European Court of Human Rights

FOURTH SECTION

Application no. 62793/10
James Lee DUNN
against the United Kingdom
lodged on 22 October 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr James Lee Dunn, is a British national who was born in 1981 and lives in Wakefield. He was represented before the Court by Mr M Merchant, a lawyer practising in Birmingham.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 July 2006 the applicant was convicted of murder at Birmingham Crown Court. He appealed against conviction before the Court of Appeal, claiming that the evidence of one of the principal prosecution witnesses was unreliable since that witness gave inconsistent evidence at later trials. The appeal was dismissed on 23 July 2009. The Court of Appeal relied on case law to the effect that the fact a prosecution witness has been shown to have lied may not be fatal to conviction.

The applicant sought to challenge the way in which the Court of Appeal had dealt with the issue of inconsistent witness evidence by way of appeal to the House of Lords. In order for an appeal to be lodged with the House of Lords (now the Supreme Court) in criminal matters, the Court of Appeal must certify that a point of law of general public importance arises in the case (section 33(2) of the Criminal Appeal Act 1968). The Court of Appeal indicated that it would not certify that a point of law of general public importance arose in the case.

The applicant then applied to the Court of Appeal for a declaration that section 33(2) of the Criminal Appeals Act was incompatible with Articles 6 and 14 of the Convention. The applicant argued that the certification requirement constituted a violation of his rights to an impartial tribunal and his right of access to the Supreme Court.

On 18 June 2010 the Court of Appeal dismissed this application, finding that the certification requirement did not violate the applicant’s rights under Article 6 of the Convention. As regards the challenge to the Court of Appeal’s impartiality, at § 22 the Court of Appeal distinguished between the substantive appeal and the certificate process:

“22.  ... Although Mr. Bennathan does not suggest actual bias, what he is in truth submitting is that in deciding whether to certify the Court of Appeal may be influenced by an oblique motive; the wish to avoid the Supreme Court considering the case and possibly overruling the Court of Appeal’s decision. We entirely reject that. We reject too the suggestion that the “fair minded and informed observer” would conclude that in reaching its decision the Court of Appeal would be so influenced. As Mr. Perry submits, in deciding whether or not to certify the court is not sitting on an appeal against its own decision. It is not determining any criminal charge. It is merely assessing whether its decision contains an important point of law.”

The Court of Appeal also emphasised, at § 22, that the same court was best placed to determine the existence of a point of law of general public importance:

“22.  ... the well informed and rational observer would conclude that the court which reached the decision in the first place is in the best possible position to decide whether a point of law of general public importance was involved in it.”

The Court of Appeal found that Article 6 of the Convention was engaged and that the certification requirement amounted to an interference with the applicant’s right of access to the Supreme Court. However, it continued to find that interference justified. The Court of Appeal reasoned at § 31 that the certification requirement pursued the legitimate aim of a filtering mechanism to control the Supreme Court’s caseload:

“31.  In our view it is clear that section 33(2) pursues a legitimate aim. The business of the Supreme Court should be limited to those rare cases which involve points of general public importance. A filtering mechanism is essential. Otherwise the workload of the Supreme Court would soon become clogged by hopeless cases. The deserving cases would not be heard speedily. Section 33(2) is a provision which properly regulates second appeals.”

Further, the Court of Appeal concluded that the essence of the applicant’s right of access to the Supreme Court had not been denied since the applicant had no right to have an uncertified point of law considered by the Supreme Court:

“32.  Moreover, we do not accept that a refusal to certify amount to a denial of the essence of the appellant’s right of access to the Supreme Court. The appellant has the right to have his access to the second-tier appeal court decided by an independent and impartial tribunal properly applying legal principles. If such a decision goes against the appellant that has not denied him the essence of his right to access to the Supreme Court. It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by the Supreme Court in circumstances where it is legitimate for there to be a filtering of the cases before that court. That is precisely what happened here.”

As regards Article 14 of the Convention, the Court dismissed the applicant’s claim on the ground that, owing to the nature of proceedings, appellants in criminal and civil cases were not in a comparable situation:

“35.  ...There is a difference between the jurisdiction of the Supreme Court in criminal and civil matters. In criminal matters its jurisdiction is very limited. It resolved important matters of legal principle. In civil cases its remit may be broader, and may sometimes encompass factual issues.”

B.  Relevant domestic law and practice

Section 33 of the Criminal Appeal Act 1968, which replaced the Administration of Justice Act 1960 states:

33. - Right of appeal to [Supreme Court]

(1)  An appeal lies to the Supreme Court at the instance of the defendant or prosecutor from any decision of the Court of Appeal on an appeal to that court ...

(2)  The appeal lies only with the leave of the Court of Appeal or the [the Supreme Court]; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the [the Supreme Court] (as the case may be) that the point is one which ought to be considered by [the Supreme Court].

(3)  Except as provided for by this part of this Act ... no appeal shall lie from any decision of the Criminal Division of the Court of Appeal.”

Section 40(4) and Schedule 9 of the Constitutional Reform Act 2005 provide that section 33 of the Criminal Appeal Act 1968 shall apply to the new Supreme Court.

Section 56 of the Senior Courts Act 1981 states:

“(2)  No judge shall sit as a member of the criminal division of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, an appeal against –

a conviction before himself or a court of which he was a member;

a sentence passed by himself or such a court.”

In Gelberg v Miller [1961] 1 WLR 459 HL, a case decided under the identical provisions of the Administration of Justice Act 1960, Viscount Simonds dismissed an application for permission in a criminal appeal which the Court of Appeal had refused to certificate. He explained at page 461 that it was:

“quite hopeless, for it is obvious that the whole purpose of section 1 (2) [of the Administration of Justice Act 1960] is to ensure that leave to appeal shall not be granted unless it is certified by the court below that a point of law of general public importance is involved.”

The principle stated in Gelberg v Miller was applied to the Criminal Appeal Act 1968 by Practice Direction (HL: Petitions: Criminal) [1979] 1 WLR 498 HL.

Domestic case-law makes it clear that the Supreme Court will refuse to hear any criminal appeal which has been refused certification. In 2010 the Supreme Court dismissed for lack of jurisdiction an attempted appeal against a refusal of the Court of Appeal to certify in respect of the decision to hold a criminal trial without a jury (R v T [2009] EWCA Crim 1035; [2009] 3 All ER 1002).

In 1993 the Runciman Royal Commission on Criminal Justice, Cm.2263 (HMSO, 1993) recommended the abolition of the certification requirement (at § 10.79):

“[I]t is unduly restrictive to require such a certificate to be issued in addition to the necessity of obtaining leave from the Court of Appeal or the House of Lords itself. We think therefore that the requirement that the Court of Appeal certify that the case involves a matter of law of general public importance should be dropped. The need to obtain the leave of either the Court of Appeal or the House of Lords before proceeding further is by itself a sufficient filter.”

A review of the criminal courts carried out in 2001 by Sir Robin Auld did not address this issue.

In Scotland the High Court of Judiciary is the highest criminal court. There is no route of criminal appeal from the High Court of Judiciary to the Supreme Court.

In civil cases there is no certification requirement in respect of appeals to the Supreme Court from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland. An application for permission to appeal must be made first to the Court of Appeal. If that Court refuses permission, an application may be made to the Supreme Court. For a "leapfrog" appeal directly from the High Court to the Supreme Court, however, the High Court judge must certify that the "relevant conditions" are satisfied, that a sufficient case has been made out to justify an application for permission to appeal to the Supreme Court, and that all parties consent (section 12(1) of the Administration of Justice Act 1969). The “relevant conditions” (which are set out in section 12(3) of the Administration of Justice Act 1969) are that a point of general public importance is involved and that it either:

“(a)  relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or

(b)  is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [Supreme Court] (as the case may be) in those previous proceedings.”

COMPLAINTS

The applicant alleges breaches of Article 6 § 1 of the Convention. The applicant complains that his access to the House of Lords has been unjustifiably impeded by the requirement that the court from which he sought to appeal should certify in his favour. The applicant further complains that the certification process fell short of the requirements of an impartial tribunal. In his case all three judges hearing the application for a certificate also heard the appeal.

The applicant does not seek to re-argue his challenge under Article 14 of the Convention before this Court.

QUESTIONS TO THE PARTIES

Did Article 6 apply to the certification procedure before the Court of Appeal?

If so, did the certification procedure amount to a disproportionate restriction on the applicant’s right of access to court?

Did the certification procedure breach the applicant’s right to a fair hearing before an independent and impartial tribunal?