The Court Of Appeal Threatens More Loss Of Time Orders For Hopeless Appeals
Practitioners considering whether to advise their clients to appeal against conviction or sentence should be more wary of loss of time orders, according to an analysis for 2 Hare Court. Judging by the number of cases in 2014, the Court of Appeal is engaged in another attempt to dissuade would-be appellants from renewing before the full court ‘unmeritorious’ appeals that have been rejected by the single judge. Such an order cannot be made where leave was granted.
The analysis was done by searching the Westlaw database for all cases since R v Fortean ( EWCA Crim 437) which cite Section 29 of the Criminal Appeal Act 1968. That is the provision which allows the court to order that some of the time an applicant has already spent is custody should not count towards sentence. In Fortean the court issued a detailed warning about loss of time orders. The Westlaw search may not have captured every case as it relies on whether the database is comprehensive, and whether it has been properly indexed, but the results certainly merit some attention.
In total, since Fortean (and including that case) the legislation was cited with reference to 13 defendants (including five in one case). Nine of those were in 2014, two in 2009, one in each of 2010 and 2012, and none in 2011, 2013 and, so far, in 2015. Of the nine in 2014, eight loss of time orders were made. In the case where no order was made (R v Horne  EWCA Crim 1253) there are signs that one would have been made but for something which is hinted at in the judgment, but not spelt out.
In the cases the Court has tried to impress two warnings on defendants considering an application. The first is that the applicant is not protected by being advised by counsel that an appeal is arguable. Second, similarly little or no protection is afforded where the single judge has not initialled (“ticked”) the box on the form, which invites consideration of an order if the application is renewed. Both of these warnings are now written into the Criminal Practice Directions (Amendment No.2 from 2014  EWCA Crim 1569 – click here for the consolidated version).
The final case in the 2014 sequence, heard on 16th December, repays further study. The applicant in R v Matulevicius  EWCA Crim 2820 had been convicted of conspiracy to handle stolen goods on what the court called “an immensely strong circumstantial case”. He was represented, and the single judge had not ticked the box on the form warning that a loss of time order should be considered if it was renewed. The Court ordered that three months he had served would not count towards his sentence.
This was the only case in 2014, which involved an applicant who was represented, and where the single judge had not ticked the box. The applicant’s representative submitted that had the box been ticked she would not have renewed the appeal. Gilbard J, giving the judgment of the court, was not impressed by that. He dismissed the submission [at 24] saying “we do not think that…is a point which much assists…the cause for the applicant”.
So how great are the risks of renewing an application? The first thing that should be said is that loss of time orders are still very rare. The court in Matulevicius referred to the case of R v Gray  EWCA Crim 2372, which predated it by two months and involved five applicants. In Gray the Court noted that in the year September 2013 to August 2014 there had been nearly 6,500 applications for leave to appeal. 1424 of those had been conviction cases. 245 had been given leave; a further 416 had renewed the application after refusal. There was no similar breakdown of applications to appeal against sentence, although it was noted that the number of renewals was much reduced where the single judge ticked the box.
Looking at the 2014 calendar year there appear to have been 8 loss of time orders in total, although it is possible there have been more which are not captured by the Westlaw database. Anecdotal evidence tends to support the contention that the figures are low; very few counsel have been involved in cases where an order was made, or happen to have seen orders made for unrepresented clients.
On the other hand, the Court does seem to be serious in its warnings about the lack of protection offered by advice from counsel, or the failure of the single judge to tick the box. Of the eight loss of time orders in 2014 three of the applicants were represented, and in two more cases the box had not been ticked.
The amount of time ordered to be lost appears to be creeping up too. In the four pre-2014 cases found, the losses were 4 weeks (2 cases) and 6 weeks (2 cases). In 2014 five applicants lost 3 months, one lost 2 months, one 56 days and one six weeks. Given that this applies to time actually served, the equivalent increase in sentence for the majority of the applicants was six months.
There is one further threat that the court could have made to unmeritorious applicants but pointedly did not. The power of the court to make an order where an application is renewed is well known. What is perhaps less well known is that the single judge has a similar power under s31(2)(h) of the Criminal Appeal Act. This power was referred to in Gray, where it was said that it had not been exercised since 2007 and that generally the single judges prefer simply to tick the box. Nothing in these cases suggests that the Court wants that power to be used more often.