As we approach the second term of the Supreme Court, the lack of criminal cases is noticeable. Last term R v Horncastle [2009] UKSC 14 was the only significant criminal case (although other cases had implications for criminal law) –
and there are no criminal cases list for the coming term.   
There also appear to be few criminal cases in which permission has being given. The Court of Appeal Criminal Division dealt with 431 appeals against conviction in 2008-2009 but it is possible that none of these will go on to the Supreme Court.  Is this simply a function of a varied Supreme Court list, or is there something more significant in play?

The Court of Appeal’s role in criminal cases is different from in civil matters. In particular, in order for the Supreme Court to consider a criminal case, the Court of Appeal must certify that the case raises a point of law of general public importance. If it does not, the case can go no further. Anecdotally, many senior criminal practitioners claim to have noticed a more stringent approach to certifying a case in this way in recent months.

The Court has also sat more often in five judge constitutions with a view to reducing the number of appeals.  This point is referred to In the Court of Appeal Criminal Division’s “Review of the Legal Year 2008-2009”  where the Lord Chief Justice writes

“An increase in the selective deployment of five judge constitutions, with a consequent reduction in the number of cases where the Court has felt it necessary to certify a point of law of general public importance, a pre-requisite for an appealto the House of Lords or the Supreme Court, has I think been useful in providing particularly authoritative decisions on some very difficult issues”.

According to Andrew Le Sueur’s A Report on Six Seminars About the UK Supreme Court (Queen Mary School of Law Legal Studies Research Paper No. 1/2008) in 2008, there were a number of suggestions that the role of the Court of Appeal should be strengthened further – recasting it as the primary appellate court in most criminal matters. One proposal was that the Court of Appeal in England and Wales should sit more often in panels of five or seven judges – rather than the normal three – to decide significant cases, so reducing the need for appeals to progress to the UK Supreme Court:

“Several participants expressed support for such a development . . . This idea was considered, in particular, in relation to the Court of Appeal (Criminal Division) because, on one view, that recent expertise in criminal law contained in that court was more likely to lead to certainty in the law compared to judgments of the UK Supreme Court. For this reason, some participants in the seminar favoured a change to current arrangements so that the Court of Appeal (Criminal Division) should not normally grant a ‘certificate’ (a precondition to granting permission in criminal appeals) unless the appeal had been considered by a panel of five or seven Lords Justice. Other participants took a different view, arguing that the whole certification requirement should be abolished as it in effect allows the court to be appealed from a veto over possible appeals – an arrangement that they saw as objectionable in principle”.

The seminar was conducted according to “Chatham House Rules” so the contributions of individual participants are not identified.  Professor le Sueur notes the contribution of “a Court of Appeal judge” who

” urged that there should be radical re-think about the role of the UK Supreme Court in relation to criminal appeals from England and Wales. He noted that Sir Robin Auld’s review of the Criminal Courts in 2001 had not addressed the issue. There were currently two preconditions for a criminal appeal heard by the Court of Appeal (Criminal Division) receiving a second appeal by the House of Lords/UK Supreme Court. First, a certificate must be issued by the Court of Appeal (Criminal Division) that the appeal involves a ‘point of law of general public importance’ and ‘the point ought to be considered by the House of Lords’. The judge argued that too many cases were certified by the Court of Appeal (Criminal Division). This was because there is too much focus on the first element often overlooking the second element of the test. Secondly, leave to appeal must be granted either by the Court of Appeal or the UK Supreme Court. The judge said that some of the Law Lords, and in future the Justices of the UK Supreme Court, will have no criminal justice experience and none will have recent criminal justice experience. There are numerous areas of law which will have changed since Supreme Court Justices will have sat as a criminal trial judge—changes in recent years have affected the way in which a criminal trial judges exercise their discretion; the changes include hearsay, character, vulnerable witnesses and case management. The experience of judges in the Court of Appeal (Criminal Division) is different, the judge said. Many of them sit regularly with two trial judges and, as single judges, they consider applications under section 31 of the Criminal Appeal Act 1968 ‘by the shed load’. These applications are a constant reminder of the problems faced by trial judges. The UK Supreme Court will simply not be able to possess this kind of knowledge.”

The Court of Appeal already deals almost exclusively with matters relating to criminal sentencing. But it would be a very significant step to re-position it as the most authoritative voice on criminal law as a whole. The suggestion has an initial attraction, for the reasons set out: many Court of Appeal judges have recent, practical experience of criminal trials that Supreme Court Justices do not.

But there is also a powerful argument in the other direction: criminal law is not a self-contained discipline. Throughout the development of the common law, and particularly during the last 10 years of the Human Rights Act 1998, criminal cases have often provided the context and focus for the development of much wider constitutional principles. Furthermore, our Supreme Court is a respected international authority in criminal and constitational law across a range of jurisdictions, particularly but not exclusively, in former Commonwealth countries. Reducing the role of the Supreme Court – and our most significant constitutional judges – in dealing with important criminal cases, may well be to the detriment of the development of our constitutional law and the Court’s reputation as an internationally important tribunal.