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Appeals to the Supreme Court

Introduction

From 1 October 2009, the jurisdiction of the Judicial Committee of the House of Lords has been exercised by the Supreme Court of the United Kingdom following the coming into force of paragraphs 13(5) and 16(6) of Schedule 9 to the Constitutional Reform Act 2005.

References to the House of Lords in the Criminal Appeal Act 1968 and the Administration of Justice Act 1960 are to be read as references to the Supreme Court after 1 October 2009.

Prosecutors and caseworkers who have experience of House of Lords cases will find that there are very many similarities between the style and requirements of the Supreme Court and of the House of Lords.

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Advice, Assistance and Handling of Appeals

Advice and assistance, or general consultation is available from the Appeals Unit (The Appeals Unit) CPS Headquarters, which liaises with Strategy and Policy Directorate, the Attorney General's Office and specialist Advocates on all aspects of the process including possible, pending and current appeals to the Supreme Court.

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Initial decision to Appeal

Initial decisions to appeal will be taken locally by Chief Crown Prosecutors (CCPs) or Deputy Chief Crown Prosecutors (DCCPs) and the Advocate involved in the case.

CPS Area prosecutors will need to notify the CCPor DCCP who should agree to the decision to seek permission to appeal to the Supreme Court.

All important events should be notified to the CCP or DCCP and if necessary to the Director Public Prosecutions, through line management.

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Final decision to Appeal and Handling of Cases

Appeals Unit lawyers and the advocates instructed by them have particular experience in dealing with Supreme Court appeals. This means that, in consultation with the CPS Area, they must make the final decision on whether a case should be taken to the Supreme Court.

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Overview

Appeals to the Supreme Court can be made from either the Court of Appeal or the Administrative Court.

Applications for permission to appeal to the Supreme Court must first be made to the Administrative Court or Court of Appeal, as appropriate. If permission is refused, application should be made to the Supreme Court.

The Court of Appeal

Section 33(1) Criminal Appeal Act 1968:

1) An appeal lies to the Supreme Court, at the instance of the defendant or the prosecutor, from any decision of the Court of Appeal on an appeal to that court under Part I of this Act or Part 9 of the Criminal Justice Act 2003 or section 9 (preparatory hearings) of the Criminal Justice Act 1987 or section 35 of the Criminal Procedure and Investigations Act 1996 or section 47 of the Criminal Justice Act 2003.

1b) An appeal lies to the Supreme Court, at the instance of the acquitted person or the prosecutor, from any decision of the Court of Appeal under section 76(1) or (2) of the Criminal Justice Act 2003 (retrials for serious offences).

Section 34(1) Criminal Appeal Act 1968:

1) An application to the Court of Appeal for leave to appeal to the Supreme Court shall be made within the period of 28 days beginning with the relevant date; and an application to the Supreme Court for leave shall be made within the period of 28 days beginning with the date on which the application for permission is refused by the Court of Appeal.

1a) In subsection (1), "the relevant date" means:

(a) The date of the Court of Appeals decision; or
(b) If later, the date on which the Court of Appeal gives reasons for its decision.

Thus if the decision is on 1 October, time runs out on 27 October not 28 October. This rule applies in all calculations of time limits in the Supreme Court.

However, applications for permission to appeal under the following enactments are required to be made within 14 days:

  • sections 32(5) and 114(5) of the Extradition Act 2003;
  • sections 33, 44 and 66 of the Proceeds of Crime Act 2002;
  • sections 183, 193 and 214 of the Proceeds of Crime Act 2002;
  • Attorney General's References under section 36(5) of the Criminal Justice Act 1988.

The Administrative Court

An appeal to the Supreme Court may be made by either the defendant or the prosecutor (claimant or defendant in the case of a judicial review) from any decision of the High Court of Justice in England and Wales: see section 1 Administration of Justice Act 1960 as amended.

There is no appeal to the Court of Appeal from a refusal of a Divisional Court to grant permission to apply for judicial review in a criminal case. The Supreme Court has no jurisdiction to hear an appeal against a refusal by a Divisional Court of permission to apply for judicial review in a criminal case: see section 1 of the Administration of Justice Act 1960 as amended.

Section 2(1) Administration of Justice Act 1960 as amended states that an application for permission to appeal to the Supreme Court must be made within 28 days beginning with the date on which the application for such permission was refused by the lower court (and not the following day). Note though the exceptions to this rule given above.

Note also that the Criminal Appeal Act 1968 covers the Court of Appeal procedure; the Administration of Justice Act 1960 covers the Administrative Court procedure. The provisions mirror each other.

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Appeal Requirements

Appeals to the Supreme Court are subject to two conditions:

1. Certification of a Point of Law of General Public Importance by the Court of Appeal.

Permission to appeal in a criminal cause or matter will only be granted if the court below (i.e. the Court of Appeal or Administrative Court as appropriate) certifies that a point of law of general public importance is involved in the decision of that court.

Section 33(2) Criminal Appeal Act 1968 for the Court of Appeal.
Section 1(2) Administration of Justice Act 1960 for the Administrative Court.

and

2. Permission (formerly called leave) is granted either by the court below or by the Supreme Court.

This will only be granted if it appears to the court below or to the Supreme Court that the point ought to be considered by the Supreme Court (Also see the speech of Viscount Simonds in Gelberg v Miller [1961] 1 All E. R. 618).

A certificate of a point of law of general public importance is not required:

  • on an application for Habeas Corpus;
  • for an appeal under section 5 Human Rights Act 1998 (i.e. an appeal by a Minister of the Crown against a declaration of incompatibility);

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Human Rights

The Human Rights Act 1998 applies to the Supreme Court, but the Act does not give any general right of appeal. 

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Time limits

Strict time limits apply and the prosecution can only apply to extend them in certain very limited circumstances (only for applications under section 76(1) or (2) Criminal Justice Act 2003, which relate to retrials following acquittals for certain serious offences).

The defence are allowed rather more latitude and it is not the practice in criminal appeals to require prosecution consent to any extensions sought by them. However, no extension of time may be granted for applications made under section 32 and section 114 of the Extradition Act 2003.

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Procedure

There is no route to the Supreme Court except by applying first to the Court of Appeal or Administrative Court for permission to go to the Supreme Court.

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Steps in the Appeal process

1.Before a hearing at the Court of Appeal consider whether a further appeal to the Supreme Court should be made if the appeal is unsuccessful.

When the CPS has a case in the Court of Appeal or Administrative Court, before the appeal is heard, consideration should be given to whether or not permission to appeal to the Supreme Court should be sought if the judgment is unfavourable. This consideration will clearly be provisional and depend on the points to be made and the wording of any judgment. Nevertheless such consideration will save time and effort later and can focus thoughts on the strengths and weaknesses of the appeal.

If an appeal to the Supreme Court is contemplated, the Crown Prosecutor and the advocate need to have considered and if possible drafted a question or questions to be asked. These questions will need to pass the test of being a point of law of general public importance involved in the decision of the court. The CCPs/DCCPs provisional approval to appeal will also need to have been obtained.

2. If the prosecution is unsuccessful in the Court of Appeal.

If not already done and if possible, make an immediate decision whether to apply for permission to appeal to the Supreme Court.

There are 28 days in which to apply to the Court of Appeal or Administrative Court for permission to appeal to the Supreme Court, but it is generally better to have decided on an appeal before the lower courts judgment is given. The decision against the Crown is usually at the close of the appeal, but could be the date when a reserved judgment is delivered (Note: Day 1 is the date the decision against the Crown is given. Thus if the decision is on 1 October, time runs out on 27 October not 28 October).

If the decision is to seek permission to appeal and it has not already been done, the Crown Prosecutor and either the advocate should agree and draft a question or questions to be answered by the Supreme Court which can pass the test of being a point of law of general public importance.

Make an application for permission to appeal, and for a point of law of general public importance to be certified.

3. Remember to consider the bail position of successful defendants.

It is important to consider the bail or custody position of a defendant who has successfully appealed to the Court of Appeal.

If the defence appeal at the Court of Appeal succeeds clearly the defendants sentence of imprisonment or other order will be discharged with the quashing of the conviction. If an appeal to the Supreme Court is to be made the Court of Appeal may order that the defendant be detained until the appeal is decided (section 37 Criminal Appeal Act 1968: see Archbold 7-328). Alternatively the Court of Appeal may order the accused be released on bail instead of being released unconditionally.

If the Court of Appeal chooses to release the defendant without bail, the defendant is not liable to serve the remainder of a custodial sentence even if the Supreme Court restores the conviction (section 37(5) Criminal Appeal Act 1968).

The Crown through the advocate must therefore make an application to the Court of Appeal for bail or continued detention.

4. Immediately at the end of the Court of Appeal hearing make an oral application.

The Advocate makes an oral application to the Court of Appeal for permission to appeal and for a point of law of general public importance to be certified.

There are 3 possible outcomes of this application:

  • Permission is not granted and a point of law is not certified. No further action can be taken. There is no appeal from the refusal to certify a point of law (Gelberg v Miller [1961] 1 WLR 459);
  • Permission is not granted but a point of law is certified. See step 6 below;
  • Permission is granted and a point of law is certified. See step 7 below.

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5. If more time is needed after the appeal to consider whether to seek to appeal further.

If after the appeal the reviewing lawyer and the Advocate need time to consider whether to appeal, this can be done in the next few days. It must be done quickly, bearing in mind there are 28 days to make the decision, draft the question(s) and get the case back into court. Day 1 is the date of the decision against the Crown at the Court of Appeal and not the following day.

If the defendant is detained, this route is inadvisable because of the need for the court to deal with bail. If necessary seek an adjournment until later in the court day to make the application for permission.

6. Permission is not granted but a point of law is certified.

The refusal of permission to appeal by the court below is not the final stage. If appealing is still considered correct (and it should be unless there are new facts to consider from the time the previous decision to appeal to the Supreme Court was made) then the application for permission can be made directly to the Supreme Court (This is in fact the normal procedure because the Court of Appeal and Administrative Court rarely grant permission: for example there were only 5 grants of leave in 2007 by the Court of Appeal).

There are 28 days from the date permission is refused by the Court of Appeal or Administrative Court to draft and lodge an application for permission to appeal to the Supreme Court. Section 34(1) Criminal Appeal Act 1968 says:

"... an application to the Supreme Court for (permission) shall be made within 28 days beginning with the date on which (permission) was refused by the Court of Appeal."

There is a similar provision in section 2(1) Administration of Justice Act 1960 for Administrative Court refusal of permission. Calculate the 28 days by counting Day 1 as the date of refusal. If the date of the order is later still use the date of refusal.

Note: The date substantive permission is refused is not necessarily the date when procedural matters such as the formal certification of the point of law occurs so check this carefully.

The Crown Prosecutor or Advocate must immediately notify the Appeals Unit: for contact details see Advice, Assistance and Handling of Appeals above.

The case papers [see below] must be sent to the Appeals Unit because a specialist Advocate will be required to draft an application for permission to appeal to the Supreme Court. Note in particular that:

  • Drafting an application takes time. It is unprofessional to submit papers (that are to hand) to the Appeals Unit later than 7 days after Day 1;
  • The Appeals Unit will make its own selection of Advocate. CPS Areas should not indicate to the trial Advocate, however experienced, that they will be instructed to appear in the Supreme Court.

The case papers to be submitted are:

a. Indictment;

b. Order of the Court below certifying a point of law and refusing permission to appeal to the Supreme Court (This is essential as the application for permission cannot be lodged without it);

c. The Order which is being appealed, if separate;

d. Official transcript of the judgment of the Court of Appeal;

e. Order of the court of first instance; Crown Court Certificate of conviction or Magistrates' Court Memorandum of conviction;

f. Official transcript of the judgment of the court of first instance or of the case stated;

g. A chronology of the proceedings so far (perhaps from Custody Time Limit applications);

h. Sufficient papers (probably all or part of the trial brief) to allow the Advocate drafting the application for permission to appeal to give:

  • The prosecution case at trial;
  • Details of the matter complained of (e.g. if the issue is the admission of bad character evidence, say why the prosecution wished to rely on this).

Do not delay submission because any of the above is not immediately available; it can be sent when received.

The application for permission must be drafted and lodged at the Supreme Court by the Appeals Unit within 28 days of the refusal of permission by the Court of Appeal or Administrative Court. For the procedure, see Applications for Permission below.

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7. Permission is granted and a point of law is certified.

Although this happens rarely, the Court of Appeal may certify a question and grant permission to appeal to the Supreme Court. In this case no application for permission is needed and the case omits the first stage of proceedings in the Supreme Court.

Notice of Appeal together with 3 copies must be filed within 42 days of the date of the order or decision of the court below, except in extradition cases. The time limit for extradition appeals is 28 days. The appellant must also file a copy of the order which is being appealed and (if separate) a copy of the order granting permission to appeal. Before notice is filed at the Supreme Court, it must be served on each respondent and any intervener in the court below. The Appeals Unit, who will do this, must be notified as a matter of urgency.

Case papers must be sent to The Appeals Unit without delay. 

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Rules for the presentation of papers to the Supreme Court

The overriding objective of the Supreme Court Rules is to ensure that the court is accessible, fair and efficient. The Supreme Court has indicated that it does not wish to be unduly prescriptive about the presentation of papers, but those familiar with the previous practice will not be surprised by the requirements that replace the former rules.

The Registry replaces the Judicial Office as the administrative office of the Supreme Court. Papers are filed at the Registry and served on the other side.

Special Casework and Counter Terrorism Division will deal with the filing and service of papers in Supreme Court cases.

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Applications for Permission

An application for permission is:

  • Made on form SC001, typed on A4 paper, double-sided and securely bound on the left. Where the prosecution appeals, the case title will be Director of Public Prosecutions (on behalf of Her Majesty) v (the defendant);
  • Noted with neutral citations and a head note style summary for every law report cited in the courts below;
  • Filed (lodged) at the Supreme Court Registry with 3 copies, a copy of the order appealed from and, if separate, a copy of the order of the court below certifying the point of law and refusing permission to appeal to the Supreme Court. No fee is payable for a criminal matter, but there is a fee on a civil case, e.g. confiscation. As at September 2009, £800 is payable in civil cases on filing the application for permission and the same again on filing the notice of intention to proceed with the appeal, once permission has been granted;
  • Served on the defendants solicitors in person, by fax, by DX or by first class post. The Supreme Court Rules do not mention fax, and refer to service by DX as to be only with the consent of the person served, but the Supreme Court guidance makes it clear that, unless the solicitors have stated, for example, We do not accept service by fax on their letterhead, service may be by fax or DX if the requisite numbers are listed on their notepaper, which will be taken as consent to service by this method;
  • Endorsed and signed on the back by the The Appeals Unit caseworker to show service on defence.

Within one week of filing the application, 4 copies of each of the following must also be lodged in accordance with rule 14(2):

  • the application;
  • the order appealed from;
  • if separate, the order of the court below certifying the point of law and refusing permission to appeal to the Supreme Court;
  • the official transcript of the judgment of the court below (or the court report);
  • the final order(s) of all other courts below;
  • the official transcript of the final judgment(s) of all other courts below;
  • any unreported judgment cited in the application or judgment of a court below;
  • a chronology of the proceedings (this is a new requirement).

If these papers are not lodged within 8 weeks of the filing of the application and no good reason is given for the delay the Registrar may refer the papers to the Appeal Panel without them, dismiss the application or give any other directions that appear appropriate.

Applications for permission to appeal to the Supreme Court are considered by an Appeal Panel consisting of at least 3 Justices and are generally decided on the papers without a hearing. The Panel will first decide if the application is admissible, that is, that the court has jurisdiction to entertain it. If so, the Panel will then:

  • refuse permission, or
  • give permission, or
  • give permission on terms, when the parties have the right to make representations on those terms within 14 days of the date of the proposal to give such permission, or
  • invite the parties to file written submissions as to the grant of permission, or
  • direct an oral hearing.

Respondents may submit written objections stating why permission to appeal should be refused: see CPS as the Respondent below.

The decision is communicated by a letter sent from the Registry to The Appeals Unit, usually to the caseworker in the Division. The period this may take is not fixed and can be many months later.

If permission is not granted there is no further action that can be taken.

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Notice of Appeal

If permission to appeal is granted, the appellant must within 14 days file notice of intention to proceed with the appeal, with 3 copies, and serve a copy on each respondent and any interveners in the court below. This is not a new document but is a resealed copy of the application for permission to appeal. The notice of appeal is on form SC001, typed on A4 paper, double-sided and securely bound on the left.

A further fee is payable for civil matters, including confiscation appeals.

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Reporting restrictions: Appeals concerning children

In any appeal concerning children both sides should consider whether the Supreme Court should make an order under section 39 of the Children and Young Persons Act 1933. The Registry should be informed if such an order was made in the court below. A request for such an order should be made, preferably by all parties to the appeal jointly, in writing as soon as possible and no later than 14 days before the start of the hearing.

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Acknowledgement by the Respondent

Each respondent who intends to participate in the appeal must file a notice on form SC003 within 14 days after service of the notice of appeal on them. As usual, form SC003 must be produced on A4 paper, typed double-sided and securely bound on the left.

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Preparation for the Supreme Court Appeal

The Advocate for the hearing will be identified and selected by the Appeals Unit lawyer and caseworker allocated to the case. The Supreme Court expects the leading advocate to be an advocate who has been accustomed to presenting cases at this level. The Advocate who dealt with the case at the court below will be considered for inclusion in the prosecution team of 2, or sometimes 3, Advocates. The Appeals Unit caseworker should notify the Supreme Court of the names of Advocate briefed as soon as possible.

The Appeals Unit will notify the CPS Area of dates of conferences and hearings to enable attendance, as well as sending the CPS Area copies of any documentation for information and consultation.

The hearing will normally be listed a number of months later. If the case is important or has urgent ECHR issues, it can be fast tracked and listed more quickly. This fast tracking will be considered and dealt with by The Appeals Unit, in liaison with Strategy and Policy Division

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Necessary Documents

The Advocate will be instructed to draft a statement of facts and issues, setting out the agreed facts in the appeal and the issues. It is submitted to the other side for agreement and any areas of disagreement must be made clear.

An appendix will also be prepared. This will contain those materials necessary to understand the legal issues in the case. If these are voluminous, the appendix can be in several parts but the most essential documents should be in Part 1 and only Part 1 will be considered part of what the Supreme Court refers to as the core bundle. The appendix must contain the following documents in the following order:

  • the order appealed against;
  • the court report or official transcript of the judgment of the court below;
  • the final orders of all the courts below;
  • the official transcripts of the final judgments of all the courts below;
  • where they are necessary to understand the legal issues, relevant documents filed in the court below;
  • where necessary as above, relevant documents and correspondence.

All documents to go before the Justices must be reproduced or printed in an easily legible font, on A4 paper printed on both sides, labelled and indexed and, unless this is very difficult, properly bound. Whereas applications and forms can be bound with tape and ribbon, documents filed at this stage will generally be comb-bound.

These documents must be filed within 112 days after the filing of the notice of intention to proceed with the appeal or notice of appeal, as the case may be. Applications for extensions of time are to be made on form SC002. The Supreme Court seems to discourage such applications by pointing out that the time given is generous and so good reasons for an extension must be given.

The Crown Prosecutor or Advocate will need to check the statement of facts and issues - noting the Lord Chancellor's comments in R v Mandair ILR 20 May 1994:

"I would add that it is absolutely necessary that, when an appeal under the provisions of the Criminal Appeal Act 1968 is being prepared for hearing in this House, the Statement of Facts and Issues should state plainly whether any grounds of Appeal have been undetermined by the Court of Appeal, and in their written cases the parties should include submissions on these and how this House should dispose of them."

The appellant will file at the Registry:

  • the original and 7 copies of the statement of facts and issues;
  • 8 copies of part 1 of the appendix; and
  • 10 copies of part 2, 3 etc of the appendix.

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Setting Down

Within 7 days after filing the statement and appendices, each party must notify the Registrar that the appeal is ready for listing and provide a time estimate of the number of hours their advocate requires for their oral submissions. The maximum time usually allowed for an appeal is 2 days.

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Skeleton Arguments

No later than 5 weeks before the proposed date of hearing the appellant must file their skeleton argument, referred to as their case, together with 7 copies. No later than 3 weeks before the hearing the respondent and any interveners must file their cases. The cases must also be served on the other side. Usually no more than 8 copies need to be exchanged but, because the appellant has to file core bundles, respondents need to give the appellant another 10 copies.

The cases must be securely bound on the left, be double-sided with numbered paragraphs and be signed by the Advocate.

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Core Volumes and Authorities Volumes

The appellant must file 10 bound core volumes, in addition to the papers already filed, no later than 14 days before the date fixed for hearing. These must contain in the following order:

  • form SC001 (the notice of appeal or resealed application for permission);
  • notice of cross-appeal, if any;
  • statement of facts and issues;
  • appellants and respondents cases, cross-referenced to the appendix and authorities volume(s);
  • case of the Advocate to the court and interveners, if any;
  • part 1 of the appendix;
  • index to the authorities volume.

The core volumes should:

  • be bound, preferably with comb-binding, and red covers;
  • include tabs;
  • have a list of contents on the front cover;
  • indicate with a label printed in Roman numerals in landscape the volume number and short title of the appeal.

A joint set of authorities should also be produced. Ten copies must be filed at the same time as the core volumes. Their form and content is prescribed by the Supreme Court and is similar to, though not identical with, the form for the core volumes.

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The Hearing

The Appeals Unit will attend the hearing and inform the local CPS office in advance so they, the victims/family and police can attend, if they wish. This will be at their own expense. Hearings may be filmed and broadcast on television.

Areas, in liaison with their local WCU, should give SCCTD the details of victims and witnesses who propose to attend the hearing. They can then be given any necessary assistance by the SCCTD caseworker at Court. SCCTDs WCU will not become involved in assisting them.

When informing victims and witnesses of the hearing date, Areas should advise any person wishing to attend to let the Area or local WCU know. If this is not possible, they may wish to make themselves known to the SCCTD caseworker in the Supreme Court.

The Supreme Court is designed to function as a court rather than as part of Parliament so no special arrangements need to be made before attending a hearing.

The judgment is usually delivered on a separate day after the hearing (It will probably be helpful to point this out to a victim who wishes to attend). This can be weeks or months later.

The day of the judgment will be notified to the parties a week in advance and copies of the judgment will be provided to them. At this stage, the judgment may only be disclosed to the Advocate, solicitors and in-house legal advisers and no further. It can be disclosed to clients 24 hours before the judgment is given.

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Piggy-back Appeals

If one of a group of convicted defendants appeals alone and is successful, the others may also decide to appeal later, on the basis that they will almost certainly be successful. If the CPS is appealing the first, successful appeal to the Supreme Court it will also want to appeal the subsequent decisions.

If the first case is still awaiting permission, the second and subsequent cases will have to go through all the steps outlined above in order to be brought before the Supreme Court. There is no way to join appeals without this happening. Further, The Appeals Unit will only know the subsequent appeals have been successful if the Area lets it know.

If permission has been granted in the first case, it would be sensible to advise the Court of Appeal of this and invite it not only to certify the same question(s) but also to grant immediate permission to appeal. This will enable the subsequent case to catch up with the first.

If permission has been refused in the first case, there is likely to be little point in pursuing the subsequent one to the Supreme Court.

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CPS as the Respondent

As soon as an Area knows that the Court of Appeal has granted the defence's application to certify a point of law or has granted immediate permission to appeal, they should immediately notify the Appeals Unit and send the case papers, informing the appellant that the case will be taken over by the Appeals Unit.

The Appeals Unit will enter an appearance. It is possible to file written objections stating why permission to appeal should be refused and this should be done within 14 days of service on CPS (not The Appeals Unit) of the application for permission to appeal. Should the Supreme Court invite objections, these should also be filed within 14 days.

Such objections will be drafted by the advocate for the Appeals Unit, served on the appellant and lodged with the Registry. It is however relatively rare for CPS to lodge objections on its own initiative; generally they will only be lodged if the Supreme Court requests us to do so. In that case, The Appeals Unit will instruct the Advocate to draft the objections and will file them with the Registry.

If permission is granted, The Appeals Unit will enter an appearance for a second time after receiving the Notice of Appeal. The procedure will then be as outlined above.

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CPS as an Interested Party

Any person may make written submissions to the Supreme Court in support of an application for permission to appeal. Before being filed, these must be served on the appellant, all respondents and any interveners in the court below. An application to intervene as an interested party must be drafted as soon as the application for permission to appeal is served on the CPS.

If permission is granted the intervener must apply to the Supreme Court for permission to intervene in the proceedings, although no permission is required for an intervention by the Crown under section 5 Human Rights Act 1998.

If permission to intervene is granted, then the procedure is as above.

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Useful links

Further guidance, including practice directions and forms, may be downloaded from the Supreme Court website:

http://www.supremecourt.gov.uk/procedures/index.html

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