DETERRENCE AND CRIMINAL APPEALS: THE EFFECT OF THE CRIMINAL APPEAL ACT 1966*
| Date | 01 July 1975 |
| Published date | 01 July 1975 |
| Author | S. WhiteB.A.(Oxon) |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01420.x |
THE
MODERN
LAW
REVIEW
Volume
38
July
1975
No.
4
DETERRENCE AND CRIMINAL APPEALS
:
THE EFFECT
OF
THE
CRIMINAL APPEAL ACT
1966*
INTRODUCTION
A
COMMON
objection to establishing
a
system of appeals against
judicial decisions
is
that such an innovation stimulates unwarranted
litigation.' This argument is most strenuously pressed in relation to
the provision
of
rights
of
appeal against sentence. Where, neverthe-
less, a system
of
appeals against sentence is established, the force
of the argument
is
often acknowledged by allowing appellate courts
to increase sentences,' the threat of an increased sentence being
designed to deter persons convicted from pursuing worthless appeals.
When the Court
of
Criminal Appeal was established in
1907
it was
given power to increase ~entences.~ This power could be exercised
on
any appeal against sentence and
on
some appeals against conviction.'
In
1965
the Donovan Committee, which had been appointed
to
review
the operation
of
the Court, concluded that on balance this power
was undesirable
5;
and late in
1966
the Court of Criminal Appeal
was replaced by a Criminal Division of the Court of Appeal without
such p0wer.O
During the debate on the Criminal Appeal Bill
1966
several mem-
bers
of
Parliament argued that if this change were made the
*
I
would like to thank many people for their assistance to me in writing this
article, but particularly Master
D.
R. Thompson, Registrar
of
Criminal Appeals,
David Thomas, Bob Cushing, Gerry Rose and Alec Samuels for their advice, and
Elizabeth Warwick who assembled some
of
the data for me.
1
Report
of
the Interdepartmental Committee
on
the Court
of
Criminal Appeal
(The Donovan Committee),
1963,
Cmnd.
2755,
paras.
7-16:
Report by Justice
on
Criminal Appeals,
1964,
paras.
23-27.
2
Cf.
American Bar Association Project
on
Minimum Standards for Criminal
Justice, Standards Relating to Criminal Appeals:
1969,
58-60.
70-72.
3
Criminal Appeal Act
1907,
ss.
4
(3)
and
5
(I).
4
Criminal Appeal Act
1907,
s.
5
(2).
For a summary
of
the exact legal position
see
D.
A. Thomas,
''
Increasing Sentences
on
Appeal-a Re-Examination
"
[1972]
Crim.L.R.
288, 288-289.
5
Donovan Committee Report,
op.
cir.,
paras.
185-206.
6
Criminal Appeal Act
1966,
s.
4
(2):
Criminal Justice Act
1967,
s.
97
(7):
Crimi-
nal Appeal Act
1968,
ss.
3 (2).
4
(3)
and
ll
(3).
Apparently in
one
very limited type
of appeal against conviction there
is
still power
to
increase sentence, Criminal
Appeal Act
1968,
s.
5
(2).
369
VOL.
38
(4) 1
[Vol.
38
Court would be swamped by appeals.' Many people now feel that
this prediction has been fulfilled, and some have suggested that the
power to increase sentence be restored to the Court.
It would be wrong to act on these suggestions without
a
thorough
examination of such relevant information as is readily available,
but, as yet, investigation of the effects of the 1966 legislation has
not been as thorough as existing information allows. In this article
I
shall attempt to assess how much help such information affords in
answering these questions:
1.
Did appeals increase subsequent to the Court's loss of power
to increase sentences?
2
If
so,
did meritorious or frivolous appeals, or both, increase?
3.
If
any increase took place, was this due to the Court's loss
of
370
THE
MODERN
LAW
REVIEW
power to increase sentence?
THE
ARGUMENT ABOUT
REINTRODUCTION
Before turning to examine these questions it is worth pointing out
that, whatever the answers to them might be,
an
argument opposing
the reintroduction of the power to increase sentences on appeal
could be maintained until it was shown that the only people who
would be deterred from appealing would be those who both had no
ground for a meritorious appeal and who knew that they had no such
grounds,@ for it could be argued that someone who genuinely feels
aggrieved at
a
judicial decision
at
first instance should not be
deterred from airing his grievance, however groundless it may be.
Even if it were shown that reintroduction would probably deter
only such appellants, it could be argued further that the proper
remedy for frivolous appeals is merely ordering that the time spent
by the appellant
as
an appellant should not count towards his sen-
tence. The Court of Criminal Appeal never had power to increase a
sentence simply because an appeal was frivolous and, as far as
I
am aware, even those who want the power restored do not suggest
that the mere fact that an appeal
is
frivolous should become a
ground for exercising the power. There is a juristic distinction
between the power to order loss
of
time as a deterrent to frivolous
appeals and the power to increase sentence as
a
means of ensuring
proper sentencing, and it is only because this distinction is frequently
7
Viscount Colville of Culross, 274
H.L.
Deb. ser.
5,
col. 818 (May 12, 1966);
Lord Peanon, 274
H.L.
Deb. ser.
5,
col. 826 (May
12,
1966); Mr.
F.
P. Crowder.
731
H.C.
Deb. ser.
5.
col.
1135
(July
II.
1966); Mr. Mark Carlisle, 73 H.C. Deb.
scr.
5,
col. 1978 (July
15,
1966).
*
Since a strictly correct use
of
the terms "Court
of
'Piminal Appeal" and
''
Court
of
Appeal
"
is cumbersome,
I
shall use the term Court
of
Appeal
"
or
'I
Court
''
to
refer
to
both and make it clear when
I
am referring to one only.
9
For
opinions that there are many appellants who genuinely believe they are
justified in appealing even thqugh the Court would think an appeal pointless, see
Donovan Committee Report,
op.
cif.,
para. 174-175; American Bar Association,
op.
ck,
p.
62; Michael Zander:," Legal Advice and Criminal Appeals: A Survey
of
Prisoners, Prisons and Lawyers
10
Donovan Committee Report,
op.
df.,
paras, 191 and 194; Michael Dean,
"
Criminal Appeal Act 1966
"
119663 Crim.L.R. 535, 542.
[I9721
Crim.L.R. 132,
137.
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