Loss of Time Orders

If a person is convicted of a criminal offence and they wish to either appeal the conviction itself or the sentence they were given, an application can be made to the Court of Appeal. A single judge will consider this application and decide whether the appeal should go on to be heard by the Full Court. However, there is a risk involved if leave to appeal is refused as the single judge then has the power to make a 'loss of time order'. If the applicant persists and renews the appeal, the case will be taken to the Full Court which can also order loss of time. A loss of time order dictates that some of the time that the applicant has spent in custody awaiting appeal will not count towards their sentence, effectively putting back the release date. It is rare that the Single Judge will make this decision and it is more likely that they will tick a box which directs the Full Court to assess the issue and consider whether to make an order.

The Court of Appeal receives thousands of applications for leave to appeal every year. Many of these applications are unmeritorious which takes up a lot of time and resources, not to mention public funds. The loss of time order was introduced in order to discourage these unmeritorious applications, the court is also able to make a costs order against the applicant. There is no maximum time for a loss of time order and they can amount to 2 or 3 months which can clearly have a big impact on the applicant's life. The order can be set without taking into account the length of the applicant's original sentence which can create a disproportionate result, for example, an applicant serving a 6 month sentence could have their sentence increased by 50% whereas it would only be a 1.25% increase for someone serving a 20 year sentence.

In 2014 the Court of Appeal made loss of time orders in bulk against 5 defendants indicating that the Court has taken a view that loss of time orders should be made more frequently. In January 2017 a loss of time order for 42 days was made in relation to an unmeritorious appeal against a conviction for drug trafficking. In the judgment it was stated that such orders would continue to be made until it was realised that unmeritorious applications wasting the courts time would not be tolerated. The court have also warned applicants in recent years that it does not matter that their lawyer has advised them that there are grounds to appeal, this will not be enough to prevent a loss of time order being made. The order is clearly a penalty or punishment for continuing with an application that has been deemed unworthy and which is hampering the appeals system generally.

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