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Law Report: Powers of appeal should be clarified: Regina v Berry - Court of Appeal (Criminal Division)(Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Otton and Mr Justice Kay), 28 September 1993

If the Court of Appeal indicates it will allow an appeal on one ground, leaving others unresolved, the Crown should inform the court before judgment whether they will seek certification of the one point for consideration by the House of Lords, so that the Court of Appeal can decide whether, out of caution, the other grounds ought to be considered.

The Court of Appeal allowed the appellant's appeal against conviction of making an explosive substance contrary to section 4 of the Explosive Substances Act 1883.

At the appellant's trial in 1981, the Crown's forensic science officer gave evidence that electronic timers manufactured by the appellant were designed for terrorist operations. The appellant said that he supplied the timers to the Syrian government, not to terrorists. The defence expert, who lacked experience of terrorist weaponry, said the timers could be for other purposes. The appellant was convicted and appealed on a number of grounds.

In 1984, the Court of Appeal quashed his conviction on a point of jurisdiction, and did not consider the other grounds. The House of Lords allowed the Crown's appeal and the appellant's conviction was restored. However, the appellant left the country until 1989 when he continued to serve his sentence of imprisonment.

In 1989 on an application to the Court of Appeal to adjudicate on the unresolved grounds of appeal, the Court of Appeal ruled it had no power to relist the case. In 1992 the Court of Appeal decided it was competent to entertain an appeal on a reference by the Home Secretary.

Geoffrey Robertson QC and Edward Fitzgerald, who did not appear previously (Registrar of Criminal Appeals) for the appellant; David Cocks QC and Jonathan Fisher (CPS) for the Crown.

LORD TAYLOR LCJ, giving the court's judgment, said that section 4 applied to a person who made or had in his possession or had under his control an explosive substance. All three categories of person must be shown to have known that the substance was an explosive substance. The trial judge, in summing up, did not convey that the jury had to be sure that the maker intended the timer to be used to cause explosions.

The judge also failed to deal adequately with the defence that the explosive substance was made for a 'lawful object'.

Fresh expert evidence for the defence disagreed with the extremely dogmatic prosecution evidence at trial, which played a crucial part in the jury's deliberations. The jury's verdict could not be regarded as safe and satisfactory and the appeal must be allowed.

The Court of Appeal regretted that it had taken so long for the matter to be concluded and wished to consider how such protraction of proceedings could be avoided in future.

If one of a number of grounds of appeal appeared well-founded, the Court of Appeal not infrequently indicated that it would allow the appeal on that ground without hearing argument on the others. That was a desirable option in the interests both of the speedy and economical disposal of the case. If the Crown appealed successfully to the House of Lords, the unresolved grounds fell between two courts.

It was desirable that Parliament clarify the position by giving the House of Lords power, either to consider any unresolved grounds additional to the certified point of law or to remit them for consideration by the Court of Appeal. Consideration should also be given to granting the Court of Appeal power to reserve argument on unresolved grounds with liberty to apply. Meanwhile, in any case in which this court was minded to allow an appeal on one ground, leaving others unresolved, the Crown should inform the court before judgment if there was any reason to believe they would seek to have the decisive point certified for consideration by the House of Lords. Then this court could decide whether, out of caution, the other grounds ought to be considered there and then.