The court had jurisdiction to give an applicant or appellant leave to withdraw a notice of abandonment of appeal or application for leave to appeal only where the notice of abandonment can be treated as a nullity.
Lawson J said: ‘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.’
Judges:
Lawson J
Citations:
(1976) 2 Cr App R 85
Jurisdiction:
England and Wales
Cited by:
Cited – Blackwood, Regina v CACD 5-Mar-2012
The defendant had succeeded in his appeal against a rape conviction. After the case, and his release, the prosecution sought a retrial. The defendant now argued that the court was functus officio.
Held: An order on an appeal becomes final when . .
Cited – Regina v Offield CACD 2002
The court considered as an additional ground allowing the withdrawal of an abandonment of an appeal: ‘bad advice given by some legal advisor which has resulted in an unintended, ill considered decision to abandon the appeal’. . .
Cited – Ahmed, Regina v CACD 29-Jul-2010
The defendant had lodged an appeal from his conviction, but then abandoned it. He now sought to have that treated as a nullity.
Held: The application had not shown grounds which might allow the withdrawal of the abandonment, and was refused. . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 18 May 2022; Ref: scu.451798