Neutral Citation Number: [2008] EWCA Crim 2981
Case No: 200704900/B5 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 20th November 2008
 
B e f o r e:

LORD JUSTICE LATHAM
(VICE‑PRESIDENT OF THE CACD) 

MR JUSTICE FORBES 
 
DAME HEATHER STEEL DBE 
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R E G I N A 

v 

ANTHONY STOCK 

HOUSE OF LORDS PRONOUNCEMENT 
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Mr J Bennathan QC appeared on behalf of the Appellant 
Mr M Ellison appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE LATHAM:  Yes, Mr Bennathan?
2.	MR BENNATHAN:  Please you my Lords and my Lady, I appear for Mr Stock, my learned friend, Mr Ellison, appears for the respondent.  
3.	I know the court has received documents from both of us and a slender file I trust accompanying my document like that.  That being so, I was going to visit the point set out in my document using that document and do so very briefly.  I would like to start and finish with points not set there in the light of both the respondent's response and of reviews of my Lords and my Lady's judgment in Archbold News and Crim LR which are on the Bench before the court.
4.	I start with the two propositions that flow from the respondent's resistance.  The respondent do not suggest there is no point of general public importance, it does not suggest it arises in the case.
5.	My first proposition with respect is that.  The fact that your Lordships and your Ladyship did not purport to make fresh law in your judgment is, with respect, not a bar to the House of Lords reviewing the law within that judgment.  To take but one example, which I take because it is recent and I indeed was in it, is the case of Clarke & McDay, the signing of indictments.  The court presided over by Pill LJ did not make any fresh law, on the contrary they simply applied an earlier judgment of my Lords and my Lady's court in a case called Ashton.  Yes, they applied existing law, made no ruling and certified the point.  Their Lordships gave leave and overturned the law.  So the fact that no new law is made is not a bar and cannot be a bar to a decision of my Lords and my Lady's court being appealed.
6.	The second matter and the primarily ground upon which the respondent resists certification is this.  In our submission the fact that this court does not accept that the court's view of the law is determinative of the outcome of the appeal, again, is not a bar.  Forgive me, I struggle with clarity perhaps and I am sure the court is far ahead of me.  Merely because my Lords and my Lady think that no legal decision could have made a difference to the factual conclusion that, with respect, is not a bar to certification or appeal and the classic case, and I take it because it is in our bundle, the case of Pendleton.  In Pendleton the court of Appeal in terms said they received fresh evidence from Dr Gudjonsson and others about a confession and its validity.  My Lords and my Lady's court said in terms said we think the test is probably:  do we think this is safe.  It has been argued upon dicta from Lord Carswell CJ (as he then was) it has been argued that actually the better test is:  might a reasonable jury have come to a different conclusion?  The court said on either test we dismiss this appeal.  So my Lords and my Lady's court said in terms ‑‑ I do not take the court to it, it is page 457 of the Pendleton judgment in the speech of Lord Bingham ‑‑ a legal decision would make no difference to the outcome of the appeal was not a bar to the House of Lords having a questioned certified and indeed overturned that on the facts.  Because my submission is it is this broad:  if there is a point of law within a case and the prosecution respondents do not argue but that reviewing earlier decisions of this court and stands one applies to old appeals are law within the case, they argue.  They made submissions, they both did.  Once it is within the case, with respect, it is right at least for certification, even if the court does not take a different view of the law would have a different result.
7.	Moving more swiftly through my document, please.  Our first question at paragraph 2.81 right at the front of that file please my Lords and my Lady.  The respondent suggests a different wording.  We are not going to take the court's ground litigating grammar or writing by Committee not least because the House of Lords traditionally are not troubled to criticise the question and are not troubled or restrained by it.
8.	We do suggest that that area of law, namely reviewing an appeal where there has been a previous appeal is one that clearly arose in this case.  My Lords and my Lady adopted the early dicta of this court in the earlier appeal in this case of Auld LJ in Thomas.  We submit there is clearly an argument because the Criminal Appeal Act 1995 gives, for example, the Criminal Cases Review Commission the right to refer a case on identical terms to a previously rejected appeal application.  If that is so, there is at least an argument with respect and my Lord about my Lady should not erect an extra barrier to the consideration of that appeal.
9.	Finally, there is a dearth of authority on this.  The only authority as far as the House of Lords goes is the speech of Lord Diplock in Chard.  That is an old case, it was a case not dealing with the 1995 Act, dealing with the Home Secretary's Reference.  In addition it was dealing purely with grounds outwith the terms of the Home Secretary's Reference.  There simply is, as far as this court is concerned, no appellate authority on this proposition.  As for public importance, it may be a small number of appeals are important, it is usually important to the Criminal Cases Review Commission who will only be referring convictions that have been to this court before under the terms of their statutory powers.  The Criminal Cases Review Commission time.  Finally, the point our 7.3 on the question 1, the type of cases that will tend to come within this category, namely this court looking again at a case being rejected by a previous court will tend to be the cases that some Criminal Cases Review Commission for example find the most troubling and most worrying.  They will take a lot of time and send them back yet again.  We clearly say that attaches public importance.
10.	Question 2, again we do not debate criticisms of our grammar and phraseology with the respondent.  They propose a different certification.  We do rely upon the respondent accepting our second question is a point of general public importance.  We rely on that as far as that is persuasive to my Lords and my Lady.  We suggest even were it not pertinent in this court's analysis the House of Lords with ample basis, the House of Lords could say, applying contemporary stance to Mr Stock's conviction in 1970, it is not safe.  The classic is Turnbull, where in the judgment of Turnbull, my Lords and my Lady's court said:  when this guidance is not followed a conviction will be quashed unless the other evidence is such to make the conviction safe.
11.	Of course this court's judgment was to some extent the opposite to that, this court said the other evidence is unsafe but the identification evidence is so good as to make this conviction safe.  So, we simply say it clearly arises on the facts of the case.  We say that it was a division of authority on that point because, on the one hand, Lord Bingham's dicta in Bentley was interpreted in Cotterell & Fletcher by the President of the Queen's Bench Division (as he then was) as meaning if a summing‑up falls foul of both contemporary standards and standards at the time, then we interfere.  Cotterell & Fletcher was not subject to appeal, not least because Mr Cotterell was refused leave and Mr Fletcher won, so could not appeal.  A number of other authors who list and judges who list take a different view.
12.	We do say that this is a point of public importance because not least because since we argued this appeal, Parliament has passed perhaps an unusual section, section 16C of the Criminal Appeal Act which we set out in our note.  This is unusual because traditionally my Lords and my Lady's court builds practice on statute.  This statute seeks to build upon the court's practice.  The problem then arises what is and should be the court's practice and again whether the court has practice of refusing leave in change of law cases where there is a division ‑‑ the division of the court said there was no such practice.  The President in Cotterell & Fletcher said there was such a practice.  The point we make at paragraph 16 is this.  Even, with great respect, if that dispute is resolved in favour of Cotterell and Fletcher, the President of the Queen's Bench Division, as was, there is always a let out clause that the court will not interfere with the change of law, always a let out clause along the lines:  unless there is significant and substantial injustice.  That is not defined and has never been defined and we say it would be appropriate to allow it to be. 
13.	Fundamentally our second question, or the respondent's second question does address a long running, long‑standing issue and one can characterise it, normally one can tell that the conclusions sought by the terms of that categorisation but, on the one hand, we have the President in Cotterell & Fletcher, speaking of a continuing public imperative, that so far as possible there should be finality and certainty in the administration of criminal justice.  Those are arguing the cause argued today, often by Lord Atkin saying:  finality is a good thing but justice is better.  So, we do say it is an important point.  We say it is made yet more consistent by section 16.  We say it arises quite clearly in this case.  
14.	The final point I take above and beyond those in our application are this.  I hope I have not breached any protocol etiquette by saying although the application for certification and leave, the reality is one applying, as I am applying today, is applying for certification because it is almost unheard of for my Lords and my Lady in the circumstances to presuppose that the Lords want to hear the case and give leave. In reality my application is for certification.  
15.	This is the case, the facts of this case clearly is one that the Criminal Cases Review Commission rightly or wrongly are deeply troubled by this.  This is a unique second reference by the Criminal Cases Review Commission, a second reference by the Criminal Cases Review Commission.  The case has been reviewed in two of the most widely read journals read by criminal lawyers.
16.	LORD JUSTICE LATHAM:  I have read them both.
17.	MR BENNATHAN:  I put them forward knowing that the court has broad shoulders in a legal sense.  Of course that is not a ground for certifying, it is not a ground for being troubled by it.
18.	But if one has a position where the Criminal Cases Review Commission has uniquely referred a case back, if one has the position Archbold News publish a long article critical of my Lord's and my Lady's decision and Crim LR week is long article critical of the result of that case, and if the reality is all that application today will do is certify one or two questions which the Lords will then give leave or reject summarily, we do say:  what real harm is done if the court thinks this might be a point of law?  What real difficulty is done?  Is it not better for this court, with great respect, to show the confidence in this reasoning and conclusion by exposing that reasoning and that conclusion to at least the possibility of review before their Lordships.
19.	LORD JUSTICE LATHAM:  It is a very fair point.  Whether it carries you, I do not know.
20.	MR BENNATHAN:  Those are my submissions, unless I can help any further.
21.	LORD JUSTICE LATHAM:  Yes, Mr Ellison?
22.	MR ELLISON:  In reality, we have nothing to add to the written note provided to the court.  
23.	LORD JUSTICE LATHAM:  We will retire and consider your submissions.
(Short Adjournment) 
24.	LORD JUSTICE LATHAM:  This is an application by this appellant for us to certify two questions on the grounds that they both arise out of the decision that we have reached and raise issues of general public importance.
25.	The first question addresses itself to the court's approach to this case in the light of the fact that this was the fourth appeal and the third reference.  It is suggested that the way in which this court approached it was not in accordance with the House of Lords' authorities which direct this court to consider as the essential question the safety of the conviction and that in some way we put a gloss on the way in which we should approach that by our references to earlier authorities including the earlier decision of this court in the second of the references in particular.
26.	We do not consider that this case raises any issue of that nature.  Our judgment makes it plain that the question that we asked ultimately was whether or not we considered that this verdict was safe.  That is the test.  We do not consider that we in any way glossed that test in a way which would justify the conclusion that a issue of public importance arises out of the way we expressed ourselves.
27.	The second question arises out of the fact that this was an identification case and since the trial this court has indicated in Turnbull, a model direction which, generally speaking, will have to be followed if a conviction in an identification case is to be held to be safe.  Although there is or are many dicta from this court which suggest that the failure to follow particular directions may render a verdict unsafe, that is by no means an immutable rule.  As this court has more recently been saying, the truth of the matter is that, at the end of the day, the test remains whether or not a verdict is safe or unsafe bearing in mind all the material before the court.  In this case, bearing in mind all the material before this court, we are confident that this court would not have concluded, even now, that the absence of a Turnbull direction would have resulted in this verdict being considered unsafe.  It follows that the issue raised by the second question does not arise in the case.  We do not consider that it will be in those circumstances appropriate, even if we thought that the issue was one which was of general public importance, to certify in this case for the reasons which we have just indicated. 
28.	Mr Bennathan, thank you very much for the moderate way you have put your submissions.  Thank you very much.