Stafford v DPP; Luvaglio v DPP

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLord Pearson,Viscount Dilhorne,Lord Diplock,Lord Cross of Chelsea,Lord Kilbrandon
Judgment Date18 October 1973
Judgment citation (vLex)[1973] UKHL J1018-1
Date18 October 1973

[1973] UKHL J1018-1

House of Lords

Lord Pearson

Viscount Dilhorne

Lord Diplock

Lord Cross

Lord Kilbrandon

Stafford
and
D.P.P.
(on Appeal from the Court of Appeal (Criminal Division))
Luvagio
and
D.P.P.
(on Appeal from the Court of Appeal (Criminal Division)) [Conjoined Appeals]

Upon Report from the Appellate Committee, to whom was referred the Cause Stafford against Director of Public Prosecutions (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Monday the 9th as on Tuesday the 10th, Wednesday the 11th, Thursday the 12th Monday the 16th and Tuesday the 17th, days of July last, upon the Petition and Appeal of Dennis Stafford presently at Her Majesty's Prison, Parkhurst, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 26th of February 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 26th day of February 1973, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Upon Report from the Appellate Committee, to whom was referred the Cause Luvaglio against Director of Public Prosecutions (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Monday the 9th, as on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Monday the 16th and Tuesday the 17th, days of July last, upon the Petition and Appeal of Michael Luvaglio presently at Her Majesty's Prison, Wakefield, Yorkshire, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 26th of February 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 26th day of February 1973, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Pearson

My Lords,

1

In my opinion the verdict of the jury is not unsafe or unsatisfactory. I have had the advantage of reading the speech prepared by my noble and learned friend, Viscount Dilhorne, and I agree with the reasons which he has given. I would dismiss the appeals.

Viscount Dilhorne

My Lords,

2

In March, 1967, the appellants were convicted at Newcastle Assizes of the murder of Stuart Sibbett and sentenced to life imprisonment. They applied to the Court of Appeal (Criminal Division) (Edmund Davies and Fenton Atkinson L.JJ.'s and Waller J.) for leave to call additional evidence and to appeal against their convictions. That Court, after hearing argument and seeing the statements of the witnesses the appellants wished to call, on the 30th July, 1968, dismissed both applications.

3

On the 3rd March, 1972, three and three-quarter years later, the Home Secretary referred both cases to the Court of Appeal under s. 17(1)( a) of the Criminal Appeal Act, 1968. He had, he said, received representations that a miscarriage of justice had occurred, representations which had the support of many responsible persons, including Members of both Houses of Parliament; and he made the reference, he said, to enable the appellants to submit such applications to adduce evidence as they might be advised. Their applications to call evidence were granted. Pursuant to s. 23(4) of the 1968 Act, a large number of witnesses were examined before Croom-Johnson J. and their depositions were admitted as evidence at the hearing of the appeals, when witnesses were also heard by the Court.

4

After a hearing lasting six days, on the 26th February, 1973 the Court of Appeal dismissed the appeals and certified that a point of law of general public importance was involved, namely:—

"Whether in considering an appeal against conviction referred to the Court of Appeal by the Secretary of State under s. 17(1)( a) of the Criminal Appeal Act, 1968, involving the calling of fresh evidence, the correct approach of the Court of Appeal is to evaluate the fresh evidence, to endeavour to set it into the framework provided by the whole of the evidence called at the trial, and in the end to ask itself whether the verdict has become unsafe or unsatisfactory by the impact of the fresh evidence notwithstanding that it was found to be safe and satisfactory on the earlier occasion when the Court refused leave to appeal."

5

As s. 17(1)( a) provides that, where a case is referred under that provision, it is to be treated for all purposes as an appeal to the Court, no significance is to be attached to the fact that the cases came before the Court of Appeal in consequence of a reference by the Home Secretary.

6

Section 4(1) of the Criminal Appeal Act, 1907, required the Court of Criminal Appeal to allow an appeal if they thought—

  • (i) that the verdict was unreasonable; or

  • (ii) could not be supported by the evidence; or

  • (iii) that the judgment of the trial court should be set aside on the ground that there was a wrong decision on a question of law; or

  • (iv) that on any ground there was a miscarriage of justice.

7

It contained the proviso that the Court might, notwithstanding that they were of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they considered that no substantial miscarriage of justice had actually occurred.

8

This section was amended in 1966. Under the 1907 Act it might not have been possible to say that a verdict was unreasonable or not supported by the evidence or that a miscarriage of justice had occurred and so quash the conviction although considerable doubt was felt as to its propriety. So in 1966 a wider discretion was given to the Court by Parliament and section 4(1) was amended.

9

It is now replaced by section 2(1) of the Criminal Appeal Act, 1968, a consolidation Act. That section provides that—

"Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think—

  • ( a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

  • ( b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or

  • ( c) that there was a material irregularity in the course of the trial."

10

It also contains a proviso in the same terms as that of the proviso to section 4(1) but with the omission of the word "substantial".

11

The Act thus gives a wide power to the Court of Appeal and it would, in my opinion, be wrong to place any fetter or restriction on its exercise. The Act does not require the Court, in making up its mind whether or not a verdict is unsafe or unsatisfactory, to apply any particular test. The proper approach to the question they have to decide may vary from case to case and it should be left to the Court, and the Act leaves it to the Court, to decide what approach to make. It would, in my opinion, be wrong to lay down that in a particular type of case a particular approach must be followed. What is the correct approach in a case is not, in my opinion, a question of law and, with respect, I do not think that the question certified in this case involves a question of law.

12

In R. v. Cooper [1969] 1 A.E.R. 32, an appeal in which no fresh evidence was heard, Lord Widgery said:—

"However … we are charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

13

That this is the effect of s. 2(1)( a) is not to be doubted. The Court has to decide whether the verdict was unsafe or unsatisfactory and no different question has to be decided when the court allows fresh evidence to be called.

14

Where such evidence is called, the task of the Court of Appeal may be extremely difficult. They have not heard the evidence the jury have heard. They can only judge of that from the shorthand note. They know, however, that the jury by their verdict have accepted some part, it may not be all, of the evidence...

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4 books & journal articles
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 71-2, April 2007
    • 1 April 2007
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