Appeals – The Appellant Who Absconds
Today’s papers report that speedboat killer Jack Shepherd has won the right to appeal his conviction. There is nothing odd in that, save for the fact that Shepherd absconded and has yet to start serving his 6-year prison sentence, handed down in his absence.
Until relatively recently the Court of Appeal would stay an appeal where the applicant had absconded. In Jones (1971) 55 Cr App R 321 the court held:
‘…save the most exceptional cases the proper time for a defendant to take advice as to the prospects of an appeal, and to give instructions to his solicitor to initiate appeal proceedings, is after conviction and sentence. Equally, that is the proper time for his solicitors to receive such instructions. In a case where a defendant has, by absconding in the course of his trial, put it out of his power to give such instructions at the proper time, this Court will as a general rule take the view that his solicitors have not been duly authorised to prosecute appeal proceedings on his behalf. That is the view which the Court takes in this case and accordingly it follows that the notice of application for leave to appeal is not a valid notice and no further proceedings can be taken upon it.’
However, that judgment did not deal with the situation (quite possibly the one in the Shepherd case) where the appellant had absconded but was still in touch with his legal team.
In Charles and Tucker [2001] 2 Cr App R 15 the Court of Appeal considered an appeal very much similar to Sheppard, as the solicitors, in that case, made clear that:
‘…Mr Tucker had been in contact with this firm since absconding by the media of letter, telephone and e-mail. Use of these media has enabled Mr Tucker both to receive advice and give instructions. He remains in touch by e-mail. I can both send and receive communications by this medium.’
The court ruled:
‘…we take the view that a single judge or the Full Court is entitled (but not bound), to conclude that the legal representatives submitting the application for permission have the actual or implied authority so to do. The applicant might have wished grounds to be advanced further to those which his legal representative decides to advance. That must be a risk which he takes. Nor do we think that it is appropriate for the Registrar in future to treat an application in these circumstances as ineffective.’
In the more recent case of Okedare [2014] EWCA Crim 228 the court held:
‘…applications from absconders should not be treated as ineffective per se. If there are grounds for believing an absconder has given authority to appeal, expressly or impliedly, or the case is one where the Court might wish to intervene in the interests of justice, the Court should proceed as normal. The application should be put before the single Judge. The single Judge may adjourn the application for more information, grant/refuse leave or refer the application to the full Court as usual.
If the single Judge is satisfied there is no authority to pursue an application for leave and the application is not one the Court would wish to entertain, she or he has the power to treat the application as ineffective and time will continue to run. However, we would expect orders declaring an application ineffective and orders staying applications brought on behalf of absconders to be the exception rather than the norm at this stage.
However, it remains the professional responsibility of the lawyer to highlight the fact their client has absconded for the benefit of the Criminal Appeal Office and the single Judge. He must provide a full account of the circumstances of the absconding (with updates if necessary) coupled with an explanation for the basis for the assertion of authority and/or any reason why the Court would wish to entertain the application.
We see no reason to differentiate between applications for leave to appeal against conviction and sentence.’
Accordingly, whilst the development in Shepherd’s case might surprise most of the tabloid press, it is one well established in English case law.