England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 31 October 2017

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1. LORD JUSTICE HOLROYDE: On 21st March 2017, in the Crown Court at Lincoln, the applicant Jilan Moore was convicted of five offences of the fraudulent evasion of Value Added Tax, contrary to section 72 of the Value Added Tax Act 1994. She was sentenced to a total of 2 years' imprisonment.
2. On 23rd May 2017 the applicant lodged an application for leave to appeal against her convictions. In her grounds of appeal she criticised the manner in which the trial had been conducted by "my former solicitors". She also contended that a prosecution witness had given misleading evidence, and that various documents relied on by the prosecution had not been authenticated.
3. In view of the criticisms she had made of her trial solicitors the applicant was invited to, and did, waive her legal professional privilege. The Criminal Appeal Office then wrote to the solicitors to seek a response to the complaints. Responses have been received both from the solicitors and trial counsel. As a result of the waiver of privilege this court is now aware that the applicant was advised by trial counsel that, for the reasons which he clearly explained in his written advice, there were no arguable grounds of appeal against either conviction or sentence.
4. In the ordinary way the papers would then have been put before a single judge to consider the application for leave to appeal on the papers. But shortly before that stage was reached, on 26th June 2017, the solicitors submitted to the court a notice of abandonment of all proceedings in the Court of Appeal, which they had signed on the applicant's behalf. They had signed in accordance with a note of instructions to the effect that all proceedings in this court were to be abandoned. The applicant accepts that she did sign that note of instructions during a conference with the solicitor who had conduct of her case on 13th June 2017.
5. However, hard on the heels of the solicitor's communication, the court received on 28th June 2017 both a telephone call and an e-mail from an officer of the prison at which the applicant was held, asking the court not to abandon the appeal because the applicant had felt under pressure from her solicitor to sign the note of instructions. On that same day the applicant herself wrote to the court, asserting that the solicitor had told her that he would not continue to act for her in proceedings under the Proceeds of Crime Act 2002 unless she agreed to abandon her appeal. She said in her letter that she felt she had no choice and so had reluctantly agreed to sign instructions to abandon.
6. The court has recently received a further letter from the applicant, dated 9th September 2017, in which she reiterates that she was put under pressure, in that the solicitor said he would not attend the confiscation hearing listed for 29th June 2017 if she did not sign the document to which we have referred.
7. The solicitor's response has been sought and he has given a very different account of the conference on 13th June. He says that he went through, and explained, the contents of counsel's advice against an appeal. He says that the applicant then gave clear instructions that, now that she understood the process, she wished to abandon her appeal. The form which she signed not only gave the instructions to abandon the appeal but also confirmed that she had not been put under any pressure.
8. The principles to be applied in circumstances such as these are set out in R v Medway [1976] 62 Cr App R 85 and more recently in R v Smith [2014] 2 Cr App R 1, in particular at paragraph 58. From those cases, and the authorities to which they refer, the principles which are relevant to this case can be summarised as follows:

(1) A notice of abandonment of an appeal is irrevocable unless this court treats it as a nullity.

(2) A notice of abandonment of an appeal is a nullity if the applicant's mind does not go with the document which he or she signs indicating abandonment.

(3) The court will need to consider whether the abandonment was not the result of a deliberate and informed decision.

9. We have anxiously considered this situation. We are satisfied that the applicant did make a deliberate and informed decision and that her mind did go with her act when she signed the note of instructions to abandon the appeal, albeit that she changed her mind soon afterwards.
10. We take that view for the following reasons. The applicant had received counsel's negative advice with its clear explanation of the reasons why there could be no arguable ground of appeal. She had then commenced an appeal in person, but clearly still wished to be represented. Because her grounds of appeal included complaints about her solicitors, there were obvious difficulties in those solicitors continuing to act for her, either in the appeal or in the confiscation proceedings, if she maintained those complaints. In conference, on 13th June, her solicitor explained to her the contents of counsel's advice against appeal. That advice contains, in our view, cogent reasons why any appeal in this case would be hopeless. To summarise the facts in a nutshell: the applicant, following the death of her husband in 2013, had taken over the financial aspect of a restaurant business. The charges related to the period after she had done so. There was clear evidence that she had two sets of books. In making her Value Added Tax returns she had used figures which falsely understated the profits of the business. She gave evidence at her trial putting forward her explanations and the jury disbelieved her. The position having been clarified by the solicitor, by reference to counsel's advice, the applicant then gave her instructions to abandon the appeal which she had commenced. The grounds of appeal which she had put forward were, as we have indicated, hopeless. They reflect some misunderstandings of the trial process and do not contain any arguable ground of appeal against conviction.
11. By deciding to abandon the appeal the applicant made it possible for her to retain the services of her solicitor for the purposes of the confiscation proceedings. In our judgment, she did not have to do so: contrary to what she has said in her letters to the court, she did have a choice. No doubt, with the constraints of time and the worrying prospect of the confiscation proceedings, her position was an awkward one. But she had, after all, had no difficulty in making complaints about her lawyers in her written grounds of appeal and she could, if she had wished, have maintained those complaints and dispensed with the solicitor's services.
12. We therefore are unable to accept that the notice of abandonment which the applicant caused to be signed on her behalf was a nullity. On the contrary, it was a free and effective abandonment. In the light of the authorities which we have mentioned, that notice of abandonment cannot now be withdrawn. Her subsequent change of heart came too late to assist her.
13. In those circumstances the application to treat the notice of abandonment as a nullity is refused. The consequence, of course, is that the application for leave to appeal against conviction has been abandoned and is at an end.

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