Court of Appeal Criminal Division
Published February 16, 2007

Regina v Hart
Regina v George
Regina v Clarke
Regina v Brown

Before Lord Justice Latham, Mr Justice Mitting and Mr Justice Teare
Judgment December 13, 2006

Where a renewed application for leave to appeal against conviction or sentence was made and that application was totally without merit, the Court of Appeal was likely to exercise its power under section 29 of the Criminal Appeal Act 1968 to order that a period of time spent in custody by the applicant since sentence would not count towards his sentence. The court could exercise that power even if counsel’s advice supported grounds of appeal.

The Court of Appeal, Criminal Division, so stated when refusing renewed applications by Clifford Hart, Christabelle George, Jason Clarke and Darren Brown, for leave to appeal against their sentences, following refusal by the single judge. No appearances for the applicants or the Crown.

LORD JUSTICE LATHAM, delivering the judgment of the court, said that the court was concerned that a substantial number of applications for leave to appeal against conviction or sentence which were totally without merit were taking up the time of single judges and being renewed to the full court, despite the guidance in Practice Direction (Criminal Proceedings Consolidation) ([2002] 1 WLR 2870) and R v Herbert (unreported [2005] EWCA Crim 955), that such applications should not be brought.

It was therefore necessary for the court to exercising its power under section 29 of the 1968 Act more frequently than it had in the past.

Hart had no reason to justify renewing his application for leave to appeal, having been firmly and clearly told by the single judge that it had no merit. Accordingly, 28 days of the period spent by him since conviction would not count towards sentence.

George had had the benefit of counsel’s advice that were grounds of appeal and the court would not exercise its section 29 power.

Clarke’s application was entirely without merit and taking into account counsel’s advice to that effect and a clear statement by the single judge, an order under section 29 would be made that 28 days of the period served would not count towards sentence.

Brown’s application for leave was entirely without merit. However, it was not appropriate to exercise the court’s section 29 power, as advice from counsel indicated an arguable criticism of part of the sentence but counsel had not appreciated that consideration was given to the totality of the sentence.

The mere fact that counsel had advised the applicant that there were grounds of appeal would not always be a sufficient answer to whether an application for leave was totally without merit.

The court could exercise its section 29 power even if counsel supported grounds of appeal.

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