Neutral Citation Number: [2009] EWHC 1711 (Admin)

Case No. CO/4931/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 26th June 2009
 
B e f o r e: 

MR JUSTICE COLLINS 
Between: 
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THE QUEEN ON THE APPLICATION OF 
DEMBO GOUMANE 
Claimant 
v 

CANTERBURY CROWN COURT 
Defendant
and

CROWN PROSECUTION SERVICE
Interested Party 
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Computer‑Aided Transcript of the Stenograph Notes of  
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A Merrill Communications Company 
265 Fleet Street  London EC4A 2DY
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(Official Shorthand Writers to the Court)
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Paul Jarvis (instructed by Haskell & Co) appeared on behalf of the Claimant 
The Defendant was not represented and did not attend 
The Interested Party was not represented and did not attend 
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J U D G M E N T 

1.	MR JUSTICE COLLINS:  The claimant in this case is a Frenchman, now 23 years old.  He came to this country seeking work.  Unfortunately, his activities in this country have involved the commission of a number of criminal offences.
2.	On 12th April 2009 he became involved in an argument with a police officer.  During the course of that argument he assaulted the officer, having abused him in obscene terms, according to the observations of the Recorder.  The assault was in the form of a headbutt, and it was accompanied by further verbal abuse.  
3.	The claimant was accordingly arrested.  He admitted in interview, which was conducted with the assistance of an interpreter, that he had assaulted the officer.  He was in due course charged with two offences, one of assault on a police officer in the execution of his duty and the other of using threatening, abusive or insulting words or behaviour contrary to section 5 of the Public Order Act.  
4.	He was then remanded in custody.  He appeared before the justices on 14th April 2009.  He pleaded guilty and was then sentenced to a total of 30 days' imprisonment.  He gave instructions to appeal against that sentence.  That appeal is as of right.  An application for bail pending appeal was granted, subject to conditions which, in the end, the claimant could not meet, so he remained in custody.  
5.	The appeal was listed before the Canterbury Crown Court on 27th April 2009 before a Recorder, Mr Sheridan, and two justices.  He was represented by his solicitor.  On the previous day he had discovered that he was due to be released on licence on 28th April 2009, the day after his appeal was due to be heard.  He took the view, not surprisingly, that there was little point, in the circumstances, in pursuing the appeal.  In fact there was, at least in theory, the possible point that if the sentence was reduced it would mean that he would not be on licence for a short period of time.  In any event, that was the decision he reached and he instructed his solicitor that for that reason he no longer wished to pursue the appeal, so he wanted to abandon it.  The Crown Prosecution Service representative was informed and did not indicate that he would oppose that application.
6.	The relevant provisions which deal with abandonment of an appeal are contained in rule 63 of the Crown Court Rules.  They have recently been amended.  I think sometime towards the end of 2008 the relevant amendment came into force and abandonment of appeal is now dealt with by rule 63.8.  
7.	Paragraph (1) reads:
"(1) The appellant –
(a) may abandon an appeal without the Crown Court's permission, by serving a notice of abandonment on –
(i) the Magistrates' Court officer 
(ii) the Crown Court officer, and 
(iii) every other party 
before the hearing of the appeal begins; but 
(b) after the hearing of the appeal begins, may only abandon the appeal with the Crown Court's permission."
Then there are various provisions about what must be contained in the notice of abandonment, which I do not need to read.
8.	It is to be noted that the Recorder, who has given reasons for the decision that he reached, was referred to the predecessor of rule 63.8, which was then rule 63.5.  That had slightly different provisions, because it required, by paragraph (1):
"Without prejudice to the power of the Crown Court to give leave for an appeal to be abandoned, an appellant may abandon an appeal by giving notice in writing in accordance with the following provisions of this rule, not later than the third day before the day fixed for hearing the appeal."
9.	The requirement to give 3 days' notice has now been abolished and, as Mr Jarvis points out, it would be open to an appellant to give the necessary notices, because he can serve the Magistrates' Court officer by fax, can serve the Crown Court officer because he will be at the Crown Court, and will serve the CPS, who normally would be the other party, because they would be present at the Crown Court, up to minutes before the appeal was called on.
10.	That did not happen in this case, but when the appeal was called on and his identity was established, his solicitor indicated to the court that he wished to abandon the appeal.  The court then refused to allow that to happen.  The reason why, it seems, the court refused to allow it to happen was because it had formed the preliminary view that the sentence that had been imposed by the magistrates was too lenient, because, in the end, having heard the appeal, it increased the sentence from one of 30 days to one of 90 days, the Crown Court having the power to increase sentence if it feels that it is right so to do.
11.	Mr Jarvis submits that it was, in the circumstances, not permissible for the court to refuse to allow the appeal to be abandoned.
12.	In his reasons for acting as he did, the Recorder refers, wrongly, to rule 63.5 and the 3 days' notice.  He indicates that the appeal had been called on and that it had commenced with the identification of the appellant, after the interpreter was sworn.  It was at that point that it was said that the appellant did not intend to pursue the appeal.  The Recorder referred to the court having allocated time, having brought in justices, having prepared papers and, as he put it, the appeal having commenced with the identification of the defendant.  The advocate was asked if there were any good reasons why the court should grant leave for the appeal to be abandoned.  According to the Recorder, no good reasons were forthcoming, save for the fact that the appellant had decided not to proceed with his appeal because he believed he would be released shortly thereafter.
13.	The Recorder indicated that in his view appeals in respect of which court time had been set aside should take their natural course, that it was a hearing de novo and the sentence could be increased, so the court should hear the appeal because it was a matter of public interest that the correct sentence should be imposed.  He also stated that once the court was seized of an appeal, it was entitled to continue to determine it and an appellant could not simply frustrate an appeal by announcing that he no longer wished to pursue it.  
14.	That is, with respect, not an approach which is a proper one.  It is not a question of frustrating an appeal in this case, because there was a good reason for the appellant to take the view that he did.  
15.	The Recorder concludes that it was clear that this was an unmeritorious appeal and it was tactically sought to be abandoned at the last moment, and after the appeal had been commenced.  
16.	That, with respect to the Recorder, is a wholly unjustified comment on the basis of the reasons why the decision was made not to pursue the appeal.  It was reasonable for the appellant to consider that, as he was due to be released the following day, there was little point in pursuing the appeal against the sentence.
17.	What, then, is the correct approach of the court in this situation?  The matter has been considered by this court in R v Manchester Crown Court, ex parte Welby [1981] 73 CrAppR 248.  That was a case which was considered under the Crown Court Rules of 1971, which were then in force, rule 9.1 of which provided:
"Without prejudice to the power of the Crown Court to give leave for an appeal to be abandoned, an appellant may abandon an appeal by giving notice in writing not later than the third day before the day fixed for hearing the appeal." 
18.	It is apparent it is in the same terms as rule 63.5 was, and in the same terms, subject to the removal of the need for 3 days' notice, as the present rule 63.8.  
19.	In that case the applicants (there were two of them) were involved in an incident which resulted in an assault on a Police Constable, and the other apparently was charged with wounding with intent.  For some reason, it is not entirely clear, both were tried summarily — I say that because wounding with intent is not, and never has been, a summary offence, but that may simply be an error in the headnote — and each was fined.  
20.	One of the applicants got some rather poor advice from his solicitor that he should appeal against that sentence to the Crown Court and both did so.  When they got to court, counsel advised them to abandon their appeals, because the sentences imposed by the justices were lenient and the Crown Court had power to increase the sentences.  They did not comply with rule 9 of the Crown Court rules.  They could not, because the advice was given when they appeared at court before the hearing.
21.	At the hearing counsel for the applicants applied for leave to abandon and the judge said no.  In fact, the appeal proceeded and counsel's advice was entirely correct, because the court substituted for the fines sentences of 3 months' imprisonment.
22.	Having set out the circumstances, the court referred to the arguments put forward and the rule then applicable and concluded thus (on page 252 of the report):
"The next point is whether the judge exercised his discretion correctly in declining to give leave when the application was made and before the hearing commenced.  It seems to me that this is the place where the two decisions which I have cited, namely De Coursey and Gibbon do have the effect of assisting the applicants.  It seems to me that it would only be in the most exceptional circumstances that the judge would be entitled to decline to give leave to abandon where the application is made before the hearing begins.  Once the hearing has started, then it will only be in exceptional circumstances that leave will be granted.  The question therefore remains whether there was anything exceptional or extraordinary in this particular case which would justify the judge in reaching the decision that he did, namely to decline to allow the abandonment.  Speaking for myself, I can see no such exceptional circumstances.  It is true the applicants were lucky in the sentence which was imposed upon them by the magistrates, but that does not seem to me to be a proper ground for refusing to allow the appeal to be abandoned." 
23.	The question then is "What is the commencement of the hearing?", because the present rule refers to the hearing beginning — "an application before the hearing of the appeal begins" — and Welby uses the same language.  It referred, among other decisions, to De Coursey [1964] CrAppR 323.  The headnote in that, which was cited in Welby, reads:
"If an appellant or his counsel does not abandon an appeal orally when it is called on, he cannot as of right abandon it after it has been opened, whether the appeal is against conviction or sentence.  It can be abandoned in such circumstances only by leave of the court."
24.	The facts of Welby, so far as material, are not perhaps entirely clear as to precisely what stage had been reached.  All the court said is this:
"Both applicants accepted that advice [the advice of counsel].  Learned counsel then stood up before the judge at the Crown Court and asked for leave to abandoned the appeals.  The judge was informed of the course of the events, namely advice the solicitor had given, and also, quite candidly, of what had happened to make the applicants change their minds.  The judge declined to allow the appeals to be abandoned." 
25.	It is improbable, to say the least, that counsel would have stood up before the appeal was called on.  The fact that an appeal is called on and an appellant is identified does not, in my judgement, mean that the hearing has begun.  
26.	The rationale behind the decision in Welby, as I see it, is that if a decision is made by an appellant before he gets into court that he wishes to abandon his appeal for whatever reason, and that indication is given when he is identified as the appellant, before anything has happened to pursue the appeal, no opening of any sort by the Crown, no indication to the judge as to what are the circumstances of the offence which has led to the hearing, then the hearing has not begun.  
27.	Once the judge has been informed of the circumstances, the prosecution, perhaps, has opened, then one can well understand that normally it would not be permissible for an appeal to be abandoned simply because, perhaps, an appellant thought that things were not going as well as he had hoped, or that the way in which it had been opened, and the response of the court to it, made things look rather black for him and, therefore, he did not wish to pursue the appeal.
28.	I am thus entirely satisfied that this was a case where, following Welby — and it has not since been disapproved — it would only be in exceptional circumstances that the court should refuse to permit the appeal to be abandoned.  There are no such exceptional circumstances in this case, certainly no more than in the case of Welby, which bears considerable similarity to the circumstances of this case.  
29.	The matters relied on by the Recorder are not proper matters which should have affected his decision to refuse to allow the abandonment.  I am satisfied, in those circumstances, that his decision was wrong in law and that this court should intervene and that that decision should therefore be quashed.
30.	The effect of that is, so far as this court is concerned, that he will no longer be on licence, because the 30 days would have expired before now.  What other remedy he may or may not have is not a matter for me.
31.	MR JARVIS:  My Lord, there are two brief matters if I can.  The first is that in the skeleton argument I point to the case of T v B and Revenue & Customs Prosecution Office, because what your Lordship has done is quash the decision refusing ‑‑
32.	MR JUSTICE COLLINS:  That is all, I think, I can do.  The effect of that means that what resulted from that, namely the increased sentence, disappears.
33.	MR JARVIS:  There may be an argument that one could have about that about whether, in fact, having quashed the original decision, the Crown Court should then be invited to reconsider in light of the law as it is correctly understood.
34.	MR JUSTICE COLLINS:  You say you refer to that in the skeleton argument? 
35.	MR JARVIS:  I do, at paragraph 22. 
36.	MR JUSTICE COLLINS:  I am not sure I have your skeleton argument, as opposed to grounds.
37.	MR JARVIS:  Your Lordship's colleague had a copy of our bundle before you came. 
38.	MR JUSTICE COLLINS:  I have the bundle.  Let me check.  I do not have your skeleton argument, I am afraid.
39.	MR JARVIS:  I can tell your Lordship very briefly what it says.  I apologise for that.  There was a copy before the court (inaudible).
40.	MR JUSTICE COLLINS:  These things sometimes happen.
41.	MR JARVIS:  The issue arose in a case not terribly dissimilar from this one.  The court was concerned about whether it can quash a decision of the inferior tribunal.  Does it have to remit it to that tribunal for reconsideration?  In that particular case, a decision of the Family Division, the court took the view that section 8(1)(a) of the Supreme Court Act 1981, which provides, so far as is relevant here that: 
"The jurisdiction of the Crown Court shall be exercisable by—
(a) any judge of the High Court..."
meant that in cases where the High Court was exercising jurisdiction over the Crown Court, a judge of this court could become the judge of the Crown Court and make a decision that it would otherwise be inviting the Crown Court to make.
42.	MR JUSTICE COLLINS:  That is one way of looking at it, I suppose.  I think there is power simply to quash, if that is appropriate.  One sends back for reconsideration if there is something to reconsider, but there is nothing to reconsider here; they ought to have allowed the abandonment.
43.	MR JARVIS:  I am grateful for that, my Lord.  It is just so it is on record. 
44.	MR JUSTICE COLLINS:  If you like — perhaps as a belt and braces — I will indicate that, sitting as a judge of the Crown Court, or exercising jurisdiction as a judge of the Crown Court, I will direct that the sentence imposed on the appeal be quashed.
45.	MR JARVIS:  Thank you.  
46.	The other point was in the remedies that were sought in the claim form.  One of them was for an award of damages to compensate him for the period of what we say would be unlawful detention, which had run from the date that he would otherwise have been released. 
47.	MR JUSTICE COLLINS:  That is not for me to consider now.  What I think you will have to do is to put that claim in writing.  I will put it over to a master.  You will have to serve the Crown Court with the claim and, if you want to pursue it, go from there.
48.	MR JARVIS:  Very well.
49.	MR JUSTICE COLLINS:  It is not entirely attractive, but there we are.
50.	MR JARVIS:  No, my Lord.  Can I leave it in this way, we will inform Mr Goumane of the result, inquire of him whether he wishes to pursue that claim and, if he does, then we will revert to the master.  I suspect he is unlikely to want to take any further action in regards to this claim.
51.	MR JUSTICE COLLINS:  I think he would be well advised, as things have turned out. 
52.	MR JARVIS:  I will make sure I pass that on.  There is not anything else that I want to raise.
53.	MR JUSTICE COLLINS:  You are legally aided, I take it? 
54.	MR JARVIS:  We are.
55.	MR JUSTICE COLLINS:  So you will want the usual order. 
56.	MR JARVIS:  Yes, please.
57.	MR JUSTICE COLLINS:  It is not normal, as you know, to award costs against a court in this sort of situation, and the CPS has not come along to seek to uphold it.
58.	MR JARVIS:  No.
59.	MR JUSTICE COLLINS:  So I fear that the legal aid fund will bear the costs.
60.	MR JARVIS:  I am afraid so.