NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES [16 September 2019]
CRIMINAL APPEALS (from the Court of General Gaol Delivery)
C O N T E N T S
Pages
Jurisdiction..….…………………………………………………………………………………………… 1
Re-hearing or review?...... 1
Appeals against conviction....……………………………………………….……………………… 1 - 4
Appeals against sentence …………..…………………………………………………………….. 4 - 8
References on points of law..……………………………………………………………………… 8
References in respect of sentences stated by the Attorney General to be
unduly lenient..………………………………………………………………………………………… 8 - 14
Appeals in respect of pre-trial rulings...……………………………………………………….. 14 - 17
Extensions of time……………………………………………………………………………………… 17 - 18
Bail pending appeal……………………………………………………………………………………. 19
Additional evidence………………………………………………………………………………………… 19 - 20
Dealing with appeals in absence of appellant……………………………………………….. 20 - 21
Costs……………………………………………………………………………………………………….. 21
Leave to appeal to the Judicial Committee of the Privy Council ……………………. 21 – 26
Doleance and the Court of General Gaol Delivery………………………………………… 26 - 28
Further reading...……………………………………………………………………………………... 28
CRIMINAL APPEALS
Jurisdiction
1. See Hafner 2007 MLR 180 (Appeal Division judgment 31 August 2007) for an outline of the statutory jurisdiction of the Appeal Division in criminal matters. The Appeal Division owes its jurisdiction to statute and it is crucial to consider the relevant statutory framework contained in the Criminal Jurisdiction Act 1993 (the “1993 Act”).
2. In respect of the Appeal Division’s jurisdiction to grant legal aid to an appellant appealing against conviction or sentence, or both, imposed by the Court of General Gaol Delivery, see the Legal Aid Act 1986 (Schedule 3 paragraph 9) and the Criminal Legal Aid Regulations 1993.
3. It would appear that an appeal against conviction or sentence from a court of summary jurisdiction, otherwise than by way of case stated, lies to the Appeal Division rather than the Civil Division (see Rule 14.3 of the High Court Rules and the Appeal Division’s judgment in Douglas Corporation v Bellamy (20 July 2012)).
Re-hearing or review?
4. Consider in detail the helpful guidance provided by the Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) in A v Her Majesty’s Attorney General (23 May 2019) in respect of the distinction between appeals by way of review or re-hearing and the evidence the court will consider. At paragraph 20 the Appeal Division “for the purposes of this appeal only” were prepared to accept the relevance of the Rules of the High Court of Justice 2009 to the criminal appeal before it. Reference was made to Rule 14.14. In that appeal neither party had applied to adduce evidence not before the lower court. Both counsel submitted that a “re-hearing” was appropriate in the appeal in respect of a restraint order made under sections 96(2) and 98(1) of the Proceeds of Crime 2008. The Appeal Division was, however, of the view that the “normal practice will be to review” (paragraph 25). The Appeal Division stated that even a “re-hearing” is “limited to an examination by the Appeal Court of transcripts (if applicable) and other documents before the lower court, supported by arguments of counsel” noting that it is the rare exception rather than the rule for fresh evidence to be heard on appeal (paragraph 30). The Appeal Division (at paragraph 31) concluded that it was not in the interests of justice, in that case, to conduct a “re-hearing” with fresh evidence. At paragraph 33 the Appeal Division stated: “This court will therefore review the decision of Deemster Khamisa QC, on the evidence before the lower court.”
Appeals against conviction
5. In respect of appeals against conviction see section 30(1) of the 1993 Act. A person convicted on information may appeal to the Appeal Division against his conviction. An appeal may be made:
(a) without leave, on any ground which involves a question of law alone;
(b) with leave of the Appeal Division, or upon the certificate of the judge who tried him, that it is a case fit for appeal –
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(i) on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or
(ii) on any other ground which appears to the Appeal Division to be a sufficient ground of appeal.
6. The procedure is specified in section 31 of the 1993 Act. An appeal notice must be lodged with the court and served on the Attorney General:
(a) in the case of an appeal against conviction (except where paragraph (b) applies), within 28 days beginning with the date of conviction;
(b) in the case of an appeal against sentence, or an appeal against conviction made at the same time as an appeal against sentence passed on the conviction, within 28 days beginning with the date of sentence.
7. In R v Long [1998] 2 Cr. App. R 326 it was held that notice of application for leave to appeal against conviction must be given within 28 days of the conviction. The English Court of Appeal appreciated that there was often a gap between conviction and sentence but drew the attention of practitioners to the importance of compliance with the unambiguous statutory provisions. See also R v Hawkins [2010] EWCA Crim 2367. The Appeal Division in McCarthy v HMAG (3 May 2019) at paragraph 21 relying on these English authorities stated:
“We take the view that the time for appealing [solely] against conviction probably runs from the date of conviction” [and not from the date of sentence].
See McCarthy also on the issues of the court’s jurisdiction to allow appeals against conviction following a guilty plea, jurisdiction to allow the withdrawal of a plea of guilty and extensions of time to appeal and the law in respect of theft and obtaining money transfers by deception.
8. The Appeal Division (Judge of Appeal Storey QC and Deemster Montgomerie) in Hodgson and McGrath v HMAG (9 July 2019) had a further opportunity to revisit the time within which an appeal against sentence must be lodged. The Appeal Division held, having regard to the unambiguous statutory language of section 31(2) and the English authorities on a similar statutory provision (section 18(2) Criminal Appeal Act 1968 of Parliament) that for the purposes of an appeal against conviction, time runs from the date of conviction, not from the date of sentence, if later. The court robustly dealt with a submission from counsel, that there was an “established culture and practice of the Manx Courts and Manx Criminal Bar” that “the time limit for the filing of an Appeal against conviction is that it runs 28 days from the date of sentencing” (paragraph 12 of judgment), stating:
“21. It follows that any prevailing practice amongst counsel not to file an appeal notice to appeal a conviction within 28 days of conviction, believing it is appropriate to delay filing until sentence is passed, should have ceased 20 years ago. Despite Mr Travers and Mr Kermode stating that such a belief persists at the Manx Bar, we cannot accept such assertions. Neither member of this court is aware of such a policy, nor is it mentioned in Doyle’s Manx Criminal Law and Procedure (see e.g. paragraph 969) or in the former First Deemster’s relevant notes on the Law Society website. It is quite contrary to Archbold and
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Blackstone. We have not been referred to any judicial precedent to support such a policy e.g. an appeal solely against conviction filed over 28 days after the date of conviction where the SGD or the Court of Appeal (Criminal Division) held no extension of time was required.”
Also see Hodgson and McGrath (a theft case based on “the full amount”) in respect of the Appeal Division not acting as “a counsel of perfection” (at paragraph 51) when considering criticisms of directions in a summing up, noting at paragraph 37 Mr Robinson’s submission that “there was always scope with the benefit of hindsight to attempt to place a counsel of perfection on the exact wording used by a trial Deemster.” The court also referred in effect to the need for counsel to assist a Deemster in respect of a summing up and not remain silent in respect of errors or omissions in a summing up. The Appeal Division at paragraph 41 stating:
“We would not expect counsel to remain silent in similar circumstances in the future.”
9. Section 33(1) of the 1993 Act provides that subject to subsection (2) the Appeal Division on an appeal against conviction shall allow the appeal if it thinks:
(a) it is unsafe or unsatisfactory;
(b) there was a wrong decision of any question of law;
(c) there was a material irregularity in the course of the trial
and in any other case it shall dismiss the appeal.
10. The Appeal Division (Judge of Appeal Tattersall QC and Deemster Doyle) in Scambler v AG (judgment 12 January 2004) stated:
“8… it is the duty of those representing an appellant to clearly identify what matters are relied upon by the appellant as supporting his contention that his appeal against conviction should be allowed… Furthermore it is incumbent on those representing an appellant to cite, and produce copies of, all authorities relied upon and to identify what propositions of law are to be relied upon from such authorities…”
11. The Appeal Division (Judge of Appeal Tattersall QC and Deemster Doyle) in Patterson and Barber (judgment 12 September 2013) stressed at paragraph 90 that advocates have a responsibility “only to pursue those appeals which have merit.”
12. Section 33(2) of the 1993 Act provides that the Appeal Division, even though it thinks that the point raised in the appeal might be decided in favour of the appellant, may dismiss the appeal if it considers that no miscarriage has actually occurred. See the case law, including Watterson 1978-80 MLR 105 at 112.
13. Under section 33(3) of the 1993 Act, if an appeal is allowed the Appeal Division shall quash the conviction and either:
(a) direct an acquittal; or
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(b) if it appears that the interests of justice so require, order a retrial and direct the Attorney General to prefer a fresh information for the purpose.
See the case law including Devo 2008 MLR 483 (Appeal Division judgment 29 October 2008 at paragraph [167]).
Appeals against sentence
14. Under section 30(5) of the 1993 Act a person convicted on information for an offence may, with leave of the Appeal Division, appeal to the Division against the sentence passed on his conviction (unless the sentence is fixed by law). There are further provisions in section 30(5) in respect of appeals against certain sentences without leave.
15. Section 33(4) of the 1993 Act provides that on an appeal against sentence the Appeal Division:
(a) if it thinks that a different sentence should have been passed, shall quash the sentence passed at the trial and pass such other sentence authorised in law by the verdict (whether more or less severe) in substitution for it as the Appeal Division thinks ought to have been passed; and
(b) in any other case, shall dismiss the appeal.
16. Kaneen v AG (Appeal Division judgment 15 October 2018) provides at paragraph 10 a useful short and non-exhaustive summary of when the Appeal Division may be persuaded to interfere with a sentence referring to the positions where (a) the sentence is not justified by law; (b) the sentence was passed on the wrong factual basis; (c) some matter has been improperly taken into account or there is some fresh matter to be taken into account and (d) the sentence was wrong in principle or manifestly excessive.
17. Grounds of appeal against sentence include: sentence not justified by law, or sentence wrong in principle, or manifestly excessive (see for example Appeal Division judgment in Edwards 26 February 2001).
18. In R v Kewley (Appeal Division judgment 9 November 2015) it was stated:
“82. It is settled law that this court should only interfere with the exercise of a sentencing Deemster’s discretion if the sentence imposed is manifestly wrong or so excessive as to appear wrong in principle, or if the Deemster erred in principle (see Hamblett 2013 MLR 385 at pages 429-430 paragraph 140).”
19. In Ffrench v Attorney General the Appeal Division (Judge of Appeal Storey QC and Deemsters Doyle and Birt) set out the jurisdiction of the Appeal Division when considering an appeal against a sentence imposed by a court of summary jurisdiction at paragraphs 11 to 17. At paragraphs 18 to 28 the Appeal Division set out the limited status of the English Sentencing Council’s guidelines in this jurisdiction as follows:
“18. In view of Mrs Myerscough’s references to the English Sentencing Council's guidelines regarding theft offences we wish to make some comments in respect of the status of such guidelines in this jurisdiction.
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19. In Callister (Appeal Division judgment 28 June 2012) counsel referred to sentencing guidelines in England and Wales and this court commented as follows:
“25. The Sentencing Council for England and Wales was established pursuant to Part 4 of the Coroners and Justice Act 2009 to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary. Such body replaced the Sentencing Guidelines Council and the Sentencing Advisory Panel. The Sentencing Council and its predecessors have published sentencing guidelines in respect of a variety of criminal offences.
26. It is important that we should emphasise that such sentencing guidelines are applicable only in England and Wales and are of only persuasive authority in this jurisdiction, as are sentencing guidelines of other jurisdictions together with the decisions of courts in other jurisdictions. We have no doubt that the proper approach to sentencing in this jurisdiction requires that the sentencing tribunal must consider the appropriate decisions of this court and, if appropriate, the decisions of lower courts in this jurisdiction, although the sentencing tribunal will require to be satisfied that there is sufficient information available to enable a proper understanding of the issues raised in the case and that sentencing guidelines or decisions of courts in other jurisdictions will only be of persuasive authority and it will only be appropriate to refer to them in the absence of appropriate authority in this jurisdiction.”
20. In Shimmin 2013 MLR 235 (Appeal Division judgment 31 May 2013) this court, having considered the judgment of a seven judge Guernsey Court of Appeal in Wicks v Law Officers [2011-2] GLR 482 (22 March 2012) went further and stressed at paragraph 39 that:
“The Isle of Man is a separate jurisdiction with its own independent legal system and this court is free to set its own sentencing guidelines as it thinks appropriate. It is able to adopt and apply the sentencing practice applied in England, the Channel Islands or anywhere else …”
21. This approach is consistent with the comments of the Judicial Committee of the Privy Council in Milton [2015] UKPC 42 at paragraph 33:
“The [BVI] courts are entitled to look for guidance to sentencing practices in other countries, but the Board would not recommend that they bind themselves too closely to the regime of a particular country, including the UK. Local judges are in the best position to assess the appropriate tariff in their jurisdiction, subject to their own statutory provisions.”
22. It is also consistent with comments in earlier judgments of the Judicial Committee of the Privy Council. We give just two further examples.
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23. In Tyack v The State [2006] UKPC 18 (29 March 2006) the Judicial Committee considered the judgment of the Supreme Court of Mauritius which had in turn considered R v Barrick. Lord Carswell delivering the majority judgment at paragraph 3 noted that:
“… although the Board has power to consider appeals against sentence, it is an area in which they were particularly slow to intervene, paying considerable deference to the views of the local court”.
24. In Tyack the Supreme Court of Mauritius had recognised the good sense of considering the sentencing principles and guidelines applying in England and Wales but added "they must not blindly follow what obtains there" (paragraph 4).
25. In Gomes v The State [2015] UKPC 8 Sir Brian Leveson giving the judgment of the Judicial Committee of the Privy Council at paragraph 22 stated:
“In this case, Mr Garlick has suggested that, quite apart from any allowance of time spent on remand, the sentence was excessive by local (and UK) sentencing standards. He did not pursue the argument and was right to do so. It is the general practice of the Board not to interfere with the level of sentences imposed for different criminal offences, fashioned as they will be to address and reflect local circumstances, and there is nothing to take the case outside that practice.”
26. The Guernsey Court of Appeal in Wicks v Law Officers 2011-2 GLR 482 reaffirmed the independence of Guernsey in sentencing matters and at paragraph 16 forcibly stated:
“We start by addressing the fundamental constitutional issue. Guernsey is a separate jurisdiction and has its own legal system. It is, therefore, free to set its own sentencing levels as the Island's courts think appropriate for Guernsey …”
At paragraph 18 the court added:
“… the position from which it is right to start is that the Guernsey courts must determine the appropriate sentencing levels for offences committed in Guernsey and that, in doing so, they may or may not desire assistance from what was done in England and Wales or in any other jurisdiction.”
27. The Jersey Royal Court in the Attorney General v K [2016] JRC 158 (9 September 2016) at paragraph 60 stated:
“… The courts of this Bailiwick are free to set their own sentencing levels; they are not bound by the sentencing levels of any other jurisdiction including England and Wales. It follows that they are not bound by any guidelines issued by the Sentencing Council of England and Wales. However … it is often helpful to look at sentencing practice in another jurisdiction … Having looked at the sentencing levels in an appropriate other jurisdiction, it is then for the courts of this Island to decide whether they find such sentencing levels helpful or not …”
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28. We respectfully agree with those comments. They are equally applicable to the Isle of Man.”
20. The Appeal Division (Judge of Appeal Storey QC and Deemster Gough) in Attorney General v Dooley (20 March 2019) in effect applied the England and Wales Sentencing Guidelines for money laundering and declined to impose, a “Manx deterrent uplift”, principally it would appear because the issue had not been raised before the court below (paragraph 52) and no proper evidence as to the nature and extent of money laundering in the Isle of Man had been presented (paragraph 54). The Appeal Division applied (paragraph 47) Kaneen v AG (Appeal Division judgment 15 October 2018) on disparity and held that it could be justified in the circumstances of the appeal before the court. Previous Appeal Division judgments on money laundering sentencing matters include Baines (29 September 2010) and Holt (14 February 2012). The Jersey Court of Appeal (Nigel Pleming QC, President, David Perry QC and Deemster Doyle) in Darryn Rae v AG [2017] JCA 197 dealt with an appeal against a sentence imposed for money laundering offences and at paragraph 15 referred to AG v Goodwin [2016] JRC 165 which reflected a change in sentencing policy in Jersey to address the “evil of money laundering”.
21. See Secretary for Justice v Wong Chi Fung [2018] HKCFA 4 for a relatively rare example of a court of final appeal descending into details of the sentencing process and stressing the age of the offender, whether youth or adult, as a mitigating factor. At paragraph 77 of the judgment it is stated:
“As a reflection of the principle of legal certainty, it is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence …”
At paragraph 78 there was reference to the protection against retroactive criminal penalties and the principles that an offender is to be sentenced on the existing or prevailing guidelines or tariff of sentence existing at the time of the commission of the offence.
22. The Appeal Division (Deemster Kerruish and Judge of Appeal Tattersall QC) appear to have had this principle in mind in Caldwell-Camp v R 2003-05 MLR 505 where at paragraph 7 it was stated:
“However, given the absence of any application for a reference by the Attorney General, we thought it proper to reassure the Appellant that whatever the result of the appeal and whatever we might conclude was the appropriate sentence for the offences of which he was convicted, we would not increase the sentences which had been imposed, notwithstanding that the court has power to increase sentence on appeal.”
In the Caldwell-Camp appeal the Appeal Division set out guidelines introducing a more severe sentencing policy for those involved in the supply of Class A drugs than had previously prevailed in the Island. At paragraph 58 the Appeal Division stated:
“It follows that on the facts of this case the guidelines set out above would have justified a far higher custodial sentence than that in fact imposed. However, for the reasons set out above, we decline to increase either sentence imposed.
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Moreover, we are constrained to add that, even if we had not issued new guidelines, the facts, and circumstances of this case would not have led us to conclude in any event that the sentences imposed upon the Appellant were either manifestly excessive, or wrong in principle. It follows that this appeal is dismissed.”
References on points of law
23. Under section 40(1) of the 1993 Act:
“Where a person tried on information has been acquitted (whether in respect of the whole or part of the information), the Attorney General may, if he desires the opinion of the Appeal Division on a point of law which has arisen in the case, refer the point to that Division, who shall consider the point and give its opinion on it.”
24. Under section 40(2) of the 1993 Act the Appeal Division shall hear argument:
(a) by the Attorney General; and
(b) if the acquitted person desires to present any argument to it, by an advocate on his behalf or, with leave, by the acquitted person himself.
25. Under section 40(3) of the 1993 Act a reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.
References in respect of sentences stated by the Attorney General to be unduly lenient
26. Section 41(1) of the 1993 Act provides that if it appears to the Attorney General that:
(a) the sentencing of a person sentenced by a court for any offence has been unduly lenient; or
(b) a court has erred in law as to its powers of sentencing for such an offence
he may, with the leave of the Appeal Division, refer the case to it for a review of the sentencing of that person.
27. Under section 41(2) of the 1993 Act the Appeal Division, on such a reference, may:
(a) quash any sentence passed on him by the court in the same proceedings; and
(b) in place of it pass on him such sentence as it thinks appropriate for the case and as the court had power to pass in dealing with him.
28. In R v Thompson (Appeal Division judgment 11 November 2015, Tattersall JA and Deemsters Doyle and Birt) it was stated:
“21. Accordingly, the sole question for this court to consider was whether, on the facts of this case, the sentences imposed on the Respondent were unduly lenient.
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22. In Attorney General v Shimmin [2013] MLR 235 this court stated:
‘7. The principles upon which this court should act when considering a reference such as the one presented by the appeal are well established : see for example Coleman [19 October 2002], Patterson [[2001-03] MLR N26] and Crosbie [23 September 2009] which followed certain English authorities including Attorney General's reference number 4 of 1989 (1989) 11 Crim. App. R(S) 517.
8. This court may only increase a sentence which it concludes is unduly lenient. The court cannot increase the sentence merely because it is of the opinion that the sentence was less than this court would have imposed. A sentence is unduly lenient where it falls outside the range of sentences which the Deemster, applying his mind to all the relevant factors, could reasonably consider appropriate. It must always be remembered that sentencing is an art rather than a science; that the sentencing Deemster is particularly well placed to assess the weight to be given to various competing considerations, and that leniency is not in itself a vice.`
23. Moreover, it should be noted that even if this court decides that a sentence was unduly lenient it must carefully consider the principle of double jeopardy in that having been sentenced by a Deemster to a non-immediate custodial sentence the Attorney General now seeks that we impose an immediate custodial sentence. …
32. We remind ourselves that in Shimmin this court, in observing that a sentencing Deemster has a very wide discretion to exercise, stated:
‘52. On numerous occasions this court has confirmed that a sentencing Deemster has a wide sentencing discretion to exercise : see for example Caldwell-Camp [2003-05] MLR 505.
53. In Jameson [29 April 2005] this court, albeit differently constituted, stated that the decision whether to suspend a custodial sentence is a matter for the sentencer having taken into account all the relevant circumstances of the offence, the offender and the background circumstances. As stated at paragraph 206 of Doyle's Manx Criminal Law and Procedure (2010):
‘In Manx law there is a wide discretion when considering whether or not to suspend the operation of a custodial sentence. There is no statutory requirement in the Isle of Man that the circumstances which may justify the exercise of judicial discretion to suspend a custodial sentence must be exceptional or limited to the circumstances of the offence.’
54. However, in Fair [26 August 1997] this court confirmed that there should be a good reason for suspending a sentence of custody if an offence is serious enough to justify the custodial sentence in the first place.’
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33. Having considered all relevant matters, Deemster Montgomerie concluded, for the reasons which he gave, that it was appropriate to suspend the custodial sentences which he imposed on the Respondent.
34. We have to decide whether the sentences imposed by Deemster Montgomerie were unduly lenient. Whilst they may have been lenient, we are satisfied that it cannot fairly be concluded that they were unduly lenient.”
29. In R v Creer (Appeal Division judgment 19 July 2016, Tattersall JA and Deemsters Doyle and Bailhache) it was stated:
“25. No formal application for a reference was made by the Attorney General although a Skeleton Argument which concluded with a statement by the Acting Attorney General referring the case to the Appeal Division was served on both the Respondent and the court, whereupon the court gave directions administratively for the determination of the reference. Although in this case we took no point on absence of a formal application because it was important to the Respondent that she should promptly discover whether her sentence was to be increased, we emphasise that in future there must be a formal application by the Attorney General for a reference. …
48. We have granted leave to the Attorney General for this reference to be brought as a result of the issues which it has raised, but we dismiss such reference because we decline to intervene in the sentence handed down which for the reasons we have given we do not consider to be unduly lenient.”
30. See also Attorney General v Brennan (Appeal Division judgment 20 December 2017 on a reference by the Attorney General from a court of summary jurisdiction) where the court referred to Sabapathee v The Director of Public Prosecutions [2014] UKPC 19 as follows:
“11. In Sabapathee v The Director of Public Prosecutions [2014] UKPC 19 the Judicial Committee of the Privy Council dealt with an appeal from Mauritius where the DPP in the initial notice of appeal to the local appeal court had stated the ground of appeal “that the magistrate was unduly lenient; that she failed to give proper consideration to the appellant’s previous convictions for drug offences; and that she was wrong not to have imposed a custodial sentence” (paragraph 6 of the judgment) in respect of the offence of possession of cannabis for the purpose of distribution. The local appeal court quashed the fine imposed by the trial court and substituted a sentence of three years’ penal servitude, less time spent on remand. Under the relevant statutory provisions in Mauritius the DPP can appeal against a sentence if “he is of opinion that the sentence passed is wrong in law or unduly lenient”.
12. Lord Toulson (delivering the judgment of the Board in Sabapathee) at paragraph 13 referred to the relevant legislation in Mauritius and the opinion of the Board delivered by Lord Steyn in Kailaysur v The State [2004] UKPC 23; [2004] 1 WLR 2316. Referring to the power to increase a sentence on appeal under section 96(2) of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 as amended (in a passage cited by the Board as a
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statement of general principle governing a statutory power to increase sentence in the case of Oliver v The Queen [2007] UKPC 9 on an appeal from a decision of the Court of Appeal of the Bahamas) at paragraph 9 Lord Steyn in Kailaysur stated:
“It is … a power which must be relatively sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate. And in all cases the reasons for exercising this drastic power must be explained.”
13. At paragraph 16 in Sabapathee Lord Toulson added:
“… The Board is in no doubt that the principle stated in Kailaysur and repeated in Oliver is sound and should continue to be applied.”
14. At paragraph 17 Lord Toulson stressed:
“… sentencing is not a science of mathematical application of any set formula. It is a normative science rather than a physical science which takes into account the circumstances of the offender as well as the offence and the impact of the offence on the community. A sentence may look to be lenient because it is tailored to fit the offender, the offence and the offended but, in our system of justice, the trial court is the only constitutional institution which is empowered and sovereign in determining which sentence to impose on an offender on the facts of the particular case. An appellate court would scarce intervene unless the sentence is wrong in principle or manifestly harsh and excessive or unduly lenient. However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient. The principle of proportionality pervades through the whole system of justice, in procedure, substance and sanctions.”
15. Lord Toulson at paragraph 18 referred to the proper approach as follows:
“… When it is considering an appeal against sentence by the DPP, the question for an appellate court in Mauritius is whether the sentence was wrong in law or plainly too low, making full allowance for the matters properly stressed in Dookee, namely that sentencing is not a mathematical exercise but is one in which the sentencing court has a wide area of judgment. An appellate court must also make full allowance for the fact that by the nature of things generally speaking a sentencing court has advantages in its feel for the case and its ability to assess all the relevant facts and circumstances, including the effect on any victim and the attitude of the offender, which are not shared to the same extent by a court subsequently reviewing its decision on the written record.””
The Appeal Division at paragraph 16 of the judgment in Brennan indicated that they adopted that helpful guidance.
31. In respect of double jeopardy see Rudd (English Court of Appeal unreported 30 March 2017), French and Webster [2007] 1 Cr App R (S) 40 and AG’s Ref (No 45 of 2014) (Afzal) [2014] EWCA Crim 1566 in respect of a more nuanced approach where a
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discount (up to a maximum of around 30 percent) would be appropriate in some cases but not others. The circumstances in which adjustment for double jeopardy would be made are apparently ‘rare’ in England. In Secretary for Justice v Wong Chi Fung [2018] HKCFA 4 at paragraph 51 it was stated:
“Nevertheless, whilst an increase of sentence is not incompatible with the concept of double jeopardy, as a matter of practice the Court of Appeal customarily makes allowance for the concept when increasing a sentence on review by applying a discount to the increased sentence …”
32. In Attorney General v M (31 July 2018) the Appeal Division (Judge of Appeal Storey and Deemsters Doyle and Bailhache) stated:
48. Further, the question of double jeopardy has additionally persuaded us that it would not be appropriate for us to grant this appeal. The approach hitherto taken in this jurisdiction is that where an Attorney General's reference is granted, and sentence takes place afresh, a discount is given for the double jeopardy which the Respondent has suffered – in effect, the double jeopardy of going through the sentencing process twice, with all the emotional stress which that entails. The issue of double jeopardy was not addressed by either counsel in their written submissions and we did not hear full argument on the point. We have not been shown a Manx case where consideration of an Attorney General's reference did not include consideration of a discount for double jeopardy. The submission which Ms Braidwood made on behalf of the Attorney General was that on the facts of this particular case, there should be no deduction, but she noted that there has hitherto always been acceptance of the principle of such deductions in the Isle of Man. Mr Kane told us that a defendant is always told by his counsel of the different routes of appeal which apply when convicted or sentenced, including the possibility of an Attorney General's reference. But, nonetheless, he said that double jeopardy should always be taken into account and he referred to the cases of Creer at paragraph 31 and Thompson at paragraph 23 when it was clear that this court had proceeded on this principle.
49. Both counsel, therefore, really approached this question of double jeopardy before us on the basis that the principle fell to be applied even if the amount of the discount might be the subject of argument. We did not have put before us the relevant authorities from other jurisdictions where the principle of double jeopardy has been discussed. It appears from Attorney General's references (Nos. 14 and 15 of 2006) (French and Webster) [2007] 1 Cr App R (S) 40, CA, and the more recent cases of Attorney General's reference (No. 38 of 2013) (Hall) [2014] 1 Cr App R(S) 394 (61) and Attorney General's reference (No. 45 of 2014) (Afzal) [2014] EWCA Crim 1566) that the principles underlying double jeopardy have received consideration in the English courts. In French and Webster the Court of Appeal observed that where a defendant has a substantial part of a long determinate sentence remaining to be served, the principle has limited, if any, effect because the anxiety occasioned by the process will consequently be less keenly felt. In Hall the Court of Appeal explicitly stated that the question of discount did not arise when an offender was in custody and was aware that the Attorney General intended to refer the sentence to the Court of Appeal. The editors of Archbold Criminal Pleading, Evidence and Practice (2018) consider that it has become more common for sentences to be increased with no reference being made in the judgment to double jeopardy or to the absence of
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any reduction for double jeopardy if there is no reason to make any reduction, perhaps reflecting a change in the sentencing regime, and they continue at 7- 449:
"There would appear to have been three possible explanations, viz. overlooking the practice, change of practice or overlooking the need to mention that some allowance had in fact been made. Even if it was the third of these, it was unsatisfactory both for the defendant, who would be left in doubt whether any, or an appropriate, discount had been made on this account, and for the public (including judges and practitioners), who would be left in the dark as to whether the substituted sentence represented the sentence the court thought ought to have been imposed at first instance or the discounted sentence, and, if the latter, as to what the court thought the appropriate sentence ought to have been."
50. The editors of Archbold also refer to two further Court of Appeal cases on Attorney General's references in 2017 where some allowance was made for double jeopardy, but conclude that the cases in which the principle is likely to arise have become, and are likely to remain, rare.
51. There is an argument to be had on a future occasion on the principles of whether double jeopardy should continue to apply in the Isle of Man, and if so when, and it would be desirable that the approach of the English and some other Commonwealth courts be available for consideration on that future occasion. In this case, however, we have approached the matter consistently with what this Court has done in the past, namely to consider what discount for double jeopardy we would have considered appropriate, had we been minded to interfere with the sentence imposed by the learned Deemster and to impose a fresh sentence of our own. We note that in Creer the Court considered that a reduction of six months against a revised sentence of six years' custody was the absolute minimum that the Court could have adopted, and that a higher reduction would have been justified. The range of the discount has gone as high as 30% in England and Wales, where the offender had completely served a custodial sentence, was close to release, had a custodial sentence substituted for a non-custodial sentence, or was very young or immature.
52. In our judgment, the discount for double jeopardy in the instant case (if it applies) would have been in the range of 12 – 18 months, and if we had been minded to order that the sentences in relation to the offending against the foster children run consecutively, thus increasing the overall sentence to 12 years' custody, the result would have been a reduction of the sentence imposed to 11 or 10½ years' custody; or taking the range as suggested by Ms Braidwood at 11 to 14 years, if a sentence of 11 years had been imposed, one might have been even closer to the nine years actually imposed by the learned Deemster if a discount for double jeopardy were to be included. In all the circumstances, we consider that the result of such interference in the sentence imposed by the learned Deemster would be so close to the sentence he actually imposed as to amount to tinkering with it.”
33. In respect of the time period within which to file an application for a reference see Watterson 2008 MLR 144 and Kewley 2001-03 MLR N25 “with all convenient speed” and now section 50 of the Interpretation Act 2015 which provides “if something must
13
or may be done but no time is provided for doing it, the thing must or may be done as soon as reasonably possible and as often as needed.”
34. The Appeal Division (Judge of Appeal Storey QC and Deemster Doyle) in Attorney General v Dooley (20 March 2019) applied AG v Brennan (20 December 2017) and were not persuaded, on the grounds of undue leniency, to increase the length of custodial sentence imposed for a money laundering offence contrary to section 140(1) of the Proceeds of Crime Act 2008. At appeal the advocate appearing for the Attorney General attempted to argue for a “Manx deterrent uplift”, such argument not having been raised before the lower court. This led the Appeal Division to comment at paragraph 52 as follows: “We deprecate arguments on sentencing being raised for the first time on appeal, particularly where there has been no change of counsel”. The Appeal Division at paragraph 54 added:
“We are not willing to consider the question of a Manx deterrent uplift without proper evidence as to the nature and extent of money laundering in the Isle of Man and detailed submissions from all interested parties, to include comparable sentencing policies in England and Wales, Jersey and Guernsey and, probably, Scotland and Northern Ireland.”
Appeals in respect of pre-trial rulings
35. Under section 42A(2) of the 1993 Act, where a judge of the High Court has made a pre-trial ruling in respect of any question, an appeal against the ruling shall lie to the Appeal Division but only with the leave of the Appeal Division. Under section 42A(5) there is no appeal to the Privy Council from a decision of the Appeal Division under section 42A(4). Subsection (5) does not however prevent an appeal against conviction, or affect the right of the Attorney General to make a reference under section 40.
36. The Appeal Division (Judge of Appeal Tattersall and Deemster Doyle) in HMAG v A (8 March 2017) stated:
“The application for leave
6. Pursuant to section 42(A) of the Criminal Jurisdiction Act 1993, as amended, the Appellant`s appeal lies only with the leave of this court and at the outset of his submissions Mr Butters applied for leave.
7. There is no satisfactory authority in respect of the test as to whether this court should grant leave. Although in Dobbie v Attorney General [13 January 2010] this court, as currently constituted, referred to R v Jennings (1994) 98 Cr App R 308, at 310 where Rose LJ had indicated that there was a clear duty on lawyers and solicitors to assess whether there was any real prospect of successfully arguing that the judge`s exercise of discretion was fundamentally flawed and we stated that `such words should be carefully heeded by those who wish to pursue appeals against pre-trial rulings`, it is clear that the test for leave was not fully argued before the court. Neither was the point fully argued in this case.
8. In such circumstances we do not believe that it is appropriate to further expand on what this court said in Dobbie as to when it is appropriate to grant
14
leave to appeal against a pre-trial ruling. The precise nature of any such test must await a case in which the point is fully argued before this court.
9. However, adopting a pragmatic approach, we were satisfied that in this case it was appropriate that we should grant leave to appeal so that the substantive issues before the court might be fully argued. We thus granted leave to appeal.”
The court concluded as follows:
“33. There is no doubt that in deciding whether to allow joinder of all counts in the Information Deemster Montgomerie was exercising a discretion.
34. We accept that Deemster Montgomerie was entitled to apply the dicta of Rose LJ in O`Brien set out in paragraph 25 above and to remind himself that the longer the gap in time between two separate alleged offences the clearer must be the nexus required to constitute a sufficient relationship between the events to give rise to a series within the Indictment Rules.
35. On the facts of this case where the two series of allegations were over 20 years apart and where the similarity between the allegations were fairly modest, in our judgment such was unlikely to amount to `strong probative force` referred to by Lord Mackay and certainly did not have `truly remarkable` similarities which existed in Baird where the allegations were 9 years apart, Deemster Montgomerie was entitled to reach the decision which he did in the exercise of his discretion. His decision cannot be said to be plainly wrong or Wednesbury unreasonable.
36. It inevitably followed that the appeal should be dismissed. We accordingly dismissed the appeal on 7 March 2017 and stated that we would give our reasons in due course.
37. We emphasise that a decision as to whether it is appropriate to join counts in an Information must depend on the particular facts of the case and where there is a substantial time between such counts the need for a sufficient nexus will have to be the more clearly demonstrated.
38. In the light of our conclusions on the question of misjoinder, it is unnecessary to consider the question of severance.
Conclusions
39. It thus follows that, although we granted leave to appeal, the Appellant`s appeal was dismissed for the reasons stated in this judgment”
37. In Dobbie (Appeal Division judgment 13 January 2010) it was stated:
“11. This is the first occasion on which the provisions of section 42A have come before this court for consideration and although, as hereinafter appears, we have not had the benefit of full argument, we feel it may be helpful to express some general principles which we believe are applicable to the making and determination of appeals against pre-trial rulings. Some assistance can be
15
obtained from the English authorities in respect of pre-trial rulings by trial judges and the reluctance of the Court of Appeal to intervene.
12. So it was that in R v Clarke [2007] EWCA Crim 2532 the English Court of Appeal emphasised that trial judges are best placed to make case management decisions. Lord Judge CJ stated :
‘Time and time again in this Court emphasis has been laid on the simple proposition that case management decisions are made by trial judges, not by this court. Adjournments are sought and refused, or granted, on very many grounds. Sometimes the decision is insignificant. At others, as here, it is crucial to the outcome of the case. But the decision is a decision for what is usually described as the discretion of the judge, but it is in fact a decision which reflects his or her judgment on an overall balance of all the material as it stands before him at the time when the decision has to be made.’
13. In DPP v Chand [2007] EWHC 90 (Admin) it was accepted that the approach of the Court of Appeal to an appeal in respect of the admissibility of evidence was that it would only interfere where the judge’s judgment was plainly wrong or the judge’s discretion had been exercised unreasonably in the Wednesbury sense provided the judge directed himself or herself correctly.
14. In R v Hedworth [1997] 1 Cr App R 421 the Court of Appeal stressed that it was important that criminal trials get under way as expeditiously as possible and are not bedevilled by appeals in relation to interlocutory matters which are very much the province of the trial judge.
15. In R v Jennings (1994) 98 Cr App R 308, at 310, Rose LJ observed that applications for leave to appeal against judge`s rulings at preparatory hearings, by their very nature, had to be dealt with as a matter of urgency. He emphasised that there was :
‘a clear duty on barristers and solicitors, underlined where public funding is involved to scrutinise with particular care: (1) whether there is jurisdiction in this Court to entertain an appeal, and (2) whether, in an appropriate case, there is any real prospect of successfully arguing that the judge's exercise of discretion was fundamentally flawed. If it appears to this court that such anxious scrutiny has not taken place, this court will not be slow to make appropriate orders with regard to costs.’
Such words should be carefully heeded by those who wish to pursue appeals against pre-trial rulings. Additionally we add that applications for leave to appeal under section 42A should, where they are to be pursued, be pursued with due expedition and not left until shortly before the trial is due to commence. Such applications are not be used as a device to delay the commencement of a trial and if a court is satisfied that such is their purpose an appellate court should be astute to deploy its powers to make adverse costs orders.”
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38. See also R v Elliott [1996] HCA 21; (1996) 185 CLR 250 (21 June 1996) where the Australian High Court (their final court of appeal) sought to discourage appeals in respect of pre-trial rulings, in the context of the relevant Australian provisions, stating:
7. It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong. If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal. But the prosecution has no such right. If the ruling results in an acquittal the ruling, albeit erroneous, can be canvassed on appeal, but only to correct the ruling - not to impeach the acquittal: see s 450A.
8. Obviously two considerations are in competition here. On the one hand, the prosecution is entitled no less than the defence to a trial according to correct rulings on questions of law. On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The personal and financial stress of criminal trials, the dimming of witnesses’ memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to s 450A. The legislative scheme gives greater weight to the despatch of criminal trials than it has given to protecting the prosecution's ability to appeal against rulings which it thinks to be incorrect.
9. It follows that a grant of special leave in the present case would significantly frustrate the process of the criminal trial as prescribed by the Victorian Parliament. This Court has long been extremely reluctant to intervene in criminal trials by granting special leave to appeal against interlocutory decisions. The present case, though it raises important questions for consideration, does not warrant a departure from the practice of this Court and the policy that is manifest in the Crimes Act of Victoria.
10. On the issues argued by counsel for the applicant, and in the light of this conclusion, it is unnecessary for this Court to address the question whether an appeal might lie from the interlocutory ruling of Vincent J pursuant to s 73 of the Constitution.
11. Special leave will be refused.”
39. See R v AB and CD [2018] UKSC 36 a pre-trial appeal in a criminal case dealt with by the Supreme Court of the United Kingdom concerning section 17 of the Terrorism Act 2000.
Extensions of time
40. Under section 31(4) of the 1993 Act the Appeal Division may extend the time within which notice of appeal, or of an application for leave to appeal, may be given.
41. In Hodgson and McGrath (9 July 2019) the Appeal Division applying JS v RS (11 January 2019 – a family case) set out the factors the court should take into account when considering an application for an extension of time to appeal against a
17
conviction. The court applied the factors relevant in a civil context, chillingly noting (at paragraph 27) that in a civil and criminal context:
“Error by an advocate is not an acceptable excuse for a failure to comply with statutory time limits”.
The court was plainly unimpressed with the merits of that appeal and concluded:
“55. We do not believe that the convictions of the Appellants were unsafe or unsatisfactory. There were no incorrect decisions or conclusions on questions of law. There was no material irregularity in the course of the trial. We therefore refuse to grant the extension of time necessary under section 31(4) CJA. We dismiss this appeal against conviction under s33(1) CJA.”
42. Lady Hale in Sherry v R [2013] UKPC 7 stated:
“14. The Board accepts that the merits of any proposed appeal are relevant to an application to extend time. At the very least, it must be shown that there is some merit in the proposed appeal before a court will consider whether the delay can be excused. If the appeal has no prospect of success, then it is in no- one’s interests to allow it to proceed, however short or understandable the delay. Conversely, if the appeal is bound to succeed, the court may look more kindly upon the reasons for the delay. But even in such a case it is by no means inevitable that permission will be granted. It is in the interests of everyone that there be an end to litigation, both civil and criminal. The longer the delay, the better the explanation must be.”
43. The Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) in McCarthy v HMAG (3 May 2019) at paragraph 29 made reference to substantive grounds being required before an extension of time would be granted and the longer the delay the more onerous the burden. The court will be influenced by the likelihood of a successful appeal if the extension is granted. At paragraph 30 the court referred to the factors relevant when considering extensions of time in civil appeals namely (1) the length of the delay (2) the reasons for the delay (3) the chances of the appeal succeeding if the application is granted and (4) the degree of prejudice to the potential respondent if the application is granted. In essence, an extension of time should only be granted if substantial injustice would result from the extension being refused.
44. In Darroch v HMAG (judgment 28 November 2018) the Appeal Division dealt with an application for an extension of time under section 31(4) of the 1993 Act and stated:
“53. We now turn to the Appellant's application for a three year extension of time within which to appeal. Substantial grounds must be shown and the longer the delay the more onerous the task (Doyle on Manx Criminal Law and Procedure paragraph 1058). However, the court will be influenced by the likelihood of a successful appeal if the extension is granted to ensure justice is done. In exceptional circumstances where it is apparent that there are matters worthy of consideration an extension of time may be granted, even where the delay is "inordinate" and unexplained (paragraphs 1059 and 1061).”
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Bail pending appeal
45. See Whipp 1981-83 MLR 284 and Constantinou 1987-89 MLR 312. Normally bail pending appeal will not be granted, but in the case of short custodial sentences appeals would usually be expedited where possible.
Additional evidence
46. In an important judgment the Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) in A v Her Majesty’s Attorney General (23 May 2019) accepted, for the purposes of that appeal, the applicability of the Rules of the High Court of Justice 2009 to criminal appeals and at paragraph 33 stated:
“33. This court will therefore review the decision of Deemster Khamisa, on the evidence before the lower court. Had either party applied to adduce fresh evidence under Rule 14.14(3)(b), we would have declined to admit most of it, applying the well-known principles, most recently set out by this court (differently constituted but including Storey JA) in Excalbur (sic) v Horie (No 2) 2DS 2018/16 (25 March 2019), at [23]:
"As this court, differently constituted but including Storey JA, stated in A v B 2DS 2017/[omitted] (20 December 2017):
"[83] The test for admitting further evidence was stated in the following terms by this court in C v C (24 February 2012). Having quoted Rule 14.14(3), the court said this at paragraph 11:
"11. Accordingly the court has a discretion as to whether to allow further evidence to be adduced on an appeal and although the strict requirements of Ladd v Marshall[1954] 3 All ER 745 namely that
'(i) the evidence could not have been obtained with reasonable diligence for use at the trial;
(ii) the evidence would probably have had an important influence on the result of the case; and
(iii) the evidence must be apparently credible'
may no longer apply, a court is likely to have regard to such matters when determining such an application. We think it should also take into account the practical consequences of allowing such evidence to be admitted – for example that there would need to be contested oral evidence before this court and that the only appeal from this court's decision on the merits would lie to the Privy Council, if leave to appeal was granted."""”
47. See Doyle on Manx Criminal Law and Procedure (Isle of Man Law Society 2010) at page 429 onwards under the heading Substantial miscarriage of justice and fresh evidence. See also other authorities in other jurisdictions in this area of the law
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including DPP v Nelson [2015] UKPC 7, Pora [2015] UKPC 9, Chandler [2018] UKPC 5 and Hastie v The Law Officers of the Crown where the Guernsey Court of Appeal (judgment 29 September 2015) noted at paragraph 25:
“The starting point for the admission of fresh evidence on appeal is that the evidence was unavailable at the trial; it is relevant; capable of belief; and if it had been given at trial it might have raised a reasonable doubt as to the Appellant’s guilt. In general, the reception of fresh evidence on appeal is regarded as wholly exceptional, see Hume v Attorney General [2006] JCA 162. None of these tests appear to us to be passed in this case.”
Dealing with appeals in the absence of the appellant
48. In Sejeroe-Olsen v Attorney General the Appeal Division (Judge of Appeal Storey QC and Deemster Khamisa QC) in a judgment delivered on 28 February 2019 stated:
“9. We dealt with the preliminary issue of whether we should proceed with the hearing of this appeal in the Appellant’s absence. On the morning of the hearing (29 January 2019) an email was received from the Appellant stating that solely due to his own fault he had missed his flight to the Isle of Man the previous evening. He sought an adjournment. In the same email he rehearsed the same arguments as in his Grounds of Appeal. We refused to adjourn the hearing having considered the principles in the well-known case of R v Jones (Anthony) [2003] 1 AC 1 HL. Jones shows that the Court must consider why the party is not present; whether an adjournment might mean he attends; how long any adjournment would need to be; the evidence as to the defendant’s wish to be legally represented; and the interests of the defendant and the public in the expeditious resolution of the issue. We have discretion to proceed in the Appellant’s absence provided it does not cause unfairness to him. In particular, we had in mind the following matters: (a) the protracted history of the case and the length of time since the conviction; (b) the Appellant had had the opportunity to give evidence and cross-examine witnesses during the hearing before Deemster Kainth; (c) he had submitted detailed Grounds of Appeal (as amended) and submitted material in support of those Grounds to this court; (d) the issue we are dealing with does not concern his guilt or innocence but the propriety of the Orders made in the court below; (e) no witness testimony is to be heard in this court; (f) given the date of conviction, in 1999, this case is old and has been through considerable litigation in the Danish courts at first instance and on appeal so that any further delay is not warranted; (g) the Appellant’s presence at this hearing is not essential; (h) this court had already considered an application for an adjournment by the Appellant on the 23 January 2019 and refused it, on the basis that his original Appeal Notice was filed on 6 April 2014 and 5 November 2018 (after a two month delay granted at the Appellant’s request) this court had fixed a date for this appeal convenient to all parties; and (i) the Appellant is not legally represented as he claims he has not been able to instruct lawyers, although this court has not been provided with any evidence of lawyers having been approached or the reasons why he has been unable to secure the services of lawyers. We are satisfied that it is fair to proceed in the Appellant’s absence. We also grant leave to the Appellant to pursue his appeal under Article 88(1) POCERO.”
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49. Jones had been applied by the Court of General Gaol Delivery in R v Watterson (Crim 2004/22 19 October 2005 at paragraphs 14 - 22 available at www.judgments.im). In that case Deemster Doyle refused a request for an adjournment where the defendant had failed, without explanation, to appear for his trial which had been listed for 9 days.
Costs
50. In Darroch v Attorney General the Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) considered section 52 of the Criminal Jurisdiction Act 1993 and at paragraph 13 of a judgment delivered on 22 January 2019 commented:
“… We wish to leave open the question whether the inability of a successful non- legally aided appellant against sentence to recover his or her costs is incompatible with Article 6. We do not accept that the rights of this legally aided Appellant to a fair hearing have been denied.”
51. The Judicial Committee of the Privy Council in Darroch v Her Majesty’s Attorney General for the Isle of Man [2019] UKPC 31 dealt with some intersting jurisdictional issues in respect of costs in criminal proceedings in the Isle of Man in the context of convictions and confiscation proceedings.
52. For an appeal against costs awarded by the Deputy High Bailiff in respect of an acquitted defendant in a court of summary jurisdiction see Deemster Gough’s judgment in Gorry v Her Majesty’s Attorney General (ORD 2019/1, judgment 24 June 2019).
Leave to appeal to the Judicial Committee of the Privy Council
53. See section 24(1) of the High Court Act 1991. Judicial Committee of the Privy Council Practice Direction 3.3.3.b provides in respect of applications for permission to appeal to the Judicial Committee of the Privy Council that:
“Permission to appeal is granted …
b. in criminal cases for applications where in the opinion of the Appeal Panel, there is a risk that a serious miscarriage of justice may have occurred.”
54. Consider the case law including paragraph 10 of the Appeal Division’s judgment in Beattie (14 September 2012) which referred to the test being:
“… whether there is a serious risk that a serious miscarriage of justice may have occurred.”
55. See also Holt v Attorney General (Appeal Division judgment 4 May 2012) where at paragraphs 10 – 13 the following was stated:
“10. In his written submissions Mr Halsall, on behalf of the Appellant, makes two submissions : firstly, that there are no statutory provisions, rules of procedure nor any judgments of this court which identify the test which should be applied by this court in determining an application by an unsuccessful party in
21
a criminal case for leave to appeal to the Judicial Committee of the Privy Council; and secondly, that in itself considering an application for leave to appeal the Judicial Committee will grant permission where it believes that there is a risk that a serious miscarriage of justice may have occurred : see dicta of Lord Carswell in Smith v The Queen [2008] UKPC 34.
11. In response the Attorney General agrees that in the absence of Manx authority identifying the test to be applied in a criminal case as to whether to grant leave to appeal [it seems to be conceded that there is no such Manx authority] guidance can be sought from authorities of the Privy Council itself. It is agreed that [per Smith v The Queen] the Privy Council does not act as a second Court of Appeal but its function is to satisfy itself that there has been no serious miscarriage of justice.
12. Such approach was further explained by Lord Hailsham in Baldry v DPP [1983] 2 AC 297, at 302, where referring to the general principles on which the Privy Council continue to feel bound to tender their advice in criminal matters, he stated :
‘The locus classicus in which these principles are stated are the passages in the opinion of the Board given by Lord Sumner in Ibrahim v The King [1914] AC 599, 614-615, where he said:
‘Their Lordships’ practice has been repeatedly defined. Leave to appeal is not granted ‘except where some clear departure from the requirements of justice’ exists : Riel v The Queen (1885) 10 App.Cas 675, 677; nor unless ‘by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done’ : In re Dillet (1887) 12 App.Cas 459, 467. It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being on the same footing : Riel’s case, 10 App.Cas 675; Ex parte Deeming [1892] AC 422 ... Misdirection, as such, even irregularity, as such, will not suffice : ex parte Macrea [1893] AC 346. There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future : Reg v Bertrand (1867) LR 1 PC 520.’
13. We accept that in determining this application for leave to appeal we should ask ourselves whether there is a serious risk that a serious miscarriage of justice may have occurred.”
56. It may be that if there is a point of law of general public importance which ought to be considered by the Judicial Committee of the Privy Council, leave may be granted even where there is no risk that a serious miscarriage of justice may have occurred.
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57. The Appeal Division (Judge of Appeal Storey and Deemster Doyle) in Kelly v HMAG (24 November 2017):
“6. We have concluded that we should not grant leave to appeal to the Judicial Committee of the Privy Council as the relevant test has not been met.
7. The relevant test is well-established and is as follows:
In determining an application for leave to appeal to Her Majesty in Council pursuant to section 24(1)(a) of the High Court Act 1991 in a criminal matter, the court should ask itself whether there is a serious risk that a serious miscarriage of justice may have occurred (see for example Beattie v HMAG Appeal Division judgment 14 September 2012).”
58. The Appeal Division (Judge of Appeal Storey, Deemsters Doyle and Birt) in Morris v Assessor of Income Tax (judgment 22 December 2017), in the context of a civil appeal, indicated that consideration should be given as to whether a point of law of general public importance “needs to be determined at the present time” and the Privy Council was uniquely placed to judge that and the Appeal Division would normally be slow to find that latter aspect satisfied.
59. The Appeal Division (Judge of Appeal Storey and Deemster Doyle) in Byers v HMAG (11 May 2018) stated:
“Test for the Grant of Leave to Appeal
7. As this court (differently constituted but including Storey JA and Deemster Doyle) stated recently in Morris v Assessor of Income Tax 2DS 2017/17 (22 December 2017) at [15]:
"… the test to be applied by this court is [a] threefold one, namely: is there (i) an arguable point of law, (ii) of general public importance, (iii) that needs to be determined now by the Privy Council? In applying such test the Staff of Government Division is best placed to judge (ii) insofar as the point concerns the Isle of Man, this court and the Privy Council are equally able to judge (i) but the Privy Council is uniquely placed to judge (iii) and this court would normally be slow to find (iii) satisfied."
8. Mr Travers for the Appellant relied on Ackerley v HM Attorney General of the Isle of Man 2013 MLR 359 PC (which we had referred to in paragraphs [18] and [40] of the First Judgment) and submitted that the test for the granting of leave is whether there was a doubt as to the safety of the conviction before the Justices. However, as Lord Hughes of Ombersley observed at [26] and [27]:
"It is not the function of the Board to make itself a second constitution of the Appeal Division and to duplicate its process … the Board reminds itself, its own role is a limited one. As Lord Hope of Craighead put it in giving the Board's advice in [Stafford v The State (1998) 53 WIR 417 at 422, [1999] 1 WLR 2026 at 2029]:
"It has been said many times that it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal. Save in exceptional 23
circumstances, the Judicial Committee will not embark upon a rehearing of issues such as the weight which may properly be given to the evidence, or the inferences which may properly be drawn from it. These are matters which will be left to the Court of Appeal. Its decision as to whether the evidence was sufficient to support the conviction will not normally be reviewed by this Board."
Similarly, in Smith v R (Jamaica) [2008] UKPC 34, (2008) 74 WIR 379 Lord Carswell, giving the judgment of the Board …:
"… It is well established that … issues should be confined to points of law of sufficient significance or matters which tend to show that a serious miscarriage of justice may have occurred … Their Lordships … will not act as a second court of appeal and their function is to satisfy themselves that there has been no serious miscarriage of justice in basing a conviction on the evidence given in the case.""
9. Paragraph 3.3.3 of Privy Council Practice Direction 3 provides:
"Permission to appeal is granted …
b. in criminal cases for applications where in the opinion of the Appeal Panel, there is a risk that a serious miscarriage of justice may have occurred."
That test has been applied in this court in Holt 2DS 2011/04 (4 May 2012) at [10] – [13] and Beattie 2DS 2011/03 (14 September 2012) at [14].
10. In his submissions on behalf of the Respondent, Mr Swain relied on Uprichard v Scottish Ministers [2013] UKSC 21 at [57] – [60] per Lord Reed JSC (with whom Lord Hope of Craighead, Lord Kerr of Tonaghmore, Lord Carnwarth of Notting Hill and Lord Carloway agreed), which we had referred to in Morris at [11]:
"59. … Appeals against any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland can be brought only with the permission of the Court of Appeal or of this court. In practice, the Court of Appeal normally refuses permission so as to enable an Appeal Panel of this court to select, from the applications before it for permission to appeal, the cases raising the most important issues.
60. … The reasons for adopting that approach were explained by Lord Bingham of Cornhill, at the time when the final court of appeal was the House of Lords, in R v Secretary of State for Trade and Industry, Ex p Eastaway [2000] 1 WLR 2222, 2228:
"In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist.""
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11. Mr Swain further relied on Boru Hatlari Ile Petrol Tasima AS v Tepe insaat Sanayii AS [2016] JCA 199 D per Anderson JA at [23] and [29] which we had referred to in Morris at [13]:
"23. … As [paragraph 3.3.3(a) of the JCPC Practice Direction 3] is the threshold which the Appeal Panel will apply in the event that we refuse leave and an application is made to the Privy Council for special leave, it appears to this Court that we would not be permitted to adopt a lower threshold. Indeed, it may be said that a court of appeal in such a situation should actually adopt a stricter threshold simply because the Appeal Panel of the Judicial Committee can permit an appeal to proceed even where leave or permission has not been given by the court of appeal below, whereas the Judicial Committee cannot prevent the pursuing before it of an appeal where leave or permission should not have been given by that court of appeal.
… 29. This Court is satisfied that having regard to the formulation provided in the JCPC Practice Direction and its equivalence to that in the Supreme Court Practice Direction, and the resulting relevance of the practice described by Lord Reed in Uprichard (which is a decision already noted in this Court), this Court ought also to follow the same practice. This means that we should only grant leave to appeal to the Privy Council if we are satisfied that the arguable point or points of law which have been identified are of such clear public importance that they merit consideration by the Privy Council now. In approaching the issue in this way, we are conscious that the phrase used in paragraph 3.3.3(a) is "which ought to be considered by the Judicial Committee at that time". That obviously encompasses a consideration as to the immediacy of the need to address the point of law which can really only be judged by the Appeal Panel of the Privy Council. The result is that even where it can be said that there may exist an arguable point of law, we would also need to be sure both as to the existence of that point of law and of its importance, as well of its need for determination at this time, before we should grant leave. That is the result of the practice described by Lord Reed in Uprichard and the reasons for which were described by Lord Bingham in Eastaway. The practice has been adopted in relation to applications for permission to appeal to the Supreme Court, and given that the respective Practice Directions are identical in this respect we can see no reason why this Court should not follow the same practice."
…
17. We have failed to identify any point of law, let alone an arguable one, or a point of Manx law of general public importance for the Isle of Man that it would be appropriate for the Privy Council to consider at this time. In our opinion there is no doubt as to the safety of the Appellant's conviction and no serious miscarriage of justice has occurred based on the consistent and apparently credible evidence given by the three lay witnesses.”
60. See also Darroch v HMAG Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) judgment delivered on 22 January 2019.
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61. In Anderson v HMAG the Appeal Division (Judge of Appeal Storey QC and Deemster Corlett) in a judgment delivered on 28 February 2019 at paragraph 10 referred to the civil threefold test namely is there (i) an arguable point of law, (ii) of general public importance, (iii) that needs to be determined now by the Privy Council? The court also at paragraph 11 stated that in an application to the Privy Council the test to be applied was whether “there is a risk that a serious miscarriage of justice may have occurred.” At paragraph 20 the court pragmatically stated:
“We conclude that there is no arguable point of law of general public importance. Even if there were, then it is for the Privy Council to decide whether such point of law merits consideration by the Privy Council at this particular time.”
62. The Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) in McCarthy v Her Majesty’s Attorney General (18 June 2019) stated:
“17. In our judgment there is no arguable point of law of public importance. Section 15A TA was repealed some time ago by Fraud Act 2017. The refusal to grant an extension of time was made on the facts (length of delay and lack of any reasonable excuse). Even if there were such an arguable point of law of public importance it is for the Privy Council to decide whether such point of law merits consideration by the Privy Council at this particular time.”
The Appeal Division at paragraphs 7-8 had stated what they regarded to be the relevant test as follows:
“7. The threefold test to be applied by this court in applying section 24(1)(a) HCA is that set out in Kelly v AG 2DS 2017/20 (24 November 2017) and Byers v AG 2DS 2018/1 (11 May 2018), namely:
“… is there (i) an arguable point of law, (ii) of general public importance, (iii) that needs to be determined now by the Privy Council? In applying such test the Staff of Government Division is best placed to judge (ii) insofar as the point concerns the Isle of Man, this court and the Privy Council are equally able to judge (i) but the Privy Council is uniquely placed to judge (iii) and this court would normally be slow to find (iii) satisfied.”
8. In the case of an application to the Privy Council for special leave pursuant to section 24(1)(b) HCA, the test to be applied by the Privy Council would be whether “there is a risk that a serious miscarriage of justice may have occurred” (JCPC Practice Direction Rule 3.3.3b).”
Doleance and the Court of General Gaol Delivery
63. Deemster Corlett in Davis v HM Attorney General in a judgment delivered on 16 July 2019 stated:
“49. The Claimants in response refer to section 10(2) of the High Court Act 1991 which provides that:-
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"For the avoidance of doubt, it is declared that the High Court does not have jurisdiction to hear and determine petitions of doleance in respect of any matter in, or proceeding of, the Court of General Gaol Delivery."
50. The Claimants say that in light of this it is simply not possible to follow English precedents and that a doleance claim against the Court of General Gaol Delivery challenging the grant of the warrants would have been met with a (no doubt successful) strike out application founded upon section 10(2).
51. A reading of the Appeal Division's judgment in Taylor and Neale v Attorney General and Court of General Gaol Delivery ("Taylor") [2012] MLR 199, by which I am of course bound, makes it clear that such an argument is misconceived. Taylor makes it clear that:-
(a) Section 29(3) of what is now the Senior Courts Act 1981 of Parliament and which has the effect of prohibiting a judicial review of the Crown Court's "jurisdiction in matters relating to trial on indictment", is in quite different terms to the Manx High Court Act 1991 section 10(2) which excludes doleance claims "in respect of any matter in, or proceeding of, the Court of General Gaol Delivery". (see paragraph 33 of Taylor).
(b) The statutory exclusion in section 29(3) is to be "narrowly construed". (see paragraph 34).
(c) If the decision is closely related to the trial or affected the conduct of the trial, then that points towards the decision falling within the ambit of the exclusion. (see paragraph 35).
(d) If the decision is truly collateral to the trial of the defendant and judicial review will not delay the trial it may well not be excluded by the (English) section. (see also paragraph 35).
(e) Reference to the debates in the branches of Tynwald makes it clear that section 10(2) was to prevent one Deemster from reviewing the decision of another Deemster in the context of orders which are part of the process which concludes in the determination of a criminal charge against the accused. (see paragraph 79).
(f) The supervisory jurisdiction of the High Court by way of doleance application is one that can only be ousted by the plainest statutory language. Clear and unambiguous language to that effect is required. (see paragraphs 85 and 86).
52. I am satisfied that a proper understanding of Taylor can only lead to one conclusion in the context of the Claimants' wish to challenge the legality of the warrants. Such a challenge on these facts to the decision of the Court of General Gaol Delivery is plainly outwith the ambit of those decisions which are closely bound up with the trial of a defendant. A challenge to the Court in these circumstances will plainly not affect or delay any trial. No such trial is yet even in prospect in this case. In my judgment, therefore, section 10(2) of the High Court Act 1991 cannot possibly be read, in the light of Taylor v Neale, as prohibiting a doleance claim against the decision of the Court of General Gaol Delivery to
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issue the warrants. Such a claim will succeed if the Court's decision to issue the warrants is found to come within the well established public law grounds of illegality, procedural impropriety or unreasonableness. That was the procedure which the Claimants ought to have adopted. It was the procedure as it happens that Deemster Kainth anticipated would have occurred.
53. The attempt by the Claimants to bring a doleance claim against the police officer who applied for the warrants and executed them has, for the reasons given above, no prospects of success and the amendment application is thus dismissed so far as it attempts to add her as an additional defendant.
54. I should add in passing that in my view the Claimants' existing claim against the Attorney General is similarly misconceived. The Attorney was not the applicant for the search and seizure warrants. They can only be applied for by an "appropriate officer" (see sections 169(1) and 195(2) of the Proceeds of Crime Act 2008). They can only be executed by "an appropriate person" (see Sections 169(4) and 169(5)). In neither case does the definition include HM Attorney General. Save for the fact that members of his chambers may have advised the appropriate officer, it is difficult to see on what basis the Attorney is a proper party to the proceedings. I thus provisionally agree with Mr Wannenburgh when he submits (see page 51 of the bundle) that the Claimants have misidentified the relevant decision maker. However, all that I say on this issue must be regarded as obiter dicta. Mrs Forbes submitted that the Attorney had to be sued if for no reason other than to obtain the relevant evidence. There is no current application by Mr Wannenburgh to strike out the claims against the Attorney and I have therefore obviously not heard detailed argument on the issue.”
Further reading
64. See Doyle’s Manx Criminal Law and Procedure (2010) at pages 425-486 and consider any subsequent relevant legislation and case law.
[Doyle August 2019]
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