Hadi Al-Koumi, R (on the application of) v Isleworth Crown Court

1. MR JUSTICE SWEETING: This is a renewed application for permission to apply for judicial review in relation to the decisions of HHJ Edmunds KC ("the judge") sitting at the crown court at Isleworth. The claimant, Mr Hadi Al-Koumi, challenges the judge's refusal to extend time for an appeal against conviction for sexual offences.

2. Mr Al-Koumi was convicted by the Uxbridge youth court of assault by penetration and common assault and was committed to the crown court for sentence on 23 December 2024. He has since become an adult.

3. The statutory period for appealing his conviction expired on 17 January 2025; the notice of appeal was subsequently lodged on 12 February 2025 which was, therefore, out of time.

4. On 25 February 2025, the judge initially considered an application to extend time for this appeal. He refused the application providing a carefully reasoned decision. The judge considered all relevant matters, noting that, while the delay was relatively brief, the case against the claimant was overwhelmingly strong and the complainant had already given evidence at trial.

5. Following this initial refusal, the claimant belatedly obtained and served a psychiatric report. This prompted the judge to review his decision, making a new determination on 14 April 2025. Upon reconsideration, the judge correctly observed that the psychiatric report, whilst potentially relevant to mitigation, bore no relevance to the question of the claimant's guilt.

6. An application for permission to apply for judicial review was lodged by the claimant on 17 March 2025. On 19 March, Heather Williams J ordered a stay of the sentencing proceedings before the crown court pending the determination of permission to apply for judicial review.

7. On 1 July, following consideration of the lodged documents, permission to apply for judicial review was refused by Bourne J. He lifted the stay previously ordered by Heather Williams J. He found no arguable public law error in the judge's decisions of 25 February or 14 April and commented that the application was close to being totally without merit.

8. The claimant filed a notice of renewal on 18 July seeking reconsideration of the refusal of permission.

9. The decisions impugned are, therefore, those of the judge on 25 February and 14 April of this year; both refusing to extend the time for Mr Al -Koumi to appeal against his convictions.

10. The claimant seeks reconsideration of permission on the following grounds: that the short delay, coupled with the claimant's young age and status as a foreign-language speaker, warranted indulgence from the court. The court failed to recognise the distinction between an appeal to the Court of Appeal (Criminal Division), a review, and a rehearing right for an appeal against a youth court conviction, arguing that this distinction should lead to greater indulgence. The claimant asserts that there is an arguable appeal, contending that the judge gave excessive weight to the strength of the evidence and that a right to a hearing de novo should afford greater indulgence to an appellant who is out of time, especially given current systemic delays.

11. An arguable defence exists, it is said, given inconsistencies in the evidence regarding the nature of the physical contact and the complainant's alcohol consumption and recollection. A distinction should, therefore, have been drawn in relation to a defendant, effectively, of good character and young age, particularly given that the appeal originated from a youth court rather than a magistrates' court. The court, it is said, should have accounted for the widely-acknowledged immaturity of individuals under 25 years of age, here of 17 years, and considered this to be relevant to the issue of extending time.

12. Overall, it is submitted that there is an arguable case for an extension of time warranting judicial review, particularly given the paucity of authority in relation to appeals from the youth court to the crown court.

13. The interested party, the Crown Prosecution Service, submits in its written submissions that the judge correctly applied the principles established in R (Khalif) v I sleworth Crown Court [2015] EWHC 9171 (Admin) . The judge, it is said, took into account the short delay but balanced this against the seriousness of the allegation and the impact on the victim, correctly concluding that there is a heavy obligation to appeal promptly in such a case. He also considered that the claimant was legally represented throughout and that no explanation was provided for the delay.

14. Furthermore, the interested party argues that the judge correctly scrutinised the strength and underlying merits of the application with reference to the evidence as required by the guidance in Khalif . The judge was entitled to conclude that the evidence was strong and the claimant's case lacked merit.

15. The interested party characterises the judge's analysis of the evidence as comprehensive and flawless, asserting that he fairly balanced the claimant's submissions against the evidence. The judge also considered whether substantial injustice will occur, concluding that any appeal would be hopeless and that further delay would itself cause injustice.

16. In relation to the claimant's mental condition, no medical evidence was provided at the relevant time to explain how this might have affected the claimant's ability to appeal within time. No authority has been cited for the proposition that a distinction should be drawn between a youth and an adult in such applications and, therefore, the judge's analysis was sufficiently thorough, regardless of the claimant's age.

17. The task before me, in considering this renewed application for permission, is to determine whether there is an arguable ground for judicial review, meaning whether the judge's decisions were affected by public law error. It is not for this court to rehear the application to extend time or to substitute its own view for that of the judge. That would be the case even if, in the same position, I or another judge might have taken a different view. In fact, the judge's reasoning demonstrates a careful application of the principles in Khalif . He expressly took into account the shortness of the delay, but correctly balanced this against other material considerations, such as the strength of the prosecution case, the impact upon the complainant and the absence of a proper explanation.

18. In relation to the claimant's age and language difficulties, whilst these are plainly relevant considerations in the context of a youth court, the judge's analysis, in relation to the overall merits and the question of injustice, must also be given proper weight. The argument that there is a paucity of authority in relation to youth court appeals to the crown court does not of itself create an arguable public law error in the judge's application of established principles. The judge's distinction in relation to the psychiatric report, accepting its potential relevance to mitigation but not to guilt, was entirely correct and demonstrates, in my view, a proper assessment of its evidential scope. The suggestion that the judge gave too much weight to the strength of the evidence is, essentially, an attempt to reargue the merits of the extension application rather than identify public law error in his approach. The guidance in Kalif, does indeed, require scrutiny of the underlying merits of the appeal. The fact there is no transcript of evidence reflects the fact that an appeal by way of a review is not possible, so that a fresh hearing is required with an obvious consequence for victims of offending.

19. Having carefully considered the grounds for renewal and the materials before me, I consider that there is no arguable public law error in the judge's decisions of 25 February or 14 April, notwithstanding Mr Fidler's concise and powerful submissions to the contrary.

20. The judge's reasons were carefully articulated and demonstrated a proper application of the relevant principles. He had regard to all relevant matters and no irrelevant mattered. I, therefore, refuse permission. _________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]