On Fergus Wilson (again) and that appeal

I promise that this blog won’t all be about everyone’s favourite comedy landlord Fergus Wilson; there are far more important things to say, like how we should build more bloody houses, or how Her Majesty’s Opposition has reduced itself to an irrelevance, or how the Government is rigging the system to make itself impregnable, or how we should build more bloody houses. Did I mention building more bloody houses?

However, I find myself moved to return to Fergus Wilson like a dog returning to its vomit, by today’s news that Wilson has instructed lawyers to appeal his conviction for assault, the conviction which, as we saw last time makes him ineligible to hold the post of Police and Crime Commissioner. Media reports suggest he has decided to appeal the conviction, or to launch a judicial review of it, or both, and that he has advice that this will enable him to stand, as his nomination will have to be accepted pending appeal.

At this point I think it important to say that I am not a lawyer, just a layman with an interest in the law.

The first point to note is that Wilson has already made an appeal against his conviction, to the Crown Court, and that appeal was dismissed. My understanding is that no further appeal of that kind against his conviction is now possible. However, it is possible to make an appeal to the High Court by way of a procedure known as “case stated.” An appeal of this kind must be made on the grounds that the conviction was “wrong in law or in excess of jurisdiction.” So, if the Magistrates’ Court were to convict someone of murder that would be in excess of jurisdiction because only the Crown Court can try an indictable offence like murder. However Wilson was convicted of common assault which is a summary offence, so there is no problem of jurisdiction.

We aren’t told what the grounds for appeal would be, but it is difficult to see what point of law might be involved. The facts of the case, as accepted by the Magistrates’ Court and the Crown Court, were that Wilson stormed into his victim’s office and punched him in the head. He denies this, but it is no longer possible to appeal on the grounds that the conviction was wrong. If A touches B without B’s consent then A is guilty of assault. The law on this point is clear.

It gets worse for him. The rules say that an appeal by case stated must be made within 21 days of the conviction (or in this case of the dismissal of the appeal to the Crown Court) and Wilson’s appeal was dismissed in August 2014. Being a few days outside the deadline may be one thing, and of course sometimes things come to light that were not clear at the time, but Wilson is well over a year out of time. It seems highly unlikely that Wilson would be given permission to appeal out of time, particularly if he raises a point he could have raised earlier.

As to judicial review, an application for permission to appeal for judicial review must be made as soon as possible, and in any event no later than three months after the decision to be reviewed. There is no chance of judicial review.

So, all of Wilson’s options to appeal seem to be futile. So, what then of his claim that his nomination would have to be accepted pending appeal? That is a little more complicated.

The relevant section of the Police Reform and Social Responsibility Act reads:

(b)a person is to be treated as having been convicted—

(i)on the expiry of the ordinary period allowed for an appeal or application in respect of the conviction, or

(ii)if an appeal or application is made in respect of the conviction, when the appeal or application is finally disposed of or abandoned or fails by reason of non-prosecution.

So, if the election had fallen in the time between Wilson’s conviction and the dismissal of his appeal by the Crown Court, he would not be treated as having been convicted because his appeal would not have finally been disposed of. The question is whether a further futile application would mean that he would be entitled to be treated as though be had not been convicted.

I think not. An appeal has been made and has been disposed of. He is to be treated as being convicted. A further application for permission to appeal out of time does not alter that fact, and to pretend that it does not only means reading words into the Act that simply are not there, it also means accepting that Parliament has passed a law that has no meaning at all. Any disqualified candidate would merely have to make an application for permission to appeal, no matter how bizarre or misconceived, just before submitting their nomination, and they would magically become qualified. Surely not.

Even if that were not so, it would still be the case that (in the highly unlikely event of his election) Wilson would become disqualified again when his appeal was dismissed. What would be the point of electing a PCC who is bound to be turfed out of office almost immediately?

Update 17/03/16: in this week’s press adverts, Wilson appears to suggest that his grounds for appeal will be that he was prosecuted while Jeremy Clarkson wasn’t even cautioned for an apparently more serious offence. This is just nonsense. On that basis, if the Police and the CPS decide not to prosecute one individual for an offence, it would be against the law for anyone to be convicted of that offence again. It does not even begin to make out an error of law which would mean Wilson’s conviction ought to be overturned.

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