Furniss [2018] EWCA Crim 2574
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R v Furniss [2018] EWCA Crim 2574 concerns an application by Mr Michael Furniss to treat a notice of abandonment of his appeal against conviction as a nullity; the Court of Appeal allowed the application, finding that the notice was indeed a nullity because Mr Furniss’s mind did not go with the abandonment.
Mr Furniss had been convicted of murder on 10 December 2014 by a majority verdict of 10:2 at Nottingham Crown Court before Haddon-Cave J. Two co-accused, Stacey and Hall, had been acquitted. On 11 December 2014 Mr Furniss was sentenced to life imprisonment with a minimum term of 32 years and 11 months. An application for leave to appeal against conviction, with grounds settled by Icah Peart QC, was lodged in January 2015. The grounds advanced were that the Crown had failed to disclose relevant information as to who provided intelligence leading to Mr Furniss’s arrest, which might have assisted in establishing that someone else was responsible for the killing, and that the judge’s deadlock direction on day 40 of the trial had put undue pressure on the jury. On 20 May 2015 the single judge refused leave to appeal in a comprehensive analysis that demolished those grounds. Counsel advised against renewal.
Nevertheless, Mr Furniss wished to renew the application and a notice to that effect was sent to the Criminal Appeal Office on 8 July 2015, with a hearing listed for 13 October 2015. Mr Furniss also wished to submit his own grounds. He sent lengthy handwritten grounds to his solicitors, Imran Khan and Partners, which were received on 4 September 2015. The solicitors advised that if he wished to submit his own grounds rather than those drafted by counsel he would need to sign a Form A abandoning his current application and resubmit grounds of his own composition. On 9 September 2015 Mr Furniss signed a handwritten note stating “I, Michael Furniss, wish to withdraw my appeal and put in fresh grounds which I have drafted. I have been advised that the existing grounds will not assist me and that I need the new grounds.” In accordance with those wishes, Imran Khan and Partners signed a Form A notice of abandonment of all proceedings on 10 September 2015, which was received by the Criminal Appeal Office on 15 September 2015. The notice did not indicate anywhere that Mr Furniss wished to continue his appeal on fresh grounds of his own composition, although the note he had signed made clear that he did wish to pursue the grounds he had drafted.
The court summarised the legal principles governing whether a notice of abandonment can be withdrawn as a nullity. The test from R v Medway [1976] QB 779 is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the applicant’s mind did not go with his act of abandonment. The court cited R v Paul Smith [2013] EWCA Crim 2388, which set out four propositions: (i) a notice of abandonment is irrevocable unless the Court of Appeal treats it as a nullity; (ii) a notice is a nullity if the applicant’s mind does not go with the notice he signs; (iii) if the applicant abandons his appeal after and because of receiving incorrect legal advice, his mind may not go with the notice, depending on the circumstances; (iv) incorrect legal advice means advice which is positively wrong, not the expression of opinion on a difficult point.
Applying those principles, the court held that the advice given to Mr Furniss was wrong. Because Mr Furniss wished to pursue his own grounds on the renewed application, he did not intend to bring his appeal proceedings to an end. The correct advice would have been that a letter should be written to the Criminal Appeal Office explaining that the applicant did not wish to renew his application on the original grounds but wished to do so on fresh grounds, enclosing those grounds. He would have needed to apply to the court to vary the notice of appeal, as explained in R v James [2018] EWCA Crim 285, but at least he would not have abandoned his appeal. At the very least, the solicitors should have advised that if a notice of abandonment was to be served, Part 2 of that notice should be completed rather than Part 1, with the fresh grounds enclosed, so that it was made clear that he was not abandoning the whole appeal, but only any renewed application on the grounds drafted by counsel.
The court held that if the correct advice had been given by one or other of those routes, it would have been made clear to the Criminal Appeal Office that Mr Furniss did wish to pursue a renewed application for leave to appeal on the basis of fresh grounds which he had composed. In the circumstances, the court was satisfied that his mind did not go with the notice signed on his behalf and therefore the notice was a nullity. The court adjourned the case for an application to be filed to vary the notice of appeal and advance the fresh grounds, and for there to be a hearing before the full court at which the Crown might wish to file a respondent’s notice and be represented.
In short, the Court of Appeal held that Mr Furniss’s notice of abandonment was a nullity because the advice he received was positively wrong and his mind did not go with the abandonment; his appeal was restored for a hearing on fresh grounds of his own composition.