Law Report: Hearing of reference could be adjourned

Friday Law Report: 28 May 1999 R v Smith (Wallace Duncan) Court of Appeal, Criminal Division (Lord Justice Roch, Mr Justice Harrison and Mr Justice Elias) 18 May 1999

THE COURT of Appeal could adjourn an appeal against conviction referred to it by the Criminal Cases Review Commission to await the Commission's decision whether to refer another conviction arising out of the same trial. The Commission was not obliged to refer all matters arising out of the same trial to be heard by the Court of Appeal at the same time.

The Court of Appeal adjourned the hearing of the appellant's appeal against conviction pending the decision of the Criminal Cases Review Commission whether to refer his conviction on another count to the court.

The appellant was convicted on 24 February 1994 of fraudulent trading on count one in an indictment, and on counts three and four of obtaining property by deception. On 3 November 1995 his appeal against conviction was dismissed, and the House of Lords subsequently refused leave to appeal. Following the decision of the House of Lords in the case of R v Preddy [1996] 3 All ER 481 the appellant's convictions on counts three and four were referred to the Criminal Cases Review Commission. His conviction on count one was also referred.

The Commission referred the convictions on counts three and four to the Court of Appeal. The Commission considered that it would be unjustifiable to to delay the referral of those counts pending what was potentially an extremely time-consuming review of count one. The matter of count one had since progressed to the extent that the Commission had given a best estimate that its review of count one could be completed "not before October".

The prosecution applied for an adjournment of the hearing to allow the Commission to decide whether to refer count one to the court, so that all three convictions could be considered at the same time. They submitted, inter alia, that there was no statutory authority for the Commission to refer certain of an appellant's convictions to the court whilst still entertaining an application to refer other convictions arising out of the same trial.

The appellant submitted, inter alia, that in the absence of a decision by the Commission to refer the conviction on count one to the Court of Appeal, there existed no basis on which the court could adjourn the appeal. The reference of the convictions on counts three and four constituted an appeal under section 9(2) of the Criminal Appeal Act 1995 and the court's duty was to hear that appeal and not to speculate as to whether there would be a further reference in relation to count one.

Simon Stafford-Michael (Titmuss Sainer Dechert) for the appellant; Timothy Barnes QC (Serious Fraud Office) for the Crown.

Lord Justice Roch said that the wording of the relevant sections in the Criminal Appeal Act 1995 did not mean that the Commission might make only one reference to the Court of Appeal, so that all convictions, verdicts or findings in a single trial had to be referred by the Commission to the court on a single occasion.

The court clearly had the power to regulate the way in which appeals were conducted before it, and that general power included a power to adjourn the hearing of an appeal if practical considerations required the matter to be adjourned. The court therefore proceeded on the basis that it had a discretionary power to adjourn the hearing of an appeal if, in its judgment, the circumstances called for such an adjournment.

The practice in appeals where leave to appeal had been given in the usual way was that all grounds which the appellant wished to raise had to be raised and resolved in that appeal. That practice arose from factors which were equally valid when a case was referred to the court by the Commission.

The hearing of all points by the same court saved time and expense, and avoided inconsistent views being taken of the same case. In the particular circumstances of the present case the court had no doubt that the hearing of the appeal should be adjourned to enable the Commission to reach a conclusion on the application before them to refer count one to the court.

Kate O'Hanlon

Barrister