England and Wales Court of Appeal (Criminal Division) Decisions

CADMAN-SMITH, R v. [2000] EWCA Crim 75 (20th December, 2000)

Case No: 2000/0449/X4

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 20 December 2000

LORD JUSTICE MANCE:

1. We have before us a relisted application for leave to appeal to the House of Lords.

2. On 16^th June 2000 we allowed the defendant's appeal against a confiscation order in the sum of £46,250. This was made in the Crown Court at Sheffield on the sentencing of the defendant for an offence of fraudulent evasion of excise duty, to which he had pleaded guilty. The offence involved the unlawful importation of cigarettes into the United Kingdom via Goole. The boat used was under constant surveillance from the time it entered United Kingdom waters. It was stopped and searched at Goole, up the Humber, and the cigarettes were seized by HM Customs and Excise. The confiscation order was made on the basis the defendant had in these circumstances benefited from the offence, within the meaning of s.71 of the Criminal Justice Act 1988 as amended by the Proceeds of Crime Act 1985, in the amount of the duty chargeable on the importation. We held that there had been no such benefit, since the goods had been forfeited by HM Customs & Excise following importation, before their value was or could be realised by the defendant.

3. S.33(1) and (2), the first section of Part II of the Criminal Appeal Act 1968, provide:

"33.- (1) An appeal lies to the House of Lords, at the instance of the defendant or the prosecutor, from any decision of the Court of Appeal on an appeal to that court under Part 1 of this Act .....

(2) The appeal lies only with leave of the Court of Appeal or the House of Lords; 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 House of Lords (as the case may be) that the point is one which ought to be considered by that House."

4. S.34(1) and (2) of the same Act prescribe:

"34.- (1) An application to the Court of Appeal for leave to appeal to the House of Lords shall be made within the period of fourteen days beginning with the date of the decision of the Court; and an application to the House of Lords for leave shall be made within the period of fourteen days beginning with the date on which the application for leave is refused by the Court of Appeal.

(2) The House of Lords or the Court of Appeal may, upon application made at any time by the defendant, extend the time within which an application may be made by him to that House or the Court under subsection (1) above."

5. Rule 23(1) of the Criminal Appeal Rules 1968 as amended provides:

"23.-(1) An application to the Court -

(a) for leave to appeal to the House of Lords under Part II of the Act ....

shall either be made orally immediately after the decision of the court from which an appeal lies to the House of Lords or notice thereof shall be in Form 17 [now Form HL of 3/99] and shall be served on the Registrar."

The notes to Form HL draw specific attention to the effect of s.34(1) and (2).

6. In this case an application for leave was served on the Registrar by letter dated 26^th June 2000 received by the court office on 27^th June 2000. The letter from the Leeds chambers administrator of counsel instructed by HM Customs & Excise enclosing the application, with a proposed point of law for certification, stated inter alia:

"On behalf of Counsel for Her Majesty's Customs & Excise, Mr R. I. Newbury, I request that the enclosed documents go before Master McKenzie [the Registrar of the Court of Appeal Criminal Division], to make application for leave to go to the House of Lords in the above case.

I would be grateful if it were possible to place this matter before Master McKenzie as a matter o[f] urgency. He in turn may wish to place the papers before Mance L.J., Newman and Burton J for their consideration. If oral representations are required to be made by Counsel, I would be grateful if you could contact me for a suitable hearing date.

Mr Newbury has informed Mr P Weatherby (Counsel for the [defendant]) of the intention to appeal, and HM Customs & Excise have instructed Mr Andrew Mitchell QC to lead Mr Newbury, unfortunately Mr Mitchell is out of the jurisdiction at present."

7. Mr Mitchell acknowledged that this letter indicated that the Crown was content to leave it to the court to decide whether to hear oral representations. The matter was passed to us, and after considering and amending the proposed question, we on Friday, 28^th July 2000 decided to certify a point of law of general public importance namely:

"Whether an importer of uncustomed goods, who intends not to enter them for Customs purposes and not to pay duty on them, derives a benefit under section [71] of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, before their value is or can be realised by the importer".

8. However, we refused leave to appeal to the House of Lords. This decision was communicated in writing to the Court of Appeal Office, which on Monday, 31^st July 2000 reflected it (subject to presently immaterial error) in an order of that date. That order was not despatched or notified to the legal representatives of either party until Wednesday, 9th August 2000, and then only by second class post. We were told that the defendant's legal representatives received a copy which is date-stamped 10^th August 2000, but that, for whatever reason, no-one on behalf of HM Customs & Excise received a copy at all. This is consistent with the fact that the solicitors to HM Customs & Excise telephoned the Court of Appeal Office on 21^st August 2000 asking what the position was regarding their application. They were then told of the decision and order, another copy of which was sent to them by fax. On renewing the Crown's application to the House of Lords for leave to appeal, they were informed by the Judicial Office that the time for any renewed application had expired 14 days after the decision, which, we understand, the Judicial Office identified with our decision of 28^th July 2000. Neither party has suggested before us that "the date on which the application for leave is refused by the Court of Appeal" should be equated with the date on which such refusal was first communicated to the losing party, and any such suggestion would be inconsistent with the view taken when the Crown sought to petition the House of Lords.

9. On this basis, the time for renewing the application expired on 10^th August 2000, the day after the posting of the letter by second class post to the Crown's representatives. Even if that letter had arrived in the Customs' Solicitors' Office in Manchester on the day after its posting, it would have been in practical terms impossible to prepare and present a petition seeking to renew the application in the House of Lords on the same day. The situation is therefore one where this Court has itself acted in a manner which was bound to frustrate the renewed application which the Crown was, in all human probability, certain to wish to make. Even if one took as the starting point the date of the order drawn up by the court office, the Crown would have been deprived of most of the period of 14 days within which it had to petition the House of Lords for leave.

10. Not surprisingly, the Crown wished to revisit the situation before us, and the matter was thus relisted before us on 27^th November 2000.

11. The issue is whether we have any power or duty to do anything about the situation which has arisen. Mr Mitchell argues that we have. Mr Weatherby submits the contrary, and refers us to the evident intention of section 34(2) to achieve finality in a defendant's favour after the 14 day period prescribed by section 34(1).

12. We have been referred by counsel and by the Court of Appeal Office to a number of authorities. In R. v. Daines and Williams (1960) 45 CAR 57 the Court of Criminal Appeal said that, on reading the papers, the case had seemed a perfectly plain one not involving any point of law of general public importance, but that they had thought it right to grant legal aid and have the matter argued by counsel, having regard to the fact that these were the first two applications for leave to appeal to the House of Lords under section 1(2) of the Administration of Justice Act 1960. The Court continued:

"The court desires to say that in future in a case where there does not seem to be any point of law of general public importance the court will deal with the matter on the papers without granting legal aid or leave to be present."

In the present case, of course, we did consider that a point of law of general public importance arose.

13. In Sweet v. Parsley [1968] QB 418; reversed [1970] AC 132, the report of the proceedings in the Court of Appeal shows at p.426 that the defendant's initial application for a certificate 1(2) of the 1960 Act was refused on dismissal of the appeal on 22^nd March 1968. It was renewed on 23^rd April 1968 when it was adjourned pending the decision in R. v. Warner [1969] 2 AC 256 (delivered in the event on 2^nd May 1968). It was heard on 13^th May 1968, when the Court of Appeal gave both a certificate and leave. So the matter came, successfully, before the House.

14. In R v. Grantham [1969] 2 QB 574, the Courts-Martial Appeal Court had to consider section 9 of the Courts-Martial (Appeals) Act 1968 which read:

"(1) Leave to appeal to the Appeal Court shall be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar.

(2) The application must be made in the prescribed form and specify the grounds on which leave to appeal is sought ....

(3) The Appeal Court may extend the period within which an application for leave to appeal must be lodged, whether the period has expired or not ...."

15. On 4^th December 1967 an application for leave to appeal against conviction was refused by the full court. On 3^rd January 1969 a further application, accompanied by an application to call fresh evidence, was lodged. The court held that it had no jurisdiction to hear these further applications. Widgery LCJ pointed out that the Courts-Martial Act was modelled on the Criminal Appeal Act 1967, and (echoing a submission of Mr Slynn, as he was, as amicus curiae) said:

"Both [the Court of Appeal (Criminal Division)] and the Court of Appeal have from time to time allowed an appeal, or an application for leave to appeal, to be "re-listed" for further argument when some procedural defect in the original disposal of the matter has come to light. Thus if, through a misunderstanding, counsel has not appeared, or papers submitted by the applicant have been delayed in the post, the court has restored the matter to the list to hear argument or consider the papers as the case may be. No member of the court, however, can recollect a case in which an application or appeal once effectively disposed of has been reopened by the court. Indeed, it has been assumed that the court is then functus officio and that if new matter comes to light thereafter the applicant's proper course is to petition the Secretary of State, who can himself refer the matter to the court under s. 34 of the Courts-Martial Act, 1968, or section 17 of the Criminal Appeal Act 1968. It is this assumption that is challenged in the present application."

Later, Widgery LCJ went on:

"[Counsel for the defendant] argues that both in its practice of "re-listing" and in permitting the withdrawal of an abandonment, the court is recognising an inherent power to reopen an appeal or application for good cause, but in our opinion the practice in each case has been the same, namely to reconsider a matter if it has never properly been determined owing to some procedural error or mistake. No trace is to be found of the court reopening an appeal on its merits on fresh evidence subsequently coming to light ...."

16. He then made reference to Sweet v. Parsley as a case where the facts were "very special". He gave two reasons for thinking this. First, the projected appeal was from the Divisional Court. Secondly, the decision of the court had been based on a case which unknown to the court "had been the subject of criticism in the House of Lords during argument in R. v. Warner". Hence, first the adjournment to await that decision and then the grant of leave on a point of law.

17. Widgery LCJ also observed that the Courts-Martial Appeal Court (like this court) was

"created by statute and has no jurisdiction beyond that which Parliament has conferred upon it.... Parliament must be presumed to be mindful of the need to make an end to proceedings and prima facie an appeal means one appeal and "an application" means one application. ....

In the judgment of this court the language of the Act as a whole points to the conclusion that section 8 confers a single right of appeal which incorporates a right to apply once, and once only, for leave to appeal under section 9."

18. In R v. Ashdown (1974) CAR 339, the Court of Appeal had upheld a life sentence on a robber. At the end of the hearing, counsel had applied for leave to go to the House of Lords. The court had questioned on what point of law and counsel had responded "On the issue as to whether a life sentence is appropriate in these circumstances." Later the applicant sought to renew the application. The statutory provisions regarding appeal to the House of Lords then in force were in effectively identical wording to those we have now to consider. The court considered that the first application had embraced both the question of leave and the question of certifying a point of general public importance. On that basis the court, after reviewing Sweet v. Parsley and Grantham agreed with the views expressed by Widgery LCJ in the latter case and held that it had no jurisdiction to entertain a second application.

19. Finally, in R. v. Tang (11^th May 1995) no application for a certificate and leave was made at the end of the appeal, but a paper application was lodged within time subsequently identifying two points which the court was invited to certify. Lord Taylor LCJ stated as follows:

"In accordance with the usual practice the paper application was referred to the presiding Lord Justice. The Lord Justice consulted with the other members of the court. The court indicated that it did not certify the points; it did not wish to hear argument on the matter; and it was content to deal with the application on the papers. That decision was communicated to counsel.

Counsel now seeks to argue that the court ought not to have refused to certify a point without hearing oral argument.

....

There is clear authority in R v. Daines and Williams ... that in cases where the court does not consider it necessary to hear argument the court may deal with the matter on the papers; it is a matter for the court to decide whether or not that course should be adopted. Likewise, there is clear authority in R v. Ashdown ... that only one application can be made; there cannot be a second bite at the cherry after refusal by one constitution of this court to go to another constitution to seek to reopen the matter. Finally, there is also clear authority in R v. Cooper and MacMahon 61 CAR 215, that it is not the practice of this court to give reasons when refusing to certify a point for consideration by the House of Lords.

Bearing all of those matters in mind, though Mr Codner has manfully attempted to rescuscitate the case, we take the view that he has no standing to do so. Accordingly, this application is refused."

20. As in Daines and Williams, the court in Tang was dealing with the situation of an initial application to certify a point, which was refused on paper. As in Grantham and Ashdown, it was dealing with a second application to re-argue the matter on the merits. There was, in Tang, no procedural error or special circumstances which might have led to examination of the scope of any possible exception to the general rules which Lord Lane LCJ summarised.

21. That the court may re-list an appeal in circumstances where an appellant has been deprived of the opportunity to address the court on an appeal is recognised in Grantham and - in so far as the deprivation follows from some failure on the part of the court or its office - follows clearly from the basic duty - "lying upon everyone who decides anything" - "fairly to hear both sides": see Board of Education v. Rice [1911] AC 179, 182 per Lord Loreburn LC; and R v. Home Secretary, ex p. Mehdawi [1990] 1 AC 876, 894-5.

22. The observations in Grantham regarding relisting were also considered and applied in another authority which has only come to our attention since the hearing on 27^th November 2000. That is this court's decision in R .v Daniel [1977] QB 364. Due to an administrative error in this court's office, information that the defendant had instructed solicitors and would be instructing counsel on an application for an extension of time and for leave to appeal against sentence to this court was not included in the defendant's file. As a result, neither solicitors nor counsel were informed of the hearing date of the application, which was dealt with on 14^th June 1976 in their absence in open court by granting the extension and refusing leave. Notices of its disposal were sent to the parties and the court's order was duly recorded. On the solicitors requesting a new hearing, the matter was relisted on 14^th September 1976, when, after hearing counsel for the defendant, the court held that it was functus officio. On 17^th September 1976, after a reference by the Secretary of State which the court had itself invited, the court heard the defendant's case on the merits and dismissed the appeal. But it also re-addressed the problem which had arisen from the office's administrative error, and concluded that its own decision on 14^th September had been per incuriam. Lawton LJ said:

"If, as we find, the defendant had a right to appear by counsel when his application was being considered, then the court acted in disregard of that right when on June 14,1976, it dismissed his application.

What follows? The defendant's counsel conceded that what had happened on June 14 cannot be regarded as a nullity such as there was in Reg. v. Majewski [1977] AC 443. In that case this court by an oversight had dealt with an appeal on a point of law as if it was an application. When the error was discovered, which was long after notices of determination had been sent out under rule 15 of the Rules of 1968, the court ordered the case to be relisted as an appeal. When Reg. v. Majewski went to the House of Lords........, their Lordships did not criticise what this court had done. It follows, in our judgment, that Reg. v. Cross (Patrick) [1973] QB 937 does not apply when what has happened is a nullity. But does it apply when an applicant has been deprived of his right to be represented by counsel? This court clearly has jurisdiction within the ambit of the Criminal Appeal Act 1968 and the Rules of 1968 to see that no injustice is done to any defendant in the course of any application or appeal. If in any particular case, because of a failure of the court to follow the rules or the well established practice, there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in Reg. v. Cross (Patrick), that a case should be relisted for hearing. It is pertinent to point out that in Reg. v. Cross (Patrick) the court had heard arguments by counsel on the merits before any question arose about rehearing the appeal, for such it was. The kind of problem which has arisen in this case was never considered.

It follows that this court acted per incuriam in adjudging, on September 14, 1976, that it had no jurisdiction to consider the defendant's application. The court had such jurisdiction.

Before leaving this subject the court would stress that save in cases in which what has happened is a nullity, the jurisdiction to relist depends on the likelihood of an injustice having been done. That is for the court itself to decide. There may not be a likelihood of injustice if, from the written grounds of appeal and any supporting documents, it is clear beyond argument that the application cannot succeed.

Finally, it should be clearly understood by both counsel and solicitors that this court will not be willing to relist unless, before the date of the abortive hearing, the registrar of the court had been informed in writing that counsel would be instructed."

23. Turning to the present case, the Crown made clear its intention to apply and did - in the appropriate manner and within the proper time - apply for a point of law to be certified and for leave to appeal to the House of Lords. If the court certified a point of law, but declined leave, the Crown had the statutory right to apply to the House of Lords for leave within 14 days beginning with the date of such refusal. This court was and is clearly bound so to regulate its procedures as not to nullify or impede that statutory right. The plain assumption in s.34(1) of the Criminal Appeal Act 1968 is that any such refusal of leave will be immediately known to the losing party, so that he or it is able to make application for leave within 14 days to the House of Lords. Rule 23(1) of the Criminal Appeal Rules 1968 read with Form HL makes the same assumption.

24. To avoid the risk of problems like the present in a case where the court has it in mind to certify a point but to refuse leave, the most obvious practice to adopt will be for the court to give its decision at a hearing in open court of which the parties have had notice and at which they will thus have had at least the opportunity to attend. With the notice, the court can indicate whether or not it requires to hear any oral argument at the hearing before giving a decision. In this case (as we have pointed out) the Crown's letter seeking certification of a point of law and leave left it to the court to decide whether to hear oral representations. In that regard there was consent to the course followed. No authority was cited to us specifically confirming the procedure of granting a certificate but refusing leave on paper. But it was not argued before us that the general requirement to administer judgment in public precludes such a course; and we would not ourselves suggest that this court lacks power to certify and to grant or refuse leave on paper, where it thinks fit, with or without consent. Even without consent, such a course may sometimes be convenient, as for example in or just before vacation. But, if and when it is adopted, with or without consent, and a certificate is granted but leave refused, the parties must have immediate notice of the court's decision, so as not to prejudice or constrict the right of the loser to apply to the House of Lords for leave. This is so whichever side loses, although a defendant under s.34(2) has a potential alternative means of remedying any injustice. At present, the safest way of ensuring immediate notice will probably be by oral communication confirmed by fax. This will, incidentally, avoid any problems of missing post.

25. Here, a certificate having been granted but leave refused, no notice was sent to the parties by the office until 9^th August 2000, the thirteenth day after we reached our decision. The court failed to proceed in the manner implicitly contemplated by s.34. This irregularity effectively nullified the Crown's statutory right to seek leave from the House of Lords within 14 days after this court's refusal. There is in that respect, not just in Lawton LJ's words a likelihood, but a certainty that injustice has been done, since we cannot prejudge the Crown's prospects of obtaining leave from or succeeding in the House of Lords. The irregularity does not go to the merits of our own refusal of leave. But it goes to an essential aspect of the administration of justice, the due pronouncement of any court decision. Here, after a decision made in private on a date of which the parties had no advance notice, communication was also essential to enable the losing party to exercise its statutory right to seek leave to challenge this court's judgment on the substantive issue in a higher forum. Absent such communication, the matter cannot, adapting the language of Lord Widgery to the present context, be regarded as "effectively disposed of" and this court cannot be said to be functus officio.

26. For these reasons, and in the unquestionably special circumstances of this case, we have no doubt that this court has power to have the application which was made on 27^th June 2000 relisted, in order that the court may now give and communicate a decision upon it in a manner which conforms with the procedure implicit in s.34 and which respects the losing party's right to seek leave to appeal from the House of Lords. Having had the matter relisted before us and heard what counsel had to say on both sides on all aspects of the matter, we also have no doubt that this is the appropriate course. Any other conclusion would give the defendant an unwarranted advantage - particularly when it would have appeared to the defence that there had been irregularity from the time of its own receipt of late notice of refusal of leave. In open court and in the presence of both parties, we therefore certify that the case raises the point of law of general public importance set out at the start of this judgment and refuse the Crown leave to appeal against our decision dated 16^th June 2000.

LORD JUSTICE MANCE: In this application, and for the reasons set out in the written judgment of which counsel have had a draft, we have no doubt that we have power to have the application made to us to certify a point of general importance and to give leave to appeal to the House of Lords, relisted in order that we may now give on it and communicate a decision on it in a manner which conforms with the procedure implicit in section 34.

Having had it relisted and heard counsel on both sides on all aspects of the matter, we consider that this is the appropriate course. In open court now and in the presence of both parties, we certify that the case does raise the point of law of general public importance set out at the start of our judgment, but we refuse the Crown leave to appeal against our decision dated 16th June 2000.

MR MITCHELL: Your Lordship will be pleased to know that the petition is already drafted and will go today.

LORD JUSTICE MANCE: I would have thought that was prudent at this time of year, who knows when the Judicial Office is open.

MR MITCHELL: Precisely, my Lord. I am grateful.

LORD JUSTICE MANCE: We are grateful to both your submissions and Mr Weatherby's submissions; would you please tell him that?

MISS STAVROU: Your Lordship, Mr Weatherby is in fact stuck in a trial in Sheffield and he does --

LORD JUSTICE MANCE: We quite understand. We had a message. Thank you for attending.