ROUTE OF APPEAL FROM COMMITTAL DECISIONS IN THE DIVISIONAL COURT: GO TO THE SUPREME COURT DIRECTLY

The observations at the end of the Divisional Court judgment in National Highways Ltd v Buse & Ors [2021] EWHC 3404 (QB) are of some interest. The Court held that the appropriate route to appeal committal decisions made in the Divisional Court was not to the Court of Appeal but directly to the Supreme Court. Permission to appeal was needed.

THE CASE

The defendants had all been sentenced for breaches of an injunction in relation to trespass on the highway, the M25.  The Court considered the appropriate route of appeal.

THE JUDGMENT ON THIS ISSUE

Lord Justice Dingemans observed that the white book notes, which suggested that there was an unrestricted right of appeal to the Court of Appeal from a Divisional Court decision in relation to committal, were wrong.

Routes of appeal

1. 1. It may be that the defendants will wish to appeal this order and, in any event, we are required to set out the routes of appeal in the order for committal. It is apparent that the notes in the White Book at 3C-39 suggest that the route of appeal is to the Court of Appeal and other notes state that there is an unrestricted right of appeal. These are not accurate statements for the reasons set out below.

1. 1. Section 13 Administration of Justice Act 1960 states:

“Appeal in cases of contempt of court.

(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.

(2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant; and the appeal shall lie—

…

(b) … from an order or decision (other than a decision on an appeal under this section) of a single judge of the High Court, or of any court having the powers of the High Court or of a judge of that court, to the Court of Appeal;

(c) ….from an order or decision of a Divisional Court… to the Supreme Court.” (emphasis added)

1. 1. This shows that the route of appeal from this Divisional Court is to the Supreme Court.

1. 1. Further it is apparent that permission to appeal is required. This is because section 1(1) of the 1960 Act provides a right of appeal to the Supreme Court from a decision of the High Court in a criminal cause or matter. Section 1(2) provides that leave to appeal is required. It restricts the circumstances in which leave to appeal may be granted: it may not be granted unless (a) it is certified by the court below that the decision raises a point of law of general public importance is and (b) that court, or the Supreme Court, consider that the point out to be considered by the Supreme Court. Section 13(4) of the 1960 Act states:

“Subsections (2) to (4) of section one and section two of this Act shall apply to an appeal to the Supreme Court under this section as they apply to an appeal to the Supreme Court under the said section one, except that so much of the said subsection (2) as restricts the grant of leave to appeal shall apply only where the decision of the court below is a decision on appeal to that court under this section.”

1. The effect of these provisions is that leave to appeal to the Supreme Court is required, but there is no restriction on the circumstances in which leave to appeal may be granted.