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Home  Attitudes & Opinions Document for the Court of Appeals |
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Document for the Court of Appeals |
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Monday, 08 March 2004 |
R E G I N A
V
KENNETH GEORGE KING
SUPPLIMENTARY SUBMISSIONS TO THE CRIMINAL CASES REVIEW COMMISSION ON BEHALF OF THE APPLICANT
CASE REFERENCE NUMBER: 00241/2003
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REF: DM/GDS/DP
9 MARCH 2004
R. v KENNETH GEORGE KING
In drafting these further submissions, we have taken into consideration in a case of this nature and reminded the Applicant the fact that the Commission does not exist to provide a further appeal from a decision of the Court of Appeal. Its function is to consider issues which were not apparent at the time of the trial and the appeal, such as new evidence which has come to light since the proceedings were concluded or material which has somehow been ignored or overlooked. If the Commission considers that there is a possibility that a miscarriage of justice has occurred, it is duty bound to refer the case back to the Court of Appeal Criminal Division for a further hearing by that court on both conviction and sentence.
THE LAW
The terms of reference of the Commission are set out in the Criminal Appeal Act 1995 section 13, which provides as follows :-
1. A reference of a conviction, verdict, finding or sentence shall not be made under any of Sections 9 to 12, unless :-
(a) The Commission considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made.
(b) The Commission so consider :-
(i) in the case of a conviction, verdict or finding, because of an argument or evidence not raised in the proceedings which led to it, or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law or information not so raised, and
(iii) in the case of an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
(2) Nothing in Sub Section 1 (b)(i) or (c) would prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.
In drafting this Application, we have considered the inevitable consequences of a referral. We are of the view that in the case of this Applicant, there are exceptional circumstances which justify making a referral.
DOCUMENTS ATTACHED TO THESE SUBMISSIONS
This application is supported by a bundle with enclosures. The documents attached are as follows:
(a) Certificate of conviction dated 27 September 2001 with regard to a conviction and evidencing a sentence imposed of 7 years imprisonment
(b) Transcript from the Court of Appeal, Criminal Division dated 24 January 2003
(c) Extract from Archbold para 20-127
(d) Transcript of R v Angel, 52 Cr.App.R.280 CA
(e) Committal Notice to Applicant
(f) Chronology of correspondence
(g) Letter dated 5 March 2004 from CCC to Paul Martin & Co
SHORT BASIS OF THIS REQUEST
It is submitted that the Court of Appeal, Criminal Division sitting on 4 January 2003 were not made aware that on Counts 2 and Counts 4 leave of the DPP was not requested by the Crown
Leave of the DPP, being a necessary mandatory requirement under the Sexual Offences Act 1967,s.8 not having being obtained will lead to the quashing of the conviction. (Archbold 20-127)
THE LAW REGARDING LEAVE OF THE DPP
It is a necessary requirement to obtain leave of the DPP prior to a prosecution being instituted for the offences this Applicant has faced and convicted. The failure to obtain leave will, as a matter of necessity, make the whole proceedings a nullity. The case of R v Angel, 52 Cr.App.R.280 CA notwithstanding a plea of guilty by the Defendant at trial the conviction was quashed.
Leave of the DPP is necessary when the the proceedings are instituted. In R.v. Whale and Lockton (1991) Crim.L.R. 692, C.A. it was held, following R.v. Elliott, 81 Cr.App.R. 115,CA that for the purpose of obtaining the Attorney General
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