Criminal Business

This chapter focuses on the criminal business of the Court. It presents an analysis of key cases in categories reflecting the various sources of appeals, encompassing appeals against conviction and/or sentence from the Crown Court, appeals by way of case stated from an inferior court (that is, a magistrates’ court or a county court), references by the Director of Public Prosecutions claiming that a sentence imposed by a lower court was unduly lenient, and references by the Criminal Cases Review Commission in cases where there has possibly been a miscarriage of justice.

5.1 Introduction

This chapter opens with an overview of the types of criminal appeals and references which the Court of Appeal has dealt with during the past 25 years. It then looks at each type of appeal or reference in more detail, focusing on the tests that are applied by the Court when deciding frequently recurring questions. The chapter highlights that while some research suggests the Court of Appeal did not do all that it might have done to ensure fair trials during some years of the troubles, there is no evidence to suggest that it suffers from failings of the same kind today.

5.2 Types of criminal appeals and references

Between 1999 and 2023 there were 1,961 criminal disposals in the Court of Appeal, which accounted for 49 per cent of all disposals. As regards the reported cases during that period, 723 were criminal cases, again representing 49 per cent of all reported cases. Table 5.1 indicates the number and percentage of each type of reported appeal and reference.

Table 5.1:

Number and percentage of reported criminal appeals and references, 1999–2023

Type of appeal or reference	Number of reported cases	Percentage of all reported criminal cases
Appeals from the Crown Court against conviction or against conviction and sentence	300	42%
Appeals from the Crown Court against sentence only	214	30%
References from the Director of Public Prosecutions or Attorney General	83	11%
Appeals from magistrates’ or county courts by way of case stated	75	10%
References from the Criminal Cases Review Commission	22	3%
Prosecution appeals from rulings by Crown Court judges	15	2%
Other cases^*	14	2%
Total	723	100%

^* These include, for example, cases on whether there should be a retrial, whether leave should be granted to appeal to the House of Lords, and whether solicitor advocates can represent appellants in criminal appeals.

This is a substantial workload in a specialised area of law, especially given that some judges appointed to the Court of Appeal may have had little experience of criminal work in their careers up to that point. We know that significant training opportunities are available to judges who try criminal cases in Northern Ireland, at whatever level, but we are not aware of any training that focuses on criminal appellate work (apart from ‘on the job’ training when High Court judges are asked to sit in Court of Appeal cases). However, at least one of the judges sitting in a criminal case in the Court of Appeal is certain to have substantial expertise in criminal appellate work. If necessary, a retired judge with such expertise can be called upon to supplement that of the other judges. We know, too, that legal researchers provide more assistance with criminal appeals than they do with civil appeals.¹

We have already noted that dissenting judgments are very rare across the board within Court of Appeal decisions, and in criminal appeals they are like hen’s teeth. Under English law, the Court of Appeal must give only a single judgment unless the presiding judge thinks it is convenient for more than one opinion to be given.² This is not a legal requirement in Northern Ireland, but it is certainly the common practice. In the 25 years under review, there were dissents in only two criminal cases. One was by Weir LJ in Director of Public Prosecutions v Douglas, where he disagreed that a District Judge was legally correct in amending a complaint of taking and driving away to one of vehicle interference.³ The other, more significant, was by Treacy LJ in R v Wilson, which was an appeal brought in 2022 against a conviction in 1978 for explosive offences by a woman who wanted to adduce medical evidence in her defence.⁴ Treacy LJ would have held in her favour, but he was out-voted by two retired judges, Sir Declan Morgan and Sir Paul Maguire.

In the course of their judgments judges in criminal appeals have at times made suggestions as to how aspects of the criminal justice system should be improved. In R v Foronda they specified how exactly interpreters should be appointed;⁵ in R v McCauley they strongly criticised the police and security services for mishandling important evidence;⁶ and in R v Doherty they condemned the failure of Northern Ireland’s post-sentencing system to rehabilitate offenders.⁷

5.3 Appeals against rulings in the Crown Court

As a criminal trial proceeds through the Crown Court the judge sometimes has to make decisions on subsidiary issues. In 2004 legislation was passed making it clear that the prosecution as well as the defendant can appeal against such decisions, subject to certain conditions, one of which is that the prosecution must agree that if leave to appeal is not obtained or if the appeal is abandoned then the defendant should be acquitted in relation to the offence in question.⁸ The first such appeal occurred in R v Grindy, where the Court refused leave because, contrary to rules of court, the application had not been made immediately after the judge’s ruling had been given.⁹ The Court of Appeal has since made it clear that it takes a strict stance on the need for all the conditions to be satisfied before it will even consider any such appeal.¹⁰ To date there have been 15 reported cases dealing with prosecution appeals under the 2004 Order.

5.4 Appeals against convictions in the Crown Court

Most appeals against convictions (and sentences) in the Crown Court require leave to appeal.¹¹ The exception is appeals against judgments issued by a judge sitting alone, without a jury, in cases involving offences connected to proscribed organisations. These judge-only courts were first introduced in Northern Ireland in 1973,¹² following a review chaired by Lord Diplock.¹³ They catered for terrorist-related cases where there could be a risk of jurors being biased or intimidated. Such trials can still be heard today under a provision which has been renewed every two years since it was introduced in 2007.¹⁴ Defendants in such cases are entitled to receive a written judgment from the judge setting out the reasons for their decision¹⁵ and as a quid pro quo for the absence of a jury defendants have an automatic right of appeal.¹⁶ Judge-only trials are also permitted in non-terrorist cases (as in England and Wales) if there is a danger of jury tampering, as occurred in R v Mackle¹⁷ and R v McStravick,¹⁸ but in such cases leave is still required for an appeal. Genevieve Lennon and Clive Walker have recently argued that if juryless trials are to continue in Northern Ireland it should be under this scheme alone.¹⁹

When leave to appeal is required the party appealing can have two bites of the cherry. They can first apply to a ‘single judge’ and if they fail at that stage they can re-apply to a full Court of Appeal, usually comprising three judges.²⁰ As with civil cases, the Court will often grant leave and then proceed immediately to decide whether to allow the appeal on its merits in a ‘rolled-up’ hearing. Single judges have other powers too; for example, to extend the time for giving notice of appeal, to grant leave for an appellant to be present at any proceedings, to allow the appellant to appear by a live link, or to order a witness to attend for examination.²¹

The time limit for making applications for leave to appeal is 28 days after the conviction (or sentence) has been announced, but this period ‘may be extended at any time by the Court’.²² As can be imagined, there are a high number of applications for leave to appeal out of time and in the criminal sphere the precedent which now applies in such scenarios is R v Brownlee.²³ Morgan LCJ set out six principles, too detailed to repeat in full here, but the most important is that an extension of time will usually be granted, even after a considerable delay, ‘if there appears to be merit in the grounds of appeal’.²⁴ This inevitably means that the Court has to go into the merits of an appeal in some detail before it is able to decide whether the appeal should be allowed to proceed.

Regarding the Court’s approach to whether to allow a criminal appeal, it now frequently refers to the basic principles laid down by Kerr LCJ, as he then was, in R v Pollock:

(1)The Court of Appeal should concentrate on the single and simple question ‘does it think that the verdict is unsafe’.
(2)This exercise does not involve trying the case again. Rather it requires the Court, where conviction has followed trial and no fresh evidence has been introduced on the appeal, to examine the evidence given at trial and to gauge the safety of the verdict against that background.
(3)The Court should eschew speculation as to what may have influenced the jury to its verdict.
(4)The Court of Appeal must be persuaded that the verdict is unsafe but if, having considered the evidence, the Court has a significant sense of unease about the correctness of the verdict based on a reasoned analysis of the evidence, it should allow the appeal.²⁵

A common ground for allowing an appeal is that the trial judge did not give a proper direction to the jury. Among the errors which have led to a successful appeal are inviting a jury to draw inferences from a defendant’s silence,²⁶ not explaining to the jury why it should not return a verdict of manslaughter rather than murder,²⁷ and not dealing fully with the defence of duress.²⁸ At times the Court has identified four or five aspects in which the trial judge has failed to properly direct the jury,²⁹ but it has also pointed out that a direction was far too long.³⁰ On that last occasion it cited Lord Hailsham’s words in R v Lawrence:

The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s note book.³¹

The Court of Appeal has itself been known to get things wrong. In one case it allowed an application for leave to appeal to be re-opened so that it could consider whether its mistake ought to have led it to allow the appeal.³² As we shall see later, several of the Court’s decisions during the troubles have subsequently been overturned following references from the Criminal Cases Review Commission. On the other hand, in the 1980s the Court of Appeal itself overturned many convictions resulting from trials in which multiple defendants were prosecuted simultaneously relying on information supplied by ‘supergrasses’.³³ Steven Greer meticulously charted the collapse of the supergrass phenomenon and concluded that:

The Northern Ireland Court of Appeal simply accepted that the trial judge in each case had been too willing to believe the supergrass evidence and had paid insufficient attention to the specific weaknesses which had been exposed by the defence. No new evidence and no novel arguments were necessary to achieve this result, and indeed most of the judges who sat in each of the appeal hearings had themselves convicted on the uncorroborated evidence of other supergrasses. … [T]hese decisions appear to have been the result of a deliberate change in judicial policy.³⁴

A further frequent ground of appeal is abuse of process, which can take the form, for instance, of excessive delay, breaches of the rules on disclosure or some other unfairness. In this context Girvan LJ has said:

The function of the Court of Appeal, accordingly, is to consider the overall safety of the convictions. Since the court must review the whole case to consider the safety of the conviction it is, accordingly, bound to consider the entirety of the trial process and not simply whether at a point in the trial the judge could or should have stayed the proceedings.³⁵

The position of the Court regarding its power to admit fresh evidence in an appeal was explained by McCloskey LJ in R v Ferris, where he referred to section 25 of the Criminal Appeal (NI) Act 1980:

[The power] is expressly fettered only by what the court considers necessary or expedient in the interests of justice. Notably, the factors listed in section 25(2) do not constitute an exhaustive checklist. Thus the court is at liberty to weigh other factors which it considers relevant. No procedural formalities are prescribed. The court is empowered to admit new evidence either upon application or acting of its motion.³⁶

Notwithstanding the apparent breadth of this discretionary power, it is not usually exercised in favour of the appellant. In R v DPMC,³⁷ for example, the Court refused to admit new evidence from a Professor of Psychology on ‘autobiographical memory’: it shared concerns already expressed by the Court of Appeal in England and Wales about the research in question.³⁸

When the Court of Appeal allows an appeal and is considering whether the defendant should be retried, the test it applies is again whether a retrial would be in the interests of justice having regard to all the circumstances of the case. This is laid down by statute³⁹ and has not been expanded upon to any great extent by appeal judges in Northern Ireland, or by those in England and Wales.⁴⁰ In R v Hewitt and Anderson, Nicholson LJ said:

The decision whether to order a re-trial requires an exercise of judgment involving the public interest and the legitimate interests of the appellants. One could set out a list of the various factors which have to be taken into account. But each decision turns on the facts of the individual case and there is little to be gained by comparing one case with another or in using a decision made in one case when deciding another case.⁴¹

A few of the cases reported during our 25-year period were devoted solely to the issue of whether a defendant should be re-tried following a successful appeal against conviction.⁴²

If an appeal is unsuccessful the Court of Appeal retains a power to re-open it, although most allegations of a miscarriage of justice are likely to come to it by way of a reference from the Criminal Cases Review Commission established by the Criminal Appeal Act 1995.⁴³ In the case of R v Walsh a determined applicant who had for years declared his innocence of having been in possession of a coffee-jar bomb eventually succeeded in getting his appeal re-opened and his conviction quashed. In the course of that litigation Kerr LCJ said:

We have concluded that the power of the Court of Appeal to re-list a case has not been removed by the 1995 Act. The occasion for the exercise of such a power will arise only in the most exceptional circumstances, however. … Where CCRC has been invited to refer a conviction to the Court of Appeal for a second time and has declined, if this court considers that because the rules or well-established practice have not been followed or the earlier court was misinformed about some relevant matter and, in consequence, if the appeal is not re-listed, an injustice is likely to occur, it may have recourse to its inherent power to re-list (or, effectively, re-open) the appeal.⁴⁴

5.5 Appeals against sentences in the Crown Court

As regards appeals against sentence,⁴⁵ the Court of Appeal’s central tenet is that a sentence will be reduced only if it is deemed to be manifestly excessive or wrong in principle.⁴⁶ Unlike in England and Wales, however, the Court of Appeal in Northern Ireland can increase as well as decrease a sentence’s severity, although it cannot increase a sentence ‘by reason or in consideration of any evidence that was not given at the Crown Court’.⁴⁷ Recently, in R v Maughan,⁴⁸ the Court of Appeal suggested that the reason why discounts for a guilty plea tend to be lower in Northern Ireland than in England and Wales (maybe 25 per cent rather than 33 per cent) is that legal advice in England and Wales police stations may sometimes be given by advisors who are not fully qualified solicitors, which would not happen in Northern Ireland.⁴⁹

R v McCandless is the leading authority in Northern Ireland on the principles that should be applied when establishing the categories of sentence for murder.⁵⁰ The Court emulated the practice already adopted in England and Wales,⁵¹ although it emphasised that the Practice Statement in question was for guidance only. In a later Court of Appeal decision Morgan LCJ endorsed this position by saying that the factors mentioned in the Practice Statement ‘are not, of course, intended to be comprehensive. They are intended to assist sentencers in assessing the culpability of the offender and the degree of harm caused by the offence. They are not to be applied mechanically or to be interpreted strictly as if they were a statute.’⁵²

This reflects the general position in Northern Ireland, where there is no Sentencing Council such as there is in England and Wales.⁵³ Instead, there is a Lord/Lady Chief Justice’s Sentencing Group, established in 2010.⁵⁴ This advises on sentencing guidelines for magistrates’ courts and considers first instance judgments of the Crown Court and judgments of the Court of Appeal so as to be able to advise the Judicial Studies Board as to their suitability for inclusion on its Sentencing Guidelines and Guidance website.⁵⁵ The Guidelines of the Sentencing Council for England and Wales, including for cases dealt with by the Crown Court and Court of Appeal, are much more detailed as regards, for example, the maximum permissible sentence, the starting point and sentencing range for each specific offence, and examples of possible aggravating or mitigating circumstances. The Guidelines in Northern Ireland are currently displayed as sets covering 19 different types of crimes, such as drug offences, road traffic offences, sexual offences, and terrorist offences. Each set contains links to relevant judgments but with no navigational aids for the reader. There are also 23 sets of guidelines on General Sentencing Issues, addressing topics such as dangerous offenders, guilty pleas, and mitigating circumstances. The relevant website also refers to ‘Sentencing Guideline Papers’ from other sources, including individual judges.⁵⁶ These deal with four complex sentencing areas: domestic violence and abuse; hate crime; manslaughter, attempted murder, and wounding with intent; and honour-based crime.

5.6 References from the Director of Public Prosecutions

The DPP for Northern Ireland can make two kinds of reference to the Court of Appeal in criminal cases. Until 2002 these powers lay with the Attorney General for Northern Ireland.⁵⁷

The first kind of reference is where, after an acquittal, the DPP may ask for the opinion of the Court on a point of law which has arisen in the case, but the reference ‘shall not affect the trial in relation to which the reference is made or any acquittal in that trial’.⁵⁸ In the 25-year period under review there appears to be only one reported case involving this kind of reference. This was R v Z, where Girvan J ruled that the ‘Real’ IRA was not a proscribed organisation for the purposes of the Terrorism Act 2000 and he duly acquitted a number of defendants who had been charged with belonging to a proscribed organisation. The point of law was referred to the Court of Appeal, which ruled that in law the ‘Real’ IRA was a proscribed organisation.⁵⁹ Even though this did not affect his acquittal, Z appealed the matter to the House of Lords, but unsuccessfully.⁶⁰

There is a notorious example of this kind of reference made to the Court of Appeal earlier in its history (in its guise as the Court of Criminal Appeal).⁶¹ In Attorney General for Northern Ireland’s Reference (No 1 of 1975) a soldier on patrol had been acquitted of murder by a judge sitting without a jury. While searching for terrorists the soldier had shot dead an unarmed man, who had run away when challenged, in the honest and reasonable, but mistaken, belief that he was a terrorist. The Court was asked whether in such circumstances the soldier could be guilty of any crime and, if so, whether it would be murder or manslaughter. The Court’s opinion was that if the soldier did commit a crime (which is a matter for the tribunal of fact) then the crime would be murder. The Crown then persuaded the Court to allow the matter to be appealed to the House of Lords,⁶² where (with one dissent) they ruled that if the tribunal of fact finds that ‘in the agony of the moment the accused may have acted intuitively or instinctively without foreseeing the likely consequences of his act beyond preventing the deceased from getting away’ then he has committed no crime at all.⁶³ This is a much-criticised decision,⁶⁴ but it reflects badly on the House of Lords rather than on the Court of Appeal.

The second type of reference the DPP can make is under section 36 of the Criminal Justice Act 1988, which allows the DPP to refer to the Court of Appeal a sentence imposed by the Crown Court if it relates to an offence triable only on indictment (or to certain other offences specified in secondary legislation) and the DPP thinks it is ‘unduly lenient’.⁶⁵ Between 1999 and 2023 the Court of Appeal issued 82 reported decisions on such references. In the majority of cases it agreed that the sentence in question was unduly lenient and exercised its discretion to increase it. In a few references it found the sentence to be unduly lenient but declined to increase it because there were ‘exceptional circumstances’, such as that the convicted person had already served a significant proportion of their original sentence and it would subject them to ‘double jeopardy’ to impose a new sentence at the appeal stage.⁶⁶ In the remaining references the Court found the original sentence to be lenient, but not unduly so. It has recently stressed that the threshold which the DPP must cross in order to have a sentence increased is ‘high and exacting’.⁶⁷

5.7 References from the Criminal Cases Review Commission

Under sections 10 and 13 of the Criminal Appeal Act 1995, the Criminal Cases Review Commission (CCRC) can refer any conviction on indictment, or any sentence in such a case, to the Court of Appeal in Northern Ireland if it believes there is ‘a real possibility’ that the conviction or sentence would not be upheld. In the period under review the Court of Appeal considered 22 such references, 19 of which related to convictions in troubles-related cases, the commonest reason for the reversal of a conviction being the prosecution’s failure to disclose evidence at the trial which might have cast doubt on the defendant’s guilt.⁶⁸ In non-troubles related cases the reason was the trial judge’s alleged failure to give a proper direction to the jury.⁶⁹

When looking back at ‘historic’ convictions the Court of Appeal follows the approach set out by Lord Bingham in the English case of R v King:

In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy.⁷⁰

This statement was first approved by the Court of Appeal in Northern Ireland in R v Gordon,⁷¹ and then again in R v Mulholland⁷² and in R v Brown,⁷³ the last of these being the authority most frequently cited today. There is of course some ambiguity in Lord Bingham’s test in that judicial opinions can reasonably differ over when it would be ‘right’ to apply latter-day protections retroactively. In a study published in 2014 Marny Requa concluded – based on an examination of 38 cases referred by the CCRC between 1997 and 2013 – that: ‘The referred cases, although a small census, confirm that during the conflict [in Northern Ireland], the judiciary failed to recognize and respond to abuses of power and credible evidence of human rights violations perpetrated by security forces. The cases also demonstrate a persistently deferential approach in counterterrorism jurisprudence.’⁷⁴

In a subsequent piece Requa suggested that the ruling in R v Brown effectively precludes the CCRC from making references to the Court of Appeal if the main faults in the earlier trial relate to detention or interrogation regimes, rather than, say, failures in disclosure.⁷⁵ Her prediction has largely been borne out to date, although a reference was made in R v Goodall, where the appellant argued that notes taken by the police during his interrogations had been doctored. The Court, however, was content that on the facts the police’s notes were reliable and so the appeal was dismissed.⁷⁶ There was another unsuccessful reference from the CCRC in R v O’Hagan, where a conviction for causing an explosion in Derry in 1973 was upheld even though the Public Prosecution Service offered no opposition to the appeal. The Court simply had no sense of unease about the reliability of the defendant’s admissions at the time.⁷⁷ In R v Skinner, rather than grant leave out of time to six appellants who alleged they had been wrongly convicted of murder or manslaughter under the doctrine of joint enterprise, which had later been liberalised by the UK Supreme Court’s decision in R v Jogee,⁷⁸ the Court of Appeal suggested that the appellants should think of asking the CCRC to refer their cases to the Court.⁷⁹

5.8 Appeals by way of case stated

The statutory gateways for appeals to the Court of Appeal in criminal cases by way of case stated (where a question of law is put to the Court for its opinion) are article 146 of the Magistrates’ Courts (NI) Order 1981 and article 61 of the County Courts (NI) Order 1980. The Court of Appeal cannot hear criminal appeals from either of these inferior courts in any other way than through the case stated procedure.⁸⁰

The 1981 Order provides that an application for a case to be stated has to be made within 14 days of the day that the decision of the magistrates’ court was given and the court must then state a case within a further three months.⁸¹ There is no statutory provision allowing the Court of Appeal to extend either of these time limits, but whether they are mandatory or directive will, according to Dillon v Chief Constable of the Police Service of Northern Ireland,⁸² albeit that was a decision on cases stated by a county court, depend on the particular facts of the case. When dealing with a case stated the Court of Appeal can exercise all the jurisdiction of the magistrates’ court and it may affirm, reverse, or vary the decision of that court, remit the case to the magistrates’ court with such declarations or directions as the Court of Appeal thinks proper, and make orders on costs and expenses as it thinks proper.⁸³ Between 1999 and 2023 there were 65 reported criminal cases stated by magistrates’ courts to the Court of Appeal.

If a court or tribunal refuses to state a case a litigant can apply to the Court of Appeal for an order requiring one to be stated. This occurred in two reported criminal appeals during the period under review: one failed⁸⁴ and one succeeded.⁸⁵ In the latter instance Deeny LJ took the opportunity to outline the procedures attached to stating a case. For a start, a magistrate can refuse an application to state a case only if it is ‘frivolous’,⁸⁶ although subsequent English case law suggests that here that word means ‘futile, misconceived, hopeless or academic’.⁸⁷ Next, the magistrate should send a draft of any application for a case to be stated to the other parties in the case so that they can comment on it, leaving it to the magistrate to recast the document before it is ‘crystallised’ for the benefit of the Court of Appeal.⁸⁸ The Court of Appeal itself can later rephrase the questions submitted if it so desires.⁸⁹

Procedures for cases stated under the County Courts (NI) Order 1980 differ from those applying to magistrates’ courts in two respects. First, the applicant has 21 days, not 14, in which to make the application.⁹⁰ Second, while there is a statutory duty on a county court judge to state a case if an application is made, the judge can refuse to do so not only if they are of the opinion that the application is frivolous but also if it is ‘vexatious or unreasonable’.⁹¹ Between 1999 and 2023 there were ten reported criminal cases stated by county court judges to the Court of Appeal.

5.9 Conclusion

This chapter has analysed the various ways in which issues of criminal and sentencing law can reach the Court of Appeal. It has acknowledged that while there is research arguing the Court was too deferential to the security forces involved in criminal cases during the troubles, the modern-day Court is careful to adhere to the high standards of justice that a post-conflict society is entitled to expect. Today’s judges adhere consistently to strict tests but always with an eye on fairness and the interests of justice. They almost always speak with one voice, thereby ensuring that the criminal law remains certain and comprehensible.

1

In Police Service of NI v O’Donnell [2008] NICA 9, at [18], the Court admitted that research had been carried out for it by a legal officer of the Court. See too Chapter 3.

2

Senior Courts Act 1981, s 59. For an excellent analysis, see Rory Kelly, ‘Criminalising Dissent’ (2022) 138 LQR 432.

3

[2016] NICA 14.

4

[2022] NICA 73 and 74.

5

[2014] NICA 17.

6

[2014] NICA 60.

7

[2022] NICA 4, [53]–[57].

8

Criminal Justice (NI) Order 2004, Pt IV (arts 16–33), especially art 17(8) and (9).

9

[2006] NICA 10, [2006] NI 290; see too the Crown Court (Prosecution Appeals) Rules (NI) 2005, r 2(1).

10

R v JM [2013] NICA 64, [2015] NI 8, where the prosecution sought to appeal against a judge’s ruling that the proceedings should be stayed because of an abuse of process.

11

For more details see John Stannard, Northern Ireland Criminal Procedure: An Introduction (Round Hall Sweet & Maxwell 2000) 181–6.

12

Northern Ireland (Emergency Provisions) Act 1973, s 2.

13

Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (Cmnd 5185, 1972).

14

Justice and Security (NI) Act 2007, ss 1–9; Justice and Security (NI) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023.

15

In R v McCourt [2010] NICA 6 the Court of Appeal overturned a conviction from 1977 on the ground that the judge in question, McGonigal LJ, had not issued a reasoned judgment.

16

n 14, s 5(6) and (7).

17

[2007] NICA 37, [2008] NI 183.

18

[2010] NICA 34.

19

‘Half a century of non-jury trials in Northern Ireland, Part 1: Origins and Frameworks’ [2024] Crim LR 142; ‘Part 2: Future Options’ [2024] Crim LR 208.

20

Criminal Appeal (NI) Act 1980, s 44(1)–(2).

21

Ibid, s 45.

22

Ibid, s 16(1)–(2). In civil cases the usual time limit for appeals is six weeks: see Chapter 4.

23

[2015] NICA 39.

24

Ibid, [8(ii)] and [8(vi)]. In R v McLaughlin [2022] NICA 64, a sub-postmaster who was wrongly convicted of false accounting succeeded in his appeal 17 years later.

25

[2004] NICA 34, [32], commenting on the Criminal Appeal (NI) Act 1980, s 2, which reads: ‘Subject to the provisions of this Act, the Court of Appeal (a) shall allow an appeal against conviction if it thinks that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.’

26

R v Haughey [2001] NICA 12.

27

R v King [2005] NICA 20.

28

Forrester v Leckey [2005] NICA 26 and R v Hutchinson [2006] NICA 47.

29

See, for example, R v AG [2010] NICA 20; R v McCalmont [2010] NICA 27.

30

R v Meehan [2011] NICA 10, [2012] NIJB 91.

31

[1982] AC 510, 519.

32

R v Maughan [2004] NICA 21. The Court still dismissed the appeal.

33

Steven Greer calculates that in the five Court of Appeal supergrass cases 66 of the 78 convictions were quashed: Supergrasses: A Study in Anti-Terrorist Law Enforcement in Northern Ireland (Clarendon Press 1995) 287.

34

Ibid, 173–4. Lowry LCJ presided in four of the five Court of Appeal supergrass cases: R v Graham [1984] 18 NIJB 1 (where O’Donnell LJ made it clear, countering Hutton J, that he entertained ‘considerable doubt as to whether the fact that a witness may be shown by independent evidence to be probably telling the truth as against one defendant, can be used to support his credibility against all the other accused’); R v Donnelly [1986] 4 NIJB 32; R v Crumley [1986] 14 NIJB 30; and R v Steenson [1986] 17 NIJB 36. In the fifth case Lowry LCJ was himself the trial judge; most of his judgment was overturned, with a rare dissent: R v Gibney [1986] 4 NIJB 4 (O’Donnell LJ would have allowed Gibney’s own appeal). For a further concise account of the supergrass phenomenon see John Jackson and Sean Doran, Judge Without Jury: Diplock Trials in the Adversary System (Clarendon Press 1995) 44–7.

35

R v Fulton [2009] NICA 39, [54].

36

[2020] NICA 60, [2021] NIJB 627, [21]. The judge cited in support, among other cases, R v Walsh [2007] NI 154 and R v McDonald (AG’s References 11 to 13 of 2005) [2006] NICA 4, [2006] NIJB 424.

37

[2010] NICA 22. See too R v Jamison [2023] NICA 51, where the accused belatedly sought to adduce evidence that he was a state agent.

38

See, for example, R v Bowman [2006] EWCA Crim 417.

39

Criminal Appeal (NI) Act 1980, s 6(1).

40

The relevant legislation in England and Wales is the Criminal Appeal Act 1968, s 7(1); in R v Maxwell [2010] UKSC 48, [2001] 1 WLR 1837 the Supreme Court upheld the decision to order a retrial even though the defendant’s post-conviction admissions would not have been made had there not been gross police misconduct.

41

[2005] NICA 38, [6].

42

For example, R v CK [2008] NICA 31, [2009] NIJB 149; R v Daly [2011] NICA 69; R v TJ [2018] NICA 31.

43

See Section 5.7.

44

[2007] NICA 4, [2007] NI 154, [31], and [2010] NICA 7 (where the Court allowed fresh fingerprint evidence to be admitted and quashed the conviction).

45

See too Stannard, n 11, 186–8.

46

R v Newell [1975] 4 NIJB 2. For a good example of a detailed approach to a sentencing appeal see R v Nelson [2020] NICA 7, where (at [20]) McCloskey LJ set out no fewer than 16 principles which he and his fellow judges took into consideration.

47

Criminal Appeal (NI) Act 1980, s 10(3). See, for example, R v Wooton [2014] NICA 69, [2016] NIJB 210.

48

[2019] NICA 66, [76]-[82]. The Supreme Court dismissed a further appeal in this case ([2022] UKSC 13, [2022] 1 WLR 2820), the judgment being given by Sir Declan Morgan, the retired LCJ of Northern Ireland.

49

In R v Anderson [2021] NICA 28, [2022] NI 135, Morgan LCJ set out what steps should be taken if counsel have discussions with a judge about possible sentences before pleas, citing Attorney General’s Reference (Nos 6 to 10 of 2005) (Rooney and others) [2005] NICA 44, [2006] NICA 218.

50

[2004] NICA 1.

51

As set out in the Practice Statement issued by Lord Woolf CJ, reported at [2002] 3 All ER 413.

52

R v Brown [2011] NICA 70, [2013] NIJB 210, [8].

53

See www.sentencingcouncil.org.uk.

54

See www.judiciaryni.uk/lady-chief-justices-sentencing-group. There is an expectation that the Chief Justice should take a strong role in sentencing appeals, for reasons set out in Chapter 8.

55

See www.judiciaryni.uk/sentencing-guidelines-magistrates-court and www.judiciaryni.uk/sentencing-guidelines-northern-ireland.

56

See www.judiciaryni.uk/sentencing-guidelines-northern-ireland.

57

Justice (NI) Act 2002, s 41(5) and (6).

58

Criminal Appeal (NI) Act 1980, s 15(4).

59

[2004] NICA 23, [2005] NI 106.

60

[2005] UKHL, [2005] 2 AC 645.

61

This was under the Criminal Appeal (NI) Act 1968, s 48A, inserted by the Criminal Justice Act 1972, s 63(3).

62

[1977] AC 105.

63

Ibid, 139, per Lord Diplock. Viscount Dilhorne dissented.

64

See, for example, Jonathan Rogers, ‘Justifying the Use of Firearms by Policemen and Soldiers: A Response to the Home Office’s Review of the Law on the Use of Lethal Force’ (1998) 18 Legal Studies 486.

65

This power was transferred to the DPP from the Attorney General by the Justice (NI) Act 2002, s 41(5), but it did not become operational until ‘justice’ was devolved to Northern Ireland in 2010.

66

For example, DPP’s Reference (No 5 of 2019) [2020] NICA 1, [2021] NI 196; R v Corr [2019] NICA 64.

67

R v Ali [2023] NICA 20, [2023] NI 415, [4]; R v McKenna and Sheridan [2023] NICA 43, [9].

68

See, for example, R v Livingstone [2013] NICA 33; R v McCauley [2014] NICA 60, [2016] NIJB 151; R v Newell [2014] NICA 87; R v Ryan [2014] NICA 72; R v Devine [2021] NICA 7.

69

R v Chakwane [2013] NICA 24; R v RH [2018] NICA 28.

70

[2000] 2 Cr App R 391, 402.

71

[2001] NIJB 50.

72

[2006] NICA 32, [2007] NIJB 152.

73

[2012] NICA 14, [2013] NI 116. Cited with approval in R v Livingstone, n 68.

74

Marny Requa, ‘Considering Just-World Thinking in Counterterrorism Cases: Miscarriages of Justice in Northern Ireland’ (2014) Harvard Human Rights Journal 7, 45.

75

Marny Requa, ‘Revisiting the Past: Miscarriages of Justice, the Courts and Transition’ in Anne-Marie McAlinden and Clare Dwyer (eds), Criminal Justice in Transition: The Northern Ireland Context (Hart Publishing 2015) 251, 263–4. See too Hannah Quirk, ‘Don’t Mention the War: the Court of Appeal, the Criminal Cases Review Commission and Dealing with the Past in Northern Ireland’ (2013) 76 MLR 949.

76

[2018] NICA 24.

77

[2015] NICA 63.

78

[2016] UKSC 8, [2017] AC 387.

79

[2016] NICA 40, [2019] NI 1.

80

See too Stannard, n 11, 179–81.

81

Magistrates’ Courts (NI) Order 1981, art 146(2) and (6).