On 20 March 2014, the Court of Appeal (Criminal Division) dismissed an application by the defendant for permission to appeal against his conviction of two counts of sexual touching of a girl under 13 years of age, contrary to section 7(1) of the Sexual Offences Act 2003.
Interestingly, this case involves the use of a seldom exercised power under section 20 of the Criminal Appeal Act 1968 allowing the Court of Appeal, on a reference by the court registrar, to summarily dispose of a notice of appeal or application for leave to appeal does not show any substantial ground of appeal
The defendant, whose defence at trial was that the allegations were the result of collusion by the complainant and her relatives, gave a no-comment interview. Following his conviction, his counsel (whose advocacy had been commended by the trial judge) advised against applying for permission to appeal. The defendant instructed new solicitors but they took no further action.
Further solicitors were then instructed, who applied for permission to appeal on the ground that hearsay evidence had been wrongly admitted into evidence at the trial. However, following an examination of the transcript of the trial, it transpired that no hearsay evidence has in fact been admitted. The defendant’s solicitors at this point conceded that the application was misconceived.
A second application was submitted, the author of which was aware of the first application. However, the second application made no mention of the first application (Lord Thomas CJ noted that this was a serious omission which the Solicitors Regulation Authority should investigate).
The gist of the second application was that the defendant had not been told that he could waive privilege and explain to the try why he solicitors had advised him not to respond to questions during the police interview. The Court of Appeal office had written to counsel and solicitors present and the trial, the replies of which made it evident that the proposed ground on the waiving of privilege had no prospect of succeeding.
Lord Thomas CJ held that the application was frivolous and vexatious because of (a) the serious no disclosure of the first application in the second application and (b) the second application was bound to fail at any rate. His Lordship said that cases involving assertions of incompetent representation were not infrequent, but often no inquiries were being made of the lawyers (both counsel and solicitors) concerned. His Lordship said that it was not permitted to rely on the word of the defendant alone in such cases and that proper steps had needed to be taken in order to ascertain whether there was a cogent objective basis for a proposed ground of appeal of incompetent representation.
Lord Thomas said that the use of the power under s 20 of the Criminal Appeal Act 1968 was rare (the power was used in R v Davis  EWCA Crim 2424), but would be used more frequently if cases of this sort continued to come before the court.