R v Rose (Newton) ; R v Johnson ; R v Clarke ; R v Henry
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Scarman,Lord Roskill,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 01 July 1982 |
| Judgment citation (vLex) | [1982] UKHL J0701-4 |
| Date | 01 July 1982 |
| Court | House of Lords |
[1982] UKHL J0701-4
House of Lords
Lord Diplock
Lord Scarman
Lord Roskill
Lord Bridge of Harwich
Lord Brandon of Oakbrook
My Lords,
These consolidated appeals are brought by the Director of Public Prosecutions from orders of the Court of Appeal (Criminal Division) quashing the convictions of the first respondent, Rose, for murder, and of the other three respondents for attempting to pervert the course of justice, instead of ordering a venire de novo for which the prosecution had applied.
The respondents were tried together and the point of law involved in each of the four cases was certified by the Court of Appeal as follows:
"Whether the Court of Appeal (Criminal Division) may in their discretion order a venire de novo when they are satisfied that a verdict of guilty must be set aside by reason of a material irregularity consisting of improper pressure imposed upon the jury at any time before verdict."
Although their historical origins are different the issue of a writ of venire de novo has the same effect as an order for retrial, such as may be made under section 7 of the Criminal Appeal Act 1968 ("the 1968 Act") but only if the conditions stated in that section are fulfilled.
There is no need to say any more about the facts in the instant case than that after the jury had retired the judge had privately sent messages to them through the Clerk of the Court imposing a time limit within which he required them to reach a majority verdict, failing which he threatened that he would discharge them. The case presented close similarities to that of McKenna (1960) 44 Cr. App. R. 63, and the Court of Appeal, regarding themselves as bound by that case and the earlier case of Neal [1949] 2 K.B. 590, considered that they had no jurisdiction to order a venire de novo. Since they felt unable to apply the provisos to section 2(1) of the 1968 Act, they allowed the respondents' appeals on the ground specified in paragraph ( c) of that subsection, viz. "that there was a material irregularity in the course of the trial". Accordingly they quashed the conviction as they were required to do by section 2(2).
In giving judgment and certifying the above-quoted question, the Lord Chief Justice expressed the hope that this House would take the opportunity to reconsider the circumstances in which the jurisdiction of the Criminal Division of the Court of Appeal to issue a writ of venire de novo could be exercised.
My Lords, the Criminal Division of the Court of Appeal was created by the Criminal Appeal Act 1966 ("the 1966 Act") which abolished the former Court of Criminal Appeal that had itself been created by the Criminal Appeal Act 1907 ("the 1907 Act"). Its jurisdiction is entirely statutory, and is conferred upon it by subsections (1) and (2)( b) of section 1 of the 1966 Act as amended by the 1968 Act. The 1968 Act by Schedule 5 substituted a new paragraph ( b) in section 1(2) of the 1966 Act and by Schedule 7 repealed subsection (8) of section 1 of that Act.
Subsection (8) of section 1 of the 1966 Act had read:
"The Crown Cases Act 1848 is hereby repealed, but the repeal shall not affect the jurisdiction to order the issue of writs of venire denovo vested by virtue of section 2 of that Act and section 20(4) of the 1907 Act in the Court of Criminal Appeal, and that jurisdiction is transferred with the other jurisdiction of the court to the Court of Appeal by subsection (1) of this section."
This subsection contains clear parliamentary recognition that immediately before its abolition the Court of Criminal Appeal by section 20(4) of the 1907 Act had been vested with jurisdiction to order the issue of writs of venire de novo. Such recognition was continued by the amendment by the 1968 Act of subsection (2) of section 1 of the 1966 Act. In the result, the jurisdiction now vested in the Court of Appeal (Criminal Division) is conferred upon it in the following terms by section 1, subsections (1) and (2) as amended by the 1968 Act:
"1. (1) The jurisdiction exercisable before the commencement of this Act by the Court of Criminal Appeal shall, subject to the provisions of this section be exercisable by the Court of Appeal and the Court of Criminal Appeal shall cease to exist.
(2) The Court of Appeal shall consist of two divisions, namely,
( a) the civil division which shall, subject to rules of court under subsection (5) of this section, exercise the jurisdiction exercisable immediately before the commencement of this Act by the court, and
( b) the criminal division which shall, subject to any such rules, exercise—
(i) all jurisdiction of the Court of Appeal under Parts I and II of the Criminal Appeal Act 1968; and
(ii) all other jurisdiction which was that of the Court of Criminal Appeal immediately before it ceased to exist (including the jurisdiction to order the issue of writs of venire de novo)."
The Criminal Division of the Court of Appeal thus has a two-fold jurisdiction, viz. (i) its principal jurisdiction under Part I of the Act of 1968 (Part II deals only with its functions in relation to appeals to the House of Lords), and (ii) such supplemental jurisdiction as was conferred on the Court of Criminal Appeal by section 20(4) of the 1907 Act. Section 20, notwithstanding that, by subsection (1), it had abolished "Writs of error and the powers and practice" which prior to the passing of the Act in 1907 then existed "in the High Court in respect of motions for new trials or the granting thereof in criminal cases" had, by subsection (4), preserved and vested in the Court of Criminal Appeal certain jurisdiction which had originally been vested in the Court for Crown Cases Reserved by the Crown Cases Act 1848. Subsection (4) so far as is relevant to the instant appeals, was in the following terms:
"All jurisdiction and authority under the Crown Cases Act, 1848, in relation to questions of law arising in criminal trials which is transferred to the judges of the High Court by section forty-seven of the Supreme Court of Judicature Act, 1873, shall be vested in the Court of Criminal Appeal under this Act."
So it is in this provision of the 1907 Act that any limits upon the current jurisdiction of the Criminal Division of the Court of Appeal to issue writs of venire de novo must be found.
My Lords, the question whether despite the abolition of the power to grant new trials by section 20(1) of the 1907 Act, the jurisdiction vested in the Court of Criminal Appeal by section 20(4) did include a power to issue writs of venire de novo and, if so, in what circumstances such power could be exercised, came before this House in 1921 in Crane v. D.P.P. [1921] 2 A.C.299. This was a case in which Crane and another defendant who had been charged on separate indictments, had been tried together at Leicester City Sessions at one and the same hearing by one and the same jury. After close consideration of the old authorities, which are far from clear and difficult to reconcile with one another, this House, by a majority of three to one, with Viscount Finlay dissenting, reached the conclusion that section 20(4) did vest in the Court of Criminal Appeal some jurisdiction to issue writs of venire de novo. The majority also held that the jurisdiction to do so was exercisable in the case before them. The reason why it was exercisable was because on the only indictment upon which Crane could be lawfully tried, there had not been any trial at all. This, in my...
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