Justice in Criminal Appeals: A Comparison between the Appellate Jurisdiction of the English Court of Appeal and the Court of Appeal of the Supreme Court Victoria

Abstract

In 2009, a lengthy backlog of outstanding criminal appeals in the Victorian Court of Appeal led to a perception of crisis. This was fed by concerns about the delays faced by prisoners awaiting the determination of appeals against both conviction and sentence.

As a consequence a process of reform has commenced that is based upon the procedures used in the Criminal Division of the English Court of Appeal. That court has comparatively short delays and was seen by Victorian reformers as demonstrating a model for a more efficient procedure.

This dissertation asks whether the English system of criminal appeals (in whole or in part) provides a model of procedure that can be implemented in Victoria without a significant decrease in the quality of judicial decision-making.

This issue is considered in two parts. First, a comparative analysis of procedure is undertaken where the mechanisms within the English system that create efficiency are identified. This part is based upon research undertaken during a week spent in the criminal appeals office of the Criminal Division of the English Court of Appeal. Second, this dissertation considers the respective merits of implementing each mechanism in Victoria.

It concludes that English system of criminal appeals offers a poor model for reform. Many of the mechanisms that promote efficiency do so at the expense of the ability of the court to identify and rectify error. It follows that reform in Victoria is misplaced to the extent that the English system of criminal appeals is sometimes considered simply to be a 'speedier' version of the Victorian approach. Rather, efficiency is gained by a far narrower and more rudimentary approach to the identification of error. This is a conclusion that should give pause to reformers in Victoria who might inadvertently limit the ability of judges to remedy miscarriages of justice.

Keywords: criminal appeals, judicial review, appellate jurisdiction, appeals against conviction, appeals against sentence, court of criminal appeal, court of appeal, Supreme Court Victoria, miscarriage of justice

JEL Classification: K14, K49