The case of R v Gray and Others [2014] EWCA Crim 2372 handed down on 7 October 2014 again warns practitioners and defendants of the risk of applying for leave to appeal at the Court of Appeal. The case, which dealt with five application ‘renewals’, that being those where permission had been already refused once and was being sought before the full Court, highlights the court’s power under section 29 of the Criminal Appeal Act 1968 to impose loss of time orders, meaning that time already served by those defendants in prison can be treated as if no time has been served thereby extending their sentences as a penalty for filing an unmeritorious appeal.

The judgment, read by Lady Justice Hallett DBE, made it clear that these applications “raise yet again the question of when it is appropriate to make a loss of time order”. She referred back to the case of R v Jerry Fortean [2009] EWCA Crim 437 which provided useful guidance on this matter. This case highlighted the number of cases then before the Court, in which leave for appeal was sought. In her judgment, Hallett LJ highlighted that the problem had not resolved itself in 5 years. From over 6,000 applications for leave to appeal being made in 2009, Hallett LJ stated that the figures for September 2013 to August 2014 show nearly 6,500 applications being made per year, resulting in a waiting time for conviction appeals of approximately 12 months.

The case of Fortean stressed that “An appeal is not built into the trial process but must be justified on properly arguable grounds”. However, as Hallett LJ stated “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”. In simple terms, by invoking a loss of time order penalising defendants by making them serve more time, or by imposing a costs order (often difficult where defendants remain in custody).

The Court highlighted that in fact the power to impose a loss of time order does not simply apply when a renewed application is made but that a single judge has a similar power to make a loss of time order under s31(2)(h) of the Criminal Appeal Act. It may be for this reason, the Court reminds the defendants of the sections from the Fortean case which stressed how the form on which an application for leave to appeal is initially made carries a warning “in bold letters” that if an application is “plainly without merit” this may result in a loss of time order (a similar warning was shown on the form to elect to renew application for permission).

Hallett LJ acknowledges that this power has not been exercised since October 2007 and that single judges “generally prefer to initial a box on the form to indicate that if the application is renewed, the Full Court will consider making the loss of time order” (albeit, it is stressed, it is not imperative that such a box is ticked as failure to do so does not deprive the Full Court of the power to making of a loss of time order).

One important aspect of this judgment, highlighted by Hallett LJ, as stated in Fortean, is that having counsel or solicitors instructed in such applications “will not necessarily avoid such an order if there was no justification for continuing the case”. The judgment takes this further and confirms that “the mere fact that counsel has advised there are grounds of appeal will not always be a sufficient answer to the question as to whether or not an application has indeed been brought which was totally without merit”. They remind the reader of the Criminal Practice Direction Amendment No 2 issued by LC Justice in July 2014 (68E.1 and 2) which repeated such warnings.

The Court’s view is clearly that “in every case where the court is presented with an unmeritous application, consideration should be given to exercising these powers”. Loss of time orders cannot be given where the trial judge has given a certificate for leave to appeal or if the Criminal Cases Review Commission refers a case and if it does decide to make one then it must give reasons. However, reasons do not, it seems, need to be very detailed. This Court held that the following statement would suffice “Despite being warned of the court’s power to make a loss of time order, the Applicant chose to pursue a totally unmeritious application which has wasted the time of the court. Such applications hamper the court’s ability to process meritorious applications in a timely fashion”.

The Court then reviewed the five applications before it; Gray, “doomed to fail” despite counsel’s advice on the renewal (2 months loss of time order awarded); Crawford, an appeal of his “own composition” (3 months loss of time order awarded); Ridley, a “totally unmeritorious application” despite advice on appeal from his solicitors and on which the applicant stated he was waiting material from his solicitors (3 months loss of time awarded); Harris, another appeal of his “own composition”, the application of which “is totally without merit” (three months loss of time order awarded); and UDU, advancing his “own grounds of appeal” which in themselves remained “extremely voluminous and unclear” and “totally without merit” (3 months loss of time order awarded). Whilst each of the above cases are clearly fact specific and relate to the specific actions of those defendants, it is clear that the Court has taken a view that loss of time orders should be more frequently ordered, and that defendants should not seek protection from counsel’s advice in order to avoid a loss of time order being made. A useful reminder therefore of the risks of appealing and that “An appeal is not built into the trial process but must be justified on properly arguable grounds”. All criminal practitioners need to take note of this case when advising on appeals.