The Court of Criminal Appeal has certified one point of law for appeal to the Supreme Court: whether section 16 of the Criminal Justice Act 2006 applies to statements of evidence made before the Act came into force.
The decision was delivered on 29 July 2015 by O’Donnell J, with Moriarty J and White J. The application was brought by Brian Rattigan against the Director of Public Prosecutions under section 29 of the Courts of Justice Act 1924, as amended. It sought a certificate that the court’s 19 February 2013 decision involved a point of law of exceptional public importance and that an appeal would be desirable in the public interest.
The court said the issue about statements made before the 2006 Act took effect was significant. Although the respondent argued that it was time-limited and unlikely to arise in future cases, the court considered that the argument also raised enduring questions about how courts should approach changes to criminal procedure and evidence. It therefore certified the proposed question for the Supreme Court.
The court refused certification on two other questions. One concerned whether a witness is “available for cross-examination” under section 16 merely by being physically present in court. The court said the phrase means a witness is present, can be called and can be cross-examined if the party wishes. It concluded that no certifiable point of law arose from its earlier decision on that issue. The judgment said a constitutional challenge to section 16 could be brought in properly constituted proceedings, but no such challenge had been commenced in this case.
The final proposed question concerned whether the trial judge’s jury charge advocated conviction without making clear that the jury could disregard the judge’s views of the facts. The court described the proposed wording as tendentious and said its earlier decision had applied settled law to the particular circumstances of a difficult and complex trial. It had concluded that the charge did not make the trial unfair. The court said that issue raised no point of law suitable for certification under section 29.
The certificate is limited to the question about statements made before the 2006 Act came into force. The judgment does not decide that question; it permits an appeal on that point to be taken to the Supreme Court.