Coates & Ors, R v

For an appeal against conviction, Supreme Court Act 1981, section 55 requires a court of at least three judges to make a final determination. Agreement between the judges after argument, even on both outcome and reasons, is not final while any judge remains free to reconsider the decision. If a judge dies before that point, the two survivors cannot determine the appeal or give the reserved judgment.

By contrast, where the court has announced in open court that an appeal is allowed or dismissed, or an application granted or refused, the decision is final. The later death of a member before written reasons are supplied does not invalidate it. The surviving judges may provide the reasons.

Four appellants had brought separate appeals arising from convictions in the Crown Court. The appeals of Coates and Graves arose from Basildon Crown Court. Terry's appeal arose from Winchester Crown Court. The relevant appeals were heard by a three-judge Court of Appeal presided over by Kay LJ.

After the hearings, the judges agreed the outcomes and reasons, and Kay LJ was to prepare the court's judgments. He died before doing so. Some renewed applications for leave had, however, already been refused orally in open court, with reasons reserved. The issue was whether the two surviving judges had jurisdiction to give judgments or reasons.

1. The court held that the reserved appeals against conviction had not been determined before Kay LJ's death. Under Supreme Court Act 1981, section 55, an appeal against conviction must be determined by a court of no fewer than three judges. This was a jurisdictional requirement, not a procedural defect capable of being overlooked.

2. The judges' post-hearing agreement on outcome and reasons was provisional. Before a draft judgment had been prepared and considered, any judge could reconsider the facts, law, outcome, or emphasis of the reasons. A judge would have been obliged to communicate such a change to the others. Further submissions or newly cited authorities could also require reconsideration. The decision therefore did not bind the judges themselves and was not a determination of the court.

3. The court distinguished R (Anufrijeva) v The Home Secretary [2004] 1 AC 604. That case concerned when a decision already made by the Secretary of State took legal effect through notification. The present question was whether a judicial determination had been made at all.

4. A contrary conclusion applied to decisions announced in open court at the end of the hearing. An express order allowing or dismissing an appeal, or granting or refusing an application, is a final determination even where reasons are reserved. The later death of a judge does not vitiate that decision, and the remaining judges may give the reasons.

5. Accordingly, the undetermined conviction appeals were to be reheard before a freshly constituted court. The publicly announced refusals of renewed leave remained effective. The outstanding conviction issue for Colman and Terry, and the sentence appeals, were directed to be dealt with by the court hearing the reheard matter.

• Court of Appeal (Criminal Division): The court held that the reserved appeals had not been determined before the presiding judge's death and directed a rehearing before a fresh constitution.
• Basildon Crown Court: Coates and Graves were convicted on 4 April 2003 and appealed.
• Winchester Crown Court: Terry was convicted on 8 February 2002 and appealed.
• Colman: The originating court and date are not stated in the judgment.