Garwood & Ors, R v

A refusal of leave to appeal is not a decision of the Court of Appeal on an appeal for the purposes of section 33 of the Criminal Appeal Act 1968. The court therefore has no jurisdiction to certify a point of law of general public importance for a further appeal in such a case.

The statutory distinction between an appeal and an application for leave remains material. A party granted leave on one ground cannot use that leave to obtain a certificate concerning a separate, post-change-of-law ground which itself requires exceptional leave. A proposed question framed by the particular facts of an incident, and already answered by existing authority, is not a point of law of general public importance.

The applicants had previously sought to challenge their convictions out of time following the decision in R v Jogee, Ruddock v The Queen [2016] UKSC 8. In the earlier Court of Appeal proceedings, the court held that exceptional leave required proof of substantial injustice and refused relief.

They then applied for certificates that points of law of general public importance arose, principally concerning the approach to substantial injustice. Miah, who had leave on a separate ground concerning the tailoring of the jury directions on participation, also sought a certificate on the participation necessary for joint enterprise murder. The central issue was whether the court could certify a point of law after refusing leave to appeal.

1. The applications were refused. Section 33(1) of the Criminal Appeal Act 1968 permits an appeal to the Supreme Court only from a decision of the Court of Appeal on an appeal. That phrase denotes an appeal which has received leave and has been determined on its merits. It does not include a decision refusing leave to appeal.

2. The wording of Part I distinguishes throughout between an appeal and an application for leave. Section 51(1), which includes within “appellant” a person who has given notice of an application for leave, did not alter that distinction for Part II. The contrast between section 33(1), which refers to an appeal, and section 33(1B), which refers to a decision arising from an originating retrial order, reinforced that construction.

3. The Court followed R v Stafford & Luvaglio (1969) 53 Cr App R 1, R v Mealey & Sheridan (1974) 60 Cr App R 59, and R v Moulden [2004] EWCA Crim 2715. Those authorities established that the power to certify arises only after a decision on an appeal, not after an application for leave. They were binding in any event, and the Court independently agreed with their statutory construction.

4. Section 16C of the Criminal Appeal Act 1968 supported the conclusion that Parliament had retained the ordinary extension-of-time approach where a case is referred because of a later legal development. Further, R v Jogee, Ruddock v The Queen [2016] UKSC 8 itself recognised both exceptional late leave and the need to establish substantial injustice. The Court did not reconsider the merits of the substantial-injustice approach because it lacked jurisdiction to certify the point.

5. Miah’s existing leave concerned a distinct complaint about jury directions. The further Jogee ground remained subject to the exceptional-leave requirements. His proposed question about participation was fact-specific and was already answered by Jogee and the earlier Court of Appeal decision. It was not suitable for certification.

• Court of Appeal (Criminal Division) Refused the applications for certificates, holding that it lacked jurisdiction under section 33 of the Criminal Appeal Act 1968 after refusing leave to appeal.
• Court of Appeal (Criminal Division) In R v Johnson and other cases [2016] EWCA Crim 1613, determined the applicants’ earlier post-change-of-law applications by applying the substantial-injustice threshold.
• Crown Court The convictions originated in the Crown Court; further details and citations are not stated in the judgment.