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Directions for Loss of Time Served: Is the Court of Appeal losing its patience?

A recent decision in the Court of Appeal in R v Wilson [2014] EWCA Crim 2336 would seem to indicate an increasing risk to appellants being made subject to a loss of time direction even when acting on legal advice. The provision was bought in under section 29 Criminal Appeal Act 1968, where the Court of Appeal considers that a renewed application for permission to appeal (i.e. one that has been refused on paper by a single Court of Appeal Judge) is based on meritless grounds, it can order that the period (or part thereof) from lodging the appeal to its determination will not count towards the sentence, and in effect has to be served again. The provision has been sparingly used where legal advice to renew the appeal is present. In R v Herbert K [2005] EWCA Crim 955 the Court remarked that the power under s29 was “too little used” and again in R v Hart [2007] 1 Cr App 412 where a strong warning was given that appellants should “heed the fact that this court is prepared to exercise its power … The mere fact that counsel has advised that 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”. This sentiment was reiterated in the Practice Direction (Criminal Proceedings) of 3 October 2013. More recently in the case of R v Cole [2014] EWCA Crim 2370 the Single Judge, upon refusal of leave, had ticked the box indicating that a direction for loss of time should be considered. In this case such a direction was not made but a stark warning was given that if a Single Judge has indicated that this should be considered then Counsel should consider very carefully advising to renew the application.

In the case of Wilson the Court of Appeal came very close to ordering a direction for loss of time stating that “Legal advice gets you nowhere. If you lose on this sort of application you are always at peril. And this application was utterly hopeless”. However, the Court decided, in its discretion, that it would be unfair to the appellant to make such an order due to the progress he had made in custody.

Whilst the case of Wilson could be seen to represent a willingness of the Court of Appeal to make more directions for loss of time in meritless appeals in practice virtually all renewals to the full court are made upon Counsel’s advice. Until such directions are made more regularly this should be seen as a caveat advocatus, a fresh warning to practitioners.



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