Criminal Appeal Act 1968

PART II Appeal to House of Lords from Court of Appeal (Criminal Division)

The appeal

33 Right of appeal to House of Lords

(1) An appeal lies to the House of Lords, 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.

(2) The appeal lies only with the leave of the Court of Appeal or the House of Lords; 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 the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

34 Application for leave to appeal

(1) An application to the Court of Appeal for leave to appeal to the House of Lords shall be made within the period of fourteen days beginning with the date of the decision of the Court; and an application to the House of Lords for leave shall be made within the period of fourteen days beginning with the date on which the application for leave is refused by the Court of Appeal.

(2) The House of Lords or the Court of Appeal may, upon application made at any time by the defendant, extend the time within which an application may be made by him to that House or the Court under subsection (1) above.

(3) An appeal to the House of Lords 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

(1) An appeal under this Part of this Act shall not be heard and determined by the House of Lords unless there are present at least three of the persons designated Lords of Appeal by section 5 of the [1876 c. 59.] Appellate Jurisdiction Act 1876.

(2) Any order of the House of Lords which provides for the hearing of applications for leave to appeal by a committee constituted in accordance with section 5 of the said Act of 1876 may direct that the decision of that committee shall be taken on behalf of the House.

(3) For the purpose of disposing of an appeal, the House of Lords 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 may, if it seems fit, on the application of a person appealing or applying for leave to appeal to the House of Lords, admit him to bail pending the determination of his appeal.

37 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 House of Lords, 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 may make 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 an appeal to the House of Lords is pending.

(3) 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 have been liable to be detained but for the decision of the Court of Appeal.

(4) Where an order is made under this section 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 Part V of the [1959 c. 72.] Mental Health Act 1959 (admission to hospital of persons convicted by criminal courts); or

(b) an order under section 5(1) of the [1964 c. 84.] Criminal Procedure (Insanity) Act 1964 (admission to hospital following verdict of insanity or unfitness to stand trial),

the order under this section 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 the Mental Health Act 1959 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.

(5) 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 released or discharged, by virtue of subsection (3) or (4) 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 House of Lords on the appeal.

38 Presence of defendant at hearing

A defendant who is detained pending an appeal to the House of Lords 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 House of Lords authorises him to be present, or where the House or the Court of Appeal, as the case may be, give him leave to be present.

Costs

39 Award of costs to defendant (whether appellant or respondent)

(1) The following provisions apply where—

(a) an application for leave to appeal to the House of Lords is made by the prosecutor and is dismissed by the Court of Appeal or that House; or

(b) an appeal to the House of Lords (whether by the prosecutor or the defendant) is determined in favour of the defendant.

(2) The Court of Appeal in the case of an application for leave to appeal being dismissed by them, and the House of Lords in any other case may, if they think fit, order the payment to the defendant out of local funds (within the meaning of the [1952 c. 48.] Costs in Criminal Cases Act 1952) of such sums as appear to them reasonably sufficient to compensate him for his expenses.

(3) The expenses which may be taken into account for purposes of subsection (2) above are, in a case to which subsection (1)(a) applies, those which the defendant has properly incurred in resisting the prosecutor's application for leave to appeal; and in a case to which subsection (1)(b) applies they are those which he has properly incurred—

(a) in the appeal to the House of Lords, including any application for leave to appeal; or

(b) in the prosecution of his appeal to the Court of Appeal; or

(c) in carrying on his defence at assizes or quarter sessions or before the examining justices who committed him for trial;

and the reference above to his defence at assizes or quarter sessions includes a reference to his defence before any court of assize or quarter sessions before which proceedings for the offence for which he was committed were begun but not concluded.

40 Costs against defendant

Where the Court of Appeal or the House of Lords dismiss an application by the defendant for leave to appeal to that House, the Court or the House of Lords may, if they think fit, order him to pay to such person as may be named in the order the whole or any part of the costs of the application.

41 General provision as to costs and expenses

(1) Except as provided by sections 39 and 40 of this Act, no costs shall be allowed on the hearing or determination of an appeal to the House of Lords or of any proceedings preliminary or incidental to such an appeal.

(2) Any amount ordered to be paid under section 39 or 40 above shall, except where it is a specific amount ordered to be paid towards the defendant's expenses as a whole or, as the case may be, towards the costs of his application as a whole, be ascertained as soon as practicable—

(a) where the order is made by the Court of Appeal, by the registrar; and

(b) where it is made by the House of Lords, by such officer or officers, and in such manner, as may be prescribed by order of the House.

Supplementary

42 Restitution of property

(1) Where the operation of an order for the restitution of property made on conviction on indictment is suspended until the determination of an appeal under Part I of this Act to the Court of Appeal, then, if the conviction is not quashed on that appeal, the operation of the order shall continue to be suspended—

(a) in any case, until the expiration of the time within which an application for leave to appeal to the House of Lords may be made (disregarding any extension of time which may be granted under section 34 of this Act);

(b) if any such application is made within that time, so long as the appeal to the House of Lords is pending.

(2) Where the operation of any such order is suspended under this section,—

(a) the order shall not take effect if the conviction is quashed on appeal to the House of Lords ;

(b) such steps shall be taken for the safe custody of the property in question during the period during which the operation of the order is suspended as may be prescribed by rules of court.

(3) Where by reason of the quashing by the Court of Appeal of a person's conviction any such order does not take effect, and on an appeal to the House of Lords the conviction is restored by that House, the House may make any order for the restitution of property which could be made on his conviction by the court which convicted him.

(4) This section applies in relation to section 24(1) of the [1894 c. 71. (56 & 57 Vict.).] Sale of Goods Act 1893 (revesting of stolen property on conviction of thief) as it applies in relation to an order for the restitution of property; and without prejudice to the powers of the House of Lords under subsection (3) of this section, the said section 24 shall apply in any case where a conviction on indictment is restored by that House as it applies on the conviction of an offender.

43 Effect of appeal on sentence

(1) Where a person subject to a sentence is admitted to bail under section 36 or 37 of this Act, the time during which he is at large after being so admitted shall be disregarded in computing the term of his sentence.

(2) Subject to the foregoing subsection, any sentence passed on an appeal to the House of Lords in substitution for another sentence shall, unless that House or the Court of Appeal otherwise direct, begin to run from the time when the other sentence would have begun to run.

44 Powers of Court of Appeal under Part II which are exercisable by single judge

The following powers of the Court of Appeal under this Part of this Act, that is to say the power—

(a) to extend the time for making an application for leave to appeal;

(b) to make an order for or in relation to bail; or

(c) to give leave for a person to be present at the hearing of any proceedings preliminary or incidental to an appeal,

may be exercised by a single judge, 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.