England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2009] EWCA Crim 398

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		Neutral Citation Number: [2009] EWCA Crim 398
		Case No. 2008/02715/D1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

20 February 2009

B e f o r e :

THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(Lord Justice Hughes)
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE HOLROYDE
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	R E G I N A
	- v -
	KEVIN ANDREW SQUIRES

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Non-Counsel Application
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HTML VERSION OF JUDGMENT
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LORD JUSTICE HUGHES: I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:

On 3 April 2008, in the Crown Court at Exeter, the applicant, Kevin Squires, was convicted of possession with intent to supply of a Class A controlled drug (diamorphine) and a Class B controlled drug (amphetamine). On that same date he was sentenced to concurrent terms of seven years and four years' imprisonment. His applications for leave to appeal against conviction and sentence and for a representation order were refused by the single judge. The applicant now renews his applications to the full court.

The applicant was arrested shortly before midnight in a car park in Barnstaple to which he had gone to meet a man called Noon. He was in possession of a package containing smaller packets of diamorphine and amphetamine -- a fact which he first tried to conceal and then tried to deny. He was also in possession of a list of names and figures, a quantity of cash and two mobile phones, from one of which he had sent a text message arranging to meet Noon. The prosecution relied on this and other text messages as evidence of the buying and selling of drugs. They pointed to the applicant's initial lies on arrest and to his failure when interviewed to mention any of the key features of the account which he gave to the jury in his evidence. The prosecution also relied, as evidence of a relevant propensity, on the applicant's previous convictions for possession of controlled drugs with intent to supply.

The applicant has drafted his own grounds of appeal. They were considered by the single judge, who rejected them for reasons which he explained in writing. We have considered them again and we, too, reject them for the same reasons.

The applicant's principal complaint is that the prosecution were late in complying with an order that they serve a schedule setting out the text messages which they wished to place before the jury. However, the content of the relevant text messages had already been exhibited. The purpose of the schedule was simply to present them in a more convenient fashion. Accordingly, however much the short delay of three days in producing that document is to be deprecated, it can have caused no prejudice to the defence.

The second ground of appeal against conviction is based on the assertion that there were two important defence witnesses who were not called by defence counsel. One of these men has since died. The applicant does not indicate what it is he believes the deceased would have been able to say in support of the defence case and gives no explanation for the failure to take a statement from the deceased prior to his death. The other potential witness has provided a short statement which does no more than corroborate some minor details of the applicant's evidence. We are satisfied that even if this man had given evidence and had been believed by the jury, his evidence could have made no difference to the verdicts.

The applicant has advanced other points which raise no arguable ground of appeal. In fairness to him, we have also considered whether the summing-up by the trial judge contained any error of law or might otherwise be said to give rise to a ground of appeal. It does not.

In those circumstances we are satisfied that the grounds of appeal against conviction have no prospect of success and that leave to appeal must be refused. These convictions are not unsafe. The reality is that the applicant was fairly tried on admissible evidence, and that the strength of that evidence was amply sufficient for the jury to reach the verdicts they did. The applicant gave evidence in which he sought to explain away the evidence against him. The jury did not believe him.

As to sentence, the applicant's ground of appeal is that the sentence was excessive having regard to the modest quantity of the drugs concerned. That ground overlooks the fact that, as the judge made plain in his sentencing remarks, the applicant has previous convictions, in particular possession of Class A drugs with intent to supply in December 1997 and June 2001 which, by virtue of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000, made a sentence of at least seven years' imprisonment mandatory unless the court was of opinion that there were particular circumstances which related to any of the offences or to the applicant that would made it unjust in all the circumstances to pass such a sentence. The trial judge could find no such circumstances in the matters of mitigation put before him. Nor is there anything in the material before us which could cause us to take a different view.

It remains finally to consider whether this court should exercise its power under section 29 of the Criminal Appeal Act 1968 to direct that part of the period which the applicant has served since he was convicted should not count towards his sentence (a loss of time order of the kind considered in Monnell and Morris v United Kingdom (1988) 10 EHRR 205).

The applicant was represented at trial by lawyers who were under a duty to advise him about any arguable grounds of appeal. The applicant must either have been advised that there were none, or have chosen not to seek their advice.

When leave was initially refused, the single judge not only told the applicant that there was no merit in his grounds of appeal and explained why, but also gave him a specific warning that a loss of time order could be made. He has chosen to ignore that warning.

The time of the court, and the time of the court staff engaged in the necessary preparatory work, has been taken up unnecessarily, thereby delaying more deserving appeals. This court has often indicated that the power to make a loss of time order will be exercised in appropriate cases so as to ensure that the court is able to deal promptly with those applications for leave which do have merit. In an application heard by this court earlier today in R v Fortean (2008/01796/B2) the Vice-President of the Court of Appeal, Criminal Division, drew attention to the clarity of the warnings given in the relevant court documents which are seen by an applicant, and again made clear that the power to make a loss of time order may be exercised in any case in which the grounds of appeal are without merit and should not have been pursued without due warning.

This is just such a case. We direct that six weeks (that is 42 days) of the time which the applicant has thus far served shall not count towards his sentence.

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