DUNN v. THE UNITED KINGDOM
Inadmissible
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Mr James Lee Dunn, is a British national, who was born in 1981 and is currently detained at HMP Wakefield. He is represented before the Court by Hadgkiss Hughes & Beale, a firm of solicitors based in Birmingham. The United Kingdom Government (“the Government”) are represented by their Agent, Ms Ahila Sornarajah, Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 20 July 2006 the applicant was convicted of murder at Birmingham Crown Court. He appealed against conviction before the Court of Appeal, claiming that the evidence of one of the principal prosecution witnesses was unreliable since that witness gave inconsistent evidence at later trials. The appeal was dismissed on 23 July 2009. The Court of Appeal relied on case-law to the effect that the fact that a prosecution witness has been shown to have lied may not be fatal to conviction. 4. The applicant sought to challenge the way in which the Court of Appeal had dealt with the issue of adducing fresh evidence by way of an appeal to the House of Lords. It was the applicant’s case that, in determining this issue, the Court of Appeal had wrongly followed the approach of a majority of the Privy Council in the case of Dial & Anor v. The State (Trinidad and Tobago) [2005] UKPC 4, rather than the approach of the House of Lords in the case of Pendleton, R. v. [2001] UKHL 66. In order for an appeal to be lodged with the House of Lords (now the Supreme Court) in criminal matters, the Court of Appeal must certify that a point of law of general public importance arises in the case (section 33(2) of the Criminal Appeal Act 1968). The Court of Appeal indicated that it would not certify that a point of law of general public importance arose in the case. 5. The applicant then applied to the Court of Appeal for a declaration that section 33(2) of the Criminal Appeals Act was incompatible with Articles 6 and 14 of the Convention. The applicant argued that the certification requirement constituted a violation of his right to an impartial tribunal and his right of access to the Supreme Court. 6. On 18 June 2010 the Court of Appeal dismissed this application, finding that the certification requirement did not violate the applicant’s rights under Article 6 of the Convention. As regards the challenge to the Court of Appeal’s impartiality, the Court of Appeal distinguished between the substantive appeal and the certification process: “Although [counsel for the applicant] does not suggest actual bias, what he is in truth submitting is that in deciding whether to certify the Court of Appeal may be influenced by an oblique motive; the wish to avoid the Supreme Court considering the case and possibly overruling the Court of Appeal’s decision. We entirely reject that. We reject too the suggestion that the fair minded and informed observer would conclude that in reaching its decision the Court of Appeal would be so influenced. As [counsel for the prosecution] submits, in deciding whether or not to certify the court is not sitting on an appeal against its own decision. It is not determining any criminal charge. It is merely assessing whether its decision contains an important point of law.” 7. The Court of Appeal also emphasised that the same court was best placed to determine the existence of a point of law of general public importance, since it had already examined all the issues in the case. 8. The Court of Appeal found that the certification requirement amounted to an interference with the applicant’s right of access to the Supreme Court, which was, however, justified in pursuit of the legitimate aim of providing a filtering mechanism to control the Supreme Court’s caseload. 9. The essence of the applicant’s right of access to the Supreme Court had not been denied since he had no right to have an uncertified point of law considered by the Supreme Court: “Moreover, we do not accept that a refusal to certify amounts to a denial of the essence of the appellant’s right of access to the Supreme Court. The appellant has the right to have his access to the second-tier appeal court decided by an independent and impartial tribunal properly applying legal principles. If such a decision goes against the appellant that has not denied him the essence of his right to access to the Supreme Court. It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by the Supreme Court in circumstances where it is legitimate for there to be a filtering of the cases before that court. That is precisely what happened here.” 10. As regards Article 14 of the Convention, the Court dismissed the applicant’s claim on the ground that, in criminal cases, the Supreme Court’s jurisdiction was limited to resolving important matters of legal principle, whereas it had a broader remit in civil cases, sometimes encompassing factual issues. Appellants in criminal and civil cases were not, therefore, in comparable situations. 11. Section 33 of the Criminal Appeal Act 1968, which replaced the Administration of Justice Act 1960, provides as regards appeals in criminal proceedings: “33. - Right of appeal to [Supreme Court] (1) An appeal lies to the Supreme Court at the instance of the defendant or prosecutor from any decision of the Court of Appeal on an appeal to that court ... (2) The appeal lies only with the leave of the Court of Appeal or the [the 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 the [the Supreme Court] (as the case may be) that the point is one which ought to be considered by [the Supreme Court]. (3) Except as provided for by this part of this Act ... no appeal shall lie from any decision of the Criminal Division of the Court of Appeal.” 12. Following several high profile miscarriages of justice, the Royal Commission on Criminal Justice, Cm.2263 (HMSO, 1993), chaired by Lord Runciman, was tasked to consider, inter alia, whether changes were needed in the criminal appeals process. In its 1993 report, the Commission recommended the abolition of the certification requirement (at § 10.79): “[I]t is unduly restrictive to require such a certificate to be issued in addition to the necessity of obtaining leave from the Court of Appeal or the House of Lords itself. We think therefore that the requirement that the Court of Appeal certify that the case involves a matter of law of general public importance should be dropped. The need to obtain the leave of either the Court of Appeal or the House of Lords before proceeding further is by itself a sufficient filter.” 13. A review of the criminal courts carried out in 2001 by Sir Robin Auld did not address this issue, since the composition and workings of the Appellate Committee of the House of Lords did not fall within its terms of reference. 14. In Scotland the High Court of Judiciary is the highest criminal court. There is no route of criminal appeal from the High Court of Judiciary to the Supreme Court. However, there is an exception under the Scotland Act 1998 for devolution issues. Devolution issues include questions as to the compatibility with the Convention of the acts and functions of the Lord Advocate and legislation passed by the Scottish parliament. In such cases, leave to appeal is required from either the High Court of Judiciary or the Supreme Court. There is no certification requirement for criminal cases referred to the Supreme Court from the High Court of Judiciary. 15. In civil cases there is no certification requirement in respect of appeals to the Supreme Court from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland. An application for permission to appeal must be made first to the Court of Appeal. If that Court refuses permission, an application may be made to the Supreme Court. For a "leapfrog" appeal directly from the High Court to the Supreme Court, however, the High Court judge must certify that the relevant conditions are satisfied, namely that a sufficient case has been made out to justify an application for permission to appeal to the Supreme Court and that all parties consent (section 12(1) of the Administration of Justice Act 1969). The “relevant conditions” (which are set out in section 12(3) of the Administration of Justice Act 1969) are that a point of general public importance is involved and that it either: “(a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or (b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [Supreme Court] (as the case may be) in those previous proceedings.”