England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Friday, 30th July 2004

Friday, 30th July 2004

1. LORD JUSTICE JUDGE: The problem we have to address arises from the much lamented sudden death of Kay LJ. It arises in this stark way. Coates and Graves appealed against their convictions at Basildon Crown Court on 4th April 2003. Terry appealed against his conviction at Winchester Crown Court on 8th February 2002. Their appeals were heard on 28th April 2004 and 4th-6th May 2004 respectively before the court presided over by Kay LJ. The other members of the court were Roderick Evans J and Pitchers J. Leave had been given to appeal on some grounds and refused in others, and the court therefore had to consider not only full appeals, but also renewed applications for leave to appeal.
2. At the end of the respective hearings Kay LJ announced that the renewed applications for leave to appeal by Terry would be dismissed and that the reasons would be given at a later date. In both sets of cases, on the grounds on which leave to appeal had been given, the court reserved its judgment.
3. After the hearing the three members of the court reflected together on the material placed before them and the respective arguments of counsel. The outcome of the appeals was agreed, and so were the reasons for the outcomes. Kay LJ was due to write the judgment of the court. When he had completed it, it would have been circulated by him to his colleagues for their consideration and with a view to their agreement. Unfortunately, his sudden death occurred before he had written the judgment. In a letter dated 12th July 2004 from the Registrar of Criminal Appeals to all counsel, they were informed that:

"After the conclusion of submissions all three members of the court considered the arguments and came to decisions as to the outcome of the appeal."

It was proposed that one of the other members of the court should produce a written judgment in each appeal, explaining the decision and the agreed reasons for it.

4. Objection was taken to that course on the basis that the two remaining judges lacked jurisdiction to determine the appeal. A separate point in relation to matters of discretion was also taken, but the argument was not pursued before us.
5. In relation to the Court of Appeal Criminal Division, and its predecessor, the Court of Criminal Appeal, the problem we have to address is unprecedented, and none of the many counsel involved in the hearing before us had discovered any relevant authorities. Our primary concern, therefore, is whether the course proposed in the letter from the Registrar is prohibited on jurisdictional grounds.
6. The jurisdiction of this court depends exclusively on statute. Section 55 of the Supreme Court Act 1981 provides as follows:

"(2)... a court shall be duly constituted for the purpose of exercising any of its jurisdiction if it consists of any uneven number of judges not less than three.

(3) Where -

(a) part of any proceedings before a court has been heard by an uneven number of judges greater than three; and

(b) one or more members of the court are unable to continue,

the court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three.

(4)... a court shall, if it consists of two judges, be duly constituted for every purpose except -

(a) determining an appeal against -

(i) conviction; or

(ii) a verdict of not guilty by reason of insanity; or

(iii) a finding of a jury under section 4 of the Criminal Procedure (Insanity) Act 1964 (unfitness to plead) that a person is under a disability.

(aa) reviewing sentencing under Part IV of the Criminal Justice Act 1988;

(b) determining an application for leave to appeal to the House of Lords; and

(c) refusing an application for leave to appeal to the criminal division against conviction or any such verdict or finding as is mentioned in paragraph (a)(ii) or (iii), other than an application which has been refused by a single judge.

(5) Where an appeal has been heard by a court consisting of an even number of judges and the members of the court are equally divided, the case shall be re-argued before and determined by an uneven number of judges not less than three."

7. The language of the statute makes it plain that appeals against conviction are to be heard and decided by constitutions of not less than three judges. If the appeal begins before more than three judges, one of whom is no longer able to continue with the proceedings, the statute provides that the court will remain duly constituted provided the number of judges are not reduced below three. It follows that if an appeal against conviction starts before three judges, the hearing cannot continue in front of the two remaining judges if, for whatever reason, their colleague is unable to continue.
8. None of these principles present any difficulty. They follow from the clear language of the statute. In essence, the argument is that the problems with which we are concerned are entirely covered by these provisions and that they lead to the conclusion that, for jurisdictional reasons, the judgment may not be given.
9. There is no broad discretion similar to that provided by section 54(4A) of the 1981 Act, exercisable by the Master of the Rolls, in relation to the future conduct of a civil appeal where a member of the court is unable to continue and the proceedings are "partly heard".
10. We believe that the distinction between criminal and civil appeals is quite deliberate. Appeals against conviction are concerned with the safety of verdicts reached by a jury. The requirement that appeals against conviction should be decided by a court of not less than three judges is a proper acknowledgment of the constitutional pre-eminence of the jury.
11. Our attention was also drawn to section 59 of the 1981 Act. This provides that in the Court of Appeal Criminal Division the judgments of the court must be given by the judge presiding over the court or such other member of the court as he may direct.
12. We doubt whether this provision, which relates to the normal arrangements by which a single judgment of the court is usually produced, is of more than peripheral interest in the present situation. In our view, its direct concern is administrative arrangements.
13. The proper application of section 55 of the 1981 Act therefore requires us to decide a deceptively simple question: were these appeals against conviction "determined" by the three judges?
14. The critical facts in each case are that the hearings were concluded and the members of the court had met and agreed their decisions and the reasons for them. Superficially, at any rate, all that was left was for the reasons to be reduced into writing and the decision to be pronounced in court.
15. We emphasise that we are not here dealing with a reserved judgment in which the outcome of the appeal and the reasons for the decision were not apparently agreed by the three judges before the death of one of them. Equally, we are not concerned with an overnight or short adjournment for reasons of convenience; nor was this a case where the judgment and the reasons were ready for delivery and circulated to the parties.
16. Mr Peter Birts QC and Mr Pardoe, for Coates and Terry respectively, submitted that, for the purposes of section 55, appeals against conviction were not determined until the decision and the reasons for it were pronounced in open court.
17. Mr Bennett, for Graves, took a less extreme position. He accepted that if the court had pronounced its decision in court at the end of the hearing, the appeal or application was there and then determined, notwithstanding that reasons for the decision had not been reduced into writing.
18. Sir Derek Spencer QC and Mr Bartlett, in separate submissions for the Crown, suggested that where the court had agreed its decision and the reasons for it before the death of Kay LJ, for the purposes of section 55 the appeals were determined.
19. It was rightly agreed on all sides that, as the issue related to jurisdiction, the outcome could not depend on whether the decision agreed by the three judges was favourable or adverse to the appellants.
20. Sir Derek made a number of powerful submissions to the effect that there could be no injustice to the appellants if one of the two surviving judges produced the judgment of the court and explained the reasons for its decision. The case had, after all, been fully argued; it was not in the public interest for the same appeal to be re-litigated. These are persuasive considerations, but they do not create a jurisdiction which is otherwise absent.
21. Sir Derek further suggested that section 55 was enacted without reference to the possible death of one member of the court. We are less sure about this argument. As we see it, equivalent provision could have been made in relation to appeals against criminal convictions as for civil appeals, and none was. In this context the Lord Chief Justice does not have the equivalent powers of the Master of the Rolls. We do not think it is open to us to fashion what might appear to be a common sense answer to the problems now facing us if the three judges had not in fact determined the appeal.
22. Sir Derek further suggested that section 55 itself did not suggest that a process by which the two surviving judges would produce the judgment of the court would be null and void. If, however, the court is not "duly constituted" it lacks jurisdiction, and, equally, we are unable to accept his invitation to treat these particular jurisdictional points as procedural and technical matters of the kind which the court in Sekhon was entitled to disregard.
23. Our attention was drawn to a number of authorities, but we were unable to derive any assistance from them about the principles which apply to section 55 and the question, when is an appeal against conviction determined?
24. We must briefly address R (Anufrijeva) v The Home Secretary [2004] 1 AC 604, which was strongly relied on by the appellants. The House of Lords was considering whether income support should be paid to an asylum seeker whose claim for asylum was "recorded" as having been determined but without notification to her of the decision. Our attention was focused on passages in the speech of Lord Steyn relating to fundamental principles:

"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice ... a constitutional state must accord to individuals the right to know a decision before their rights can be adversely affected."

In short, the problem under consideration in that appeal was whether the decision of the Secretary of State could take effect before A was notified of it.

25. There is a major difference between that decision and the present problem. The question here is whether there was a determination at all. The court would be ready and willing to announce a decision and give the reasons for it if it has jurisdiction and may validly do so.
26. Sir Derek Spencer drew our attention to the observations of Lord Millett that:

"... a determination must actually be made before it can properly be recorded; and that it is not necessarily merely provisional until it is notified to the person or persons adversely affected by it."

He submitted that the court had made its determination and therefore all that was necessary was for it to be pronounced in court. The decision was not "merely provisional" at all; it was final. If that is right, then we would agree.

27. We note a passage in Lord Millett's speech which included observations of broader implication to the outcome of the present argument. Lord Millett introduced his speech by recording that, until he had read the speech of Lord Steyn in draft, he had been of the opinion that the appeal should be dismissed. He had, he recorded, been persuaded to change his mind. In this observation Lord Millett encapsulated an experience which anyone who has sat as a judge will immediately recognise. In short, more mature reflection can produce a change of mind, sometimes in most unexpected circumstances. It therefore illustrates considerations which are critical to our decision.
28. We must return to the facts. The three judges responsible for the conduct of these appeals against conviction met and discussed the decisions they should reach. They were all agreed about the outcome. Nevertheless, certainly until Kay LJ produced his draft judgments and his colleagues had an opportunity to consider it, it was open to him, on reflection on the facts or the relevant legal principles, to change his mind, and it was equally open to either of them, on further reflection, to reconsider their views. If so, each member of the court was duty bound to communicate any change of view, or even a change of emphasis, to the other members of the court, and further discussion would then have ensued. The outcome would of course be unknown.
29. In short, none of the judges was bound by the decision they had agreed, although they all believed they were agreed. No matter how sure they all were about their agreement, on strict analysis it was provisional; conditional on their continuing agreement after they had considered the draft judgment.
30. In passing, we note that it remained open to any of the parties to send further written submissions to the court and, again, no matter how firmly the judges thought they had agreed about the outcome of the case, they would have had to reflect on the further submissions and any new authorities drawn to their attention. In one of these two cases that is precisely what happened. Before Kay LJ's death, Mr Pardoe asked the court to consider a number of decisions from the European Court which, he urged, strengthened his argument and which he had overlooked when he was before the court at the hearing.
31. In our judgment, therefore, if the decision reached by the judges was not finally binding on the judges themselves, the appeal could not be said to have been determined. Moreover, for the purposes of section 34 of the Criminal Appeal Act, until the judges themselves had finally agreed their decision, there can have been no decision of the court on which to found an application for leave to appeal to the House of Lords.
32. Accordingly, we are persuaded that, notwithstanding the apparent agreement of the three judges about the outcome of these appeals, it could not be said that they were determined for the purposes of section 55 of the 1981 Act until the decision was properly to be treated as binding on the judges themselves, and, notwithstanding the agreement between the judges in the circumstances we have described, it was open to any of them, and therefore the court, to change its mind about the outcome. Accordingly, save in relation to those decisions which were announced in open court by Kay LJ before his death, this court ceased to be properly constituted for the purpose of deciding these appeals when Kay LJ died. Therefore, no judgments will be given.
33. We must next address the situation which arose in at least one of these appeals, where the court gave its decision at the end of the hearing on the renewed application for leave and stated that the reasons would be produced at a later date. This is a common enough experience, sometimes a decision being adverse and sometimes favourable to the appellant.
34. We have reflected on the arguments by Mr Birts and Mr Pardoe. In our judgment, however, where such a decision is given in open court at the conclusion of the argument, the subsequent death of one member of the court before reasons are given does not vitiate the decision.
35. In the recent case of R v Cannings, in which Pitchers J and I, together with Rafferty J, were members of the court, the convictions for murder were quashed on 10th December 2003 with reasons to be given later. Our reasoned judgment was provided on 19th January. Something of a public scandal would rightly have erupted if the result of the appeal somehow ceased to have effect simply because of the sudden death of one member of the court after the decision had been announced, but before the reasons were produced. It is nothing to the point that in such circumstances the Crown would probably not have contested the conviction at a subsequent hearing. The impact on the appellant would have been devastating. If the argument that the announcement of the decision had no effect until the reasons were given, the convictions for murder would have been immediately restored on the death of one member of the court. Alternatively, despite the pronouncements in open court, her convictions were never validly quashed at all. That would be a novel and disturbing proposition.
36. The short answer is that when the court says in terms that an appeal is allowed or the application granted, or the appeal is dismissed or any application refused, that is a final determination. The court itself cannot change its mind. Like any other court, we recognise the importance rightly to be attached to the requirement that the court's decision should be properly explained. Nevertheless, in cases of the kind currently under consideration, the decision of the court would survive the absence of a reasoned written judgment and it would be sufficient for the reasons for the decision to be produced by one of the two remaining members of the court. The principle applies irrespective whether the decision is favourable or unfavourable to the appellant.
37. We shall now give any consequential directions which follow from the judgment.
38. MR BARTLETT: My Lords, I think that the effect of the decision in the case of Colman and Terry is that ground 7, upon which leave had been given by the full court and upon which there had been no public pronouncement of the decision at the end of the hearing, must be re-heard.
39. LORD JUSTICE JUDGE: We agree.
40. MR BARTLETT: But that all other grounds, namely those which were left to the full court by the other constitution of the full court who gave leave on ground 7, and the new ground 10 which was not properly formulated by the first full court but was formulated for the full court which heard the appeal, and at the conclusion of the appellant's submissions resulted in a public pronouncement by Kay LJ that leave would be refused on all grounds on which you have not already got leave, in other words, all but one, that is a public pronouncement which is conclusive. In my submission, the remaining two judges can give their reasons for those decisions and it does not have to be re-argued and it does not have to have a new constitution of the court.
41. LORD JUSTICE JUDGE: Unless one suggests to the contrary, we agree.
42. MR BARTLETT: Actually, there is no-one else in my appeal, but they had the opportunity to come.
43. LORD JUSTICE JUDGE: Yes. That does leave the question of the timing.
44. MR BARTLETT: It does. Could I just mention one other thing before you go on to timing.
45. LORD JUSTICE JUDGE: Yes.
46. MR BARTLETT: That is sentence. Again, the arguments on sentence were heard on the final day of the appeal proceedings and the decision was obviously reserved to await the outcome, in Terry's case of the outcome of the conviction appeal, in Colman's case I think simply reserved for convenience because it would be delivered at the same time, so that is the only other thing that comes into the equation. As to that, it would seem, with respect, that the two judges are quite capable of dealing with that.
47. LORD JUSTICE JUDGE: Two judges would be capable of dealing with any of it, the question is whether they have jurisdiction.
48. MR BARTLETT: Sorry, I am putting it a little too loosely. I think they do have jurisdiction to deal with that and, with respect, they could give that decision at the conclusion of Terry's conviction appeal.
49. LORD JUSTICE JUDGE: Yes.
50. MR BARTLETT: Although I have to say Colman is in a different position, he has not successfully obtained leave to appeal against conviction, so in a sense, although it is related, he does stand alone and his sentence appeal could be determined quicker than it would be the case for having a re-constitution of the court for the re-hearing of ground 7 followed by the decision on the appeal against sentence of Terry.
51. LORD JUSTICE JUDGE: There are two conflicting considerations. It is normal for the court that decides an appeal against conviction to decide any appeal against sentence that remains outstanding.
52. MR BARTLETT: Yes.
53. LORD JUSTICE JUDGE: It is equally normal that where there are two defendants or more, the same court should deal with their cases.
54. MR BARTLETT: Quite.
55. LORD JUSTICE JUDGE: Then thirdly, in relation to Colman, he only being before the court in relation to an appeal against sentence, is entitled to have the answer as quickly as possible. Our view is that, unless any submissions are made to the contrary, the sensible course is for the issues in relation to sentence, both of Terry and Colman, to be considered by the court which has to decide the ground 7 point in the case of Colman, and that is the direction we shall make.
56. MR BARTLETT: Effectively, so that I understand, that would be the re-hearing of their sentence appeals.
57. LORD JUSTICE JUDGE: Yes.
58. MR BARTLETT: I follow. I have nothing to say against that, and if Colman's representative, hearing of that, wanted to say something, well that would be up to them.
59. LORD JUSTICE JUDGE: I agree.
60. MR BARTLETT: Thank you.
61. LORD JUSTICE JUDGE: Thank you very much, Mr Bartlett. If you will forgive me that I did not pay you the courtesy of reciting your arguments, we were very grateful to you.
62. MR BARTLETT: My Lord, having heard Sir Derek's, there was not much more I could say.
63. LORD JUSTICE JUDGE: I do agree that it was very complete.
64. MR DODD: My Lord, so far as the Coates and Graves appeal is concerned, unless Mr Hulme has any points to make, it appears to us, with respect, to be a straightforward issue of the appeal being re-heard in front of a duly constituted court on a date to be agreed no doubt in the ordinary way, if that is acceptable.
65. LORD JUSTICE JUDGE: Yes. We are rather concerned, these convictions now go back some considerable time, both of them, one further than the other. I think it is unrealistic to order expedition, but, I make no secret of it, using my administrative hat I have made enquiries of the listing office. At the moment we are looking to try and list both these cases probably before the same constitution in early October. If anybody has any submissions to make why that is inappropriate, please would you let me know in writing in the next seven days. That is what we are looking for. It raises another question, which I address all counsel about. Our view is that neither Roderick Evans J nor Pitchers J should be members of either constitution, and I am slightly inclined to think I should disqualify myself, because, although I have been absolutely assiduous not to discuss the details of the case and the reasons, I do happen to know what the result would have been, assuming the court had not had a reconsideration and a re-think. My inclination is to disqualify myself too.
66. MR DODD: My Lord, I would not try and dissuade you or your brother judges.
67. LORD JUSTICE JUDGE: Do you think it is a good idea that I should?
68. MR DODD: Yes.
69. LORD JUSTICE JUDGE: Thank you. Anybody else want an advance on that?
70. MR BARTLETT: Simply if your Lordship feels best able --
71. LORD JUSTICE JUDGE: I think it is in everybody's interest, three judges fresh to it.
72. MR DODD: My Lord, certainly. My Lord, unless I can assist you further in relation to Coates and Graves, I think Mr Hulme wants to say something.
73. MR HULME: My Lord, the only outstanding matter that arises really in respect of Mr Coates at least is the question of sentence. Have your Lordships seen what may purport to be, in some interpretations, a medical report.
74. LORD JUSTICE JUDGE: Yes.
75. MR HULME: I would respectfully submit it is wholly unsatisfactory for the purposes that we require. My Lords, I had a word with the lawyer dealing with this matter at this court yesterday, and in view of the letter from, I think it was HMP Waylands that they were hoping to appoint a locum doctor at some stage but they were not sure, I wonder if it would be appropriate to assign a solicitor, the solicitor who has had conduct of this matter and has been communicating with Mr Coates and the prison, to try and accelerate a medical report for the purpose of --
76. LORD JUSTICE JUDGE: I think that is rather an expensive hammer to crack what should not be a great nut. I will invite the Registrar of Criminal Appeals to ask for an up-to-date medical report to be provided for you.
77. MR HULME: My Lord, the difficulty is that the Registrar of Criminal Appeals has been asking, and so have my instructing solicitors been asking and pressing for a report.
78. LORD JUSTICE JUDGE: The Registrar will no doubt say that, if one is not provided, there will be an order by the court that one should be provided. That might stimulate a response.
79. MR HULME: My Lord, yes. The only concern that one has is that there is no doctor at the prison, it seems.
80. LORD JUSTICE JUDGE: If there is no doctor, there is no doctor, but it is not unknown for there to be doctors about the place. We will do our best. I will invite the Registrar to act as I have indicated. You will be supplied with a copy of any report that arrives, and if there is a difficulty come back and we will take it up. We are conscious of your client's condition.
81. MR HULME: My Lord, I am obliged.
82. LORD JUSTICE JUDGE: Anything else?
83. MR BARTLETT: The only other thing is a time estimate for the Colman and Terry appeal. If it is one ground and two sentences, it is certainly less than a day. It was two and a half days for the whole lot, but I would say three hours or something like that.
84. LORD JUSTICE JUDGE: We will estimate that one for one day.
85. MR BARTLETT: All right, my Lord.
86. LORD JUSTICE JUDGE: And for the other, what is your best estimate?
87. MR DODD: My Lord, it took a day.
88. LORD JUSTICE JUDGE: Much the same issues, so another day?
89. MR HULME: My Lord, yes. No doubt arguments have been honed in the interim and a day would be adequate.
90. LORD JUSTICE JUDGE: If they have been honed, well and good, but Mr Pardoe seemed to uncover a whole host of European authorities.
91. MR HULME: My Lord, that is not in my --
92. LORD JUSTICE JUDGE: I appreciate that, but it is open to any of you to hone your arguments by making them longer. One day for each.
93. Thank you all very much. We are very grateful to you for your help yesterday.