Injustice Perpetuated? The Contribution of the Court of Appeal
| Author | L. H. Leigh |
| DOI | 10.1350/jcla.2008.72.1.476 |
| Published date | 01 February 2008 |
| Date | 01 February 2008 |
| Subject Matter | Article |
The Contribution of the
Court of Appeal
L. H. Leigh*
Abstract
This article examines dicta in R v Cottrell pertaining to the extent
to which the Criminal Cases Review Commission ought or should have
regard to the principles adumbrated by the Court of Appeal in relation to
leave to appeal in change of law cases. It concludes that a restatement of
the Commission’s policy statement to provide that, following R (on the
application of the Director of Revenue and Customs Prosecutions) v Criminal Cases
Review Commission, the CCRC would not have regard to the Court of
Appeal’s practice in leave-out-of-time cases was misconceived and wrong.
The article further concludes that fears expressed by the Court of Appeal
concerning the impact of change of law references on the court’s work-
load were exaggerated because not informed by the practice of the CCRC.
It examines critically the standard suggested by the Court of Appeal for
referral of such cases, namely substantial injustice, and points to problems
which the CCRC may well encounter in applying a formula which, at
present, is nebulous.
The sometimes competing principles of ensuring justice in the particular
case and of ensuring finality in litigation generally appear to have come
into conflict in the context on the one hand of the Criminal Cases
Review Commission’s power to refer a conviction where there has been
a change in the common law or the interpretation of a statute since
conviction, and the Court of Appeal’s discretion not to grant an exten-
sion of time or leave to appeal on the other. This as will be seen is an old
crux. The result of dicta in R v Cottrell and Fletcher1 may be substantially
to limit the power of the Criminal Cases Review Commission to do
justice in a case in which a person, condemned under now-discredited
common law doctrine, or statutory interpretation now found to be
indefensible, seeks to have his conviction reviewed in the light of later
authorities.
The statutory framework
The Commission’s powers are set out in ss 9–16 of the Criminal Appeal
Act 1995. For present purposes it is sufficient to refer to ss 9 and 13
relating to convictions made on indictment. Section 9(1)(a) provides in
part that where a person has been convicted of an offence on indictment
in England and Wales the Commission may at any time refer the
conviction to the Court of Appeal. Section 9(2) provides that such a
* Formerly Professor of Criminal Law at the London School of Economics and
sometime member, Criminal Cases Review Commission.
I am grateful to Joel Bennathan QC, counsel for Fletcher, and to Dr Hannah
Quirk of the University of Manchester for their comments on an earlier draft of this
article. Responsibility for errors is mine alone.
1 [2007] EWCA Crim 2016, [2008] 1 Cr App R 7.
40
(2008) 72 JCL 40–52
The Journal of Criminal Law
doi:1350/jcla.2008.72.1.476
Injustice Perpetuated? The Contribution of the Court of Appeal
reference shall be treated for all purposes as an appeal. The wording of
s. 9(1)(a) thus confers a discretion on the Commission whether or not to
refer a case. Once referred the Court of Appeal is obliged to deal with the
matter as an appeal. The normal requirements for leave are thus
overridden.
Section 13 provides conditions for the making of a reference. A
reference of a conviction, verdict, finding or sentence shall not be made
unless the Commission considers that there is a real possibility that the
conviction, inter alia, would not be upheld were the reference to be
made. Then, in words which reflect the primacy of the jury’s verdict, the
section further provides that the Commission’s consideration must be
based on argument or evidence not raised in the proceedings which led
to the conviction, etc. or on any appeal or application for leave to appeal
against it. Furthermore, an appeal against conviction, etc. must have
been determined or leave to appeal against it refused. In the case of a
conviction (but not of the other matters mentioned) the requirement
that there have been a prior appeal or leave application or argument or
evidence not previously adduced on appeal or a leave application shall
not prevent the making of a reference if it appears to the Commission
that there are exceptional circumstances which justify making it. Two
matters are immediately apparent. The first is that the Commission’s
discretion to refer is writ at large, but that it should not be exercised
unless normal modes of recourse have been pursued unsuccessfully. The
second is that in exceptional circumstances, which the section does not
define and which are explicitly said to be for the Commission’s evalu-
ation, a reference may be made nonetheless. To anticipate: one would
have thought that a change in common law or statutory interpretation,
putting right previous misconceptions, is a paradigm case of ‘exceptional
circumstances’ since no appeal or application for leave to appeal would
have succeeded if made immediately after conviction. Counsel would,
indeed, have advised against it.
By contrast, applications for leave to appeal must normally be
brought within a short time limit of 28 days following conviction.2
Applications for leave to appeal are usually dealt with by a single judge
in private. His reasons are sufficient to indicate why leave has been
granted or refused but are less elaborate than the reasons given by the
court in determining an appeal. An applicant whose application is
refused by the single judge may apply within 14 days to have his
application determined by the Full Court.3 While an applicant may
apply out of time for leave to appeal, the court, as will be seen, is
reluctant to allow such applications unless good reason is shown. The
emphasis becomes one of ensuring finality in litigation.
The judgments
In neither of the cases in question was the Commission a party to the
litigation. Fletcher, convicted of seven counts of indecent assault against
2 Criminal Appeal Act 1968, s. 18(2).
3 Criminal Appeal Act 1968, s. 31(3).
41
The Journal of Criminal Law
a female, had previously appealed to the Court of Appeal. He now
appealed afresh as a result of a reference by the Commission. The
Commission has never been a party to such references. The consequent
appeal is conducted on behalf of the individual whose conviction is
referred. Cottrell, convicted of two counts of indecent assault, also ap-
plied to the Commission. The Commission determined that his applica-
tion was premature because he had not previously sought leave to
appeal. Cottrell therefore sought an extension of time and leave to
appeal. Both matters were consequent upon the decision of the House of
Lords in R v J,4 which held that the prosecution could not bring a charge
of indecent assault where to do so would circumvent the 12-month time
limit under the Sexual Offences Act 1956 for bringing proceedings
alleging unlawful sexual intercourse with a girl under 16.
For present purposes it is unnecessary to dwell on the facts. It is
perhaps sufficient to say that Cottrell, a serving police officer who had
intercourse with a 15-year-old girl on work experience with the police,
could not be charged with unlawful sexual intercourse, more than 12
months having elapsed since the date of the offence. He was therefore
charged with and convicted of indecent assault. Fletcher, a 65-year-old
man, was convicted on one count of indecent assault, count 11, based on
an act of full sexual intercourse together with other counts not so
founded. While Fletcher had appealed, no point based on R v J was taken,
no doubt because that decision was then very recent and had not been
discovered by counsel. The Commission referred both the conviction on
count 11 and the sentence.
The Court of Appeal held that the Commission acted appropriately in
both cases. The court concluded that it had no alternative but to quash
Fletcher’s conviction on count 11 because that count, having been laid
substantively, fell foul of R v J. Furthermore, Fletcher originally appealed
in time and because the matter now came before the court as a reference
by the Commission, no question of time extensions arose. Cottrell was a
different case because of the Commission’s decision, under s. 13(1)(c) of
the Criminal Appeal Act 1995, to require him first to seek leave to
appeal. In refusing Cottrell an extension of time and leave to appeal, the
Court of Appeal concluded that he had in fact suffered no injustice. He
had groomed the complainant. He was guilty of indecent assault on her.
He could have been so indicted...
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