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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kinsella v Criminal Cases Review Commission [2002] EWCA Civ 1438 (13 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1438.html Cite as: [2002] EWCA Civ 1438

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London WC2 Friday 13th September 2002

1. LORD JUSTICE WALLER: Mr Kinsella was convicted of conspiracy to rob in 1987. His attempts to appeal that conviction were unsuccessful. Thus he made an application to the Criminal Cases Review Commission seeking a reference of his case back to the Court of Appeal. The Criminal Cases Review Commission refused to refer the case back. Mr Kinsella applied for permission to apply for judicial review of that refusal.
2. His application was refused on paper by Turner J on 4th December 2001. He renewed his application which was initially to be heard by Auld LJ. In relation to that hearing Mr Kinsella requested an order that he be produced by the prison authorities for the purposes of him being allowed to argue his case personally. Auld LJ refused to make that order but informed Mr Kinsella that it was a matter for Mr Kinsella to persuade the prison to allow his attendance. Auld LJ recognised that time might be needed for that arrangement to be made and in the result the application was, at that stage, adjourned to 11th April 2001.
3. Mr Kinsella requested a further adjournment. He was granted that further adjournment until 23rd April and that adjournment was granted on the basis, as was stated in a letter of 9th April 2001, that the period until 23rd April 2001 would give him sufficient time to make arrangements with the prison for his production.
4. Mr Kinsella then asked Kennedy LJ to make an order for his production. The response by letter of 17th April was that Kennedy LJ was not prepared to say that the interests of justice required Mr Kinsella's production but made clear that, if Mr Kinsella had anything he wanted to say he could put it in writing. Mr Kinsella took advantage of that suggestion. He did not make his own arrangements to appear but he put in written material on the application which came on before Kennedy LJ. Having considered the material, Kennedy LJ refused the application for permission to apply for judicial review.
5. It is the refusal of the application for permission to apply for judicial review that Mr Kinsella wishes to appeal to this Court. The difficulty is that the Court of Appeal has no jurisdiction to hear an appeal from the Divisional Court in "any criminal cause or matter." Furthermore, the Court of Appeal has ruled, first, that categorisation depends on the nature of the underlying decision, and second, that the power to refer by the Criminal Cases Review Commission is merely an extension of a convicted person's rights to appeal against conviction or sentence and is thus "a typical criminal clause or matter". The authority which first made that clear is Queen v The Secretary of State for the Home Department ex parte Garner (unreported but transcript of 15th June 1999). That authority was followed on 31st August 2001 by Tuckey LJ in Saxon v Criminal Cases Review Commission.
6. Following those authorities Master Venne informed Mr Kinsella, in relation to his application for permission to appeal to the Court of Appeal, that the Court of Appeal had no jurisdiction. Mr Kinsella's response was to challenge Master Venne's view, suggesting that the complaint which he wished to bring to the Court of Appeal related to a procedural error, that is to say the direction that it was not in the interests of justice for him to be present and Kennedy LJ's refusal to make an order against the prison authority that he should be produced.
7. However, as far as the jurisdiction of the Court of Appeal is concerned, the question is: what underlying decision is sought to being made the subject of judicial review? One can see from Mr Kinsella's application to this Court that what he is seeking to challenge by way of judicial review is the decision of the Criminal Cases Review Commission. That is a criminal cause or matter, as this Court has clearly held in ex parte Garner and in Saxon. This Court, thus, has no jurisdiction and Master Venne's decision that this Court has no jurisdiction should be confirmed.
8. I should perhaps just add that Mr Kinsella was not present today, although this matter was adjourned into open court to give him an opportunity to be present and once again in that regard Laws LJ directed that there should be no order against the prison authorities to produce Mr Kinsella but Mr Kinsella could have made his own arrangements and was left to make his own arrangements but has not done so and that is why he has not in fact been present today. But so that he can know the reasons for confirming Master Venne's ruling a copy of the transcript of this ruling should be made available to him at public expense.