Neutral Citation Number: [2010] EWCA Crim 1937
Case No: 200405129 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 29th July 2010

B e f o r e:

LORD JUSTICE LAWS 
 
MR JUSTICE TREACY
HONORARY RECORDER OF MANCHESTER 
HIS HONOUR JUDGE ANDREW GILBART QC 
(Sitting as a judge of the Court of Appeal Criminal Division) 
- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

v 

JAMIL AHMED

- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Non‑Counsel Application 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

RECORDER OF MANCHESTER:
1.	On 4th August 2004, at the Crown Court at Birmingham before His Honour Judge Faber, the applicant was convicted of one count of wounding with intent and sentenced to life imprisonment.  The period of 77 months was specified as the minimum term under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.  
2.	An application for leave to appeal against conviction was received on 8th September 2004, with grounds of appeal of the applicant's own composition.  The grounds of appeal criticise the conduct of his solicitors and counsel instructed at trial, who, as will appear presently, ceased to be so when they felt compelled to withdraw from the case.  The applicant was invited to waive privilege relating to those complaints and both solicitor and counsel wrote to the Registrar of Criminal Appeals, setting out their responses to the complaint.  
3.	On 28th January 2005 the single judge, Pitchers J, refused leave to appeal against conviction.  
4.	On 20th April 2005 the applicant signed a Form A, abandoning all proceedings in this court.  He now applies to have this abandonment treated as a nullity.  There has been provided a letter from the applicant's solicitors dated 6th April 2010 setting out the reasons he is said to have abandoned all proceedings in this court.  Also attached are an advice from counsel and grounds of appeal against conviction dated 23rd March of this year.  Neither contains any reasons in support of the application to treat the abandonment as a nullity.
5.	We start by setting out the relevant test for this court giving leave to withdraw a notice of abandonment.  It appears in the judgment of Lawson J, giving the judgment of a five judge court in R v Medway [1976] 62 Cr App R 85.  At page 98 Lawson J said this:
"The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the Court to say that that abandonment should be treated as a nullity, there co‑exists an inherent jurisdiction, in other special circumstances, enabling the Court to give such leave.  We are satisfied and hold that there is no such jurisdiction.  In our judgment the kernel of what has been described as the 'nullity test' is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment.  In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised.  Such headings can only be regarded as guidelines, the presence of which may justify its exercise."
6.	In Offield [2002] EWCA Crim 1630 this court (Judge LJ, as he then was, Hunt J and Keith J) included within that list "bad advice given by some legal advisor which has resulted in an unintended, ill considered decision to abandon the appeal". 
7.	Having set the tests, one asks: what are the facts here?
8.	The complaints of the applicant about the trial concern the fact that he was left to represent himself after his then counsel, Mr Strongman, withdrew from the case.  Although the judge appointed another counsel, Mr Taylor‑Camara, to cross‑examine witnesses so as to put matters to them and test their evidence, he was not instructed on behalf of the applicant.  The responses made by the solicitor and Mr Strongman after the application for leave to appeal was made show that the applicant refused to take advice from Mr Strongman on how the case was to be conducted and sought to insist on his cross‑examining a witness on the basis of a transcript which Mr Strongman knew to be erroneous and which, if not corrected, would lead to Mr Strongman misleading the court.  
9.	The single judge refused leave on the following grounds:
"It is quite clear from the statements of your solicitor and counsel that you conducted yourself and wished them to conduct your defence in a way which was at first difficult and then impossible.  Their account of what happened would be preferred to yours in the event of there being a dispute between the two.  
The various orders which were made about representation were proper and, indeed, inevitable."
He then concluded that the summing‑up was proper. 
10.	It was then for the applicant to decide whether or not to renew his application.  The current application, which consists only of a letter from his solicitor, contends that he was advised by Mr Taylor‑Camara that the accounts of his former counsel and solicitors were likely to be preferred to his, and that if he renewed his application he could end up losing time already served, and that as he was representing himself that was more likely to happen.  A firm of solicitors was apparently also contacted.  They gave advice in very similar terms, adding only that the court did not approve of appellants representing themselves.
11.	We have no evidence from the applicant in the form of a sworn declaration or affidavit.  Even if one took the letter at face value, the advice given was to the effect that an applicant pursuing an application, despite a refusal from the single judge and without his grounds being supported by counsel's or solicitor's advice, ran the risk of his losing remission if he failed.  We do not consider that was bad advice, but, even if it were, this application has adduced no evidence about the applicant's state of mind when he abandoned his appeal and it follows that we have no evidential basis upon which to conclude that the Medway test is satisfied.  Accordingly, we refuse leave to withdraw the notice of abandonment.