R v Mohammed Saddam Hussain & Anor

Under Criminal Appeal Act 1968, section 33 permits a further appeal only from a Court of Appeal decision on an appeal pursued with leave and determined on its merits. The Court of Appeal has no power to certify a point of law arising solely from its refusal of leave to appeal.

That statutory restriction is compatible with Article 6 of the European Convention on Human Rights. It is a proportionate filter for second appeals and does not impair the essence of access to a court. A fact-specific application of the established law of secondary liability does not itself raise a point of law of general public importance.

The applicants had been convicted of murder on 15 February 2021 and sentenced to life imprisonment. On 16 June 2023 the Court of Appeal refused Hussain leave to appeal against conviction and refused Fiaz leave to appeal against conviction and sentence, leave to adduce fresh evidence, and permission to amend his grounds.

They then sought certification of 11 alleged points of law of general public importance and leave to appeal to the Supreme Court. They contended that the statutory bar on an appeal following a refusal of leave was incompatible with human rights legislation, and that the earlier decisions had wrongly widened secondary criminal liability and produced a disproportionate sentence.

The central issue was whether the court could certify questions arising from its decisions refusing leave to appeal.

1. The applications were refused. Section 33 of the Criminal Appeal Act 1968 confines a Supreme Court appeal to a decision of the Court of Appeal on an appeal pursued with leave and determined on its merits. Applying R v Garwood and Others [2017] EWCA Crim 59, the court had no power to certify a point of law arising from its refusals of leave. That conclusion disposed of the applications.

2. The applicants could not avoid that restriction by invoking Article 6 or Article 14 of the European Convention on Human Rights. Following R v Dunn [2010] EWCA Crim 1823, the statutory certification requirement pursues the legitimate aim of filtering second appeals. It is coherent and proportionate, and does not deny the essence of access to a court. The applicants had received a full oral hearing of their leave applications and written reasons for their rejection.

3. The references to the Bill of Rights Act 1689 and the Accessories and Abettors Act 1861 did not permit departure from the statutory scheme enacted by Parliament.

4. In any event, none of the remaining proposed questions warranted certification. The earlier decision had applied the established principles in R v Jogee [2016] UKSC 8. A secondary party must be proved to have assisted or encouraged the principal to commit the crime, or type of crime, actually committed. The suggested requirement of a measurable contribution added nothing to that requirement. The earlier fact-specific application of those principles did not alter the boundaries of secondary liability or raise a point of law of general public importance.

5. The challenge to Fiaz’s minimum term also overlooked section 322(4) and Schedule 21, paragraph 8 of the Sentencing Act 2020, under which a minimum term of any length may be specified regardless of the starting point.

• Court of Appeal (Criminal Division): In the present decision, [2023] EWCA Crim 1100, the court refused to certify points of law of general public importance and refused leave to appeal to the Supreme Court.

• Court of Appeal (Criminal Division): On 16 June 2023, the court refused Hussain leave to appeal against conviction and refused Fiaz’s applications for leave to appeal against conviction and sentence, fresh evidence, and amendment of grounds. The citation is not stated in the judgment.

• Trial court: On 15 February 2021, the applicants were convicted of murder and sentenced to life imprisonment. The trial court is not identified in the judgment.