Steele, R. v

An appeal is determined for the purposes of Supreme Court Act 1981 section 55 when the decision has become binding on the judges who heard it. Where every member has approved a reserved judgment and authorised its release, a later public hand-down is formal promulgation only. The absence of one judge from that hand-down does not leave the appeal undetermined.

An application for leave to appeal may lawfully be resolved on written submissions where that procedure causes no unfairness. A certificate under Criminal Appeal Act 1968 section 33(2) should be refused where no point of law of general public importance arises and the application merely seeks to reopen fact-specific appellate issues.

Following an earlier criminal appeal, the court issued this pronouncement on applications connected with a proposed appeal to the House of Lords. Steele and counsel for another appellant contended that the earlier appeal had not been legally determined because Openshaw J had been absent when the reserved judgment was handed down on 22 February 2006.

They sought to make further submissions on the merits and objected to the court deciding the application under Criminal Appeal Act 1968 section 33(2) without oral argument. The court had to decide whether its prior judgment had been determined, whether written submissions were procedurally sufficient, and whether the case raised a point of law of general public importance.

1. The application was refused. The court declined to certify a point of law of general public importance for an appeal to the House of Lords.
2. The court rejected the contention that the earlier appeal remained undetermined under Supreme Court Act 1981 section 55. A court need not reassemble all three judges for the public hand-down of a reserved judgment. Hand-down is the formal promulgation of a judgment which has already been approved by every member of the court. An appeal is determined when the decision is binding on the judges themselves, which occurred when all three judges approved the draft and authorised its release. The court therefore had no jurisdiction to receive further submissions on the merits.
3. The court held that it could determine the application for leave to appeal on the papers. The appellants had made extensive written submissions, including supplementary material. They had received more opportunity to present their case than the limited time available for oral submissions would have allowed. No unfairness arose, and the procedure did not contravene Article 6 of the ECHR because the proceedings were no longer at the trial stage.
4. Finally, the court found no point of law of general public importance. The matters advanced were confined to the facts and circumstances of the particular appeal and amounted to an attempt to reargue it. The certificate application was therefore refused.

• Court of Appeal (Criminal Division): The court had already determined the underlying criminal appeal when all three judges approved the reserved judgment and authorised its release. In this subsequent pronouncement, it rejected the contention that the absence of one judge from the formal hand-down invalidated that determination and refused the application under Criminal Appeal Act 1968 section 33(2).