sentenced on the basis that this was a very small scale intended supply, an intended commercial supply at the bottom of the rung of the supply of class A controlled drugs -- four wraps of cocaine and two wraps of heroin. The sentence imposed was in all the circumstances (including the aggravating and mitigating factors) within the appropriate sentencing bracket. As the judge pointed out in his sentencing remarks, you have a bad record, including a number of offences in relation to drugs and possession of drugs with intent to supply. You received (in my view rightly) a negative advice on appeal from counsel. The sentence imposed was not manifestly wrong or excessive in principle."

31. With those remarks we entirely agree. This was a sentence which could not in any way be criticised, not only in relation to the offence itself against a plea of guilty, but also bearing in mind the applicant's previous convictions. He had received, as the single judge noted, an advice from counsel that an appeal would not succeed.
32. It seems to us in those circumstances that this is a case where the application for leave to appeal is entirely without merit. Against the background we have described of a negative advice from counsel and a clear statement by the single judge that this application was unarguable, we consider that we should properly exercise our powers under section 29 and direct that 28 days of the period served since he was sentenced should not count towards his sentence.
33. Finally, we come to the application of Brown. On 11th May 2006 this applicant pleaded guilty to one count of theft and on 1st August 2006 he pleaded guilty to an offence of sexual assault on a female. He was committed to the Crown Court for sentence and on 18th August 2006 he was sentenced to 12 months' imprisonment for the theft and 12 months' imprisonment consecutive for the sexual assault.
34. He renews his application for leave to appeal against sentence after refusal by the single judge.
35. As far as the theft was concerned that occurred on Saturday 22nd April 2006. An 84 year old lady was, while shopping in Epsom town centre, taking a rest on a bench. She took out her purse to check what was on her list for the day when the applicant snatched the purse from her hands and ran off. Passers-by, one of whom was an off-duty police officer, chased and caught the applicant. The purse, which contained money and stamps, was found in his possession. Not surprisingly he made full admissions of the offence in interview.
36. As far as the sexual assault was concerned, that occurred on 25th May 2006, which, it will be noted, was just a fortnight after his first appearance before the court in relation to the charge of theft. A 13 year old girl was on her way home from school. When she got off the bus she saw the applicant coming toward her. He asked her for a pen and paper and then asked her for a mobile telephone. The girl said no. He persisted. She became scared. She thought, not surprisingly, that the applicant was going to rob her. In fact what he did was to put his arm round her shoulders, hold her tightly and then lent forward and kissed her cheek. She was meanwhile trying to escape from him which eventually she did. She ran home and told her brother what had happened. The applicant was stopped later that day. When interviewed he said he had not been planning to rob the girl. He was just going to kiss her, but he accepted that she had made it plain that that was not welcome to her.
37. It was against that background that he was sentenced. The judge expressly considered alternatives to custody, but noted that he had been sentenced to a community order in December 2005 for an offence of attempted robbery and he had not complied with the order.
38. The psychiatric report put forward a number of alternatives, but other than custody the judge did not consider that any of those would be appropriate for these two offences.
39. The applicant had the benefit of advice from counsel who settled two grounds of appeal, firstly, stating that there was no complaint about the sentence of 12 months' imprisonment imposed for the theft, but that the sentence of 12 months' imprisonment for the sexual assault was manifestly excessive on the basis that it did not reflect the low level of the offence, and, secondly, that the starting point for the sentence was too high.
40. The single judge in refusing leave to appeal said as follows:

"1. You have a bad record especially for thefts before you committed these offences against vulnerable people. The victim of the theft was an 84 year old lady who felt 'very upset and shaken' by this incident. The victim of the sexual assault was 13 years old and she was in tears after your assault.

2. There is nothing wrong with the total sentence of two years even though it could have been made up differently by a sentence of 18 months for the theft and six months for the sexual assault."

41. Once again, we entirely agree with the remarks of the single judge. The application for leave to appeal is without merit. However, we do not consider that this is an appropriate case in which to exercise our powers under section 29. The applicant did have the benefit of an advice from counsel which pointed out what may have been an arguable criticism of the sentence, which was that the sentence of 12 months' imprisonment for the sexual assault was manifestly excessive. Counsel had not, however, applied her mind properly to the fact that this court considers the totality of the sentence rather than merely the individual make-up of the sentence as the single judge pointed out. Nonetheless, it would be harsh to categorise this application as one which had no prospect of any success to an extent which would justify the exercise of our power under section 29.
42. We should not leave this case without referring to the fact that in counsel's advice at paragraph 8 counsel said as follows:

"Accordingly I attach grounds of appeal. Mr Brown should be advised that it is open to the Court of Appeal to increase sentence but I think it unlikely in this case."

43. This court has not had the power to increase sentence for a long time, but it has the power which we have exercised today in relation to two of the applications. We hope that both applicants and counsel will heed the fact that this court is prepared to exercise its power and will do so more frequently in the future than it has done so in the past. The mere fact that counsel has advised that there are grounds of appeal will not always be a sufficient answer to the question as to whether or not an application has indeed been brought which was totally without merit. It should not be thought that this court will not exercise its power on other occasions even if there is an advice from counsel supporting grounds of appeal.