England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		19 March 2014

Wednesday 19 March 2014

THE LORD CHIEF JUSTICE:

1. The court sits today to consider a reference by the Registrar under section 20 of the Criminal Appeal Act 1968. It provides:

"If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer the appeal or application for leave to the Court for summary determination; and where the case is so referred the Court may, if they consider that the appeal or application for leave is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss the appeal or application for leave summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon."

The background

2. The matters which have given rise to this reference by the Registrar can be briefly explained. As long ago as 15 August 2011 the applicant, a 45 year old man, was convicted at the Crown Court at Snaresbrook before His Honour Judge Tudor Owen and a jury of two counts of Sexual Assault of a Child under the age of 13, contrary to section 7(1) of the Sexual Offences Act 2003. He was sentenced to 18 months' imprisonment on both counts, to run concurrently.
3. The 9 year old complainant was the applicant's stepdaughter. The applicant had married the child's mother in Nigeria in 2007 and came to Britain in 2008. Between July 2008 and January 2009 the applicant lived with the family which comprised the mother, three children and the grandmother. During the day the applicant was left alone with the three children and the grandmother. The 9 year old girl gave evidence that on occasions while playing in their mother's room the younger children were sent out of the room and the applicant would lift up her top and suck her breasts. She said this happened two or three times between July 2008 and January 2009. She did not tell her mother what had happened at the time. The applicant was arrested. When he was interviewed he declined to comment. We shall return to that interview in a moment.
4. The applicant's evidence at trial was that his wife had acted in concert with the grandmother and the child to fabricate the allegations.
5. It is apparent from the papers with which we have been provided that Mr Mitchell Cohen, counsel who appeared for the applicant at the trial, advised against an appeal. It is evident from our consideration of the transcript of the trial that counsel conducted the case with great skill. It is right to point out that the judge described his closing speech as "excellent".
6. In October 2011 new solicitors, Kalber Struckley, were instructed by the applicant. They applied to the applicant's trial solicitors for the papers. In November 2011 copies of the papers were sent by e-mail to them. Nothing happened.
7. On 29 August 2012 the applicant instructed Coward & Co, the solicitors who now represent him. On 19 October 2012 Coward & Co asked the trial solicitors for the papers. On 12 January 2013 the papers were produced in circumstances where the Legal Services Ombudsman was critical of the delay that had occurred. We say that in fairness to Coward & Co.

The first application for leave to appeal

8. Having received the papers, on 4 July 2013 what we will describe as the first application for leave to appeal was made to this court. It was put forward on grounds that an application had been made and granted to admit hearsay evidence of a named witness. The Grounds of Appeal set out the background and that particular single ground of appeal. There followed a number of pages of legal submissions drawing attention to such well-known cases as R v Al-Khawaja, R v Horncastle and other cases on the admissibility of hearsay evidence.
9. As a result of receiving that application, the court put in hand its usual enquiries. It ordered a transcript. It enquired into the detail as to what had happened. It quickly transpired that there had, in fact, been no hearsay application in respect of the named witness. The summing-up was sent to the solicitors to consider whether there were any grounds to be put forward, and the solicitors were informed that no such hearsay application had been made or granted and no statements admitted.
10. Eventually, in September 2013 Coward & Co conceded that the evidence which was said to be hearsay was not before the jury and that the grounds were misconceived. That was the end of the first application.

The second application for leave to appeal

11. On 8 January 2014 a second application made on behalf of the applicant was received by the court. It was evident from a mere perusal of the second application that the paragraphs of the first application which summarised the facts had been adopted wholesale. Indeed, it is accepted today before us that the author of the second Grounds of Appeal had been the author of the first Grounds of Appeal and was fully aware of them. The grounds put forward on this occasion were these:

"The [applicant] had provided a no comment interview which was referred to in the learned judge's summing-up. The [applicant] was not advised by his legal team as to whether or not he should waive privilege so that the jury could consider the reason why his solicitors had advised him to provide a no comment interview. Given the nature and seriousness of the allegations the [applicant] faced, it was imperative that the [applicant's] solicitors fully advise the [applicant] as to the pros and cons of waiving privilege and allowing the jury to see why the advice was given by the [applicant's] solicitors and more importantly so that the jury could see that the [applicant] had denied the offence when he gave instructions to his solicitors at the police station. The failure of the [applicant's] solicitors to correctly advise him in relation to waiving privilege has interfered with the [applicant's] right to a fair trial as he had been the victim of professional negligence."

A number of authorities are set out to support a ground of appeal based on the incompetence of counsel and the other legal representation. The Notice of Appeal then referred to the application for an extension of time in which to lodge an appeal. It stated:

"The [applicant] asks that he be allowed to lodge his appeal out of time. He instructed new solicitors to undertake his appeal as he had previously received a negative advice. The [applicant's] new solicitors had considerable difficulty in obtaining the case papers from his former solicitors. Only the intervention of the Solicitors Regulation Authority had allowed the papers to be obtained by his new representatives."

12. There is nothing in the second application for leave to appeal that refers in any way to the first application made to this court. We have been told by Mr Coward that he did not omit that intentionally. All we can do is to note that there was an omission. It was a very serious omission because the court did not have the correct information before it about the earlier application. As we have said in the course of argument, we do not enquire into why that happened. We are not in a position to do so.
13. On receipt of the second application for leave to appeal, in accordance with its usual procedures the court obtained a waiver of privilege and wrote to trial counsel and solicitors to obtain their explanation of what had been said.
14. It is clear from the response of the trial solicitors that there had been numerous complaints by the applicant, that many of them had been rejected out of hand, but, more importantly, that they had notes on the advice given at the police station in relation to the no comment interview. The notes showed that the solicitors' representative advised the applicant to make no comment during the interview after the applicant had said that he denied the allegations and that he could give no explanation as to why the allegations had been made. He was advised about adverse inference.

Our determination under s.20

15. On the basis of that letter and of the other enquiries made by this court it is clear that this case is one that has absolutely no prospect of success. There are two reasons in our judgment why the matter falls within section 20. First, it is frivolous and vexatious because in making the application for the extension of time the court did not have the proper explanation put before it. We will not enquire into the reasons for that, but it was a serious non-disclosure. Secondly, following enquiries it is clear beyond argument that the grounds put forward for bringing this application are bound to fail. It must follow that it is frivolous and vexatious.

Applications made on the basis of allegations of incompetence against the trial advocate and solicitor

16. Of late it has become the habit for a number of cases to be brought on appeal to this court on the basis of incompetent representation by trial solicitors or trial counsel. As in this case, many such cases proceed without any enquiry being made of solicitors and counsel who acted at trial. That means that the lawyer who brings such an application acts on what is, ex hypothesi, the allegations of a convicted criminal - and in this case a convicted paedophile. For a lawyer to put forward such allegations based purely on such a statement, and without enquiry, is in our view impermissible. Before applications are made to this court alleging incompetent representation which is based upon an account given by a convicted criminal, we expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether there is any objective and independent basis for the grounds of appeal.
17. As long ago as 1997 in R v Doherty and McGregor [1997] 2 Cr App R 218, this court drew attention to the fact that it was proper for fresh representatives as a matter of courtesy to speak to former counsel before grounds of appeal are lodged. Today circumstances have changed. The frequency of this kind of appeal makes it clear to us that counsel and solicitors would be failing in their duty to this court if they did not make enquiries which would provide an objective and independent basis, other than complaints made by the convicted criminal, as to what had happened.
18. The failure in this case has caused significant costs to be incurred by this court. For example, the transcript of the summing-up alone cost £388.80. In addition, there are the costs of running the office, the lawyers' time and the delay to other cases. It is, therefore, essential that counsel and solicitors in this kind of application, which has become more frequent, take the steps we have outlined.

The use of the court's powers under s.20

19. It is deeply regrettable that this court has had to employ its powers under section 20. We have been referred to R v Taylor [1997] Crim LR 649 and to an observation of Lawton LJ in the Court of Appeal in the case of DPP V Majewski [1977] AC 443 (which is well known for other reasons) at 451 A-D. The instances of the court exercising this power have been few. It did so recently in R v Davis and Thabangu [2013] EWCA Crim 2424.
20. The court will henceforth consider exercising this power more frequently if cases of the type referred to us today occur again. The court expects not only the highest standards of disclosure but also strict compliance with the duties of advocates and solicitors. It is the fundamental duty of advocates and solicitors to make applications to this court after the exercise of due diligence. In cases where the incompetence of trial advocates or solicitors is raised, the exercise of due diligence requires, having made enquiries of trial lawyers said to have acted improperly, taking other steps to obtain objective and independent evidence before submitting grounds of appeal to this court based on allegations of incompetence.

Reference to the Solicitors Regulation Authority

21. In the instant case the fact that the second Grounds of Appeal were advanced without any mention of the first is, in our view, a matter that should be enquired into by the Solicitors Regulation Authority. They can conduct the necessary enquiries. We express no view as to how this came about, but we think that it is important for the good and proper administration of justice that the Solicitors Regulation Authority do so. We shall ask the Registrar to refer the matter to that Authority.