England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(MASTER VENNE)

		Royal Courts of Justice The Strand London Friday 31 August 2001

Friday 31 August 2001

1. LORD JUSTICE TUCKEY: On 20 June 2001, the Divisional Court (Rose LJ and Silber J) refused the applicant, Vincent Leo Saxon's renewed application for permission to apply for judicial review of a decision of the Criminal Cases Review Commission not to refer his criminal convictions for dishonesty in 1996 to the Court of Appeal, Criminal Division. The applicant wants to appeal the Divisional Court's decision. He applied for permission to do so to this court, the Civil Division of the Court of Appeal. This court is entirely a creature of statute. By section 18(1)(a) of the Supreme Court Act 1981 it has no jurisdiction to hear an appeal from the Divisional Court in "any criminal cause or matter". On 10 July 2001, Master Venne directed that this application was in a criminal cause or matter and so this court had no jurisdiction. The applicant has asked for this decision to be reconsidered by the court under the provisions of CPR 52.16(5) and (6). That is the purpose of today's hearing.

2. In reaching his decision Master Venne relied on the decision of this court in R v Secretary of State for the Home Department, ex parte Garner (unreported, 15.6.90). In that case the applicant, Mr Garner, attempted to appeal the Divisional Court's refusal of his application for judicial review of the Secretary of State's refusal to refer his sentence to the Court of Appeal, Criminal Division, under the provisions of section 17 of the Criminal Appeal Act 1968. That section said:

"(1) Where a person has been convicted on indictment ...., the Secretary of State may, if he thinks fit, at any time either --

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court by that person;...."

3. Appeals to the court under the 1968 Act are dealt with in sections 1 and 9 of the Act which deal respectively with conviction and sentence.
4. In giving the judgment of this court Lord Donaldson MR, with whom the other two members of the court agreed, said of the issue as to whether the proposed appeal was in a criminal cause or matter:

".... the categorisation depends entirely on the nature of the underlying decision, that is to say the decision which was sought to be or, as the case may be, was in fact judicially reviewed.

.... For my part, I agree .... that the power to refer under section 17 is merely an extension of the rights of a convicted person to appeal against his conviction and/or his sentence under section 1 and/or section 9 of the Criminal Appeal Act 1968. It is, therefore, a typical criminal cause or matter, and it follows from that that we have no jurisdiction to entertain any appeal."

5. In 1995 the Secretary of State's power to refer cases to the Court of Appeal, Criminal Division, was revoked by the Criminal Appeal Act 1995 and replaced by similar powers conferred on the Criminal Cases Review Commission which was created by that Act. The relevant section is section 9 which says:

"(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission --

(a) may at any time refer the conviction to the Court of Appeal, and

(b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence ....

(2) A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1968 Act against the conviction.

(3) A reference under subsection (1) of a sentence imposed .... shall be treated for all purposes as an appeal by the person under section 9 of the 1968 Act ...."

6. So the effect of a reference by the Commission is identical to the effect of a reference by the Secretary of State under the earlier legislation. Lord Donaldson's analysis of the nature of the proceedings in ex parte Garner is, it seems to me, equally applicable to the present proceedings where the applicant is seeking a judicial review of the Commission's refusal to refer his case to the Court of Appeal, Criminal Division.
7. I agree with Lord Donaldson's analysis for the reasons he gives. More importantly, I am bound by it. There are no relevant grounds for distinguishing this case from ex parte Garner, and so I must follow it.
8. That, I am afraid, is the end of the matter so far as this court is concerned. Mr Saxon, in his submissions to me this morning, tried to make a distinction between ex parte Garner and his case on the basis that the Commission are an independent body, whereas the Secretary of State is not. But the nature of the referring body is not, in my judgment, relevant to whether or not what they are dealing with is a criminal cause or matter. In each case it was, and is, the applicant's criminal conviction or sentence which he is seeking to have referred to the Court of Appeal, Criminal Division. The applicant points out, quite rightly, that judicial review is a public law remedy in which the applicant seeks to challenge the decision of a public authority and in this case he also seeks damages. He asks rhetorically: how can such a process be described as a criminal cause or matter? The answer to that is that the court is concerned not with the outward appearance of the process but, as Lord Donaldson said, the nature of the underlying decision. The underlying decision relates quite clearly to a criminal cause or matter. So neither of these points enable the applicant to distinguish ex parte Garner.
9. Finally, the applicant says that in ex parte Garner Lord Donaldson said the applicant's remedy, if he had one, was to appeal to the House of Lords, which is the court to which appeals from the Divisional Court in criminal causes or matters lie. The applicant, however, points to the wording of section 1 of the Administration of Justice Act 1960, which deals with such appeals, and argues that its language, coupled with the definitions in section 17, prevents him from appealing in this case since he does not fall either within the extended definition of "defendant" or the definition of "prosecutor".
10. I accept that the wording of these sections in the 1960 Act may create difficulties for someone in the applicant's position who wishes to appeal to the House of Lords. This may be why Lord Donaldson said in ex parte Garner that the applicant might not be able to appeal to the House of Lords. But the short answer to the problem so far as I am concerned, is that that is not something which this court as the Civil Division of the Court of Appeal has the jurisdiction to resolve. There I must leave it.
11. For the reasons I have given, having reconsidered the decision of Master Venne, I think he reached the right decision and therefore I confirm it. This application is therefore refused.