Quashing convictions for procedural irregularities

Criminal Law Review

Volumn , Issue NOV., 2007, Pages 835-848

  Spencer, J R ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

Appeals against conviction; Court of appeal; Due process; Procedural irregularity; Retrials

Indexed keywords

EID: 35948949827     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (104)

1. Office for Criminal Justice Reform, September 2006; available on the Home Office website at http://www. homeoffice.gov. uk/documentslcons-2006- quashing-convictions2?view=Binaiy.
2. Royal Commission on Criminal Procedure, Chairman Sir Cyril Philips, Report, Cmnd 8092 (1981).
3. Royal Commission on Criminal Justice, Chairman Lord Runciman, Report, Cm.2263 (1993).
4. J.R. Spencer, "Quashing Convictions, and Squashing the Court of Appeal" (2006) 170 J.P. 790;
5. Sally Ireland, "Defective Justice" (2006) 156 N.L.J. 1733;
6. Peter Ferguson, "Retrials and Tribulations" (2006) 156 N.L.J. 1582;
7. Nicola Padfield [2006] Archbold News, Issue 9, 9;
8. Kate Hanley, "Miscarriages of Justice: Appealing for Justice" (2007) (104) Law Society Gazette (February 1, 2007), 18;
9. Ian Dennis, "Convicting the Guilty: Outcomes, Process and the Court of Appeal" [2006] Crim. L.R. 955.
10. The Criminal Justice Committee of the Court of Appeal and the Rose Committee.
11. LIBERTYs response is available at http://www.liberty-human-rights.org. uk/pays/policy06/ quashmg-convictions.pdf.
12. JUSTICE'S response is at http://www.justice.org.uk/images/pdfs/ quashingconvictions.pdf.
13. Clauses 26-28.
14. A point that has been made very often in the past. In the context of civil appeals, Lord Woolf, in his Repon, Access to Justice, expressed the point by saying that appeals serve both a private and a public function (Final Report, p.153):
15. a formula that Sir Robin Auld adopted in his Review of the Criminal Courts of England and Wales, Report (October 2001), p.611.
16. And see J.R. Spencer, "Does our Present Criminal Appeal System Make Sense?" [2006] Crim. L.R. 677 at p.683.
17. ". . . a criminal conviction serves three functions: to make a public finding of the defendant's factual commission of the offence, to make a moral statement of the defendant's guilt and fitness for punishment, and to make a public expression of the continuing validity of the norms of the criminal law and the consequences of its breach. In order for the verdict to discharge these functions it must be factually accurate, morally authoritative, and founded itself on the rule of law." Ian Dennis, "Fair Trials and Safe Convictions" [2003] Current Legal Problems 211 at pp.235-236.
18. 1999 2 Cr. App. R. 143.
19. To be strictly accurate, in the form that it took from 1977 onwards; ground (a) originally read "that the verdict of the jury should be set aside . . ."; but to enable the CA to quash a conviction following a guilty plea the word "conviction" was substituted for "verdict of the jury" by s.44 of the Criminal Law Act 1977.
20. CAA 1907 s.4(2);
21. a rule replicated in CAA 1968 s.2(3).
22. 1916 1 K.B. 337;
23. 1916) 11 Cr. App. R. 293.
24. See http://www.richard.clark32.btinternet.co.uk/hangedl.html.
25. Hircock [1970] 1 Q.B. 67.
26. McHugh (1977) 64 Cr. App. R. 92;
27. for comments, see J.C. Smith [1977] Crim. L.R. 175
28. and Glanville Williams, Textbook of Criminal Law, 2nd edn (1983), p.740. In Ayres [1984] A.C. 447 die House of Lords reached a similar decision;
29. but the Court of Appeal has more recently refused to go along this route: see Graham, fn.41 below.
30. 1924 1 K.B. 602.
31. 1932) 23 Cr. App. R. 63.
32. The new Pt 14.2 of the Criminal Procedure Rules, which came into effect on April 2, are intended to put an end to the "rule against duplicity".
33. 1981) 73 Cr. App. R. 324.
34. Juries Act 1974 s.17(3): "The Crown Court shall not accept a verdict of guilty by virtue of subsection (1) above unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict."
35. 1982 A.C. 822;
36. noted [1983] C.L.J. 18.
37. In Crane v DPP [1921] 2 A.C. 299.
38. Turner [1970] 2 Q.B. 321.
39. Gee [1936] 2 K.B. 442.
40. Crane v DPP, fn.23 above.
41. Williams (1925) 19 Cr. App. R. 67.
42. Cronin (1940) 27 Cr. App. R. 179 (judge);
43. Kelly [1950] 2 K.B. 164 (juror).
44. Hancock (1931) 23 Cr. App. R. 16.
45. Murphy (1869) L.R. 2 P.C. 535.
46. See the classic article by Sir Robin Cooke, "Venire de novo" (1955) 71 L.Q.R. 100.
47. For an early example, see Dyson [1908] 2 K.B. 454;
48. for a later one, see Melvin [1953] 1 Q.B. 481.
49. Criminal Appeal Act 1964;
50. for the details of how this came about, see Spencer, "Criminal Law and Criminal Appeals-the Tail that Wags the Dog" [1982] Crim. L.R. 260 at p.266.
51. From the annual Judicial Statistics; surprisingly, the 2005 edition does not give the number of retrials in 2005, and at the time of writing (August 2007) the 2006 volume has not yet appeared.
52. Royal Commission on Criminal Justice, Cm.2263 (1993) (Chairman, Lord Runciman).
53. Chalkley and Jeffries [1998] Q.B. 848.
54. See J.C. Smith, "The Criminal Appeal Act 1995: (1) Appeals against Conviction" [1995] Crim. L.R. 920.
55. Mullen [1999] 2 Cr. App. R. 143.
56. Wang [2005] UKHL 9;
57. 2005 1 W.L.R. 661;
58. 2005 2 Cr. App. R. 8.
59. Early [2002] EWCA Crim 1904;
60. Patel [2001] EWCA Crim 2505;
61. Gell [2003] EWCA Crim 123;
62. Choudhery [2005] EWCA Crim 1788.
63. 1997 1 Cr. App. R. 302.
64. 1940) 27 Cr. App. R. 179. Under the law as it then was, the recorder of Borough Quarter Sessions, if unable to act, could nominate as deputy "a barrister of at least five years' standing". The recorder of Bury St Edmunds nominated someone who was not a barrister.
65. On this, see the Juries Act 1974 s.18.
66. e.g. Braden (1988) 87 Cr. App. R. 289;
67. cf. O'Reilly (reported together with Ashton and Draz [2006] EWCA Crim 794;
68. 2007 1 W.L.R. 181).
69. See CJA 1988 ss.40 and 41. This restriction is an odd one. Whilst it is obvious that the magistrates' courts should not be able to try indictable offences except where the law expressly authorises this, there seems to be no clear policy reason why the Crown Court should not have a general power to try any summary offence.
70. Or may mean; juries, unlike magistrates, cannot be made to "state a case", and so in the Crown Court is often impossible to tell for sure what legal rule was actually applied. In the Crown Court the "error of substantive law" often arises because the judge misdirected the jury on the law; and then the Court of Appeal is faced with having to decide whether on the evidence before them the jury would have convicted die defendant even if the direction on the law had been correct.
71. McHugh (1977) 64 Cr. App. R. 92;
72. see fn.41above.
73. 1997 1 Cr. App. R. 302.
74. Although as the Court of Appeal recently pointed out in K, S, R and X [2007] EWCA Crim 1888, there is an important difference between a case like Graham, where on the particulars stated in the indictment the appellant could not possibly have committed the offence charged, and cases where on the defective particulars stated in the indictment the defendant might or might not have committed the offence charged, depending on which facts were then established at the trial. In the second type of case, of which K, et al. was an example, the defendant's conviction is not to be quashed automatically, and could in principle be upheld if the evidence had established beyond doubt the legal ngredients of the offence.
75. See Spencer, fn.8 above, at p.691.
76. See, e.g. Grafton [1993] Q.B. 101,
77. and Lashley [2005] EWCA Crim 2016;
78. 2006 Crim. L.R. 82.
79. Hircock [1970] 1 Q.B. 67.
80. Gough [1993] A.C. 646;
81. 1993 2 W.L.R. 883.
82. For a practical example, see Spencer [1987] A.C. 128 at 143B.
83. 2004 UKHL 2;
84. 2004 1 A.C. 1118.
85. 1988 Crim. L.R. 543.
86. See, e.g. R. v Thames Magistrates'Court Ex p. Polemis [1974] 1 W.L.R. 1371.
87. 2006 1 A.C. 340;
88. and see the earlier Court of Appeal decision in Sekhon [2003] 1 W.L.R. 1655.
89. 2007 1 W.L.R. 181.
90. See James Richardson's comments [2006] Criminal Law Week, Pt 43, §6.
91. Smith [1999] 2 Cr. App. R. 238 (failure to stop the case);
92. Wang [2005] UKHL 9;
93. 2005 1 W.L.R. 661 (direction to convict).
94. Angel (1968) 52 Cr. App. R. 280.
95. Loosely andA-G's Reference (No.3 of 2000) [2001] UKHL 53;
96. 2001 1 W.L.R. 2060.
97. Patel [2001] EWCA Crim 2505;
98. Early [2002] EWCA Crim 1904;
99. GeIl [2003] EWCA Crim 123;
100. Choudhery [2005] EWCA Crim 1788.
101. R. (on the application of CPS) v Chorley Justices [2002] EWHC 2162;
102. noted [2007] CLJ. 27.
103. R. v Horseferry Road Justices Ex p. Bennett [1994] 1 A.C. 42.
104. See the Home Office Consultation Paper, The Law on Extradition: a Review (2001).