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Appeals to the Supreme Court

updated 9 January 2019|Legal Guidance

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.

Advice, Assistance and Handling of Appeals

The Appeals and Review Unit (ARU) is responsible for the handling of all cases which reach the Supreme Court. The Memorandum of Understanding for handling Supreme Court Cases (see separate documentation tab) sets out the various roles and responsibilities of the CPS Areas /Casework divisions and the ARU.

Guidance on the procedure to follow is also available from the Appeals Review Unit (ARU) pages on the Casework Hub. The Unit can be contacted for general purposes by email at: SCD.appeals@cps.gov.uk. All completed submissions should be sent to SupremeCourt.Appeals@cps.gov.uk.

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.

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.

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.

Appeals from 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.

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.

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.

Appeals from 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.

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.

and

  1. Permission 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.

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);
  • in contempt of court cases where the decision of the court below was not a decision on appeal.

Human Rights

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

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.

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.

Step 1: Initial Consideration

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.

Step 2: unsuccessful prosecution in the Court of Appeal

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

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.

Step 3: bail position of 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.

Step 4: Oral Applications

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 three 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.

Step 5: Time 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.

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 five 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.

In accordance with the guidance in the Memorandum of Understanding for Handling Supreme Court Cases, the Crown Prosecutor or advocate must immediately notify the ARU: for contact details see Advice, Assistance and Handling of Appeals above.

The case papers to be submitted are:

  1. Indictment;
  2. 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);
  3. The Order which is being appealed, if separate;
  4. Official transcript of the judgment of the Court of Appeal;
  5. Order of the court of first instance; Crown Court Certificate of conviction or Magistrates' Court Memorandum of conviction;
  6. Official transcript of the judgment of the court of first instance or of the case stated;
  7. A chronology of the proceedings so far (perhaps from Custody Time Limit applications);
  8. 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.

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.

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 the UKSC Practice Directions set out the various requirements in place.

The Appeals and Review Unit will deal with the filing and service of papers in Supreme Court cases.

Applications for Permission

The UKSC Practice Direction 3 sets out the form, procedure and time limits in making an application for permission.

  • Where the prosecution appeals, the case title will be Director of Public Prosecutions (on behalf of Her Majesty) v (the Defendant)
  • The fees payable at the various stages in the Supreme Court are set out in Annex 2 to the UKSC Practice Direction 7.

Applications for permission to appeal to the Supreme Court are considered by an Appeal Panel consisting of at least three 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 ARU, 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.

Notice of Appeal

If permission to appeal is granted, the appellant must within 14 days file notice of intention to proceed with the appeal. The UKSC Practice Direction 4 sets out the form, procedure and time limits in making an application for permission.

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 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.

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.

See Annex 1 to UKSC Practice Direction 7 for the relevant forms.

Preparation for the Supreme Court Appeal

The advocate for the hearing will be identified and selected by the ARU 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 two, or sometimes three, advocates. The ARU caseworker should notify the Supreme Court of the names of advocate briefed as soon as possible.

The ARU will notify the CPS Area of conference and hearing dates to enable attendance and will also send 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 ARU, in liaison with the ARU policy lead.

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.

The UKSC Practice Direction 5 sets out the documents required for the Appeal Hearing and the time limits involved.

The Crown Prosecutor or advocate will need to check the statement of facts and issues - noting the Lord Chancellors 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.

Fixing the hearing date

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.

Skeleton Arguments

The filing and exchanging of skeleton arguments by the Appellant and Respondent, referred to as their cases is dealt with in UKSC Practice Direction 6.

Core Volumes and Authorities Volumes

The appellant must file ten bound core volumes, in addition to the papers already filed, no later than 14 days before the dare fixed for hearing.

UKSC Practice Direction 6 lists the various documents that must be filed in each core volume, and the form in which the bundles should be presented.

The Hearing

The ARU 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 ARU the details of victims and witnesses who propose to attend the hearing. They can then be given any necessary assistance by the ARU caseworker at Court. ARU 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 ARU 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.

CPS as the Respondent

In accordance with the procedure set out in the Memorandum of Understanding for Handling Supreme Court Cases, the ARU will assume conduct of cases where the Court of Appeal certifies a point of law or has granted permission, and Areas should notify the ARU immediately.

The ARU may choose 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 ARU) 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 ARU 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 ARU will instruct the advocate to draft the objections and will file them with the Registry.

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

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.

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.

Extradition appeals to the Supreme Court

Where a person has been ordered to be extradited and appeals to the Supreme Court, and the Supreme Court either refuses permission or if permission is granted, dismisses the appeal (the decision is final when it is given) it is the responsibility of the ARU lawyer to notify both the Extradition Unit and the NCA (who have responsibility for extraditing the person) of that decision immediately.

The reason for this is because section 36 of the Extradition Act provides that a person must be extradited within 10 days of the decision becoming final. Failure to do so is very likely to lead to the extradition order being discharged see section 36(8).

The results of the Supreme Court hearing should be sent to both of the following email addresses:

manchester@nca.gov.uk

Further Guidance

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

https://www.supremecourt.uk/procedures/practice-directions.html

The Supreme Court Rules can be found at:

https://www.supremecourt.uk/procedures/rules-of-the-court.html

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