Wednesday Law Report: Power of full court to extend time to renew

6 May 1999 Regina v Dixon Court of Appeal (Lord Justice Laws, Mr Justice Garland and Judge Crane) 13 May 1999

THE FULL court was not precluded by rule 12(4) of the Criminal Appeal Rules 1968 from considering the grant of an extension of time in which to renew an application for leave to appeal after the single judge had refused an extension.

The Court of Appeal granted Leon Dixon leave to appeal against his conviction on 12 February 1998 at the Inner London Crown Court of supplying a Class A drug.

On 15 July 1998 an oral application for leave to appeal against conviction and sentence was made on the applicant's behalf. The judge's decision refusing leave to appeal against conviction but granting leave to appeal against sentence was communicated in writing to both counsel and solicitors on 5 August.

Counsel wished to take instructions from the applicant before renewing the application for leave to appeal against conviction in order to warn him that, if the court took the view that the application was unmeritorious, there was a risk that it might order that time spent in custody as an ap- pellant should not count towards sentence.

It was not possible for solicitors to see the applicant until 27 August. On 28 August, outside the 14-day time limit, a renewal notice was served on the Registrar of Criminal Appeals together with a covering letter explaining the reasons for the delay and asking for the necessary extension of time.

An extension of time was refused by the single judge, so that by virtue of rule 12(4) of the Criminal Appeal Rules 1968 the application was treated as "having been refused by the court".

At the hearing of the applicant's appeal against sentence counsel sought to persuade the court to reopen the single judge's refusal of an extension of time. The matter was eventually adjourned for full argument on behalf of both the applicant and the Crown.

Nicholas Bleaney (Kaim Todner) for the applicant; Adrian Darbishire (Crown Prosecution Service) for the Crown.

Mr Justice Garland said that there was an anomalous situation: under section 31 of the Criminal Appeal Act 1968, if the single judge refused to extend the time within which a notice of appeal or application for leave to appeal might be given, the appellant or applicant was entitled to have the application determined by the full court. If, however, a judge refused to fix a longer period of time for the service of a notice to renew, the applicant was not entitled to have his application for an extension of time determined by the full court because, under rule 12(4), it was treated as having been refused by the court.

The 1968 Act defined the powers and duties of the Court of Appeal, Criminal Division. Those powers and duties were exercised by the court. Section 31 of the Act, which was described as "supplementary", allowed a single judge to exercise the powers of the court specified in sub-section (2).

Those included not only giving leave to appeal and extending time within which notice of appeal or of application for leave to appeal might be given, but extended to other orders which could all properly be described as interlocutory. They were subject to sub-section (3), which entitled the appellant or applicant to a determination by the full court if the single judge refused to exercise the powers of the full court delegated to him.

Could it be said that, by a rule made under powers contained in the statute itself, the power of a single judge to extend time was included incidentally in a rule concerned with the service of notice but not included in section 31(2)? Unless the statute restricted the power of the full court to determine what had been, by an indirect route, delegated to a single judge, that power must remain notwithstanding the wording of rule 12(4).

Moreover, both as a matter of construction and of consideration of the vires of the rules, rule 12(4) could not have the effect that it purported to have, to preclude the full court from determining whether or not an extension of time should be granted for the service of a renewal notice.