Kinsella v Criminal Cases Review Commission

The character of proceedings for jurisdictional purposes depends on the nature of the underlying decision challenged. A challenge to the Criminal Cases Review Commission’s refusal to refer a conviction or sentence back to the Court of Appeal concerns a criminal cause or matter. The Court of Appeal therefore has no jurisdiction to hear an appeal from the Divisional Court in such proceedings, even where the complaint is framed as a procedural error concerning the applicant’s attendance or representation.

The claimant, convicted of conspiracy to rob, applied to the Criminal Cases Review Commission for a reference of his case to the Court of Appeal. The Commission refused. Turner J refused permission to apply for judicial review, and Kennedy LJ refused the renewed application after considering written submissions.

The claimant sought to appeal to the Court of Appeal, challenging procedural decisions concerning his production from prison and attendance. The central issue was whether the proceedings concerned a criminal cause or matter, so that the Court of Appeal lacked jurisdiction.

1. The Court of Appeal confirmed Master Venne’s decision that it had no jurisdiction to entertain the proposed appeal.
2. For this purpose, the relevant question was the nature of the underlying decision sought to be reviewed, not the particular procedural complaint advanced in the proposed appeal.
3. The decision challenged by judicial review was the Criminal Cases Review Commission’s refusal to refer the claimant’s conviction case back to the Court of Appeal. The Commission’s referral power was an extension of a convicted person’s rights to appeal against conviction or sentence and therefore concerned a criminal cause or matter.
4. The court followed the approach stated in Queen v The Secretary of State for the Home Department ex parte Garner (unreported transcript, 15 June 1999), and noted that it had been followed in Saxon v Criminal Cases Review Commission.
5. The claimant’s absence did not alter the result. He had been given opportunities to arrange his production or provide written submissions. A copy of the ruling was to be supplied to him at public expense.

• Court of Appeal (Civil Division): confirmed Master Venne’s ruling that the court had no jurisdiction to hear the proposed appeal.
• Divisional Court: Kennedy LJ refused permission to apply for judicial review after considering the claimant’s written material.
• High Court: Turner J refused the initial application for permission on paper.