Law Report: Criminal appeal cannot continue after death of defendant: Regina v Kearley - House of Lords (Lord Templeman, Lord Ackner, Lord Jauncey of Tullichettle, Lord Mustill and Lord Nolan), 14 July 1994

Where a case is remitted by the House of Lords to the Court of Appeal (Criminal Division) under section 35(3) of the Criminal Appeal Act 1968 and the appellant dies before the case is heard in the Court of Appeal, the appeal abates on the appellant's death and the Court of Appeal has no jurisdiction to deal with the case.

The House of Lords unanimously dismissed an appeal by the appellant's agent from the Court of Appeal's decision ((1994) 1 WLR 555) that the appeal had abated by the appellant's death.

Section 35(3) provides: 'For the purpose of disposing of an appeal, the House of Lords may exercise any powers of the Court of Appeal or may remit the case to the court.'

In 1989 the appellant pleaded guilty to offences of supplying and possessing controlled drugs. He was sentenced to imprisonment and a confiscation order of pounds 10,371 was made. His appeal against conviction was dismissed by the Court of Apeal, but his sentence was reduced to the extent of leaving only the confiscation order standing. The House of Lords quashed his convictions on some counts relating to a large quantity of drugs.

The case was remitted to the Court of Appeal under section 35(3) of the Criminal Appeal Act 1968 to determine whether the confiscation order should be set aside or varied, but before it could be heard the appellant died. The Court of Appeal held that where a case was remitted by the House of Lords to the Court of Appeal under section 35(3) and the appellant died before the case was heard in the Court of Appeal, it had no jurisdiction to deal with the case.

The appellant argued that (1) on a remit under section 35(3) the Court of Appeal was exercising a delegated jurisdiction of the House of Lords, and the jurisdiction did not abate on the appellant's death, and (2) even if the Court of Appeal was exercising its own statutory jurisdiction nevertheless there was no abatement.

Michael de Navarro QC and John Aspinall (Sharpe Pritchard for Brian Sharman, Bournemouth) for the appellant by his agent; Jeremy Carter-Manning QC and Andrew Mitchell (CPS) for the Crown.

LORD JAUNCEY said that Part I of the 1968 Act dealt with appeals to the Court of Appeal and Part II with appeals to the House of Lords from the Court of Appeal. Part I included section 17 which allowed the Secretary of State to refer certain matters to the Court of Appeal.

Mr Navarro argued that the remit did not constitute a disposal of the appeal by the House of Lords but a delegation to the Court of Appeal to dispose of it on behalf of the House.

In the present case the remit was for the purpose of reconsideration by the Court of Appeal of an order whose justification was rendered at least doubtful as a result of the decision of the House. Once the House had exercised one or other or both of the powers in section 35(3) in relation to the whoe case the appeal was disposed of there. When a case was remitted back to the Court of Appeal its jurisdiction under Part I revived and it dealt with the remitted matter by the exercise of those powers which were conferred on it in relation to appeals from inferior courts.

Turning to the second argument, it was submitted that unfairness could result to a widow and family or to the deceased's estate if the death before the hearing of the appeal of someone wrongfully convicted resulted in automatic abatement of that appeal.

The Court of Appeal was a creature of statute limited by the powers conferred on it by Parliament. Sections 1 and 9 provided for appeals against conviction and sentence. In each section the right of appeal was given to the individual convicted. By contrast, in section 17(2) a reference might be made at any time either on the application of the person convicted 'or without any such application'. Part I contained no provision for the continuation of an appeal after the appellant's death. A right of appeal was personal to the convicted person.

There was no doubt that as the law now stood, injustice could result if an individual's estate was obliged to suffer a wrongly imposed pecuniary penalty. It must be for serious consideration whether some machinery to alleviate such injustice should not be available. That was, however, a matter for Parliament.