31/07/06 - R v Steele and others

CRIME — Court of Appeal (Criminal Division) — Jurisdiction — Judgment handed down in absence of one member of court — Whether appeal legally determined on that date — Supreme Court Act 1981, s 55

R v Steele and others

CA: Maurice Kay LJ, Openshaw J and Sir Charles Mantell: 31 July 2006

An appeal was determined for the purposes of s55 of the Supreme Court Act 1981 when all three members of the court had indicated their approval of the draft judgment and had authorised its release to counsel. The Court of Appeal (Criminal Division) so held when refusing an application by the appellants, Michael Steele, Peter Thomas Corry and Jack Arthur Whomes, to make further submissions on the merits of their appeals against conviction.

The appellants had been convicted on 20 January 1998 at the Central Criminal Court (Hidden J and a jury) of conspiracy to contravene section 170(2) of the Customs & Excise Management Act 1979 in relation to the importation of cannabis resin (count 1). Steele and Whomes had also been convicted of three counts of murder (counts 2, 3 and 4). Steele had been acquitted of possession of a prohibited firearm. Their application for leave to appeal against conviction had been refused on 25 January 1999. The Criminal Cases Review Commission had referred the case back to the Court of Appeal on the grounds that there was fresh evidence.

MAURICE KAY LJ said that when judgment had been handed down on 22 February 2006, Openshaw J had not been in court. Thus, it was submitted, by reference to s55 of the Supreme Court Act 1981 it remained an undetermined appeal. Reference was made to R v Coates [2004] EWCA Crim 2253; [2004] 1 WLR 3043, para 22, in which Judge LJ had observed that an appeal was “determined” for the purposes of s55 when the decision was properly to be treated as binding on the judges themselves. In their Lordships’ judgment that point was reached when all three members of the court indicated their approval of the draft and authorised its release to counsel. The appeal had not been “determined” by the court on 22 February. What had happened on that day had simply been the formal promulgation of the judgment. It had been their Lordships’ view that it was in the public interest to hand down the judgment as soon as possible without disrupting the trial over which Openshaw J had been presiding in Liverpool. Accordingly, their Lordships had no jurisdiction to receive further submissions on the merits of the case.

Appearances: Helena Kennedy QC and Tony Badenoch (Alexander Johnson) for Steele; Abbas Lakha QC and Richard Keogh (Erica Peat and Diable) for Corry; Henry Blaxland QC and Peter L Clark (Taylor Nichol) for Whomes; Andrew Monday QC and John Dodd (Crown Prosecution Service, Essex) for the Crown.

Reported by: Clare Barsby, barrister.