202303262 B1 - [2025] EWCA Crim 1163

Analysis:

Representatives appointed to put the case for the accused in the Crown Court have authority to act on behalf of the accused in relation to an appeal, and may on that basis seek the leave of the single judge to appeal on grounds considered to be arguable. If leave to appeal is refused by the single judge, that authority extends to renewing the application to the full court. In such a situation (and in contrast to the position if the representatives do not think it proper to renew the application: see paragraph 79 above), no fresh appointment by the court is necessary: the renewal of an application for leave to appeal, where counsel thinks it proper, comes within the authority conferred by the appointment in the Crown Court.

If the full court grants leave to appeal, as we have done on one ground in this case, then it will usually be appropriate for the court to make an order for the payment out of central funds of the sum reasonably necessary to cover the proper fee of counsel, in relation to any ground on which leave is given. The procedure to be followed in applying for such a payment is explained in Crim PR 45.4.

If the full court refuses leave to appeal, it still has the power to award costs out of central funds: see R v Grey [2023] EWCA Crim 1285, at [3]. Grey was a renewed application for leave to appeal against the making of a hospital order. At [4], the court said:

“We think that the principles governing what may be described as ‘standard’ applications for leave to appeal to this court should also apply to applications made under section 16A of the Criminal Appeal Act 1968, namely where the Crown Court has made a hospital order. The practice of this court in cases where section 11(1) applies (ie, in cases where leave is required in relation to proposed appeals against conviction and/or sentence) is not to award costs out of central fund in the normal or ordinary course. Some particular reason is required …”

In our view, the same approach should be applied in a case where the representatives renew an application for leave to appeal on behalf of the accused, but the full court refuses the application. We are conscious that the practical consequence is that an accused will only be able to renew an application for leave to appeal to the full court if the representatives are not only satisfied that there are grounds which merit renewal, but are also prepared to act pro bono in the knowledge that, if the renewed application is refused, good reason will have to be shown why an order should be made for the payment of their costs.

Returning to the present case, we take the view that ground 1, on which we have granted leave, was the principal ground of appeal and the main part of counsel’s argument. In our judgement, an appropriate sum should be paid from central funds to remunerate both Mr Miller and Mr Archer for their work in preparing and presenting that ground of appeal. Grateful though we are for their assistance, we are not persuaded that any sufficient reason has been shown why they should be remunerated for presenting the grounds of appeal which we have held to be unarguable.