M, R. v [2011] EWCA Crim 2998

[2011] EWCA Crim 2998No: 201103443 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 24th November 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE STANLEY BURNTON
MR JUSTICE STADLEN
HIS HONOUR JUDGE MORRIS QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
M
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7422 6138(Official Shorthand Writers to the Court)
Miss S Sodha appeared for Applicant
J U D G M E N T

JUDGE MORRIS:

[1]On 7th May 2011 this applicant pleaded guilty before the magistrates to one charge of burglary and one of theft and was committed to the Crown Court for sentence. On 3rd June 2011, in the Crown Court at Woolwich, he was sentenced by Mr Recorder Turner to three years' detention in a young offender institution for the burglary and two years for the theft to run consecutively, a total of five years' detention in a young offender institution. When passing sentence the Recorder took into consideration one other offence of burglary.[2]An application for leave to appeal against sentence dated 16th June 2011 was received by this court on 24th June with grounds of appeal settled by counsel. On 11th July the applicant contacted court staff, informing them of his intention to abandon his appeal. On 12th July he spoke to his solicitors and discussed with them whether to pursue his appeal. On 13th July he signed a Form A abandoning all proceedings in this court and faxed it to the court on 15th July. He now applies to have this abandonment treated as a nullity pursuant to Part 65.13 of the Criminal Procedure Rules.[3]On 17th August the applicant contacted his solicitors and said he wished to have his abandonment treated as a nullity and explained that he had abandoned his appeal because of a conversation he had had with his uncle in Middlesbrough in which he had been told he could not stay with his uncle until 2013. Therefore, if he were released before 2013 he would have nowhere to stay.[4]In Medway [1976] 62 Cr App R 85, recently affirmed in Bellos [2011] EWCA Crim 1421, the court held that it had:
"... jurisdiction to give an applicant or appellant leave to withdraw notice of abandonment of appeal or application for leave to appeal where the notice of abandonment could be treated as a nullity, i.e. where the abandonment was not the result of a deliberate and informed decision - in other words, where the mind of the applicant or appellant did not go with his act of abandonment. Headings such as mistake, fraud, wrong advice, misapprehension etc should be regarded only as guidelines, the presence of which may justify the exercise of such jurisdiction of the Court and are not exhaustive of the types of case where this jurisdiction can be exercised."
[5]It is now accepted on behalf of the applicant that the decision by him to abandon his appeal was a deliberate one, but it has been submitted by Miss Sodha in her helpful submissions to this court that it was not an informed one by reason of his concerns over his accommodation and lack of information available to him that his decision was a final one.[6]We disagree. The applicant had a full opportunity to discuss with his solicitors on 12th July whether to pursue or abandon his appeal. This is not a case, such as Bellos, where the applicant was misled as to the effect of his abandonment. On 13th July he decided to abandon his appeal, and we are satisfied that his decision to abandon was both deliberate and informed. This application is therefore refused.[7]In cases such as this, where there are applications to treat an abandonment as a nullity, it is normal practice for the applicant to provide a sworn declaration or affidavit as to the circumstances in which he maintains his decision was either not a deliberate one or not an informed one, or both. Unfortunately that step was not taken in this case. It is a matter that should be noted by those pursuing such applications in future that they should be supported by sworn declarations or affidavits on behalf of the applicant.