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Appeals to the House of Lords

Updated 14/07/08

Principle
- Handling / Location of Appeals
Guidance
Procedure
- Steps in the Appeal Process
Miscellaneous
- CPS as the respondent
- CPS as an interested party
Practice Directions and Standing Orders applicable to Criminal Appeals - 2007 - 2008 edition
Further Information
Useful telephone Numbers

Note From a day to be appointed the jurisdiction of the House of Lords will be transferred to the Supreme Court (Constitutional Reform Act 2005).

Principle

Handling/Location of Appeals

Initial decisions to appeal will be taken locally by Chief Crown Prosecutors and counsel involved in the case.

House of Lords appeals are handled at Special Crime Division. SCD lawyers and the counsel instructed by them have particular experience in dealing with House of Lords appeals. This means that the SCD lawyer, in consultation with the area, must make the final decision on whether a case should be taken to the House of Lords.

Guidance

Overview

Appeal to the House of Lords [HOL] can be made from:

Court of Appeal

Section 33 (1) Criminal Appeal Act 1968;

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 or Part 9 of the Criminal Justice Act 2003 or section 9 (preparatory hearings) of the Criminal Justice Act 1987 or section 35 of the Criminal Procedure and Investigations Act 1996.

Section 34(1) Criminal Appeal Act 1968

An application to the Court of Appeal for leave to appeal to the House of Lords shall be made within the period of 28 days beginning with the relevant date; and an application to the House of Lords for leave shall be made within the period of 28 days beginning with the date on which the application for leave is refused by the Court of Appeal.

The 'relevant date' means:

(a) The date of the Court of Appeal's decision; or

(b) If later, the date on which the Court of Appeal gives reasons for its decision.

However, applications for leave to appeal under the following enactments are required to be made within 14 days:

Sections 32(5) and 114(5) of the Extradition Act 2003
Sections 33, 44 and 66 of the Proceeds of Crime Act 2002
Sections 183, 193 and 214 of the Proceeds of Crime Act 2002
Attorney General's References under section 36(5) of the Criminal Justice Act 1988

Administrative Court

An appeal may be made by either the defendant or the prosecutor (claimant or defendant in the case of a judicial review) from any decision of the High Court of Justice in England and Wales - see section 1 Administration of Justice Act 1960 as amended. Section 2(1) Administration of Justice Act 1960 as amended states that an application for leave to appeal to the House of Lords must be made within 28 days beginning with the date on which the application for such leave was refused by the lower court (and NOT the following day). But note the exceptions to this rule given above.

Note also that the Criminal Appeal Act 1968 covers the Court of Appeal procedure; the Administration of Justice Act 1960 covers the Administrative Court procedure. The provisions mirror each other.

Applications for leave to appeal to the House of Lords must first be made to the Administrative Court or Court of Appeal, as appropriate. If leave is refused, application should be made to the House of Lords.

Appeal Requirements / Conditions

Appeals to the House of Lords are subject to two hurdles/conditions:

Certificate of a Point of Law by the Court of Appeal

In all cases, before going to the House of Lords, leave to appeal in a criminal cause or matter will only be granted if it is certified by the Court below that a point of law of general public importance is involved in the decision of that court.

Section 33(2) Criminal Appeal Act 1968 - for Court of Appeal

Section 1(2) Administration of Justice Act 1960 - for Administrative Court

and

Leave

This will only be granted if a point is certified by the Court of Appeal or Administrative Court and it appears to that court or to the House of Lords that the point ought to be considered by the House. [Also see the speech of Viscount Simonds in Gelberg v Miller [1961] 1All E.R. 618]

A certificate that a point of law of general public importance is not required:

On an application for Habeas Corpus
For an appeal under Section 5(4) Human Rights Act 1998 (appeal by a Minister of the Crown against a declaration of incompatibility)
In contempt of court cases where the decision of the court below was not a decision on appeal

Strict time limits apply and the prosecution can only apply to extend them in certain very limited circumstances (only for applications under sections 76(1) or (2) of the Criminal Justice Act 2003, which relate to retrials following acquittals for certain serious offences)

CPS internal communication and decision making

Areas will need to notify the Chief Crown Prosecutor who should agree to the decision to seek leave to appeal to the House of Lords and to pursue a petition of appeal if leave has been given.

All important events should be notified to the Chief Crown Prosecutor through line managers, and if necessary to the DPP.

Cases are dealt with by Special Crime Division at HQ in Ludgate Hill; Follow the procedures outlined below.

Advice and assistance, or general consultation is available from Special Crime Division which liaises with Policy Division, the Attorney General's Office and specialist counsel on all aspects of the process including possible, pending and current appeals to the House of Lords.

Procedure

Steps in the Appeal Process

Step 1 - Before a hearing at the Court of Appeal or Administrative Court: consider whether a further appeal to House of Lords should be made if the appeal is unsuccessful

When the CPS has a case in the Court of Appeal or Administrative Court, before the appeal is heard, consideration should be given to whether or not leave to appeal to the House of Lords should be sought if the judgement is unfavourable. This consideration would clearly be provisional and depend on the points to be made and the wording of any judgment. Nevertheless such consideration will save time and effort later and can focus thoughts on the strengths and weaknesses of the appeal.

If an appeal to the HOL is contemplated, the Crown Prosecutor or Advocate and/or Counsel need to have considered and if possible drafted a question or questions to be asked. These questions will need to pass the test of being a point of law of general public importance involved in the decision of the court.

Step 2 - Obtain provisional senior management/Chief Crown Prosecutor approval.

Step 3 - Appeal is unsuccessful in the Court of Appeal/Administrative Court: Decide whether to apply for leave to Appeal to House of Lords

There are 28 days in which to apply to the Court of Appeal or Administrative Court for leave to appeal to the hol. Day 1 is the date the decision against the Crown is given. [Note: The decision against the Crown is usually at the close of the appeal but could be the date when a reserved judgment is delivered] Make a note of the date!

Crown Prosecutors or advocates and/or counsel are immediately to consider whether to seek leave to appeal to the House of Lords.

If the decision is to seek leave to appeal:

The Crown Prosecutor, advocate and/or counsel are to agree and draft a question or questions to be answered by the House of Lords which can pass the test of being a point of law of general public importance.

Obtain Chief Crown Prosecutor or senior management approval. If it is considered the application should be made immediately at the end of the case then CCP approval can be dealt with afterwards.

Make application for leave to appeal - <see Step 3B or Step 4 below in this section>.

Note there is no route to the House of Lords except by applying first to the Court of Appeal or Administrative Court, for leave to go to the Lords.

Defendant in custody - Bsil between Court of Appeal or Administrative Court and House of Lords

Special attention is needed

Effect of successful appeal by the prosecution

When the prosecution successfully appeals to the Supreme Court (House of Lords) (References to the Supreme Court in section 37 of the Criminal Appeal Act 1968 and section 5 of the Administration of Justice Act 1960 are to be read as references to the House of Lords before the coming into force of paragraphs13(5) and 16(6) of Schedule 9 to the Constitutional Reform Act 2005.), the offender can be compelled to serve out any remainder of his sentence unless the court below has made an order to the contrary. (Section 37 Criminal Appeal Act 1968 and section 5 Administration of Justice Act 1960 (as amended by section 47 and schedule 8 Criminal Justice and Immigration Act 2008 paragraphs 13 and 26)

The Court of Appeal is required to order either detention, release on bail, or release without bail. The Court may make an order for release without bail 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 eventual decision of the Supreme Court on the appeal.

The Crown through the advocate or Counsel must therefore make an application to the Court of Appeal for conditional bail or continued detention.

Step 3A - At end of appeal, time is needed to consider whether to seek to appeal further

If the defendant is detained, this route is inadvisable because of the need for the court to deal with bail. GO TO STEP 3B and if necessary seek an adjournment until later in the court day to make the applications outlined there.

If after the appeal the Crown Prosecutor and/or advocate or counsel need time to consider whether to appeal, this can be done in the next few days, but must be done quickly, bearing in mind There are 28 days to make the decision and draft the question(s) and get the case back into court to make the application or more usually lodge the petition for leave to appeal [form HL1][Day 1 being the date of the decision against the Crown at the Court of Appeal or Administrative Court and not the following day.]

Step 3B - Immediately at end of the Court of Appeal or Administrative Court hearing make an oral application for leave

The advocate or counsel makes an oral application to the Court of Appeal for leave to appeal and for a point of law of general public importance to be certified.

There are three possible outcomes of this application:

Leave is not granted and a point of law is not certified. - No further action can be taken. There is no appeal from the refusal to certify a point of law. [Gelberg v Miller [1961] 1 WLR 459]
Leave is not granted but a point of law is certified. - See step 4 below.
Leave is granted and a point of law is certified. - See step 4A below.

If a point of law is certified and the defendant is in custody make an application for detention or conditional bail.

Step 4 - Leave not granted but a point of law is certified: petition for leave to appeal to House of Lords

The refusal of leave to appeal by the court below is not the final stage. If appealing is still considered correct [and it should be unless there are new facts to consider from the time the previous decision to appeal to the HOL was made] then the application for leave can be made directly to the House of Lords. (This is in fact the normal procedure because the Court of Appeal and Administrative Court rarely grant leave - only five grants of leave in 2007, for example, by the Court of Appeal)

There are 28 days from the date leave is refused by the Court of Appeal/Administrative Court to draft and lodge a petition for leave to appeal to the House of Lords. [Section 34 (1) Criminal Appeal Act 1968 ..".an application to the House of Lords for leave shall be made within ...28 days beginning with the date on which ...leave was refused by the Court of Appeal". There is a similar provision in Section 2(1) Administration of Justice Act 1960 for Administrative Court refusal of leave i.e. calculate the 28 days by counting Day 1 as the date of refusal. [If the date of the order is later still use the date of refusal]

Note - the date leave is refused is not necessarily the date when the point of law is certified - so check this carefully.

The area Crown Prosecutor or advocate must immediately notify Special Crime Division - telephone the lead caseworker (for general administrative assistance) or the lead lawyer.

The case papers [see below] must be sent to Special Crime Division because specialist counsel will be required to draft a petition for leave to appeal to the House of Lords. Note in particular:

Drafting a petition takes time. It is unprofessional to submit papers (that are to hand) to Special Crime Division later than seven days after Day 1.
Special Crime Division will make its own selection of counsel. Areas should not indicate to trial counsel or the advocate, however experienced, that they will be instructed to appear in the House of Lords.

The case papers must include the following:

Indictment
Order of the Court below certifying a point of law and refusing leave to appeal to the House of Lords
Order appealed from, if separate.
Official Transcript of the judgment of the Court of Appeal or Administrative Court
Order of the court of first instance; Crown Court Certificate of conviction or Magistrates Court Memorandum of conviction
Official Transcript of the judgment of the Court of first instance or of the case stated
Sufficient papers (probably all or part of the trial brief) to allow counsel drafting the petition for leave to appeal to give:
- A chronology of the proceedings so far
- The prosecution case at trial
- Details of the matter complained of (e.g. if the issue is the admission of bad character evidence, say why the prosecution wished to rely on this)

NB: Do not delay submission because any of the above is not immediately available and is awaited; it can be sent when received.

The Petition for Leave must be drafted and lodged at the House of Lords within 28 days of the refusal of leave by the Court of Appeal or Administrative Court. [For exact procedure see below] - this is all carried out by Special Crime Division.

The petition for leave to appeal drafted by Counsel is then:

Engrossed (namely put on A4 paper and securely bound)

Served on the defendant's solicitors in person or by first class post.

Endorsed and signed at the back to show service on defence

Neutral citations for every law report cited in the courts below and a 'head note' style summary are given.

Lodged at the House of Lords by someone familiar with the petition, with a copy of the order appealed from and, if separate, a copy of the order of the court below certifying the point of law and refusing leave to appeal to the House of Lords. No fee is payable if it is a criminal matter, but there is a fee (currently £570 payable on lodging the petition for leave and the same again on lodging the petition of appeal) on a civil case e.g. confiscation.

Within one week of lodging the petition, the following must also be lodged:

Four copies of petition
Four copies of order appealed from
If separate, four copies of the order of the court below certifying the point of law and refusing leave to appeal to the House of Lords
Four copies of the official transcript of the judgment of the court below
Four copies of order of the court of first instance
Four copies of the official transcript of the judgment of the court of first instance or of the case stated
Four copies of any unreported judgment cited in the petition or judgment of a court below
One copy of any other document considered necessary.

Petitions for leave to appeal to the HOL are considered by an Appeal Committee consisting of three Lords of Appeal and are generally decided on the papers without a hearing. If the Appeal Committee is unanimous that the petition should be allowed, the House will grant leave outright. Respondents may submit written objections stating why leave to appeal should be refused (as to which see further below 'CPS as respondent')

The decision is communicated by a letter sent from the House of Lords Judicial Office to Special Crime Division, usually to the caseworker in the Division. The period this may take is not fixed and can be many months later.

If leave is not granted there is no further action that can be taken.

If the House of Lords grants leave - see Step 5 below.

Step 4A - Leave is granted and a point of law is certified by the Court of Appeal or Administrative Court . A Petition of Appeal to House of Lords will follow

Note that this procedure is rarely used and do not confuse it with the procedure for making a petition for leave to appeal, which is not necessary in this case.

If leave to appeal is granted by the court below, the CPS Area must immediately inform Special Crime Division of the granting of leave by the Court of Appeal or Administrative Court; because there will be Three months from the date of the order appealed from in which to draft and lodge a petition of appeal to the House of Lords.

Case papers must be sent to Special Crime Division who will instruct specialist Counsel to draft the petition of appeal.

The Petition once drafted will be:-

Engrossed (put on A4 paper and securely bound)

Served on the defendants solicitors in person or by first class post

Endorsed and signed at the back to show service on the defence

Neutral citations for every law report cited in the courts below and a 'head note' style summary will be given.

Petition and seven copies lodged at the House of Lords by someone familiar with the petition; with a copy of the order appealed from and, if separate, a copy of the order of the court below certifying the point of law and granting leave to appeal to the House of Lords. (If these orders are awaited then the petition must still be lodged with the orders to follow.)

If there are likely to be Human Rights points a letter to the principal Clerk must be submitted pointing this out at the time of lodging and the point should be clearly stated in the petition.

Step 5 - Leave granted by the House of Lords: a Petition of Appeal to House of Lords follows

If the Appeal Committee is unanimous that a petition should be allowed, the HOL will grant leave outright.

The letter received by Special Crime Division stating that leave is granted will stipulate the time period in which the Petition for appeal is to be lodged. This period is usually a few weeks. If no time limit is set then three months is allowed.

Case papers will already be with specialist Counsel and Special Crime Division, who will instruct Counsel to draft the Petition of appeal.

The Petition once drafted will be:

Engrossed (put on A4 paper and securely bound)

Served on the defendant's solicitors in person or by first class post

Endorsed and signed at the back to show service on the defence

Neutral citations for every law report cited in the courts below and a 'head note' style summary will be given.

Petition and seven copies lodged at the House of Lords by someone familiar with the petition; with a copy of the order appealed from and, if separate, a copy of the order of the court below certifying the point of law and granting leave to appeal to the House of Lords. (If these orders are awaited then the petition must still be lodged with the orders to follow.)

If there are likely to be Human Rights points a letter to the principal Clerk must be submitted pointing this out at the time of lodging and the point should be clearly stated in the petition..

Step 6 - Preparation for the House of Lords Appeal

Counsel for the hearing will be identified and selected by the Special Crime Division lawyer and caseworker allocated to the case. The House of Lords expects leading Counsel to be Counsel who is accustomed to presenting cases at the House of Lords.. The advocate or Counsel who dealt with the case at the court below will be considered for inclusion in the prosecution team of two or sometimes three Counsel.

Counsel will be instructed to draft the following:-

Statement of facts and issues, which is submitted to the Respondent/other side for agreement.

Prepare an appendix containing documents used in evidence or recording proceedings in the court below. For exact content of appendix refer to Practice Directions and Standing Orders Applicable to Criminal Appeals booklet paragraph 13.3. - See below under Miscellaneous.

Skeleton argument of the Crown Prosecution Services case/the appellant.

Crown Prosecutors or advocates will need to check the Statement of Facts and Issues - noting the Lord Chancellors comments in R v Mandair ILR 20.5.94 I would add that it is absolutely necessary that, when an appeal under the provisions of the Criminal Appeal Act 1968 is being prepared for hearing in this House, the Statement of Facts and Issues should state plainly whether any grounds of Appeal have been undetermined by the Court of Appeal, and in their written cases the parties should include submissions on these and how this House should dispose of them.

The next steps are as follows and will be undertaken by Special Crime Division:

Lodge the statement and appendix within six weeks of the presentation of the appeal.

Provide 8 copies of the:

Statement of Facts and Issues

The parties' case (Skeleton arguments) for both sides.

Part I of the appendix - for details of this refer to the Practice Directions and Standing Orders applicable to Criminal Appeals -2007 to 2008 edition, as to which see below

The Respondent's additional documents

Special Crime Division will notify the Area of dates of conferences, hearings to enable attendance, as well as sending the Area copies of any documentation for information and consultation.

The hearing will normally be listed a number of months later. If the case is important and or has ECHR issues, the case can be fast tracked and listed more quickly. This fast tracking will be considered and dealt with by Special Crime Division, in liaison with Policy Division and the Attorney General's Office.

Special Crime Division will attend the hearing and inform the local CPS office in advance so they, the victims/family and police can attend, if they wish.

To attend the hearing, application needs to be made in advance (by letter) by the Caseworker at Special Crime Division for special passes from the Judicial Office at the House of Lords. But members of the public (including victims and police officers) do not need special admission passes and do not need to give prior notice of an intention to attend. They can simply attend at the St. Stephen's entrance to the Palace of Westminster and queue for admission, which will take about 15 minutes on an average day.

The judgment is usually delivered on a separate day after the hearing. (It will probably be helpful to point this out to a victim who wishes to attend). This can be weeks or months later. Those involved can attend after obtaining passes in the manner indicated above.

Miscellaneous

CPS as the respondent

As soon as the Area know that the defence have obtained the certifying of a point of law or the granting of leave, they should immediately notify CPS Special Crime Division and send the case papers, informing the petitioner that the case will be taken over by SCD.

Special Crime Division will enter an appearance with the Judicial Office. Written objections stating why leave to appeal should be refused may be submitted:

Within 14 days of service on CPS of the petition for leave to appeal
Within 14 days of any invitation by the Appeal Committee to do so
Within 14 days of a petition for leave being referred for an oral hearing

Such objections will be drafted by Counsel for Special Crime Division, served on the petitioner and lodged with the Judicial Office. It is however rare for CPS to lodge objections on its own initiative; generally they will only be lodged if the House requests us to do so. In that case, SCD will instruct counsel to draft the objections and will lodge them with the Judicial Office.

If leave is granted, Special Crime Division will enter an appearance for a second time after receiving the Petition of Appeal.

Special Crime Division will select and instruct Counsel to:

Agree the draft Statement of facts and issues or prepare its own

Agree the appendix.

Draft the skeleton argument on behalf of the Crown/the respondent.

Attend the hearing.

CPS as an interested party

A petition to intervene as an interested party must be drafted as soon as the petition for leave to appeal is served on the CPS and be signed by all parties to the appeal (both petitioner and respondent) before lodging with the Judicial Office.

If permission to intervene is granted, then proceed as for CPS as a respondent.

Practice Directions and Standing Orders applicable to Criminal Appeals -2007 - 2008 edition

This booklet, called the red book because all criminal matters are denoted in the House of Lords by their red covers, contains details of the above practices and the forms to be used. A copy is held by the Special Crime Division and print copies are obtainable from the Judicial Office at the House of Lords telephone 0207 219 3111. Alternatively, it is available on the Parliament website at www.parliament.the-stationer-office.co.uk/pa/ld/ldjudinf.htm.

Special Crime Division staff unfamiliar with the above procedures, the format and style on documents/forms used must refer to this booklet and to internal guidance when dealing with a case.

If Counsel is unfamiliar with the procedure and practice in the House of Lords cases and format of the statement of facts and issues etc they must refer to this booklet also.

Note - the booklet is updated every few years and a check to see the up to date booklet is used is critical.

Further information

Booklet "Practice Directions and Standing Orders applicable to Criminal Appeals" 2007 to 2008 edition, approved by the House of Lords on 8 October 2007.

Useful telephone numbers

Judicial office of the House of Lords: 020 7219 311. Fax 020 7219 2476 - but note practice directions require that the Judicial Office is contacted by fax (or email) only in cases of urgency. No document can be served by fax.

Special Crime Division:

Head of Division 020 7796 8491
Head of Division's PA 020 7796 5153
Head of Crime Unit 020 7710 6035
Head of Extradition Unit 020 7796 8486
Lead lawyer 020 7796 8503
Lead caseworker 020 7796 8294