The sentencing judge had exceeded his powers by making a criminal bankruptcy order. S40 appeared to deny a right of appeal against such an order.
Held: There is a strong presumption that except by specific provision the legislature will not exclude a right of appeal as of right or with leave where such a right is ordinarily available, and the section must be construed as being subject to an implied limitation that an appeal would lie where the issue raised was that the court in making the order had exceeded the power conferred on it by Parliament. Court orders are effective in law, and must be obeyed, unless and until set aside. ‘The terms used to formulate the law by the judges of the Court of Appeal (which include myself in Wehner’s case) have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971. Nor is the question really one of jurisdiction: it is a question whether the court has exceeded its power. An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken. But the terms used by the courts do not vitiate their reasoning. . . .’
Judges:
Scarman L
Citations:
[1985] AC 46, [1984] 2 All ER 737, [1984] 3 WLR 393
Statutes:
Powers of Criminal Courts Act 1973 39 40(1), Courts Act 1971 4(1)
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Wehner 1977
. .
Cited by:
Cited – West Yorkshire Police v Lincoln Crown Court and Another Admn 27-Apr-2005
Police officers had unlawfully tape recorded private and confidential conversations between a suspect in custody and his solicitor. The police officers who had been asked to investigate the complaint appealed against an order saying that the tapes . .
Cited – Regina v Maidstone Crown Court, ex Parte Harrow London Borough Council QBD 30-Apr-1999
The High Court may review, on an application made by a properly interested party, a decision made by a Crown Court under the Act. Although this related to a trial on indictment, the Crown Court judge had made an order without jurisdiction. . .
Cited – Regina v Dickens CACD 11-Apr-1990
The defendant had been convicted of conspiring to import cannabis, and made subject inter alia to a confiscation order.
Held: ‘ the object of the Act is to ensure, so far as is possible, that the convicted drug trafficker is parted from the . .
Cited – Regina v Emmett and Another HL 16-Oct-1997
The defendants had been arrested as they unloaded four tons of cannabis from a boat.
Held: Their appeal against a confiscation order was allowed despite the acceptance of a statement when the acceptance had been based on a mistake of law or . .
Cited – Longworth, Regina v HL 26-Jan-2006
The appellant had been given a conditional discharge for possession of one indecent photograph of a child on his computer. He challenged being placed on the sex offenders’ register.
Held: The proceedings did not involve, or have as any part of . .
Cited – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 29 April 2022; Ref: scu.185685