Fortean, R v [2009] EWCA Crim 437

Case No 2008/01796/B2[2009] EWCA Crim 437
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 20 February 2009
The Strand
London
WC2A 2LL
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
Between
R E G I N ACrown- v -
Between
JERRY FORTEAN
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N TFriday 20 February 2009
[1]The applicant, Jerry Fortean, applied for leave to appeal against his conviction for causing grievous bodily harm with intent to his ex-partner. In accordance with the usual practice of this court, that application was considered in depth by the single judge. He concluded that there was no arguable ground of appeal and gave a careful, reasoned decision to that effect.[2]The applicant has nevertheless renewed his application. As a result it has now been considered by three more judges of this court. The application is wholly without any vestige of merit. It is refused.[3]It is not necessary to add significantly to the reasons given by the single judge. The applicant complains about a number of suggested enquiries which he says that the police could have made but did not. Even if any such complaint were made out, none of them is of more than tangential relevance to the issue in the case. That issue was a narrow one. The applicant admitted that he visited his ex-partner to collect their daughter for a visit. He admitted that there was a history of conflict between them. He admitted that he confronted her in the doorway. He admitted that there was a tussle between them. He admitted that she was found semiconscious with her jaw broken in two places within the time that it took a friend of hers to run downstairs upon hearing her scream. He admitted that he was still at that point but a few yards from the door. He admitted that he was carrying a letter written either to or about the complainant in which he revealed a considerable grievance held by him against her and spoke of taking "brutal" action. There was incontestable evidence that there was blood on his shoes, that the blood gave a DNA analysis consistent with the victim, and that if it was not hers it was a chance match of about one million to one. There was no suggestion of either self-defence or accident.[4]The applicant's contention was that the tussle had been trivial and that the explanation for the victim's injuries must be that some stranger had come upon her in the brief available interval and had for some unknown reason attacked and injured her. Indeed, his argument was that the assailant had come and gone without the applicant seeing him.[5]He complains that some of the prosecution evidence was disclosed late. There is, however, no sign that any lateness caused him any disadvantage. He has suggested that he wishes to call additional evidence. One such witness is his elder daughter. She was available to give evidence at trial. No reason is offered why she was not called. Nor is there any suggestion that she was present when the injuries were caused. The other witness is not named, but may be a Mr Glover. The applicant gives no indication of what that witness could say; but it is not suggested that he was present. The time to call evidence is at the trial. But in any event neither witness could bear on the issue in the case.[6]The applicant has complained that the Crown proved against him a previous conviction for forcing entry into a place where the same ex-partner was, and that subsequently his appeal against that conviction has been allowed. That might have been significant if(a) the jury had not clearly been told by the judge on two occasions that the conviction was under appeal, so that it knew very well that it remained a disputed matter; and(b) if the applicant had not another conviction for an assault upon the same complainant which he could not dispute, in the same way as he could not dispute that he had been made the object of a civil injunction to restrain him from harassing the complainant.[7]He wishes to suggest that some photographs taken of the complainant do not show the injuries alleged. However, there was no dispute about the injuries. They were proved by independent and incontestable medical evidence. The issue was not what injuries were caused but who caused them. The jury heard the evidence of the complainant and it heard the evidence of the applicant. It had the ample support which we have mentioned for the former. There is no basis upon which to impugn the jury's decision that the applicant was proved to be responsible.[8]Like the single judge, we have arrived at that conclusion without considering the fact that, after his conviction by the jury, the applicant frankly admitted his guilt, contrary to everything which he had said at trial. He did so first to the probation officer, and, secondly, in a handwritten letter which he sent to the judge. Those admissions do, however, reinforce the fact that this application is simply speculative.[9]Insofar as the applicant contends that his sentence of four-and-a-half years' imprisonment (which included the activation of a suspended sentence imposed for the previous assault on the same woman) was excessive, that contention is equally without merit. This was a cowardly and vicious attack with a background of unpleasant behaviour towards the same victim, who was left in a badly injured state.[10]This court is coping, with considerable effort, with over 6,000 applications each year for leave to appeal. It is anxious to deal promptly with those which raise properly arguable grounds of appeal, whether in the end they are successful or not. It is an important feature of this jurisdiction, unlike some others, that the trial process is concluded with sentence. An appeal is not built into the trial process but must be justified on properly arguable grounds. This also means that the sentence is operative pending appeal. That reinforces the need to attend promptly to those who have appeals of arguable substance. The court's ability to do that is significantly hampered by meritless applications such as the present.[11]It is for this reason that the court has express statutory power under section 29 of the Criminal Appeal Act 1968 to order that part of the time spent in custody pending appeal is not to count towards the sentence: see Monnell and Morris v United Kingdom (1988) 10 EHRR 205.[12]The applicant, like virtually every other defendant in England and Wales, was represented by independent counsel and solicitors at his trial. In this case, as in most others, that was paid for by the State's Legal Services Commission. The duty of his representatives towards him extended to providing him with skilled advice upon whether or not there existed arguable grounds of appeal, and to draft them if they existed. He must either have received advice that there were none, or have chosen not to seek it.[13]The form on which an application for leave to appeal is initially made contains a very clear printed warning in bold letters above the place for signature that if the single judge or the court is of the opinion that the application for leave is plainly without merit, an order may be made that time spent in custody as an appellant will not count towards sentence. The single judge did not make such an order, but he expressly indicated that the applicant was at risk if he pursued the application.[14]A further warning to the same effect was contained in the form by which the applicant elected to renew his application. It terms could not be clearer. They read:
"I understand that if an application is renewed after being refused by a judge, and the court comes to the conclusion that there is no justification for the renewal, the court may direct that some or all of the time spent in custody as an applicant shall not count towards sentence (a loss of time order)."
[15]This court will exercise this power in order to ensure that applications by those who have some proper basis for making them can be dealt with fully and promptly. It has said so on countless occasions in the past, and we reiterate it today: see, for example, R v Howitt (1975) 61 Cr App R 327, the Lord Chief Justice's Practice Direction of 2002 [2002] 1 WLR, and R v Hart [2007] 1 Cr App R 31.[16]The present could not be a clearer case. We order that six weeks (that is 42 days) of the time spent in custody by the applicant is not to count towards his sentence.[17]We make it clear that this power may be emphasised in any meritless application which should never have been pursued after due warning. That counsel or solicitors have associated themselves with such a renewal will be relevant, but it will not necessarily avoid such an order if there was no justification for continuing the case.

Cited in 1 later judgment