Court of Appeal
| DOI | 10.1177/002201839205600402 |
| Date | 01 November 1992 |
| Published date | 01 November 1992 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
LIMITS OF
THE
POWERS OF
THE
COURT OF APPEAL
RVMcIlkenny
The much publicised hearings of the cases of those who were convicted in
relation to the bombing campaigns of the
IRA
and whose convictions were
set aside gave the Court of Appeal an opportunity to set out the limits of
its powers and functions on appeal and the principles upon which it
proceeds when faced with fresh evidence. Its judgment on the occasion of
the reference back to the Court of Appeal of the case of R v McIlkenny
[1992]
2 WLR 417 sets out its 'understanding' of the role it has to play.
Having no inherent substantive jurisdiction, the court is bound by the
limits of its statutory powers, so that it has no power to carry out an 'open-
ended' investigation into an alleged miscarriage of justice. It also follows
that the court can allow an appeal only on a ground specificallyset out in
statute: otherwise, it must dismiss the appeal. That point, which the court
stated to be of 'great constitutional importance', flows from the fact that
only a jury can find a man guilty. Juries apply the law as well as find the
facts and that explains the limitations placed on the court. The primacy of
the jury also explains why, whereas the Civil Division of the court is a
truly appellate tribunal before whicha hearing is a re-hearing, the Criminal
Division is limited to functioning as a court of review.
One may with respect pause here and ask whether this is always so,
since there are cases in which the court in effect substitutes its opinion for
that of the jury on a point which, because of a material irregularity, was
never brought to the jury's attention: see eg RvCoulburn (1987) 87
Cr App R 309; 53 JCL 210, though cases such as that are (one hopes) a
rarity. The adversarial system means that the jury, in spite of its primacy,
cannot embark on a judicial investigation. The court pointed to some of
the weaknesses of the adversarial system and remarked that 'there is no
way of ensuring that the jury will always get it right', since 'no human
system can expect to be perfect'. One defect of the system is that when
one side decides that the other should succeed, the court may hear one
side of the story and of the argument. This is particularly important in any
case in which fresh evidence is adduced, for there can be no opportunity
for effective cross-examination in open court of the fresh evidence (a fact
which was seen in the sort of case here being considered). Where the
conviction is quashed without an order for a fresh trial, no public
examination of the fresh evidence is available in a case in which there has
been no contest. The media, and therefore the public, has really no ground
upon which to have an informed opinion. Whether this difficulty can be
solved by the introduction of some other system, in these very exceptional
circumstances, the court would not speculate. In the absence of any
research into the manner in which the problem is dealt with in other
systems, it would be wrong to say that the English media is peculiarly
343
Journal
of
Criminal
Law
irresponsible or peculiarly wicked in the comments made, and blame cast,
in these cases.
The proper approach of the appellate tribunal was laid down in the
House of Lords in Stafford v
DPP
[1974] AC 878: although the court may
choose to test its views by asking itself what the original jury would have
concluded, the ultimate question for the court is whether on the basis of
the evidence, including any fresh evidence, it thinks the conviction is safe
and unsatisfactory. (It may be remarked that, notwithstanding the words
'on the basis of the evidence' in the above passage, Lord Widgery LJ
asserted in R v Cooper [1969] QB 267 that the court's decision 'may not
be based strictly on the evidence as such', but based on the court's 'general
feel of the case'.) The words 'unsafe' and 'unsatisfactory' are disjunctive:
are they tautological? A survey of the reports reveals that sometimes one
word is used, sometimes the other and sometimes both. In the present
case, the court stated that it could find no pattern. There is no definitive
authority that the words have different meanings, though the court has
speculated that a verdict may be unsatisfactory without being unsafe. In
the present case, the court first asked what impact the fresh evidence
would have had upon the jury, merely as a preliminary to its own decision,
upon that evidence, whether the verdicts were unsatisfactory or unsafe.
In the present case, there can, one would think, be no doubt that on the
evidence which the jury heard, they could not have been expected to come
to any other conclusion than that which they in fact reached. The only
question, therefore, was as to the impact of the fresh evidence. The court
thought that that impact would have been 'considerable', so that it was
'inevitable' that the court should pronounce the verdict to be unsafe or
unsatisfactory.
THE
PROSECUTION'S DUTY TO DISCLOSE EVIDENCE
R v Maguire
The principal points of law raised by the cases of those who have been
convicted of the various offences connected with the
'IRA
bombings' and
whose convictions have been quashed on the ground that they were unsafe
and unsatisfactory relate to the duty of 'the prosecution' to disclose all
available evidence. In R v Maguire
[1992]
2 WLR 767, it was shown that
there had been no disclosure at the trial of the six appellants of the fact
that forensic examination had revealed facts from which it might be
inferred that the nitro-glycerine found on the hands and gloves of the
appellants might be open to an innocent explanation.
The
Court of Appeal
concluded that the failure to reveal this fact either before or at the trial
amounted to a 'procedural irregularity'. It was of opinion that, when there
is such an irregularity, it might be expected to be 'material'. It follows that
where the 'proviso' cannot be applied, that is where the court feels unable
to hold that 'no miscarriage of justice has actually occurred', the verdict
must be regarded as unsafe or unsatisfactory by reason of the material
irregularity.
344
Court
of
Appeal
In the present case, that was sufficient to determine the matter, provided
the information was withheld by 'the prosecution'. Neither prosecuting
counsel
nor
those instructing them knew of the tests and experiments
which had established the possibility of an innocent explanation.
It
was
argued that the earlier authorities which laid down the duty to inform the
defence of all information available limit that duty to counsel and those
instructing them. Here, it was said, no one can be under a duty to reveal
what is unknown to him. The question of law, therefore, was as to the
meaning of the term 'the prosecution', which has this duty of revelation.
In the past, the failure of police officers has been attributed to the
prosecution. Here, the court, without relying on that analogy, held that
on principle 'the prosecution' must in this context be held to consist not
only of counsel and those instructing them, but also of anyone advising
the prosecution. The failure of the forensic scientist in the present case
was therefore amaterial irregularity, in the course of the trial, by the
prosecution.
Afurther point of some importance, relating to the power of the Home
Secretary to refer a case to the Court of Appeal, arose.
One
of those
convicted at the original trial had died in prison while serving his sentence.
May the
Home
Secretary refer to the court the case of a person now
deceased? From time to time, historians dig
out
facts upon the basis of
which they seek to cast doubt on the justice of the conviction and execution
of
one
of the more renowned criminals of the past. Could the Home
Secretary be asked to refer the case to the court, on the basis of this fresh
evidence?
The
jurisdiction of the court to entertain areference is purely
statutory and therefore depends on the interpretation of s 17 of the
Criminal Appeal Act 1968.That section allows a reference where 'a person'
has been convicted on indictment. Moreover, by s 17(1)(b), the Home
Secretary may refer a case 'if he desires the assistance of the court on any
point arising in the case'. Both these provisions led the court to the
conclusion that, however awkward some of the consequences might be, a
reference can be entertained in respect of a deceased defendant. This
seems only right: a deceased member of the prosecuting
'team'
stands the
chance of being taken to task by the court, so that justice would seem to
demand that adeceased defendant should stand the same risk, even though
it cannot be known that he would have wished to risk having his guilt thus
doubly confirmed.
As might have been expected, much has (very properly) been made by
the media of the court's decisions in these cases.
It
may however be
remarked that this comment has at times overstated, and therefore, mis-
stated the nature and significance of the court's decisions, for it has been
stated that, because of those decisions, the defendants are innocent and
even that they have established their innocence. This is to mis-state the
effect of the decisions, which are that the convictions are unsafe or
unsatisfactory. Where does this leave the defendants?
It
puts them in
precisely the same position as that in which they were before the
trial-
they are presumed in law to be innocent.
It
is for this reason that they
have not established their innocence. They have not done so, because
neither they nor the writer nor the readers of this note are called upon by
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