Smith, R v [2016] EWCA Crim 2173

No: 201300375 B4[2016] EWCA Crim 2173
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 28th April 2016
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 BLAKE
MRS JUSTICE ANDREWS DBE
Between
R E G I N ACrownv
Between
MICHELLE SMITH
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
[1]MRS JUSTICE ANDREWS: On 6th July 2012, in the Crown Court at Swansea, the applicant was convicted of the murder of her infant daughter and sentenced to imprisonment for life with a minimum term of 12 years. She was represented at trial by a Queen's Counsel and a junior.[2]In January 2013 an application was received in the Criminal Appeals Office for an extension of time of five months and 13 days in which to apply for leave to appeal against conviction, with grounds of appeal settled by fresh counsel in which criticisms were made of those who had represented the applicant at trial. The application included a signed waiver of privilege form. In due course the original legal team were contacted and provided their responses to the grounds of appeal.[3]On 28th February 2013 counsel freshly instructed who had settled those grounds of appeal e-mailed the Criminal Appeals Office to indicate that he had given advice to the applicant to abandon her appeal in the light of the responses from her previous legal team.[4]On 25th March 2013 a Form A, which is the notice of abandonment, was received in the Criminal Appeals Office, but it was incomplete and it was returned to the applicant's then solicitors. The signed Form was returned on 4th April 2013 (with the date of 21st March 2013 on it) but there was no indication whether it was the applicant who had signed it or whether her legal representative had signed it on her behalf.[5]The Registrar was subsequently sent a number of letters by the applicant herself indicating that she knew nothing of the notice of abandonment, that she had received a notification after the event that her former solicitors had abandoned the appeal, but that she did not wish to abandon her appeal and that she wished the matter to be treated as a nullity.[6]The Registrar attempted to get to the bottom of the matter and several chasing letters were sent to the solicitors concerned, Messrs Graham Evans and Company, which produced no response. It was only in December 2015 that eventually a letter was sent to the Criminal Appeals Office which indicated that the firm of solicitors did not have the applicant's authority to abandon the appeal. The letter stated that initially the firm had notified the applicant's husband regarding the abandonment of appeal by way of a telephone conference from the chambers of counsel who had settled the grounds of appeal. On returning from the conference, the solicitors were notified by the applicant's husband that their services were no longer required. That being the case, it is difficult to see on what basis they could have thought that they had authority to lodge Form A. Later in the same letter the author of the letter, a Mr Hayes, states:
"We accept that we may well have lodged 'Form A' without our client's consent but we were informed in no uncertain terms by Mr Smith that we should have no further contact with his wife (the Applicant). We have no record of Mrs Smith's formal consent to the abandonment but both the Applicant and her husband were made aware of Counsel's stance in respect of the merits of an appeal."
[7]That is a singularly unsatisfactory explanation of the circumstances in which this document came to be lodged with the Criminal Appeals Office. However, having read it, it becomes quite clear that this is not just a case where the mind of the applicant did not go with the act of abandonment, but she was completely unaware of it and those who purported to abandon her appeal had no authority to do so. In those circumstances this court has no choice but to treat the abandonment of the appeal as a nullity.[8]We consider that no encouragement should be given to the applicant in terms of the merits of the appeal by this. The matter will have to go on to be considered by a single judge and there are formidable obstacles, to say the least, in relation to both the extension of time and the merits, but we need say no more about that.[9]So far as the solicitors are concerned, we are going to direct that a copy of this judgment, when perfected, should be sent to the Solicitors Regulation Authority with a view to determining whether any, and if so what, action ought to be taken against the firm in question.