UK Criminal Appeals: Costs & Process in Crown & High Court, Study notes of Law

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The Law Commission (LAW COM No 324) THE HIGH COURT’S JURISDICTION IN RELATION TO CRIMINAL PROCEEDINGS Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 26 July 2010 HC 329 London: The Stationery Office £xx.xx ii Paragraph Challenging decisions of the Crown Court made 2.19 in its committal for sentence jurisdiction Miscellaneous statutory rights of appeal 2.20 Where there is a finding of unfitness to plead or 2.21 15 to be tried Challenging decisions of the Crown Court made 2.23 in its trial on indictment jurisdiction Challenging convictions, acquittal and 2.23 sentence Challenging pre-verdict rulings 2.27 Plea and case management 2.28 hearings Preparatory hearings 2.29 Section 58 appeals 2.33 Appeal against an order for trial 2.36 without a jury of sample counts Appeal against an order for trial 2.37 without a jury in cases of fraud and jury tampering Appeal against an order that a 2.38 trial is to continue without a jury due to jury tampering Appeal by way of case stated and 2.39 judicial review Interpretation in the case law of section 29(3) 2.46 The “pointers” 2.48 Difficulties with the interpretation of section 29(3) 2.50 PART 3: THE CONSULTATION PAPER PROPOSALS Remove case stated and judicial review 3.2 Judicial review and the first instance jurisdiction 3.4 The new statutory appeal 3.5 The new statutory appeal and the first instance jurisdiction 3.6 After the jury had been discharged 3.8 Before the jury was sworn 3.9 After the jury was sworn but before it was 3.10 discharged The Crown Court’s appellate jurisdiction 3.11 Appeals by the prosecution 3.13 The new statutory appeal and the appellate jurisdiction 3.16 Before the determination of an appeal by way of 3.18 rehearing After the determination of an appeal by way of 3.19 rehearing Discussion of the implications for the court martial and magistrates’ 3.20 courts Page 15 15 16 16 17 17 17 18 18 19 19 19 21 21 22 27 27 27 27 28 28 28 28 28 29 29 29 29 29 v Paragraph Page Consultation 3.21 30 31 PART 4: THE RESPONSE OF CONSULTEES (1): THE CROWN COURT IN ITS APPELLATE JURISDICTION Summary of the proposals in the consultation paper 4.2 31 A significant background development 4.3 31 General response to consultation 4.6 32 Appeal against sentence 4.10 33 By the defendant 4.10 33 Following an appeal by way of rehearing in the 4.12 33 Crown Court Comments by consultees 4.14 34 Appeal against conviction following rehearing at the Crown Court 4.22 35 Leave for an appeal from a rehearing 4.27 36 Conclusion 4.31 37 38 PART 5: THE RESPONSE OF CONSULTEES (2): THE NEW STATUTORY APPEAL AND THIRD PARTY RIGHTS The objections to the new statutory appeal 5.3 38 appeal appeal for pre-trial appeals from appeals after the start of the trial on existing interlocutory appeals matters The conceptual difficulty of “no adequate remedy” 5.4 38 Wrong in principle 5.10 39 The absence of any appeal against a refusal of leave to 5.16 41 The practical consequences of the proposed statutory 5.19 41 The breadth of the proposed appeal 5.20 41 The difficulties created by having different rules 5.22 42 The impact of the proposed new statutory appeal 5.26 42 The disruptive effect 5.28 43 The pre-trial appeal 5.28 43 The appeal after the trial had started 5.34 44 Increased workload and resource implications 5.41 45 A disproportionate solution 5.51 48 The proposals would not achieve the aim of simplifying the system 5.52 48 The difficulties in repealing section 29(3) 5.54 48 The High Court would still have jurisdiction in criminal 5.57 49 Third Parties 5.60 50 The current law 5.61 50 Other statutory provisions 5.63 50 The proposals in the CP 5.65 51 The impact of the provisional proposals 5.67 52 vi Paragraph Page The views of respondents 5.69 52 Policy reasons for restricting challenges by third parties 5.76 54 The Crown represents the public interest 5.78 54 The avoidance of delay and interruption 5.82 55 Complexity of the issues and suitability of the 5.83 55 criminal court Third party rights: conclusion 5.84 55 Overall conclusion 5.88 56 57 PART 6: OUR PRINCIPAL CONCLUSIONS The policy considerations 6.2 57 a Convention right is alleged end of the trial justified? following situations be retrieved, resulting in a potential personal records or confidential information be disclosed that proceedings be held in private publication of reports of proceedings interruption of a trial The “no delay” criterion 6.3 57 The need for an opportunity to appeal or review a decision 6.11 59 Conclusion 6.13 59 Appeal or review? 6.14 59 Review 6.15 60 The role of the reviewing court where violation of 6.17 60 Appeal 6.22 61 The CACD 6.23 61 What we proposed in the CP 6.27 63 The arguments 6.28 63 In favour of the CACD 6.35 64 In favour of judicial review 6.36 64 Conclusion 6.39 65 Reducing the scope for delay and interruption to trials 6.41 66 In what circumstances is a right of challenge before the 6.44 66 Interruption to a trial is not justified in the 6.45 67 Handcuffing in court 6.46 67 The release of information which cannot 6.47 67 breach of Article 8 Challenging an order that 6.49 68 Challenging a refusal to order 6.50 68 Challenging a ruling permitting 6.53 69 Circumstances which do justify delay and 6.58 70 vii Paragraph Page Provision in the current law for challenges to a 9.14 105 refusal of bail at the Crown Court for a defendant on trial on indictment Summary of when a defendant may re-apply for 9.21 106 bail before or during trial After conviction 9.22 106 No appeal to the CA 9.24 106 Judicial review of a refusal of bail 9.25 106 How the High Court approaches 9.31 108 applications Witnesses 9.33 109 Distinct from contempt of court 9.39 110 Summary of the rights of challenge to a remand in 9.41 111 custody under the current law Defendants 9.41 111 Witnesses 9.42 111 The recommendations 9.43 111 Features common to both recommendations 9.44 111 Defendants 9.48 112 Witnesses 9.51 112 Effect on the proceedings at the Crown Court 9.53 113 Extent and commencement 9.55 113 114PART 10: A NEW STATUTORY APPEAL FOR CHILDREN AND YOUNG PERSONS The objective 10.1 114 Background 10.9 116 Section 39 of the CYPA 1933 10.9 116 Relationship to section 49 of the CYPA 1933 10.18 118 Challenges to an order under section 39 10.21 118 The relationship with section 159 of the Criminal 10.22 118 Justice Act 1988 The relationship with section 29(3) of the SCA 10.23 119 1981 Prospective changes 10.27 119 The new appeal 10.28 120 Scope of the new appeal 10.28 120 Effect of creating the new appeal 10.29 120 Detail of the new appeal 10.30 120 Proceedings before the Crown Court 10.34 120 Automatic reporting restriction pending the 10.36 120 determination of the appeal Leave required 10.43 121 Proceedings before the Court of Appeal 10.45 122 The power to give directions 10.45 122 x Paragraph Page The power to adjourn proceedings 10.46 122 Powers of CA on hearing the appeal 10.47 122 Costs 10.48 122 Penalty for breach of the order made on appeal 10.49 122 No further appeal 10.50 122 Interaction with other statutory provisions 10.51 122 Effect if the child or young person attains the age of 18 10.52 123 Extent 10.53 123 Extent: service courts 10.54 123 Related proceedings 10.55 123 Anti-social behaviour orders following conviction 10.56 123 Drinking banning orders following conviction 10.58 124 Prospective changes and transitory provisions 10.61 124 Section 45 of the Youth Justice and Criminal 10.61 124 Evidence Act 1999 Commencement 10.63 124 125PART 11: A NEW STATUTORY APPEAL WHERE THERE IS A REAL AND IMMEDIATE RISK TO LIFE A right of appeal 11.2 125 Available to a person 11.5 126 Representations 11.9 126 The appeal to the Court of Appeal 11.13 127 The appeal in detail 127 Leave 11.14 127 Appeal limited to rulings in a trial on indictment which 11.17 127 could affect the conduct of proceedings in which the strict rules of evidence apply A refusal to make an order 11.21 128 The grounds of the appeal 11.22 128 The nature of the risk posed by the ruling 11.24 128 This is not a merits-based appeal 11.29 131 Determination of the appeal by the Court of Appeal 11.30 131 Further appeal to the Supreme Court 11.33 131 Procedural matters 11.36 131 Protecting the position of the appellant 11.38 132 Power of the Crown Court to adjourn proceedings 11.40 132 Expedited appeals 11.41 132 A procedure enabling information to be withheld from 11.44 133 another party Power of the Crown Court to restrict reporting of 11.48 133 proceedings pending determination of the appeal Breach of the reporting restriction 134 Attorney-General’s consent 11.51 134 Proceedings before the Court of Appeal 135 xi Paragraph Page Power of single judge and registrar to give 11.54 135 directions withheld from another party publication completion of stages of a criminal case The power to adjourn proceedings 11.55 135 Incidental orders 11.56 135 Costs 11.57 135 The power of the CACD to protect the appellant 11.58 135 The power of the CACD to restrict publication 11.59 135 Proceedings before the Supreme Court 136 Expedited appeals 11.61 136 Continued suspension of the ruling 11.62 136 The procedure enabling information to be 11.63 137 The power of the Supreme Court to restrict 11.64 137 Powers of the Supreme Court 11.67 138 Effect of creating the new appeal 11.68 138 Interaction with other forms of appeal 11.71 139 Commencement 11.72 139 Consequential amendment: effect on time limits for 11.74 139 140 PART 12: THE IMPLICATIONS FOR MAGISTRATES’ COURTS Implications for magistrates’ courts if the recommendations in this 12.5 140 report are enacted in relation to the Crown Court court The effect of our recommendation to remove case stated 12.10 141 An alternative possibility 12.11 142 Prosecution rights to challenge an acquittal in the magistrates’ 12.19 143 144 PART 13: IMPLICATIONS FOR THE COURT MARTIAL General points about service law 13.2 144 restrictions section 29(3), prohibiting judicial review of rulings in trial on indictment, and the jurisdictional bar in section 29(3A) Relationship to civilian law 13.5 144 Comments on CP 184 13.7 145 Interlocutory appeals 13.11 145 Prosecution appeals 13.12 145 Appeals against reporting and public access 13.13 146 Other interlocutory appeals from Court Martial 13.15 147 Implications for Court Martial of the policy in this report 13.20 148 Removal of case stated 13.21 148 Our recommendation for redefining the exclusionary bar in 13.23 149 Conclusion 13.31 150 xii THE LAW COMMISSION THE HIGH COURT’S JURISDICTION IN RELATION TO CRIMINAL PROCEEDINGS To the Right Honourable Kenneth Clarke QC, MP, Lord Chancellor and Secretary of State for Justice PART 1 INTRODUCTION AND SUMMARY 1.1 The Crown Court sits in several different capacities: as a trial court, as a court hearing appeals from the magistrates’ courts, as a sentencing court, and as a civil court, amongst others. There is a variety of ways in which decisions of the Crown Court can be challenged: by appeal to the Court of Appeal, by appeal to the High Court by way of case stated, and by application to the High Court for judicial review. 1.2 The availability of each of these appeal routes depends on the case in question. A defendant who wishes to appeal against a conviction or sentence takes that appeal to the Court of Appeal (Criminal Division) (“the CACD”). However, the prosecution or defence might be able to appeal a point of law to the High Court by way of case stated as an alternative. This is where the prosecution or defendant asks the High Court to determine an issue of law in a case set out for it by the Crown Court. Additionally, any person with sufficient legal interest in a case might be able to challenge a court’s decision by way of judicial review. This is where a person asks the High Court to review a decision of the Crown Court on the grounds that it was illegal, irrational or invalidated by procedural impropriety. It is an attack on the process by which the decision was made, rather than on the merits of the decision. 1.3 The High Court has the power to hear appeals by way of case stated and applications for judicial review in respect of decisions made by the Crown Court by virtue of sections 28 and 29(3) respectively of the Senior Courts Act 1981 (“the SCA 1981”), but there is a crucial limitation on these two routes of challenge: appeal by case stated and judicial review are not permitted if the decision is in a “matter relating to trial on indictment”. 1.4 We were asked to examine the criminal jurisdiction of the High Court over the Crown Court. Our focus is thus the availability of appeal by way of case stated and judicial review from the Crown Court. By a reference made to the Law Commission on 30 June 2004 we were asked to consider: (a) the origins and nature of, and the limitations upon, the High Court’s criminal jurisdictions by case stated and judicial review over the Crown Court, as set out in sections 28 and 29 of the Supreme Court Act 19811 and in particular sections 28(2) and 29(3) thereof; 1 Now called the Senior Courts Act 1981, and referred to in this report as “the SCA 1981”. 1 (b) how those jurisdictions are best transferred to the Court of Appeal, simplified and, if appropriate, modified; the implications of (a) and (b) for the High Court’s criminal jurisdiction over the magistrates’ court, and for courts-martial; and to make recommendations. THE CONTEXT OF THE PROJECT The numbers of cases involved 1.5 It is useful at this point to give an idea of the numbers of cases involved in case stated and judicial review in criminal proceedings. In the years 2000 to 2008 the Administrative Court (a Division of the High Court) received between 246 and 337 applications for permission for judicial review in criminal cases from magistrates’ courts and from the Crown Court each year. In the same time period it received between 12 and 23 appeals by way of case stated against the Crown Court each year (but five times as many cases stated against magistrates’ courts). By way of comparison, the CACD receives in the region of 7000 applications each year.2 A changed statutory backdrop 1.6 An important feature of the context in which the project arises is the statutory changes which have taken place since 1981. First, interlocutory appeals are now available in trials on indictment in ways that were not possible at the time of the SCA 1981. Complex fraud cases, terrorism cases, and some complex, serious or lengthy cases may have a preparatory hearing at which pre-trial issues of law can be resolved, and some appeals are possible against the rulings on those issues. Secondly, the prosecution now has a right of appeal under section 58 of the Criminal Justice Act 2003 against a ruling which will bring the prosecution to an end unless the appeal succeeds. The availability of these two kinds of interlocutory appeal3 makes it easier to see that the role for appeal by case stated or judicial review as a means of challenging decisions of the Crown Court in trials is no longer so significant, and can be abolished or curtailed. 2 Judicial and Court Statistics 2008 (2009) Cm 7697 pp16 and 27. 3 See paras 2.29 to 2.35 below. 2 Lord Justice Auld’s Review of the Criminal Courts 1.7 Another important aspect of the context of this project is the Review by Lord Justice Auld of the Criminal Courts of England and Wales in 2001.4 He surveyed the whole of the appellate system, including the role of magistrates’ courts, and made recommendations. He envisaged a unified criminal court consisting of three Divisions (the Crown Division, the District Division and the Magistrates’ Division). The Government thought the advantages he foresaw from unification could be achieved by different means,5 and so some of the recommendations were accepted by the Government, and have led to legislation, and some were not. 1.8 Lord Justice Auld also thought there should be a single route for criminal matters which led to the Court of Appeal (Criminal Division). One of his recommendations was to abolish appeal by way of case stated and judicial review from the Crown Court in both its trial on indictment and in its appellate jurisdiction.6 This recommendation was accepted in principle by the Government.7 THE PROBLEMS WITH THE CURRENT LAW 1.9 As we note above, appeal by way of case stated and judicial review of the Crown Court in criminal proceedings are barred in respect of the Crown Court’s jurisdiction “in matters relating to trial on indictment”, by sections 28(2) and 29(3) of the SCA 1981. There has been considerable litigation over the meaning of the phrase. Lord Browne-Wilkinson has described it as “extremely imprecise”. He continued, In Smalley …Lord Bridge of Harwich said that it may be impossible to lay down any precise test to determine what is and what is not excluded. As a result the law has developed on a case by case basis, not always with happy results.8 1.10 The consequences have been uncertainty, litigation, and, in some cases, the absence of a remedy. For example, a defendant who is acquitted will generally have a costs order made in his or her favour, but if the Crown Court refuses a costs order and does so unlawfully, that defendant has no recourse against the refusal. Commenting on this particular situation, Lord Justice Waller said, 4 Auld LJ, A Review of the Criminal Courts of England and Wales (September 2001). 5 Justice for all (July 2002) Cm 5563 para 4.6. The Government was also not persuaded that it should introduce the new intermediate tier of District Division, as recommended by Auld LJ (para 4.19). See also The Criminal Justice Bill (2002-03) The House of Commons Research Paper 02/72, p 21. 6 Auld LJ, A Review of the Criminal Courts of England and Wales (September 2001) recommendations 307.1 and 307.2. 7 Annexe to “Justice for All” July 2002, Cm 5563, p 43. Recommendations 307.1 and 307.2 could not, in any event, be implemented in quite the way envisaged by Lord Justice Auld, because the Government did not agree to the restructuring of the criminal courts that he recommended. 8 R v Manchester Crown Court, ex parte Director of Public Prosecutions [1993] 1 WLR 1524, 1528 citing Re Smalley [1985] AC 622, 643h. 3 These considerations of policy [that is, against interlocutory appeals] are especially compelling in the administration of justice … . An accused is entitled to scrupulous observance of constitutional safeguards. But encouragement of delay is fatal to the vindication of the criminal law. Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court’s rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal.13 Balancing the avoidance of delay against giving effect to ECHR rights 1.17 As we note above, the criminal justice system has a role to play in helping citizens secure their ECHR rights. Most obviously in the context of a criminal trial, the court will always have in mind the right of the accused to a fair trial under Article 6, but the court may well have to take account of another ECHR right, whether the right to life under Article 2, the right to liberty under Article 5, or some other ECHR right. In that regard, we emphasise that the perspective of the courts is not restricted to the rights of defendants but also includes the rights of third parties, such as a witness who is remanded in custody during the trial. 1.18 Thus although the rules and procedures at issue in this project are in some senses narrow and technical, behind them is the significant value of promoting just procedures and the need to bring about a just result. That means seeking to secure a difficult balance between avoiding delay and interruption to criminal proceedings whilst also, in a proportionate way giving effect to human rights considerations and allowing for the legitimate interests of third parties. OUR CONSULTATION 1.19 We published a Scoping Paper in 2005,14 and CP 184 in October 2007. 1.20 We gave an account of the origins of the High Court’s jurisdictions by case stated and judicial review over the Crown Court in Part 1 of the CP. We describe the main features of the current law in Part 2 below. A detailed description can be found in Part 2 of CP 184. 1.21 The proposals in the CP are described in Part 3 below. Their broad outlines are as follows. 13 Cobbledick v United States (1940) 309 US 323, 325. 14 Judicial Review of Decisions of the High Court (2005) Law Commission Scoping Paper. 6 Remove case stated and judicial review and replace with a new statutory appeal 1.22 The general thrust of the proposals was to remove case stated and judicial review for criminal matters in the Crown Court and to provide a new statutory appeal, on judicial review-type grounds,15 to the CACD. In all cases it would only be available if there was no other adequate remedy (such as an existing statutory appeal) and the leave of the Crown Court would be required. It would be available to persons directly affected as well as to the defendant and, in some circumstances, the prosecution. Appellate jurisdiction 1.23 With regard to the appellate jurisdiction, we proposed that the Criminal Appeal Act 1968 should be extended to allow an appeal, with leave, to the CACD from the Crown Court. We made associated proposals in relation to extending interlocutory prosecution appeals to cover cases being heard on appeal at the Crown Court, but removing the prosecution’s right of appeal otherwise. We also made proposals in relation to rulings before the conclusion of the case. First instance jurisdiction 1.24 With regard to the first instance jurisdiction of the Crown Court, the new statutory appeal would be available on different bases depending on the stage reached in the proceedings, whether before the jury had been sworn, after it had been sworn but before it had been discharged, or after it had been discharged. 1.25 The most generous regime applied after the jury had been discharged: this right of appeal would be available to any person directly affected by the order of the Crown Court. 1.26 The next most generous regime was that applying before the jury was sworn: it would be available to the defendant or a directly affected third party, but not the prosecution, and as well as showing that the grounds were made out, the appellant would have to show either that he or she would have no other adequate remedy or that, even if there was some remedy available, the potential advantages of permitting the appeal were such as to make it the right course. 1.27 The tightest regime applied after the jury had been sworn and before it had been discharged – broadly speaking, during trial. In this situation, the defendant or directly affected third party would have to show that the judicial review-type grounds were made out, that he or she would have no adequate remedy without the appeal, and that the ruling in question affected his or her liberty or was one which he or she alleged was unlawful because it contravened a right under the ECHR. 15 In other words, not an appeal on the merits, but a challenge to the way in which the decision was made. 7 The response to CP 184 1.28 We list those whom we consulted at Appendix B to this report, and we are grateful to them for their help. We describe the response on consultation in detail in Parts 4 and 5 below but, in brief, consultees did not object to the removal of case stated as proposed, but some were concerned about the removal of judicial review as proposed, and all had serious concerns about the new statutory appeal that was proposed. The arguments put caused us to reconsider the proposals carefully. We concluded that we could not proceed with the new statutory appeal, nor remove judicial review of criminal proceedings in the Crown Court in all circumstances. THIS REPORT 1.29 Part 6, where we set out the principles governing our recommendations, is the pivot between the CP proposals and the recommendations in this report. The policy decisions in this report represent a point of balance between the competing values, identified above, of: the need to avoid delay; the need to give effect to rights of third parties; and the need to ensure a fair trial. The recommendations are the outcome of this balancing exercise. 1.30 We set out our recommendations for reform in Parts 7 to 11, and we attach a Bill to the report which would give legislative effect to those recommendations. In this report we also draw out the implications of our recommendations for the High Court’s criminal jurisdiction over the magistrates’ courts (in Part 12), and over the Court Martial (in Part 13). 1.31 In Appendix C we collect together suggestions for improvements made to us by consultees which do not relate directly to our recommendations but which are worth pointing out. The Impact Assessment is Appendix D. OUR RECOMMENDATIONS 1.32 We have concluded that appeal by case stated from the Crown Court in a criminal cause or matter should be abolished. The simplification of the routes of appeal from the Crown Court which this would bring about can be seen from the flow charts on pages 10 and 11 below. 1.33 We have also concluded that generally speaking, trials should not be interrupted by appeals or judicial review, but challenges to rulings made after the end of the trial do not risk interrupting trials, and do not run the same risk of delaying the conclusion of the proceedings. The objection to permitting a challenge by way of appeal or review is not as strong once the defendant has been sentenced or acquitted, or the trial has ended in some other way. Therefore, judicial review ought not to be permissible from the point a case is sent to the Crown Court for trial up to the end of the trial, but judicial review should be possible for rulings made after sentence or acquittal. 1.34 We recommend that section 29(3) of the SCA 1981 is amended accordingly. 1.35 This conclusion will allow, for example, a defendant who has been acquitted but refused an order for costs, to challenge that refusal by way of judicial review, which is not possible under the current law. 8 PROPOSED STRUCTURE OF APPEALS FROM CRIMINAL CASES IN THE CROWN COURT Crown Court Trial on indictment Sentence on committal from the magistrates’ courts Appeal against conviction or sentence from the magistrates’ courts (rehearing) Court of Appeal Criminal Division with leave Judicial review by the High Court with permission Supreme Court with permission Appeal on a point of law of general public importance. Only if, broadly speaking, the court’s decision was made after sentence or acquittal, or the court refused bail Other statutory appeal* Appeal against conviction on indictment or against sentence * ‘Other statutory appeal’ includes existing statutory appeals and the two new, specific, appeals recommended in Parts 10 and 11. Not all of these appeals can go to the Supreme Court. 11 PART 2 THE CURRENT LAW 2.1 This project is about the statutory provisions which permit and restrict appeal by way of case stated against, and judicial review of, a ruling by the Crown Court in criminal proceedings (sections 28 and 29(3) of the Senior Courts Act 1981 (“the SCA 1981”)). These provisions cannot, however, be considered in isolation from other procedures which permit challenges to rulings of the Crown Court. (By “challenges” we mean judicial review as well as appeals.) 2.2 In Part 2 of CP 184 we gave a detailed description of the ways in which decisions can be challenged, including challenges to magistrates’ decisions (a flowchart of the current structure of appeals in the criminal courts was included at page 59 of the CP). Here is a brief overview. CHALLENGING DECISIONS OF THE MAGISTRATES’ COURTS IN CRIMINAL MATTERS 2.3 A defendant who is convicted and sentenced in a magistrates’ court has three potential avenues for challenging the conviction and/or sentence: (1) an appeal to the Crown Court against conviction and/or sentence; (2) an appeal to the High Court by way of case stated; (3) an application to the High Court for judicial review. Only the third of these requires leave of the court. 2.4 There is a significant difference between route (1) and routes (2) and (3). An appeal to the Crown Court is by way of rehearing; it may be on issues of law, fact, or both. By contrast, appeal by way of case stated and judicial review are challenges on issues of law, not of fact. An appeal to the High Court by way of case stated may be made on the grounds that the conviction and/or sentence “is wrong in law or in excess of jurisdiction”. In judicial review proceedings, the High Court’s function is to examine the magistrates’ decision, not to retry the case (though it may receive evidence). 2.5 In contrast to a defendant who is challenging a conviction by a magistrates’ court, the prosecution cannot seek to challenge an acquittal by appealing to the Crown Court. However, the prosecution can challenge the acquittal by: (1) appealing to the High Court by case stated; (2) (in limited circumstances) applying to the High Court for judicial review. 12 2.6 From the High Court, appeal lies only to the Supreme Court (whether on application by the prosecution or the defence). It is necessary to obtain leave of the Supreme Court or the High Court. Leave will not be granted unless the High Court certifies that a point of law of general public importance is involved in its decision and it appears to that Court or the Supreme Court that the point is one that ought to be considered by the Supreme Court. There is no appeal to the Court of Appeal (Criminal Division) (“CACD”) from the High Court in this context. CROWN COURT JURISDICTION 2.7 The Crown Court has jurisdiction in some civil matters. We are concerned only with its jurisdiction in criminal matters. In CP 184 we identified three jurisdictions of the Crown Court as particularly relevant to this project: (1) its appellate jurisdiction, (2) what we called its “first instance” jurisdiction, where it deals with a charge to be tried on indictment, and (3) its committal for sentence jurisdiction. Appellate jurisdiction 2.8 A defendant convicted in the magistrates’ court can appeal against conviction and/or sentence to the Crown Court.1 When the Crown Court hears an appeal from a magistrates’ court against conviction and/or sentence, the Crown Court is acting in its appellate capacity. The proceedings are by way of rehearing before a judge and justices of the peace and the trial is not on indictment. 2.9 In addition to a defendant’s right to appeal to the Crown Court, the prosecution may have a specific right of appeal, as provided by, for example, section 147(3) of the Customs and Excise Management Act 1979,2 and by section 14A(5A) of the Football Spectators Act 1989 which the prosecutor may rely on if the magistrates refuse to make a football banning order. 2.10 For other circumstances in which the Crown Court may be acting in an appellate capacity, see rule 63.1 of the Criminal Procedure Rules. 1 Magistrates’ Courts Act 1980, s 108. 2 Which provides “In the case of proceedings in England or Wales, without prejudice to any right to require the statement of a case for the opinion of the High Court, the prosecutor may appeal to the Crown Court against any decision of a magistrates’ court in proceedings for an offence under the customs and excise Acts.” 13 (4) against a restraining order made following a conviction or following an acquittal;12 (5) against the making, variation or non-variation of a Serious Crime Prevention Order;13 (6) for a third party against a third party costs order;14 and (7) against a Wasted Costs Order.15 Where there is a finding of unfitness to plead or to be tried 2.21 Where a defendant is found unfit to plead, and there is also a finding that D did the act or made the omission,16 the defendant may appeal to the CA against either or both of these findings under section 15 of the Criminal Appeal Act 1968 (“the CAA 1968”). 2.22 If there is a finding that D did the act or made the omission, this is not a conviction. The court may make a hospital order or interim hospital order or a supervision order. The defendant then has a right of appeal to the CA against any of these orders under section 16A of the CAA 1968. The defendant needs leave from the CA or a certificate from the trial judge. Challenging decisions of the Crown Court made in its trial on indictment jurisdiction CHALLENGING CONVICTIONS, ACQUITTAL AND SENTENCE 2.23 The defendant can appeal against a conviction and/or sentence under the CAA 1968.17 Leave must be obtained. The single ground for the Court of Appeal to quash a conviction is that the conviction is unsafe. There is no rehearing. 2.24 The prosecution can make an Attorney-General’s reference in respect of a point of law where the defendant was acquitted.18 The acquittal is unaffected, but the Court of Appeal then has the opportunity to settle the point of law for future cases. 12 Pursuant to ss 5 and 5A respectively of the Protection from Harassment Act 1997. 13 Pursuant to s 24 of the Serious Crime Act 2007. 14 Pursuant to regulation 3H in Part IIB of the Costs in Criminal Cases (General) Regulations 1986 SI 1986 No 1335. 15 Pursuant to regulation 3C in Part IIA of the Costs in Criminal Cases (General) Regulations 1986 SI 1986 No 1335. 16 See para 2.13 above. 17 The statutory right of appeal against sentence encompasses appeals against confiscation orders, against sentences which have been reviewed under s 74 of the Serious Organised Crime and Police Act 2005, and appeals by a parent or guardian of a defendant against a penalty imposed on the parent or guardian. 18 Criminal Justice Act 1972, s 36. 16 2.25 In limited cases, the prosecution can apply to the Court of Appeal for an order quashing an acquittal and for a retrial under Part 10 of the Criminal Justice Act 2003 (“CJA 2003”). Part 10 is entitled “Retrial for Serious Offences” and concerns cases where, amongst other conditions, new and compelling evidence incriminating the acquitted person is available. 2.26 The prosecution can also challenge an unduly lenient sentence, with leave, by way of an Attorney-General’s reference to the Court of Appeal.19 The Court of Appeal may alter the sentence. CHALLENGING PRE-VERDICT RULINGS 2.27 To explain the different ways in which a ruling of the Crown Court made before or during the course of a trial may be challenged, we need to set out something of pre-trial procedure. Plea and Case Management Hearings 2.28 All cases tried on indictment are preceded by a Plea and Case Management Hearing (“PCMH”). They are held before a jury is empanelled. They do not constitute the start of the trial. At PCMHs the judge may make rulings. They are more usually concerned with management of the case (such as setting a timetable) and not the kind of ruling which would give rise to a challenge. They may, however, be the subject of a prosecution appeal under section 58 of the CJA 2003.20 Preparatory hearings 2.29 “Preparatory hearings” are confined to certain trials on indictment. The hearing, which must take place before the jury is sworn, marks the beginning of the trial. Unless he or she has previously done so, the defendant enters a plea to the charge at the start of the hearing. 2.30 A preparatory hearing must be held in a terrorism case.21 It may be held in serious or complex fraud cases,22 in cases to be heard without a jury,23 and in complex, serious or lengthy cases,24 provided that the judge is satisfied that: “substantial benefits” will accrue from holding the hearing “for one or more specified purposes”.25 19 Criminal Justice Act 1988, s 36. 20 See paras 2.33 to 2.35 below. 21 Criminal Procedure and Investigations Act 1996, s 29(1B). “Terrorism offence” is defined in s 29(6). 22 Criminal Justice Act 1987, s 7(1). 23 Criminal Procedure and Investigations Act 1996, s 29(1A). 24 Criminal Procedure and Investigations Act 1996, s 29(1). 25 Criminal Justice Act 1987, s 7(1) and Criminal Procedure and Investigations Act 1996, s 29(2). 17 2.31 The preparatory hearing regime has its own appeal procedure. This procedure enables both the prosecution and the defendant, with leave, to appeal to the Court of Appeal against certain rulings and orders made by the judge in the course of a preparatory hearing. Pending the determination of the appeal, the judge can continue with the preparatory hearing, but no jury can be sworn until the appeal has been determined (or abandoned). 2.32 The case law on the interpretation of the specified purposes, on what rulings can be made as part of a preparatory hearing, and on which rulings may be appealed, is far from straightforward. Section 58 appeals26 2.33 Section 58 of the CJA 2003 enables the prosecution to appeal to the Court of Appeal against judicial rulings made in trials on indictment (including at a preparatory hearing and a PCMH). Conditions in section 58 need to be complied with. There is no right of appeal unless the undertaking – that the defendant will be acquitted if the appeal is not successful – is given at the time and on the occasion prescribed in the statute.27 If the prosecution is unsuccessful in its appeal the effect is to terminate the trial in respect of the offence in respect of which the appeal is made. Consequently the prosecution tend not to appeal under this section unless the ruling in question has the effect of leading to an acquittal. Such rulings are often referred to as “terminating rulings”, but the phrase does not appear in the statute and the Court of Appeal has said the phrase should be avoided.28 2.34 The appeal under section 58 is, broadly speaking, for the kinds of ruling which formally end the trial, such as a ruling that there is no case to answer, or which have the de facto effect of terminating the trial. Seeking an Attorney-General’s reference will allow an error of law to be corrected for future cases (see paragraph 2.24 above), but appealing under section 58 allows the instant prosecution to proceed if the Crown is successful. 2.35 There is provision in the CJA 2003 for a similar right of appeal in relation to evidentiary rulings, but this has not been brought into force. Appeal against an order for trial without a jury of sample counts 2.36 An application for an order for trial without a jury of sample counts pursuant to section 17 of the Domestic Violence, Crime and Victims Act 2004 must be made at a preparatory hearing. An appeal against it may be made in the same way as an appeal against a ruling in a preparatory hearing.29 26 This route of appeal followed on recommendations by the Law Commission in its report on Prosecution Appeals, Double Jeopardy and Prosecution Appeals (2001) Law Com No 267 Cm 5048. 27 See R v NT [2010] EWCA Crim 711. 28 Y [2008] EWCA Crim 10; [2008] 1 Cr App R 34 at [20]. 29 Domestic Violence, Crime and Victims Act 2004, s 18(5). 18 Interpretation in the case law of section 29(3) 2.46 The exclusions in sections 29(3) and 28(2) are in almost identical terms. Almost all the case law has been on the interpretation of section 29(3). Section 28, and the reforms of it which we seek, is discussed more fully in Part 7 below. 2.47 The exclusionary bar applies only to decisions of the Crown Court; it does not affect the High Court’s jurisdiction over other bodies, tribunals or courts.37 The “pointers” 2.48 The case law provides various “pointers” to interpretation of section 29(3). The pointers indicate that review of a decision should be excluded if the decision: affected the conduct of the trial in any way;38 was an integral part of the trial process;39 was an issue arising between the Crown and defendant formulated by the indictment;40 was not truly collateral to the trial;41 or is in substance the answer to some issue between the prosecution and the defence arising during a trial on indictment.42 2.49 The fullest recent explanation of the scope of section 29(3) is that given by Lord Browne-Wilkinson in R v Manchester Crown Court, ex parte DPP, which concerned the quashing of an indictment. He said, 37 See Laws LJ in the Divisional Court decision in R v DPP ex p Kebilene [1999] 4 All ER 801, 819, and Lord Steyn at [2000] 2 AC 326, 369. 38 Re Smalley [1985] AC 622, 642 to 643 by Lord Bridge, and Re Ashton [1994] 1 AC 9, 20 by Lord Slynn. 39 Re Sampson [1987] 1 WLR 194, 196 to 198 by Lord Bridge. 40 R v Manchester Crown Court, ex p DPP [1993] 1 WLR 1524, 1530 by Lord Browne- Wilkinson. 41 R v Manchester Crown Court, ex p DPP [1993] 1 WLR 1524, 1530 by Lord Browne- Wilkinson. 42 R v DPP, ex p Kebilene [2000] 2 AC 326, 394 by Lord Hobhouse. 21 With one possible exception (to which I will return) the only decisions of the Crown Court which have been held to be reviewable are those in which either the order was made under a wholly different jurisdiction eg binding over an acquitted defendant (R v Inner London Crown Court, Ex parte Benjamin (1986) 85 Cr App R 267) or the order sought to be reviewed has been made against someone other than the defendant. Thus the Divisional Court has been held to have jurisdiction to review decisions estreating a recognisance given by a third party (Smalley), ordering solicitors to pay costs thrown away (per Megaw LJ in R v Smith (Martin) [1975] QB 531, 544–545, approved by Lord Bridge in In re Smalley [1985] AC 622, 644) for an order forfeiting a motor car belonging to someone other than the defendant which had been used by the defendant in the course of drug dealing: Reg v Maidstone Crown Court, Ex parte Gill [1986] 1 WLR 1405. It may therefore be a helpful further pointer to the true construction of the section to ask the question, “Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?” If the answer is “Yes,” then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is “No,” the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore it may well not be excluded by the section.43 Difficulties with the interpretation of section 29(3) 2.50 As we stated in CP 184, the interpretation in the case law has been problematic. Even the “pointers” given by the House of Lords have not always helped the courts: in Lipinski44 Mr Justice Stanley Burnton thought that the pointers went in opposing directions. He said that in Smalley45 the pointer tended to indicate “that matters of procedure, as well as substance, are within the expression”,46 but Lord Browne-Wilkinson’s formulation in DPP v Manchester Crown Court47 “would seem to indicate that procedural matters might be outside the exclusion”.48 2.51 The law has developed on a case by case by case basis within the parameters of the “pointers” expressed by the House of Lords. The following are matters that have been held to relate to trial on indictment and, therefore, are not reviewable: 43 R v Manchester Crown Court, ex parte DPP [1993] 1 WLR 1524, 1530. 44 [2005] EWHC 1950 (Admin), [2005] All ER 62. 45 [1985] AC 622. 46 R (Lipinski) v Wolverhampton Crown Court [2005] EWHC 1950 (Admin), [2005] All ER 62 at [11]. 47 [1993] 1 WLR 1524. 48 R (Lipinski) v Wolverhampton Crown Court [2005] EWHC 1950 (Admin), [2005] All ER 62 at [13]. 22 (1) a refusal to award an acquitted defendant his or her costs out of central funds;49 (2) a refusal to award costs in respect of costs incurred as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings;50 (3) an order discharging a jury;51 (4) an order in relation to the taking of steps to vet a jury panel;52 (5) an order that an indictment lie on the file marked “not to be proceeded with without leave”;53 (6) the refusal of a Crown Court judge to grant legal aid;54 (7) the decision of a Crown Court judge to order a defence solicitor personally to pay the costs occasioned by the granting of a defence application for an adjournment;55 (8) a refusal to fix a date for trial until a certain event occurred, such as the trial of another matter;56 (9) a decision to quash an indictment for want of jurisdiction to try an offence;57 (10) an order to stay criminal proceedings on the grounds of abuse of process;58 (11) an order refusing to stay criminal proceedings on the grounds of abuse of process;59 (12) the issue of a witness summons under section 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965;60 49 Re Meredith [1973] 1 WLR 435, R v Canterbury Crown Court, ex parte Regentford Ltd [2000] All ER 2415, and R v Harrow Crown Court ex parte Perkins (1998) 162 Justice of the Peace 527. See CP 184, paras 3.13, 3.17 to 3.19, and 5.36. 50 R (Commissioners for Customs and Excise) v Leicester Crown Court [2001] EWHC Admin 33. 51 Ex parte Marlowe [1973] Criminal Law Review 294. 52 R v Sheffield Crown Court ex parte Brownlow [1980] QB 530. 53 Ex parte Raymond [1986] 1 WLR 710. 54 Ex parte Abodunrin (1984) 79 Cr App Rep 293. See CP 184, para 5.79. 55 Smith [1975] QB 531. However, see now s 50(3) of the Solicitors Act 1974. 56 Ex parte Ward [1996] Criminal Law Review 123. 57 R v Manchester Crown Court ex parte DPP [1993] 1 WLR 1524. 58 Re Ashton [1994] 1 AC 9. See CP 184, para 2.102(9) and 5.23. 59 R (Salubi) v Bow Street Magistrates’ Court [2002] EWHC 919, [2002] 1 WLR 3073. 60 Ex parte Rees, The Times 7 May 1986. 23 (11) the refusal of a judge to recuse himself on hearing a wasted costs application;79 and (12) a third party application for a declaration.80 79 R (AB) v X Crown Court [2009] EWHC 1149 (Admin), [2009] All ER 230. 80 R (TB) v The Combined Court at Stafford [2006] EWHC 1645 (Admin), [2007] 1 WLR 1524. See CP 184, paras 2.103(10) and 2.126. 26 PART 3 THE CONSULTATION PAPER PROPOSALS 3.1 The complexity of the current possibilities for appeal and review are evident from the description of the current law in the previous Part. The overall objectives of the proposals were to clarify and simplify the routes of appeal/review and to provide a new means of appeal to prevent breaches of rights under the European Convention on Human Rights. REMOVE CASE STATED AND JUDICIAL REVIEW 3.2 The general thrust of the proposals was to remove case stated and judicial review for criminal matters in the Crown Court and to provide new means of statutory appeal to the CACD. 3.3 We proposed a wholly new statutory appeal, as described at paragraphs 3.5 to 3.10 below. As regards the appellate jurisdiction of the Crown Court, we also proposed extending some existing statutory rights of appeal to the CA as described at paragraphs 3.11 to 3.19 below. JUDICIAL REVIEW AND THE FIRST INSTANCE JURISDICTION 3.4 We thought that repealing section 29(3) and thus removing the possibility of judicial review in relation to the whole of the first instance jurisdiction was too simplistic a solution. We concluded that “the Court of Appeal will require a means of performing the role, whether or not enhanced, that the High Court currently performs when it hears applications for judicial review of decisions and rulings made by the Crown Court when exercising its first instance jurisdiction”.1 We thought there were instead two options: giving the power to the CA to hear all applications for judicial review which would currently be heard by the High Court, or creating a new statutory appeal to the CA, based on judicial review principles. We thought the second of these was to be preferred, and so we developed the proposed new statutory appeal in the CP to replace judicial review in criminal proceedings. THE NEW STATUTORY APPEAL 3.5 The new statutory appeal was to have the following features: It would not be available in respect of any conviction, acquittal or sentence, nor for any ruling for which a statutory right of appeal already existed. An appellant would have to obtain the leave of the Crown Court. It was not a simple merits-based appeal, but was to be available only if the ruling in question was: wrong in law; involved a serious procedural or other irregularity; or 1 Para 4.53 of CP 184. 27 was one that no competent and reasonable tribunal could properly have made.2 The CA was to have the power to confirm, reverse or vary the ruling or remit it to the Crown Court with its opinion. The new statutory appeal and the first instance jurisdiction 3.6 The basis on which the new statutory appeal could be made would differ depending on one of three different stages reached in the proceedings: (1) whether before the jury had been sworn, (2) after it had been sworn but before it had been discharged, or (3) after it had been discharged. 3.7 We also put before consultees the possibility of using a different cut-off point: instead of the swearing of the jury, using the point on or after the day on which the trial proper was listed to start. After the jury had been discharged 3.8 The most generous regime applied after the jury had been discharged: this right of appeal would be available to any person directly affected by the order of the Crown Court (including the prosecution as well as third parties). Before the jury was sworn 3.9 The next most generous regime was that applying before the jury was sworn: it was to be available to the defendant or a directly affected third party, but not the prosecution. As well as showing that the grounds were made out, the appellant would have to show either that he or she would have no other adequate remedy or that, even if there was some remedy available, the potential advantages of permitting the appeal were such as to make it the right course. After the jury was sworn but before it was discharged 3.10 The most restrictive regime applied after the jury had been sworn and before it had been discharged – broadly speaking, during trial. In this situation, the defendant or directly affected third party would have to show that the judicial review-type grounds were made out, that he or she would have no adequate remedy without the appeal, and that the ruling in question affected his or her liberty or was one which was unlawful because it contravened a right (“a Convention Right”) under the European Convention on Human Rights (ECHR). Again, this regime was not going to benefit the prosecution. THE CROWN COURT’S APPELLATE JURISDICTION 3.11 With regard to the appellate jurisdiction, we proposed that the CAA 1968 should be extended to allow an appeal by the defendant, with leave, to the CACD from the Crown Court. This route of appeal would replace case stated and judicial review in relation to the appellate jurisdiction. 2 What we call “judicial review-type grounds”. 28 PART 4 THE RESPONSE OF CONSULTEES (1): THE CROWN COURT IN ITS APPELLATE JURISDICTION 4.1 Some of the proposals in the CP were about the appellate jurisdiction of the Crown Court. The difficulties which consultees identified in those particular proposals affect the CP proposals as a whole. This is because some consultees doubted that the proposed scheme was “worth the candle”, and if the proposals on appellate jurisdiction are removed, that argument is even stronger. We therefore discuss the proposals relating to the appellate jurisdiction in this Part, before considering the proposed new statutory appeal in the round in the next Part. SUMMARY OF THE PROPOSALS IN THE CONSULTATION PAPER 4.2 We provisionally proposed abolishing appeal by case stated and judicial review as means of challenging decisions made by the Crown Court in criminal proceedings, including decisions made when exercising its appellate jurisdiction. We proposed that appeals against conviction or sentence should, broadly speaking, be made to the CACD in the same way as appeals against conviction or sentence resulting from a trial on indictment. Where the judge made a ruling which was not susceptible to appeal in that way, the defendant or a directly affected third party would be able to make use of the proposed new statutory form of appeal. A SIGNIFICANT BACKGROUND DEVELOPMENT 4.3 It is appropriate at this point to recall part of the context in which this reference came to the Commission. Eminent judges had referred to the difficulties in interpreting section 29(3) of the SCA 1981 and their views inspired the reference, but another important part of the background was Lord Justice Auld’s review of the criminal courts. He looked at the system as a whole and recommended streamlining the criminal process. He would have preferred to see only one route of appeal from the “Magistrates’ Division” (magistrates’ court), to a judge only at the Crown Division (Crown Court), subject to permission. From the Crown Division, appeal would lie to the Court of Appeal.1 He also recommended that the only appeal from the Crown Division acting in its appellate capacity should be to the Court of Appeal (with permission and only in special circumstances), removing case stated and judicial review. 1 Auld LJ, Review of the Criminal Courts of England and Wales (September 2001) ch12, para 30. 31 4.4 One of the difficulties with the proposals in the CP to remove case stated and judicial review in respect of the Crown Court’s appellate jurisdiction and to extend the CAA 1968 instead, is that, without Lord Justice Auld’s recommendations as regards magistrates’ courts being effected, the result would be to introduce an additional layer of appeal. Such a result would be contrary to one of the principles which Lord Justice Auld adopted, “that only one level of appeal should be the norm”,2 and also to one of the aims of this project, namely, to simplify the appeals process. 4.5 This warrants further explanation: Lord Justice Auld envisaged one route of appeal from the magistrates – to the Crown Division – and a limited means of challenge thereafter. Lord Justice Auld recommended that the defendant’s right of appeal to the Crown Court from the magistrates by way of rehearing should be abolished and replaced by a right of appeal, with leave, to the Crown Court constituted by a judge sitting alone on the ground that the conviction was unsafe.3 The proposals in the CP would, necessarily,4 leave in place all three existing routes of challenge to magistrates’ cases – judicial review, case stated and appeal by way of rehearing – and provide in addition a route of appeal (with leave) to the CACD on the ground that the conviction was unsafe, a less limited basis than is currently possible. GENERAL RESPONSE ON CONSULTATION 4.6 We asked consultees whether they thought the new statutory appeal and the extended appeal rights we proposed in place of judicial review and case stated would be an adequate substitute for case stated and judicial review.5 4.7 The Law Reform Committee of the Bar Council did not wish to see judicial review abolished for criminal proceedings of the Crown Court, in this context or any other. 4.8 The OCJR and the CPS were concerned that, as regards the appellate jurisdiction, the proposals entailed reducing the options for challenge open to the prosecution. They thought rather that the prosecution should be able to challenge acquittal and sentence. 4.9 Master Venne, Registrar of Criminal Appeals and Master of the Crown Office, agreed with this aspect of the proposals in relation to convictions, with some reservations, but not in relation to sentence, and we now turn to that important issue. 2 Auld LJ, Review of the Criminal Courts of England and Wales (September 2001) ch12, para 37. 3 This recommendation was not accepted by the Government. 4 Because magistrates’ courts are outside our remit. 5 We discuss case stated in Part 7 below. 32 APPEAL AGAINST SENTENCE By the defendant 4.10 Under the current law, a defendant in any of the following categories may, subject to obtaining leave or on certificate from the Crown Court,6 appeal to the Court of Appeal against the sentence imposed. The categories are: (1) one who is convicted in a trial on indictment;7 (2) one who is sentenced by the Crown Court having been committed to that court for sentence by the magistrates’ court;8 or (3) one who is dealt with by the Crown Court for breach of an earlier sentence, such as a conditional discharge or a suspended sentence.9 4.11 An appeal may succeed if: the sentence is not justified by law; the sentence has been passed on the wrong factual basis; irrelevant matters have been taken into account or relevant matters have not been taken into account; or the sentence is manifestly excessive or wrong in principle. Following an appeal by way of rehearing in the Crown Court 4.12 Defendants whose cases are originally heard in the magistrates’ court do not, under the current law, have access to the Court of Appeal as just described. A defendant who is sentenced by the Crown Court when exercising its appellate jurisdiction may not appeal against the sentence to the Court of Appeal.10 A defendant wishing to appeal against such a sentence must apply to the High Court for judicial review or appeal to the High Court by case stated on the grounds that the sentence “is wrong in law or is in excess of jurisdiction”.11 This is a more demanding test to satisfy than having to show that a sentence is “manifestly excessive”. 4.13 Our proposal was to move all appeals from the High Court to the CACD, extending the Criminal Appeal Act 1968. Thus one effect of the proposal would be a slight change in the test applicable to defendants challenging sentences by the Crown Court in its appellate jurisdiction, the change being in the defendant’s favour. 6 Criminal Appeal Act 1968, s 11(1) and 11(1A). 7 CAA 1968, s 9. 8 CAA 1968, s 10(2)(a) and (3). 9 CAA 1968, s 10(2)(b) and (3). 10 CAA 1968, s 10(1). 11 SCA 1981, s 28(1). 33 would require a reasoned judgement akin to a summing up (reminding themselves of the law, their powers and the evidence) in order to enable this Court to see how the decision was made. This could potentially result in an increase in the work of Crown Court judges. 4.26 Such an increase in workload would not be welcomed. If a reasoned judgment were only required after leave to appeal had been given, that would mean a delay between the case being heard at the Crown Court and the judgment being put in a form suitable for the Court of Appeal, with the concomitant difficulties. If it were required in order for the leave decision to be made, then it would be required in a large number of cases. To give an idea of the number of cases, we note that between 2000 and 2007 the Crown Court received between 4,480 and 5,821 appeals against verdict in the magistrates’ court. Of those, between 1,390 and 1,840 were unsuccessful.17 We cannot say what proportion of those defendants might seek leave to appeal against the dismissal of their appeal. Leave for an appeal from a rehearing 4.27 If there is a rehearing in the Crown Court from a magistrates’ court trial and a defendant is convicted again, under the current law he or she does not need leave to state a case (though the Crown Court might refuse to state a case if it thinks the appeal wholly ill-founded). We proposed that leave should be required.18 While this entails a new stage in the case which would not otherwise have been required for some cases, the imposition of a leave requirement may mean that some appeals which would have had to be heard under the case stated route would not be heard because they would not be granted leave. Those consultees who commented were content with this suggestion. 4.28 We put forward for consultees’ consideration the possibility of an enhanced leave requirement where a person is appealing a conviction where the Crown Court was exercising its appellate jurisdiction.19 We did not ourselves favour the enhanced leave requirement. The CPS was the only respondent who did favour it. Tony Edwards thought it would introduce an unnecessary complication, as did the OCJR. 4.29 Master Venne thought it arguable that the test should be the same as in appeals from the Crown Court in its trial jurisdiction. This is because appeals heard by the Crown Court start afresh – proceeding by way of rehearing – and so the issues may not be the same as the issues at the original trial. 4.30 We therefore conclude that, if this proposal were pursued, there would be no need for an enhanced leave requirement, as it would only be an unnecessary complication. 17 See table 6.10 of Judicial and Court Statistics 2007 (September 2008) Cm 7467. See, however, table 6.1 of Judicial and Court Statistics 2008 (September 2009) Cm 7697, which gives a different picture. Far higher figures appear, though they represent all appeals against decisions in the magistrates’ courts; appeals against conviction, sentence or any other kind of appeal are undifferentiated. 18 Proposal 8.2. 19 Paragraphs 4.21 and following and question 9.6 in CP 184. 36 CONCLUSION 4.31 If challenges to sentence should not be brought within the ambit of the CAA 1968, for the reasons expounded by Master Venne, judicial review would have to remain (though case stated could be removed, as discussed in Part 7 below). 4.32 If challenges to conviction on rehearing also cannot be brought within the ambit of the CAA 1968 – because it does not make sense to split them off from challenges to sentence – then judicial review again has to remain for that purpose. 4.33 In CP 184, because we were proposing removing the prosecution’s right to appeal by way of case stated, we proposed extending the Attorney-General’s reference on a point of law20 and the prosecution appeal under section 58 of the CJA 2003.21 If judicial review remains for rulings in the appellate jurisdiction, then it should be available to the prosecution too, as now, and there is no need to alter the provisions regarding the Attorney-General’s reference or section 58 appeals. 4.34 It is then evidently advantageous to leave judicial review available as a means of challenge to interlocutory rulings in the appellate jurisdiction. 4.35 The overall conclusion is that the case for abolishing judicial review in relation to the appellate jurisdiction is not made out. This weakens any argument for removing judicial review in respect of any other jurisdiction of the Crown Court. 20 Proposal 8.4. 21 Proposal 8.3. Such appeals are described at paras 2.33 to 2.35 above. 37 PART 5 THE RESPONSE OF CONSULTEES (2): THE NEW STATUTORY APPEAL AND THIRD PARTY RIGHTS 5.1 As described in the previous Part, queries were raised by some consultees on the proposals about the appellate jurisdiction of the Crown Court and, on considering the difficulties they pointed out, we have concluded that we should not proceed with those CP proposals. The consequence is that one of the advantages of the CP proposals – that they would streamline the criminal appeals procedures – was weakened. 5.2 In this Part we consider consultees’ responses to the new statutory appeal we proposed in CP 184.1 Following consultation, we have decided that we also should not proceed with those proposals in the form described in the CP, as we now explain. THE OBJECTIONS TO THE NEW STATUTORY APPEAL 5.3 Respondents had serious concerns about the proposed new statutory appeal. Their objections were based on the conceptual difficulty of “no adequate remedy”, on principle, on the leave aspect of the proposals, and on practical grounds, and we now discuss each of them in turn. The conceptual difficulty of “no adequate remedy” 5.4 The concept of “adequate remedy” was employed in CP 184 in two specific contexts: in the new statutory appeal proposed for trials on indictment before the jury is sworn,2 and in the new statutory appeal proposed for trials on indictment after the jury is sworn and before it is discharged,3 – in other words in relation to the new statutory appeal pre-trial and during trial. Those proposals were then used as the foundation of other proposals.4 5.5 The concept of “adequate remedy” was to act as an exclusionary test in the proposals in the following way. If a defendant or third party sought to appeal a determination, judgment, order or ruling (“the decision”) before the jury was sworn, or after it was sworn but before it was discharged, he or she would have to show, amongst other things, that he or she would have no adequate remedy in respect of the decision without the proposed right of appeal. 1 It is described at paras 3.5 to 3.10 above. 2 Proposals 8.15 and, in the alternative, 8.16 of CP 184 which proposed the listing of the trial as an alternative cut-off point to the time when the jury is sworn, but was otherwise the same as 8.15. 3 Proposals 8.13 and, in the alternative, 8.14, of CP 184. 4 Such as proposal 8.17 of CP 184 (treating decisions about the composition of the jury as being ones made after the jury has been sworn), and, where the Crown Court is acting in its appellate capacity, in the proposal about appeals against decisions and rulings before the appeal is determined (proposal 8.20). 38 5.15 The defendant’s post-conviction right of appeal clearly is of no avail to defendants who are acquitted, to the prosecution, or to third parties. It is also irrelevant to convicted defendants in some circumstances. For these people, a post-conviction right of appeal cannot be an adequate remedy. The absence of any appeal against a refusal of leave to appeal 5.16 A third objection to the new statutory appeal which some consultees raised was the absence of any appeal against a refusal of leave to appeal. 5.17 The exercise of the proposed new statutory appeal depended on the appellant obtaining leave. We proposed that the Crown Court should give leave to appeal against the ruling in question and, if leave was refused, that would be the end of the matter.14 Only one respondent (the CPS) agreed with this proposal. Those who disagreed did so strongly. There was a general view that the proposal was contrary to the usual practice in criminal justice and possibly non-compliant with the Human Rights Act 1998. Respondents argued that there would need to be a way of appealing against a refusal of leave, and that appeal would have to go to a level senior to the Crown Court judge who had refused leave. We accept these criticisms. 5.18 In some cases, the judge who made the decision will be prepared to grant leave for it to be challenged. Given that likelihood, there does not seem to us any advantage in requiring leave always to be sought at a higher level. It therefore seems more practical to suggest that leave may be given in the first instance by the trial judge, but with a right to appeal to a single judge of the CACD if leave is refused. The practical consequences of the proposed new statutory appeal 5.19 Various practical consequences of the proposed new statutory appeal gave rise to potential problems. In brief, it appeared that it would be used against a wide range of rulings, repeatedly, and it could be used by people other than parties to the proceedings. It would undermine the existing preparatory hearing regime. Lastly, it would increase the burden on the criminal justice system. We now describe consultees’ objections on these grounds. The breadth of the proposed appeal 5.20 A major cause for concern amongst consultees was the potential breadth of issues which could be the source of challenges during trial, and the consequent risk of increased satellite litigation. Consultees pointed out that applications for adjournments, decisions about reporting restrictions, about special measures,15 could all generate applications to make use of the new statutory appeal. 5.21 A second major cause for concern was the fact that the proposed appeal would be available not just to the parties, but also to victims, witnesses and any directly affected third party. We discuss the position of third parties in detail at paragraphs 5.60 to 5.87 below. 14 Proposal 8.8, question 9.24 of CP 184. See also paras 5.52 and 5.53 of CP 184. 15 “Special measures” are steps which a court can require to make it easier for a witness to give evidence. 41 The difficulties created by having different rules for pre-trial appeals from appeals after the start of the trial 5.22 Our proposals in the CP distinguished between rulings made at three different stages of a trial on indictment: before the jury was sworn, after it was sworn and before it was discharged, and rulings made after the jury was discharged. Consultees thought that if the rules governing pre-trial appeals were different from those governing appeals after the trial had started, that would have a number of undesirable effects. 5.23 First, it would lead to inconsistent decisions across courts. Secondly, pressure to resolve matters “pre-trial” would conflict with the target for trials to be effective.16 Thirdly, if there is significance in a cut-off point – namely the likelihood of being able to obtain a review is greater on one side of the cut-off point than the other – that not only puts pressure on parties and the judge to have an issue discussed at a particular point in the process, but it also creates a new point against which an appeal may be taken. 5.24 If the reality were that pre-trial issues are in fact addressed in advance of the trial being listed, then the possibility of a challenge would not derail the trial to the same extent. Feedback from discussion with the CPS and Crown Court judges suggests it is not, however, the reality. Courts are unwilling to assign judges far in advance of a trial date to particular cases; judges are unwilling to make rulings which bind their successors; counsel is unwilling to seek a ruling which will bind the advocate who is going to conduct the trial. So in practice, issues which should be addressed before the date a trial is listed are not. Further, practice varies a great deal around England and Wales. 5.25 We accept that it is not desirable to have different rules pre-trial from those which apply during a trial. The impact of the proposed new statutory appeal on existing interlocutory appeals 5.26 There already exists a variety of interlocutory appeals, available in a range of circumstances and for different purposes.17 For example, one of the functions of the preparatory hearing regime is to fix the trial judge as having conduct of the hearing. Another purpose is to allow for the possibility of interlocutory appeals, but in restricted circumstances. What, it might be asked, would be the point of the preparatory regime if it became possible to appeal rulings made outside it? If the proposals in the CP were taken forward, the effect would be to undo the boundary between cases where there is or could be an appeal from a preparatory hearing and those where there is not. The justification for opening up pre-trial potential challenges in this way would, in the light of consultees’ disquiet, have to be very strong. 16 The target for trials to be effective encourages a party to move to the point where the jury is sworn. 17 See paras 2.27 to 2.38 above. 42 5.27 We conclude that Professor Ormerod is right when he says that “the solution to these problems [on the interpretation of the statutory provisions governing the preparatory hearing regimes] must now lie with Parliament”18 and that the pre-trial appeals need to be reviewed as a whole. We would add that the routes of interlocutory appeals – and in particular whether they should go all the way to the Supreme Court – is also a question worth exploring. It may be that in due course the Supreme Court will indicate which kinds of interlocutory appeal generally are appropriate for it to hear, but we do not consider that our current terms of reference extend that far. The disruptive effect THE PRE-TRIAL APPEAL 5.28 We proposed that, pre-trial, a defendant or directly affected third party may appeal on the grounds that the determination was wrong in law, involved a serious procedural or other irregularity, or was one that no competent and reasonable tribunal could properly have made if, (a) being unable to appeal forthwith, he or she would have no adequate remedy in respect of the determination, judgment, order or ruling; or (b) he or she, even if unable to appeal forthwith, would have an adequate remedy in respect of the determination, judgment, order or ruling but the potential advantages of permitting an appeal forthwith are such as to make it the right course (proposal 8.15). 5.29 As explained above, the right to appeal following conviction is only relevant to defendants, so limb (a) is no bar to third parties. Even as regards defendants, limb (a) may not serve as a bar if it is irrelevant in some situations (such as in relation to bail, or where his or her life is endangered as a consequence of a court ruling). 5.30 In some cases, establishing whether there is in law another remedy open to a defendant could in itself be difficult: it will be necessary for a court to decide first whether a ruling is or is not one which may be appealed under the preparatory hearing regime, which may not be an easy question to answer.19 Limb (b) 5.31 There is still the effect of limb (b) to consider. Whereas the current law is conservative in terms of pre-trial appeals, limb (b), in effect, had the potential to extend the possibility of appeal to: cases where there has not been and is not going to be a preparatory hearing; cases where there has been a preparatory hearing but the ruling may not be appealed within that regime; and 18 D Ormerod, [2007] Criminal Law Review 731, 735. 19 See H as described at paras 2.70 to 2.89 of CP 184. 43 5.42 Transferring work from the High Court to the CACD is highly unlikely to be cost- neutral.25 (It seems that this is still likely to be the case, even if the new statutory appeal were pursued in an amended form.) The Administrative Court Office noted that the number of cases which they would cease to deal with, under the proposals, was not high enough to be likely to generate savings. 5.43 The Administrative Court might even find it had more cases coming through: in discussion with the Administrative Court Office it appeared that, if magistrates’ decisions are unaffected while all Crown Court challenges have to go via the CACD – a consequence of our proposals – then there might be an incentive for defendants to use case stated/judicial review as a means of challenge to the magistrates’ courts rather than to appeal to the Crown Court.26 The result would be an increase in the numbers of case stated/judicial review of magistrates’ court decisions. 5.44 For any new appeal, whether pre-trial, during trial or post-verdict, there are potential cost implications for the court service, the Criminal Defence Service, the prosecuting authorities, and for witnesses and defendants. As the Criminal Appeal Office noted, it is impossible to assess the potential impact without knowing roughly what number of cases might be affected. 5.45 The Criminal Appeal Office, which would be receiving additional cases under the proposals, noted cost implications arising from new procedures, IT initiatives, training, demands on staff (possibly additional staff). They also thought it particularly difficult to be sure what the impact would be because the number of cases which the new statutory appeal would generate was so hard to estimate. 5.46 The OCJR attempted to estimate the number of cases that might be generated. As a basis for the calculations, the OCJR used data for the number of appeals from the magistrates’ courts to the High Court on the basis of existing appeal rights by way of case stated and judicial review. These data were considered to “bear some resemblance” to the proposals given these appeals “are interlocutory, open to some third parties, and available before, during and after a trial in the magistrates’ court”. A final figure of 640 additional appeals per year from the Crown Court was achieved via a number of steps: 25 The issue of the effect on the respective caseloads of the Administrative Court and of the CACD was raised in our Scoping Paper – Judicial Review of Decisions of the Crown Court (2005) Law Commission. Most respondents to that paper felt unable to say what the effect would be. The Criminal Bar Association thought a corresponding transfer of staff and resources from the Administrative Court Office to the CACD ought to suffice – a natural assumption, but one which was not borne out in discussions with the Administrative Court Office or the Criminal Appeal Office. 26 This is because the options for challenging decisions of the Crown Court might be perceived as more limited, although a party who appeals by way of case stated loses the right of appeal to the Crown Court (Magistrates’ Courts Act 1980, s 111(4)). 46 5.47 First, there were found to be 251 applications for leave to appeal to the High Court in criminal cases in 2005, with approximately 150 applications27 for leave to appeal a year from the magistrates’ court to the High Court.28 5.48 There were 47,200 convictions after a trial in the magistrates’ court in 2006; in the Crown Court a third of a total of 75,000 cases were contested, resulting in 25,233 trials on indictment. If one divides the number of convictions after trial in the magistrates’ court by the number of applications for leave to appeal from that court, then that means approximately one application for leave to appeal for every 314 cases in the magistrates’ court. Accordingly, applying that calculation directly to the Crown Court, “the number of additional applications/appeals would be approximately 25,233  314 = 80 a year”. 5.49 Finally, the number of 80 cases a year was multiplied by eight, given that cases in the Crown Court “are perhaps 8 times more likely to be contested than cases in the magistrates’ court”.29 The OCJR wrote, A more realistic figure for the additional number of appeals resulting from the statutory appeals in their proposed form would be, not 80 a year but 80 X 8 (the greater likelihood of a Crown Court case being contested) = 640 a year. Taking “a” as the unit cost of an appeal in court time and “b” as the unit cost in legal aid time, it may be calculated that the proposals would cost approximately 640 X a + 640 X b per annum to implement. HM Courts Service may be able to supply unit costs for a and b in Court of Appeal cases. It will also be necessary to factor in a greater number of appeals to the House of Lords, and prosecution costs. As noted, these estimates relate only to contested cases. The proposed appeal rights extend beyond the trial itself, applying both after and, more importantly, before the trial, so all 75,000 Crown Court cases are potentially caught. It seems unlikely that there would be many appeals before the trial, but the possibility cannot be excluded. Furthermore, the availability of the potential for delay and disruption may encourage defendants who would otherwise plead guilty to contest cases. 27 The OCJR referred to table D at the end of CP 184, which indicated that fewer than 100 of the 251 applications were from the Crown Court. It was therefore assumed that the remainder were from the magistrates’ courts in criminal matters, and thus there were 150 applications for leave to appeal from the magistrates’ courts to the High Court. 28 Citing Judicial Statistics (Revised) England and Wales for the Year 2005 (August 2006) Cm 6903, 31. 29 This calculation was based on the fact that “only about 1 in 20 to 1 in 25 cases in the magistrates’ court results in a trial and conviction, compared with about 1 in 3 contested cases in the Crown Court”. 47 5.50 One of the principal reasons for the OCJR not agreeing with all the proposals was the “principle in the current difficult financial climate that any change in this area should not generate a net overall increase in costs”. In the light of that opposition, we would have to show strong justification for recommendations which were going to increase costs. The responses from other consultees, particularly from the judiciary, do not disclose that kind of justification for the proposals as they stood. A disproportionate solution 5.51 There was a general view amongst consultees that the changes would not bring enough benefits to make them worthwhile, and the proposed appeal was not a proportionate response to the problems of the current law. THE PROPOSALS WOULD NOT ACHIEVE THE AIM OF SIMPLIFYING THE SYSTEM 5.52 It is acknowledged by the judiciary and by academics that the range and structure of appeal possibilities in the criminal justice system is “incoherent and unsatisfactory”.30 It could be argued that the provisional proposals did not do enough to make the scheme of criminal appeals coherent, and there was a significant risk that they would introduce more complexity. 5.53 While it is true that the proposals would have simplified appeal options by getting rid of case stated and judicial review in relation to rulings by the Crown Court, much complexity would have remained. For example, the significance and scope of prosecution appeals under section 58 CJA 2003 is still being worked out31 – and the case law has already established that such appeals are not open to the prosecution in some situations.32 Additionally, as noted above, a party wishing to appeal pre-trial would have to show that he or she could not appeal under the preparatory hearing regime before beginning an appeal under the new statutory appeal.33 The difficulties in repealing section 29(3) 5.54 Section 29(3) provides a power of review where it would not otherwise exist. We proposed removing it.34 This would have the unwelcome consequence of removing it without providing a substitute form of challenge in relation to two areas (at least). 30 D Ormerod [2008] Criminal Law Review 466, 469, commenting on Y [2008] EWCA Crim 10, [2008] 1 WLR 1683 and referring to J Spencer, “Does Our Present Criminal Appeal System Make Sense?” [2006] Criminal Law Review 677, 689, which in turn refers to the report of Auld LJ: Review of the Criminal Courts of England and Wales (September 2001). 31 See, eg, D Ormerod’s commentary on O, J and S in [2008] Criminal Law Review 892; R v Al-Ali [2008] EWCA Crim 2186, [2009] 1 WLR 1661. 32 Namely, where charges are sent for trial under the Crime and Disorder Act 1998 rather than committed for trial: Thompson and Hanson [2006] EWCA Crim 2849, [2007] All ER 205. 33 This would entail working through H’s “thicket”, as described by Lord Scott: H [2007] UKHL 7, [2007] 2 AC 270 at [30]. See D Ormerod [2007] Criminal Law Review 731. 34 Proposal 8.6 of CP 184. 48 where a person is liable for payment of a penalty imposed on another (such as when a parent, guardian or local authority is liable for a fine, surcharge, costs or compensation order imposed on a child), or is bound over in respect of a child or young person who has been convicted of an offence, that parent or guardian may appeal to the CA against the order as if it were a sentence passed on him or her;44 in relation to a decision of the Crown Court to make, to vary, or not to vary a serious crime prevention order, if the person had a right to make representations at the time of the making of the order.45 5.64 Alternatively, a third party may have no right of appeal, but instead a right to apply for an order to be varied, discharged or withdrawn.46 In other cases, a third party may have only a right to make representations, but not to appeal.47 In some cases the third party simply has a right to be notified of a proposed order, but that right then triggers the possibility of an application to the court by that person.48 The proposals in the CP 5.65 The CP proposed that a right of appeal should be available to the defendant and to “a directly affected third party” or “a person directly affected”.49 We noted that “Parliament has provided only limited rights of appeal to third parties in relation to criminal proceedings in the Crown Court”.50 We cited the example of section 159 of the Criminal Justice Act 1988 under which a third party may appeal against an order restricting the reporting of proceedings. We then said, “we believe that third parties should enjoy the same level of protection as defendants against erroneous decisions. ….”51 44 Powers of Criminal Courts (Sentencing) Act 2000, s 137(7) and s 150(9). 45 Serious Crime Act 2007, s 24. See also 50.3(2) and Part 68 of the Criminal Procedure Rules. 46 As in relation to a restraining order under s 5 of the Protection from Harassment Act 1997 following conviction, or under s 5A of the same Act following an acquittal; or where the court requires a witness to produce a document, the witness may apply for the order to be withdrawn: Criminal Procedure (Attendance of Witnesses) Act 1965 and Part 28 of the Criminal Procedure Rules. 47 As in the following examples (1) Where a defendant is convicted of a sexual or violent offence, in some circumstances the victim may be entitled to make representations on appropriate licence conditions or supervision requirements: ss 35 to 44 of the Domestic Violence, Crime and Victims Act 2004. (2) Where the court makes a Serious Crime Prevention Order (SCPO), if the Crown Court considers that the making or variation of a SCPO “would be likely to have a significant adverse effect” on a person, it must hear representations by that person: Serious Crime Act 2007, s 9(4) and Part 68 of the Criminal Procedure Rules. (3) Where the court makes a compensation order and the defendant applies for it to be reviewed, the beneficiary may be heard by the court. 48 Such as a surety, who has to be notified if the court is thinking of forfeiting a recognizance: Criminal Procedure Rules 19.23(2) and 19.24(2); or a witness, where the court requires a witness to produce a document: Criminal Procedure (Attendance of Witnesses) Act 1965 and rule 28.5 of the Criminal Procedure Rules. 49 Proposals 8.12, 8.13, 8.14, 8.15, 8.16, 8.19 and 8.20. 50 Para 5.56 of CP 184. 51 Para 5.57 of CP 184. 51 5.66 The possibility that a non-party might exercise a right of challenge in circumstances where it is not currently possible provoked much comment from consultees. The impact of the provisional proposals 5.67 The right provided by our proposals did not come into play if there was any other statutory appeal available, and therefore the existing rights of challenge by a third party would continue to be available even if our provisional proposal were pursued. 5.68 Our provisional proposal would have provided a right of appeal in the following situations (and possibly in others): where a court refused the use of a special measure to help a witness, where a court refused an order protecting a person’s anonymity, where a court attached a condition to the bail granted to the defendant, where a court made an order for the protection of members of the jury,52 where a court refused to impose reporting restrictions, where the court designated a particular authority as the supervising authority in a sentencing matter, or where the court refused or failed to make a compensation order. The views of respondents 5.69 Respondents’ concerns fell, broadly speaking, into two categories: how the phrase “directly affected third party” would be interpreted, and the increase in litigation which would result from the extension of rights. 5.70 Master Venne commented that, “it is arguable that a clear definition of ‘a person directly affected’ is required as it potentially has a very wide application”. The CPS was also unclear about the breadth of the phrase: “we would also welcome clarification on the term ‘third party’. The prosecution sometimes represents the interests of victims and witnesses in court. Does the term ‘third party’ include victims and witnesses – as distinct from, for example, a publisher or a campaigning group?” 5.71 The Newspaper Society welcomed the proposals insofar as they widened the doors of the courts to members of the media, and said that the media should have “the opportunity for immediate reversal of open justice restrictions in all circumstances”. 52 Eg, that they should be referred to by number rather than by name: Comerford [1998] 1 WLR 191 at 199. 52 5.72 The OCJR accepted that, just as in some cases a person who is not party to the proceedings might have sufficient standing to apply for judicial review, so a third party might justifiably wish to challenge a court’s decision, but it did not wish to see any extension of that right. It said: Although the parties to criminal proceedings are the prosecutor and defendant alone, third party appeal rights are acceptable within the parameters imposed by section 29(3) [of the SCA 1981] in its current form. General third party appeal rights against any Crown Court decision relating to trial on indictment, as proposed in the paper, are likely to give rise to delay and disruption to proceedings. 5.73 As regards interlocutory appeals, the OCJR said, “… the general principle against interlocutory appeals in relation to trial on indictment should apply to prosecutors, defendants and third parties alike”. The OCJR also put forward the broader argument: …There is an enduring principle that the parties to criminal trials are the prosecutor and the defendant alone. Against this background, one might argue that judicial review is essentially a civil procedure, that multi-party issues are a feature of the civil not the criminal law, and that the third party element of the judicial review jurisdiction should be abolished when the statutory appeal is created. On the other hand, some people might think that this would be an excessively radical move and one going beyond the remit of the current exercise. Our preferred approach at the moment is to preserve without extending the judicial review test in the statutory appeal, namely that the applicant must have a sufficient interest in the matter. It appears that the terminology “a directly affected third party” (and “any person directly affected” …) is intended to re-work this definition. We have some doubts as to the desirability of attempting to rewrite the judicial review test for standing in the context of the present exercise. It raises issues all of its own and has wider implications. 5.74 Some Crown Court Judges and Court of Appeal judges were concerned at the inclusion of third parties, particularly in relation to compensation orders and the plethora of appeals which would be the probable result, as they saw it. 5.75 The Criminal Sub-Committee of the Council of HM Circuit Judges, however, recognised that there are, from time to time, some cases where a third party might wish to intervene and R (TB) v The Combined Court at Stafford [2006] EWHC 1645 (Admin) is a good example of that.53 53 R (TB) v The Combined Court at Stafford [2006] EWHC 1645, [2007] 1 WLR 1524. In that case the court had ordered disclosure of a witness’s medical records, without hearing representations from the witness, and she sought a declaration in relation to that order. 53 5.86 The effect of the proposals in the CP would have been to provide rights in all areas where they do not currently exist. We now think that where there are gaps which give rise to injustice, they are best corrected on a case-by-case basis, and not by a general right of appeal (or of review). This approach would allow the right to be tailored as appropriate. For example, in some situations all the third party might need would be to be heard on an application made by others, whereas in other situations a full right of appeal might be appropriate.58 5.87 We also conclude that if a judge makes a ruling which directly affects a fundamental right of a person it may be justifiable for that person to be able to challenge the decision even if he or she is not a party to the proceedings. OVERALL CONCLUSION 5.88 If the objections to the proposals in relation to the Crown Court’s appellate jurisdiction are heeded, then the scope of our proposed new statutory appeal could only apply in relation to the first instance jurisdiction of the Crown Court. We must also take account of the fact that the High Court would retain jurisdiction in sundry other criminal matters, and therefore, even if we discounted those objections, we still would not succeed in simplifying the system of appeals and review in the way we wished. 5.89 It follows that one of the main benefits of the new statutory appeal is lost, and in consequence it is hard to argue for a new statutory appeal along the lines in the CP. In particular, the interpretation of section 58 of the CJA 2003 and the existing statutory appeals against rulings in preparatory hearings59 mean that we cannot find secure ground for our “no alternative remedy” stance. 5.90 We accept that the practical consequences of the new statutory appeal that we proposed would be undesirable and unpredictable. 5.91 Our proposals were intended to be relatively minor changes within a larger system. That system is itself beset by arbitrariness and uncertainty60 and we have therefore concluded that it is not possible to recommend changes made in isolation which will be worth the cost and effort without a broader overhaul of the whole appellate system. We are not therefore pursuing the CP proposals, and specifically we do not recommend the new statutory appeal in the general form in which it appeared in the CP. 5.92 His Honour Judge Murphy wrote, “… the answer lies in refining the remedy in narrow and specific terms, so that it cannot be abused easily, but is available in proper cases”. We have taken up that challenge and looked at the issues afresh. 58 Procedural rules and guidance can help a third party to benefit from existing court powers. For example, in relation to compensation orders, part of the Prosecutor’s Pledge (in effect October 2005) requires the prosecutor to apply for compensation on behalf of the victim and the Joint police/CPS Witness Care Unit must explain to victims the meaning and effect of the sentence given to the offender in their case: The Code of Practice for Victims of Crime (2005), para 6.8. 59 See paras 2.29 to 2.32 above and para 2.78 and following of CP 184. 60 See footnote 30 above. 56 PART 6 OUR PRINCIPAL CONCLUSIONS 6.1 The general problem at the heart of this report is whether the High Court and the CA should be able to review or change rulings made by the Crown Court in a trial on indictment and, if so, in what circumstances. In this Part we examine the policy considerations which underpin our answer to that question, and we reach conclusions about when a right of challenge to a Crown Court ruling is justified. We discuss the differences between judicial review and appeal to the CACD. We conclude by explaining in which circumstances we think there should be a right to challenge a ruling in a trial on indictment, and whether that should be by way of judicial review or by appeal to the CACD. THE POLICY CONSIDERATIONS 6.2 We have seen in Parts 4 and 5 above that the solutions we proposed in the CP will not work. In reconsidering the problem, we need to return to the underlying justifications for the statutory bar, because they will inform any viable solution. The justifications for the statutory bar are clear from the case law. They are, in themselves, uncontentious: the avoidance of delay to proceedings, and the provision of a remedy where there is none. These policy considerations may work against each other. The “no delay” criterion 6.3 If a trial is held too speedily, then the quality of evidence may suffer and justice will be impaired. However, there is an important difference between unfairness caused by hastily conducted trials which in themselves are uninterrupted, and unfairness caused by excessive or unnecessary delay to a trial otherwise being conducted at the right pace. We are concerned with the latter. Delay is undesirable for a number of reasons, as we have set out at paragraph 1.14 above. To those reasons we might add that delay affects the willingness of witnesses to give evidence, usually adds to the total cost of proceedings, and can be particularly harmful in cases where children or vulnerable people are involved (as witnesses or as defendants). Further, if the defendant is remanded in custody, but is acquitted or does not receive a custodial sentence at the end of the proceedings, then delay means additional and unnecessary time in custody. 6.4 There is a general view evident in the case law and in the responses to the CP that delay to criminal trials is to be avoided. Fair procedure entails minimal delay. As the Sub-Committee of HM Council of Circuit Judges put it in their response, “the rights of all involved in the process to a conclusion of the proceedings within a reasonable time” need to be weighed in the balance. We accept that expedition is a process consideration. If a right of challenge is going to cause delay then, in order to be justifiable, that right of challenge must be essential to give effect to a fundamental right or freedom of the individual. 57 6.5 One reason that a right of challenge might justifiably be permitted, even though it causes delay, can be in the interests of what we called in the CP “waste avoidance”: the more serious, complex or lengthy a trial, the more important it is to ensure that the time, effort and resources devoted to it are not wasted through failure to correct an error made early in the proceedings, before those proceedings continue. 6.6 It would not be appropriate to permit challenges according simply to whether there will in fact be delay to the trial in any particular case, because that would be a question of fact which would vary from one case to another, thus introducing uncertainty and inconsistency. If delay in the instant case was the only criterion then, for example, a highly unfair decision might not be reviewed because the trial was imminent, while in a different case a decision with less serious consequences could be challenged simply because the trial date was further off. 6.7 Another question is whether it is delay of a particular kind of hearing or of the ultimate determination of the issue which is the concern. It might be argued that delay is bad because it causes inconvenience to defendants and jurors, and in particular to witnesses. In that event, it is especially the kinds of hearings in which witnesses will be involved which should not be delayed, namely, any hearing at which evidence falls to be called. This would encompass: a trial before a jury (including retrial), a trial of the issue of fitness to plead,1 a hearing to determine whether D did the act or made the omission charged where D is unfit to plead, a Newton hearing,2 or a trial without a jury. 6.8 By way of contrast, cases where a challenge could not delay a hearing at which evidence falls to be called would be where: (1) the trial has already been completed; (2) there is not going to be a trial because the prosecution offers no evidence (whether a jury has been sworn or not); (3) there is not going to be a trial because the defendant has indicated guilty pleas (and any other counts are not going to be proceeded with).3 1 Heard by a judge, but likely to entail the calling of evidence. 2 A hearing which takes place after a guilty plea, when the facts on which the defendant is to be sentenced are in dispute. 3 D is supposed to enter a plea or give an indication of plea at the first hearing in the Crown Court, if not before: Criminal Procedure Rules 3.8(2)(b). 58 The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time … . Proportionality must be judged objectively, by the court … .12 6.20 Lord Carswell noted also that Lord Bingham “further observed at para 31 that what matters ‘is the practical outcome, not the quality of the decision-making process that led to it’.”13 6.21 In summary, the courts would, we submit, approach the issues as follows. There is a range of conclusions which the Crown Court might reach in response to an application. Within that range, there will be a band of reasonable conclusions. Where a Convention right is engaged, that band may be narrower, and the decision-making court’s approach more constrained, than where no Convention right is engaged. The reviewing court will not decide the matter afresh, but will make its own assessment of how one right is weighed against another, and the intensity of the review will increase if an absolute Convention right or an unqualified obligation is engaged. Archbold puts it thus: The High Court will not simply substitute its own view, but it will subject the decision under review to a degree of scrutiny appropriate to the interest to be protected. In particular, it will need to be satisfied as to the proportionality of the decision.14 Appeal 6.22 Appeal may be as of right, or with leave, and the grounds on which it may be made are likely to be set out in statute. Appeal may denote a rehearing and the court may be able to reach its own conclusions as to the facts (as, for example, in an appeal to the Crown Court from the magistrates’ court) and determine the outcome of the case. The CACD 6.23 The CACD cannot be simply categorised as either an appellate court or as a supervisory court. In some circumstances the CACD is careful not to substitute its own view for that of the jury or of the judge, while in others it is empowered to substitute its view for that of the Crown Court. 12 Re E [2008] UKHL 66, [2009] 1 AC 536 at [52] citing R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 at [30]. 13 Re E [2008] UKHL 66, [2009] 1 AC 536 at [52] citing R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 at [31]. See also R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23, [2010] AC 1 at [12] where Lord Bingham’s observations were relied upon. An example from a different context again shows the High Court needing to go into the merits of the decision, as in R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419 where the Convention right in issue was Article 5 (the right to liberty and security of persons). See also R (JB) v Haddock [2006] EWCA Civ 961, [2006] All ER 137 at [63] to [65] by Auld LJ. 14 Archbold (2010) 7-13. 61 6.24 On an appeal against conviction to the CACD there is no rehearing. The court shall allow the appeal if it finds that the conviction is unsafe.15 The court does not substitute its own view of whether the offence is proved, and the “appeal” is not therefore an appeal in the pure sense. As the Court of Appeal itself has said, “the Criminal Division is perhaps more accurately described as a court of review”.16 6.25 As a court of review, it does not generally make findings of fact or hear evidence. Where the trial judge has made a finding of fact, 1. the Court of Appeal will not intervene merely because the members of the court disagree with the way the trial judge decided; but 2. will do so even if no specific error can be identified, if no reasonable judge could have reached the conclusion to which the trial judge came.17 6.26 When the Court of Appeal reviews the correctness of a point of law, similarly, it does not simply substitute its own view for that of the judge.18 Thus the CACD, when dealing with an appeal against conviction, is carrying out a function which is closer to that of a reviewing court. However, the CACD also hears other kinds of appeals, such as a prosecution appeal against a ruling of the Crown Court,19 or a ruling in a preparatory hearing.20 In relation to these kinds of appeal the CACD may “confirm, reverse or vary” the ruling or decision in question.21 In these kinds of appeals, the CACD is carrying out an appellate function because it may substitute its own view for that of the Crown Court. 15 Section 2 of the Criminal Appeal Act 1968 (as amended by the Criminal Appeal Act 1995) says, (1) Subject to the provisions of this Act, the Court of Appeal- (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case. 16 McIlkenny [1992] 2 All ER 417, 425 by Lords Lloyd, Mustill and Farquharson. Since this judgment, procedure on appeals in civil cases has been modified by the Civil Procedure Rules (introduced in 1999 and amended since). The position in civil law may not now, therefore, be quite as described in this judgment, but there is still a significant difference between appeals to the Civil Division of the CA from appeals to the Criminal Division of the CA. 17 R Pattenden, “The standards of review for mistake of fact in the Court of Appeal, Criminal Division” [2009] Criminal Law Review 15, 19. 18 See, eg, Koc [2008] EWCA Crim 77 [2008] All Er 127 at [27]. 19 CJA 2003, ss 58 to 61. 20 See paras 2.29 to 2.32 above. The governing provisions are s 35(3) of the Criminal Procedure and Investigations Act 1996 or s 9(14) of the Criminal Justice Act 1987. A detailed description is given at paras 2.70 to 2.89 of CP 184. 21 See s 61(1) of the CJA 2003, s 35(3) of the Criminal Procedure and Investigations Act 1996, and s 9(14) of the Criminal Justice Act 1987. 62 What we proposed in the CP 6.27 We proposed a hybrid between review and appeal: we proposed a right of appeal to the CACD on judicial review-type grounds but that the CACD would have appellate powers, meaning the power to substitute its own view for that of the Crown Court judge. The arguments 6.28 The trial judge is frequently best-placed to make a decision, having had conduct of the case, and sometimes having heard evidence on the point at issue. If the CACD is exercising a supervisory function – ensuring that fair procedures are followed – then supervisory powers are sufficient. 6.29 It could also be argued that if the CACD had the power to produce a different result then that in itself would make an application to it more attractive and thus make litigation more likely. 6.30 Against these arguments it may be said that it is the grounds which are key, and so long as the grounds on which a challenge may be made are restricted to judicial review grounds and no appeal on the merits is permitted, then it does not really matter if the reviewing/appellate court has the freedom to make whatever order it thinks fit. It could even be said that such freedom is more likely to lead to just decisions and to save resources by avoiding the need to remit cases to the originating court. 6.31 If it is positively desirable that the “supervising court” should be able to substitute its own view for that of the Crown Court in a case in which infringement of a Convention right does not arise, then the court to which the application needs to be made will be the CACD. 6.32 If, on the other hand, the “supervising court” should have a flexible range of powers which stops short of permitting that court to substitute its own view for that of the Crown Court, then the question as to whether the High Court or the CACD is the appropriate reviewing court remains open. 6.33 Further, in a case where infringement of a Convention right is alleged, it may not matter which court hears the challenge because they will both look to the substance of the decision and not just the decision-making process. 6.34 We now turn to the practical advantages and disadvantages of the supervisory jurisdiction remaining in the hands of the High Court or transferring to the CACD. 63 6.40 If the whole of the High Court’s criminal jurisdiction were to be transferred to the CACD, we could see that it would be beneficial for the “supervisory” jurisdiction currently afforded by section 29(3) of the SCA 1981 to be passed to the CACD, although we would have some reservations about the possible loss of flexibility. Such a transfer would be better as part of a wholesale reform of the system of appeals in criminal proceedings. We do not see this as a realistic possibility in light of the responses we received on consultation and therefore conclude that it is best to retain and reform judicial review. REDUCING THE SCOPE FOR DELAY AND INTERRUPTION TO TRIALS 6.41 In our recommendations we aim to balance the provision of a right of challenge where it is needed against the avoidance of delay or interruption to trials. Our view is that, generally, the High Court ought to be precluded from having jurisdiction over the Crown Court in its trial on indictment jurisdiction, whether by way of case stated or by way of judicial review. 6.42 We therefore conclude that, in the interests of simplifying criminal procedure, appeal by way of case stated from the Crown Court in criminal causes or matters should be abolished. We so recommend in Part 7 below. 6.43 It is clear that the case for excluding judicial review of a trial on indictment once it has reached the Crown Court is strong, and the terms of the exclusionary bar – the statutory provision which prevents the High Court having judicial review jurisdiction over the Crown Court – need to be made clearer. Once, however, the trial has ended, whether with an acquittal, sentence or in some other way, then a challenge by way of judicial review does not have the same disruptive potential. We conclude that there should be a right of review for rulings made following the verdict, other than sentence, where there is no existing right of review or appeal, so long as there is no other remedy. This is the function of our recommendation in Part 8 below. In what circumstances is a right of challenge before the end of the trial justified? 6.44 There is still the question of whether any circumstances justify a right of challenge before the end of a trial on indictment, in addition to those which already exist.29 We have considered whether there are any specific situations where the need to challenge a ruling, and the absence of any alternative way of doing so, do justify delay and interruption to proceedings. We examined the following specific cases: (1) where the court rules that a defendant should be handcuffed before the court; (2) where the decision leads to the release of information which cannot be retrieved, resulting in an invasion of privacy; (3) where the decision leads to the identification of a child or young person; 29 The various possibilities for an interlocutory appeal under the current law are described in Part 2 above. 66 (4) where a person is remanded in custody pending trial or the completion of the trial; and (5) where the decision results in a real and immediate threat to a person’s life. Interruption to a trial is not justified in the following situations 6.45 While we recognise that others may draw the line in a different place, we have concluded that in the first two situations, a right of challenge which can be exercised before the end of the trial is not justified. HANDCUFFING IN COURT 6.46 In our view, where the court orders that a defendant should be handcuffed in court, other remedies are sufficient. For example, if the complaint is that the handcuffing gave rise to prejudice in the jury’s minds which led them to convict unfairly, the post-conviction appeal is, in our view, an appropriate remedy.30 THE RELEASE OF INFORMATION WHICH CANNOT BE RETRIEVED, RESULTING IN A POTENTIAL BREACH OF ARTICLE 8 6.47 There is a variety of judicial decisions which could lead to interference with a person’s rights under Article 8 of the ECHR.31 Such a decision might be: (1) an order for disclosure of personal records or documents or confidential information, (2) a refusal to allow proceedings to be held in camera, or (3) a ruling permitting publication of the proceedings. 30 See, eg Horden [2009] EWCA Crim 388, (2009) 173 Justice of the Peace and Local Government Law 254, where the CACD held that the decision to allow handcuffs in the dock was wrong, but in the circumstances it had not had an adverse effect on the conviction, which was allowed to stand. Handcuffing a defendant is permissible and does not breach Article 3 of the ECHR if it is done only where reasonably necessary to prevent an escape or a violent breach of the peace: Cambridge Justices, ex p Peacock (1992) 156 Justice of the Peace and Local Government Law 895. If it is done to humiliate the individual then there will be a breach of Article 3: Raninen v Finland (1997) 26 EHRR 563; Henaf v France (2005) 40 EHRR 990. See R (Faizovas) v Secretary of State for Justice [2008] EWHC 1197 (Admin), [2008] ACD 345(82) QBD. 31 See para 10.3 below for the terms of Art 8. 67 6.48 We are mindful of the needs of victims, witnesses and defendants to have the trial proceed without undue delay. Interference with a person’s Article 8 rights may be justified under Article 8(2), and give effect to other Convention rights. We note that, as we described in CP 184, even if the original decision breaches a person’s Convention rights in some way, the fact that the decision is not amenable to challenge does not give rise to a further breach.32 We have therefore concluded that it would be disproportionate to introduce a new general right of challenge to any decision which engages Article 8. We have, however, examined specific instances in which Article 8 may be engaged, as we now explain. Challenging an order that personal records or confidential information be disclosed 6.49 We have considered specifically the position of witnesses who are compelled to disclose medical records or similar personal information, and concluded that their position is now protected following amendment to the Criminal Procedure Rules. There should be less need for challenge,33 as compared with the law which obtained in R (TB) v The Combined Court at Stafford).34 We think it is a pertinent point that the right to intervene and have one’s concerns taken into account of at the time the court makes its ruling is more use than a possible right of appeal or review after an order has been made. Challenging a refusal to order that proceedings be held in private 6.50 There are various statutory powers which enable a court to exclude the public,35 and the court has an inherent jurisdiction to do so.36 6.51 Section 159(1)(b) of the Criminal Justice Act 1988 allows any “person aggrieved” to appeal against any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial. 6.52 The Act does not provide a right of appeal where an order is refused altogether. In so ruling, the Court of Appeal has said, 32 See Part 3 of CP 184. 33 By virtue of rule 28.5(3) an application for a witness to produce a document or to give evidence about information apparently held in confidence must be served on the proposed witness and on a person to whom the proposed evidence relates. 28.5(4) provides time for representations to be made. It also prevents the court from issuing a witness summons under rule 28 unless the court is satisfied that “it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates”. Rule 28.6 allows a person served to object to the proposed summons, and rule 28.7 allows him or her to ask the court to withdraw the summons. 34 [2006] EWHC 1645, [2007] 1 WLR 1524. In this case, TB, aged 14, was the main witness in a trial on indictment. She had a history of mental illness which, the defence argued, was relevant to her credibility. The judge ordered the relevant NHS Trust to disclose her medical records to the defence. She was neither notified of that hearing nor represented at it. The Criminal Procedure Rules were changed by Statutory Instrument in 2007. 35 Eg, on a review of a sentence under s 74 of the Serious Organised Crime and Police Act 2005: s 75(2)(a). 36 See, eg, Wang Yam [2008] EWCA Crim 269, [2008] All ER (D) 212 (Jan). 68 6.61 In the case of (1) we recommend that the challenge should be by way of judicial review, as an exception to the prohibition on judicial review once the Crown Court is seised of a trial on indictment, because the court’s role is supervisory. 6.62 In the case of (2) and (3) we recommend that there should be a new statutory appeal for each, to go to the CACD, because the CACD should be able to substitute its own view for that of the Crown Court. We would argue that (2) and (3) represent reforms which would be worthwhile on their own, but we see them as an integral part of the whole. 71 PART 7 REMOVAL OF APPEAL BY WAY OF CASE STATED 7.1 Appeal by way of case stated is a mode of challenge available to parties to the proceedings against court rulings and decisions. In the CP, in the context of proposing a new statutory appeal, we proposed abolishing it (proposal 8.5). In this Part, we recommend abolishing appeal by way of case stated from the Crown Court in criminal causes or matters. THE CURRENT LAW 7.2 The procedure of appeal by way of case stated was recently described by Lord Justice Leveson as, “a request to the court to determine issues of law raised in a case stated by the magistrates after both sides have had an opportunity to comment upon it. Such an appeal is freestanding and depends only upon the facts found by the court.”1 A case may of course be stated by the Crown Court as well as by the magistrates. 7.3 Case stated in the Crown Court is governed by section 28 of the SCA 1981. Section 28 appears in Part II of the Act, which is headed “Jurisdiction”. The section is headed, “Appeals from Crown Court and inferior courts” and reads: (1) Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court. (2) Subsection (1) shall not apply to— (a) a judgment or other decision of the Crown Court relating to trial on indictment; or (b) any decision of that court under . . . the Local Government (Miscellaneous Provisions) Act 1982 which, by any provision of any of those Acts, is to be final. (3) Subject to the provisions of this Act and to rules of court, the High Court shall, in accordance with section 19(2), have jurisdiction to hear and determine— (c) any application, or any appeal (whether by way of case stated or otherwise), which it has power to hear and determine under or by virtue of this or any other Act; and (d) all such other appeals as it had jurisdiction to hear and determine immediately before the commencement of this Act. 1 M v DPP [2009] EWHC 752 (Admin), [2009] All ER 272 at [2]. 72 (4) In subsection (2)(a) the reference to a decision of the Crown Court relating to trial on indictment does not include a decision relating to an order under section 17 of the Access to Justice Act 1999. 7.4 The effect of subsection (4) is that if the Crown Court makes an order requiring a publicly funded defendant to pay some or all of the costs of his or her representation (a Recovery of Defence Costs Order), then an appeal by way of case stated against it is still possible. 7.5 Where a case is stated by the Crown Court, section 28A of the SCA 1981 applies, by virtue of section 28A(1)(b). It reads: 28A. Proceedings on case stated by magistrates’ court or Crown Court (1) This section applies where a case is stated for the opinion of the High Court— (a) by a magistrates’ court under section 111 of the Magistrates’ Courts Act 1980; or (b) by the Crown Court under section 28(1) of this Act. (2) The High Court may, if it thinks fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly. (3) The High Court shall hear and determine the question arising on the case (or the case as amended) and shall— (a) reverse, affirm or amend the determination in respect of which the case has been stated; or (b) remit the matter to the magistrates’ court, or the Crown Court, with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit. (4) Except as provided by the Administration of Justice Act 1960 (right of appeal to the Supreme Court in criminal cases), a decision of the High Court under this section is final. 7.6 Appeal by way of case stated is available in respect of decisions made by magistrates’ courts under a separate statutory provision.2 7.7 Only parties to the proceedings can bring a case stated in relation to a ruling of the Crown Court. 2 Magistrates’ Courts Act 1980, s 111. 73 The disadvantages (1) Getting the facts before the High Court 7.22 The courts have said that it is advantageous in some cases if the appellant proceeds by way of case stated because the factual basis is clearer for the court.13 In R v Morpeth Justices ex parte Ward, which concerned a challenge to a decision by magistrates to bind over the applicant and others, Lord Justice Brooke said: Our task in this case was made unnecessarily difficult because the applicants did not adopt the procedure prescribed by Parliament for referring a point of law which has arisen in a magistrates’ court to the High Court for decision. If the justices had stated a case for our opinion, we would have known what their findings of fact had been and their reasons for the decisions they took and they would have identified the relevant points of law for our decision in the familiar 14way. We query whether this is in practice a frequent problem as regards cases coming from the Crown Court. 7.23 Secondly, it seems to us that this difficulty could be mitigated by the adoption of suitable rules. This is not a matter for us, but, for example, Part 54 of the Civil Procedure Rules (which apply in respect of judicial review rather than the Criminal Procedure Rules) could be adapted if necessary.15 7.24 Alternatively, the matter might proceed by way of case law. There is recent guidance available from the Divisional Court on how judicial review should proceed where there are complicated legal and factual issues, especially where they concern the interpretation of Articles of the ECHR.16 (2) Is judicial review always going to be adequate or appropriate? 7.25 We have considered whether there are cases which could be appealed by way of case stated but which could not be brought within the scope of the legal bases for judicial review. We have not found any where this was the case, nor were any suggested to us on consultation. 13 See, eg R v Crown Court at Ipswich ex parte Baldwin [1981] 1 All ER 596 in which Baldwin was convicted before the magistrates, appealed to the Crown Court and lost the case at the Crown Court. He then sought judicial review, but the court said case stated would be much more appropriate “because then we can get at the facts” (at 596 by Donaldson LJ). 14 (1992) 95 Criminal Appeal Reports 215 at 221. 15 For example, if in an application for permission for judicial review in a criminal cause or matter the applicant were required also to state any relevant facts including the facts found by the Crown Court, (as in rule 64.6(13) of the Criminal Procedure Rules in relation to an appeal to the High Court by way of case stated) then the High Court could be provided with the facts it needs. 16 R (Al-Sweady) v Secretary of State (No 2) [2009] EWHC 2387 (Admin), The Times 14 October 2009. 76 (3) Is it worth the change? 7.26 In the Scoping Paper (July 2005) we said we had not identified any significant problems with the working of section 28(2)(a) of the SCA 1981 and therefore saw no need to simplify this jurisdiction. We did think that the bar on interlocutory case stated could do with being made express in legislation. 7.27 We note that we are not recommending that appeal by way of case stated be abolished altogether. Appeals from the magistrates by way of case stated and appeals from the Crown Court in its civil jurisdiction are outside our terms of reference and would remain. Consultees were content to see case stated removed and we also conclude that it would be a worthwhile simplification. RECOMMENDATION 7.28 In the interests of simplifying criminal procedure, we recommend that section 28(2) of the Senior Courts Act 1981 be amended so as to preclude all orders, judgments or other decisions of the Crown Court made in any criminal cause or matter being challenged by way of appeal by case stated to the High Court. 7.29 The impact of the recommendation is to remove appeal by way of case stated from the Crown Court where it is acting in its appellate capacity, where a defendant was committed to it for sentence, and in any other criminal cause or matter. 7.30 The recommendation is reflected in clause 1 of the Bill. If enacted, this clause would amend section 28(1) and (2) of the SCA 1981 so that they would read: (1) Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court. (2) Subsection (1) shall not apply to— (a) an order, judgment or other decision of the Crown Court in any criminal cause or matter; or (b) any decision of that court under . . . the Local Government (Miscellaneous Provisions) Act 1982 which, by any provision of any of those Acts, is to be final. 7.31 Subsection (3) would be unaffected. Subsection (4) would be amended so that it would read: (4) In subsection (2)(a) the reference to a decision of the Crown Court in any criminal cause or matter does not include a decision relating to an order under section 17 of the Access to Justice Act 1999. 7.32 The effect of subsection (4) is that Recovery of Defence Costs Orders can be challenged by way of appeal by case stated, and our recommendation does not change this. 77 “Order” 7.33 There is a difference between the wording of section 28(1) and section 28(2)(a) of the SCA 1981. Section 28(1) of the SCA 1981 refers to “any order, judgment or other decision of the Crown Court”, but section 28(2)(a) disapplies section 28(1) to “a judgment or other decision of the Crown Court relating to trial on indictment”. We have tried to discover why this is, but have not succeeded. Section 28(1) creates a right of appeal which we wish to remove wholly in relation to criminal causes or matters by virtue of section 28(2)(a), and we have therefore included “order” in the amended section 28(2)(a). “In any criminal cause or matter” 7.34 The recommendation refers to “in any criminal cause or matter”. It does not thus extend to civil proceedings. See clause 1 in the Bill. 7.35 Orders in a criminal cause or matter are not the same as orders collateral to a criminal cause or matter.17 Proceedings for forfeiture of a recognizance from a surety for bail might also be described as collateral to a criminal cause or matter.18 Extent 7.36 Section 28 of the SCA 1981 extends to England and Wales.19 The extent of any amendment is the same.20 Consequential amendments 7.37 In considering the need for consequential amendments we have taken the view that, because case stated will persist as a mechanism of appeal in relation to civil cases and also in relation to criminal cases stated by a magistrates’ court, in many places where legislation deals with appeals by way of case stated, no consequential amendment is needed. We now discuss two cases where consequential amendments are needed. 17 Re O (Restraint order: disclosure of assets) [1991] 2 QB 520 (CA) by Donaldson MR. Restraint orders derived from ss 76 to 82 of the Criminal Justice Act 1988 are civil in character and collateral to the criminal regime. Therefore an appeal from the disclosure order in the restraint proceedings lay to the Court of Appeal (Civil Division). This was approved in Government of the United States v Montgomery [2001] UKHL 3, [2001] 1 WLR 196. 18 R v Southampton JJ ex parte Green [1976] QB 11. 19 SCA 1981, s 153(4). 20 See cl 15(8) of the Bill. 78 7.48 We have considered whether these provisions might have any application if case stated were removed in relation to criminal proceedings before the Crown Court. We have concluded that they could apply where civil proceedings are appealed from the magistrates to the Crown Court, and then there is a further appeal by way of case stated. This might occur where a person is bound over by the magistrates’ courts to keep the peace,27 and appeals to the Crown Court.28 7.49 Where the person has given notice of appeal to the Crown Court, the magistrates may grant bail under section 113 of the Magistrates’ Courts Act 1980, but the Bail Act 1976 does not apply.29 If they refuse bail then the individual may appeal against that refusal to the Crown Court which may grant bail under section 81(1)(c) of the SCA 1981. 7.50 If the appeal at the Crown Court fails, the individual may appeal by way of case stated. At this point the individual might still wish to appeal against a refusal of bail and would seek to rely on section 81(1)(d) of the SCA 1981 if applying to the Crown Court for bail, or on section 37(1)(b) of the Criminal Justice Act 1948 if applying to the High Court for bail. 7.51 These provisions could therefore serve a purpose even if appeal by way of case stated from the Crown Court is removed in any criminal cause or matter, and we have concluded therefore that no consequential amendment is appropriate. Commencement 7.52 We anticipate that all the provisions relating to removal of appeal by case stated should come into effect at the same time, but that they could be implemented independently of other reforms in this report. 7.53 The reform would apply only to decisions made after the date the Bill is brought into force. 7.54 If an application to state a case has already been made but then the reform comes into effect before it has been determined, our view is that it is best for it to proceed. There is a time limit for applying for a case to be stated after all, which is relatively short, and no power to extend it. 27 There are common law powers and various statutory powers for a court to bind a person over to keep the peace. One such, s 115 of the Magistrates’ Courts Act 1980, provides for a complaint to be made to a magistrates’ court, and proceedings started by complaint are normally civil proceedings. In Percy v DPP [1995] 1 WLR 1382, the High Court did not determine whether such proceedings are civil or criminal. Ordinarily they would be considered civil – and there was no criminal charge nor allegation that a criminal offence had been committed – but where there was an attendant threat of imprisonment, the court was inclined to think they are criminal. 28 Under the Magistrates’ Courts (Appeal from Binding Over Orders) Act 1956, s 1(1). 29 Blackstone’s (2010) D28.13. 81 PART 8 JUDICIAL REVIEW OF THE CROWN COURT IN CRIMINAL PROCEEDINGS 8.1 In Part 2 above we described how the interpretation in the case law of the exclusionary bar in section 29(3) of the SCA 1981 has not been consistent. The imprecision of the expression “relating to trial on indictment” has given rise to frequent and costly litigation, and continues to do so.1 The boundaries of the bar are still unclear, and there is no one rationale underpinning the conclusions in the cases. The problem is, in part, one of definition. We aim to recast section 29(3) in clearer terms. 8.2 In Part 6 above we discussed the policy reasons behind the exclusion of judicial review of the Crown Court in trial on indictment. We concluded that, because the risk of delay and interruption to proceedings is less significant once the trial has ended, the boundary needs to be redrawn to permit judicial review of rulings made after the end of a trial. 8.3 We think that both these aims can be achieved by amending section 29(3) of the SCA 1981. Thus section 29(3) would grant jurisdiction over the Crown Court to the High Court (as it does now) but exclude it in relation to the exercise of its trial on indictment jurisdiction up to the end of the trial, and this Part explains how that would work. 8.4 As we state at paragraphs 6.58 to 6.60 above, we think there should be an exception to the prohibition on judicial review for refusals of bail. That exception is described in Part 9 below. OVERVIEW OF THE REFORMED PROVISION 8.5 As is stands, section 29(3) simultaneously grants and prohibits jurisdiction of the High Court over the Crown Court. We follow that model, but we would change the scope of the excluded jurisdiction. In addition, we define an exclusion period with beginning and end points: any decision within that exclusion period is not to be susceptible of judicial review unless it falls within an exception. Exceptions relate to bail, as described in Part 9, and to hospital orders, as described at paragraphs 8.62 to 8.64 below. 8.6 We recommend that the High Court should not have supervisory jurisdiction over decisions in proceedings on indictment in the Crown Court which are within the exclusion period (which we define below) or which we specify in paragraphs 8.59 to 8.61 below, and that section 29(3) of the Senior Courts Act 1981 be amended accordingly. See clause 2 of the Bill and the proposed new section 29A(1) to (3) of the SCA 1981. We describe the exclusion period below. Decisions specifically stated to be within the excluded jurisdiction are described at paragraphs 8.59 to 8.61 below. 1 In 2009 the question came before the High Court whether s 29(3) barred judicial review of a refusal by a judge of the Crown Court to recuse himself when hearing a wasted costs application: R (AB) v X Crown Court [2009] EWHC 1149 (Admin), [2009] All ER (D) 230. 82 Limits of the excluded jurisdiction 8.7 It follows that if the Crown Court is exercising a jurisdiction other than its jurisdiction in proceedings on indictment, then the High Court’s jurisdiction over it is not barred. This will be the case where the Crown Court is acting as an appellate court, is dealing with a person who has been committed to the Crown Court by the magistrates for sentence, is dealing with a person who has been found unfit to plead or be tried, or is exercising some other statutory jurisdiction.2 It will also be the case where the Crown Court is exercising its civil jurisdiction. 8.8 An example of this last jurisdiction would be an application for judicial review by a surety who stands to lose money.3 In R v Southampton Justices ex parte Green,4 which was decided in the Civil Division of the CA, it was held that a recognizance is a “civil debt upon a bond” and an application to estreat a recognizance is a civil application. THE EXCLUSION PERIOD Defining the bar in terms of the stage of proceedings 8.9 The exclusion period is based on a chronological approach: cases move through different stages, and the bar on judicial review is effective for part of the time-line of a case. The High Court should not have jurisdiction over the Crown Court from the moment the latter is seised of a trial on indictment5 up to the end of the trial. 8.10 The exclusion period begins when the case goes from the magistrates’ court to the Crown Court for trial, or when an indictment is preferred6 at the Crown Court via some other route. 2 Such as the power to bind over a person to be of good behaviour. This power is derived from the Justices of the Peace Act 1361 and is exercised according to s 1(7) of the Justices of the Peace Act 1968. 3 A surety is a person who offers a sum of money to the court which he or she will forfeit in the event of the accused not surrendering to the court at the appointed time. The sum of money is called the recognizance. The procedure by which the surety is ordered to forfeit the money is referred to as forfeiture of a recognizance or estreating the recognizance. 4 [1976] QB 11. Comments in subsequent cases indicate that if the issue of what is a criminal cause or matter came before the Supreme Court it could be decided differently. Even if, however, proceedings for forfeiture of a recognizance were held to be criminal, rather than civil, the court would not be exercising its trial on indictment jurisdiction, and so the bar on judicial review that we recommend would not bite. 5 The phrase “trial on indictment” encompasses cases where the defendant pleads not guilty to some or all charges and evidence is then heard, and cases where the defendant pleads guilty and there is no “trial”: Re Smalley [1985] AC 622, 642 by Lord Bridge. 6 “Preferred” is the term used in the primary legislation. It means that the indictment is served on the court officer or is laid before the court. 83