England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/02/2017

The Court :

1. Following the decision of the Supreme Court in R v Jogee, Ruddock v The Queen [2016] UKSC 8, [2016] 2 WLR 681 ("Jogee"), the series of cases of which Reece Garwood, Javed Ruhel Miah and Michael Hall were a part decided that exceptional leave to appeal against conviction (or to amend pre-existing grounds) out of time required demonstration of substantial injustice. In determining whether that threshold had been met, the court said it would primarily and ordinarily have regard to the strength of the case advanced that the change in the law would in fact have made a difference: see R v Johnson and other cases [2016] EWCA Crim 1613 at [20]-[23]. In the event, in none of the cases then before the court was the threshold of substantial injustice overcome.
2. The court is now invited to certify that a point of law of general public importance is involved in the decision as to its approach to determining whether there had been a substantial injustice. It is argued that the court in Johnson and others established a new and unduly onerous test of substantial injustice that the applicants should be able to challenge in the Supreme Court and that unless a certificate is granted this court will be the final arbiter of that test. Neither would it be possible to wait for a case in which leave is granted because, in those circumstances, the safety of the conviction does not depend on substantial injustice (however it might be defined). In addition, Michael Turner QC for Javed Ruhel Miah (who obtained leave to appeal on other grounds) also seeks a certificate in relation to the participation necessary to found a conviction for joint enterprise murder.
3. Irrespective of the merits of any argument that might be advanced in relation to the meaning of the term substantial injustice, the first – and primary – issue raised by this application is whether there is jurisdiction to grant a certificate in circumstances when leave to appeal has been refused. That is not a question of discretion but rather of statutory construction, requiring consideration of the Criminal Appeal 1968 (as amended) ("the 1968 Act") and the relevant authorities which have construed both it and its predecessor legislation.
4. Appeal to what is now the Supreme Court is covered by Part II of the Act and the right of appeal is contained within s.33 in these terms:

"(1) An appeal lies to the Supreme Court, 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 …

(1B) An appeal lies to the Supreme Court, at the instance of the acquitted person or the prosecutor from any decision of the Court of Appeal on an application under s.76(1) or (2) of the Criminal Justice Act 2003 (retrial for serious offences).

(2) The appeal lies only with the leave of the Court of Appeal or 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 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 by this Part of this Act … no appeal shall lie from any decision of the criminal division of the Court of Appeal."

5. Tim Moloney QC, for Michael Hall, argues that it is important to focus on what amounts to an appeal to the Court of Appeal under Part 1 of the Act and he refers to s.51(1) of the 1968 Act as providing little assistance about what is meant by the word 'appeal' but that it suggests that an application for leave to appeal forms part of an appeal. It is in these terms:

"'appeal' where used in Part I or Part II of this Act, means appeal under that Part and 'appellant' has a corresponding meaning and in Part I includes a person who has given notice of application for leave to appeal."

6. In response to the written submissions of John McGuinness QC to the effect that the definition of the word 'appellant' is for the purposes of Part I of the 1968 Act only and therefore a person who has given notice of appeal is not an appellant for the purposes of Part II (which incorporates s.33), Mr Moloney QC goes on to argue that the key question is not whether the applicant is an appellant but, rather, what amounts to an appeal under Part I of the Act.
7. It is undeniable that Part I of the 1968 Act is careful to differentiate between what constitutes an appeal and what an application. Thus s.18(1) refers to the giving of a notice of appeal "or, as the case may be" notice of application for leave to appeal and similar language is to be found in s.20, 21 (which deals with "a hearing of any appeal or application of which notice is given"), s.22(2) (entitlement to be present), s.23 and 23A (fresh evidence and investigation), and ss.31, 31A and 31B (powers exercisable by a single judge and/or the Registrar). In our judgment, whether or not an applicant for leave to appeal is appealing a decision and thus can be described in that context as pursuing an appeal is not to the point. The phrase 'decision of the Court of Appeal on an appeal' clearly refers to the determination of an appeal which has been pursued with leave (whether from the trial judge or the Court of Appeal) and determined on its merits.
8. That view is supported, at least to some extent, by the different words used to describe the right of appeal under s.33(1) ("appeal") and s.33(1B) ("decision"). The provision is clearly based on the context that an order of retrial for a serious offence under s.76(1) or (2) of the Criminal Justice Act is an originating decision and does not follow from an appeal, but it would have been perfectly straightforward to use the word "decision" in s.33(1) had it been intended to permit any decision reached by the Court of Appeal to be the subject of an application for a certificate.
9. In addition to the question of pure statutory construction, it is also illuminative to see how the courts have dealt with such applications in the past. In R v Stafford & Luvaglio (1969) 53 Cr App R 1, the court dealt with an application to certify points of law of general public importance in this way (per Edmund Davies LJ at page 4):

"This court has no power in the event to grant that application in the present circumstances. Power to certify exists only when a decision is made by this Court on an appeal. It has no similar power in relation to an application."

10. Similarly, in R v Mealey & Sheridan (1974) 60 Cr App R 59, the court refused to certify a point of law. In [1975] Crim LR 154, the decision of the court (Lord Widgery CJ, Park and Forbes JJ) is amplified in the commentary which notes that the case decided that 'appeal' did not include an application for leave to appeal, notwithstanding the definition in s.51: this was on the basis that what was before the court was "only an application and not an appeal". That reasoning was adopted in R v Moulden [2004] EWCA Crim 2715 and, in relation to the pronouncement [2005] EWCA Crim 374 in which Clarke LJ observed that it was plain from s.51(1) that an application for leave to appeal is not 'an appeal'.
11. Dealing with Mr McGuinness QC's submission that these decisions are, on their face, binding, Mr Moloney QC seeks to argue that, in the latter two (he did not address Stafford & Luvaglio) there has been a manifest error because part of the reasoning in Mealey which was followed in Moulden was that the prima facie test in deciding whether to grant leave to appeal was whether the court felt the need to hear from the prosecution on the merits, whereas the current procedure of the court was for the Registrar more readily to refer applications to the full court, with the Crown attending. He also submits that, if it is correct, a consequence of the decision is that the meaning of 'substantial injustice' could never be reviewed by the Supreme Court.
12. As for the first of these reasons, it cannot alter the statutory construction of s.31. In any event, it is irrelevant given that the problem in this case is a consequence of the need for leave; the grant of leave would change the nature of the test as to the safety of the conviction. We add that Stafford & Luvaglio was not, in any event, a case in which the Crown was not represented. Furthermore, the practice of cases being referred to the court for full argument on the question of leave is, itself, longstanding: see, for example, R v West [1996] 2 Cr App R 374. Suffice to say that we have no doubt that these cases are binding even if (which is not the case) we disagreed with the statutory construction of s.31.
13. We add only one further statutory detail. When Parliament returned to the 1968 Act to deal with the effect of a reference by the Criminal Cases Review Commission back to the Court of Appeal in change of law cases, it underlined the significance of ensuring that the court approached the case on the same basis as other extension of time cases. Inserted by para. 14 of Schedule 27 of the Criminal Justice and Immigration Act 2008, s.16C of the 1968 Act now provides:

"(1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under s, 9(1)(a), (5) or (6) of the Criminal Appeal Act 1995 or s.1(1) of the Criminal Cases Review (Insanity Act 1999).

(2) Notwithstanding anything in ss.2, 13 or 16 of this Act, the Court of Appeal may dismiss the appeal if –

(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction verdict or finding that is the subject of the appal, and

(b) the condition in subsection (3) is met.

(3) The condition in this subsection is that if –

(a) the reference had not been made, but

(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,

the Court would not think it appropriate to grant the application by exercising the power conferred by s.18(3) [i.e. extending time]."

If Parliament had not been entirely satisfied with the way in which the courts dealt with applications for leave to appeal out of time, that would have been the time and place to deal with what Mr Moloney QC contends is a flaw in the procedure of this court.

14. Finally, we note that in Jogee at [100], the Supreme Court specifically recognised both the need for exceptional leave to appeal out of time and the requirement to prove substantial injustice. It was equally clear that Lord Hughes and Lord Toulson went on to observe that the court would not grant leave "simply because the law applied has now been declared to have been mistaken".
15. In the circumstances, although we recognise that, as a consequence, the approach of the court in these cases in relation to substantial injustice cannot be challenged further, we are satisfied that the court has no jurisdiction to certify that a point of law of general public importance arises in these cases and we decline to do so.
16. It is not, in the light of our clear conclusions on jurisdiction, necessary for us to lengthen this judgment by a consideration of the other issues in relation to Reece Garwood and Javed Ruhel Miah which would have to be considered before we granted a certificate and considered the issue of leave.
17. That leaves Mr Turner QC's argument that as he had leave to appeal, he can seek a certificate in relation to the participation necessary to found a conviction for joint enterprise murder. There are two answers to that submission. First, the ground of appeal on which leave was obtained related to whether the directions to the jury on participation were sufficiently tailored to the facts of the case; the misdirection as a consequence of Jogee was a further ground on which leave was sought and which is caught by the same principles of exceptional leave (see Johnson at [25]). We deal with the non-Jogee grounds at [155]-[158] and it is not suggested (nor could it be) that a question of law of general public importance arises from them.
18. The request for the certificate is said to arise as a consequence of our judgment in Johnson and other cases [2016] EWCA Crim 1613 at [159 (iv)] which specifically deals with the Jogee ground. The question sought to be certified concerns "the actual participation" necessary to found a conviction. It is formulated in these terms:

"Not withstanding a defendant is found to be part of a plan to commit at least grievous bodily harm on the deceased [sic]. Can he be guilty of joint enterprise murder if he neither orchestrated the attack nor played any part in the attack physically or by way of assistance."

19. Quite apart from the jurisdictional issue, we agree with the submission made by the Crown that the court did not conclude that Javed Rubel Miah was liable to be convicted of murder even though he had played no part in the attack physically or by assistance: read in its entirety, it is quite clear that we concluded to the contrary. Finally, this formulation is, in reality, a fact specific question about this incident: the question is answered in Jogee at [11]-[12], [96] and [98] and in Johnson at [3]-[6], [149] and [159]. For all these reasons, this application is also refused.