<<

. 27
( 34)



>>

The Hong Kong scheme is described at pp. 92“6 of the CJC™s report “ see
www.costsdebate.civiljusticecouncil.gov.uk.
417
Lord Carter™s Review of Legal Aid Procurement, Legal Aid: A market-based approach to reform,
July 2006, Annex 3.1. pp. 142“3. For a discussion see J. Robins, ˜Carter Breathes Life into
CLAF™, Litigation Funding, August 2006, pp. 10“11.
648 Costs and the funding of legal proceedings


(1995); S. Simkins, ˜An Ethical Choice? A Practical Reaction to the Death of Legal
Aid in Personal Injury and Medical Negligence Claims™, Journal of Personal Injury
Litigation, 1998, p. 128; C. Gra¬y, ˜Conditional Fees: Key to the Courthouse or the
Casino™, 1(1) Legal Ethics, 1998, p. 70; S. Yarrow and P. Abrams, ˜Conditional Fees:
The Challenge to Ethics™, 2(2) Legal Ethics, 1999, p. 192; R. O™Dair, ˜Legal Ethics and
Legal Aid: The Great Divorce?™, 52 Current Legal Problems, 1999, p. 419; The Ethics
of Conditional Fee Arrangements (Society for Advanced Legal Studies, 2001).
For writing about contingency fees in England see especially R.C.A. White, ˜Contingent
Fees: A Supplement to Legal Aid?™, 41 Modern Law Review, 1978, p. 286; T.
Swanson, ˜The Importance of Contingency Fee Agreements™, 11 Oxford Journal of
Legal Studies, 1991, p. 193; N. Rickman, ˜The Economics of Contingency Fees in
Personal Injury Litigation™, 10(1) Oxford Review of Economic Policy, 1994, p. 34; J.
Peysner, ˜What™s Wrong with Contingency Fees?™, 10(1) Nottingham Law Journal,
2001, p. 22; M. Zander, ˜If Conditional Fees, Why Not Contingency Fees?™, 152 New
Law Journal, 24 May 2002, p. 797.
For consideration of contingency fees in the USA see for instance H.M. Kritzer, ˜Seven
Dogged Myths Concerning Contingency Fees™, 80 Washington University Law
Quarterly, 2002, pp. 730“94. (Professor Kritzer has published a series of articles on
the subject accessible on his Website: www.polisci.wisc.edu/˜kritzer/research/
research.htm.) See also the Symposium on Contingency Fee Financing of Litigation
in America, 47 DePaul Law Review, 1998, pp. 227“477.


7. Legal expenses insurance (LEI)
Before the event (BTE) insurance against legal costs has been familiar for years,
notably in the context of house insurance and motoring, but in the past twenty
or so years the insurance industry has started to market policies covering a wider
range of legal problems. Most policies issued in the UK are ˜add-ons™ to existing
policies, usually of motor or home insurance policies. It has been estimated that
about seventeen million people have cover under such policies “ though they are
often unaware of the fact. The ˜add-on™ policies cost the customer around a mere
£15“20. Some of them also provide free, telephone legal advice. (Abbey Legal
Protection, for instance, announced in 1998 that they were employing eight
solicitors and four barristers to provide advice to their legal expenses insurance
clients seven days a week and twenty-four hours a day.418)
Typically such LEI policies cover lawyers™ fees, court costs, costs of witnesses
and experts “ and costs of the opponent if the insured is ordered to pay them.
Normally there is a maximum liability per claim which may be £25,000 or
£50,000. Many of the policies cover all the members of the family.
The policy normally provides that only cases that have a reasonable prospect
of success will be supported, but the insured has a right to choose his
own lawyer.419 Many insurers, however, reserve the right to reject the client™s

418
Law Society™s Gazette, 5 March 1998, p. 4.
419
This is required by the Insurance Companies (Legal Expenses Insurance) Regulations 1990, SI
1990/1159 implementing EC Directive 87/34 which came into force on 1 July 1990.
649 Legal expenses insurance (LEI)


nomination. It is not clear whether this is lawful under the EC Directive. Most
insurers also retain the right to withdraw cover if a reasonable settlement is
unlikely to be obtained or if the insured refuses a reasonable o¬er. (In these
respects insurance is much like having legal aid.)
Most policies exclude matrimonial disputes. Many also exclude building dis-
putes, defamation, tax matters and defence of criminal prosecutions involving
violence.
It was said in 1991 that the Association of British Insurers estimated that total
premiums were then worth about £40“50 million pa, which represented a sig-
ni¬cant increase of some 100 per cent on the previous two or three years. This
divided between 50 per cent motor related, 20 per cent general family policies
and 30 per cent commercial.
A survey carried out in 1991 for the Law Society and the Consumers™
Association suggested that 7 per cent of the population had some form of legal
expenses insurance proper.420
The signi¬cance of BTE policies was boosted by the Court of Appeal™s deci-
sion in Sarwar v. Alam.421 S had been injured while a passenger in A™s car. S sued
A. His solicitor took the case on a CFA. The case was settled save for the costs.
In CPR Part 8 costs-only proceedings the trial judge held that S™s solicitors were
not entitled to recover the ATE premium on the CFA because he was covered by
A™s BTE policy which covered both damages and costs. The fact that S was not
aware that he was covered was irrelevant. On appeal, the Court of Appeal noted
that two-¬fths of all motor policies carried such cover and that normally it
extended to passengers. Allowing the appeal, the court said there were in this
case reasons that justi¬ed the solicitors advising that a separate ATE policy be
taken out so that the ATE premium was recoverable. But it said, obiter, that in
motor accident cases it was desirable that solicitors should ask clients to bring
to their ¬rst interview any relevant motor insurance, household insurance or
other stand-alone BTE insurance policy whether belonging to the client or a
spouse or partner living in the same house as the client. If BTE cover was avail-
able, the claim was modest and there were no features of the cover that made it
inappropriate. The solicitors should refer the case to the BTE insurer without
further ado.
In Samonini v. London General Transport Services422 the Court of Appeal went
a step further by holding that a CFA would be unenforceable if the solicitor

420
See Legal Expenses Insurance in the UK (Law Society, January 1991) summarised in Law
Society™s Gazette, 6 February 1991, p. 3 and Solicitors™ Journal, 7 June 1991, p. 608. See also the
Which? survey, April 1991, pp. 223“9. For a broad assessment including international
comparisons see two papers in A. Zuckerman and R. Cranston (eds.), Reforming Civil
Procedure “ Essays on Access to Justice (Clarendon Press, 1995): N. Rickman and A. Gray, ˜The
Role of Legal Expenses Insurance in Securing Access to the Market for Legal Services™,
pp. 305“25 and V. Prais, ˜Legal Expenses Insurance™, pp. 431“6.
421
[2001] EWCA Civ 1401, [2001] 4 All ER 541.
422
[2005] EWHC 90001 (Costs) (19 January 2005); New Law Journal, 11 March 2005, p. 377; 1
July 2005, p. 1017.
650 Costs and the funding of legal proceedings


failed to investigate the existence of a BTE policy “ even when none actually
existed!
Commenting on Sarwar, Professor John Peysner suggested that it could have
profound e¬ects. Over the previous two or three years, as a matter of deliberate
policy, liability insurers and legal expenses insurers had created joint ventures
to bolt on legal expenses cover at modest or no extra charge to house and motor
insurance policies. The hope was that they could be used to defeat the recover-
ability of costly ATE insurance premiums and success fees in CFAs. Solicitors on
the panels of legal expenses insurers charged modest rates without success fees.
By replacing the client™s own lawyer with the insurer™s panel lawyer, cheap
lawyers would replace expensive ones:
The implication is that the market for this type of work will alter its pro¬le from
provision by a range of independent solicitors buying after-the-event premiums
on the open market . . . to a relatively small number of panel solicitors (possi-
bly no more than 200 ¬rms in the whole country) who will corner the market
for modest claims. Their work will be controlled by legal expenses insurers who
are closely linked to the insurers for the defendant . . . A scheme where access to
legal help is concentrated in a few hands, in the absence of an e¬ective regula-
tor, is a matter of serious concern.423
In Germany LEI already plays a major role as may be seen from the following:424
• An estimated 44 per cent of all households are covered by LEI.
• LEI companies fund some 3.6 million cases per year.
• LEI companies pay lawyers more than 1.5 billion euros per year “ which rep-
resents on average a quarter of fees earned by lawyers.
The Lord Chancellor™s March 1998 consultation paper (Access to Justice with
Conditional Fees) said that the Government was keen to encourage the use of
legal expenses insurance more generally, both BTE and ATE insurance. It
wanted to do what it reasonably could to assist the legal expenses insurance
industry and would welcome views on how it could facilitate the development
of such insurance whether through changes in the law or otherwise (para. 4 13,
p. 30). But it is easier to pose the question than to ¬nd an answer.
In August 2005 the Civil Justice Council in its paper Improved Access to
Justice “ Funding Options and Proportionate Costs also backed LEI as one of the
ways of improving access to justice. It rehearsed the various advantages of LEI.
It avoided the uncertainties of CFAs and ¬nding lawyers to act. As an add-on
policy it was extremely inexpensive and there was no means test limit. Its range

423
J. Peysner, ˜Turning into Trouble™, 10(2) Nottingham Law Journal, 2001, pp. 64 and 66“7. See
to similar e¬ect D. Lock. ˜Funding Faces Tough Future™, 16 Litigation Funding, 2001, p. 6.
424
M. Killian and F. Regan, ˜Legal Expenses Insurance and Legal Aid “ Two Sides of the Same
Coin? The Experience from Germany and Sweden™, 11 International Journal of the legal
profession, 2004, p. 233 at 238. See also M. Killian, ˜Alternatives to Public Provision: the Role
of Legal Expenses Insurance in Broadening Access to Justice: the German Experience™, Journal
of Law and Society, 2003, p. 31.
651 Pro bono work done by the profession


included areas where costs recovery was not available such as employment
matters and small claims. It thought that ˜encouragement should be given to the
further expansion and public awareness of BTE™. But it did not have any prac-
tical suggestions as to how this might be done.
One aspect of the system that is not widely known is that solicitors routinely
pay insurance companies referral fees of several hundreds of pounds in order to
be able to handle these cases.425


8. Pro bono work done by the profession
It has always been the case that lawyers have done work pro bono “ i.e. free of
charge, but in recent years both sides of the profession have made e¬orts to
institutionalise the concept of pro bono work.
At the Bar the way was led by young members of the profession, who in 1972
set up the Free Representation Unit (FRU) to represent clients free of charge in
tribunal cases. FRU has some 270 volunteer representatives. It does not deal
with the public directly but takes cases that are referred by referral agencies such
as Citizens™ Advice Bureaux. In 2005“06, it represented a total of 864 clients
mainly in employment, social security and immigration cases.
In August 1996, on the initiative of Mr (as he then was) Peter Goldsmith QC,
former chairman of the Bar, the Bar Pro Bono Unit was launched as a charity to
provide free legal advice and representation in deserving cases where legal aid
is not available and the applicant cannot a¬ord legal assistance. Advice and rep-
resentation is provided by barristers who have volunteered their services. Each
volunteer agrees to donate a minimum of three days a year. In its ¬rst eight years
over 1,800 barristers (including 240 QCs) volunteered their services and some
2,500 individuals were assisted.426
In 2000 the Bar launched ˜Bar in the Community™ which provides barristers
willing to serve on the Management Committee of voluntary sector organisa-
tions. Over 500 barristers have volunteered. (See www.barprobono.org.uk.)
Equivalent institutional pro bono activity by the solicitors™ branch started in
1992427 with the decision by twenty-four City ¬rms together with some barris-
ters™ chambers to provide assistance to Citizens™ Advice Bureaux with free advice
on debt, housing and employment matters. In August 1993 ten major City
¬rms said they would do pro bono work for Liberty.428 In March 1995 it was

425
For critical comment see J. Robins, ˜School for Scandal™, Litigation Funding, June 2006, pp. 2“3.
426
Lord Goldsmith, ˜A Decade of Achievement™, Counsel, September 2006, pp. 20“1.
427
The suggestion that the English profession should follow the example of the American in
undertaking pro bono work was ¬rst made by the writer several decades ago: M. Zander, ˜Pro
Bono Publico™, Law Society™s Gazette, 27 September 1972. For discussion of the somewhat
belated adoption of this suggestion see A. Boon and R. Alley, ˜Moral Agendas? Pro Bono
Publico in Large Law Firms in the United Kingdom™, 60 Modern Law Review, 1997,
pp. 630“54 and A. Boon and A. Whyte, ˜Charity and Beating Begins at Home: the Aetiology of
the New Culture of Pro Bono Publico™, 2 Legal Ethics, 1999, p. 167.
428
Solicitors™ Journal, 27 August 1993.
652 Costs and the funding of legal proceedings


announced that over forty law ¬rms in di¬erent parts of the country had
pledged to provide at least £5,000 worth of free advice annually to community
projects aimed at job creation, inner city regeneration and environmental
improvements.429
The Law Society™s Pro Bono Working Party which reported in May 1994 was
not prepared to recommend that solicitors be obliged to take part in pro bono
work.430 But in November 1996 a meeting organised by solicitor Andrew
Phillips (later Lord Phillips of Sudbury) with the backing of the Law Society and
the charity Business in the Community established the Solicitors™ Pro Bono
Group to boost the amount of such work done by the solicitors™ branch.431
The Group started work in September 1997.432 In March 1998 it launched a
national membership drive with the backing, inter alia, of the Lord Chief Justice.
Take-up at that time was not remarkable. There were some 160 members ranging
from substantial ¬rms to trainee solicitors. Five years later, in Spring 2003, the
number of members had only crept up to 220, of which 189 were ¬rms.
However, by 2006 pro bono work by solicitors was on a much more substan-
tial footing. Several of the larger ¬rms have full-time pro bono administrators.
The Lawyer, published fortnightly, has a column in each issue highlighting some
new pro bono development. From this it appears that a more generous and
more systematic approach to pro bono work had ¬nally begun to emerge among
some leading solicitors™ ¬rms. (In 2005, for instance, Allen & Overy spear-
headed a scheme for large law ¬rms to donate interest earned on client accounts
to the charity Legal Support Trust. It was anticipated that over three years some
£200,000 would be donated.)
In January 2006 the Solicitors™ Pro Bono Group renamed itself Law Works “
see www.lawworks.org.uk. Law Works had some ¬fty clinics nationally operat-
ing each week providing an estimated 28,000 pieces of advice annually.
In 2002 Lord Goldsmith (then as Attorney General) established a new pro
bono committee comprising the Government™s law o¬cers, the main pro bono
organisations, the Bar Council and the Law Society (www.probonouk.net).433
Each year since 2002 there has been an annual pro bono week to promote the
concept. See the Website for details of the range of events. (In 2002 there were
eleven events. In June 2006 there were over ¬fty.434)
In the United States, law students have been engaged in real-life pro bono
work on a major scale for decades.435 In the UK this is a recent development and,

429
The Lawyer, 15 March 1995, p. 1.
430
See E. Gilvarry, ˜The Pro Bono Push™, Law Society™s Gazette, 25 May 1994, p. 4.
431
Start up funding for the Solicitors™ Pro Bono Group was provided by Allen & Overy, Cli¬ord
Chance, Clyde & Co, Dibb Lupton Alsop, Fresh¬elds, Hammond Suddards, Herbert Smith,
Linklaters, Lovell White Durrant, Norton Rose and Slaughter & May.
432
See Law Society™s Gazette, 17 September 1997, p. 12.
433
J. Robins, ˜Social conscience™, The Lawyer, 9 June 2003, p. 18.
434
For an overview of the pro bono scene see Law Society™s Gazette, 1 June 2006, pp. 16“17.
435
Described over 30 years ago by the writer: ˜Clinical Legal Education™, 123 New Law Journal, 22
February 1973, pp. 181“83. In 2006 the Harvard Law School reported that the sta¬ for clinical
653 Pro bono work done by the profession


as yet, on a modest scale. A survey of 95 law schools published in October 2006
showed that over half (53 per cent) were involved in some form of pro bono
activity and others said they intended to become involved. Some ran clinics,
some o¬ered only advice, some o¬ered representation, some worked on inno-
cence projects investigating alleged miscarriage of justice cases, some involved
placements with other organisations such as Citizens™ Advice Bureaux or the
Free Representation Unit. Financial support from the respective institutions for
pro bono activities averaged £22,000.436

programmes consisted of 6 faculty members, 25 instructors, 11 lecturers on law and 8 clinical
fellows. Student enrolment had risen from 300 students in 2001-02 to 576 students. The
number of students doing clinical work in the Human Rights ¬eld was over 100. In the
academic year 2006-07, new clinics were o¬ered in Child Advocacy, Death Penalty,
Environmental Law, Intellectual Property, Internet, Mediation and Negotiation. (Harvard Law
436
Today), September 2006. For details of the survey see www.lawworks.org.uk.
Chapter 7

Appeals




An appeal system is necessary to perform a variety of functions. One is to provide
an opportunity for the disappointed litigant to test the validity of the decision at
¬rst instance. A second is to allow the court ˜to correct an error, unfairness or
wrong exercise of discretion which has led to an unjust result™.1 A third purpose
of the appeal system is to preserve some measure of uniformity in the decision-
making of lower courts. The doctrine of precedent is an important aide in this
process. Lower courts are encouraged and in some circumstances are required to
follow the indications of the higher courts on matters of law and practice, the
assessment of damages and even fact-¬nding.2 A fourth function of the appeal
court is to keep the law abreast of changing circumstances. A ¬fth reason is to
promote public con¬dence in the administration of justice.3
In the earliest days of the system the appeal process was exceedingly limited.
In civil cases, procedure was by writ of error and the basis of the appeal was that
there was some error appearing on the face of the record. Since only certain
things appeared on the record there were many issues on which no appeal was
possible. Later the courts allowed each party to move a Bill of Exceptions, in
which the trial judge was asked to note that a particular point had been rejected
by the judge and this was then treated as part of the record for the purpose of
an appeal. This helped somewhat, but it was still limited in scope and required
the point to be seen and taken at the trial itself. Moreover, a further problem was
that if the appeal was successful the court had no power to substitute its own
decision for that of the court below. It could only order a fresh trial.
Appeals on questions of fact were even more di¬cult. Originally, when
cases were heard by juries and the jury was supposed to decide cases of its own
knowledge a wrong verdict was practically a matter for the disciplining of the

1
Bowman, Review of the Court of Appeal (Civil Division), September 1997, p. 25. The Bowman
Review “ see below “ said that the mere fact that there was an error does not mean that there
should be a successful appeal. The important point is to establish ˜whether what has happened
means that a judgment or order should not be allowed to stand™ (ibid).
2
The operation of the precedent system is considered in the writer™s The Law-Making Process
(6th edn, Cambridge University Press, 2004).
3
For an exploration of the nature, functions and limitations of appeals in the context of recent
reforms see R. Nobles and D. Schi¬, ˜The Right to Appeal and Workable Systems of Justice™, 65
Modern Law Review, 2002, pp. 676“701.
655 The structure of appeal courts


jury. A writ of attaint could be brought to try the truth of the jury™s verdict and,
if the attaint jury thought the ¬rst jury was mistaken, the ¬rst jury was liable to
punishment. It was only in the seventeenth century that juries were no longer
liable to be punished for their verdicts and that the common law courts were
prepared to order a new trial on the ground that a jury™s decision had been
against the weight of the evidence.
Juries in civil cases are now virtually unknown so the question normally is
whether the appeal court is prepared to interfere with a decision rendered by the
trial judge. As will be seen, the appeal court has the power to take a di¬erent
view of the facts from that of the court below “ though it is generally reluctant
to do so “ but in other respects, the appellate court has extensive powers not
only to order a retrial but to substitute its own decision.
In criminal cases the situation was even more remarkable. There was no
appeal from conviction at all until well into the nineteenth century. At some
point the judges started informally to refer a question of law to other judges
before they summed up to the jury or before sentence was executed. In 1848 this
informal arrangement was regularised with the establishment of the Court for
Crown Cases Reserved, but it was still available only on reference from the judge
“ though the procedure was extended also to quarter sessions. In the last seventy
years of the nineteenth century Parliament considered the question of an appeal
in criminal cases no fewer than twenty-eight times, but it was only after an espe-
cially serious miscarriage of justice, the Adolf Beck case, that the Court of
Criminal Appeal was ¬nally established in 1907. Its powers include quashing a
conviction, ordering a retrial and reducing the sentence.


1. The structure of appeal courts

Civil cases
In the nineteenth century the appeal courts in civil cases were in a considerable
muddle. Appeals from the old Court of Common Pleas went to the Court of
King™s Bench. Appeals from the old Court of Exchequer went to the Court of
Exchequer Chamber. When the Court of King™s Bench began hearing cases at
¬rst instance in the sixteenth century, a second Court of Exchequer Chamber
was set up to hear appeals from that body. In 1830 the two courts of Exchequer
Chamber were replaced by a third. This court was established to hear appeals
from all three common law courts “ Queen™s Bench, Common Pleas and
Exchequer. The members of the court were drawn from the two from which the
appeal did not come. In addition there was the Court of Appeal in Chancery
which heard appeals from the Court of Chancery, not in the traditional way by
writ of error but by a rehearing. Appeals from the Court of Admiralty went to
the Privy Council and from 1833 to the Judicial Committee of the Privy
Council. Appeals from the Divorce Court established in 1857 went at ¬rst from
the single judge to the full court and from 1868 to the House of Lords.
656 Appeals


The Judicature Commissioners reported in 1869 and recommended a new
structure. They proposed that there should be one Supreme Court, comprising
a High Court and a Court of Appeal. The Court of Appeal should take appeals
from all the divisions of the High Court. This reform was achieved in the
Judicature Acts 1873“1875. Its constitution and the statutory framework are
now to be found in the Supreme Court Act 1981. In 1966 the Court of Criminal
Appeal became the Court of Appeal Criminal Division, so that from that date
there was a Civil Division and a Criminal Division of that court.
The Civil Division is presided over by the Master of the Rolls and sits in
several divisions “ almost always, though not invariably, in London. Lord
Justices of Appeal sit as the judges. The Court of Appeal normally sits with three
judges. However, the Supreme Court Act 1981 provided for two-judge courts to
hear appeals on interlocutory matters or any other matter prescribed by order
made by the Lord Chancellor and the Access to Justice Act 1999 stated that the
Court of Appeal is validly constituted if it consists of one or more judges.4 A
two-judge court is not uncommon even in cases signi¬cant enough to be
reported.5 For very important cases the Court of Appeal occasionally sits with
¬ve judges.
The Court of Appeal Civil Division sometimes sits with two Lord Justices
and one High Court judge and occasionally sits with one Lord Justice and two
High Court (puisne) judges. Retired Lord Justices also often sit. A two-judge
court may be composed of two Lord Justices or one Lord Justice and one
puisne.6
Until very recently the Court of Appeal Civil Division heard appeals from
both the High Court and the county court, but, as will be seen below, under the
post-Woolf reforms of the appellate system, since May 2000 most appeals from
the county court now go to the High Court. The basic concept introduced by
these reforms is that an appeal should go to the next level in the hierarchy and
that second appeals be severely restricted.7
Appeals from the civil jurisdiction of the magistrates™ courts go to the
Divisional Court of the Family Division, which consists of two or three judges
usually of the High Court. Appeals from the Divisional Court in a civil case lie
to the Court of Appeal.
Appeals from the Court of Appeal have hitherto gone to the House of Lords.
In modern times the House of Lords in its appellate judicial role has consisted
of judges speci¬cally appointed for the purpose as Lords of Appeal in Ordinary

4
Access to Justice Act 1999, s. 59 substituting a new s. 54(2) into the Supreme Court Act 1981.
5
In the 2001 law reports 10 per cent of decisions of the Court of Appeal Civil Division were
given by a two-judge court. (R. Munday, ˜Judicial Con¬gurations™, 61 Cambridge Law Journal,
2002, p. 612 at 655, n. 156.)
6
Munday™s article, n. 5 above, shows that in 2001 28 per cent of the court™s reported decisions
included at least one puisne judge.
7
For the Website of the Court of Appeal Civil Division see www.civilappeals.gov.uk. The
Website, inter alia, gives a guide as to the di¬erent routes of appeal, contains links to the most
recent judgments of the court and to relevant Civil Procedure Rules and practice directions.
657 The structure of appeal courts


(generally referred to as Law Lords), plus the Lord Chancellor8 and any former
Lord Chancellors.
The House of Lords usually sits with ¬ve judges but on occasion seven are
empanelled. The hearings are conducted in one of the committee rooms of the
Palace of Westminster, but judgment is given in the legislative chamber itself.
Nowadays the judgments (called ˜speeches™) are not read. The procedure con-
sists simply of the presiding judge putting the issue to the vote as if it were an
ordinary legislative matter. (˜My Lords, I beg to move that the Report of the
Appellate Committee be now considered™.) When this has been approved (˜the
Contents have it™), each Law Lord stands up in order of seniority and says merely
that he would allow or dismiss the appeal ˜for the reasons given in my printed
speech™.
In 2005 the House of Lords dealt with sixty-eight civil appeals (of which nine-
teen concerned human rights issues) and twelve criminal appeals.9
The judicial functions of the House of Lords are as old as Parliament itself.
By 1600 it enjoyed an undisputed role as a court of appeal. It heard cases by way
of writ of error from the Courts of Exchequer Chamber. Until 1844 lay peers
were able to participate in the judicial work and occasionally they did so. The
appellate jurisdiction of the House of Lords was threatened and almost abol-
ished in the court reforms of the 1873“5 era but in the end it was preserved in
the Appellate Jurisdiction Act 1876, which provided for salaried Law Lords.
Though nominally the ¬nal appeal remained in the hands of the hereditary
chamber, in reality it was transferred to a court of law under the control of a
professional judiciary.
In 2000 the Report of the Royal Commission on reform of the House of Lords
concluded: ˜There is no reason why the second chamber should not continue to
exercise the judicial functions of the present House of Lords™.10 It recommended
that the Law Lords should continue to be ex o¬cio members of the reformed
second chamber.
Creation of a Supreme Court On 14 July 2003 a Government consultation
paper set out proposals for establishing a new Supreme Court.11 This was a
highly controversial proposal but it was eventually passed into law.12 The

8
On 12 June 2003 the Prime Minister, Tony Blair, announced the abolition of the o¬ce of Lord
Chancellor. In the event the o¬ce of Lord Chancellor survived but shorn of the previous right
to sit judicially in the House of Lords, whilst that jurisdiction continues (see below.)
9
Judicial Statistics, 2005, Table 1.4, p. 14.
10
A House for the Future, Cm. 4534, 2000, pp. 92“3.
11
DCA, Constitutional Reform: A Supreme Court for the United Kingdom, consultation paper
11/03. For discussion see I.R. Scott, 22 Civil Justice Quarterly, 2003, pp. 318“23.
12
See for instance Lord Bingham of Cornhill, ˜A new Supreme Court for the United Kingdom™,
Constitution Unit UCL annual lecture, 2002 and ˜The Old Order Changeth™, 122 Law
Quarterly Review, 2006, pp. 211“23; Lord Steyn, ˜The Case for a Supreme Court™, 118 Law
Quarterly Review, 2002, p. 382; Lord Hope, ˜A Phoenix from the Ashes? Accommodating a
New Supreme Court™, 121 Law Quarterly Review, 2005, pp. 253“72; Lord Cooke, ˜The Law
Lords: An Endangered Heritage™, 119 Law Quarterly Review, 2003, pp. 49“67. See also Lord
Windlesham™s two-part article on the story of the Constitutional Reform Act 2005,
658 Appeals


Constitutional Reform Act 2005 replaces the appellate jurisdiction of the House
of Lords by a Supreme Court. The ¬rst justices of the Supreme Court will be the
then sitting Lords of Appeal in Ordinary.13 The Act provided, however, that the
establishment of the Supreme Court would not take place ˜unless the Lord
Chancellor is satis¬ed that the Supreme Court will at that time be provided with
accommodation in accordance with written plans that he has approved™
(s. 148(4)). The Lord Chancellor may approve such plans only if, having con-
sulted the current Lords of Appeal in Ordinary, he is satis¬ed that the accom-
modation ˜will be appropriate for the purposes of the court™ (s. 148(5)).
The Supreme Court is to be in the Middlesex Sessions building on
Westminster Square opposite the Houses of Parliament, which is being con-
verted (at an estimated cost of £30 million).14 The latest of¬cial forecast as to
when the building will be ready is October 2009.15

Radical reform of civil appeals following Bowman
The civil appeal system has recently undergone drastic reform “ described by
Lord Brooke as ˜the most signi¬cant changes in the arrangements for appeals in
civil proceedings in this country for 125 years™.16 Previously, litigants had exten-
sive rights of appeal. In the case of a ¬nal judgment there was generally the right
to appeal to the Court of Appeal; in the case of an interlocutory decision by the
Master or District judge there was generally the possibility of two appeals “ ¬rst
to the judge and then on to the Court of Appeal. Appeals from a District judge
or Master to a judge were full re-hearings. Appeals to the Court of Appeal were
more restricted in their nature.
In his Final Report Access to Justice (1996) Lord Woolf recommended that
leave to appeal should be required for all interlocutory appeals, that some
appeals should lie to lower courts than the Court of Appeal, that all appeals
should be of the ˜limited Court of Appeal rehearing type™ and that there should
be greater uniformity in the procedure for appeal.
Instead of moving ahead with these recommendations, the Lord Chancellor
announced in March 1996 that there would be a full separate review of the Civil
Footnote 12 (cont.)
Public Law, 2005, pp. 806“23 and 2006, p. 35; and I.R. Scott, 22 Civil Justice Quarterly, 2003,
pp. 318“23. For consideration of the functions of the House of Lords and the Judicial
Committee of the Privy Council see A. Le Sueur and R. Cornes, What do the Top Courts do?,
Constitution Unit, June 2000.
13
Including any female Lord of Appeal in Ordinary. In 2006 Baroness Hale was both the ¬rst
and so far the only woman to have been appointed.
14
Planning permission for the refurbishment was given on 7 September 2006. The actual work
was scheduled to begin in April 2007.
15
The work itself was costed at £30 million. The cost of moving the old courts into new
premises would be another £20 million. (There is every reason to suppose that these would
prove to be considerable underestimates.) The costs of running the new Supreme Court
would be of the order of £8“10 million a year compared with £3“4 million in the House of
Lords. For a drawing of what the new Supreme Court would look like see Law Society™s
Gazette, 14 September 2006, p. 4.
16
Tanfern Ltd v. Cameron MacDonald (Practice Note) [2000] 1 WLR 131 [50].
659 The structure of appeal courts


Division of the Court of Appeal under the chairmanship of Sir Je¬rey Bowman,
former senior partner of Price Waterhouse. The terms of reference were to
inquire into the court™s rules, procedures and working methods, its jurisdiction
and the legal and administrative support system. The ¬ve other members of the
review team included Lord Woolf, who at the time was still Master of the Rolls.
(He became Lord Chief Justice in 2000.)
The Bowman report was published in September 1997.17 (Due to the complex
nature of routes of appeal in family matters, Bowman recommended that a spe-
cialist committee should examine this area. The Family Appeal Review Group,
chaired by Lord Justice Thorpe, published its recommendations in July 1998.)
The Bowman report said that the Court of Appeal was being asked to con-
sider appeals that were not of su¬cient weight or complexity to require two or
three of the country™s most senior judges and which had already been through
one or more levels of appeal.18 The same considerations of justice, expedition
and moderation of costs should apply to appeals as to ¬rst instance proceed-
ings. An appeal should no longer be seen as an automatic further stage in a case.
A dissatis¬ed litigant™s right should be not to appeal but to have his request to
appeal considered. The requirement of permission to appeal should be the
norm. Also appeals should be dealt with in ways proportionate to the grounds
of complaint and the subject matter of the dispute. More than one level of
appeal could normally only be justi¬ed if there was an important point of prin-
ciple or practice at stake.
The report made 146 recommendations. Many were implemented by the
Access to Justice Act 1999 (AJA 1999) and CPR Part 52 which came into force
from 2 May 2000. (The new scheme was described in detail in the judgment of
the Court of Appeal delivered by Lord Justice Brooke in Tanfern (n. 16 above).)
The same system was applied to small claims cases as from October 2000.
AJA 1999 provides that where an appeal is taken to a county court or the High
Court, no further appeal can be taken to the Court of Appeal unless the Court
of Appeal considers that ˜(a) the appeal would raise an important point of prin-
ciple or practice, or (b) there is some other compelling reason for the Court of
Appeal to hear it™ (s. 55(1)).

17
Note 1 above. For a lengthy review see J. Jacob, ˜The Bowman Review of the Court of Appeal™,
61 Modern Law Review, 1998, pp. 390“400. For an assessment of the impact of the Bowman
reforms see two studies by J. Plotniko¬ and R. Woolfson, Evaluation of the Impact of the
Reforms in the Court of Appeal (Civil Division) (DCA Research Study No. 5, 2003) and
Evaluation of Appellate Work in the High Court and the County Courts (DCA Research Study
No. 7, 2005). The ¬rst found that there had been improvement in the processing of the court™s
caseload. Waiting times and pending caseloads had reduced substantially and the length of
hearings had not increased. The extension of the requirement for permission to appeal had
proved e¬ective at ¬ltering out many unmeritorious appeals without the need for a full appeal
hearing, but costs had not reduced. The second report canvassed a great range of issues.
18
Thus a decision by a District judge in a non-family case in the county court could be appealed
to a Circuit judge and then to the Court of Appeal. In High Court cases an appeal lay against
an interlocutory decision by a Master or District judge to a High Court judge and then to the
Court of Appeal.
660 Appeals


AJA 1999, s. 56 gives the Lord Chancellor the power by statutory instrument
to prescribe alternative routes for the destination of appeals. This was done
by the Access to Justice Act 1999 (Destination of Appeals) Order 2000, SI
2000/1071 (Destination Order). (For details again see the Court of Appeal™s
decision in Tanfern (above).)
The Destination Order provides that appeals which previously would have
gone to the Court of Appeal will now go to a lower court. The general principle
is that appeal lies to the next level of judge in the judicial hierarchy. Thus appeals
from Masters or District judges of the High Court lie to a High Court judge
(Article 2). Appeals from a District judge of the county court lie to a Circuit
judge (Article 3). Appeals from any other county court judge (i.e. a Circuit judge
or recorder) lie to a High Court judge (Article 3).
However, Article 4 of the Destination Order sets out two exceptions. Article
4(a) provides that the normal route of appeal does not apply where a ˜¬nal deci-
sion™19 is given in a multi-track case.20 An appeal lies instead direct to the Court
of Appeal.
Article 4(b) provides that where a ¬nal decision is made by a specialist juris-
diction, regardless of the level of the judge, appeal lies direct to the Court of
Appeal.
Article 5 provides that second appeals go to the Court of Appeal itself.
AJA 1999, s. 57 gives the Master of the Rolls the power to ˜call in™ any appeal
going to a lower court so that it can be heard instead by the Court of Appeal.
This power will enable the Court of Appeal to give a ruling on issues that are
causing serious di¬culties.
Running the o¬ce The Supreme Court Act 1981 created the position of
Registrar of Civil Appeals who took o¬ce in 1982. The Registrar was a judicial
o¬cer with limited judicial powers such as granting extensions of time in which
to appeal, leave to amend, ordering security for costs and resolving listing dis-
putes. He also had administrative responsibilities, including deciding ˜constitu-
tions™ (which judges sit in the up to eleven courts that may be sitting at any
time). Constitutions generally stay together for three or so weeks. He did not,
however, have line management responsibility for the Civil Appeal O¬ce which
was also set up in 1982. The Civil Appeal O¬ce processes all appeals and appli-
cations for leave to the Court of Appeal.
Bowman recommended that the Head of the Civil Appeals O¬ce should have
line management responsibility for the sta¬ and for the running of the o¬ce.
His judicial functions should normally be performed by two designated senior
legal o¬cers, though anyone dissatis¬ed with their decision should have the
right to refer it to a Lord Justice. Accepting this recommendation, AJA 1999,
s. 70 abolished the o¬ce of Registrar of Civil Appeals. His administrative

19
As to the meaning of ˜¬nal decision™ see Scribes West Ltd v. Relsa Anstalt [2004] EWCA Civ 965.
20
The exception does not apply to cases not on the multi-track “ Clark (Inspector of Taxes) v.
Perks [2001] 1 WLR 17 at [7] and [54].
661 The structure of appeal courts


functions were taken over by the Head of Civil Appeals. There is now an infor-
mative Website “ www.civilappeals.gov.uk “ which, amongst many other items,
includes an interactive guide to the appeal system.
Bowman said that the o¬ce should undertake much more management of a
case from beginning to end. (˜Lord Woolf laid great emphasis in his [Access to
Justice Report] on case management and the role of the judges in this process.
We believe that the principle of case management can be applied in the Court
of Appeal and that the Lords Justices have a very important role to play™.21)
However, much of the management should be done by sta¬ in the o¬ce rather
than the judges.
The full-time sta¬ increased from nineteen to seventy, including ten lawyers.
The main duties of the lawyers are to write brief legal abstracts of each case
onto the computer for the bene¬t of the judges. They also prepare summaries
of cases of litigants in person. A recent development has been the introduction
of some (currently ten) part-time ˜judicial assistants™ “ young, high-calibre
pupil barristers or trainee solicitors, who typically spend one term working
there.22
In April 1999 a ¬fty-four page Practice Note was published consolidating
with some amendments all the principal Practice Directions relating to pro-
ceedings in the Court of Appeal.23 See now the Practice Direction attached to
Part 52.24


Criminal cases
Appeals from the old quarter sessions and assize courts went to the Court of
Criminal Appeal. When the Court of Appeal Criminal Division was established
in 1966, they went to that court instead. Then in 1972 when the Crown Courts
replaced the quarter sessions and assize courts, appeals accordingly went from
the Crown Court to the Court of Appeal Criminal Division.
The Court of Appeal Criminal Division sits normally with three judges. The
presiding judge is either the Lord Chief Justice or a Lord Justice of Appeal. The
other judges can be Lord Justices, High Court judges or senior Circuit judges.
In fact it seems that nowadays it is quite rare for the court to consist of three
Lord Justices.25

21
Note 1 above at p. 75.
22
For a description of the work done by the judicial assistants in the Court of Appeal see
23
Counsel, June 1998, p. 22; June 2002, p. 18 and the Website. [1999] 2 All ER 490.
24
On practice directions generally see J.A. Jolowicz, ˜Practice Directions and Civil Procedure
Rules™, 59 Cambridge Law Journal, 2000, p. 53.
25
Munday™s article, n. 5 above at p. 656, showed that none of the forty-three cases reported in
the two volumes of the 2001 Criminal Appeal Reports had three Lord Justices. Indeed, in only
one of the forty-three cases were two Lord Justices sitting. In thirty-six of the cases the court
consisted of one Lord Justice and two puisne judges. In ¬ve cases it consisted of one Lord
Justice, one puisne judge and one Circuit judge and one case was heard by two judges, a
serving Lord Justice and a recently retired Lord Justice.
662 Appeals


Appeals from the Court of Appeal Criminal Division go, with leave, to the
House of Lords.
Appeals from decisions of the magistrates™ courts in criminal cases may go in
two alternative directions. There can be an appeal to the Crown Court, which
sits for this purpose with a judge and two or more magistrates but without a
jury. Alternatively appeals lie by way of case stated (see p. 677 below) from the
magistrates™ court to the Divisional Court of the Queen™s Bench Division sitting
with two or three High Court judges, though the Lord Chief Justice often pre-
sides in the Divisional Court.
Appeals from the appellate jurisdiction of the Crown Court go to the
Divisional Court of the Queen™s Bench Division on a point of law by way of case
stated. Appeals in criminal cases go direct from the Divisional Court to the
House of Lords.
Lord Justice Auld in his Review of the Criminal Courts recommended that
both appeals as of right to the Crown Court by way of rehearing and appeals to
the Divisional Court by way of case stated or for judicial review should be abol-
ished. Appeals from the magistrates™ court, he proposed, should be to a single
judge in the Crown Court and such an appeal should require leave. There would
be a possibility of a further appeal to the Court of Appeal which would exercise
the supervisory jurisdiction now exercised by the Divisional Court.26 However,
these recommendations were not accepted by the Government.27


The Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is primarily a Commonwealth
court. It is the ¬nal court of appeal for various countries of which the Queen is
Head of State and UK overseas territories. (For the complete list see the Judicial
Committee™s Website “ www.privy-council.org.uk “ Jurisdiction.)
The right of appeal from Australia was abolished in 1986, Singapore abol-
ished the appeal to the Judicial Committee in 1994 and New Zealand abolished
it as from 2004.28 The twelve independent countries in the Caribbean all had the
Judicial Committee as the ¬nal court of appeal. In February 2001 the Agreement
Establishing the Caribbean Court of Justice (CCJ) was rati¬ed. The objective
was that the CCJ would replace the Judicial Committee as the ¬nal court of
appeal. This has not happened yet. Four of the twelve countries (Antigua, the
Bahamas, St Kitts and St Vincent) refused to ratify the court™s appellate juris-
diction.29 Then in 2005 the Judicial Committee held that the legislation passed
26
Auld, Ch. 12, pp. 620“2.
27
Its response to the report attached to the 2002 White Paper Justice for All said: ˜We consider
that the existing arrangements work satisfactorily™ (p. 43).
28
For an account of the debates in the New Zealand Parliament see R. Cornes, ˜Appealing to
History: the New Zealand Supreme Court Debate™, 24 Legal Studies, 2004, pp. 210“27.
29
See D. O™Brien, ˜The Caribbean Court of Justice and Reading Down the Independence
Constitutions of the Commonwealth Caribbean: The Empire Strikes Back™, European Human
Rights Law Review, 2005, pp. 607“27.
663 The structure of appeal courts


in Jamaica to make the switch was procedurally ¬‚awed and therefore void. At
the time of writing only Barbados and Guyana had validly enacted the relevant
legislation.
The Judicial Committee was given a new (albeit, as it turned out, temporary)
role under the devolution Acts passed by the Blair Government in 1998.The
devolution legislation for Scotland, Wales and Northern Ireland made the
Judicial Committee of the Privy Council the ¬nal court of appeal on devolution
matters because it was felt inappropriate that the House of Lords, being a part
of the Westminster Parliament, should be the arbiter of devolution matters,
including decisions as to the competence of the devolved assemblies. Normally
the decisions of the Judicial Committee, though treated with great respect, are
not binding on the UK courts, but decisions on devolution matters are binding
on all courts in the United Kingdom “ though not on the Judicial Committee
itself.30
Under the three devolution Acts the Judicial Committee may take references
on devolution issues arising in the course of litigation; it may hear appeals
against determination of a devolution issue from the High Court, the Court of
Appeal, the Inner House of the Court of Session in Scotland or the Court of
Appeal in Northern Ireland.31 The House of Lords may refer devolution issues
to the Judicial Committee “ though each of the three Acts state that it may also
decide the matter itself if it ˜considers it more appropriate™.32
However, the Constitutional Reform Act 2005, s. 41 provides that devolution
appeals will go to the new Supreme Court when that court starts sitting. The
Government™s consultation paper on the setting up of the court33 stated that on
balance the Government believed that it would be right to transfer the jurisdic-
tion on devolution cases from the Judicial Committee to the new Supreme Court
with arrangements which enabled additional Scottish and Northern Ireland
judges to sit in such cases where that was appropriate: ˜The establishment of the
new court gives us the opportunity to restore a single apex to the UK™s judicial
system where all the constitutional issues can be considered™ (para. 20).
The Judicial Committee includes the present and retired Law Lords, past
Lord Chancellors and past and retired Lord Justices of Appeal. The composi-
tion of the Judicial Committee is by convention a matter for the Senior Law
Lord. The devolution Acts, however, contained provisions speci¬cally exclud-
ing Commonwealth judges from hearing devolution cases.34

30
See the Scotland Act 1998, s. 103; Government of Wales Act 1998, Sch. 8, para. 32; and the
Northern Ireland Act 1998, s. 82.
31
Scotland Act, ss. 32, 33, 98 and Sch. 6; Government of Wales Act 1998, s. 109 and Sch. 8;
Northern Ireland Act 1998, ss. 11, 79 and 82 and Sch. 10.
32
Scotland Act 1998, Sch. 6, para. 32; Government of Wales Act 1998, Sch. 8, para. 29; Northern
Ireland Act 1998, Sch. 10, para. 32. For a Practice Note on devolution in Wales see [1999] 3 All
ER 466.
33
Constitutional reform: a Supreme Court for the United Kingdom, 2003, consultation paper 11.
34
Scotland Act 1998, s. 103(2); Government of Wales Act 1998, Sch. 8, para. 33; Northern
Ireland Act 1998, s. 82(2).
664 Appeals


2. The appeal process

A right to appeal?
Civil cases
The position as regards right to appeal has been transformed by the reforms
¬‚owing from the Woolf and Bowman reports.
AJA 1999, s. 54 provides for rights of appeal to be exercised only with per-
mission as prescribed by rules of court. The Explanatory Notes to the Act stated
that, with few exceptions, rules would require permission to appeal to be
obtained in all appeals to the county courts, High Court or Civil Division of the
Court of Appeal. The exceptions were appeals against committal to prison,
against a refusal of habeas corpus and against secure accommodation orders
under the Children Act 1989.35 The rules are in CPR 52.3.
CPR 52.3(6) provides that permission to appeal will only be given where ˜(a)
the court considers that the appeal would have a real prospect of success; or (b)
there is some other compelling reason why the appeal should be heard™.
A refusal of permission must be reasoned to comply with Article 6 of the
ECHR.36 There is no appeal against a refusal.37 However, if the refusal of per-
mission to appeal is made on the papers, the would-be appellant is entitled to
have the matter reconsidered by the same court at an oral hearing.
CPR 52.13(2) provides that where the county court or High Court has
decided an appeal, the Court of Appeal will not give permission for a second
appeal unless it considers that the case raises an important point of principle or
practice or there is ˜some other compelling reason™. In Uphill v. BRB (Residuary)
Ltd38 the Court of Appeal considered the meaning of the phrase ˜some other
compelling reason™. The ¬rst requirement was that normally the prospects of
success be very high, but more was normally required. The criteria for a second
appeal were not the same as for a ¬rst appeal. Leave for a second appeal could,
for instance, be given where the judge on the ¬rst appeal made a decision that
was perverse or was plainly wrong. It could be given if it was inconsistent with
a decision of a higher court. Leave might also be given if the applicant had only
a real (as opposed to a very good) chance of an appeal where the ¬rst decision
was tainted with some procedural irregularity which rendered the ¬rst decision
unfair.
A commentator described the decision in Uphill as harsh: ˜No one expects a
right to appeal every decision. However, justice should not be simply about
35
CPR 52.3 sets out some of the exceptions. Other exceptions were dealt with by Lord Justice
Brooke in his judgment in Tanfern (n. 16 above) at [24]“[26].
36
Yams v. Plender [2001] 1 WLR 32 at [17].
37
Access to Justice Act 1999, s. 54(4). For a disturbing illustration of the e¬ect of this provision
see Gregory v. Turner [2003] EWCA Civ 183, [2003] 2 All ER 1114. The Court of Appeal
commiserated with the claimant that it did not have the power to allow an appeal in a case
where something had plainly gone wrong below.
38
[2005] EWCA Civ 60, [2005] 3 All ER 264.
665 The appeal process


saving the public purse and having empty lists in the Court of Appeal. A system
that prevents a party from appealing a decision that the court acknowledges to
be wrong is not one that can be said to be dealing with cases justly™.39
Less than six months after the decision in Uphill, a di¬erently constituted
Court of Appeal held that a more ¬‚exible approach was required in certain
cases.40 A distinction should be drawn between cases which had already received
judicial consideration twice before and those where that was not the case. But,
apart from that, the Court of Appeal said that the Court should be able to hear
an appeal where an important point of practice arose. In that case it arose
because two county court judges had made the same error in applying the law.
A second appeal was justi¬ed to correct ˜a worrying tendency in judges at that
level™.41
Another commentator pointed out that the court™s screening process is not
cost-free. A great deal of judicial time was taken in dealing with permission
applications. A better system might be that of the Employment Appeal Tribunal
where weak cases were listed for a preliminary hearing in the absence of the
other side. This was especially well adapted for eliminating weak litigant in
person appeals.42
In 2005 almost three-¬fths (58 per cent) of applications for permission to
appeal were refused by the Court of Appeal. Of the appeals heard, 38 per cent
were allowed, 46 per cent were dismissed, 14 per cent were disposed of by
consent and 2 per cent were disposed of in some other way.43
Appeals to the House of Lords require leave either of the Court of Appeal or
of the House of Lords itself. Such appeals are supposed always to be on points
of law of general public importance.44 No reasons were given for a refusal by the
House of Lords to give leave but this was changed in April 2003. The change was
prompted by a belief that it was required by European Community law, but, it
was stated, ˜so as not to discriminate between petitions which raise a question
of Community law and those which do not, the Appellate Committee will
brie¬‚y indicate their reasons for refusing any petition for leave to appeal™.45
In 2005 there were 255 petitions to the House of Lords requesting permission
to appeal that were disposed of, of which seventy-nine (31 per cent) were suc-
cessful.46 The Law Lords heard 102 appeals. There were eighty-nine judgments
during the year, of which 57 per cent were allowed and 43 per cent were dis-
missed.47

39
R. Preston-Jones, ˜An Uphill Struggle™, 155 New Law Journal, 8 April 2005, pp. 532“3.
40
James Cramp v. Hastings Borough Council; Rainbow Phillips v. London Borough of Camden
[2005] EWCA Civ 1005, [2005] 4 All ER 1014.
41
At [68]. For commentary see T. Jenns, ˜Is it all Downhill for Second Appeals?™, 25 Civil Justice
Quarterly, 2006, pp. 439“50.
42
A. Jack, ˜Permission to appeal, revisited™, New Law Journal, 10 June 2005, p. 910.
43
Judicial Statistics, 2005, Table 1.4.
44
For an exploration of this issue see L. Blom-Cooper and G. Drewry, Final Appeal (Clarendon
45
Press, 1972) pp. 117“51. 38th Report from the Appeal Committee, 3 April 2003.
46 47
Judicial Statistics, 2005, Table 1.3. Ibid, Table 1.4.
666 Appeals


Criminal cases
In criminal cases no leave is required for an appeal from the magistrates™ court “
whether by way of rehearing to the Crown Court or by way of case stated on a
point of law to the Divisional Court of the Queen™s Bench Division. Leave is,
however, required for an appeal from the Crown Court to the Court of Appeal
Criminal Division. The exception was for an appeal on a point of law only where
no leave was required until 1995 when the exception was abolished by the
Criminal Appeal Act 1995, s. 1.
Leave is also required for an appeal to the House of Lords, obtainable either
from the Court of Appeal (or the Divisional Court) or from the House of Lords
itself. In addition, in a criminal case, the Court of Appeal (or the Divisional
Court) must certify that the case raises a point of law of general public impor-
tance. To this extent it is harder to appeal in a criminal than in a civil case, since
there is no equivalent requirement in civil cases. The Runciman Royal Com-
mission recommended that the requirement of this certi¬cate be abolished,48
but this has not been implemented.
The House of Lords has no jurisdiction in criminal appeals from Scotland.49
The new Supreme Court likewise will have no jurisdiction in such cases.50
Each year the House of Lords hears many more civil than criminal appeals.
In 2005 it heard seventy-¬ve appeals from the Court of Appeal Civil Division as
against twelve from the Criminal Division.51


Appeals by the prosecution
The prosecution basically has had no right of appeal against an acquittal, but
there were two exceptions. One was in an appeal on a point of law by way of case
stated from the magistrates™ court to the Divisional Court. If the appeal suc-
ceeds, the case can be sent back to the magistrates with a direction to convict or
to reconsider the matter in the light of the Divisional Court™s ruling on the point
of law. But where the prosecution applies instead for an order of judicial review
to quash an acquittal for some breach of natural justice or lack of jurisdiction,
there is no power to do this unless the original trial can be held to have been a
total nullity.52
Until 1972 there was no right for the prosecution to appeal from acquittals in
the Crown Court. The Criminal Justice Act of that year gave the prosecution a

48
Runciman, p. 178, para. 79.
49
See C. Himsworth and A. Paterson, ˜A Supreme Court for the United Kingdom: Views from
the Northern Kingdom™, 24 Legal Studies, 2004, pp. 99“118.
50
Constitutional Reform Act 2005, s. 40(3) provides that an appeal from Scotland lies to the
Supreme Court ˜if an appeal lay from that court to the House of Lords at or immediately
51
before the commencement of this section™. Judicial Statistics, 2005, Table 1.4.
52
R v. Dorking Justices, ex p Harrington [1983] 3 All ER 29, applying R v. Middlesex Quarter
Sessions Chairman, ex p DPP [1952] 2 QB 758, in which the court held that nothing could be
done when the trial judge quite wrongly told the jury that it ˜was a complete waste of their
time to listen to the prosecution evidence™ and invited them to acquit, which they did.
667 The appeal process


limited right of appeal. Section 36 provided for an appeal on a point of law by
the Attorney General in a case tried on indictment where the defendant has
been acquitted. However, the acquitted defendant is not a¬ected by the outcome
of the appeal. If the Attorney General is successful it simply clari¬es the law.53
In A-G™s Reference (No 1 of 1975)54 the court said that the procedure should be
used exclusively ˜for short but important points which require a quick ruling of
this court before a potentially false decision of law has too wide a circulation in
the courts™.55
The next development was the Criminal Justice Act 1988, s. 36 of which gave
the Attorney General, with leave of the Court of Appeal, the right to refer cases
to the court on the grounds that the sentence is ˜unduly lenient™. This does have
an e¬ect on the disposition of the actual case.
In the years 2001“5 Lord Goldsmith, as Attorney General, referred 698 cases,
an average of 140 cases per year. The Court of Appeal agreed to reconsider 521 of
these (75 per cent). In 414 of the 521 (79 per cent) the sentence was increased.56
The Runciman Royal Commission recommended that where a person is con-
victed of conspiracy to pervert the course of justice by ˜jury nobbling™ in a case
which led to an acquittal, the prosecution should be entitled to restart the case
against the acquitted defendant.57 Section 54 of the Criminal Procedure and
Investigations Act 1996 gave the High Court the power to quash the conviction
if satis¬ed that the acquittal would not have occurred had it not been for the
interference with or intimidation of the jury.
The Royal Commission rejected the suggestion that the prosecution should
have a right to appeal against a perverse verdict or where a defendant was
acquitted (or convicted on a less serious charge) as a result of an error by a pros-
ecution witness. (˜We have every sympathy for the victims and families of
victims in such cases, especially where they have su¬ered bereavement or injury.
We believe, however, that the right answer is for the investigating and prosecut-
ing authorities to prepare their cases thoroughly™.58)
As was seen above, Lord Justice Auld proposed that there should be legisla-
tion to provide that juries may not give perverse acquittals “ which was not
accepted by the Government. He did not however go so far as to propose that
the prosecution should have a right to appeal against a perverse verdict.
Appeals against terminating rulings The Criminal Justice Act 2003, Part 9 gives
the prosecution the right to appeal against a ruling by a Crown Court judge that
there is no case to answer or any other ruling that terminates the trial made at

53
For a comment on the section see D.J. Stephens, ˜In Jeopardy™, Criminal Law Review, 1972,
p. 361 and J. Jaconelli, ˜Attorney General™s References “ a Problematic Device™, Criminal Law
54
Review, 1981, p. 543. [1975] 3 WLR 11 at 13.
55
See W.T. West, ˜Wrongful Acquittals™, 147 Justice of the Peace, 8 October 1983, p. 647.
56
The Guardian, 14 June 2006. The Solicitor General told the House of Commons in 2003 that
in the previous fourteen years, 845 cases had been referred to the Court of Appeal and 606 (72
per cent) had resulted in the sentence being increased. On average the Attorney General
referred just under half the cases that were sent to him. (House of Commons, Hansard, vol.
57 58
402, 24 March 2003, col. 23 WA.) Runciman, p. 177, para. 74. Ibid, para. 76.
668 Appeals


a pre-trial hearing or during the trial at any stage before the start of the judge™s
summing up.59 This includes not only rulings that are terminating in themselves
but also those that are so serious a blow to the prosecution that, in the absence
of a right of appeal, it would o¬er no, or no further, evidence.
The provisions were based on, but went considerably beyond, recommenda-
tions ¬rst proposed by the Law Commission.60 They had the support of Lord
Justice Auld.61
Leave to appeal must be obtained either from the judge or the Court of
Appeal. A ruling e¬ectively acquitting the defendant will not take e¬ect while
the prosecution decides whether to appeal and, if an appeal is pursued, until it
is concluded, but the prosecution has to give an undertaking that if the appeal
is unsuccessful, the defendant must be found not guilty. Defence costs are
payable by the prosecution.
Both the prosecution and the defence have the right to appeal to the House
of Lords on a point of law of general public importance.
The Criminal Justice Act 2003, Part 9 also gives the prosecution the right in
cases involving qualifying o¬ences as de¬ned in Sch. 4, Part 1 to appeal against
a ruling on evidence which signi¬cantly weakens the prosecution™s case. This
has however not yet been brought into force.

Abolition of the double jeopardy rule
It has for centuries been a generally accepted principle that a person should not
be put in peril of conviction twice for the same o¬ence. The principle is
expressed in the ancient common law doctrine of autrefois acquit, better known
as the rule against double jeopardy.
Largely stimulated by the Stephen Lawrence case, the question was raised
whether the rule against double jeopardy should be curtailed. In 1999 the
Macpherson Report on the Stephen Lawrence case recommended that the Court
of Appeal be given the power to permit prosecution appeals after acquittal where
˜fresh and viable™ evidence is presented.62 In June 2000 the Home A¬airs
Committee of the House of Commons recommended that the double jeopardy
rule should be relaxed where there was new evidence that made an acquittal
unsafe, where the o¬ence carried a life sentence and the Attorney General

59
The Law Commission said that appeals during the course of the trial ˜would be wholly
impracticable, would throw the system into chaos and would be contrary to long established
principle™. (Double Jeopardy and Prosecution Appeals, Law Com Report No. 267, 2001,
para. 7.38.) For concern about the likely resulting delays see H. Blaxland QC, ˜Prosecution
Appeals™, 18 Independent Lawyer, July“August 2004, p. 15.
60
Prosecution Appeals Against Judges™ Rulings, Law Com consultation paper 158, 2000; and ¬nal
report Double Jeopardy and Prosecution Appeals, Law Com Report No. 267, 2001. For critical
comment on the consultation paper see R. Pattenden, ˜Prosecution Appeals Against Judges™
Rulings™, Criminal Law Review, 2000, pp. 971“86. For a broadly approving assessment of the
provisions in the Act see I. Dennis, ˜Prosecution Appeals and Retrial for Serious O¬ences™,
61
Criminal Law Review, 2004, pp. 619“25. Auld, Ch. 12, pp. 634“5.
62
Report of an Inquiry into the Stephen Lawrence case by Lord Macpherson of Cluny, Cm. 4262,
1999, recommendation 38.
669 The appeal process


considered it to be in the public interest for the conviction to be quashed.63 In
March 2001 the Law Commission in its report Double Jeopardy and Prosecution
Appeals recommended that in murder cases64 the Court of Appeal should be
given power to set aside an acquittal where there was apparently reliable and
compelling new evidence of guilt and it was in the interests of justice to do so.
Lord Justice Auld in his report in October 2001 agreed with the Law
Commission™s recommendation but proposed that it should be extended to
˜other grave o¬ences punishable with life and/or long terms of imprisonment
as Parliament might specify™. (˜Why should an alleged violent rapist or robber,
who leaves his victim near dead . . . not be answerable to the law in the same
way as an alleged murderer?™65)
The Law Commission proposed that the personal consent of the DPP should
be required for an application to quash an acquittal. Auld agreed and urged that
the DPP™s consent should also be required for the reopening of an investigation
after an acquittal.
The White Paper Justice for All (July 2002) signalled that the Government
intended to implement these recommendations66 and they were included in the
Criminal Justice Bill 2002“3, Part 10. The provisions were extremely contro-
versial67 but they were passed and brought into force in April 2005.

The Criminal Justice Act 2003, ss. 75“97
• The provisions a¬ect a person who has been acquitted anywhere in the world,
except Scotland, of a qualifying o¬ence, as de¬ned in Sch. 5, Part 1.68 The
Schedule lists twenty-nine o¬ences all carrying a maximum sentence of life
imprisonment and which according to the Explanatory Notes accompanying
the Act ˜have a particularly serious impact either on the victim or on society
more generally™.
• The provisions are retrospective and therefore apply to acquittals that
occurred before the Act.69
• The prosecutor may apply to the Court of Appeal for an order quashing an
acquittal and permitting a retrial for a qualifying o¬ence.70

63
The Double Jeopardy Rule, 3rd Report of the 1999“2000 session, HC 190, paras. 21“4 and
39“41.
64
In its earlier consultation paper, at para. 5.29, it had proposed that the power should apply to
all cases in which the sentence would be likely to be at least three years™ imprisonment.
65 66
Auld, Ch. 12, para. 60, p. 633. Paragraphs 4“63“66.
67
For two articles written before the Bill was published see I. Dennis, ˜Rethinking Double
Jeopardy: Justice and Finality in the Criminal Process™, Criminal Law Review, 2000, pp. 933“51
and P. Roberts, ˜Justice for All? Two Bad Arguments [and Several Good Suggestions] for
Resisting Double Jeopardy Reform™, 6 International Journal of Evidence and Proof, 2002,
pp. 197“217. For an assessment after the Act was passed see I. Dennis, ˜Prosecution Appeals
and Retrial for Serious O¬ences™, Criminal Law Review, 2004, pp. 625“38. For the
parliamentary debates see especially House of Lords, Hansard, 17 July 2003.
68
Section 75(1), (4) and (5). Scotland is excluded because the Scottish devolved executive
69
decided not to adopt this modi¬cation of the double jeopardy rule. Section 75(6).
70
Section 76.
670 Appeals


• It requires the personal written consent of the DPP.71
• An application can only be made once.72
• The DPP must be satis¬ed that there is ˜new and compelling evidence™ that the
acquitted person is guilty of a qualifying o¬ence and that it is in the public
interest for the application to proceed.73
• The test whether the evidence is ˜new™ is merely that it was not adduced in the
trial leading to the acquittal.74
• Evidence is ˜compelling™ if it is reliable, substantial and if, ˜in the context of
the outstanding issues, it appears highly probative of the case against the
acquitted person™.75
• It is irrelevant whether the new evidence would have been admissible or in-
admissible.76
• To make the order for a new trial the Court of Appeal must be satis¬ed that
there is ˜new and compelling evidence™ (s. 78) and that such a trial is in the
interests of justice (s. 79).77
• The interests of justice test must be determined having regard in particular to
(1) whether existing circumstances make a fair trial unlikely; (2) the length of
time since the o¬ence was committed; (3) whether it is likely that the new evi-
dence would have been available at the time of the original proceedings but
for a failure by an o¬cer or prosecutor to act with due diligence; and (4)
whether an o¬cer or prosecutor has failed to act with due expedition since
the new evidence became available.78
• The person concerned is entitled to be present at the hearing of the applica-
tion.79
• The Court of Appeal can make an order restricting reporting of the case in
order to ensure that there can be a fair trial.80
• The retrial of an acquitted person must take place on an indictment preferred
by the direction of the Court of Appeal. The arraignment must be within two
months of the order for a retrial unless the court allows a longer period.81
• Re-opening an investigation after an acquittal requires the written consent of
the DPP. A reinvestigation for these purposes means arrest or questioning the
acquitted person, searching him or premises owned or occupied by him,
searching a vehicle owned by him, seizing anything in his possession or taking
his ¬ngerprints or a bodily sample from him. The DPP can only give his
consent if he is satis¬ed that there is su¬cient new evidence already or that
such new evidence is likely to come to light if the investigation goes ahead.82
• If urgent action is needed to prevent an investigation being substantially and
irrevocably prejudiced or to prevent death or serious injury, it is permitted
provided it is authorised by an o¬cer of the rank of superintendent or
above.83

71 72 73 74
Section 76(3). Section 76(5). Sections 76(4) and 78. Section 78(2).
75 76 77 78
Section 78(3). Section 78(5). Section 77. Section 79.
79 80 81 82 83
Section 80(5). Section 82. Section 84. Section 85. Section 86.
671 The appeal process


The ¬rst person to be convicted under the provisions was Billy Dunlop for the
murder in 1989 of twenty-two year old Julie Higgs. Her mother campaigned
over seventeen years for a change in the double jeopardy rule. Dunlop was tried
for the murder but twice the jury failed to agree and in 1991 he was formally
acquitted. Later, while in prison for assaulting a former girlfriend, he confessed
to a prison o¬cer that he had killed Julie Higgs. He was tried for perjury and
given a six year sentence. When the double jeopardy rule was changed,
Cleveland Police reopened the case. On 11 September 2006 at the Old Bailey
Dunlop pleaded guilty to the murder and on 6 October he was sentenced to life
imprisonment. (Dunlop [2006] EWCA Crim 1354, [2007] 1 All ER 593.)


Practice and procedure of appeals
An appeal was formerly said to be by way of rehearing, but with one exception
this did not mean what it appeared to mean. The exception was an appeal from
the magistrates™ court to the Crown Court where the case started (and still
starts) afresh with all the witnesses as if it had never been heard before. (Lord
Justice Auld recommended that this form of appeal should be abolished,84 but
the recommendation was not adopted by the Government.)
In all other cases the appeal court heard the appeal on the basis of the deci-
sion below. In other words, the appellant argued that something went wrong in
the court below and for that purpose he would normally have to show what did
happen “ by producing the judgment which he claimed was wrong in law or by
having a transcript of the whole or part of the proceedings below to show that,
for instance, the decision was against the weight of the evidence or that some
impropriety had occurred. Occasionally, but very rarely indeed, the Court of
Appeal was prepared to listen to witnesses, but only if they were new and then
only in exceptional circumstances. Otherwise, testimony was presented to the
appeal court via the written word through the transcript of the trial or a note of
the proceedings taken by the judge, the lawyers or the court clerk.
Under the former Rules of the Supreme Court, the Court of Appeal had ˜all
the authority and jurisdiction of the court or tribunal from which the appeal
was brought™ and the power ˜to give any order which ought to have been given
or made, and to make such further order as the case may require™.85 Its powers
meant that the Court of Appeal was indeed a court of appeal “ as opposed to
what in continental systems is called a court of cassation where the court basi-
cally has to reach its decision on the basis of the ¬ndings of fact of the court
below and may not even have the power to substitute its own decision so that it
can only quash the decision and send the case back for a new start.86

84
Auld, Ch. 12, p. 622.
85
Supreme Court Act 1981, s. 15(3); RSC Order 59, rr. 10(1) and (3).
86
That traditionally was the position in France though in modern times the Cour de Cassation
does have the power to substitute its own decision thus blurring the distinction between
appeal and cassation.
672 Appeals


Under the new rules for civil appeals that came into force in May 2000 (Part
52 of the CPR), there is still reference to re-hearing87 but this form of appeal is
now relegated to a secondary position by the new rule that, subject to two excep-
tions, ˜every appeal will be limited to a review of the decision of the lower
court™.88 The exceptions are where a Practice Direction makes di¬erent provi-
sions89 and, secondly, where ˜the court considers that in the circumstances of an
individual appeal it would be in the interests of justice to hold a re-hearing™.
The intention apparently was that ˜review™ is to be di¬erent from, and prob-
ably something more limited than, ˜rehearing™. The question is what is that
di¬erence and, in particular, does an appeal court, and especially the Court of
Appeal, retain the previous power to reach its own decision with regard to all,
or any aspect of, the case? An appeal court still has all the powers of the lower
court90 including the power to ˜a¬rm, set aside or vary any judgment or order
made or given by the lower court™,91 to receive oral evidence or evidence which
was not before the lower court if it so orders92 and to draw any inference of fact
which it considers justi¬ed on the evidence.93
In what way therefore does the new power of revision di¬er from the previous
power to rehear? It has been argued that ˜rehearing™ should now be con¬ned to the
rare case of a real rehearing of the entire case, whereas ˜revision™ should be used in
relation to all the other powers of the court.94 If this is correct, not much will have
changed. It seems more likely that the intention was to e¬ect a signi¬cant change
but mainly with regard to interlocutory appeals. In Tanfern Ltd (above) Lord
Justice Brooke, having set out the CPR provisions that as a general rule every
appeal will be limited to a review of the decision below (CPR 52.11(1)), went on:
This marks a signi¬cant change in practice, in relation to what used to be called
˜interlocutory™ appeals from District judges or Masters. Under the old practice,
the appeal to a judge was a rehearing in the fullest sense of the word, and the
judge exercised his/her discretion afresh, while giving appropriate weight to the
way the lower court had exercised its discretion in the matter. Under the new
practice, the decision of the lower court will attract much greater signi¬cance,
The appeal court™s duty is now limited to a review of that decision, and it may
only interfere in the quite limited circumstances set out in r. 52.11(3).95

87
As opposed to ˜rehearing™ in the former rules “ presumably a spelling change that was not
88
intended to have signi¬cance. CPR 52.11(1).
89
The most relevant provision of the Practice Direction is para. 9.1 which requires a hearing if
the appeal is from a minister, person or body who (1) did not hold a hearing to come to that
decision or (2) held a hearing but the procedure did not provide for consideration of
90 91
evidence. CPR 52 10(1). CPR 52.10(2)(a).
92
CPR 52.11(2). The rule now says that the court will not receive oral evidence or fresh evidence
unless it so orders; the previous rule (RSC Order 59, r. 10(2)) said it should not do so except
93
on special grounds. CPR 52.11(4).
94
J. A. Jolowicz, ˜The New Appeal: Re-hearing or Revision or What?™, 20 Civil Justice Quarterly,
2001, pp. 7“12.
95
Note 16 above at [31]. On the di¬erence between ˜review™ and ˜re-hearing™ see also
Assicurazioni Generali Spa v. Arab Insurance Group (BSC) [2002] EWCA Civ 1642, [2003] 1
WLR 577 per Lord Justices Clarke at [6] and Ward at [193].
673 The practice and procedure of appeals


There are several features of the appeal system which should be noted.

The procedure for civil appeals
Applying for leave
Where an application for leave to appeal reaches the Court of Appeal Civil
Division the way it was handled depended on whether it was prepared by a
lawyer or a litigant in person. If the application was prepared by a lawyer, it was
normally sent to a single Lord Justice who considered it on the papers, without
a hearing. If he refused leave, the applicant had the right to renew the applica-
tion to the full court where it was argued ex parte (in the absence of the other
side) before two other Lord Justices. If the application was presented by a liti-
gant in person, it could be dealt with in the same way or, alternatively, since lit-
igants in person are more likely to renew their applications, it could be heard
immediately in open court by two Lord Justices as a way of cutting out one stage.
The Bowman Committee proposed some changes. All applications for leave
should be considered initially by a single Lord Justice. He could then do one of
three things: (1) allow the application on the papers; (2) decide to hear the
application in open court either alone or with another Lord Justice; or (3) if
minded to refuse leave, to write to the applicant giving reasons but o¬ering to
hold an oral hearing. If the o¬er was not accepted within the time limit, the
application would be dismissed on the papers with no right of renewal. These
proposals were adopted.
In the year 2004“5 there were 917 cases in which the decision was made on
the papers alone. (In 35 per cent permission was refused.) There were 749 cases
in which the application was heard in open court. These are mostly applications
by unrepresented defendants. (In 79 per cent permission was refused.) There
were 391 cases in which there was a renewed application “ oral hearing after a
paper refusal. (In 68 per cent permission was refused.96)

The procedure for criminal appeals
Applying for leave
All appeals require leave, which is usually sought from the Court of Appeal.
Applications for leave are made to a single judge (normally a High Court judge)
who deals with the matter by considering the papers only. There is no hearing.
If he refuses leave, the applicant has the right to renew the application by asking
for leave from the full court of three judges. This is at an actual hearing in open
court, though usually neither the prosecution nor the applicant is present. It is
very rare for leave to be given by the full court. If leave is given, quite frequently
the hearing of the application is combined with the hearing of the appeal,
counsel having been warned in advance to prepare themselves for the argument
on the merits.

96
Master of the Rolls Review of the Legal Year 2004“5, Graph 6, p. 30 (www.civilappeals.
gov.uk).
674 Appeals


One unsatisfactory feature of the system is that if the defendant is legally
aided (most are)97 his lawyers™ duties cease after they have advised as to whether
there are grounds of appeal and, if so, have drafted them. The legal aid certi¬-
cate does not cover advice as to whether to renew an application once it has been
turned down by the single judge. Application for legal aid for the renewal
hearing can however be made to the Registrar.
The Runciman Royal Commission said this was a gap in the system which
should be closed by providing that the original legal aid cover also the question
of renewing the application after it has been turned down by the single judge.98
This recommendation was not implemented.
If leave to appeal is granted, the Registrar of Criminal Appeals prepares a
summary of the appellant™s case99 and assigns counsel, usually the same barrister
who appeared at the trial. The Registrar therefore has a dual function, as admin-
istrative o¬cer of the court and in something like the role of instructing solicitor.
The success rate on a renewal to the full court, not surprisingly, is statistically
much a¬ected by whether the appellant is represented.100

Time loss rules
The court can order that some of the time spent appealing does not count
toward the sentence, as a penalty for making a frivolous application. This threat
acts powerfully on the minds of prisoners. In 1966 the grounds for quashing a
conviction were altered and became more favourable to the appellant (see
p. 693 below). News of this resulted in a ¬‚ood of new applications for leave to
appeal, which were running at the rate of about 12,000 a year compared with
about 2,000 in 1963. This caused an announcement to be made in 1970 by the
Lord Chief Justice, Lord Parker, that in future the power to order that time does
not count if the application was thought to be frivolous would be used more
often.101 The announcement had an immediate and dramatic e¬ect. The
numbers of applications for leave went down by about half and remained at that
lower ¬gure of some 6,000 a year for several years.
Would-be appellants were reminded of the existence of the power in a further
Practice Note in 1980.102 The warning was in ¬erce and forbidding terms: ˜It

97
Currently around 95 per cent of defendants in the Crown Court have legal aid and an
98
unknown additional proportion are represented privately. Runciman, p. 167, para. 25.
99
The summary, which can run to many pages, is prepared by lawyers employed by the Registrar
or by barristers employed ad hoc. They do not make recommendations. Formerly these
summaries were not seen by the appellant™s lawyers, but this was changed by Lord Taylor after
he became Lord Chief Justice.
100
In a sample of cases between October and December 1990, only 22 per cent of defendants
who renewed their application from the single judge to the full court had counsel, but their
success rate was 48 per cent compared with 15 per cent of the much larger number without
counsel. (Evidence of Lord Chancellor™s Department to Runciman Royal Commission, Ch. 4,
Table 2.) See also K. Malleson, Review of the Appeal Process (Royal Commission Research
101
Study No. 17, 1993) p. 32. Practice Note [1970] 1 WLR 663.
102
[1980] 1 All ER 555. See now Practice Direction (Criminal Proceedings: Consolidation) [2002] 1
WLR 2870.
675 The practice and procedure of appeals


may be expected that such a direction [ordering loss of time for a hopeless
appeal] will normally be made unless the grounds are not only settled and
signed by counsel, but also supported by the written opinion of counsel™.
What is often not realised by prisoners is how rarely the power to order that
time spent appealing should not count is exercised or that the power is limited
to adding on ninety days to the sentence. An action against the UK Government

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