ON APPEAL FROM THE CROWN COURT AT HARROW
HH Judge Arran
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE SWEENEY
and
MR JUSTICE WARBY
Between :
Regina | Respondent |
- and - | |
Mohammed Abdullah Yasain | Appellant |
Michael Turner QC and Miss J Vallejo for the Appellant
J McGuinness QC for the Respondent
Hearing date: 14 May 2015
Judgment
Lord Thomas of Cwmgiedd, CJ :
The issue in this appeal relates to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown Court. The circumstances were as follows.
The facts
Between 1 and 9 July 2013 the appellant was tried in the Crown Court at Harrow before HHJ Arran and a jury on an indictment containing five counts against him: theft (count 1), kidnap (count 2), rape of a male aged 16 years or over (count 3), robbery (count 4) and assault occasioning actual bodily harm (count 6). A co-defendant, Mustafa Hassan, was jointly charged on the same indictment with the same theft, kidnap, robbery and assault, and a separate offence of rape (count 5).
The underlying facts of the offences are set out at paragraphs 5 to 9 of the judgment of this court dated 12 June 2014, [2014] EWCA Crim 1416.
The appellant and Hassan were both acquitted of theft on the judge’s direction, following a submission of no case to answer. On 9 July 2013 the jury returned verdicts of guilty against the appellant and his co-defendant on all the remaining charges.
On 12 August 2013 the appellant was sentenced by HH Judge Arran to 6 years detention for rape, 4 years concurrent for the robbery, 18 months concurrent for the assault, and 18 months consecutive for the kidnap – a total of 7½ years. Hassan was sentenced to 8 years imprisonment for rape and, for the other offences, terms of imprisonment of the same duration, similarly structured, to the terms of detention imposed on the appellant – a total sentence of 9½ years.
The trial record sheet printed from CREST, the computer programme in which the records of the Crown Court are kept, duly recorded all these convictions and sentences.
The appellant sought permission to appeal against conviction and sentence. The single judge, Walker J, concluded that none of the grounds advanced was arguable and refused permission on those grounds. In reviewing the papers, however, he noted that according to the transcript of proceedings no verdict in respect of the appellant had been taken from the jury on count 2, the charge of kidnap, although one had been taken in respect of his co-defendant Hassan.
The transcript indicated that the taking of verdicts had been attended by an apparent degree of confusion. It appears that the court clerk had mislaid a document and that the jury foreman did not have with him a note of the jury’s decisions. The transcript recorded the judge as asking the foreman to go through the counts one by one. When the clerk asked for the verdict on count 2 (the count of kidnapping), a verdict of guilty was recorded as being given in respect of the co-defendant, but there was no record of any verdict being asked for or given in respect of the appellant on that count. Thus, it appeared conceivable that there might possibly have been an error. Walker J gave permission to appeal on that ground, and only that ground.
The appellant did not seek to renew his application for permission to appeal on any of the grounds that had been refused by Walker J. Thus, the hearing that took place on 12 June 2014 in this court was concerned solely with the ground of appeal identified by the single judge. Neither the prosecution nor anyone else had taken steps to see if there had in fact been an error; everyone relied on the transcript as accurate.
In the judgment referred to above this court accepted that there had been an error in the taking of verdicts such that there had been no conviction of the appellant on count 2. In the light of the argument before us, it is necessary to quote in full the paragraphs setting out the decision of the court.
“21. In our judgment, therefore, as is accepted by [counsel] for the Crown, the simple position is that [the appellant] has not been convicted of that offence, and technically there is no appeal to be dealt with in respect of it at all. All that requires to be done in that respect is for the Crown Court record to be amended accordingly, to delete the conviction of the appellant on that count, and we will so direct. Obviously the court record should not indicate either that the appellant has been acquitted on that count.
22. We turn to the appeal against sentence. Again, the learned judge refused leave to appeal on the grounds advanced on the appellant's behalf by counsel. The application for permission to appeal on those grounds has not been renewed. The single judge indicated that he gave leave to appeal against sentence simply because of the doubt that arose as to the fact of the conviction on count 2.
23. On that ground it is clear from what we have already said that there has been no conviction of the appellant on count 2 on which he could be sentenced. The sentence on that count must therefore be quashed.”
The court declined to adopt the course proposed by the prosecution, of revisiting the sentence for rape and increasing it by 18 months, ruling that it was undesirable to take that course on short notice and it would in any event be grossly unfair in what the court had found were the circumstances of the case.
The order made by the court was, so far as material, as follows:
“[THE COURT OF APPEAL CRIMINAL DIVISION on 12 June 2014”
CONSIDERED the appeal against conviction and sentence
AND HAS
Directed that the conviction on count 2 be deleted from the court record, but the court record should not show that the appellant was acquitted of count 2;
Directed that the appellant not having been convicted on count 2, the sentence thereon be quashed;
Quashed the Victim Surcharge Order imposed in the court below;
Substituted therefore a Victim Surcharge Order in the sum of £20.”
As a consequence the record of the Crown Court at Harrow was amended, but not in the manner directed by the order of this court. The record of the conviction held on CREST on count 2 was not amended. The record simply recorded on the last page:
“Appeal against conviction and sentence allowed in part 12/6/14. Total sentence now 6 years in a Youth Offenders Institution. Victim surcharge £20, Comply with Sexual Offences Act 2003 indefinitely”
When the transcript of the judgment of the court was sent to the judge, he made inquiries of the transcribers as to their record, as he thought that the verdict had been taken. Those inquiries revealed that Margaret Wort & Co, the transcribers of the proceedings on 9 July 2013, had made a very serious error. They had omitted to record the guilty verdict which had been taken on count 2 against the appellant. We have a corrected transcript which shows that the process was carried out impeccably under the direction of the experienced judge. This is not in dispute.
It follows that the grant of permission to appeal and the judgment of this court on 12 June 2014 were both founded on a mistake as to what had happened in the Crown Court. The question arises of what, if anything, this court has jurisdiction or power to do and, if it has jurisdiction or power, whether it should be exercised.
The legal framework: the Criminal Appeal Act 1968 and the authorities of the Court of Appeal Criminal Division
The general powers of the Court of Appeal
The jurisdiction and powers of this court, like those of the Civil Division, are entirely statutory. S.1 of the Criminal Appeal Act 1968 provides that, subject to certain immaterial exceptions, and the requirement of leave, "a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction." S.2 provides:
“(1) Subject to the provisions of this Act, the Court of Appeal—
(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b) shall dismiss such an appeal in any other case.
(2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.”
S.9 of the 1968 Act is headed “Appeal against sentence following conviction on indictment” and provides that:
“A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings”.
Section 11(3) of the Act provides:-
“(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—
(a) quash any sentence or order which is the subject of the appeal; and
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;
but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”
The power to revise an order until it is recorded
It is well established that this court has, like any other court, an implicit power to revise any order pronounced before it is recorded as an order of the court in the record of the relevant court. If it has recorded the order, then the power to revise the order is strictly limited; in the Civil Division, the extent of the court’s jurisdiction and powers were reviewed in Taylor v Lawrence [2003] QB 528, as we set out at paragraphs 28 and following below. The first question to determine therefore is whether the order made by this court has been properly recorded in the relevant record.
The question as to what constituted the relevant record of this court was first examined in R v Cross (Patrick) [1973] QB 937, 940-941. After a hearing in which this court allowed an appeal against sentence, the decision was recorded in a note of the Registrar. Later in the day the court realised that the appellant had not been frank; it set aside its judgment and ordered a hearing before a differently constituted court. That court first had to determine whether the order that had been pronounced orally and recorded in the note of the Registrar had been recorded in the “record of the court”. The court noted that at the Assizes and at Quarter Sessions (the then courts of first instance for serious crime) the court had always had the power to amend a sentence until the record was signed by the judge at the end of the Assizes or Quarter Sessions. Once signed, the court lost its power. As the Court of Appeal (Criminal Division) was not required to keep a formal record, the court had to determine when the order of the Court of Appeal became final for this purpose. The rules of procedure for this court were contained then in the Criminal Appeal Rules. Under Rule 17, the Registrar had to serve on the officer of the Crown Court a record of the order of the Court of Appeal. The Crown Court Manual (which the court stated was published under the order of the Lord Chancellor) contained a provision as to what was to be done on receipt of the order of the Court of Appeal in the following terms:
“on return of the case papers to the Crown Court, with the notification of the result of the appeal … the decision of the Court of Appeal should be entered on the court record and the notice of the result of the appeal attached.”
It followed, in this court’s opinion, therefore that the time at which the record was formally made was when the Crown Court officer carried out the duty of amending the record of the Crown Court in accordance with the order of the Court of Appeal. As the Crown Court had not amended its record, the Court of Appeal had jurisdiction to amend its decision allowing the appeal against sentence.
In R v Blackwood (Romaine) [2012] EWCA Crim 390, [2012] 2 Cr App R 1, the decision in Cross was followed in relation to the failure to ask for a retrial before the order of the Court of Appeal had been sent to the Crown Court and CREST updated. This court at [16]-[17] held that, as the Registrar had sent the order allowing the appeal to the Crown Court with a request that the records held on CREST be updated to reflect the allowing of the appeal and the quashing of the conviction and the record on CREST had been updated, it was too late to order a retrial. The formal record had recorded an acquittal with no provision for a retrial.
Thus the general rule is that where an appeal has been heard and the resulting decision or order has not only been pronounced but also recorded in the relevant records (presently the records of the Crown Court on CREST), there is no such jurisdiction. The order is final: Cross, at page 940C, followed in Blackwood at paragraphs 14 and 17. The general position is that the court is at this point functus officio and will not re-hear an appeal, as it has no general jurisdiction to do so: Cross at page 940; R v Pedley [2009] EWCA Crim 840, [2009] 1 WLR 2517 at paragraphs 24-28, and Blackwood at paragraph 16.
The power to revise an order when it has been recorded
There are two exceptions to this general rule to the effect that the court does have power to re-hear an appeal if (i) on a proper analysis, the previous order is a nullity; or (ii) a defect in the procedure may have led to some real injustice. There can be no doubt about the first exception, but the basis of and scope for the second exception needs more detailed consideration.
The power to revise where the order is a nullity
If a hearing has taken place which in effect is a nullity, the court cannot be functus officio. There can therefore be no logical difficulty in there being a further hearing. The court has not performed its function, as the appellate proceedings have not in law taken place. The fact that the court has pronounced an order and that a record of the court’s order has been made by the proper officer in records of the Crown Court, cannot alter the position.
An example of an order which is a nullity is provided by R v Majewski (1976) 62 Cr App R 5. In Majewski the appellant sought to challenge his conviction on the grounds that self-induced intoxication could be a defence to a charge of assault, and that the judge had misdirected the jury on the issue. The appeal was referred to the court by a Deputy Registrar for summary dismissal pursuant to s.20 of the Criminal Appeal Act 1968 on the basis that it showed no substantial ground of appeal. The court proceeded to dismiss the appeal on that basis. The court later concluded that the referral had been procedurally invalid and that the appeal did raise a point of substance, so that on a proper analysis the appeal had not in law been heard: see the judgment of the court given by Lawton LJ at pages 8-9. The court proceeded to re-hear the appeal. This approach was not criticised when Majewski reached the House of Lords: see [1977] AC 443.
The power to revise an order where there has been real injustice
The question as to whether there is a further exception by way of a power to revise where there has been a defect in procedure which may have led to a real injustice has been considered in three cases to which it is necessary to refer:
R v Daniel (1977) 64 Cr App R 50, [1977] QB 364. The applicant renewed his application for leave to appeal, which had been refused by the single judge. He instructed solicitors who wrote to the court to advise that they intended to instruct Counsel on the renewed application. Due to an administrative error the renewed application was listed, heard and dismissed on 14 June 1976 without notice to the applicant’s lawyers. The order was recorded by the Crown Court. When an application was made to re-hear the matter, the court decided on 14 September 1976 that it was bound by Cross to dismiss the application on the ground that it was functus officio. At the court’s instigation the case was then referred back on 17 September 1976 to the court by the Secretary of State, and the appeal was heard. Although the appeal was dismissed on the merits, the court considered in detail the question of jurisdiction. After referring to Majewski, Lawton LJ concluded at pages 369G-H, that:
“It follows, in our judgment, that [Cross] did not apply when what has happened is a nullity.”
It was conceded, however, that what had occurred in Daniel could not be regarded as a nullity. Lawton LJ then asked whether the court had jurisdiction in the circumstances of a case where the applicant had been deprived of his right to be represented by counsel. He answered the question at 369H-370A:-
“This court clearly has jurisdiction within the ambit of the Criminal Appeal Act 1968 and the Rules of 1968 to see that no injustice is done to any defendant in the course of any application or appeal. If in any particular case, because of a failure of the court to follow the rules or the well established practice, there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in R v. Cross that a case should be relisted for hearing. It is pertinent to point out that in R v. Cross the court had heard arguments by counsel on the merits before any question arose about rehearing the appeal, for such it was. The kind of problem which has arisen in this case was never considered.
It follows that this court acted per incuriam in adjudging, on September 14, 1976, that it had no jurisdiction to consider the defendant's application. The court had such jurisdiction.
Before leaving this subject the court would stress that save in cases in which what has happened is a nullity, the jurisdiction to relist depends on the likelihood of an injustice having been done. That is for the court itself to decide. There may not be a likelihood of injustice if, from the written grounds of appeal and any supporting documents, it is clear beyond argument that the application cannot succeed.”
R v Pinfold (1988) 87 Cr.App.R 15, [1988] QB 462. The applicant had been convicted in November 1980 of murder of a man called Eve on the basis of evidence from a prosecution witness, Childs, that the applicant had procured the murder. Leave to appeal was granted but the appeal was dismissed in November 1981. The applicant then made a second application for leave to appeal, relying on fresh evidence from Childs to the effect that his evidence at the trial had been untrue. Lord Lane CJ identified the question posed as whether the court had power to hear an appeal by the applicant when his first appeal had been dismissed. He concluded at p17 that:
“So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But, in the view of this court, one must read those provisions against the background of the fact that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have counsel been able to discover any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case.
So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions or apparent exceptions, because that is what they are, to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has on the first appeal being dismissed suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that.”
R v Pedley [2009] 1 WLR 2517. The appellant appealed in 2007 against a sentence of imprisonment for public protection, challenging both the finding of dangerousness and the length of the notional determinate term. He failed on the first point but succeeded on the second. Two years later he sought to have his appeal re-listed to re-open the first point. The application was dismissed. Hughes LJ summarised the position in this way at [27]:
“There exists a very limited power in this court to rehear an apparently concluded appeal. It is a power to relist where by administrative error or otherwise the appellant has been deprived of a proper hearing, so that the apparently concluded appeal can properly be described as a nullity, including cases where the court failed to follow the rules or well established procedure: see R v Pinfold; R v Grantham; R v Berry and R v Rowan. An example of the second situation is R v Daniel where the court dealt with a renewed application without being aware that counsel was instructed to appear and thus without hearing him.”
In our view none of these cases fully explains the basis of the second exception or its scope. It is therefore desirable to consider the question as a matter of general principle.
The legal framework applicable to the Court of Appeal Civil Division
In Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, the Court of Appeal Civil Division considered the scope of its power to re-open a concluded appeal. As we shall explain, this jurisprudence of the Civil Division is relevant to the powers of the Court of Appeal Criminal Division.
The defendants in Taylor v Lawrence appealed on the grounds of apparent bias on the part of the judge below. The appeal was dismissed. The defendants later discovered fresh facts relating to the apparent bias that had previously been alleged and sought to re-open the appeal. The court concluded that it has an implicit power to re-open a concluded appeal in exceptional circumstances, where it was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice.
The Civil Division has, like the Criminal Division, only the powers conferred on it by ss.15 and following of the Superior Courts Act 1981 and other statutes. Neither these provisions nor any other provision spell out any power of the civil division to re-hear an appeal. As Lord Woolf MR said at [16]:
“Accordingly, it is accepted that the Court of Appeal does not have any inherent jurisdiction in respect of appeals from the county court but only that which is given by statute. However, the use of the word "inherent" in this context means no more than that the Court of Appeal's jurisdiction depends on statute and it has no originating jurisdiction. The position is very much the same in relation to other appeals to the Court of Appeal. Its jurisdiction is to be determined solely by reference to the relevant statutory provisions.”
The court, however, held it had a power to re-open appeals as that power was implicit in the powers that were expressly conferred on the court. Lord Woolf CJ explained the court’s conclusions as follows:
“26 …. this court was established with two principal objectives. The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents: see Civil Procedure vol 1, Autumn 2001 , para 52.0.3. ”
…
“50 If, as we believe it is necessary to do, we go back to first principles, we start with the fact which is uncontroversial, that the Court of Appeal was established with a broad jurisdiction to hear appeals. Equally it was not established to exercise an originating as opposed to an appellate jurisdiction. It is therefore appropriate to state that in that sense it has no inherent jurisdiction. It is, however, wrong to say that it has no implicit or implied jurisdiction arising out of the fact that it is an appellate court. As an appellate court it has the implicit powers to do that which is necessary to achieve the dual objectives of an appellate court to which we have referred already (see paragraph 26 above). ”
Lord Woolf went on to cite a passage from Lord Diplock’s speech in a leading case on the former power of the court to dismiss actions for want of prosecution, Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [1981] AC 909, at page 977:
"The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice."
Lord Woolf concluded at [53] that the final words of Lord Diplock “express the situation here under consideration exactly”, adding a reference to the speech of Lord Morris of Borth-y-Gest in a leading case on double jeopardy, Connelly v Director of Public Prosecutions [1964] AC 1254, 1301:
"There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process."
At [54] Lord Woolf characterised the jurisdiction, describing it as “The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances”.
The procedure for making a Taylor v Lawrence application is now embodied in the Civil Procedure Rules: CPR 52.17 which provide, in part,:
“(1) the Court of Appeal or the High Court will not re-open a final determination of any appeal unless –
(a) It is necessary to do so in order to avoid real injustice;
(b) The circumstances are exceptional and make it appropriate to re-open the appeal;
(c) There is no alternative effective remedy.”
Do the principles established in Taylor v Lawrence apply to the powers of the Criminal Division?
From a review of the cases which has been conducted, it appears that this court has never expressly considered the question of whether it has a similar general implicit power as the Court of Appeal Civil Division determined in Taylor v Lawrence that it had. The nearest this court has come to considering the question was when this court had to decide an issue as to the enforceability of the Video Recordings Act 1984. The issue arose both in a criminal appeal and in an appeal by way of case stated. A court presided over by Lord Judge CJ sat as the Court of Appeal Criminal Division to determine the criminal appeal in R v Budimir and Rainbird and as a Divisional Court to determine the appeal by way of case stated in Interfact v Liverpool City Council. As appears from the single judgment of the court ([2011] QB 744, [2010] 2 Cr App R 29), it was necessary to consider in both cases whether the appeal should be heard. That was because a Divisional Court had dismissed the appeal of Interfact in 2005 and Interfact were seeking in 2010 to re-open it; and because Budimir and Rainbird had pleaded guilty in 2008 and were seeking over 20 months out of time to appeal against conviction. Each had been motivated to appeal as a result of an announcement made by Government as to the compatibility of the Act with EU law. The application made by Interfact was made under CPR 52.17 and the principles in Taylor v Lawrence; the application by Budimir and Rainbird was based on the principle established by numerous cases that a change in the law may provide a basis for an appeal out of time, if substantial injustice has been caused. The court decided that:
“For the purposes of the present applications we shall not seek to discern nor create a difference of approach to the applications in the Divisional Court (CPR Rule 52.17, and Taylor v Lawrence and Seray-Wurie Hackney London Borough Council [2003] 1 WLR 257) and the Court of Appeal Criminal Division.”
The court was wholly unpersuaded that either case involved any real or substantial injustice.
We must therefore address the issue as a matter of principle. In Taylor v Lawrence, as we have set out, the court based its decision on the implied or implicit power to do that which is necessary to achieve the objectives of an appellate court, in circumstances where no express power was conferred on the court and its powers were exclusively based on statute.
The way in which the Civil Division approached its power to re-open an appeal is grounded in clear principle. We can see no basis for any distinction between the Civil Division and the Criminal Division as to the principles applicable to the jurisdiction under the implicit powers of an appellate court. The appellate jurisdiction of each is statutory. There is no reason why both do not have the same implicit jurisdiction and the same general basis for that jurisdiction.
However it is necessary, as Lord Woolf explained at paragraph 54 of the judgment in Taylor v Lawrence, to distinguish between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised.
“It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.”
The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10, [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission.
Although, as we will explain at paragraph 46 below, the present appeal could have been determined by applying the underlying principles set out in the case law of the Criminal Division to which we have referred, as it could be said there had been a defect in the procedure of the court, it is far better to determine the matter on the basis that this court’s jurisdiction is based on the same implicit power as the Civil Division determined it had in Taylor v Lawrence.
However, although we can decide this appeal in this way and make it clear that this court has an implicit jurisdiction on the same basis as the Civil Division, we consider that it would be appropriate if the Criminal Procedure Rules Committee can formulate a rule similar to that set out in CPR 52.17 but which delineates the factors and circumstances applicable to the Criminal Division. It is in a position to consult widely and to consider a greater range of views than we heard on this appeal. Furthermore it is necessary to formulate principles that would apply either to all types of criminal appeal whether by way of appeal to this court, or by way of case stated or in an extradition appeal or with suitable modifications: see for example the decision of the Divisional Court to re-open an extradition appeal (subject to the specific provisions of the Extradition Act 2003): Republic of South Africa v Dewani [2014] WLR 3220, [2014] 3 All ER 266, [2014] EWHC 153 (Admin) at paragraph 17; McIntyre v United States [2015] 2 All ER 415, [2014] EWHC 1886 (Admin), [2015] WLR 507 at paragraphs 8-12.
It would also be desirable for rules to be made which make it clear when an order, whether it be that of a trial court or an appellate court, is entered onto the record. As regards the recording of the orders of this court, we have little doubt that at the time of the decision in R v Cross in 1973, the Lord Chancellor had the power to make directions set out in the Crown Court Manual. However, we doubt that this power has survived the Constitutional Reform Act 2005, despite the reference to it in R v Blackwood. In any event the way in which the order of this court was recorded in the present case as set out in paragraph 13 above was highly unsatisfactory.
As significant change is being made to the way in which information is recorded and transmitted between those involved or interested in criminal cases and the courts, it would be desirable that clear rules be made consistent with the need to ensure that the criminal records in respect of convictions are accurately stated in records of the court which are transmitted to and used by other parts of the Executive such as the police and prison service.
The determination of the present appeal
In the present case, although the recording of the order of this court in CREST was highly unsatisfactory, it was so recorded.
If the established case law is applied, it would first be necessary to consider whether the hearing of the appeal on 12 June 2014 was a nullity. The appellant and the prosecution were represented and the court arrived at a decision that was open to it on the material before it. An order was made by this court. The fact that there was a serious error in the material before it and the court acted on that error does not make the order a nullity. Next it would be necessary to consider the jurisdiction under the line of cases beginning with R v Daniel. We have little doubt that a real injustice would result if the order could not be re-opened and corrected.
However, in our judgment the better basis on which to make our decision to re-open the decision made on 12 June 2014 and the order giving effect to it is the jurisdiction based on the principles in Taylor v Lawrence as applied to this court. We therefore make our decision on that basis.
The appellant did not dispute the position that the order should be corrected to the extent that it stated that there had been no conviction on the kidnapping count. It was accepted that it should be made clear in a new order that there was in fact a conviction for kidnapping. However, it was submitted on behalf of the appellant that the court should not exercise its jurisdiction to restore the sentence on that count, as that would not be just.
We do not agree. The appellant was properly convicted on that count and sentenced to a consecutive sentence of 18 months. The verdict was properly given and properly recorded by the Crown Court. The only reason why this court quashed the sentence was as a result of an error in the transcript which no one checked, until the judge diligently did so after the decision of this court. In our judgment there would be a real injustice if the appellant did not serve the sentence that had been rightly imposed on him. There is a very substantial public interest in those properly convicted serving the sentence imposed, not least in the circumstances of this case where the offence had an impact on the victim. Not to do so would undermine public confidence in the ability of the courts to deliver justice fairly. This is an exceptional case, as there was no basis in fact on which this court should have quashed the sentence; what had happened was a rare coincidence of circumstances – carelessness on the part of the transcriber, a failure by the prosecution to check the position, and a failure to check with the Crown Court at Harrow and the judge before accepting (1) that an experienced trial judge had passed a significant consecutive sentence on a defendant when the jury had not convicted that defendant and (2) that the record of the Crown Court which properly recorded the verdict and sentence were in error.
We therefore direct that the order of this court of 12 June 2014 be set aside, the appellant’s appeal against conviction and sentence be dismissed and the appellant’s conviction on count 2 and the consecutive sentence of 18 months detention be affirmed.