Francesca Lewington looks at a recent Court of Appeal decision regarding loss-of-time orders and asks if this may lead to certain cases in which grounds of appeal are not pursued that ought to be


The Court of Appeal recently warned that positive advice from counsel will not safeguard an applicant for leave to appeal from a loss-of-time order.



When the Court of Appeal considers that a renewed application for leave to appeal is based on meritless grounds, it can order that the period, or part of the period, already served by the applicant should not count towards his sentence. This is known as a loss-of-time order, under section 29 of the Criminal Appeal Act 1968, and exists so as to deter applications that have no prospect of success and needlessly employ the time of the Court of Appeal.



In the recent case of R v Hart and ors [2006] EWCA Crim 3239, the Court of Appeal set out to 'indicate some of the circumstances in which it may well be appropriate to exercise that power'. The court stated that '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 without merit'. Though the Criminal Appeal Act does not prevent that power from being exercised where there has been advice from counsel, this warning from the Court of Appeal both constitutes a departure from the principles set out in earlier case law and has potentially problematic implications for solicitors and counsel giving advice as to the merits of a prospective appeal.



Prior to R v Hart, the question of loss of time served was last considered by the Court of Appeal in R v Herbert K [2005] EWCA Crim 955.



In that case, the applicant renewed his application for leave to appeal against conviction after refusal by a single judge. The single judge said that there were 'no grounds upon which the appeal could succeed', and the full court concurred. Crucially, there had been no positive advice on appeal from counsel.



The court then moved on to consider whether a loss-of-time order should be made. An order was made that the applicant should lose 14 days in consequence of his persistence with 'hopeless' appeals. The court also stated that it was of the view that the power under section 29 was 'too little used'.



The justification given for the making of a loss-of-time order is of particular significance. Their Lordships referred, at paragraph 16 of their judgment, to Practice Direction [1980] 1 WLR 270, issued by Lord Chief Justice Widgery. It stated that a loss-of-time order would normally be made by the single judge where grounds of appeal were not settled by counsel and supported by a written opinion. The inference of this was that the written opinion of counsel is something that an applicant, unlikely to have any legal training himself, is entitled to rely on. The applicant had 'had the opportunity for legal advice on the grounds' and had chosen not to take that opportunity. The Court of Appeal continued: 'Applicants who rely solely on ground they have drafted themselves... do so after they have received negative advice from counsel.'



It must be the case, therefore, that the Court of Appeal at this time considered the advice of counsel to be an appropriate safeguard for those who were considering an appeal against conviction or sentence. Where that advice had been negative, the applicant should have taken heed of the advice and as a result the court was justified in making a loss-of-time order against an unrepresented applicant. The natural consequence of such an argument is that the converse must also be true. Where an applicant has relied on the advice of counsel, he must be entitled to expect not to be punished for so doing.



It is now clear, however, that the above safeguard no longer exists.



Although the Court of Appeal avoided making a loss-of-time order in respect of either of the applicants in R v Hart, who had had positive advice from counsel, the judgment concludes with this warning: 'It should not be thought that this court will not exercise its power on other occasions even if there is an advice from counsel supporting grounds of appeal.'



Though the practice direction referred to in Hart, Practice Direction (Criminal Directions Consolidation) [2002] 1 WLR 2870, refers to the need for applicants and their legal advisers to bear in mind the power contained in section 29, it goes on to state that 'it is important that those contemplating an appeal should seek advice', presumably implying that any advice sought can be relied on.



A secondary, but related point, made by their Lordships was to remind counsel that the Court of Appeal does not have the power to increase sentence, only to order that time already served be lost.



Where, then, does this leave a solicitor who is approached by a client who asks for advice from counsel as to the merits of an appeal? Does he simply remind the client that counsel's advice, if positive, is no guarantee that a loss-of-time order will not be made? What is the client supposed to make of such advice?



In practice, of course, it will often be the case that either counsel provides very clear advice that there are no arguable grounds of appeal, or the grounds of appeal are quite clearly arguable and counsel has no reservations about advising that they contain some merit.



In such cases, the solicitor's position will be no more difficult than it has been up until now. The fact that a single judge has refused leave to appeal is also an indicator in many cases that an appeal should not be taken any further.



The outcome of R v Hart is likely to be that counsel becomes more cautious about advising in favour of an appeal, as the Court of Appeal must have intended. There have not yet been any subsequent reported cases in which the Court of Appeal has used its power to order loss of time despite positive advice from counsel. The judgment reveals some reservations on the part of their Lordships about the universal competence of counsel. This may be less than complimentary, but the Court of Appeal is under no duty to save the blushes of barristers.



However, it may be that as a result of this renewed caution, there will be certain cases in which grounds of appeal are not pursued that ought to be. This would be an injustice, and we are all under a duty to guard against such an outcome.



Francesca Lewington is a barrister practising from 2 Kings Bench Walk in London