England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
Her Honour Judge Lynch Q.C.
T20157018, T20167011

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/06/2018

Sir Brian Leveson P :

1. On 26 January 2016 in the Crown Court at Chelmsford, Mohammed Ali Rostami ("the applicant") pleaded guilty to conspiracy to supply a drug of Class B (mephedrone) between April 2010 and April 2015. On 16 December 2016, in the same court, before Her Honour Judge Lynch Q.C. and a jury, he was convicted of six offences in relation to a child, T, three of a sexual nature and three of supplying different drugs (including cocaine) to T. On 12 January 2017, the judge imposed a total sentence of 21 years imprisonment.
2. With the benefit of advice from solicitors who did not represent him at trial (Carter Solicitors) and counsel (Mr John King), by Notice dated 5 February 2017, the applicant sought leave to appeal his convictions and a representation order. The filed application was out of time and an extension of 26 days was sought on the basis that it had taken time to obtain authority to transfer and arrange legal visits to take instructions and time thereafter to assemble material for counsel to draft Grounds of Appeal. It was necessary for the applicant to waive privilege (which he did) whereafter the solicitor advocate who represented the applicant provided a response to the complaints made.
3. On 9 June 2017, a Respondent's Notice was served by secure e mail on the Registrar, and also on the solicitors and counsel acting for the applicant. Thereafter, in sufficiently comprehensive detail, the single judge (Openshaw J) refused leave to appeal and, on 29 September 2017, the Registrar of this Court sent notice of the decision by letter to the applicant, to his solicitors and to counsel.
4. The letter to the applicant was despatched to HMP Chelmsford and informed him that he could renew his application by filling in the appropriate parts of the back of the form. It went on:

"If it was your lawyers who produced the grounds for your appeal, we will have sent them a copy of form SJ, and you should contact them for advice…".

On the back of Form SJ, under the heading "Important notice to applicant's legal representative" it was stated that:

"…If a legal representative intends to appear in court on the applicant's behalf at the hearing of a renewed application (on a private or pro bono basis) he or she should inform the registrar in writing within 14 days of the date shown in part 1 of this form. Otherwise, the matter will be listed as a non-counsel matter and, save in exceptional circumstances, will not be re-listed for hearing thereafter."

5. The letter to the solicitors also made the position clear and stated:

"If there is any possibility that counsel or solicitor advocate might consider appearing on the applicant's behalf if the refused application is renewed (whether by the applicant acting independently or following advice to do so), that possibility must be communicated to the Criminal Appeal Office in writing immediately. If it is known whether such appearance will be funded privately or on a pro bono basis – as funding at public expense is not available – that information should also be communicated at this time. Please note that if there is any delay in informing the Criminal Appeal Office of an intention to represent the applicant, the court may direct that the hearing proceed on a date listed even if this is not convenient for counsel/solicitor advocate."

6. Probably by DX, a letter was also sent to counsel including the passage quoted above from the letter to the solicitors. Suffice to say that this correspondence was, at least, received by the applicant because, on 4 October 2017, using Form SJ, he renewed his application. Thus, the applicant was himself aware that he had to contact his solicitors for advice and, assuming that they knew that he had renewed his application, quite apart from communications from the Registrar, if counsel was to be instructed on the renewal, it was open to them to contact the court and ensure that steps were taken to list the renewed application at a convenient time.
7. On 19 October, the Registrar acknowledged receipt of the Form SJ to the Governor of HMP Chelmsford (it appears via e-mail) setting out the content of a letter sent to the applicant by post on the same day which stated, amongst other things, that:

"…You will be aware that since leave to appeal was refused, you are not entitled to Legal Assistance for counsel to represent you in relation to the application(s). Accordingly, unless you have already informed this office that you will be legally represented, the List Office will presume that the matter is to be fixed for consideration without a legal representative to appear on your behalf…However, it is important for you to be aware that it is also possible for your application(s) to be listed for hearing at very short notice. If, therefore, you have already made arrangements for legal advisers to represent you on a private or pro bono (without fee) basis, or if you make such arrangements before the hearing date, you must inform this office immediately, supplying details of their name(s), address(es) and telephone number(s). You should ensure that they are aware of any date fixed for consideration of your application(s) and be aware that if there is any delay in informing us that you will be represented, the Court may direct that the hearing will proceed on the date listed even if this is not convenient for counsel / solicitor advocate…".

8. On the same day, also probably by post, a letter was written by the Registrar to the solicitors, Carters, setting out the content of the letter (above) to the applicant and stating:

"Whilst there is usually no public funding in respect of a renewed application for leave to appeal, The Registrar would like to know whether it is the intention of the solicitor advocate or counsel to represent the applicant at the hearing of the renewed application and if so, whether that will be on a private or pro bono basis. Would you please therefore confirm the position in writing to the Criminal Appeal Office within 14 days by letter or email to the address shown above. If we receive no response, we will list the matter for consideration without legal representation."

9. Counsel (it seems by DX) was also sent a letter including the passage quoted above from the letter to the solicitors.
10. On 27 February 2018, the Registrar sent a letter (it seems by post) to the Applicant at HMP Littlehey enclosing a copy of the summary prepared by the office of the Court of Appeal. The letter makes it clear:

"The renewal of your application for leave to appeal against conviction will be listed for hearing before the full Court in the near future. Because you will not be represented by counsel at the hearing, you are entitled to a copy of the Criminal Appeal Office summary, which has been prepared by this office in respect of your case….".

11. On 15 March 2018, the Registrar also sent a letter (it seems by email) to the Governor at HMP Littlehey in relation to the applicant which stated:

"The above application for leave to appeal against conviction has been listed before the Court of Appeal Criminal Division on Wednesday 21 March 2018 at 11.0am in Court 5 at the Royal Courts of Justice. So far as the Registrar is aware, there will be no representation by Counsel. The applicant is not entitled to attend the hearing, other than by leave of the Court of Appeal Criminal Division, and should not be brought to court……NB. For information purposes a similar notification is being sent to Mohammed Ali Rostami".

12. Notwithstanding the note, there is no copy in the papers before the court of any letter sent by the Registrar to the Applicant on that day although it is noted that a letter was sent to the prison, for the applicant's attention, and that the letter stated that:

"Your application for leave to appeal against conviction has been listed for hearing before the Court of Appeal Criminal Division on Wednesday 21 March 2018 at 11.0 am in Court 5 at the Royal Courts of Justice. So far as the Registrar is aware, you will not be represented. Please inform the List Office immediately if this understanding is incorrect".

The absence of this letter is not material as the applicant concedes that he received a letter dated 15 March from the Registrar but not until 21 March and at HMP Chelmsford rather than HMP Littlehey.

13. In the event, the full court comprising this constitution heard the renewed application based on the arguments put before the court in the Notice and Grounds of Appeal. It was dismissed for the reasons given by the single judge.
14. On 22 March 2018, the solicitors emailed the Registrar stating that the applicant was serving his sentence at HMP Chelmsford. The letter went on that although on 21 March, the applicant had there received a letter from the Registrar dated 15 March informing him that his "appeal" was due to be heard on 21 March, neither Carters nor counsel, Mr King, (who had both represented the Applicant throughout) had received any such notification. They asked that the case be re-listed.
15. On 26 March, the Registrar provided a basic chronology to Carters via email; this included reference to the letters sent to Carters and Mr King dated 29 September 2017 and 19 October 2017. Three days later, the solicitors responded indicating that neither they nor Mr King had received the letters sent on 19 October 2017. They did not deal with the letters sent on 29 September.
16. The Registrar responded by e-mail to the solicitors pointing out the need for a formal and written application under Part 36.15 of the CrimPR. Attention was drawn to the leading case of Gohill & Preko [2018] EWCA Crim 140. This led to an application pursuant to Part 36.15 seeking to re-open the determination of the court (and for time to prepare that application) on the basis that:

i) Neither Carters nor Mr King ever received any notice of the hearing.

ii) The Applicant only learned of the hearing on the day that it took place.

iii) In the absence of notice, the applicant was wrongly prejudiced in making his case.

iv) The circumstances should be considered to be exceptional as there was a procedural irregularity in not notifying the Applicant of the hearing date.

v) There is no alternative effective remedy.

vi) There was no delay in making the application.

17. There is no question of the determination of this appeal (or any aspect of the case) constituting a nullity case and it therefore requires consideration of the jurisdiction identified in Yasain [2016] QB 146 to re-open the appeal, that jurisdiction having been refined in Gohill (above) at [110], [111] & [129]. It relates to procedural errors. In accordance with the practice identified in Hockey [2018] 1 WLR 343 (at [16 (iii)]), it is being considered on the papers by the court as originally constituted.
18. The "necessary conditions" for re-opening an appeal (almost invariably cumulative) are that the Court will not re-open a final determination of any appeal (which includes an application for leave to appeal) unless:

i) it is necessary to do so in order to avoid real injustice;

ii) the circumstances are exceptional and make it appropriate to re-open the appeal (notwithstanding the rights and interests of other participants and the importance of finality); and

iii) there is no alternative effective remedy (among any potentially available).

19. Even if these conditions are satisfied, however, the Court retains a residual discretion to decline to re-open and, generally, the Yasain jurisdiction is directed towards exceptional circumstances involving the correction of clear and undisputed procedural errors where "it is simpler and more expedient for the court itself to re-open the appeal and correct a manifest injustice without the need for further litigation". If it is the case that even a successful application to re-open will not impact on the safety of the conviction, then it is overwhelmingly unlikely that the application will satisfy the necessary conditions.
20. In Daniel [1977] QB 364, solicitors had informed the Registrar that they were representing the then applicant and that they would be instructing counsel. This information, however, was not noted in the Registrar's office. As a result, that administrative failure led the Court to fail, in breach of established practice, to notify counsel of the hearing date. It was concluded, therefore, that this had led to a real risk of injustice. As recognised in Gohill at [113] and [114], Daniel was cited with approval in Yasain [2016] QB 146 at [26]-[27] and in Hockey.
21. This case is very different. Following refusal of leave by the single judge, the applicant was no longer entitled to representation at public expense. In those circumstances it was entirely reasonable for the Registrar and the Criminal Appeal Office to proceed upon the basis that, unless notified to the contrary by the applicant and/or his legal adviser(s), the applicant would not be represented on the renewed application. In addition to that, a total of seven communications were sent (apparently by different methods) to the applicant and his advisers in the period from 29 September 2017 to 27 February 2018 the receipt of any one of which would, from its content, have alerted the recipient to the need for the Registrar be informed that it was intended that the applicant should be represented.
22. It must be that the Applicant received the letter sent to him on 29 September 2017, otherwise he would not have been able to renew his application by returning Form SJ. The Form SJ made clear, albeit under a heading relating to his legal representative, that if the legal representative intended to appear in court that representative had to inform the Registrar within 14 days. Otherwise the case would be fixed for hearing as a non-counsel matter. Neither Carters nor Mr King address whether or not they received the letter sent to each of them on that date.
23. Equally, it stretches credulity that not one of the letters variously sent to the applicant and his advisers on 19 October 2017 and to the applicant on 27 February 2018 was ever received albeit that sending the letters of 27 February and later on 15 March 2019 to HMP Littlehey may have been in error (whether in the Prison Service or the Criminal Appeal Office) as the Applicant may (still) have been at HMP Chelmsford. The applicant nevertheless did receive the 15 March 2018 letter albeit some six days after it was sent.
24. The strong indications, therefore, are that any procedural errors are the fault of the applicant and his advisers, rather than the Registrar and the office of the Court of Appeal. Even if this conclusion is wrong, it is also noteworthy that neither the applicant nor his advisers sought to enquire as to the progress of the renewed application for leave to appeal and that, even now, the applicant's advisers are not ready to pursue any appeal but require further time in order to do so. Finally, in any event, the application does not address why, in this particular case, it is necessary to hear from counsel (whose Advice and Grounds the court considered) in order to avoid real injustice.
25. Pulling the threads together, in the light of the manifest deficiencies in this application and the evidence referred to above, the application to re-open what is an application for leave to appeal is refused.