Dunn v R. [2010] EWCA Crim 1823

[2010] EWCA Crim 1823Case No 2006/04565/D5IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2010
Before
LORD JUSTICE GOLDRINGMR JUSTICE BURTONRECORDER OF HULL(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
JAMES LEE DUNNAppellantTHE QUEENRespondent
Joel Bennathan Q.C.(instructed by Hodgkiss, Hughes and Beale Solicitors) for AppellantDavid Perry Q.C.(instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 18 June 2010
Judgment

Dunn

[1]On 23 June 2009 we dismissed the appellant’s appeal. We declined to certify under section 33(2) of the Criminal Appeal Act that there was a point of law of general public importance involved in the decision. Mr. Bennathan QC, who represents the appellant, now applies for a declaration that section 33(2) of the Criminal Appeal Act 1968 is incompatible with Articles 6 and 14 of the European Convention. He submits in short that in deciding whether or not to certify the Court of Appeal is effectively sitting in judgment on its own decision. He describes that as a species of bias. He further submits that in not certifying the court is preventing the appellant from having access to the Supreme Court; that it is preventing its decision being reviewed by a superior court.[2]By section 33 of the Criminal Appeal Act 1968:
“(1) An appeal lies to the Supreme Court, at the instance of the defendant or prosecutor from any decision of the Court of Appeal on an appeal to that court… (2) The appeal lies only with the leave of the Court of Appeal…and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal…that the point is one which ought to be considered by the Supreme Court.”
[3]Section 56 of the Senior Courts Act 1981 provides that:
“…(2) No judge shall sit as a member of the criminal division of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, an appeal against – (a) a conviction before himself or a court of which he was a member; or (b) a sentence passed by himself or such a court.” (a) a conviction before himself or a court of which he was a member; or (b) a sentence passed by himself or such a court.”
[4]Article 6(1) of the Convention provides that:
“In the determination…of any criminal charge against him, everyone is entitled to a…hearing…by an independent and impartial tribunal established by law.”
[5]Protocol 7 of the Convention provides in Article 2 that:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction…reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law…”
[6]Finally, Article 14 provides that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground…or other status.”
[7]Following the trial, the jury was sure of guilt and convicted. The appellant appealed to the Court of Appeal. After close analysis of the evidence, we concluded the conviction was safe. We declined to certify under section 33(2). The basis upon which it is said we should have certified is what Mr. Bennathan describes as the very different emphasis in the approach of this court to fresh evidence as between the decision of the House of Lords in R v. Pendleton [2002] 1 WLR 72 and that of the Privy Council in the later decision of Dial v. Trinidad and Tobago [2005] 1 WLR 1660. Despite Mr. Bennathan’s description, we are not conscious of any difficulty between the two decisions. We observe that the decision of the majority in Dial included Lord Bingham of Cornhill who gave the leading speech in Pendleton.[8]Our refusal to certify meant that in the present case there could be no second appeal. As will become apparent, second appeals are rare. The jurisdiction of the Supreme Court is very limited, being restricted to important matters of legal principle.[9]As Mr. Bennathan rightly submits the fundamental principle of not being a judge in one’s own cause is long established: nemo debet esse judex in propria causa. That is reflected by section 56 of the Senior Courts Act 1981. In support of his submission on this aspect he relies on the well-known test set out in the speech of Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 (at page 494):
“…[whether] the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [Court of Appeal] was biased.”
[10]The argument, put shortly, runs as follows. The existence of the Supreme Court shows that this court can be wrong in its interpretation of the law. It can be wrong both in its decision on the substantive appeal and when deciding whether a point of law of general public importance is involved. When making the second decision this court is deciding whether its own view on the merits of the appeal should be reviewed by a superior court. No-one, and that includes this court, likes to be told it is wrong. The fair minded and informed observer would not approve of the court which had decided to dismiss the appeal also deciding whether its own decision should be reviewed by a superior court. The fair-minded and objective observer would conclude that in deciding whether or not to certify there was a real possibility the court was biased. In doing so it is not acting as “an independent and impartial tribunal.”[11]Mr. Bennathan accepts that it would be Article 6 compliant for there to be no right of appeal from this court to the Supreme Court at all (see for example Delcourt v Belgium (1979-80) 1 EHRR 355). Once there is however, he submits that such a right must be Article 6 compliant. Access to the superior court cannot be withheld unless by proper legal process and for a justifiable end. Such is the restriction or reduction of the appellant’s access to the Supreme Court provided by section 33(2) that the very essence of the appellant’s right of access is impaired. The effect of non-certification is completely to bar a further appeal.[12]In support of his submissions Mr. Bennathan refers us to two decisions in particular.[13]First, in Peterson Sarpsborg AS and others v Norway (1996)(application 25944/94), the second chamber of the European Commission of Human Rights, considered, among other things, the extent to which rules governing review by a higher tribunal in the Member States of the Council of Europe, was considered. The Commission recalled that:
“…the right of access to the courts secured by article 6(1)…may…be subject to limitations in the form of regulation by the State. The State enjoys a certain margin of appreciation but in addition to pursuing a legitimate aim the limitations applied shall not restrict or reduce the access left to the individual in such a way that the very essence of the right is impaired.”
[14]Second, in Krombach v France (2001)(application 29731/96) the European Court of Human Rights, sitting as a Chamber, considered the right of appeal of a defendant who had been convicted in France in his absence. Article 636 of French Code of Criminal Procedure precluded such appeals. At paragraph 96 the Court said:
“The Court reiterates that the Contracting Status [sic] dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 of the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both facts and points of law or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so. However, any restrictions contained in domestic legislation on the right to a review mentioned in that provision must, by analogy with right of access to a court embodied in Article 6(1)…pursue a legitimate aim and not infringe the very essence of that right…”
[15]Although the appellant has a right in theory, the court’s refusal to certify means, submits Mr. Bennathan, that the appellant has no right of access to the Supreme Court. The very essence of his right has been infringed.[16]Mr. Bennathan also relies on the apparent absence of any provision similar to section 33(2) in any other jurisdiction. No-where, as he puts it, can the junior court bar access to the senior. That suggests that such a provision is not Article 6 compliant.[17]Although Mr. Bennathan submits that the Article 14 argument is additional to and lends support to the Article 6 argument, we approach it on the basis that a breach of Article 14 can tip what might be a Convention compliant procedure into one which is not.[18]First, Mr. Bennathan submits that the different categories in respect of which there might be a breach of Article 14 is broad. It encompasses, for example, the difference in treatment between those who were in custody and those who were not: see Monnell and Morris v UK (1988)10 EHRR 205.[19]Second, there is discrimination as between the categories of criminal defendants and civil litigants in respect of appeals to the Supreme Court. It discriminated against criminal defendants for them to have to overcome the additional burden of certification by the Criminal Division of the Court of Appeal when civil litigants do not have a similar burden. In respect of appeals from that Division, the Supreme Court decides whether or not it will hear the case. The Civil Division of the Court of Appeal cannot shut out consideration by the Supreme Court.[20]Finally, Mr. Bennathan submits that if this court finds section 33(2) compatible with the Convention, it should certify that that issue itself raises a point of law of general public importance.[21]In our view, as Mr. Perry QC on behalf of the respondent submits, Mr. Bennathan’s arguments are untenable.[22]When deciding whether or not to certify the court is deciding whether, in respect of the decision it has reached on the substantive appeal, a point of law of general public importance is involved. Although Mr. Bennathan does not suggest actual bias, what he is in truth submitting is that in deciding whether to certify the Court of Appeal may be influenced by an oblique motive; the wish to avoid the Supreme Court considering the case and possibly overruling the Court of Appeal’s decision. We entirely reject that. We reject too the suggestion that the “fair-minded and informed observer” would conclude that in reaching its decision the Court of Appeal would so be influenced. As Mr. Perry submits, in deciding whether or not to certify the court is not sitting on an appeal against its own decision. It is not determining any criminal charge. It is merely assessing whether its decision contains an important point of law. The well informed and rational observer would conclude that the court which reached the decision in the first place is in the best possible position to decide whether a point of law of general public importance was involved in it.[23]Moreover, the present appeal involved a full review of the facts and an assessment of the safety of the conviction. That gave rise to no point of law of general public importance.[24]In short, we reject the bias argument.[25]As Article 2 of Protocol 7 makes clear, the exercise of the right of appeal “shall be governed by law.” Those words suggest the width of discretion afforded to Member States in regulating appeals.[26]In Jakobsen v Denmark (1994)(application 22015/93), the Commission found a complaint concerning access to the Danish Supreme Court as manifestly ill-founded. Under the law of Denmark an appeal against a judgment of the High Court sitting with a jury could not be based on an alleged wrongful determination of guilt but only on allegations of procedural errors. Referring to Article 2(1) of Protocol 7, the Commission said:
“…the Article does not specify its scope or actual implementation. As the reference to the grounds for the review to be governed by national law clearly shows the States have a discretion as to the modalities for the exercise of the right of review. It is this part of the Article which gives the States the possibility to limit the review in several ways.”
[27]Both Peterson Sarpsborg and Krombach, referred to above, indicate how wide the discretion of Member States is in regulating appeals. It is unnecessary to refer to the other cases to which Mr. Perry has drawn our attention.[28]We note too, as Mr. Perry reminds us, that there is no right of appeal to the Supreme Court in any criminal case from Scotland.[29]Mr. Perry summarises the principles to be derived from the Strasbourg case law in the following way:(i) Article 6(1) does not itself guarantee a right of appeal.(ii) Where there is a right of appeal, the application of Article 6 to the proceedings before the appeal courts depends on the special feature of the proceedings in the domestic legal order.(iii) Any limitation on the right of appeal must pursue a legitimate legal aim and not infringe the very essence of the right of access to a court.(iv) In this context, the fair administration of justice is a legitimate aim.(v) Access to the final court of appeal may be more limited than is the case with a first tier court of appeal.[30]As we understand it, Mr. Bennathan does not dissent from that summary. What he submits is that section 33(2) infringes the very essence of the right of access to the Supreme Court; that moreover there is no jurisdiction in which the right to access is defined by the inferior, not the superior court.[31]In our view it is clear that section 33(2) pursues a legitimate aim. The business of the Supreme Court should be limited to those rare cases which involve points of general public importance. A filtering mechanism is essential. Otherwise the workload of the Supreme Court would soon become clogged by hopeless cases. The deserving cases would not be heard speedily. Section 33(2) is a provision which properly regulates second appeals. It serves that legitimate purpose. The context of its application in this case is a trial and a first appeal, both of which were Article 6 compliant. In our view, for this court, which, as we have concluded, is an independent and impartial tribunal when it does so, to play a part in filtering those cases which may go to the Supreme Court, serves that legitimate purpose. That other jurisdictions may do it differently is not to the point. There is nothing objectionable in the way it is done in this jurisdiction. Section 33(2) reflects a coherent and proportionate approach to second appeals.[32]Moreover, we do not accept that a refusal to certify amounts to a denial of the essence of the appellant’s right of access to the Supreme Court. The appellant has the right to have his access to the second-tier appeal court decided by an independent and impartial tribunal properly applying legal principles. If such a decision goes against the appellant that has not denied him the essence of his right to access to the Supreme Court. It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by the Supreme Court in circumstances where it is legitimate for there to be a filtering of the cases before that court. That is precisely what happened here.[33]We turn to Article 14. We shall take it shortly.[34]Assuming that the categories can be defined as broadly as Mr. Bennathan submits, there is nothing in Article 14 which can affect our clear conclusion that section 33(2) complies with the Convention.[35]There is no discrimination on the grounds of the different status of criminal defendants and civil litigants. All criminal defendants are treated the same way. There is a difference between the nature of criminal and civil justice. There is a difference between the jurisdiction of the Supreme Court in criminal and civil matters. In criminal matters its jurisdiction is very limited. It resolves important matters of legal principle. In civil cases its remit may be broader, and may sometimes encompass factual issues.[36]In conclusion, for the reasons we have set out, there is no substance in the submissions Mr. Bennathan makes. They are wholly without merit. In such circumstances it is not appropriate to certify that a point of law of general public importance is involved which ought to be considered by the Supreme Court.

Cited in 2 later judgments