Kirk, R. v [2015] EWCA Crim 1764

[2015] EWCA Crim 1764Case No 201500765 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 6th October 2015
Strand
London, WC2A 2LL
B e f o r e:
VICE PRESIDENT OF COURT OF APPEAL CRIMINAL DIVISION
LADY JUSTICE HALLETT DBE
MR JUSTICE JAY
MR JUSTICE PICKEN
Between
R E G I N ACrownv
Between
PHILLIP JOHN KIRK
Computer-Aided Transcript of the Stenograph notes ofWordWave International Ltd trading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N T (Approved)
[1]MR JUSTICE PICKEN: This is a renewed application by the applicant for an extension of time within which to apply for leave to appeal against conviction and for leave to appeal following a refusal by the single judge. The extension of time sought amounts to a substantial period, something in the region of two, years ten months and seven days.[2]On 14th March 2012, in the Crown Court at Teesside, the applicant pleaded guilty to 17 counts of making indecent photographs of a child contrary to section 1(1) of the Protection of Children Act 1978 and to two counts of possession of indecent photographs of a child contrary to section 160(1) of the Criminal Justice Act 1988.[3]The facts may be briefly stated. (This is a case to which the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply.) The applicant, who at the time was 18 years old, was arrested on 25th September 2011, a Sunday, in relation to a burglary which had taken place that weekend at Brompton Primary School in Northallerton. The school caretaker discovered that a window had been smashed and a door opened, with the key missing. A laptop was found to be switched on, suggesting that the intruder had tried to access the school system. Next to the laptop was a black wallet containing a driving licence in the applicant's name. Some of the school children's bags in the changing room had been rummaged through, and it subsequently became apparent that PE kits belonging to four girl pupils had been taken.[4]Upon his arrest, a search was conducted at the applicant's home address and items including a laptop, a computer tower, two memory sticks, two external hard drives and numerous items of young girls' clothing were seized from his bedroom. In particular, on the applicant's bed the police found a child's pink jacket which had been stuffed with a duvet. Forensic examination of the computer equipment found indecent images of children on the laptop, computer memory sticks and hard drives. The breakdown of the images on this equipment was 2,437 at level 1, 30 at level 2, 74 at level 3, 202 at level 4 and two at level 5. Examination of internet history showed that word searches carried out included the combination "sex and abuse and kids" and a second combination of "girls and leotards".[5]On 17th November 2011 the police re-attended the applicant's address and seized a Packard Bell netbook and a Packard Bell tower unit. Upon examination, the breakdown of the images on this unit was 1,761 at level 1, 24 at level 2, 216 at level 3, 404 at level 4 and five at level 5. The applicant was interviewed the same day, 17th November 2011. He admitted that he had downloaded the indecent images of children. He initially denied getting sexual gratification from them. He explained that he missed having contact with younger children since leaving primary school. He went on, however, in the interview to acknowledge that he did derive sexual gratification from the images as well as from the clothes, adding that the police should expect to find semen stains on the child's pink jacket which had been stuffed with a duvet as he had simulated intercourse with it.[6]The counts on the indictment were specimen in nature and were intending to cover something like 5,155 images in total.[7]This, then, was the basis on which the applicant came to be sentenced when he appeared before His Honour Judge Fox QC on 12th April 2012 and was sentenced to two years' detention in a young offender’s institution on each count to run concurrently, as well as being made the subject of a Sexual Offences Prevention Order. Having been committed for sentence for the burglary offence, the applicant was on the same occasion also sentenced to a consecutive term of 12 months' detention for that burglary offence.[8]In the grounds of appeal, prepared by the applicant himself earlier this year when still in custody, the applicant raises a number of matters. First, he complains that there was a breach of Article 6 of the European Convention on Human Rights in that, as he puts it, "prior to and during the court case the prosecution failed to provide" him with certain documents consisting of transcripts of police interviews, witness statements and a certain report. Secondly, the applicant complains that a forensic report prepared by the police contained inaccuracies. Somewhat oddly, the applicant complains in particular that the report in one respect understates the number of indecent images which were found. Thirdly, the applicant alleges that, as he puts it, "some paperwork served to the court" was not provided to him before he entered his pleas of guilty.[9]We agree with the single judge in his assessment that the applicant's application is entirely unmeritorious. The applicant pleaded guilty to the counts which he did because at the time he was willing to acknowledge that he was guilty of the offences to which those counts related. His attempt now, long after his pleas of guilty, to challenge his convictions is thoroughly misconceived. As made clear in the respondent's notice and grounds of opposition, there is absolutely nothing in the matters raised by the applicant.[10]As to the first of the grounds, the applicant's solicitors received the various documents which the applicant complains were not received. This includes certain witness statements served by way of additional evidence the day before a plea and case management hearing which took place on 7th March 2012. At that hearing it was indicated that the applicant would enter guilty pleas to the counts with which the present application is concerned, but not a further count. However, the applicant was not at that stage arraigned in order to allow the applicant to have a conference with his legal representative. It was therefore not until a hearing a week later, on 14th March 2012, that the applicant entered pleas of guilty to the relevant counts. Afterwards, ahead of the sentencing hearing, the applicant was served with a further witness statement. There was no suggestion that the applicant wished to change his pleas.[11]As to the second of the applicant's grounds of appeal, it appears that the relevant forensic report made it clear that the quantification of the images which were found were approximate. They were apparently expressly described as such. In any event, the applicant is really just splitting hairs in circumstances where, on any view, very substantial numbers of indecent images were on his computer equipment. There can be no doubt at all that the applicant was guilty of the counts which he faced, as acknowledged by the applicant himself by his guilty pleas.[12]This leaves the applicant's third ground of appeal. Again, there is nothing in the point raised. As explained in the respondent's notice and grounds of opposition, the witness statements served after the applicant's pleas of guilty concerned the seizure of the applicant's computer equipment. There was, however, no issue as to this matter and, as previously mentioned, there was no attempt made by the applicant to vacate his guilty pleas.[13]Like the single judge, therefore, we are quite clear that this is not a case in which it is appropriate to grant the applicant an extension of time. It would be pointless to do so in view of the hopelessness of the application for leave to appeal. Furthermore, the reason given by the applicant for the substantial delay in seeking leave to appeal is wholly inadequate. The applicant simply asserts that:
“it has taken a considerable amount of time to collect all the evidence served to the Court by the prosecution that was not given to me”
. He then goes on to refer to the need to understand that evidence. This is inadequate. The applicant's solicitors had the material at the time he entered his guilty pleas and when he was sentenced. There is nothing to indicate that the applicant was not himself made aware of the material. The extension of time sought is, therefore, refused and it follows, as we will come on a little later to explain, that leave to appeal is not granted.[14]This is not, however, the end of the matter because, in refusing an extension of time, the single judge directed that the prosecution should provide a schedule of costs incurred by them in dealing with this application and that the applicant should respond with a full statement of means if his position is that he is unable to pay those costs.[15]It may be that the single judge's focus was on costs, as opposed to the making of a loss of time order, because he appreciated that, by the time any renewed application was heard, the applicant would no longer be in custody. The applicant has now, as we understand it, been released from custody and so a loss of time order made under section 29 of the Criminal Appeal Act 1968 would no longer be appropriate. Had this been a case in which a loss of time order would have been available, we are clear that such an order would have been the right order to make. This is precisely the type of unmeritorious case in which such an order should be made: see R v Dean Andrew Gray & others [2014] EWCA Crim 2372. We, therefore, now go on to consider whether it is appropriate that a costs order is made against the applicant in this case.[16]The power for the Court of Appeal to make an order as to costs to be paid by the accused is contained in section 18(2) of the Prosecution of Offences Act 1985, which, so far as relevant in this case, is in the following terms:
“Where the Court of Appeal dismisses - (a) an appeal or application for leave to appeal under Part I of the Criminal Appeal Act 1968; … 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.”
Section 18(3) then goes on to provide that:
“The amount to be paid by the accused in pursuance of an order under this section shall be specified in the order . ...”
. Section 18(6) then states that: “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”. (a) an appeal or application for leave to appeal under Part I of the Criminal Appeal Act 1968; …[17]In this case, for reasons which we have explained, we have refused to grant the applicant the time extension which he seeks. It follows that the applicant is not granted leave to appeal. The question which arises is whether, in these circumstances, this is a case in which section 18(2) of the 1985 Act is applicable; specifically, whether it can properly be said that we have dismissed the applicant's "application for leave to appeal". Although inevitably without the benefit of full argument on the point, we have considered more specifically still whether a refusal of an extension of time with the consequence that leave to appeal is not granted amounts to a dismissal of an "application for leave to appeal". If it does, then there is jurisdiction to make a costs order under section 18(2). If it does not, then there is no such power, notwithstanding the fact that, had this been a loss of time case, we would most certainly have made an appropriate order.[18]It appears that this is not an issue which has been previously considered in the authorities, nor is there any discussion of the issue in Archbold. We must, accordingly, approach the matter as a matter of principle. Doing so, we bear in mind that it would, as we see it, be somewhat odd if an applicant can be made the subject of a costs order under section 18(2) having made a hopeless application for leave to appeal which is in time, but an applicant cannot be made the subject of such an order having made a similarly hopeless application for leave to appeal which happens to have been made out of time. The applicant in the latter scenario is at fault in two respects -- first, in making a hopeless application and, secondly, in doing so late -- yet escapes a costs order if section 18(2) is read restrictively, whereas the applicant in the first situation cannot escape an order for costs. It would also be odd if a costs order could not be made in a case such as the present, yet a loss of time order could be made were the applicant still in custody.[19]We appreciate that the respective statutory provisions are in different terms, and in particular that it is only section 18(2) of the 1985 Act which refers to the dismissal of "an appeal or application for leave to appeal". We nevertheless consider that Parliament cannot have intended when it enacted the 1985 Act that the ability to order costs should be more restrictive than the ability to make a loss of time order. In each case the objective is to prevent the making of unmeritorious appeals. It, therefore, makes little sense for the ambit of section 18(2) to be more limited.[20]It is with these considerations in mind that we turn to the words used in section 18(2).[21]We consider that section 18(2)'s reference to the dismissal of "an application for leave to appeal" ought, adopting a common sense approach to the task of statutory construction, to be regarded as embracing an application for an extension of time which accompanies an application for leave to appeal. After all, refusal of an application for an extension of time necessarily entails the dismissal of the application for leave to appeal to which the application for an extension of time relates. In practical terms, therefore, the result is the same: the applicant has failed in an unmeritorious attempt to appeal. Indeed, it would strictly have been open to us to have granted the applicant the extension of time which he seeks and then to have refused leave to appeal. Had we adopted that course, the power under section 18(2) would undoubtedly have arisen. We do not consider, however, that in a case such as the present, where the delay is so long and the excuse given for the delay is so inadequate, a time extension ought to be granted simply so as to get around a possible argument that section 18(2) is inapplicable. It is for this reason that we have not approached matters in this way but have instead confronted the section 18(2) issue directly. Nevertheless, the fact that we could have granted a time extension and then refused leave to appeal does seem to us to underline the artificiality of an argument that a costs order under section 18(2) is not available in a case where a time extension is refused in relation to an application for leave to appeal which is hopeless.[22]It is also worth bearing in mind in this context that, although the requirement for leave to appeal is to be found in section 1(2) of the 1968 Act, that subsection is supplemented by the Criminal Procedure Rules 2014, specifically rules 65 to 68, being rules made under section 69 of the Courts Act 2003, and rule 68.2 sets out the relevant time limits, as does indeed section 18 of the Criminal Appeal Act 1968 itself. Rule 68.3 then goes on to provide that the notice of appeal must include or attach an application for leave to appeal, and if required an application for an extension of time. The Criminal Procedure Rules 2015, which came into force yesterday, have provisions in similar terms, namely rules 39.2 and 39.3.[23]In these circumstances, we regard it as unrealistic to divorce an application for an extension of time from an application for leave to appeal. In practical terms, the effect of refusing the application for an extension of time is that the application for leave to appeal must fail. On that basis, it seems to us that section 18(2), with its reference to the dismissal of an application for leave to appeal, must operate in a case where a time extension is refused with the necessary consequence that leave to appeal is not obtained, just as much as it does where no time extension is required and so the order which is made simply dismisses the application for leave to appeal.[24]We conclude, therefore, that it is open to us to make an order under section 18(2) in the present case and, in the circumstances, we have no hesitation in making an order that the applicant should pay the rather modest cost of the transcript obtained by the Registrar, namely £29.95. We consider also that the applicant should make a contribution to the more substantial costs incurred by the prosecution in providing a respondent's notice.[25]The applicant has responded to the prosecution statement of costs, as he was required to do by the single judge's directions, stating that he has savings amounting to £950. We are satisfied that, in view of this, the applicant has the means to pay and that he should do just that. The applicant must, therefore, pay £400 within 28 days. This, then, is the order which we make to accompany our orders refusing the applications for an extension of time and leave to appeal.

Cited in 2 later judgments