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CHAPTER 5
The Higher Courts and European Court
The vast bulk of criminal cases end with conviction and sentence, or acquittal, in
either the magistrates’ court or the Crown Court as described in the foregoing
chapters. However, there are various routes by which a case may go to appeal at
a higher level of judicial decision‐making. These avenues are described in
Chapter 10, Appeal and Review. This chapter looks at the underlying structure of
each of the higher courts involved in such processes. It also looks at the
arrangements for a new Supreme Court from 2009 and the role and import of
the European Court of Human Rights.
Copyright © 2008. Waterside Press. All rights reserved.
REFORM OF THE HOUSE OF LORDS
This chapter is written at a time of impending change. There has, for many
years, been a ‘Supreme Court’, so called. Broadly speaking, this is the
description that has been given to the High Court and Court of Appeal (below)
as an entity. The UK’s first Supreme Court proper and in a wholly new sense of
that term, in the sense of its being the highest court in the land, was created by
the Constitutional Reform Act 2005. That court is scheduled to begin its work in
October 2009.1 It will take over the judicial function of the House of Lords as
described below and become the final court of appeal for England, Wales and
Northern Ireland with regard to criminal cases.2 Centrally, it will hear appeals
on arguable points of law where these are of general public importance.3
Everything said in the remainder of this chapter must be understood in the light
of these developments, some further details of which appear below.
Management of the Supreme Court
It is anticipated that the new‐style Supreme Court will be supported not by HM
Court Service (HMCS) (Chapters 3 and 4) nor, as is currently the case at this
level, the staff of the Houses of Parliament but by a members of a new and
dedicated service currently designated by the working title ‘Supreme Court
This is the latest of a series of dates that have been announced, but would now seem to be
reasonably firm in the light of construction and renovation work starting. The court has its own
web‐site at www.justice.gov.uk/whatwedo/supremecourt.htm
2 And also with regard to civil matters (including, with regard to the latter, in relation to Scotland).
3 The MOJ has UK‐wide responsibilities, whereas HMCS covers England and Wales.
1
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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70 Part I: The Criminal Courts
Staff’. However, as with HMCS staff, they will be civil servants. It will be
housed in Middlesex Guildhall, Westminster.4
Judicial oversight and the judges of the Supreme Court
The President of the Supreme Court (initially a senior Law Lord)5 and its chief
executive will have responsibility for the day‐to‐day administration of the court,
staffing, resources and operation. In balancing independence with ministerial
accountability for the expenditure of public money there will be certain links
with the Lord Chancellor and Ministry of Justice (MOJ) of the kind envisaged
by ‘The Concordat’ (see Chapters 1 and 12). The court will also assume the
jurisdiction of the Judicial Committee of the Privy Council (below).
At the start, the existing Law Lords (Chapter 12) will become the first
Supreme Court Justices (as they will be known). The court will initially have 12
such justices. Existing Law Lords will, technically speaking, also remain non‐
debating members of the House of Lords, but any new justices will be
appointed directly to the Supreme Court and they will not, by virtue of that fact
alone, be or become members of the House of Lords.
Copyright © 2008. Waterside Press. All rights reserved.
The Constitutional Reform Act 2005
These developments form part of a package of measures contained in the
Constitutional Reform Act 2005 that are designed to separate out further the
Executive and Legislature from the Judiciary (Chapter 2) whilst retaining lines of
democratic accountability. The need for the changes arose not just to satisfy the
modernisation needs of UK institutions but also European obligations. Together
with other contemporaneous reforms (some of which are described in Chapters 1
and 12) and developments, the changes mark a significant watershed in the
evolution of the legal system as a whole.
Transition
Consultation on rules for the Supreme Court is being carried out in accordance
with the terms of the 2005 Act (and associated legislation)6 under senior Law
Lord, Lord Bingham of Cornhill, with a view to formulating new Supreme
Court Rules. Until the new Supreme Court is in being, the existing appeal
structure is as outlined in the remainder of this chapter.7
Off Parliament Square and directly opposite to the Houses of Parliament.
It has been announced that the first president will be Lord Phillips, the serving Lord Chief Justice.
6 See Statutory Instrument 227 of 2006.
7 A description of the judges who serve in the higher courts is contained in Chapter 12 in accordance
with the general scheme of the handbook.
4
5
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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71
JURISDICTION OF THE HIGHER COURTS
The higher courts have no ‘first instance’ jurisdiction, except theoretically and
for the time being to the extent that in the House of Lords a peer of the realm
(i.e. a member of that House) may opt to be tried by the House (i.e. by his or her
peers, see generally under Trial by Peers in Chapter 2). This procedure has not
been invoked for some long time and is unlikely to be again. Where members of
the House of Lords have been charged with criminal offences in modern times
they have invariably opted for trial in the ordinary courts and any other course
would undoubtedly now attract political condemnation. It is also likely that
such an attempt would invite challenge in the European Court of Human Rights
(below). Pending implementation of the 2005 reforms, the jurisdiction of the
House of Lords is noted below alongside that of other courts in the hierarchy. In
each of the courts described, geographical jurisdiction extends nationwide
across England and Wales (with certain added or separate powers as described
in relation to the House of Lords and Privy Council).
Copyright © 2008. Waterside Press. All rights reserved.
THE HIGH COURT OF JUSTICE
The High Court deals predominantly with the more important civil disputes
and is split into three divisions: the Queen’s Bench Division (QBD), Chancery
Division and Family Division. It is centred in London at the Royal Courts of
Justice in The Strand (often referred to by practitioners simply as ‘The Strand’).
It may also sit in designated towns and cities across England and Wales from
time‐to‐time as the need arises. In terms of its criminal jurisdiction, the QBD is
the most significant division. It is presided over by the Lord Chief Justice and,
although it has a broad remit to deal with civil actions for damages arising, e.g.
from breach of contract and libel, commercial disputes and Admiralty cases, a
Divisional Court of the QBD deals with appeals from magistrates’ courts and
possibly Crown Courts by way of case stated which is a special, largely legally‐
based form of challenge (see further in Chapter 10).
Additionally, the High Court has a general supervisory jurisdiction in
relation to a wide range of courts, tribunals and public bodies and their
officers—including, e.g. the criminal courts, the police, law officers, government
departments, their ministers, local authorities, elected or appointed members of
public authorities and relevant staff. This function is known as ‘judicial review’.
It is designed to ensure that decisions made by such bodies or individuals are
arrived at in a proper manner, that they do not exceed the powers conferred by
Parliament or the Common Law, involve only relevant considerations and that
people discharging responsibility in the public domain act reasonably. The High
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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72 Part I: The Criminal Courts
Court can compel or prohibit lower courts to act or refrain from acting in a
given way. It can quash decisions and require matters to be reconsidered.
COURT OF APPEAL
Copyright © 2008. Waterside Press. All rights reserved.
As its title implies, the Court of Appeal has an exclusively appellate jurisdiction.
Also commonly referred to as ‘The Appeal Court’, it comprises two divisions,
criminal and civil. It is again housed in the Royal Courts of Justice in The Strand
(but may occasionally sit elsewhere). Decisions are by a majority of the three
judges of whom the court is composed (or sometimes just two such judges). Both
divisions of the court may refer cases involving points of law to the House of
Lords the progress of which are also dependent on leave to appeal, a mechanism
designed to weed out spurious, questionable or hopeless cases.
The Criminal Division of the Court of Appeal
This Criminal Division hears appeals from people convicted and sentenced in the
Crown Court. Its senior judge is the Lord Chief Justice who is also responsible
for the way in which the court is run and who sets the tone of the court and its
stance towards the criminal law in general during his or her period of office. He
or she may issue Practice Directions to be followed by other criminal courts.8
Leave is required before there can be an appeal to the Court of Appeal.
A main significance for criminal justice practitioners is that the Court of
Appeal gives rulings on appeal against sentence (see, generally, Chapter 9). Best
described as judicial guidance on sentencing, such rulings inform and in many
instances liberate or constrain, the sentencing practices of the Crown Court and
magistrates’ courts—although this aspect now falls to be described and assessed
in the light of the work of the Sentencing Guidelines Council (SGC) (see,
further, in Chapter 9). The signs are that the SGC still looks to the Court of
Appeal to provide sentencing indicators and advice through its judgements.
Indeed, a number of Court of Appeal judges have been tasked with providing
advice to the SGC on specific aspects of sentencing.
Key rulings of the Court of Appeal are referred to as ‘guideline judgements’
(or in some instances ‘sentencing guidance’9). Most rulings of the court are
published in the form of law reports (Chapter 1) and there are special series of
law reports on criminal law and sentencing. They are often eagerly awaited and
digested by criminal practitioners and become a central and particularly
8
9
The intriguing history of the office of Lord Chief Justice is ably described by Anthony Mockler in
Lions Under the Throne (Muller, 1983).
But distinguish sentencing guidance of this kind from that issued in recent times by the SGC
itself or, e.g. the Magistrates’ Association (Chapter 12).
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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The Higher Courts and European Court
73
influential component of the law of precedent (below). A judge of the Court of
Appeal is called Lord Justice (Chapter 12) and is automatically a Privy
Counsellor. Court of Appeal law reports are often signified by the letters CA.
Copyright © 2008. Waterside Press. All rights reserved.
HOUSE OF LORDS
Pending the birth of the Supreme Court under the Constitutional Reform Act
2005, the House of Lords is the final court of appeal in the UK for both criminal
and civil cases decided by lower courts in England and Wales. The appeal may
be from the Court of Appeal or High Court (both above) depending on the
circumstances. Leave is required before there can be such an appeal. Scottish
criminal cases have no right of appeal to the House of Lords. Appeals are heard
by an Appellate Committee of the House. This committee was formerly presided
over by the Lord Chancellor (who sometimes sat as a judge in that court) but this
is one of the constitutional anomalies that were cured by the Constitutional
Reform Act 2005 and the accompanying overall revision of the that role. Since the
2005 Act, the presiding judge is usually a senior Law Lord. The Appellate
Committee is made up of Law Lords (otherwise called Lords of Appeal in
Ordinary) as further described in Chapter 12. This committee sits apart from the
main business of the House of Lords in what many people consider to be a
somewhat undersized, if intimate, committee room.
There is a convention that Law Lords do not engage in political debate on the
floor of the House of Lords except where this is of direct judicial concern, e.g. in
relation to the courts, justice or related constitutional matters. Even this
constitutional anomaly will evaporate once new Supreme Court Justices take up
their positions. As already noted, newcomers will not be Law Lords.
Rulings of the House of Lords—the judgements of the Law Lords, known as
‘speeches’—are of considerable importance in relation to the day‐to‐day
proceedings of all courts and as an instrument of the Common Law (as will also
be the case with rulings of the Supreme Court). As precedents, they carry great
weight. Frequently a rule of criminal law or criminal justice comes to be known
by the name of the case concerned or by the shorthand for some principle that
was formulated during a particular case. They are also likely to have an
equivalent impact on future Parliamentary legislation and debates. Thus, e.g.
when, in 1995, the House of Lords had to deal with the question whether the
longstanding doli incapax rule10 should be abolished, the House, whilst
acknowledging the need for a review of the law, declined to alter the existing
10 Whereby, in the case of a defendant below the age of 14, the prosecutor had to establish—over
and above the essential ingredients of the offence—that the defendant knew that what he or she
was doing was ‘seriously wrong’.
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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74 Part I: The Criminal Courts
law. Such a fundamental change, it was stated by the Law Lords, was something
more appropriately dealt with by Parliament itself—following which
Parliament, as the Legislature, duly abolished that rule by Act of Parliament.
But there have been instances where what the House decided altered the way in
which courts applied the criminal law (e.g. by ‘creating’ the crime of conspiracy
to corrupt public morals and when marital rape was first held to be a crime).11
THE PRIVY COUNCIL
A Privy Council (PC) or its Judicial Committee (in effect the Appellate
Committee of the House of Lords ‘wearing another hat’, but possibly
supplemented by foreign judges) sits as a final court of appeal from some
Dominion territories, or former such territories who have opted to continue
with this last avenue of appeal as an adjunct their own national appeals systems,
in effect countries which have retained an appeal to Her Majesty in Council or,
in the case of republics, to the Judicial Committee. Rulings of the PC or its
Judicial Committee are ‘persuasive’ under the English doctrine of precedent (see
the note below) rather than binding within England and Wales. The Judicial
Committee sits in the Privy Council Chamber in Downing Street. The Privy
Council itself also advises on matters pertinent to the exercise of the royal
prerogative and, e.g. in relation to devolution issues. Its secretariat comes under
the auspices of both the Cabinet Office and Ministry of Justice.12
Copyright © 2008. Waterside Press. All rights reserved.
THE DOCTRINE OF PRECEDENT: A NOTE
Rulings of the higher courts are published in the law reports (Chapter 2) in the
form of verbatim accounts of the judgements or speeches of the judges,
including any dissenting opinion or opinions. They contain the facts and
outcomes of the cases concerned, the reasons for the judges’ decisions or rulings
and deal, in particular, with any matters of law arising in the case. They
represent something of an art form and are the subject of minute study and
subsequent argument amongst legal practitioners and students alike.
The sum total of the law reports comprise a vast library or databank of
common law and legal interpretation from which lawyers seek to understand
the exact nature of the law on any given topic. These rulings should be
distinguished from legislation, i.e. laws passed by Parliament in the form of
11
12
Scope for judicial creation or extension of crimes may be narrower due to Article 6 of the
European Convention on Human Rights: ‘no punishment without law’ (Chapter 2). The debate
about whether judges sometimes make law rather than interpret is historic and enduring.
For further information, see www.privy‐council.org
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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The Higher Courts and European Court
75
Acts of Parliament (also known as ‘statutes’), or associated delegated legislation.
Judges purport to interpret statutes, not to make new law and the doctrine of
precedent is the vehicle by which such interpretations are communicated both
to lawyers and to the public at large.
The lower courts (Crown Court and magistrates’ court) do not themselves set
precedents and they are bound by (i.e. must follow) the rulings of the higher
courts, whilst within the upper courts hierarchy of House of Lords/Supreme
Court, Court of Appeal and High Court, a lower court is bound by a higher
court. The entire process is much more subtle than this: certain rulings may be
persuasive only, others accepted as of considerable weight and authority.
Lawyers ‘cite’ rulings or extracts from them in court as either supporting or
detracting from a given proposition. Part of their daily routine involves
unravelling such matters as well, e.g. as seeking to ‘distinguish’ cases, i.e.
highlight differences between the facts of one case as opposed to another, or to
put forward reasons as to why the law impacts differently in relation to the facts
of their client’s case: sometimes described as ‘a matter of mixed fact and law’. Or
they may try to argue that some exception or reasons for departing from a given
rule applies in particular circumstances, sometimes described as ‘pleading an
exception’.13 These and other forensic techniques are part of the everyday
routine of courts of law. In sheer practical terms, a great deal may depend on
the status of a judge within the judicial hierarchy whose judgement has been
reported as part of the law of precedent and his or her general standing, record
and reputation as a lawyer. This aspect also represents something of an art form.
Copyright © 2008. Waterside Press. All rights reserved.
RELATED MECHANISMS
The Criminal Cases Review Commission (CCRC) has power to examine a
suspected miscarriage of justice and to refer this back to the Court of Appeal;
whilst the Attorney General has power to refer a case to that court in certain
situations including where he or she believes there to have been an ‘unduly
lenient sentence’ (see, further, the role of the Attorney General in Chapter 12).
THE EUROPEAN COURT OF HUMAN RIGHTS
As noted in Chapter 2, implementation of the Human Rights Act 1998 has had a
considerable impact on the criminal courts in relation to the backdrop of
European law against which all proceedings now take place. There is also a
13
‘Pleading the exception’ is also used where a fixed statutory exception may apply.
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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76 Part I: The Criminal Courts
Copyright © 2008. Waterside Press. All rights reserved.
general right of appeal to the European Court of Human Rights (ECHR)14 in
Strasbourg and English courts are under a duty to apply English law compatibly
with the European Convention On Human Rights and Fundamental Freedoms,
if not compatible already. Various mechanisms exist to deal with situations
where this is not the case and, in general, UK courts have continued to apply
domestic law in a human rights context without constant resort to appeals.15
Further, English judges must accommodate European jurisprudence more
generally, which is sometimes at odds with English methods, as, e.g. with the
doctrine of precedent (above). Unlike English law, e.g. the Convention is
regarded as a ‘living instrument’ which allows the law to adapt as time passes
and surrounding events and circumstances change—this without any new
legislation or legal rulings. In contrast, the English doctrine of precedent is
relatively static in the sense that a rule is deemed to hold good unless
overturned by a better rule in the light of legal argument and interpretation and
considerations. In a sense European law now takes precedence—and these
dynamics continue to unfold. Naturally, the situation depends on the strength
of the European law or ruling in question, the scope for domestic variation
(what is known as the ‘margin of appreciation’) and the scale and import of the
issues arising.
14
15
Note that ECHR may also be used to signify the European Convention on Human Rights.
Any court (but in practice one of the higher courts) can make a declaration of incompatibility
with the European Convention in relation to domestic legislation. This compels a UK Minister
of State to consider fast track amending legislation. The practice has been for Ministers to certify
that all new legislation is ‘human rights friendly’. This is not definitive. In the last resort the
courts are the arbiters of compatibility, if need be the European Court of Human Rights.
Gibson, B., & Cavadino, P. (2008). The criminal justice system : An introduction. Waterside Press.
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