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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Brind & Ors, R v [2008] EWCA Crim 934 (16 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/934.html Cite as: [2008] EWCA Crim 934

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 16 April 2008

1. THE VICE PRESIDENT: These five applications have been listed together in order that this court can take the opportunity to reiterate the powers that it has under section 29 of the Criminal Appeal Act 1968 to order that a period spent in detention pending appeal should not count towards the serving of the sentence imposed by the court. In the case of R v Hart and others [2007] 1 CrAppR 31, this court set out once again its powers under this section but in relation essentially to applications relating to sentence. These applications all include applications for leave to appeal against conviction. The same principles apply, namely that if the application is without merit then this court will consider ordering that time served should not count for the good reason that the renewal of such an application has a significant effect on the work of this court and adds to the potential backlog of cases to the detriment of those who have legitimate arguments to put before this court.
2. As the profession now knows, the forms relating to appeals have been amended so that the form SJ now includes an opportunity for the single judge considering the matter under section 31 of the Criminal Appeals Act 1968 to indicate whether in his or her view that appeal is one which is without merit. Where that part of the form has been so completed by the single judge, the would-be applicant must expect that this court will order that time served should not count.
3. These particular applications do not raise that issue in the sense that they are not applications in which the form was so completed by the single judge. However, they do provide in one or two cases the opportunity to comment on the sort of matters which both the single judge and this court may well consider when the issue of exercising the power under section 29 arises. We turn then to each of the applications in turn.

Anthony Brind

4. On 20th November 2006 in the Crown Court at Cardiff the applicant pleaded guilty to possessing a controlled drug of class A (heroin) and driving whilst disqualified. After a trial he was convicted of possessing a controlled drug of class A with intent to supply. On 3rd May 2007 before the same constitution he was sentenced to four years' imprisonment on the counts relating to controlled drugs and four months' imprisonment consecutive in relation to the driving offence. The total sentence was accordingly four years and four months. He renews his application for an extension of time, approximately five weeks, for leave to appeal against conviction and sentence, after refusal by the single judge.
5. The facts for the purposes of this application can be very simply related. The offences arose out of observations carried out by police officers in Cardiff on 22nd August 2006 when a transaction took place between persons who were pedestrians and the applicant who was the driver of a car. The prosecution case was that when the applicant was arrested he was attempting to swallow a number of packages which contained drugs and that he had in fact been in the process of supplying drugs in similar packages to those he was seen dealing with by the police officers. The defendant's case was that the drugs were simply for his own use. The jury clearly disbelieved him and convicted him.
6. As far as the grounds of appeal were concerned, they were first that the evidence of the police officers was not clear in relation to what they saw, and secondly, that the evidence as to telephone calls which were made at about the time of the transaction which the prosecution found were by inference telephone calls from those in the street to a third person and then from that person to the applicant, should have been excluded.
7. The single judge, in our view quite rightly, concluded that that evidence was clearly relevant and admissible and there was no justification for excluding it under section 78 of the Police and Criminal Evidence Act. The applicant had the support of counsel in the first instance to make the application, but he has renewed without any advice from counsel and the only reason that he gives for renewing the appeal is because he repeats his denial of having been the offender. That in itself is no justification for renewing the appeal. It does not add in any way to the grounds upon which it is sought to appeal and we refuse leave to appeal against conviction.
8. As far as sentence is concerned, the single judge quite rightly said that four years' imprisonment after a trial for commercial street dealings in retail quantities is not arguably excessive. Counsel supported the sentence appeal in the first instance, relying on Afonso [2005] 1 Cr.App.R (S), which in our judgment simply did not give any basis upon which the sentence could be said to be arguably excessive. An appeal would have no prospect of success and this renewed application for leave to appeal against sentence is accordingly refused. It falls into the category of case where even where counsel has advised that the sentence was one which this court could interfere with, is one where the single judge would have been justified in indicating that it was totally without merit and given this court accordingly the basis upon which to make an order under section 29.

Michael Adu-Gyamfi

9. On 12th February 2007 in the Crown Court at Southwark the applicant was convicted of two counts of rape and was sentenced to imprisonment for public protection with a minimum term of five years, less 195 days served. He renews his applications for an extension of time (approximately three weeks) and leave to appeal against conviction and sentence after refusal by the single judge.
10. The facts again for the purpose of this application need not be set out in great detail. The counts on the indictment arose out of events of the night of 2nd/3rd August 2006 when the complainant, after a night's drinking, was ultimately in difficulties about getting home and was seen by the applicant walking in the street. She said that he had offered to help her, took her to his house and there raped her, both vaginally and orally. She eventually escaped and when she got back to her home she had bruises to her body. There were scratches and cuts on her stomach, finger bruises on her inner thighs and there were other signs that she had been subjected to violence. Her jeans were broken and there was damage to the belt loop.
11. The applicant when arrested accepted that he had taken the victim to his home, where he said that he had consensual sexual intercourse with her. She in fact offered him sex for money.
12. In the course of the trial an application was made by the prosecution to adduce by way of bad character evidence, pursuant to section 98 of the Criminal Justice Act 2003, evidence relating to two previous allegations of sexual offences made against the applicant but in respect of which he had been acquitted. In the first instance the judge concluded that he should not allow those matters to be put before the jury because they would be more prejudicial than probative, the prosecution at that stage only being in a position to put forward statements in relation to the events. However, they were then able to obtain the attendance of one of those complainants, who was available to give evidence, and the judge in respect of her allegations permitted the matter to be put before the jury. It was in those circumstances ultimately that the applicant was convicted.
13. The application for leave to appeal against conviction was based simply and solely on the fact that that evidence had been admitted by the judge. The single judge refused leave on the basis that the legal question had been considered by this court in R v L [2007] All ER 81 and accordingly there was no basis upon which this conviction could be impugned.
14. As far as sentence was concerned, the single judge concluded that these offences, which amounted to kidnap and rape, fully justified the sentence that was in fact imposed.
15. In the present case we can see no justification for the renewal of this application. The reasons given by the single judge were clear and correct and we would not have been surprised if the judge had indicated that this was a case in which the application was totally without merit and if he had done so we would undoubtedly have considered making the appropriate order under section 29.

Michael S

16. On 25th April 2007 at the Crown Court at Chester this applicant was convicted of 19 counts of rape and on 22nd May 2007 was sentenced to 15 years' imprisonment. He renews his application for an extension of time (one week and four days) for leave to appeal against conviction and sentence following refusal by the single judge.
17. The facts were that the applicant had carried out repeated serious sexual abuse of three of his daughters over a ten year period. The sexual abuse, as is so often the case, commenced with indecent touching and then escalated to sexual intercourse, both vaginally and anally. It was apparent from the accounts given by the three girls that it was not simply an occasional occurrence, it was a regular occurrence.
18. The applicant's defence was that he had never had sexual intercourse with any of his daughters; they had fabricated the allegations.
19. The basis of his appeal, which he mounted in person, was that the evidence was unreliable, that he had fresh evidence from witnesses who could support his defence, he identifies a number of people whom he says could give evidence on his behalf, but there is no statement from any of those potential witnesses, even though the single judge pointed out to the applicant that without such statements there was no possibility of this court being able to proceed to give leave to appeal, let alone to allow an appeal. He also submitted that he had been told by others that Social Services did not think that it was he who had abused the daughters and he made complaint about the way in which the matter was dealt with by his counsel.
20. The single judge gave full reasons for refusing the application for permission to appeal, pointing out that there was no proper reason given for the delay and therefore an extension of time would not ordinarily be granted, but that he had considered the merits and having considered the merits concluded that there was nothing in what the applicant had put forward which could possibly form the basis of a successful appeal.
21. Once again, this is a case in which we would not have been surprised had the judge indicated that the application was totally without merit and again we would have considered exercising our power under section 29 had he done so. The applications are refused.

Nazakat Khan

22. Khan pleaded guilty on 1st March 2007 at the Crown Court at Birmingham to conspiracy to burgle. His co-defendants at the trial were his brothers, Rayisat Khan and Mohammed Ishrat. He was sentenced to 45 months' imprisonment. He renews his application for an extension of time (six months and 12 days) and for leave to appeal against conviction following refusal by the single judge.
23. The prosecution case was that the applicant, together with his brothers, had carried out a substantial number of burglaries between February and June 2006, shortly after the applicant had been released from serving a custodial sentence for burglary. The offences were committed at night; and the burglars predominantly focused in the area around Stratford Road, Stoney Lane and Ladypool Road in Sparkhill, Birmingham. The premises targeted were commercial premises but also included churches. The value of the loss and the cost of repairing damage was in excess of £100,000.
24. The applicant's basis for seeking leave to appeal is that his counsel and solicitors acted contrary to his instructions. He had not accepted involvement in the conspiracy to burgle. He was prepared, he said, to plead guilty to two burglaries of supermarkets but no more than that. In view of those criticisms, counsel was asked, after the applicant had waived privilege, to provide information about what had in fact happened at the trial; and it is abundantly plain that the applicant had in fact made a full admission to counsel which justified the plea. First, all three brothers put forward a joint basis of plea which each of them signed, which identified 20 burglaries in total. That plea was accepted by the prosecution for the purpose of sentence. Further, counsel sensibly and in accordance with good practice got the applicant to sign a statement in the following terms:

"I, Nazakat Khan, have had the evidence in my case explained to me by my barrister and I have decided to plead guilty to conspiracy to burgle. This is my decision and I have made it of my own free will without any pressure from my defence team."

There is, in our judgment, no possible basis in those circumstances upon which this court could possibly interfere with the conviction which was on the basis of a plea of guilty and accordingly we dismiss this application. Once again, this is an application which had the single judge indicated that it was totally without merit we would have considered making an order under section 29. It should be said that we have today received further submissions from the applicant but they take the matter no further. They certainly do not support his application and accordingly, we do not extend time and refuse leave. In this case the delay is substantial and the judge was quite right in so concluding. Delay will always be a matter which can be taken into account when considering the exercise of the power under section 29.

Maurice Young

25. On 2nd January 2007 the applicant pleaded guilty to four charges of obtaining property by deception. On 16th January 2007 he pleaded guilty to handling stolen goods. On 19th April 2007 he was convicted of three counts of theft. He was sentenced to a total sentence of four years' imprisonment and in particular four years' imprisonment for the three counts of theft in respect of which he makes his application for leave to appeal against conviction and an extension of time of one month and four days. He also renews his application for leave to appeal against sentence, having been refused leave by the single judge.
26. As far as the appeal against conviction is concerned, that relates simply to the three counts of which he was convicted. The first was an offence which was committed on 30th May 2006 when a lady was having coffee at Marylebone Train Station. She placed her bag on the floor behind her seat and later realised that it had been stolen. CCTV footage showed the applicant at the cafe at the time that the bag was stolen and showed him in a position to steal that bag. The second count related to 19th September 2006 when the victim was in a Kentucky Fried Chicken restaurant in Notting Hill Gate. Her purse was stolen. The CCTV coverage showed that the purse was in fact taken by another man, Andrew Cunningham, but it was quite apparent that the applicant was assisting by shielding Cunningham from the victim's view. The third count, on 29th September 2006, occurred in the Churchill Hyatt Hotel in Portland Square. The victim had put her bag containing a laptop, purse and other items next to her and subsequently discovered that it had been taken. CCTV coverage showed the applicant and another man coming into the hotel and sitting directly next to the victim. The applicant could be seen pushing the bag towards the other man who picked it up and then both the applicant and the other man walked away. The applicant was identified on all these occasions by the police from the CCTV as he was well-known to them.
27. As far as those convictions are concerned, he has submitted that the CCTV coverage does not justify the conclusions which the prosecution sought to draw from them. In grounds of appeal of his own composition he submits that that is abundantly plain. The fact is, unfortunately for him, that the CCTV coverage makes good the prosecution case completely. There was no basis upon which he could possibly expect this court to interfere with those convictions. Accordingly, so far as his application for leave to appeal against conviction is concerned and the extension of time, those are refused.
28. As far as sentence is concerned, the sentence was undoubtedly a heavy sentence for theft. However, he has an appalling record and in the circumstances the judge was entitled to take the view that he was a persistent professional thief from whom ladies with bags should be protected. We conclude in those circumstances that whilst a severe sentence it is not arguably manifestly excessive and this court would not interfere with it.
29. However, so far as that sentence is concerned the application is not one which would have been considered in our view to have been totally without merit; but as far as the application for leave to appeal against conviction is concerned it was. Once again we would not have been surprised had the judge so indicated and we would have considered again exercising the court's power under section 29 in that regard had the judge done so.
30. For those reasons all these applications are refused.