Dunn v R.

A certification requirement for a second criminal appeal is compatible with Article 6 where the court decides only whether its decision raises a point of law of general public importance. That decision does not determine a criminal charge or amount to an appeal against the court’s own decision. A fair-minded and informed observer would regard the court which decided the appeal as well placed to identify such a point.

Article 2 of Protocol 7 permits lawful and proportionate limits on access to a final appellate court. Section 33(2) of the Criminal Appeal Act 1968 is a legitimate filter for rare second appeals and does not impair the essence of the right of access. Different appellate arrangements in civil proceedings do not establish discrimination contrary to Article 14.

The appellant was convicted by a jury. The Court of Appeal dismissed his substantive appeal on 23 June 2009 after concluding that the conviction was safe. It also declined to certify a point of law of general public importance under section 33(2) of the Criminal Appeal Act 1968.

He then applied for a declaration that section 33(2) was incompatible with Articles 6 and 14 of the European Convention. He contended that the certification process created apparent bias because the court decided whether its own ruling should be reviewed by the Supreme Court. He also alleged that the restriction on a second appeal impaired access to a court and discriminated against criminal defendants when compared with civil litigants.

1. The application was refused. Section 33(2) of the Criminal Appeal Act 1968 was compatible with the Convention, and the court declined to certify the compatibility issue for a further appeal.

2. The apparent-bias argument failed under the test stated in Porter v Magill [2002] 2 AC 357. When considering certification, the Court of Appeal was not determining a criminal charge and was not hearing an appeal against its own decision. It was deciding whether the substantive decision involved an important point of law. A fair-minded, informed and rational observer would regard the court which made the decision as particularly well placed to make that assessment, rather than as influenced by a wish to prevent review by the Supreme Court.

3. Article 2 of Protocol 7 allowed member states a broad discretion to regulate the grounds and modalities of appellate review. The requirement of certification pursued the legitimate aim of reserving the Supreme Court’s limited criminal jurisdiction for rare cases involving points of general public importance. It was a coherent and proportionate mechanism for filtering second appeals, particularly after an Article 6-compliant trial and first appeal.

4. A refusal to certify did not impair the essence of access to the Supreme Court. The appellant remained entitled to an impartial determination, under legal principles, of whether his case met the statutory threshold. A negative decision on that question did not itself deny the substance of the right of access.

5. Article 14 added nothing. Criminal defendants were treated alike, while the differing scope of the Supreme Court’s criminal and civil jurisdictions supplied a material basis for different appellate arrangements.

• Court of Appeal (Criminal Division) — Following the jury conviction, the court dismissed the substantive appeal on 23 June 2009 and declined certification under section 33(2) of the Criminal Appeal Act 1968. On the later compatibility application, it refused relief: [2010] EWCA Crim 1823.
• Trial court — The jury convicted the appellant. The identity and citation of the trial court are not stated in the judgment.