Schedule 6 I1

“Part 74

Appeal or reference to the House of Lords

Contents of this Part
When this Part applies	rule 74.1
Application for permission or reference	rule 74.2
Determination of detention pending appeal, etc.	rule 74.3
Bail pending appeal	rule 74.4

When this Part applies

74.1

(1)

This Part applies where—

(a)

a party wants to appeal to the House of Lords after—

(i)

an application to the Court of Appeal to which Part 41 applies (retrial following acquittal for serious offence), or

(ii)

an appeal to the Court of Appeal to which applies Part 66 (appeal to the Court of Appeal against ruling at preparatory hearing), Part 67 (appeal to the Court of Appeal against ruling adverse to prosecution), or Part 68 (appeal to the Court of Appeal about conviction or sentence); or

(b)

a party wants to refer a case to the House of Lords after a reference to the Court of Appeal to which Part 70 applies (reference to the Court of Appeal of point of law or unduly lenient sentencing).

(2)

A reference to an “appellant” in this Part is a reference to such a party.

• [Note. Under section 33 of the Criminal Appeal Act 1968^f1 a party may appeal to the House of Lords from a decision of the Court of Appeal on—

  1. (a)

     an application to the court under section 76 of the Criminal Justice Act 2003^f2 (prosecutor’s application for retrial after acquittal for serious offence). See also Part 41.

  2. (b)

     an appeal to the court under—

     1. (i)

        section 9 of the Criminal Justice Act 1987^f3 or section 35 of the Criminal Procedure and Investigations Act 1996^f4 (appeal against order at preparatory hearing). See also Part 66.

     2. (ii)

        section 47 of the Criminal Justice Act 2003^f5 (appeal against order for non-jury trial after jury tampering.) See also Part 66.

     3. (iii)

        Part 9 of the Criminal Justice Act 2003^f6 (prosecutor’s appeal against adverse ruling). See also Part 67.

     4. (iv)

        Part 1 of the Criminal Appeal Act 1968^f7 (defendant’s appeal against conviction, sentence, etc.). See also Part 68.

Under section 13 of the Administration of Justice Act 1960^f8 a person found to be in contempt of court may appeal to the House of Lords from a decision of the Court of Appeal on an appeal to the court under that section. See also Part 68.

• Under article 12 of The Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals in Transitional Cases) Order 2005^f9 a party may appeal to the House of Lords from a decision of the Court of Appeal on an appeal to the court under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003^f10 (appeal against minimum term review decision). See also Part 68.

• Under article 15 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006^f11 a party may appeal to the House of Lords from a decision of the Court of Appeal on an appeal to the court under section 74 of the Serious Organised Crime and Police Act 2005^f12 (appeal against sentence review decision). See also Part 68.

• Under section 24 of the Serious Crime Act 2007^f13 a party may appeal to the House of Lords from a decision of the Court of Appeal on an appeal to that court under that section (appeal about a serious crime prevention order). See also Part 68.

• Under section 36(3) of the Criminal Justice Act 1972^f14 the Court of Appeal may refer to the House of Lords a point of law referred by the Attorney General to the court. See also Part 70.

• Under section 36(5) of the Criminal Justice Act 1988^f15 a party may refer to the House of Lords a sentencing decision referred by the Attorney General to the court. See also Part 70.

• When section 40 of the Constitutional Reform Act 2005^f16 and Schedule 9, paragraphs 16, 23 and 48 of that Act come into force the Supreme Court will take over the jurisdiction of the House of Lords under the provisions listed above. When that happens, references in this Part to the House of Lords must be read as references to the Supreme Court.

• Under section 33(3) of the Criminal Appeal Act 1968 there is no appeal to the House of Lords—

  1. (a)

     from a decision of the Court of Appeal on an appeal under section 14A(5A) of the Football Spectators Act 1989^f17 (prosecutor’s appeal against failure to make football banning order). See Part 68.

  2. (b)

     from a decision of the Court of Appeal on an appeal under section 159(1) of the Criminal Justice Act 1988^f18 (appeal about reporting or public access restriction). See Part 69.

• The rules in Part 65 also apply where this Part applies.]

Application for permission or reference

74.2

(1)

An appellant must—

(a)

apply orally to the Court of Appeal—

(i)

for permission to appeal or to refer a sentencing case, or

(ii)

to refer a point of law

immediately after the court gives the reasons for its decision; or

(b)

apply in writing and serve the application on the Registrar and every other party not more than—

(i)

14 days after the court gives the reasons for its decision if that decision was on a sentencing reference to which Part 70 applies (Attorney General’s reference of sentencing case), or

(ii)

28 days after the court gives those reasons in any other case.

(2)

An application for permission to appeal or to refer a sentencing case must—

(a)

identify the point of law of general public importance that the appellant wants the court to certify is involved in the decision; and

(b)

give reasons why—

(i)

that point of law ought to be considered by the House of Lords, and

(ii)

the court ought to give permission to appeal.

(3)

An application to refer a point of law must give reasons why that point ought to be considered by the House of Lords.

(4)

An application must include or attach any application for the following, with reasons—

(a)

an extension of time within which to make the application for permission or for a reference,

(b)

bail pending appeal,

(c)

permission to attend any hearing in the House of Lords, if the appellant is in custody.

(5)

A written application must be in the form set out in the Practice Direction.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as “leave to appeal”.

• Under the provisions listed in the note to rule 74.1, except section 36(3) of the Criminal Justice Act 1972 (Attorney General’s reference of point of law), an appellant needs permission to appeal or to refer a sentencing case. Under those provisions the Court of Appeal must not give permission unless it first certifies that—

  1. (a)

     a point of law of general public importance is involved in the decision, and

  2. (b)

     it appears to the court that the point is one which the House of Lords ought to consider.

• If the Court of Appeal gives such a certificate but refuses permission, an appellant may apply for such permission to the House of Lords.

• Under section 36(3) of the Criminal Justice Act 1972 an appellant needs no such permission. The Court of Appeal may refer the point of law to the House of Lords or may refuse to do so.

• For the power of the court or the Registrar to shorten or extend a time limit, see rule 65.3. The time limit in this rule—

  1. (a)

     for applying for permission to appeal under section 33 of the Criminal Appeal Act 1968 (28 days) is prescribed by section 34 of that Act^f19. That time limit may be extended but not shortened by the court. But it may be extended on an application by a prosecutor only after an application to which Part 41 applies (retrial after acquittal for serious offence).

  2. (b)

     for applying for permission to refer a case under section 36(5) of the Criminal Justice Act 1988 (Attorney General’s reference of sentencing decision: 14 days) is prescribed by paragraph 4 of Schedule 3 to that Act. That time limit may be neither extended nor shortened.

  3. (c)

     for applying for permission to appeal under article 12 of The Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals in Transitional Cases) Order 2005 (28 days) is prescribed by article 13 of that Order. That time limit may be extended but not shortened.

  4. (d)

     for applying for permission to appeal under article 15 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006 (28 days) is prescribed by article 16 of that Order. That time limit may be extended but not shortened.

• For the power of the Court of Appeal to grant bail pending appeal to the House of Lords, see—

  1. (a)

     section 36 of the Criminal Appeal Act 1968^f20.

  2. (b)

     article 18 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006^f21.

• For the right of an appellant in custody to attend a hearing in the House of Lords, see—

  1. (a)

     section 38 of the Criminal Appeal Act 1968^f22.

  2. (b)

     paragraph 9 of Schedule 3 to the Criminal Justice Act 1988^f23.

  3. (c)

     article 15 of The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005^f24.

  4. (d)

     article 20 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006^f25.]

Determination of detention pending appeal, etc.

74.3

On an application for permission to appeal the Court of Appeal must—

(a)

decide whether to order the detention of a defendant who would have been liable to be detained but for the decision of the court; and

(b)

determine any application for—

(i)

bail pending appeal,

(ii)

permission to attend any hearing in the House of Lords, or

(iii)

a representation order.

[Note. For the liability of a defendant to be detained pending a prosecutor’s appeal to the House of Lords and afterwards, see—

(a)

section 37 of the Criminal Appeal Act 1968^f26.

(b)

article 19 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006^f27.

For the grant of a representation order for proceedings in the House of Lords, see—

(a)

Access to Justice Act 1999, sections 12 and 14 and Schedule 3^f28, and

(b)

The Criminal Defence Service (General) (No. 2) Regulations 2001^f29.]

Bail pending appeal

74.4

Rules 68.8 (Application for bail pending appeal or retrial), 68.9 (Conditions of bail pending appeal or re-trial) and 68.10 (Forfeiture of a recognizance given as a condition of bail) apply.”