R v Coates; R v Graves; R v Terry
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE,Lord Justice Auld |
| Judgment Date | 21 December 2004 |
| Neutral Citation | [2004] EWCA Crim 2253,[2004] EWCA Crim 3252 |
| Docket Number | No: 200302627 C2; 200302938 C2; 200201387 D1; 200201389,Case No: 0201387 D1 & 0201389 D1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 December 2004 |
[2004] EWCA Crim 2253
Lord Justice Judge
(Deputy Chief Justice of England & Wales)
Mr Justice Roderick Evans
Mr Justice Pitchers
No: 200302627 C2; 200302938 C2; 200201387 D1; 200201389
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MR P W BIRTS QC & MR J HULME appeared on behalf of the APPELLANT COATES
MR M A F BENNETT appeared on behalf of the APPELLANT GRAVES
MR D HAROUNOFF appeared on behalf of the APPELLANT COLMAN
MR R PARDOE appeared on behalf of the APPELLANT TERRY
SIR D SPENCER QC & MR J DODD appeared on behalf of the CROWN in the cases of COATES & GRAVES
MR D A BARTLETT appeared on behalf of the CROWN in the cases of COLMAN & TERRY
Friday, 30th July 2004
The problem we have to address arises from the much lamented sudden death of Kay LJ. It arises in this stark way. Coates and Graves appealed against their convictions at Basildon Crown Court on 4th April 2003. Terry appealed against his conviction at Winchester Crown Court on 8th February 2002. Their appeals were heard on 28th April 2004 and 4th-6th May 2004 respectively before the court presided over by Kay LJ. The other members of the court were Roderick Evans J and Pitchers J. Leave had been given to appeal on some grounds and refused in others, and the court therefore had to consider not only full appeals, but also renewed applications for leave to appeal.
At the end of the respective hearings Kay LJ announced that the renewed applications for leave to appeal by Terry would be dismissed and that the reasons would be given at a later date. In both sets of cases, on the grounds on which leave to appeal had been given, the court reserved its judgment.
After the hearing the three members of the court reflected together on the material placed before them and the respective arguments of counsel. The outcome of the appeals was agreed, and so were the reasons for the outcomes. Kay LJ was due to write the judgment of the court. When he had completed it, it would have been circulated by him to his colleagues for their consideration and with a view to their agreement. Unfortunately, his sudden death occurred before he had written the judgment. In a letter dated 12th July 2004 from the Registrar of Criminal Appeals to all counsel, they were informed that:
"After the conclusion of submissions all three members of the court considered the arguments and came to decisions as to the outcome of the appeal."
It was proposed that one of the other members of the court should produce a written judgment in each appeal, explaining the decision and the agreed reasons for it.
Objection was taken to that course on the basis that the two remaining judges lacked jurisdiction to determine the appeal. A separate point in relation to matters of discretion was also taken, but the argument was not pursued before us.
In relation to the Court of Appeal Criminal Division, and its predecessor, the Court of Criminal Appeal, the problem we have to address is unprecedented, and none of the many counsel involved in the hearing before us had discovered any relevant authorities. Our primary concern, therefore, is whether the course proposed in the letter from the Registrar is prohibited on jurisdictional grounds.
The jurisdiction of this court depends exclusively on statute. Section 55 of the Supreme Court Act 1981 provides as follows:
"(2) a court shall be duly constituted for the purpose of exercising any of its jurisdiction if it consists of any uneven number of judges not less than three.
(3) Where
(a) part of any proceedings before a court has been heard by an uneven number of judges greater than three; and
(b) one or more members of the court are unable to continue,
the court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three.
(4) a court shall, if it consists of two judges, be duly constituted for every purpose except
(a) determining an appeal against
(i) conviction; or
(ii) a verdict of not guilty by reason of insanity; or
(iii) a finding of a jury under section 4 of the Criminal Procedure (Insanity) Act 1964 (unfitness to plead) that a person is under a disability.
(aa) reviewing sentencing under Part IV of the Criminal Justice Act 1988. (b) determining an application for leave to appeal to the House of Lords; and
(c) refusing an application for leave to appeal to the criminal division against conviction or any such verdict or finding as is mentioned in paragraph (a)(ii) or (iii), other than an application which has been refused by a single judge.
(5) Where an appeal has been heard by a court consisting of an even number of judges and the members of the court are equally divided, the case shall be re-argued before and determined by an uneven number of judges not less than three."
The language of the statute makes it plain that appeals against conviction are to be heard and decided by constitutions of not less than three judges. If the appeal begins before more than three judges, one of whom is no longer able to continue with the proceedings, the statute provides that the court will remain duly constituted provided the number of judges are not reduced below three. It follows that if an appeal against conviction starts before three judges, the hearing cannot continue in front of the two remaining judges if, for whatever reason, their colleague is unable to continue.
None of these principles present any difficulty. They follow from the clear language of the statute. In essence, the argument is that the problems with which we are concerned are entirely covered by these provisions and that they lead to the conclusion that, for jurisdictional reasons, the judgment may not be given.
There is no broad discretion similar to that provided by section 54(4A) of the 1981 Act, exercisable by the Master of the Rolls, in relation to the future conduct of a civil appeal where a member of the court is unable to continue and the proceedings are "partly heard".
We believe that the distinction between criminal and civil appeals is quite deliberate. Appeals against conviction are concerned with the safety of verdicts reached by a jury. The requirement that appeals against conviction should be decided by a court of not less than three judges is a proper acknowledgment of the constitutional pre-eminence of the jury.
Our attention was also drawn to section 59 of the 1981 Act. This provides that in the Court of Appeal Criminal Division the judgments of the court must be given by the judge presiding over the court or such other member of the court as he may direct.
We doubt whether this provision, which relates to the normal arrangements by which a single judgment of the court is usually produced, is of more than peripheral interest in the present situation. In our view, its direct concern is administrative arrangements.
The proper application of section 55 of the 1981 Act therefore requires us to decide a deceptively simple question: were these appeals against conviction "determined" by the three judges?
The critical facts in each case are that the hearings were concluded and the members of the court had met and agreed their decisions and the reasons for them. Superficially, at any rate, all that was left was for the reasons to be reduced into writing and the decision to be pronounced in court.
We emphasise that we are not here dealing with a reserved judgment in which the outcome of the appeal and the reasons for the decision were not apparently agreed by the three judges before the death of one of them. Equally, we are not concerned with an overnight or short adjournment for reasons of convenience; nor was this a case where the judgment and the reasons were ready for delivery and circulated to the parties.
Mr Peter Birts QC and Mr Pardoe, for Coates and Terry respectively, submitted that, for the purposes of section 55, appeals against conviction were not determined until the decision and the reasons for it were pronounced in open court.
Mr Bennett, for Graves, took a less extreme position. He accepted that if the court had pronounced its decision in court at the end of the hearing, the appeal or application was there and then determined, notwithstanding that reasons for the decision had not been reduced into writing.
Sir Derek Spencer QC and Mr Bartlett, in separate submissions for the Crown, suggested that where the court had agreed its decision and the reasons for it before the death of Kay LJ, for the purposes of section 55 the appeals were determined.
It was rightly agreed on all sides that, as the issue related to jurisdiction, the outcome could not depend on whether the decision agreed by the three judges was favourable or adverse to the appellants.
Sir Derek made a number of powerful submissions to the effect that there could be no injustice to the appellants if one of the two surviving judges produced the judgment of the court and explained the reasons for its decision. The case had, after all, been fully argued; it was not in the public interest for the same appeal to be re-litigated. These are persuasive considerations, but they do not create a jurisdiction which is otherwise absent.
Sir Derek further suggested that section 55 was enacted without reference to the possible death of one member of the court. We are less sure about this argument. As we see it, equivalent provision could have been made in relation to appeals against criminal convictions as...
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