In a series of cases the Court of Appeal (Criminal Division) refused the applicants exceptional leave to appeal against conviction out of time, holding that such leave should only be granted where there had been substantial injustice and that substantial injustice had not been shown. The applicants invited the court to certify, pursuant to section 33(2) of the Criminal Appeal Act 1968, that a point of law of general public importance was involved in its decisions as to the proper approach to determining whether there had been a substantial injustice. The applicants contended that unless a certificate were granted the Court of Appeal (Criminal Division) would be the final arbiter of that test.
On the application and on the question whether the Court of Appeal had jurisdiction to grant a certificate where it had refused to grant leave for the original appeal—
Held, application refused. The right of appeal to the Supreme Court came within section 33 of the Criminal Appeal Act 1968 which contained the phrase in subsection (1) “from any decision of the Court of Appeal on an appeal”. That clearly referred to the determination of an appeal which had been pursued with leave and determined on its merits. There was also binding authority on the point. Although it was recognised that, as a consequence, the approach of the court in these cases in relation to substantial injustice could not be challenged further, it was clear that the court had no jurisdiction to certify that a point of law of general public importance arose where leave to appeal to the Court of Appeal had been refused (paras 7, 9, 10, 12, 15).
Sarah Forshaw QC (assigned by the Registrar of Criminal Appeals) for the applicant Garwood.
Tim Moloney QC and Jude Bunting (assigned by the Registrar of Criminal Appeals) for the applicant Hall.
Michael Turner QC (assigned by the Registrar of Criminal Appeals) for the applicant Miah.
John McGuinness QC (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.