The Law Commission Consultation Paper No 184 THE HIGH COURT’S JURISDICTION IN RELATION TO CRIMINAL PROCEEDINGS A Consultation Paper The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Etherton, Chairman Mr Stuart Bridge Mr David Hertzell Professor Jeremy Horder Kenneth Parker QC Professor Martin Partington CBE is Special Consultant to the Law Commission responsible for housing law reform. The Chief Executive of the Law Commission is Steve Humphreys and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This consultation paper, completed on 1 October 2007, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on its proposals before 22 February 2008. Comments may be sent either – By post to: David Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ Tel: 020-7453-1212 Fax: 020-7453-1297 By email to: criminal@lawcommission.gsi.gov.uk It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format. We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents' names in any final report we publish. Those who wish to submit a confidential response should contact the Commission before sending the response. We will disregard automatic confidentiality disclaimers generated by an IT system. This consultation paper is available free of charge on our website at: http://www.lawcom.gov.uk/judicial_review.htm THE LAW COMMISSION THE HIGH COURT’S JURISDICTION IN RELATION TO CRIMINAL PROCEEDINGS CONTENTS Paragraph Page PART 1: INTRODUCTION 1.1 1 Terms of reference 1.1 1 Understanding the terms of reference 1.2 1 The origins, nature of and limitations upon the High Court’s 1.2 1 jurisdictions over the Crown Court Inferior and superior courts 1.2 1 Inferior and superior courts prior to 1971 1.4 2 Challenging decisions of inferior courts and superior courts 1.7 2 prior to 1971 Judicial Review 1.7 2 Quarter Sessions 1.7 2 Assizes 1.8 2 Case Stated 1.9 3 Quarter Sessions 1.9 3 Assizes 1.13 3 The establishment of the Crown Court in place of Assizes 1.14 4 and Quarter Sessions The jurisdictions exercised by the Crown Court in relation to 1.15 4 criminal proceedings Aspects of the Crown Court’s first instance 1.17 5 jurisdiction The High Court’s jurisdiction in relation to criminal 1.22 6 proceedings in the Crown Court The High Court’s jurisdiction in relation to decisions 1.22 6 of the Crown Court when exercising its appellate and sentencing jurisdictions The High Court’s jurisdiction in relation to decisions 1.23 6 of the Crown Court exercising its first instance jurisdiction ‘Relating to trial on indictment’ 1.26 7 The problems with the current law 1.32 9 The meaning of ‘relating to trial on indictment’ 1.32 9 Lack of clarity and simplicity 1.33 9 Different avenues for challenging decisions of the 1.33 9 Crown Court depending on which jurisdiction the Crown Court was exercising iii Paragraph Page Different avenues for challenging decisions of the 1.37 10 Crown Court exercising its appellate or committal for sentence jurisdictions Different avenues for appealing decisions of 1.40 11 magistrates’ courts Recommendations made by Lord Justice Auld 1.42 11 An overview of our main provisional proposals 1.45 12 The role of the High Court 1.45 12 Appeal by case stated and judicial review 1.46 12 Challenging convictions and sentences 1.47 12 Challenging acquittals 1.49 12 Acquittals that result from ‘terminating’ rulings 1.50 12 Acquittals that do not result from ‘terminating’ rulings 1.51 13 Challenging determinations, judgments, orders and rulings 1.52 13 other than convictions, sentences and acquittals The means of challenge 1.52 13 Leave to appeal 1.53 13 Grounds for appealing 1.54 13 Circumstances in which the new statutory appeal 1.55 14 may be invoked Decisions made by the Crown Court in cases 1.55 14 tried on indictment Decisions made after the jury has 1.56 14 been discharged Decisions made after the jury is 1.58 14 sworn and after it has been discharged Decisions made before the jury is 1.62 15 sworn Alternative proposals 1.66 16 Decisions made by the Crown Court when 1.67 16 exercising its appellate jurisdiction Decisions made by the Crown Court 1.68 16 after it has determined the appeal Decisions made by the Crown Court 1.70 17 before it has determined the appeal Magistrates’ courts and the Court Martial 1.72 17 Structure of paper 1.73 18 PART 2: CHALLENGING DECISIONS MADE IN CRIMINAL 2.1 19 PROCEEDINGS – THE CURRENT LAW Criminal proceedings in England and Wales 2.1 19 Trials of defendants aged 18 and over 2.1 19 Trials of defendants aged under 18 2.5 20 iv Paragraph Page Challenging decisions of magistrates’ courts 2.10 21 Appealing against or seeking review of a conviction and/or 2.10 21 sentence Appeal to the Crown Court against conviction and/or 2.11 21 sentence Appeal to the High Court by case stated 2.12 22 Powers of High Court on appeal by case 2.14 22 stated Application to the High Court for judicial review 2.15 23 Which avenue to choose? 2.17 23 Appeal to the Crown Court or appeal by case 2.18 23 stated to the High Court? Appeal to the Crown Court or apply to the 2.21 24 High Court for judicial review? Appeal by case stated to the High Court or 2.24 25 apply to the High Court for judicial review? Appealing against or seeking review of an acquittal 2.25 25 Appeal to the High Court by case stated 2.26 26 Application to the High Court for judicial review 2.28 27 Appealing against or seeking review of ancillary orders 2.29 27 made or not made following conviction or acquittal Appealing against or seeking review of interlocutory 2.30 27 decisions Challenging decisions accepting or declining 2.33 28 jurisdiction Challenging decisions made in committal proceedings 2.36 29 Appeal by case stated or apply for judicial review? 2.41 30 Appeal from the High Court to the House of Lords 2.43 31 Challenging decisions of the Crown Court 2.44 32 Challenging decisions of the Crown Court when exercising 2.47 32 its appellate jurisdiction Challenging final decisions, including the making of 2.47 32 (or the refusal to make) ancillary orders consequent on conviction or acquittal Appeal by case stated 2.48 33 Application for judicial review 2.50 33 Appealing against or applying for review of 2.52 33 interlocutory decisions Appeal by case stated 2.52 33 Applying for judicial review 2.53 34 Challenging decisions of the Crown Court when exercising 2.54 34 its first instance jurisdiction Appeal to the Court of Appeal 2.54 34 Appealing against conviction and sentence 2.54 34 v Paragraph Page Appealing in cases where the defendant’s 2.56 34 fitness to plead is in issue Defendant found fit to plead 2.57 34 Defendant found unfit to plead 2.58 35 Challenging an acquittal 2.61 35 Retrials for serious offences 2.62 36 Appeals against ‘terminating’ rulings 2.63 36 The powers of the Court of Appeal 2.69 39 hearing an appeal under section 58 Appeal against rulings made in preparatory 2.70 39 hearings The power to order preparatory 2.70 39 hearings What rulings can be made as part of 2.75 41 a preparatory hearing? Which rulings made at preparatory 2.76 41 hearings are amenable to appeal? The meaning of ‘any question of law 2.86 44 relating to the case’ Appealing against evidentiary rulings relating 2.90 45 to prosecution evidence The power of the Court of Appeal to 2.92 46 reverse an evidentiary ruling Miscellaneous statutory appeals 2.93 46 Referring an acquittal 2.94 47 Referring an unduly lenient sentence 2.95 47 Appealing to or seeking review by the High Court 2.96 47 The interpretation of ‘relating to trial on 2.100 48 indictment’ The policy consideration underlying 2.101 49 the interpretation of ‘relating to trial on indictment Decisions that have been held to be ones 2.102 49 ‘relating to trial on indictment’ Decisions that have been held to be ones 2.103 50 not ‘relating to trial on indictment’ Bail 2.104 51 Decisions and orders following a 2.113 53 finding of unfitness to plead Orders made without jurisdiction 2.120 55 A third party application for a 2.126 57 declaration Challenging decisions made by the Crown Court when 2.129 58 exercising its committal for sentence jurisdiction vi Paragraph Page Flowchart illustrating current structure of appeals in criminal courts 59 PART 3: THE EUROPEAN CONVENTION ON HUMAN RIGHTS 3.1 60 AND FUNDAMENTAL FREEDOMS The purpose of this Part 3.1 60 Compliance with Articles 6 and 13 ECHR 3.3 60 The scheme for protection of Convention rights in UK law 3.3 60 What is required by article 6 ECHR in the context of Crown 3.9 62 Court determinations of Convention rights? Does section 29 operate in compliance with article 6(1) 3.13 63 ECHR? Defendants 3.13 63 Third parties 3.14 64 The policy implications of the section 29 exclusion 3.17 65 PART 4: PROPOSALS: (1) A NEW FRAMEWORK 4.1 67 Introduction 4.1 67 Case stated 4.3 67 The current use of appeal by case stated as a means of 4.3 67 challenging decisions of the Crown Court Case stated as a means of challenging decisions 4.4 68 made in trials on indictment Case stated as a means of challenging decisions of 4.6 68 the Crown Court made when exercising its appellate or committal for sentence jurisdictions