Part II Appeal to House of Lords from Court of Appeal (Criminal Division)
The appeal
33 Right of appeal to F43Supreme Court .
1
An appeal lies to the F20Supreme Court, at the instance of the defendant or the prosecutor, from any decision of the Court of Appeal on an appeal to that court under Part I of this Act F51or Part 9 of the Criminal Justice Act 2003F1or section 9 (preparatory hearings) of the Criminal Justice Act 1987F2or section 35 of the Criminal Procedure and Investigations Act 1996F28or section 47 of the Criminal Justice Act 2003.
F521A
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F421B
An appeal lies to the F31Supreme Court, at the instance of the acquitted person or the prosecutor, from any decision of the Court of Appeal on an application under section 76(1) or (2) of the Criminal Justice Act 2003 (retrial for serious offences).
2
The appeal lies only with the leave of the Court of Appeal or F47the Supreme Court; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or F47the Supreme Court (as the case may be) that the point is one which ought to be considered by F47the Supreme Court.
C2C4C8C7C9C6C3C10F33
Except as provided by this Part of this Act and section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), no appeal shall lie from any decision of the criminal division of the Court of Appeal.
F214
In relation to an appeal under subsection (1B), references in this Part to a defendant are references to the acquitted person.
34 Application for leave to appeal.
1
An application to the Court of Appeal for leave to appeal to the F18Supreme Court shall be made within the period of F3328 days beginning with the F53relevant date; and an application to the F18Supreme Court for leave shall be made within the period of F4628 days beginning with the date on which the application for leave is refused by the Court of Appeal.
F261A
In subsection (1), “the relevant date” means—
a
the date of the Court of Appeal’s decision, or
b
if later, the date on which the F49Court of Appeal gives reasons for its decision.
2
The F18Supreme Court or the Court of Appeal may, upon application made at any time by the defendant F48or, in the case of an appeal under section 33(1B), by the prosecutor, extend the time within which an application may be made by him to F36the Supreme Court or the Court of Appeal under subsection (1) above.
3
An appeal to the F18Supreme Court shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of; and for purposes of this Part of this Act an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it may be made, if it is not made within that time.
35 Hearing and disposal of appeal.
F341
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F342
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3
For the purpose of disposing of an appeal, the F50Supreme Court may exercise any powers of the Court of Appeal or may remit the case to the Court.
Matters preliminary to hearing
36 Bail on appeal by defendant.
The Court of Appeal mayF4, subject to section 25 of the Criminal Justice and Public Order Act 1994, if it seems fit, on the application of a person appealing or applying for leave to appeal to the F30Supreme Court, F5other than a person appealing or applying for leave to appeal from a decision on an appeal under F44Part 9 of the Criminal Justice Act 2003 or section 9(11) of the Criminal Justice Act 1987 F6or section 35 of the Criminal Procedure and Investigations Act 1996 (appeals against orders or rulings at preparatory hearings),F38or section 47 of the Criminal Justice Act 2003 F7grant him bail pending the determination of his appeal.
C537 Detention of defendant on appeal by the Crown.
1
The following provisions apply where, immediately after a decision of the Court of Appeal from which an appeal lies to the F41Supreme Court, the prosecutor is granted or gives notice that he intends to apply for, leave to appeal.
2
If, but for the decision of the Court of Appeal, the defendant would be liable to be detained, the Court of Appeal F45shall make—
a
an order providing for his detention, or directing that he shall not be released except on bail (which may be granted by the Court as under section 36 above), so long as the appeal is pending, or
b
an order that he be released without bail.
F352A
The Court may make an order under subsection (2)(b) only if they think that it is in the interests of justice that the defendant should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.
3
An order under F39subsection (2)(a) shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would have been liable to be detained but for the decision of the Court of Appeal.
4
Where an order is made under F19subsection (2)(a) in the case of a defendant who, but for the decision of the Court of Appeal, would be liable to be detained in pursuance of—
a
an order or direction under F8Part III of the Mental Health Act 1983 (otherwise than under section 35, 36 or 38 of that Act) (admission to hospital of persons convicted by criminal courts); or
F24b
a hospital order made by virtue of section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964 (powers to deal with persons not guilty by reason of insanity or unfit to plead etc),
the order under F19subsection (2)(a) shall be one authorising his continued detention in pursuance of the order or direction referred to in paragraph (a) or (b) of this subsection; and the provisions of F8the Mental Health Act 1983 with respect to persons liable to be detained as mentioned in this subsection (including provisions as to the renewal of authority for detention and the removal or discharge of patients) shall apply accordingly.
F94A
Where an order is made under F32subsection (2)(a) in the case of a defendant who, but for the decision of the Court of Appeal, would be liable to be detained in pursuance of a remand under F10section 36 of the Mental Health Act 1983 or an interim hospital order under F10section 38 of that Act, the order may, if the Court of Appeal thinks fit, be one authorising his continued detention in a hospital or mental nursing home and in that event—
a
subsection (3) of this section shall not apply to the order;
b
F10Part III of the said Act of 1983 shall apply to him as if he had been ordered under this section to be detained in custody so long as an appeal to the House of Lords is pending and were detained in pursuance of a transfer direction together with a restriction direction; and
c
if the defendant, having been subject to an interim hospital order, is detained by virtue of this subsection and the appeal by the prosecutor succeeds, subsection (2) of the said section 31 (power of court to make hospital order in the absence of an offender who is subject to an interim hospital order) shall apply as if the defendant were still subject to an interim hospital order.
F235
The defendant shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
a
the Court of Appeal have made an order under subsection (2)(b), or
b
the Court have made an order under subsection (2)(a) but the order has ceased to have effect by virtue of subsection (3) or the defendant has been released or discharged by virtue of subsection (4) or (4A).
37AF37Continuation of community treatment order on appeal by the Crown
1
The following provisions apply where, immediately after a decision of the Court of Appeal from which an appeal lies to the Supreme Court, the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal.
2
If, but for the decision of the Court of Appeal, the defendant would be liable to recall, the Court of Appeal may make an order under this section.
3
For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.
4
An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as an appeal to the Supreme Court is pending.
5
Where an order is made under this section the provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.
6
An order under this section shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would, but for the decision of the Court of Appeal, have been—
a
liable to recall; or
b
where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.
7
Where the Court of Appeal have power to make an order under this section, and either no such order is made or the defendant is discharged, by virtue of subsection (5) or (6) of this section, before the appeal is disposed of, the defendant shall not be liable to be again detained as the result of the decision of the Supreme Court on the appeal.
38 Presence of defendant at hearing.
A defendant who F29has been convicted of an offence, or in whose case an order under section 77 of the Criminal Justice Act 2003 or a declaration under section 77(4) of that Act has been made, and who is detained pending an appeal to the F40Supreme Court shall not be entitled to be present on the hearing of the appeal or of any proceedings preliminary or incidental thereto, except where an order of the F40Supreme Court authorises him to be present, or where the F40Supreme Court or the Court of Appeal, as the case may be, give him leave to be present.
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Supplementary
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43 Effect of appeal on sentence.
1
2
C144 Powers of Court of Appeal under Part II which are exercisable by single judge.
F141
There may be exercised by a single judge—
a
the powers of the Court of Appeal under this Part of the Act—
i
to extend the time for making an application for leave to appeal;
ii
to make an order for or in relation to bail; and
iii
to give leave for a person to be present at the hearing of any proceedings preliminary or incidental to an appeal; and
b
their powers to make orders for the payment of costs under sections 16 and 17 of the M1Prosecution of Offences Act 1985 in proceedings under this Part of this Act,
but where the judge refuses an application to exercise any of the said powers the applicant shall be entitled to have the application determined by the Court of Appeal.
F152
The power of the Court of Appeal to suspend a person’s disqualification under F16section 40(3) of the Road Traffic Offenders Act 1988 may be exercised by a single judge, but where the judge refuses an application to exercise that power the applicant shall be entitled to have the application determined by the Court of Appeal.
F223
The power of the Court of Appeal, under section 130 of the Licensing Act 2003, to suspend an order under section 129 of that Act may be exercised by a single judge, but where the judge refuses an application to exercise that power the applicant shall be entitled to have the application determined by the Court of Appeal.
44AF17 Appeals in cases of death.
1
Where a person has died—
a
any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Court of Appeal; and
b
where any relevant appeal was begun by him while he was alive or is begun in relation to his case by virtue of paragraph (a) above or by a reference by the Criminal Cases Review Commission, any further step which might have been taken by him in connection with the appeal if he were alive may be taken by a person so approved.
2
In this section “relevant appeal” means—
a
an appeal under section 1, 9, 12 or 15 of this Act; or
b
an appeal under section 33 of this Act from any decision of the Court of Appeal on an appeal under any of those sections.
3
Approval for the purposes of this section may only be given to—
a
the widow or widower F25or surviving civil partner of the dead person;
b
a person who is the personal representative (within the meaning of section 55(1)(xi) of the Administration of Estates Act 1925) of the dead person; or
c
any other person appearing to the Court of Appeal to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him.
4
Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission, an application for such approval may not be made after the end of the period of one year beginning with the date of death.
5
Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.
6
The power of the Court of Appeal to approve a person under this section may be exercised by a single judge in the same manner as by the Court of Appeal and subject to the same provisions; but if the single judge refuses the application, the applicant shall be entitled to have the application determined by the Court of Appeal.