Neutral Citation Number:
[2017] EWCA Crim 597
Case No: 201601368 B1; 201500443 C3; 201505334 C3; 201503122 C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 28 February 2017
B e f o r e
:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(LADY JUSTICE HALLETT DBE)
MR JUSTICE KERR
MRS JUSTICE CHEEMA-GRUBB DBE
- - - - - - - - - - - - - - - - - - - - -
Between:
R E G I N A
v
TERENCE CONAGHAN
R E G I N A
v
THOMAS WILLIAM HENRY JAMES
R E G I N A
v
DAVID NOEL RAMCHAITAR
R E G I N A
v
MICHAEL HERBERT SOLOMON
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss R Suttle
appeared on behalf of the
Applicant Conaghan
The Applicants James, Ramchaitar and Solomon did not attend and were not represented
The Crown did not attend and was not represented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
THE VICE PRESIDENT:
2.
Introduction:
3.
These four renewed applications for leave to appeal against conviction have been listed together because each applicant has been assisted in presenting his application by a third party who is not legally qualified. The judgment on the four applications is one to which all members of the court have contributed.
4.
It has become increasingly common in the Court of Appeal Criminal Division (“CACD”) for the court to receive applications by unqualified third parties to represent an applicant and address the court, usually at renewed applications for leave hearings where public funding is exhausted. This trend has led to the following problems:
(i) Third parties have submitted applications on a litigant in person's behalf where it has been unclear that they were acting in an applicant's best interests and or with their full authority.
(ii) Third parties have requested transcripts and other documents on behalf of a litigant in person and attempted to correspond with the office directly as if they were a legal representative.
(iii) Staff, particularly administrative staff, have been unsure about what information they can provide to third parties, particularly over the telephone.
(iv) Third parties have advanced applications in which criticisms are made of trial lawyers, without consulting the trial lawyers as is required of fresh legal representatives by the judgment in
R v McCook
[2014] EWCA Crim 734
.
(v) Third parties with a personal interest in the proceedings, or with a cause they wish to advance, or simply with the best of intentions, have presented totally unmeritorious applications. They have thereby raised the hopes of an applicant, taken up a very considerable amount of time and resources of the court, and put an applicant at risk of a loss of time order pursuant to the judgment in
R v Gray & Ors
[2014] EWCA Crim 2372
. In
Gray & Ors
the court declared that:
"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".
(vi) Third parties have taken years to advance an application, seemingly unaware of the approach this court takes to applications requiring significant extensions of time.
(vii) Third parties have advanced applications seemingly unaware of the approach this court takes to applications to advance fresh evidence, particularly those based on fresh expert evidence.
5.
In this Special Court, the third parties seeking to assist the litigant vary. James is a litigant in person. He has been assisted throughout these proceedings by his wife, Mrs James, on the basis he is dyslexic, not articulate and cannot answer questions very quickly. Mrs James has lodged grounds of appeal on her husband’s behalf and with his authority. She initially applied to address the court orally but abandoned her application. She was a defence witness at trial and with an obvious personal interest in the proceedings.
6.
Solomon is assisted by Mr Whetstone, who informed us that he is a friend of long standing. He got in touch with the applicant after the trial and offered to help, when he discovered trial counsel had advised against an appeal. He says he is not being paid but has declined to provide any further information on his background. We assume, therefore, he is not and never has been professionally qualified. He calls himself a "McKenzie type friend". He has lodged grounds of appeal on the applicant's behalf and has been corresponding with the office on a regular basis. He lodged a complaint with his MP that the applicant's case had been delayed pending this hearing. He made an application to address the court. This was refused because the court did not consider this was an exceptional case. He then submitted written representations and a video recording said to undermine the safety of the conviction. These have been considered, but, as we note later in this judgment, his representations contained explicit criticism of trial counsel and reliance on comments allegedly made by trial counsel, but no documents have been provided to support the representation and there has been no proper compliance with the procedure set out in
McCook
.
7.
Conaghan is now assisted by law students of Northumbria University. The students prepared his application for leave to appeal but the process took nearly six years. The students settled the grounds of appeal including criticism of trial counsel without complying with the requirements of
McCook
and they lodged a report on the applicant's behalf from a witness whose expertise in the relevant field has been doubted on a previous occasion by this court. The same students are assisting in other live cases before the court. Although the Court of Appeal Office has been told they are supervised by a solicitor, it is not clear the extent of the supervision. However, it was not the students who sought to represent Mr Conaghan at today’s hearing. He had the very considerable advantage of being represented before us by Miss Suttle on a pro bono basis, and we are indebted to her.
8.
In the case of Ramchaitar, the Registrar granted an application for a non-qualified third party to conduct litigation namely the Criminal Appeal Project of BPP Law School. The project was established to assist applicants who have exhausted their appeals process. The Law School first submitted an application to the Criminal Cases Review Commission for the applicant, but it was rejected because he had not exhausted his avenues of appeal before this court. By that time they had carried out substantial work on the applicant’s behalf and the Registrar allowed them to continue acting for him. They have twice sought an adjournment of the application on the basis that two different counsel instructed to attend pro bono could not attend. The most recent application was yesterday, less than 24 hours before the hearing. Both applications were refused. The Law School were unable to obtain the services of another counsel to advance the application.
9.
In an attempt to address some of the concerns, in December 2015 the Registrar issued his Practice Note entitled "Practice Guidance: Litigants in Person – Assistance by Third Parties (Criminal Appeals)". A letter was also drafted to explain in clear terms to applicants the level and type of assistance an unqualified third party would ordinarily be permitted to provide. The guidance was intended to reflect the practice elsewhere.
10.
We have been invited by the Registrar to consider the Practice Note and to give general guidance on the assistance that a non-legally qualified third party may give to a litigant in person in the CACD.
The law and practice
11.
Part 3 of the Legal Services Act 2007 lists and defines reserved legal activities. Those who wish to conduct them are subject to stringent requirements. Exercising a right of audience is a reserved legal activity, as is conducting litigation. However, the court has an inherent jurisdiction to grant a right of audience on a case-by-case basis to any person who would not otherwise have a right of audience: see
D v S (Rights of audience
) [1997] 1 FLR 724. It is a discretion that should be exercised only in “exceptional” circumstances. To do otherwise would thwart Parliament’s clear intention.
12.
The decision in
D v S
related to the provisions of the Courts and Legal Services Act 1990 which have now been repealed. The provisions with which we are concerned are contained in the Legal Services Act 2007. They mirror the previous provisions and the position therefore remains the same: the court may allow an unqualified third party permission to address the Court in exceptional circumstances.
13.
In three relatively recent decisions, this court (the CACD) considered whether exceptional circumstances existed to justify the grant of rights of audience to a third party. In
R v Samra
[2015] EWCA Crim 1551
, the applicant's sister was granted permission to address the court following an application by the applicant that she was his appropriate adult and had drafted his grounds of appeal. In
R v Kirk
[2015] EWCA Crim 338
, the court refused to grant rights of audience to a third party assisting a litigant in person on the basis they were what was described as a "McKenzie friend" and the case was not exceptional. In
R v Rees
[2014] EWCA Crim 1056
, the court allowed a Mr Howell (status unknown) to address the court. It appears the application was made entirely without notice and no reasons are given by the court for allowing the application, although Mr Howell is referred to in the judgment as a "McKenzie friend".
14.
The current position in the Civil and Family Courts is that joint Practice Guidance was issued by the Master of the Rolls and the President of the Family Division. The Guidance sets out the approach that should be taken to what are still known as "McKenzie friends" in many quarters, albeit the term has become contentious. Concerns have been expressed in the Civil and Family Courts about the increased use of third parties, particularly professional “McKenzie friends” who are paid fees for the work they do. Given the importance of reserved activities under the Legal Services Act, many question whether it is in the public interest, or generally in the interests of an individual litigant to allow “Mackenzie friends” to operate in the courts as litigators and advocates, unqualified, uninsured, unregulated and not bound by the rules that bind qualified lawyers. Others, such as the Consumer Panel of the Legal Services Board believe that, in certain circumstances, they can make a positive contribution to the system and provide worthwhile assistance to the otherwise unrepresented litigant.
15.
A working group has been set up by the Lord Chief Justice to examine the current guidance. A consultation document was issued and consultation closed last year. One of the issues the consultation addresses is the use of the title "McKenzie friend". The Bar Council in its response to consultation favoured the use of the term "lay supporter or helper".
16.
Having considered these developments and the Registrar's Practice Note, it is our view that:
(i) The term "McKenzie friend" is not appropriate in the Court of Appeal Criminal Division. Terms such as "applicant's friend" or "applicant's helper" might well be more appropriate, but it would be wrong to express a concluded view pending the results of the consultation in the Civil and Family jurisdictions.
(ii) The court will only allow a non-qualified third party to address the court in exceptional circumstances, and this will be decided on a case-by-case basis.
(iii) If the Registrar has exceptionally granted permission for a non-qualified third party to act as a litigator, it does not follow that the court will also grant the third party a right of audience. It will only do so in exceptional circumstances.
(iv) The Registrar's Practice Note is generally consistent with the current law and best practice in this area.
However, we recommend a number of possible improvements. First, we would invite the Registrar to consider whether the terminology is such that it can be properly understood by the majority of litigants in person. Second, we suggest the Registrar may wish to structure the guidance in such a way it better highlights the individual stages in the process. This should enable bodies (such as student law advisory bodies) to make an informed decision as to how far they can go in assisting a litigant before involving the services of a lawyer. Third parties should be put on clear notice that an application should not be advanced beyond the single judge stage, following a refusal, without the applicant being fully advised as to the possible consequences.
17.
We turn to the facts of the individual cases.
Conaghan
Background
18.
Conaghan was convicted of an offence of murder on 2 August 2007 at the Central Criminal Court. His co-accused, John O'Flynn, was also convicted of murder. Another co-accused, Richardson, was acquitted. He applies for an extension of time of 14 days in which to renew his application for an extension of time of 8 years and 8 months to apply for leave to appeal against conviction. He also renews his application to rely on fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. If there were any merit in the application we might be prepared to overlook the 14-day extension of time required, caused as it was by the illness of one of those assisting the applicant. However, it is the nearly 9 years' extension of time that creates a significant hurdle for the applicant.
19.
Miss Suttle informed us that the applicant was advised by leading and junior counsel at trial that he had no grounds for appeal. According to a statement received this morning he then lost faith in the justice system; correspondence went astray; he contacted other lawyers but they did not reply; and he was concerned with other proceedings in Scotland. This was said to account for his not contacting the Northumbria University Student Law Office until July 2010, at which point any application was already out of time.
20.
Since July 2010 the application has been conducted by students of the Student Law Office, who change every few years as they complete their studies. It is a pro bono organisation with limited time and resources, and on that basis it was asserted that it was reasonable for them to take five years for five different sets of students to put the application in order. Part of the delay was also attributable to the time taken to obtain an expert report.
The prosecution case
21.
In the early hours of Wednesday, 4 February 2003, George Francis, the deceased, was shot dead near his car in Bermondsey outside his haulage company. Neighbours heard gunshots, discovered the body and called the police. Four empty cartridges and a bullet were found near the scene. The prosecution case was the applicant and his co-accused O'Flynn murdered the deceased, having been recruited by the co-accused Richardson. The accused and O'Flynn climbed into the deceased's yard shortly after midnight to adjust the CCTV camera covering the road, and then one or both fired the fatal shots at about 4.45 am when the deceased arrived in his car.
22.
The prosecution relied upon:
(i)
the evidence of an expert in imaging analysis who examined the CCTV footage;
(ii)
the evidenced of Julie-Ann Cornelius, a forensic scientist, who examined cellular material recovered from the arms and nose bridge of spectacles found at the scene using Low Copy Number (LCN) DNA analysis and received a full copy DNA profile which matched that of the applicant;
(iii)
the evidence of a footwear mark expert that there was limited support for the proposition that a footprint recovered from the scene matched the tread pattern on trainers owned by the applicant;
(iv)
evidence that a cigarette butt bore a DNA profile that matched the co-accused O'Flynn;
(v)
mobile telephone evidence that demonstrated extensive contact between the applicant and O'Flynn on the night of 13 May and the morning of 14 May 2003 and in the preceding weeks;
(vi)
cell site evidence suggesting that the applicant and O'Flynn were in the Bermondsey area at the right time;
(vii)
evidence from an acquaintance of the co-accused O'Flynn that O'Flynn confessed to her that he and the applicant had been paid to murder Mr Francis and that in the course of the incident the applicant had dropped his glasses. O'Flynn later asked her to store a bag containing two firearms, one of which, when examined, bore O'Flynn's DNA;
(viii)
the applicant's previous convictions, including ones for possession of firearms;
(ix)
an adverse inference from his failure to give evidence.
23.
The defence case
24.
The defence case was a denial of any kind of involvement or presence and a challenge to the DNA evidence. The defence pointed to the fact that when Ms Cornelius first gave her opinion as to the profile she had obtained, she stated that she had obtained a
partial
profile that matched the applicant yet she went further in her evidence before the jury. It was only in cross-examination that she opined that she had obtained a
full
profile that matched the applicant. This was said to render her opinion unsatisfactory and unreliable. A defence imaging analysis expert disputed the prosecution expert's interpretation of the CCTV. An explanation was tendered for the cell site evidence; medical evidence was provided to suggest the applicant would not have had the capacity to climb over the fence in the way suggested; and several witnesses gave supportive character evidence. The account of a confession to her from O'Flynn was challenged on various grounds.
Ground of appeal
25.
The ground of appeal against conviction is based on ‘fresh’ evidence obtained from a Professor Alan Jamieson, described as an expert in Low Copy Number DNA analysis. This evidence is said to undermine the Crown's evidence at trial that the DNA profile found on the spectacles matched the applicant.
26.
Professor Jamieson relying solely on a note of the evidence and without having conducted an analysis himself maintains that the circumstances of and the reason for Julie-Ann Cornelius's change of opinion did not withstand scientific scrutiny. He insists that her methodology has no proper scientific basis and has been shown to be unreliable.
27.
Professor Jamieson gave evidence before this court in
R v Reed & Reed
[2009] EWCA Crim 2698
. On that occasion the court expressed "clear reservations about the extent of his expertise in relation to DNA profiles", describing it as ‘limited’, without any first-hand laboratory or research experience. The court also made strong criticisms of aspects of his evidence, including his willingness to criticise the integrity of other scientists with no foundation whatsoever.
28.
In light of this decision, the applicant's representatives were invited to lodge further submissions addressing the criticisms. A further 15-page report came from Professor Jamieson asserting his expert credentials. He insists that the Forensic Institute, the legitimacy of which was under scrutiny in
Reed and Reed
is a legitimate forensic science institute that he established in Glasgow. He also took issue with the court's characterisation of his expertise in
Reed & Reed
and maintains he does have the relevant experience.
29.
However, they did not contact trial representatives. The Registrar did. Mr Rock Tansey QC (now retired), at the time of trial leading counsel for the applicant, has done his best to explain what happened. He and his colleagues (junior and instructing solicitors) were very much alive to the issue of Ms Cornelius's DNA analysis and her change of opinion. A report had been commissioned from their own expert, Dr Sara Short. Dr Short had conducted an analysis herself and prepared a report together with a comprehensive set of possible questions with which to challenge Ms Cornelius. These were deployed as best Mr Tansey could. However, he was somewhat inhibited by the fact that Dr Short’s analysis produced a very similar conclusion to that obtained by Ms Cornelius. Dr Short agreed with Ms Cornelius's results and in her estimation the chances of obtaining "a major profile if that part of the DNA came from a man other than and unrelated to T Conaghan was of the order of one in a billion".
30.
Mr Tansey explained that, in those circumstances, Ms Cornelius’ change of opinion suited the defence purposes. Having taken time to reflect and to take further instructions, he decided not to make an application. Miss Suttle struggled valiantly to advance the application for leave to appeal in the light of this information.
31.
Conclusions
32.
Refusing leave to appeal against conviction, the single judge gave the following reasons:
"The extension of time required is over 8 years. No explanation is given for the delay between the original advice on appeal in 2007 and the first contact with Northumbria University in 2010. Whilst it is understandable that the pro bono activity of the students could not be expected to be conducted with same expedition as a firm of solicitors, it was undertaken in a leisurely fashion. Further, the report which is the cornerstone of the proposed appeal is dated June 2014 whereas the appeal was only lodged in 2016. There is no proper basis for the extension of time given the high threshold which has to be reached where a very long extension is in issue."
33.
We wholeheartedly agree. As indebted as we are to law students in various institutions around the country conducting investigations of this kind and taking on cases of this kind, this court operates on the basis of clear and established principles of which timeliness is one. Institutions that take on cases must understand the consequences of inexcusable delay.
34.
The single judge also considered the substance of the application. He dismissed Professor Jamieson's ‘fresh’ evidence as neither fresh nor adequate.
35.
Again, we agree. We are surprised that if Professor Jamieson has the expertise and the experience that he claims, he was prepared to criticise Ms Cornelius's findings to the extent that he did solely on the basis of a note of her evidence. His approach was unsatisfactory. We would have expected him at least to call for Ms Cornelius’ notes of her analysis. Had he made a simple enquiry if any other expert had examined the samples, he would have discovered Dr Short’s analysis. In short, he seems to have opined on the integrity of a fellow scientist without checking his facts.
36.
We have no hesitation whatsoever in rejecting Professor Jamieson's report. We are not satisfied as to his expertise, we do not find it credible, it does not provide a ground of appeal and there is no reasonable explanation for it not being called at trial. In any event, the defence had available an expert who could advise and, if necessary, give evidence on the same issue. This is yet another example of post conviction ‘expert-shopping’, a practice that has been deprecated by this court on many occasions.
37.
The applicant has made representations that this court should not make a ‘loss of time’ order. He was advised by ‘counsel’ (not Miss Suttle) that there was merit in his appeal and that counsel was willing to represent him pro bono. As was made clear in
Gray & Ors
, counsel’s positive advice would not prevent us from making a loss of time order. However, having heard Miss Suttle's representations and given there is little point in our making a loss of time order, we conclude it would be inappropriate to do so.
James
Background
38.
On 16 July 2014 in the Crown Court at Reading before Her Honour Judge Cutts QC, the applicant, who is now aged 74, was convicted of one count of rape and six counts of indecent assault, all contrary to the Sexual Offences Act 1956. He applies for an extension of time of 32 days in which to renew his application for an extension of time of 5 months and 9 days. In addition, he applies for leave to call a witness pursuant to section 23 of the Criminal Appeal Act.
39.
Mrs James explains that her husband’s solicitor did not tell him how to appeal and he did not receive letters from the solicitor because they were sent to the wrong prison. They made enquiries of the CCRC and only then became aware that they had to come to this court first.
40.
The applicant was first arrested in 2000. He was interviewed in relation to allegations made by the complainant "NG". He denied the allegations in police interviews and was not prosecuted at that stage. He was re-arrested in 2012 in relation to offences allegedly committed against NG and another girl, "AB". The offending was alleged to have taken place between 1997 and 2000, when AB was 11 years old and NG was about 8 years old. Both girls said that, at the time, they had looked up to the applicant and to his wife. The prosecution case was that the applicant had taken advantage of such a relationship sexually to assault both girls when they visited his home. AB claimed that Mrs James was present in another part of the house on some occasions she was assaulted in the kitchen; NG was not sure whether Mrs James was in the house.
41.
The defence case was that no sexual impropriety had occurred and that contact had been appropriate and entirely innocent. Mrs James gave evidence that it was not possible her husband had abused either girl. The property in which they lived had been badly made and she would have heard whatever was going on wherever she was in the house. AB had never been alone in the kitchen with the applicant, there was no door to the kitchen, and that the door to the living room would never have been shut leaving AB and the applicant alone in the kitchen.
Grounds of Appeal
42.
Mr and Mrs James advanced the following grounds of appeal: counsel was given insufficient time to prepare for trial; the police lost tapes and papers from the 2000 arrest; the charges were altered in court; the applicant's disability was not taken into account; the applicant's medical condition in 2000 was not taken into account; counsel failed to ask questions about relevant matters; no evidence was sought or adduced in relation to doors in the property; NG had seen the applicant on three occasions since he was charged; during the trial the applicant was unable to gain the attention of counsel; counsel told the applicant he would have extra time to answer questions, but he was not given that time and this made him appear in a bad light; the contents of three psychiatric reports were not taken into account; the opinion of one of the psychiatrists that he should not be tried was not taken into account; nothing was said about the fact that no indecent material was found on his computer hard drives; there was a delay in holding the trial, and this was not taken into account; the applicant's wife was unable to be in court because of her disability and this adversely affected the fairness of the trial.
43.
The further grounds lodged included reference to the layout of the inside of the kitchen, the position of the kitchen door when closed, and the availability of a witness now to confirm this.
44.
In view of the criticisms made of trial counsel and solicitors, the applicant waived his privilege, and Mr Mark Smith explained that he took over the defence brief in unusual circumstances after the first witness had been examined in-chief. Counsel originally instructed had to leave to attend to a serious family emergency and the judge was unwilling to adjourn. Mr Smith assured this court that he was well able to take over the case at such short notice and in those circumstances. He is an experienced advocate. He did not feel underprepared or rushed. All parties were well aware of the applicant's medical condition, partly because the trial had to be adjourned for a day when the applicant fell ill. A close eye was kept on the applicant to ensure he was focused and well enough to continue. All the relevant details such as the local geography, the lay out of the house and the opportunity to assault were explored with the witnesses.
Conclusions
45.
Refusing leave to appeal conviction, the single judge gave a number of reasons, including the fact that the so-called fresh evidence did not raise any doubts about the safety of the conviction and it is not fresh evidence. He indicated the full court should consider making a loss of time order if the application was renewed. The applicant opposed such an order. He said this:
"I have never received this form prior to this one that was sent to my wife on 10 September. If, as requested, this was sent to my wife, you would have definitely had it returned in time as I am not guilty of the undated charges. Neither my wife nor I have any assets and my wife is living on our pensions. We cannot afford costs nor a solicitor."
46.
We agree with the judge’s observations in refusing leave and do not need or wish to expand upon them. The grounds are totally unmeritorious and are nothing more than an attempt to re-argue matters argued at trial. We endorse the observations of the court in
Gray & Ors
that unmeritorious applications of this kind take up the precious time and resources of this court that should be devoted to more meritorious applications. The only power that this court has to deter applications of this kind is to make a loss of time or a costs order. In this case, we consider it appropriate to make a loss of time order of 4 weeks or 28 days.
Ramchaitar
Background
47.
On 18 December 2003 at the Inner London Crown Court, the applicant was convicted of an offence of robbery and causing grievous bodily harm with intent. On 30 June 2003 at the same court he pleaded guilty on a separate indictment to another offence of robbery. He renews his application for an extension of time of 11 years and 10 months in which to apply for leave to appeal against conviction and for leave to rely on fresh evidence pursuant to section 23 of the Criminal Appeal Act. The fresh evidence is the expert evidence of Professor Timothy Valentine and evidence of Garvey Powell, his alleged co-accused.
48.
In support of the application to extend time, he relies on an alleged failure by his representatives to lodge an application in time. He claims that in 2004 he provided instructions to a firm of solicitors to lodge grounds of appeal but none were ever lodged. However, he has not explained the delay since that time.
Facts
49.
On 15 June 2002 at about 3 am the victim was in his taxi in London when he was brutally attacked by two men. One of them smashed the driver's side window; the other forced the offside door open. They shouted demands for money and the complainant was punched repeatedly to the face whilst his wallet was taken. In the course of the robbery the complainant struck the taller of the two men to the face with a torch. The complainant himself lost five teeth and required 24 stitches. The men ran back to their car where a third male was waiting and they drove away.
50.
A passerby called the police and provided a partial vehicle registration. Police officers saw a vehicle matching the description and partial registration and gave chase. The occupants stopped the vehicle, alighted and ran away. A police tracker dog unit conducted a search of the area and recovered a baseball cap and denim jacket. The prosecution case was that the applicant was one of the two assailants along with the co-accused, Garvey Powell. Powell pleaded guilty to robbery and causing grievous bodily harm.
51.
The prosecution relied on the following:
(i) the complainant’s evidence that both the men who approached his car were involved in the robbery;
(ii) the guilty plea of Powell;
(iii) CCTV evidence footage from which police officers positively identified the applicant as the shorter of the two assailants (as described by the complainant);
(iv) examination of a jacket discarded during the police chase that bore blood staining containing the applicant's DNA on the collar;
(v) the reaction of the police dog on finding the jacket indicating the jacket had been very recently discarded; and
(vi) an adverse inference from the failure to mention relevant facts in interview.
52.
The defence case was that the applicant was not present and the purported identification was mistaken. The jacket had been stolen from him in February of the previous year. The CCTV footage and the stills were of insufficient quality for an identification to be safely made. The complainant attended an identification procedure but failed to pick out the applicant.
Conclusion
53.
We do not need to rehearse the grounds of appeal against conviction or the grounds of opposition to the appeal set out in the Crown's helpful respondent's notice; it is sufficient to quote part of what the single judge said when refusing the applications. He combined the grounds with his observations:
"2. There is no adequate explanation for the delay in launching and pursuing this appeal. In particular there is unexplained delay in acting upon the initiation of an appeal by your solicitor in 2004; in seeking the assistance of BPP CAP in 2008/9; in applying to the CCRC in 2013; and in making the present application. Such explanation as is offered falls far short of the 'special and unusual facts' suggested as being necessary in
R v King
[2000] Cr App R 391
.
3. You seek to rely on a new expert report from Prof Timothy Valentine dealing with identification evidence. But there is no reason why such evidence could not have been adduced at trial. In any event, the jury would have been able to assess the images themselves and reach their own conclusion on the strength of the identification. The judge made it clear that it was open to the jury to reject Baldwin's evidence [a police officer who purported to identify him]. I see no justification for admitting this evidence now, 13 years later.
4. You seek to rely on a statement from your co-accused obtained many years after his conviction. But no good reason is offered for why this evidence could not have been adduced at trial especially given that Powell had already pleaded guilty. In any event, given the DNA on the jacket found nearby, Powell's evidence would not render the conviction unsafe.
5. You seek to raise an objection to the evidence from PC Manning related to his tracker dog. This is an argument that could, and should, have been raised at trial if there was any merit in it. But in fact I see no arguable case that the evidential basis which is required for such evidence, (as per
R v Pieterson
[1995] 1 WLR 293), was absent, given in particular the later statement of Manning dated 15 December 2003. Furthermore, the evidence of DNA on the clothing found near the scene would have been powerful, even without the tracker dog evidence as to likely time that the scent was deposited.
6. You contend that the identification evidence of DS Baldwin, the CCTV and still images ought to have been excluded under section 78 of PACE. Baldwin had spent substantial time considering the CCTV and photos and the judge was right to conclude that he was entitled to give expert opinion on that material. In any event, that was not the only evidence on the issue."
54.
We agree with those observations and we do not need to expand upon them. The applications for an extension of time, leave to appeal and leave to call fresh evidence are refused.
55.
The single judge indicated that the Full Court should consider making a loss of time order. However, we have been informed this morning by BPP Criminal Appeals Project that the applicant is has served both the determinate sentence of 9 years and the 4-year minimum period for the life sentence imposed for these offences. He remains in custody because he has been unsuccessful in his efforts to seek parole. In those circumstances, there is no point in making a loss of time order and we do not do so.
Solomon
Facts
56.
On 14 November 2011 in the Taunton Crown Court the applicant, now aged 69, was convicted of rape of a child, sexual activity in the presence of a child under 13 and sexual assault of a child under 13. He renews his application for an extension of time. Of 3 years, 6 months and 12 days in which to seek leave to appeal against conviction. He seeks permission to call a witness, and a representation order.
57.
The applicant was accused of raping an 8-year-old girl, "R", whose parents had allowed him to take her to buy sweets at a petrol station in 2007. It was said that he had taken her to a sports ground where he raped her vaginally and masturbated to ejaculation over her stomach (counts 1 and 2). A year or so later, the applicant was seen touching R around her bottom and on her legs under a table while they were at a party with her parents (count 3).
58.
Social services became involved and R spoke to a social worker but she did not make a full disclosure at that time. She eventually spoke to school friends and then a teacher in 2010. Police were informed, and on 15 October 2010 she gave an ABE interview. She was medically examined and no abnormal findings were made. The doctor stated that in the majority of cases where sexual abuse is being investigated, normal examination neither confirms nor refutes the allegation.
59.
The applicant, who was of previous good character, was interviewed under caution. He admitted taking the child to the sports ground in 2007 after he had driven her to the petrol station. He denied that anything untoward had happened. Similarly, he accepted that he sat next to her at a party in 2008 and that she had taken his hand at one point, but he denied touching her sexually. He gave evidence at trial maintaining those denials.
Grounds of appeal
60.
The applicant, with Mr Whetstone’s assistance, has advanced a number of proposed grounds of appeal. In summary, the grounds are there was an insufficiency of evidence against him and that the police investigation was inadequate; improper restrictions were put on cross-examination of the complainant; there was an unfair presentation of the medical evidence; pressure was placed on the jury to reach verdicts; and there is fresh evidence available capable of undermining R's account.
61.
The applications were out of time because the applicant had not understood that, following a negative advice on appeal against convictions, no further work was being done on his case. It was only when Mr Whetstone became involved that progress was made, although it took another two years to obtain the necessary information and evidence.
Conclusions
62.
The single judge considered there was no merit in the grounds. She gave detailed reasons for rejecting each proposed ground of appeal. Because the applicant was not legally represented, she considered whether there was any other basis for arguing that the convictions were unsafe. There was not. We agree with and endorse (but this being a renewal hearing do not repeat) the single judge's conclusions. We have also read and considered the further written submissions sent in after leave was refused which take issue with the decision. They do not add significantly or at all to the matters that the single judge has already considered. In addition, we have considered DVD footage, and photographs prepared for today's hearing.
63.
We accept that Mr Whetstone has gone to a great deal of effort to prepare his presentation for the court. However, he does not seem to understand the approach this court adopts to applications to advance appeals based on fresh evidence and to applications which are significantly out of time.
64.
The material submitted does not meet the criteria for ‘fresh evidence’ in this court. In truth, there is nothing ‘fresh’ about it. The points made are all points that could have been made and many of which were made at trial including R's limited recollection of the place in which she said she had been raped. We have considered the likelihood of raping a rape of a child in an exposed part of a sports ground where the applicant might have been observed by people in houses beyond a nearby field, the lack of precision with which the child recalled locations, the possibility that she may have been taken back to the scene by her parents before her ABE interview, questions asked by her mother and a police officer about the accuracy of her evidence about the location, and the potential inaccuracy in the time taken to walk from where the defendant admitted going into the sports ground to where R said she was attacked. These are all fairly characterised as jury points, and no doubt to the extent that they were relevant they were pursued at trial.
65.
In conclusion, there is no proper basis for arguing that the verdicts are unsafe. We refuse all the applications before us.
66.
We find the application as unmeritorious as the single judge did, and, although the single judge did not specify that this court should consider making a loss of time order, we repeat the observations of the court in
Gray & Ors
. This does not prevent the court from considering making such an order. The applicant will have been warned on more than one occasion that if he advanced an unmeritorious application he might suffer the consequences. In this case, for the reasons given earlier in the judgment, the consequences are that we make a loss of time order of 4 weeks, namely 28 days.