PART 74APPEAL OR REFERENCE TO THE SUPREME COURT

Contents of this Part

When this Part applies

rule 74.1

Application for permission or reference

rule 74.2

Determination of detention pending appeal, etc.

rule 74.3

Bail pending appeal

rule 74.4

When this Part applies74.1.

(1)

This Part applies where—

(a)

a party wants to appeal to the Supreme Court after—

(i)

an application to the Court of Appeal to which Part 41 applies (retrial following acquittal for serious offence), or

(ii)

an appeal to the Court of Appeal to which applies Part 66 (appeal to the Court of Appeal against ruling at preparatory hearing), Part 67 (appeal to the Court of Appeal against ruling adverse to prosecution), or Part 68 (appeal to the Court of Appeal about conviction or sentence); or

(b)

a party wants to refer a case to the Supreme Court after a reference to the Court of Appeal to which Part 70 applies (reference to the Court of Appeal of point of law or unduly lenient sentencing).

(2)

A reference to an ‘appellant’ in this Part is a reference to such a party.

[Note. Under section 33 of the Criminal Appeal Act 1968807, a party may appeal to the Supreme Court from a decision of the Court of Appeal on—

(a)

an application to the court under section 76 of the Criminal Justice Act 2003808 (prosecutor’s application for retrial after acquittal for serious offence). See also Part 41.

(b)

an appeal to the court under—

(i)

section 9 of the Criminal Justice Act 1987809 or section 35 of the Criminal Procedure and Investigations Act 1996810 (appeal against order at preparatory hearing). See also Part 66.

(ii)

section 47 of the Criminal Justice Act 2003811 (appeal against order for non-jury trial after jury tampering.) See also Part 66.

(iii)

Part 9 of the Criminal Justice Act 2003812 (prosecutor’s appeal against adverse ruling). See also Part 67.

(iv)

Part 1 of the Criminal Appeal Act 1968813 (defendant’s appeal against conviction, sentence, etc.). See also Part 68.
Under section 13 of the Administration of Justice Act 1960814, a person found to be in contempt of court may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to the court under that section. See also Part 68.
Under article 12 of The Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals in Transitional Cases) Order 2005815, a party may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to the court under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003816 (appeal against minimum term review decision). See also Part 68.
Under article 15 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006817, a party may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to the court under section 74 of the Serious Organised Crime and Police Act 2005818 (appeal against sentence review decision). See also Part 68.
Under section 24 of the Serious Crime Act 2007819, a party may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to that court under that section (appeal about a serious crime prevention order). See also Part 68.
Under section 36(3) of the Criminal Justice Act 1972820, the Court of Appeal may refer to the Supreme Court a point of law referred by the Attorney General to the court. See also Part 70.
Under section 36(5) of the Criminal Justice Act 1988821, a party may refer to the Supreme Court a sentencing decision referred by the Attorney General to the court. See also Part 70.

Under section 33(3) of the Criminal Appeal Act 1968, there is no appeal to the Supreme Court—

(a)

from a decision of the Court of Appeal on an appeal under section 14A(5A) of the Football Spectators Act 1989822 (prosecutor’s appeal against failure to make football banning order). See Part 68.

(b)

from a decision of the Court of Appeal on an appeal under section 159(1) of the Criminal Justice Act 1988823 (appeal about reporting or public access restriction). See Part 69.

The rules in Part 65 also apply where this Part applies.]

Application for permission or reference74.2.

(1)

An appellant must—

(a)

apply orally to the Court of Appeal—

(i)

for permission to appeal or to refer a sentencing case, or

(ii)

to refer a point of law

immediately after the court gives the reasons for its decision; or

(b)

apply in writing and serve the application on the Registrar and every other party not more than—

(i)

14 days after the court gives the reasons for its decision if that decision was on a sentencing reference to which Part 70 applies (Attorney General’s reference of sentencing case), or

(ii)

28 days after the court gives those reasons in any other case.

(2)

An application for permission to appeal or to refer a sentencing case must—

(a)

identify the point of law of general public importance that the appellant wants the court to certify is involved in the decision; and

(b)

give reasons why—

(i)

that point of law ought to be considered by the Supreme Court, and

(ii)

the court ought to give permission to appeal.

(3)

An application to refer a point of law must give reasons why that point ought to be considered by the Supreme Court.

(4)

An application must include or attach any application for the following, with reasons—

(a)

an extension of time within which to make the application for permission or for a reference;

(b)

bail pending appeal;

(c)

permission to attend any hearing in the Supreme Court, if the appellant is in custody.

(5)

A written application must be in the form set out in the Practice Direction.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as ‘leave to appeal’.

Under the provisions listed in the note to rule 74.1, except section 36(3) of the Criminal Justice Act 1972 (Attorney General’s reference of point of law), an appellant needs permission to appeal or to refer a sentencing case. Under those provisions, the Court of Appeal must not give permission unless it first certifies that—

(a)

a point of law of general public importance is involved in the decision, and

(b)

it appears to the court that the point is one which the Supreme Court ought to consider.

If the Court of Appeal gives such a certificate but refuses permission, an appellant may apply for such permission to the Supreme Court.

Under section 36(3) of the Criminal Justice Act 1972 an appellant needs no such permission. The Court of Appeal may refer the point of law to the Supreme Court, or may refuse to do so.

For the power of the court or the Registrar to shorten or extend a time limit, see rule 65.3. The time limit in this rule—

(a)

for applying for permission to appeal under section 33 of the Criminal Appeal Act 1968 (28 days) is prescribed by section 34 of that Act824. That time limit may be extended but not shortened by the court. But it may be extended on an application by a prosecutor only after an application to which Part 41 applies (retrial after acquittal for serious offence).

(b)

for applying for permission to refer a case under section 36(5) of the Criminal Justice Act 1988 (Attorney General’s reference of sentencing decision: 14 days) is prescribed by paragraph 4 of Schedule 3 to that Act. That time limit may be neither extended nor shortened.

(c)

for applying for permission to appeal under article 12 of The Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals in Transitional Cases) Order 2005 (28 days) is prescribed by article 13 of that Order. That time limit may be extended but not shortened.

(d)

for applying for permission to appeal under article 15 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006 (28 days) is prescribed by article 16 of that Order. That time limit may be extended but not shortened.

For the power of the Court of Appeal to grant bail pending appeal to the Supreme Court , see—

(a)

section 36 of the Criminal Appeal Act 1968825.

(b)

article 18 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006826.

For the right of an appellant in custody to attend a hearing in the Supreme Court, see—

(a)

section 38 of the Criminal Appeal Act 1968827.

(b)

paragraph 9 of Schedule 3 to the Criminal Justice Act 1988828.

(c)

article 15 of The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005829.

(d)

article 20 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006830.]

Determination of detention pending appeal, etc.74.3.

On an application for permission to appeal, the Court of Appeal must—

(a)

decide whether to order the detention of a defendant who would have been liable to be detained but for the decision of the court; and

(b)

determine any application for—

(i)

bail pending appeal,

(ii)

permission to attend any hearing in the Supreme Court, or

(iii)

a representation order.

[Note. For the liability of a defendant to be detained pending a prosecutor’s appeal to the Supreme Court and afterwards, see—

(a)

section 37 of the Criminal Appeal Act 1968831.

(b)

article 19 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006832.
For the grant of legal aid for proceedings in the Supreme Court, see sections 14, 16 and 19 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012833.]

Bail pending appeal74.4.

Rules 68.8 (Application for bail pending appeal or retrial), 68.9 (Conditions of bail pending appeal or re-trial) and 68.10 (Forfeiture of a recognizance given as a condition of bail) apply.