England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 31st July 2006

1. LORD JUSTICE MAURICE KAY: Since this matter was listed some 2 months ago, this has proved to be the first occasion upon which the three members of the Court have been in London at the same time. But before turning to the disposal of the application under section 33(2) of the Criminal Appeal Act 1968, we shall address a point which has been raised in written submissions by Steele and also by Mr Blaxland QC. They contend that, because Openshaw J was not present on the day when judgment was handed down, 22nd February 2006, the appeal was not legally determined on that date. As a result, they seek to make further submissions on the merits of the appeal to this Court. Their contention is based on section 55 of the Supreme Court Act 1981, the material parts of which provide as follows:

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

2. Thus, it is submitted, this remains an undetermined appeal. Reference is made to the case of R v Coates & Ors [2004] EWCA Crim 2253, which dealt with the position which arose when the presiding Lord Justice had died after the hearing but before the reserved judgment was produced.
3. We reject the submission based on section 55. It is the common practice of this Court, however constituted, to hand down judgments which have previously been released to counsel without all members of the constitution necessarily being present. The usual reason and the one which arose in the present case is that, by the time the judgment is ready to be handed down, a member of the Court is no longer in London but is sitting somewhere on circuit. In such circumstances it would only be possible for the three judges to reassemble for the hand-down if the judge on circuit were to leave his duties there for a day, thereby disrupting a current trial, or if a potentially lengthy delay in handing down the judgment were to be tolerated. It is the view of this Court, and (we apprehend) all constitutions of it, that it is in the public interest to hand down the judgment as soon as possible without disrupting a trial in another part of the country. In the present case Openshaw J was presiding over a trial in Liverpool on 22nd February. We reject the submission that the Court is not properly constituted on an occasion such as pertained on the handing down of the judgment in the present case. No judgment is released to counsel unless and until it has been approved by all members of the Court. That occurred in the present case. The appeal was not "determined" by the Court on 22nd February. What happened on that day was simply the formal promulgation of the judgment. As Judge LJ observed in Coates (paragraph 32):

"An appeal is 'determined' for the purposes of section 55 when the decision is properly to be treated as binding on the judges themselves."

That point was reached when all three indicated their approval of the draft and authorised its release to counsel. Accordingly, this Court has no jurisdiction to receive further submissions on the merits of the case at this stage.

4. Steele seeks to raise a further point in the form of complaint that we are unwilling to receive oral submissions about the application under section 33(2). He says (correctly) that if Openshaw J had been present on 22nd February, it would have been appropriate for oral submissions to have been made by counsel at that time. However, such oral submissions were not and could not be made at that time, partly because of the absence of Openshaw J but also because Baroness Kennedy QC, with the apparent support of other counsel, asked for time before submitting an application in writing. Her request was granted and indeed there was a further extension of time. We should add that on 22nd February there was, in any event, only a very short amount of court time available for this case.
5. As a matter of law, it is open to this Court to deal with an application for leave to appeal to the House of Lords on the papers: see R v Daines and Williams 45 Cr App R 57. Whilst applications are often made orally at the conclusion of a hearing and are dealt with on that basis, that is not always so. We have considered whether any appellant can have a justified sense of grievance by our not inviting oral submissions in the present case. We are in no doubt that any such sense of grievance would not be justified. What has happened is that the appellants have been able to make lengthy written submissions - far more lengthy than would have been possible in the time that would have been allowed for oral submissions - and they have supplemented them with further written submissions. In Steele's case, the original submissions were made in writing by his counsel but he then dispensed with the services of counsel and has added his own submissions in writing, partly adopting what counsel had advanced but adding to that material at some length. We are entirely satisfied that no injustice has arisen from the exclusion of oral submissions. We are also satisfied that our view does not contravene Article 6 of ECHR. Quite apart from the lack of unfairness (as we find), we are no longer at the stage of a "trial".

Finally, we turn to the application under section 33. As we have previously communicated in writing, we decline to grant a certificate that a point of law of general public importance is involved. We discern no such point. The matters raised are essentially specific to the facts and circumstances of this particular appeal. We consider the application to be a thinly disguised attempt to reargue the case. The application is therefore refused.