Generations of disappointed advocates whose submissions have been rejected and whose appeals have been dismissed have shrugged their shoulders and cursed the CACD. But now it seems the partisan view of disappointed appellants has moved into the mainstream. Perhaps we are witnessing a new dawn, in which the notorious reluctance of the CACD to resist critical scrutiny of its past decisions has changed?
Lord Leggatt’s now famous opening line of the Judgment in R v Hayes and Palombo [2025] UKSC 29 (the Libor and Euribor cases) observed: “The history of these two cases raises concerns about the effectiveness of the criminal appeal system in England and Wales in confronting legal error”. There can be little doubt that, in writing those words, Lord Leggatt had in mind two striking features of the IBOR cases. First, just how many times the basic errors of the first IBOR case, Hayes, had been approved by different constitutions of the CACD over the ten years between Hayes’ conviction and the Supreme Court decision last year. And second, the consistent (and indefensible) refusal of the CACD to certify a point of law for the consideration of that Court.
Both features are perhaps illustrated by Tom Hayes’ route to the Supreme Court. Having had his initial appeal against conviction refused in 2016, he sought to persuade the CCRC to refer his case on the basis that the jury directions removed the central issues of fact from the jury. The CCRC declined to do so. At the eleventh hour, the CCRC agreed to refer the case on a different basis, deriving from an inconsistent decision in the United States. Once in the CACD, Hayes nonetheless sought to run the basic jury direction point. The CACD refused leave on that ground and dismissed it out of hand. Yet in the Supreme Court, that was the basis on which Hayes’ appeal was allowed. Hence Lord Leggatt’s concerns.
And now, less than a year later, the CACD itself, in Field [2026] EWCA Crim 413 (Edis LJ VP. Goose J and Butcher J) has found itself in ‘respectful disagreement’ with the judgement of the previous Vice President Field [2021] EWCA Crim 380 (Fulford VP, Whipple J and Fordham J).
That is a state of respectful disagreement that it took the CACD over five years to achieve, having, during that period, dismissed Field’s first appeal, refused the appellant’s application for a rehearing following receipt of the draft judgment and before publication of the final judgement, refused the subsequent application to certify a point of law and so to permit an appeal to the Supreme Court, and refused the application to re-open the appeal before a fresh constitution in March 2022 on the grounds of bias and unfairness (Field [2022] EWCA Crim 316 (Sharp PQBD, Sir Nigel Davis and Sir Stephen Irwin).
A state of respectful disagreement that the CACD has only had the opportunity of achieving because the CCRC referred the case back to it on the ground of exceptional circumstances, namely that the jury direction on causation was so obviously wrong that the appellant ought to have the opportunity of so arguing all over again!
Adrian Darbishire KC and David Jeremy KC, who represented Hayes and Field, reflect on the failures, and ultimate success of the criminal appeal system in their respective cases.
QEB Hollis Whiteman invite you to a seminar addressing the impact of these recent two judgments and whether there is the need for change. Our panel welcomes your contribution to this important discussion. Chatham House Rules Apply.
Timings: 5.30pm to 7.00pm
Followed by drinks and canapés
To express an interest in attending, please email Berna Sponca.