THE HIGH COURT’S JURISDICTION IN RELATION TO ... THE LAW COMMISSION THE HIGH COURT’S JURISDICTION IN RELATION TO CRIMINAL PROCEEDINGS CONTENTS Paragraph Page PART 1:

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  • The Law CommissionConsultation Paper No 184

    THE HIGH COURTS JURISDICTION INRELATION TO CRIMINAL PROCEEDINGS

    A Consultation Paper

  • The Law Commission was set up by section 1 of the Law Commissions Act 1965 forthe purpose of promoting the reform of the law.

    The Law Commissioners are:The Honourable Mr Justice Etherton, ChairmanMr Stuart BridgeMr David HertzellProfessor Jeremy HorderKenneth Parker QC

    Professor Martin Partington CBE is Special Consultant to the Law Commissionresponsible for housing law reform.

    The Chief Executive of the Law Commission is Steve Humphreys and its offices are atConquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

    This consultation paper, completed on 1 October 2007, is circulated for comment andcriticism only. It does not represent the final views of the Law Commission.

    The Law Commission would be grateful for comments on its proposals before 22February 2008. Comments may be sent either

    By post to:David HughesLaw CommissionConquest House37-38 John StreetTheobalds RoadLondonWC1N 2BQTel: 020-7453-1212Fax: 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 ondisk, 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 ofInformation 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 confidentialresponse should contact the Commission before sending the response. We willdisregard 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

  • iii

    THE LAW COMMISSION

    THE HIGH COURTS JURISDICTION IN RELATIONTO CRIMINAL PROCEEDINGS

    CONTENTS

    Paragraph PagePART 1: INTRODUCTION 1.1 1Terms of reference 1.1 1Understanding the terms of reference 1.2 1

    The origins, nature of and limitations upon the High Courtsjurisdictions over the Crown Court

    1.2 1

    Inferior and superior courts 1.2 1Inferior and superior courts prior to 1971 1.4 2Challenging decisions of inferior courts and superior courtsprior to 1971

    1.7 2

    Judicial Review 1.7 2Quarter Sessions 1.7 2Assizes 1.8 2

    Case Stated 1.9 3Quarter Sessions 1.9 3Assizes 1.13 3

    The establishment of the Crown Court in place of Assizesand Quarter Sessions

    1.14 4

    The jurisdictions exercised by the Crown Court in relation tocriminal proceedings

    1.15 4

    Aspects of the Crown Courts first instancejurisdiction

    1.17 5

    The High Courts jurisdiction in relation to criminalproceedings in the Crown Court

    1.22 6

    The High Courts jurisdiction in relation to decisionsof the Crown Court when exercising its appellateand sentencing jurisdictions

    1.22 6

    The High Courts jurisdiction in relation to decisionsof the Crown Court exercising its first instancejurisdiction

    1.23 6

    Relating to trial on indictment 1.26 7The problems with the current law 1.32 9

    The meaning of relating to trial on indictment 1.32 9Lack of clarity and simplicity 1.33 9

    Different avenues for challenging decisions of theCrown Court depending on which jurisdiction theCrown Court was exercising

    1.33 9

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    Paragraph Page

    Different avenues for challenging decisions of theCrown Court exercising its appellate or committal forsentence jurisdictions

    1.37 10

    Different avenues for appealing decisions ofmagistrates courts

    1.40 11

    Recommendations made by Lord Justice Auld 1.42 11An overview of our main provisional proposals 1.45 12

    The role of the High Court 1.45 12Appeal by case stated and judicial review 1.46 12Challenging convictions and sentences 1.47 12Challenging acquittals 1.49 12

    Acquittals that result from terminating rulings 1.50 12Acquittals that do not result from terminating rulings 1.51 13

    Challenging determinations, judgments, orders and rulingsother than convictions, sentences and acquittals

    1.52 13

    The means of challenge 1.52 13Leave to appeal 1.53 13Grounds for appealing 1.54 13Circumstances in which the new statutory appealmay be invoked

    1.55 14

    Decisions made by the Crown Court in casestried on indictment

    1.55 14

    Decisions made after the jury hasbeen discharged

    1.56 14

    Decisions made after the jury issworn and after it has beendischarged

    1.58 14

    Decisions made before the jury issworn

    1.62 15

    Alternative proposals 1.66 16Decisions made by the Crown Court whenexercising its appellate jurisdiction

    1.67 16

    Decisions made by the Crown Courtafter it has determined the appeal

    1.68 16

    Decisions made by the Crown Courtbefore it has determined the appeal

    1.70 17

    Magistrates courts and the Court Martial 1.72 17Structure of paper 1.73 18

    PART 2: CHALLENGING DECISIONS MADE IN CRIMINALPROCEEDINGS THE CURRENT LAW

    2.1 19

    Criminal proceedings in England and Wales 2.1 19Trials of defendants aged 18 and over 2.1 19Trials of defendants aged under 18 2.5 20

  • v

    Paragraph PageChallenging decisions of magistrates courts 2.10 21

    Appealing against or seeking review of a conviction and/orsentence

    2.10 21

    Appeal to the Crown Court against conviction and/orsentence

    2.11 21

    Appeal to the High Court by case stated 2.12 22Powers of High Court on appeal by casestated

    2.14 22

    Application to the High Court for judicial review 2.15 23Which avenue to choose? 2.17 23

    Appeal to the Crown Court or appeal by casestated to the High Court?

    2.18 23

    Appeal to the Crown Court or apply to theHigh Court for judicial review?

    2.21 24

    Appeal by case stated to the High Court orapply to the High Court for judicial review?

    2.24 25

    Appealing against or seeking review of an acquittal 2.25 25Appeal to the High Court by case stated 2.26 26Application to the High Court for judicial review 2.28 27

    Appealing against or seeking review of ancillary ordersmade or not made following conviction or acquittal

    2.29 27

    Appealing against or seeking review of interlocutorydecisions

    2.30 27

    Challenging decisions accepting or decliningjurisdiction

    2.33 28

    Challenging decisions made in committal proceedings 2.36 29Appeal by case stated or apply for judicial review? 2.41 30Appeal from the High Court to the House of Lords 2.43 31

    Challenging decisions of the Crown Court 2.44 32Challenging decisions of the Crown Court when exercisingits appellate jurisdiction

    2.47 32

    Challenging final decisions, including the making of(or the refusal to make) ancillary orders consequenton conviction or acquittal

    2.47 32

    Appeal by case stated 2.48 33Application for judicial review 2.50 33

    Appealing against or applying for review ofinterlocutory decisions

    2.52 33

    Appeal by case stated 2.52 33Applying for judicial review 2.53 34

    Challenging decisions of the Crown Court when exercisingits first instance jurisdiction

    2.54 34

    Appeal to the Court of Appeal 2.54 34Appealing against conviction and sentence 2.54 34

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    Appealing in cases where the defendantsfitness to plead is in issue

    2.56 34

    Defendant found fit to plead 2.57 34Defendant found unfit to plead 2.58 35

    Challenging an acquittal 2.61 35Retrials for serious offences 2.62 36Appeals against terminating rulings 2.63 36The powers of the Court of Appealhearing an appeal under section 58

    2.69 39

    Appeal against rulings made in preparatoryhearings

    2.70 39

    The power to order preparatoryhearings

    2.70 39

    What rulings can be made as part ofa preparatory hearing?

    2.75 41

    Which rulings made at preparatoryhearings are amenable to appeal?

    2.76 41

    The meaning of any question of lawrelating to the case

    2.86 44

    Appealing against evidentiary rulings relatingto prosecution evidence

    2.90 45

    The power of the Court of Appeal toreverse an evidentiary ruling

    2.92 46

    Miscellaneous statutory appeals 2.93 46Referring an acquittal 2.94 47Referring an unduly lenient sentence 2.95 47

    Appealing to or seeking review by the High Court 2.96 47The interpretation of relating to trial onindictment

    2.100 48

    The policy consideration underlyingthe interpretation of relating to trialon indictment

    2.101 49

    Decisions that have been held to be onesrelating to trial on indictment

    2.102 49

    Decisions that have been held to be onesnot relating to trial on indictment

    2.103 50

    Bail 2.104 51Decisions and orders following afinding of unfitness to plead

    2.113 53

    Orders made without jurisdiction 2.120 55A third party application for adeclaration

    2.126 57

    Challenging decisions made by the Crown Court whenexercising its committal for sentence jurisdiction

    2.129 58

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    Paragraph Page

    Flowchart illustrating current structure of appeals in criminal courts 59

    PART 3: THE EUROPEAN CONVENTION ON HUMAN RIGHTSAND FUNDAMENTAL FREEDOMS

    3.1 60

    The purpose of this Part 3.1 60Compliance with Articles 6 and 13 ECHR 3.3 60

    The scheme for protection of Convention rights in UK law 3.3 60What is required by article 6 ECHR in the context of CrownCourt determinations of Convention rights?

    3.9 62

    Does section 29 operate in compliance with article 6(1)ECHR?

    3.13 63

    Defendants 3.13 63Third parties 3.14 64

    The policy implications of the section 29 exclusion 3.17 65

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