Court of Appeal

Published date01 December 2010
Date01 December 2010
Subject MatterCourt of Appeal
Court of Appeal
Precedent and the Limits of Simpson
Rv Magro [2010] EWCA Crim 1575
Keywords Precedent; Court of Appeal; Stare decisis; Confiscation orders
Four unconnected applications for leave to appeal against sentence were
made to the Court of Appeal. In each of the cases the applicant had been
sentenced to a conditional discharge but had been the subject of a
confiscation order. In R vClarke [2009] EWCA Crim 1074, the Court of
Appeal had ruled that the Crown Court had no power to impose a
confiscation order when an offender was sentenced to a conditional
discharge. Following this case all four applications were made, including
an application for extension of leave to appeal, on the basis that their
confiscation orders should be quashed following the ruling in R v
The Crown argued that R vClarke was per incuriam and should not be
), the application for extension for leave
for one of the applicants (Varma) was granted and her appeal allowed
because R vClarkeis binding on the Court of Appeal. However, the Court
of Appeal certified a question of public importance for the attention of
the Supreme Court and stayed the remaining three applications whilst
the Crown sought leave from the Supreme Court to appeal.
Whilst R v Simpson [2004] QB 118 gave the Court of Appeal limited
discretion to depart from decisions of the Court of Appeal that were
wrong, such a power could not be exercised where the authority related
to a distinct point of law, reached after full argument and close analysis
of the relevant legislative provisions. Only the Supreme Court has the
power in this situation to overrule Clarke.
This commentary is restricted to considering the precedent issue, not
least because the substantive issue (whether confiscation orders can be
made following the making of a conditional discharge) will be settled by
the Supreme Court when this matter finally arrives there (it would seem
inevitable that the Supreme Court will grant leave because of the point
of precedent that is raised in this case).
The issue of precedent within the Court of Appeal has long been an
issue of debate and most lawyers continue to remember the memorable
battles Lord Denning had when Master of the Rolls to extend the remit
of the Court of Appeal. In theory the rules of precedent within the Court
of Appeal are set out in Young vBristol Aeroplane Ltd [1944] KB 718
where it was held that the Court of Appeal is ordinarily bound by itself
save when one of three exceptions apply:
1. Where there are two conflicting decisions of the Court of Appeal,
it may choose which to follow.
492 The Journal of Criminal Law (2010) 74 JCL 492–509
2. Where the previous decision of the Court of Appeal, even if not
expressly overruled, conicts with a House of Lords (or Supreme
Court) decision.
3. Where the decision was made per incuriam.
In R vSimpson [2004] QB 118, the Court of Appeal did not disagree with
this proposition (and indeed it would be difcult to do so) but it noted
that Halsbury’s Laws suggested that the Criminal Division had a further
limited ability to depart from precedent where it considered the law to
have been misunderstood or misapplied (at 128). This was given some
support by the decision of the Court of Appeal in R v Gould [1968] 2 QB
65 where Diplock LJ (as he then was) held that the Criminal Division, as
the successor to the Court of Criminal Appeal, need not be bound by
precedent where the law had been either misapplied or misunderstood
in an earlier decision of this court (at 68). However, in R vMerriman
[1973] AC 584 (when a Law Lord) he stated this applied only where the
departure is in favour of the accused. This is linked to the earlier
statements which had suggested the Court of Appeal retained this
discretion in situations where the defendant had lost his liberty.
In Simpson, the Court of Appeal held that it did not believe the
discretion should be exercised only where liberty was at stake and that
it could apply to technical appeals in order to maintain condence in the
criminal justice system (at 130). The ruling appears to be a derivative of
(and possible extension to) the per incuriam exception in that the court
held that it applied only where it was probable that had the court been
referred to other material or cases, then a different decision would have
been made.
Simpson has been rarely applied, in part because its conditions were
quite constraining. It is limited to a ve-judge court (although this
remains somewhat controversial as it is generally thought that the
number of judges does not affect their powers) and it only applies where
the court was sure that the previous decision was wrong.
The present case was heard before a full court (presided over by the
Lord Chief Justice as with Simpson) and certainly, therefore, there was
the belief that this may be an occasion when they would exercise their
discretion although, of course, to do so would contradict the principle in
Merriman that the discretion should be exercised only for the benet of
the accused (although the Court of Appeal in R v Rowe [2007] EWCA
Crim 635 had exercised its jurisdiction in this way and had noted that in
Simpson the Lord Chief Justice had indicated that he did not believe that
the court was bound by that statement in Merriman). Counsel for the
Crown, perhaps mindful of the difculty of exercising Simpson in situ-
ations where it was disadvantageous to the defendant initially sought to
argue that the decision in Clarke was per incuriam in that the court did
not take into account international obligations. However, the Court of
Appeal rejected this, stating that even if the court in Clarke had been
referred to such material it is unlikely it would have ruled to the
contrary (at [10]).
Precedent and the Limits of Simpson

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