Gray & Ors, R. v [2014] EWCA Crim 2372

[2014] EWCA Crim 2372

No: 201400034 C5; 201303367 B4; 201302281 B2; 201304680 B4; 201400935 B4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 7th October 2014

Strand

London, WC2A 2LL

B e f o r e:

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

LADY JUSTICE HALLETT DBE

MR JUSTICE SWEENEY

MR JUSTICE WARBY

R E G I N A

DEAN ANDREW GRAY

JOHN ROBERT RIDLEY

MARK JUNIOR CRAWFORD

NIGEL JAMES HARRIS

ASHLEY JOSEPH UDU

Computer Aided Transcript of the Stenograph Notes of

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Mr T Pedro appeared on behalf of the Applicant Gray only

J U D G M E N T

Between

Gray & OrsDefendant

RCrown

[1]THE VICE PRESIDENT: These applications raise yet again the question of when it is appropriate to make a loss of time order. In R v Jerry Fortean

[2009] EWCA Crim 437

, the then Vice President of the Court of Appeal Criminal Division provided useful guidance on the subject. At paragraphs 10 to 17 he observed:

"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."

[2]Those observations are as relevant today as there were in February 2009. Unmeritorious renewal applications take up a wholly disproportionate amount of staff and judicial resources in preparation and hearing time. They also waste significant sums of public money, for example in obtaining transcripts, especially in applications for leave to appeal against conviction. The figures for September 2013 to August 2014 show that the total number of applications to the Court of Appeal Criminal Division is now running at nearly 6,500 per year; of those, 1,424 were applications for leave to appeal against conviction. Leave was granted or the application referred to the Full Court in just 245 cases. In the same period 416 applications were renewed and 454 applications refused. The apparent discrepancy in the mathematics is because the figures do not represent the same cases. Nevertheless, a clear picture of a pattern of unjustified renewals of applications for leave to appeal against conviction emerges. The result is that waiting times for conviction cases remain at approximately 12 months. The more time the Court of Appeal Office and the judges spend on unmeritorious cases, the longer the waiting times are likely to be.

[3]The only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.

[4]Section 29 of the Criminal Appeal Act, where relevant, provides:

"(1)The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject. (2) Where the Court of Appeal give a contrary direction under subsection (1) above, they shall state their reasons for doing so; and they shall not give any such direction where - (a) leave to appeal has been granted; or (b) a certificate has been given by the judge of the court of trial under - (i) section 1 or 11(1A) of this Act; or (ii)section 81(1B) of the Supreme Court Act 1981; or (c) the case has been referred to them under section 9 of the Criminal Appeal Act 1995."

Thus, if leave has been granted, the trial judge has given a certificate or the Criminal Cases Review Commission has referred the appeal, then a loss of time order cannot be made. If the court does have the power and decides to exercise it, it must give its reasons. They need not be lengthy provided they make it clear to the applicant why the order is being made.

[5]The single judge has a similar power to make a loss of time order under section 31(2)(h) of the Criminal Appeal Act. It provides, where relevant:

"(1) There may be exercised by a single judge in the same manner as by the Court of Appeal and subject to the same provisions - (a) the powers of the Court of Appeal under this Part of this Act specified in subsection (2) below; (b) the power to give directions under section 4(4) of the Sexual Offences (Amendment) Act 1976; and (c) the powers to make orders for the payment of costs under sections 16 to 18 of the Prosecution of Offences Act 1985 in proceedings under this Part of this Act. (2) The powers mentioned in subsection (1)(a) above] are the following:- (a) to give leave to appeal; (b) to extend the time within which notice of appeal or of application for leave to appeal may be given; ... (h) to give directions under section 29(1) of this Act. ... (3) If the single judge refuses an application on the part of an appellant to exercise in his favour any of the powers above specified, the appellant shall be entitled to have the application determined by the Court of Appeal."

[6]The power to award costs derives from section 18 of the Prosecution of Offences Act 1985. It provides:

"(2) Where the Court of Appeal dismisses - (a) an appeal or application for leave to appeal under Part I of the Criminal Appeal Act 1968; or (b) an application by the accused for leave to appeal to the House of Lords under Part II of that Act; it may make such order as to the costs to be paid by the accused, to such person as may be named in the order, as it considers just and reasonable, or (c) an appeal or application for leave to appeal under section 9(11) of the Criminal Justice Act 1987; or (d) an appeal or application for leave to appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996. (2A) Where the Court of Appeal reverses or varies a ruling on an appeal under Part 9 of the Criminal Justice Act 2003, it may make such order as to the costs to be paid by the accused, to such person as may be named in the order, as it considers just and reasonable. (3)The amount to be paid by the accused in pursuance of an order under this section shall be specified in the order. ... (6) Costs ordered to be paid under subsection (2) or (2A) above may include the reasonable cost of any transcript of a record of proceedings made in accordance with rules of court made for the purposes of section 32 of the Act of 1968."

[7]The power to award costs is used infrequently and the single judge's power to make an order for loss of time has not been exercised since October 2007. Single judges today faced with what they consider to be a totally unmeritorious application generally prefer to initial a box on the form to indicate that if the application is renewed, the Full Court will consider the making of a loss of time order. However, the fact that the single judge has not initialled the box does not deprive the Full Court of the power to make a loss of time order. The court gave an express warning of this in R v Hart and others

[2007] 1 Cr App R 31

;

[2007] 2 Cr App R 34

. It also advised that applicants should not consider themselves protected by the advice of counsel. The Vice President at that time suggested that both advocates and applicants should "heed the fact that this court is prepared to exercise its power ... The mere fact that counsel has advised there are grounds of appeal will not always be a sufficient answer to the question as to whether or not an application has indeed been brought which was totally without merit".

[8]If any doubt remained, the Criminal Practice Direction Amendment No 2 issued by the Lord Chief Justice in July 2014 repeats previous warnings about loss of time orders and the fact that renewing an application on the advice of counsel will not necessarily prevent a loss of time order at 68E.1 and 2.

[9]The figures suggest that some applicants who might otherwise pursue hopeless applications heed those warnings. There is a significant reduction in the number of renewals, particularly in sentence applications, where the single judge has initialled the box. Nevertheless, a very large number seem to consider they have nothing to lose in renewing their application, often sending yet more voluminous documentation for the attention of the Full Court.

[10]In our view, therefore, in every case where the court is presented with an unmeritorious application, consideration should be given to exercising these powers. The single judge should consider whether to initial the box, and if the application is renewed, the Full Court (be it a two or three judge court) should consider whether or not to make a loss of time order or costs order. If it decides to exercise the power, a statement to this effect would suffice:

"Despite being warned of the court's power to make a loss of time order, the applicant chose to pursue a totally unmeritorious application which has wasted the time of the court. Such applications hamper the court's ability to process meritorious applications in a timely fashion."

[11]These five applications for leave to appeal against conviction have been listed and heard together because they have one thing in common: they are all renewals. Gray

[12]The applicant seeks an extension of time of nine days in which to renew his application for leave to appeal against conviction for conspiracy to burgle and burglary returned by the jury on 13th December 2013 at the Crown Court at Kingston.

[13]The applicant was alleged to have been involved with a man called Callow, Whewell and others in a conspiracy to burgle domestic and non-domestic properties in Surrey, Sussex and the Thames Valley between June 2012 and February 2013.

[14]The prosecution case had a number of strands: surveillance, cell site evidence, hire of vehicle and forensic evidence. The applicant and a co-accused were seen reconnoitering various homes, some of which were subsequently burgled. They were also overheard discussing how they would be in difficulty if a helicopter was raised and they were stuck in woodland. They were seen to enter a pawnbroker's shop and exchange jewellery for cash. Cell site evidence showed the applicant's mobile phone in the general vicinity of many of the burglaries at the relevant times. He could be associated with vehicles used in the burglaries: for example, a Mercedes van used in one burglary in July 2012. Two other vehicles hired by him were also linked to counts on the indictment.

[15]In his first interview in July 2012 the applicant denied any involvement in the burglary, claiming he had hired the Mercedes van but on the legitimate behalf of his co-accused Callow. A footprint recovered from one of the burglaries was forensically compared to his trainers and the comparison provided moderate support for the proposition that he had made it.

[16]In further interviews he explained that Callow frequently borrowed his mobile phone but answered no comment. He gave a prepared statement denying the allegations and claiming he had been at his parents' address. He later changed that account, saying that he had in fact been elsewhere and not with his parents.

[17]The application before us is based entirely upon a defence application to the trial judge, Mr Recorder Carter-Manning QC, for additional disclosure pursuant to section 8 of the Criminal Procedure and Investigations Act 1996. This related to the surveillance operation. In response, the prosecution made a public interest immunity application to the trial judge and the result was that no further disclosure was ordered or made.

[18]It is now argued that Mr Recorder Carter-Manning erred in acceding to the Crown's application. Mr Pedro, on behalf of the applicant, contends that the very fact that a PII application was deemed necessary by the Crown indicates that the material sought was of potential benefit to the defence. He rejects the assertion that disclosure of the limited information he sought in some suitably redacted form could in any way harm the public interest. He assured us the defence required simply dates, times and locations of when Gray had been seen by the surveillance operation. These details, coupled, he argued, with an analysis of the cell site material, would have supported the defence that the applicant lent his phone to Callow or left it in a van for others to use. He amplified those arguments in oral submissions. Somewhat boldly -- not having, for obvious reasons, been at the ex parte hearing -- Mr Pedro accuses the Recorder of failing to carry out a full and comprehensive review of all the surveillance material. He also criticises the Recorder for failing to give an actual ruling in which he indicated that no material was disclosable. According to Mr Pedro, he is obliged to do so in open court.

[19]Refusing leave to appeal conviction, the single

judge gave the following reasons:

"You seek leave to appeal your conviction on the ground that the Judge was wrong to accede to a PII application in relation to records of police surveillance of your whereabouts. You say that such records, matched with cell site evidence in relation to your phone, might have enabled you to demonstrate that you were not always in possession of your phone, supporting your case you regularly lent it to another involved in the burglaries (Callow). You say that such records could have been redacted to disclose location at the relevant time. However, prosecution trial counsel confirms that all surveillance logs relating to you were disclosed and that two logs not disclosed did not relate to you. Further, the evidence of your involvement in the conspiracy was overwhelming: (a) you rented vehicles used in the burglaries; (b) you admitted being in possession of your phone when it was in the vicinity of two burglaries; (c) both your phone and Callow's own phone were in the vicinity of 6 other burglaries; and (d) you did not challenge surveillance evidence showing you looking at properties with other conspirators (which properties were subsequently burgled) and visiting pawn shops where property stolen in the burglaries was taken. Yet further, by the time of the non-domestic burglary Callow was in custody. It is not arguable that either of these convictions is unsafe."

[20]We agree. Mr Pedro's assertion that the fact that a PII hearing took place indicates material exists which might assist the defence or undermine the prosecution portrays a misunderstanding of how the PII system works. It does not follow from the fact of a hearing that the defence have been deprived of such material. The material may not even relate to the individual, let alone assist his case. If it does, it is the judge's task to analyse whether the material must be disclosed to ensure a fair trial, whatever the Crown's reservations. That is precisely the function, the transcript of the PII hearing reveals, the judge here formed. He is not obliged to give a lengthy ruling which would serve no purpose, particularly where, as here, the discussion is recorded and his reasons are clear. There was simply nothing in the material which the judge considered assisted the defence or undermined the prosecution. He stated in terms, as was his duty, that he would keep the position under review. Further, both the single judge and the members of this court have had the advantage of considering the surveillance material for ourselves and of receiving assurances from prosecuting counsel that the links Mr Pedro thinks he could have made between sightings of the applicant and use of his phone do not exist. We must proceed, and Mr Pedro should have proceeded, on the basis that those assurances are correct.

[21]In our judgment, therefore, this application was doomed to fail and should never have been advanced on the material available to counsel, let alone renewed.

[22]The single judge expressly warned the applicant that the Full Court would consider making a loss of time order. The applicant and his legal representatives had not only the single judge's observations, they had a response from the respondent which also assured the applicant that there was no material to be disclosed. Thus, despite these assurances, and despite being warned of the court's power to make a loss of time order, the applicant chose to pursue a totally unmeritorious application which has wasted the time of the court. Such applications hamper the court's ability to process meritorious applications in a timely fashion. The fact that counsel advised an application and a renewal will not, on the facts here, prevent us from making an order. Accordingly, we make an order that two months of the time that he has spent as an applicant should not count towards his sentence. Crawford

[23]On 13th November 2012, in the Crown Court at Luton before His Honour Judge Bartle QC, the applicant was convicted of three counts of robbery, one count of having an imitation firearm with intent and two counts of having an article with a blade or a point. He was sentenced to eight years. He renews his application for leave to appeal conviction.

[24]Counts 1 and 2: In the afternoon of 2nd April 2012, a Mr Planson was walking along Parkside Drive, Houghton Regis, close to the Dog & Duck public house. He was robbed of his mobile phone at gun-point. The robber was aged 18 to 22, about six foot tall and of medium build. He was wearing a dark-coloured hooded top with the hood up, sunglasses and a black-coloured bandana with white markings over the bottom half of his face. He had a small black bag slung over his shoulder. The gun was black with a silver barrel.

[25]On 22nd April 2012 a Mr Kavanagh found a black Adidas bag in a bush along a footpath in Dunstable. It contained a hand gun wrapped in a grey bandana. He took the bag and contents to the police.

[26]On 1st May 2012 Mr Planson attended the police station and was shown photographs of the hand gun, sunglasses, grey bandana and Adidas bag. He confirmed the hand gun was the same style as the one pointed at him, the sunglasses were the same style as the one the robber had been wearing, the bandana was not the same and he could not comment on the Adidas bag. The bandana was forensically examined. A DNA profile matching the applicant's was found. The chances of it not originating from him was one in 1 billion.

[27]Counts 3 and 4: On the afternoon of 28th April 2012 Charlie Mangan was walking along a footpath near Windsor Drive when he too was robbed of his mobile phone, but this time at knife-point. The robber was aged 18 to 21, five foot nine tall and of medium build. He was wearing a grey hooded top with the hood up and a diamond-shaped quilted jacket. He had a shoulder bag. The knife was a flick knife with a red wooden handle with metal. The blade was about seven to eight inches long.

[28]Counts 5 and 6: Two days later a Mr Mead was walking along an alley near the Dog & Duck public house when he too was robbed of his iPod at knife-point. The robber had dark skin, was in his early twenties, five foot eight to six foot tall and of average build. He was wearing a hood, a shiny black polyester jacket and sunglasses. He had a bag slung over his shoulder. The knife blade was about six inches long with a curved end and was matt grey in colour.

[29]Mr Mead called the police immediately. A PC Death, on duty in the area, received information about the robbery just before 11 o'clock that morning. He saw a male matching the robber's description on Parkside Drive. The officer saw that male discard a knife before he lost sight of him. He returned shortly afterwards to where the knife had been discarded and retrieved it. One of his colleagues, a PC Ling, attended the scene and apprehended the applicant. He was wearing a black jacket and grey hooded top. He had a pair of sunglasses and a black bag. PC Death arrived and saw the applicant sitting in the police car. He confirmed the applicant was the same male he had pursued earlier. On the way to the police station he was heard to comment that he was going back to jail.

[30]Police found at the applicant's home a diamond quilted jacket and a SIM card in his bedroom which allegedly came from Mr Mangan's mobile phone.

[31]Mr Mead attended the police station and was shown the knife, the bag and the jacket. He could not be sure about the knife and the bag, they looked similar, but he said the jacket looked the same. Mr Mangan also attended the police station and was shown photographs of the quilted jacket, the applicant's black bag and the knife. He said the jacket was very similar to that worn by his robber, the black bag looked exactly the same and the knife was similar too.

[32]The applicant was interviewed on 30th April and 1st May and declined to answer any questions. None of the victims identified the applicant as the robber. The defence was one of alibi.

[33]In discursive grounds of the applicant's own composition, the following are suggested to be grounds of appeal:(1) the prosecution failed to establish forensically that the SIM card was taken from Mr Mangan's phone;

(2) there was no proper evidence of continuity in relation to the grey bandana and the firearm;

(3) the identification evidence was circumstantial but was presented as solid;

(4) PC Death's evidence was not credible;

(5) the execution of the search warrant was illegal, the judge failed to direct the jury correctly on this;

(6) the judge's ruling admitting the applicant's bad character was highly prejudicial and wrong, his propensity to carry knives did not equate to propensity to commit robberies;

(7) the evidence in relation to counts 1 to 4 was unreliable and a submission of no case should have been allowed;

(8) the judge acted in bad faith;

(9) the judge was biased in various ways;

(10) the summing-up omitted to make the jury away that the hand gun had been swab tested which rendered fingerprint testing useless;

(11) the custody records showed that two inspectors considered there was insufficient evidence to charge the applicant until 11.35 on 1st May 2012, therefore only the outstanding evidence from counts 1 and 2 could have changed this decision - this, the applicant maintains, suggests that someone had known the evidence relating to the bandana and hand gun before forensics returned the results;

(12) the summing-up was flawed and unfair;

(13) trial counsel is criticised for failing to follow the applicant's instructions and to prepare properly for trial, it is said he failed to call a number of witnesses whom he should have called, including Errol Frank Crawford and Ashley Wells. These failings deprived the applicant of a fair trial. The applicant has submitted several forms in relation to the calling of allegedly fresh evidence and witness statements in relation to Mr Errol Crawford, Mr Ashley Wells and a David Edwards Childs. However, it is quite plain from the applicant's own comments that their evidence was either available at trial but not called or was called at trial and therefore would not meet the criteria for admission in this court under the Criminal Appeal Act.

[34]In view of the criticisms made of trial counsel, the applicant was invited to waive privilege. Trial counsel responded and refuted the criticisms made of him and the judge provided a series of reasons why they were inaccurate.

[35]Nothing daunted, the applicant submitted further grounds of appeal post the single judge's decision. He argued that the Crown had failed in their duty of disclosure by withholding key evidence, that the judge excluded a number of factors in relation to PC Death's evidence, that the identification procedures were conducted unfairly and in breach of Code D, that the judge failed to give a relevant direction in relation to that breach and that there was an abuse of the trial process.

[36]Refusing leave to appeal against conviction, the single judge dealt with each and every single point made by the applicant. He went through all the complaints, including the complaints about the identification evidence, about continuity, about the legality of the execution of the search warrant, about the admission in evidence of the bad character, about the rejection of the submission of no case, the alleged failings and bias of the judge, prosecuting counsel and the police, and he has also commented on the criticisms made of the summing-up. He considered the evidence of the witnesses the applicant claims should have been called at trial. He pointed out problems: for example, Mr Ashley Wells could not even be traced at the time of trial and therefore it would not have been possible to call him. He, as we indicated, dealt comprehensively with the grounds of appeal and we agree with all those observations that have been sent to the applicant and do not therefore intend to repeat them in detail.

[37]Nothing sent to the court after the single judge's decision has strengthened the applicant's case: it remains hopeless.

[38]The single judge did not initial the box. Nevertheless, the applicant was well aware of the court's powers, and has in fact made representations as to why we should not direct that some time spent in custody as an applicant should not count towards sentence. Those representations are in no way persuasive. Therefore, despite being warned on both the forms that he has completed of the court's power to make a loss of time order, and despite being well aware of this court's power, he chose to pursue what, in our judgment, is a totally unmeritorious application which has wasted the time of the court. Such applications hamper the court's ability to process meritorious applications in a timely fashion. We make a loss of time order of three months in his case. Ridley

[39]On 6th June 2008, at Newcastle before His Honour Judge Faulks, the applicant was convicted of ten counts of indecent assault, one count of indecency with a child and two counts of rape. He was sentenced to a total of 15 years. He renews his application for an extension of time of nearly five years for leave to appeal against conviction. He has provided no cogent reasons whatsoever for an extension of time.

[40]We should indicate at the beginning of this part of the judgment that the provisions of the Sexual Offences (Amendment) Act 1992 apply to this application.

[41]The brief facts are that the complainants, "W" and "H", were half-sisters. At the time of the offences the applicant was living with the family. On an occasion between January 1977 and February 1978 the applicant allegedly made W place her hand on his penis when she was seven years old. She complained to her grandmother and went to live with her. It was also said that he abused H from December 1983 to December 1986. When she was 11 the abuse began with his touching her vagina over her clothing. He then moved on to digital penetration, touching her breasts, performing oral sex on her, making her perform oral sex on him to the point of ejaculation and making her masturbate him. He then eventually raped her as well. The abuse only stopped when the family split up and H was 14. In 2007 the complainants reported the matters to the police. The applicant was arrested and interviewed and he denied the allegation.

[42]The defence case was that he did not abuse the complainants as alleged. He described the mother of the complainants as both ill and unloving and suggested the complainants had imagined the allegations. He complained that due to the passage of time important witnesses such as the complainants' grandmother and mother were unavailable because they were dead and all he could do was deny the allegations.

[43]The applicant has composed his own grounds of appeal. He claims:(1) There were errors, irregularities and abuse of process as follows: (a) on 7th March 2008 he was tricked into pleading to count 1 on the indictment in the absence of his solicitor; (b) the trial proceeded on 4th June 2008 with witnesses called by the Crown who had been "ruled out" by a different judge on 7th March 2008;

(2) The trial on 4th June 2008 was an ambush because there had been no further pleas and directions hearings: he did not enter any pleas on the remaining counts; he was tried on an unsigned and undated indictment and the witnesses that he wished to call were not called to give evidence; it was said that the jury therefore wrongly convicted him without the benefit of the evidence of a Mr Andrew Watson;

(3) He argued the Crown's case was based on inconsistent witness statements: the CPS had taken an unfair advantage of him and manipulated the court process to deprive him of the protection of the law;

(4) He criticised his legal team for failing to act on his instructions or in his best interests and accused them of suppressing vital evidence.

[44]In view of the criticisms made of the trial representatives, the applicant was invited to and did waive privilege. His trial representatives responded. They provided a full and well-reasoned rebuttal of all the criticisms made of them. It is plain they were baseless.

[45]Refusing leave to appeal conviction, the single

judge gave the following reasons:

"You provide no reasonable explanation for the very long extension of time you require. I refuse your application for an extension of time. Despite that I have considered your application for permission to appeal against conviction on its merits. Had I granted the necessary extension of time I would have refused permission. You were not tricked into entering a not guilty plea on 7th March 2008: your instructions throughout were that you were not guilty of any of the charges, though you were unable to offer any explanation as to why the complainants should lie about you. Your legal representatives tried to contact Robert and Andrew Ridley but you were unwilling to help; you were informed of the position. You were fully and properly advised throughout: it was entirely your decision to plead not guilty to the charges and to pursue the trial to verdict. You were represented by diligent solicitors and experienced counsel. Your trial was perfectly fair. You have no ground whatsoever for any complaint and you advance no basis on which the Full Court might conclude that your convictions were unsafe."

We agree. This is a totally unmeritorious application.

[46]The single judge also indicated that the Full Court should consider making a loss of time order, and we shall do so. The applicant has made the following representations as to why we should not direct that some time spent in custody as an applicant should not count towards sentence. He said this:

"Applicant has requested that he be advised by this firm in relation to a possible appeal since 10/9/13. Previous solicitors were written to on 17/9/13 requesting the full file but no material has been received to date."

[47]Plainly those are not valid reasons why this court should not, in rejecting a totally unmeritorious application, make a loss of time order. He has been warned of our powers so to do and he has chosen to pursue a totally unmeritorious application, wasting the time of the court and court staff. Such applications hamper the court's ability to process meritorious applications in a timely fashion. We make a loss of time order of three months. Harris

[48]On 22nd July 2013, in the Shrewsbury Crown Court before His Honour Judge Onions, the applicant was convicted of two counts of burglary, two counts of theft and doing an act tending and intended to pervert the court of justice. He was sentenced to five years' imprisonment. He renews his application for leave to appeal against conviction and sentence and for witness orders.

[49]We consider first indictment T20130014. The burglary offences related to the property of Charles Ferry, the head of the South Shropshire Hunt and son of Brian Ferry. During the previous five years Mr Ferry had suffered a number of burglaries at his home. Between 11th and 14th April 2012 yet again someone entered via a rear kitchen window and stole an Apple Mac computer and a case from the kitchen. Between 22nd and 31st October 2012 the property was again burgled, and this time an iPad, a Blackberry, concert and festival passes and a hunting jacket were amongst items stolen.

[50]On 8th November 2012 the applicant was arrested in respect of the second burglary. A mobile phone was seized from the car to which he had access. In interview he denied being the burglar or seeing or handling any of the stolen items. He admitted he was the sole user of the phone and that he had had it for 12 months. Recovered from the phone was a photograph which had been deleted but which was timed at 22.58.34 on 24th October 2012. It was a photograph of a letter dated 19th October 2012 which related to a fixed penalty charge. This letter Mr Ferry had left in his study before leaving the premises secure. It was still in the study on 31st October after the burglary.

[51]On 13th December 2012 a search was conducted of the applicant's grandmother's address. The property was vacant and the applicant had access to it. Property recovered from that address related to the two burglaries, including the iPad and the laptop computer. Also found were documents in the name of William Martin, the son of Mr Gerald Martin. These had been stolen in a burglary from Mr Martin senior's business premises in 2010. The applicant had worked for Mr Gerald Martin and had a key to the premises. The stolen items had been in a safe on the premises and there was no sign of forced entry. Other documents recovered were personal papers relating to a Detective Sergeant Hughes and his family. These documents had been stolen from a recycling bin in his rear garden in 2010. Detective Sergeant Hughes had been the case officer in respect of burglaries committed against Mr Ferry in 2009. The investigation had led to the applicant pleading guilty to four counts of handling stolen goods from those burglaries.

[52]We turn to indictment number T20137032. The applicant was remanded in custody in respect of these charges. All telephone calls were recorded at HMP Dovegate, save confidential legal calls. On 25th January 2013 the applicant telephoned his parents and suggested that his brother, Stephen Harris, should make a statement to the effect that he had been the one to take the photograph of the penalty notice letter and that he had found the letter in the road outside Mr Ferry's address. On 27th January 2013 he made a similar suggestion during a call to his mother. On 15th February 2013 the police seized a letter from him to his brother making the same suggestion.

[53]In interview he said he had seen a letter addressed to Mr Ferry in the glove compartment of a car which was used by all members of the applicant's family and he had left his own mobile phone in the same glove compartment. He said the conversations and the letter had been no more than a hypothesis as to how the photograph had been taken using his phone, they were not an attempt to create a defence.

[54]The applicant did not give evidence but the suggestion was put before the jury that his brother may have been responsible for the burglaries. The jury rejected that assertion.

[55]The applicant has submitted over 300 pages of correspondence and his grounds of appeal are all of his own composition. He complains that he was attacked in prison on 9th June 2013 and suffered such serious injuries that he was unfit for trial, let alone to give evidence. He criticised his advocate for making it clear that the jury would see the applicant as "a clever nutter" and this attitude undermined his confidence. His medical condition meant that he could not make a clear decision on giving evidence. He criticised his legal representatives for failing to act on his instructions regarding his brother's criminality. He also criticised the police for failing to act on this information. He accused the police of deliberately "introducing errors into the transcript of his interview". He suggested that the man who became jury foreman at his trial had been approached by Mr Gerald Martin in a public house, yet the judge took no action. He criticised the judge for failing to caution his brother against self-incrimination before he was cross-examined. He suggested the judge wrongly referred to four convictions for theft in the summing-up when he had been convicted of handling. He criticised the judge for directing the jury that he was blaming his brother. He suggested the judge's direction on burglary was wrong in law. He complains that he was not provided with transcripts of the phone calls, and he has provided the court with a letter which includes his analysis of those calls. He criticises his representatives for not acting in respect of errors in transcripts of the phone calls and blames prosecuting counsel for distorting the meaning of those transcripts. He suggests that part of the telephone transcript should have been redacted as prejudicial. He argues that the possible involvement of others in the offences, including his brother, was not explored sufficiently. He submits that he was not perverting the course of justice; he was merely trying to get his brother to admit the offence. He says he now has evidence he could not have committed the April burglary and he says there was highly prejudicial reporting of his trial from the start. He has submitted forms in relation to calling fresh evidence from a number of people: Mr Richard Forbes; Miss Jean Harris, his wife; James Harris, his father; Triin Laumets; Marie Lloyd; Michael Holehouse; Jean Evans; Alan Thompson. However, we have considered the material he wishes to put before us. The material was either available at the time and/or does not meet the criteria for admission into evidence in this court. Solicitors and counsel have responded to the criticisms made of them and it is clear from the transcripts that we have and from their remarks that the grounds as advanced have no basis whatsoever. The only grounds of appeal in respect of sentence are that the applicant was sentenced without a pre-sentence report and claims he was not properly represented at sentence.

[56]The single judge has provided a number of reasons for rejecting the applications. He concluded that the appeal has no real prospect of success. He considered the letters, which he described as detailed and comprehensive, which were sent to Judge Onions. He concluded that they were not consistent with any head injuries, they do not appear to have caused him any difficulty in making an informed and rational choice not to give evidence, and they do not indicate any impairment in his ability to give instructions. The judge described him as clearly intelligent and the letters indicate he had no difficulty in understanding or following the trial process. The judge went on:

"The single reference in the summing up to convictions for theft, rather than handling was a slip which could not have misled the jury, given the many clear references to the convictions being for handling in the relevant passages taken as a whole. The Judge was correct to treat the meeting between Mr Martin and the juror as of no significance. None of your numerous other grounds support an arguable case that your trial was unfair or your conviction unsafe. Nor is it arguable that the sentence imposed upon you was manifestly excessive or wrong in principle."

[57]We agree, save that we would put it higher. The application is totally without merit. The single judge did not initial the box but the applicant was aware of our power, and indeed he has responded by referring to the fact that the single judge did not initial the box that relates to consideration of a loss of time order. He has repeated in essence some of the submissions he made in his fuller document.

[58]Accordingly, having considered those arguments and his grounds of appeal, we are satisfied, as we say, that the application is totally without merit. The applicant was warned in clear terms of the court's power. He chose to pursue this application and it has wasted a very considerable amount of the court's time. As a result the court is less able to process meritorious applications in a timely and effective fashion. We make a loss of time order in his case of three months. Udu

[59]On 8th October 2013, in the Crown Court at Chester before His Honour Judge Dutton, the applicant pleaded guilty to an offence of aggravated burglary and possession of an imitation firearm. On 24th January 2014, at the conclusion of the trial of his co-accused, he was sentenced to an extended term of 13 years eight months custodial term and five years licence. He renews his application for an extension of time of approximately three months in which to seek leave to appeal against conviction and sentence, albeit he has put forward no grounds of appeal in relation to sentence.

[60]The applicant's reasons for failing to lodge his application for leave to appeal conviction in time are implicit in his grounds, namely that he did not realise until some time after his conviction that he had pleaded guilty to the wrong offence.

[61]The prosecution case involved a burglary at the home of a Mr Beech in Chester Road, Sutton Weaver. There was a knock at his door on the evening of 5th June 2013 just after midnight. When he answered the door a man wearing a balaclava lunged forward and prevented him from closing it. When the applicant gave evidence against his co-accused Walker he admitted that he was this man. Two further men approached and the complainant was overpowered. Inside the property all three assailants shouted at Mr Beech to open the safe and threatened to blow his head off. The first male pointed a gun at him. He struggled with the first male but received a blow to his head. One of the other two males also had a gun which he pointed at the complainant. The third male searched the upstairs before the assailants left. One of the hand guns, believed to be that held by the first male, had been dropped to the floor, and although there was a shout to retrieve it the complainant managed to close the door and call the police. The men made off in a BMW which had been lent to Walker by a man called Patel. Police gave chase but they escaped and PC Simms discovered the vehicle abandoned. Nearby were various items that had been discarded, including a Hugo Boss hooded jacket with a white glove inside the pocket bearing DNA from the applicant as well as Walker. The jacket bore blood from the complainant. A balaclava revealed Walker's DNA. Upon arrest the applicant's mobile phone was seized and subsequent cell site analysis placed him in the vicinity of Sutton Weaver at the time of the incident and thereafter showed his progression along the motorway to the point where the police started to give chase.

[62]In interview the applicant answered no comment to all questions asked.

[63]At the plea and case management hearing the applicant indicated that he was willing to give evidence for the prosecution and thereafter provided a witness statement to the police. The content is said to be entirely consistent with his plea of guilty to both offences and sets out his involvement, together with that of Walker. He gave evidence at trial in accordance with that statement but Walker was acquitted.

[64]On 24th January 2014 the applicant appeared at court unrepresented, having dispensed with his legal representatives. He submitted a lengthy document indicating he wished to change his plea. The judge reminded him he had given evidence at Walker's trial, admitting his part in the offences and indicating that he was responsible for the aggravated burglary with a gun. He said he had not committed an aggravated burglary and had not gone to the house in question. He gave evidence on oath that he had not committed the offence to which he had pleaded guilty. He said he had received new evidence and was not now sure whether he went to the house at all because there were two different houses. He was pressed to confirm whether or not he had gone into a house holding an imitation firearm where he hit a man over the head. He said he did not know. The judge, perhaps not surprisingly in the light of that evidence, ruled there was no foundation whatsoever for the application, which he accordingly dismissed.

[65]The applicant has advanced his own grounds of appeal. Despite a request that he should lodge consolidated grounds of appeal, the grounds remain extremely voluminous and unclear. Indeed, as we commenced this part of the judgment we were handed yet more handwritten documents and newspaper articles on behalf of the applicant. The newspaper article refers to Walker being remanded in custody having been found guilty of possession of counterfeit currency at a trial in August 2014. As far as the other observations made by the applicant in the documents handed to us this morning, insofar as we can read and follow them, they do not add anything of substance to those grounds that have already been submitted.

[66]Because the grounds included criticisms of his trial representatives, the applicant was invited to waive legal privilege and both his trial counsel and solicitor have responded in helpful fashion.

[67]Since renewing his application, the applicant has lodged a number of shorter documents which may be his attempt at replacing or consolidating his earlier submissions. Essentially, he repeats his account to the trial judge. He states that although he committed a very similar offence of burglary and robbery earlier the same evening, in the same area, he did not commit the offences with which he was charged and to which he pleaded guilty. He asserts that he was advised to plead guilty and did so in the belief he had committed the crimes. He had been shown exhibits which seemed to suggest that it was him. However, he now realises that what he was shown related to a different incident committed at a different time. He also suggests that on his analysis of the evidence he could not have been at the scene of the burglary to which he pleaded guilty and that the cell site evidence was faulty because the police had altered the names of the locations. Had he known about the police conduct, he would not have pleaded guilty. Essentially, he has analysed the evidence for himself and on his analysis he could not have committed the burglary.

[68]Refusing leave to appeal conviction and sentence, the single judge gave the following reasons. At paragraph 2 he said:

"2. I have read the file with care. I can see no evidence that the case as put to the applicant (and in respect of which he pleaded guilty) does not correspond with the crime that the applicant pleaded guilty to. 3. The applicant pleaded guilty at an early [plea and case management hearing] and gave evidence against his co-accused (Walker) at trial. He provided statements to the police over the course of two visits by them to the applicant whilst he was on remand and these formed part of the evidence against the co-accused. The applicant's basic position was that he was guilty but so was the co-accused (Walker). 4. At the trial of Walker the applicant gave detailed oral evidence during which he described as his own involvement in the crime. The applicant's version was corroborated by a number of pieces of additional evidence including DNA and telephone cell site analysis. 5. Walker was acquitted. It is only after this that the applicant sought to vacate his plea. On 24th January 2014, before HHJ Dutton at Chester Crown Court, the applicant applied to vacate and change his plea. He gave oral evidence before the Judge and denied committing the crime for which he had been indicted. But when asked whether he did commit a crime at the house in question he answered that he did not know. The Judge refused to permit him to alter his plea. The Judge said that he had heard the applicant's evidence during the trial and his detailed admissions that he had gone to the house, had engaged in a fight with the occupant and had been in possession of an imitation firearm. 6. The acquittal of the co-accused does not in any way undermine the correctness of the admissions of the applicant. 7. In his handwritten grounds the applicant refers to a number of factors none of which affect the soundness of either his guilty plea or sentence and therefore there is nothing to cast doubt upon the correctness of the Judge's decision to refuse him permission to change his plea. 8. First, he says that his solicitor withheld evidence from him including in relation to CCTV evidence, 999 call manuscripts and unused exhibits. The applicant submits that had he had sight of these he could have pleaded to the correct offence. The applicant's solicitors have since been sacked. However, none of this remotely impugns the validity of the admissions made by the applicant as to his involvement in the crime itself. 9. Secondly, he refers to various matters which he submits his solicitor did not follow up. Having reviewed these matters none are capable of undermining the evidence that the applicant himself gave or cast doubt upon the correctness of the fact that the applicant pleaded to the correct charge. 10. Thirdly, the applicant says that he was subject to threats from the co-accused. He says that his co-accused had clear motives (though to do what is not clear). Once again, when analysed, none of the matters complained of affect the fact that the applicant gave unequivocal evidence of his involvement in the crime for which he and the co-accused had been indicted. 11. There is no credible evidence that he admitted to a crime other than that which was the subject of the indictment and the trial of the co-accused. The grounds are unarguable."

[69]We agree: they are unarguable. We have performed the same analysis as the single judge has performed and it is plain to us that the grounds are totally without merit. The single judge was obviously of that view as well in that he ticked the box to indicate that the Full Court should consider make a loss of time order. Despite therefore repeated warnings of the court's power to make a loss of time order, the applicant has chosen to pursue a totally unmeritorious application which has wasted a very considerable amount of the court's time. Such applications hamper our ability to process meritorious applications in a timely fashion. In his case we make a loss of time order of three months.

Cited in 13 later judgments

and 4 more of the most senior