| CRIME — Court of Appeal (Criminal Division) — Practice — References by Criminal Cases Review Commission following change in the law — Whether Commission to take into account practice of Court of Appeal (Criminal Division) of refusing to extend time in which to apply for leave to appeal in such cases
R v Cottrell; R v Fletcher [2007] EWCA Crim 2016
CA: Sir Igor Judge P, Goldring and Beatson JJ: 31 July 2007
The Criminal Cases Review Commission should not normally refer a conviction where the Court of Appeal, Criminal Division, would not normally extend time in which to renew an application for leave to appeal against conviction on the basis of a change in the law.
The Court of Appeal, Criminal Division, so held when refusing an application by Steven Cottrell for an extension of time in which to apply for leave to appeal against his conviction on 8 August 2003 at Lewes Crown Court before Judge Scott-Gall and a jury of two counts of indecent assault on a female aged under 16 years, and when allowing an appeal by Joseph Fletcher against his conviction on 24 October 2003 in the Crown Court at Derby, before Judge Burgess and a jury, of seven counts of indecent assault on two females aged under 16 years.
SIR IGOR JUDGE P, in the reserved judgment of the court, said that the defendants had been convicted on the basis of the law as it was before it was changed by the House of Lords in R v J [2005] 1 AC 562. The defendants asserted that their convictions were based on an erroneous understanding of the criminal law and that they had therefore suffered an injustice. Change of law appeals created quite different problems from those which arose in the normal case referred by the Criminal Cases Review Commission where an individual was wrongly convicted on the basis of the law which applied at the date of conviction. The principle was that the defendant seeking leave to appeal out of time was generally expected to point to something more than the mere fact that the criminal law had been changed, corrected or developed in order to establish that a substantial injustice had occurred. However, in R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2007] EWHC 3064 (Admin); [2007] 1 Cr App R 395 the Divisional Court reached the clear conclusion that the independent Commission was under no obligation to have regard to, still less to implement, a practice of the Court of Appeal (Criminal Division) which operated at a stage with which the Commission was not concerned. If it were intended that the Commission should ignore any aspect of the law and practice of the Court of Appeal, in particular, for present purposes, in relation to “change of law cases”, its authority to do so would have been expressly provided in the legislative structure which created it. The legislation was clearly not intended to have that effect. It would be disturbing and productive of public disquiet if the Commission were to adopt an approach to change of law cases which conflicted with the approach of the court. In change of law cases, it was not open to the Commission lawfully to apply a policy based on the conclusion of the Divisional Court that it was “under no obligation to have regard to, still less to implement” the practice of the court. The practice must be addressed and evaluated in every case. In the final analysis, however, provided the Commission addressed and gave proper weight to the law and practice of the court, it had to exercise its own independent and fact-specific judgment whether to refer a case.
|
Appearances: Michael Aspinall (Registrar of Criminal Appeals) for Cottrell; Sally Howes QC (Crown Prosecution Service, Lewes) for the Crown; Joel Bennathan QC (Registrar of Criminal Appeals) for Fletcher; Michael Auty (Crown Prosecution Service, Derby) for the Crown;
David Walbank (Director of Revenue and Customs Prosecutions) for the Director of Revenue and Customs Prosecutions; Graham Zellick, Chairman of the Criminal Cases Review Commission, as an interested party, in person.
|
