The applicant renewed his application for leave to appeal, which had been refused by the single judge. He instructed solicitors who wrote to the court to advise that they intended to instruct Counsel on the renewed application. Due to an administrative error the renewed application was listed, heard and dismissed on 14 June 1976 without notice to the applicant’s lawyers. The order was recorded by the Crown Court. When an application was made to re-hear the matter, the court decided on 14 September 1976 that it was bound by Cross to dismiss the application on the ground that it was functus officio.
Held: Although the appeal was dismissed on the merits, the court considered in detail the question of jurisdiction. After referring to Majewski, Lawton LJ concluded that: ‘It follows, in our judgment, that [Cross] did not apply when what has happened is a nullity.’
Lawton LJ then asked whether the court had jurisdiction in the circumstances of a case where the applicant had been deprived of his right to be represented by counsel. He answered the question: ”This court clearly has jurisdiction within the ambit of the Criminal Appeal Act 1968 and the Rules of 1968 to see that no injustice is done to any defendant in the course of any application or appeal. If in any particular case, because of a failure of the court to follow the rules or the well established practice, there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in R v. Cross that a case should be relisted for hearing. It is pertinent to point out that in R v. Cross the court had heard arguments by counsel on the merits before any question arose about rehearing the appeal, for such it was. The kind of problem which has arisen in this case was never considered.
It follows that this court acted per incuriam in adjudging, on September 14, 1976, that it had no jurisdiction to consider the defendant’s application. The court had such jurisdiction.
Before leaving this subject the court would stress that save in cases in which what has happened is a nullity, the jurisdiction to relist depends on the likelihood of an injustice having been done. That is for the court itself to decide. There may not be a likelihood of injustice if, from the written grounds of appeal and any supporting documents, it is clear beyond argument that the application cannot succeed.’
Judges:
Lawton LJ
Citations:
[1977] 64 Cr App R 50
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Cross (Patrick) CACD 1973
The court had allowed an appeal against sentence; but later the same day the defendant was brought back because the court thought that he had not been frank in answering questions about another offence.
Held: The court set aside its original . .
Cited – Director of Public Prosecutions v Majewski HL 1976
The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that . .
Cited by:
Cited – Blackwood, Regina v CACD 5-Mar-2012
The defendant had succeeded in his appeal against a rape conviction. After the case, and his release, the prosecution sought a retrial. The defendant now argued that the court was functus officio.
Held: An order on an appeal becomes final when . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 06 May 2022; Ref: scu.451799