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In New Zealand, where a criminal appeal can be brought only by leave and this leave is refused, there is no way to apply to the higher court to review this refusal. It is final as per s 213(3) Criminal Procedure Act 2011:

An appeal court’s decision to give or refuse leave for the purposes of this Part is final unless otherwise expressly provided by this Part or any other Act.

Do other common law jurisdictions have this provision of finality of leave refusals, or can they be challenged in higher courts? Are such final refusals decided by a single judge, or do they require a panel of a few judges?

To avoid doubt, this question applies only to leave refusals by courts lower than the top level one i.e. where there is a higher court which could possibly review and overturn the refusal.

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  • Just to make sure there isn't a misunderstanding: usually (in my jurisdiction at least) you first ask the court which made the decision you are appealing for permission to appeal and then if they refuse you ask the appeal court for permission, so by the time you get to the appeal court you are already challenging the permission refusal. The provision you're quoting refers to the appeal court's refusal being final. Is the appeal court in your jurisdiction the first and only opportunity to ask for permission?
    – JBentley
    Commented Sep 6 at 10:34
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    @JBentley It is so in criminal procedure: you do not ask the original court for permission, you straight apply for leave to appeal to the next level court. However, in civil procedure it is exactly as you say.
    – Greendrake
    Commented Sep 6 at 11:17

3 Answers 3

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The General Rule

In U.S. law, most first direct appeals of trial court decisions which are "final orders" are a matter of right.

There is generally a direct appeal of right from a decision of a trial court which is not a court of record (generally a very low level limited jurisdiction trial court, such as a municipal traffic court or a justice of the peace court) by a trial de novo in a higher court of record, and there is also generally an appeal of right from the decision in the trial de novo made by the higher court of record.

Appeals from U.S. Bankruptcy Court decisions and from certain decisions of federal court magistrates, to U.S. District Courts (i.e. the main kind of federal trial court) follow the same pattern as appeals from trial courts not of record, with de novo review by the U.S. District Court followed by a direct appeal of right from the U.S. District Court ruling, even though U.S. Bankruptcy Courts and proceedings of federal magistrates in U.S. District Courts are both courts of record. Likewise, some, but not all, decisions of state court magistrates are treated for appellate purposes as decisions of court not of record.

There are exceptions to this rule, however, the most notable of which are set forth below.

Exceptions To The General Rule

  • Further appeals beyond a first direct appeal of a decision of a court of record, such as en banc review in a U.S. Court of Appeals (i.e. federal intermediate appellate court) of an initial thee judge appellate panel decision, or review by a state's highest court from an intermediate appellate court, is generally discretionary, and denial of appellate review at these levels is unreviewable.

  • Petitions for rehearing or reconsideration of a decision by the same court that made the original decision are generally discretionary.

  • A decision to allow an appeal filed after the deadline for doing so, that would otherwise be an appeal of right, is discretionary where it is allowed at all (often there is a jurisdictional deadline for filing an appeal that is a month or two after the usual deadline). This is also usually allowed only with a showing of "good cause" or "excusable neglect" for the late filing.

  • Most interlocutory appeals (i.e. appeals before a case is concluded) are allowed only with leave of the trial court, the denial of which is basically unreviewable, until a final order is entered in the case (at which point appellate review of the interlocutory order may be moot). A few select kinds of interlocutory appeals, however, such as appeals of the entry of a preliminary injunction, of denials of a claimed right to arbitrate a dispute, of contempt of court convictions, of 4th and 6th Amendment evidence suppression rulings in criminal cases, and of denials of a claim of immunity from being sued or prosecuted on a claim, are interlocutory appeals of right. The exact list of exceptions varies from state to state and between the state courts and the federal courts.

  • A U.S. District Court's (i.e. federal trial court's) decision to refuse to allow a case to be removed from state court to federal court, after this is attempted, is basically not subject to review in an appellate court. As explained here (explaining a U.S. Court of Appeals for the Fourth Circuit decision on the matter):

Under 28 U.S.C. 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 [federal-officer removal] or 1443 [civil rights] of this title shall be reviewable by appeal or otherwise.” The Fourth Circuit acknowledged that the Supreme Court had interpreted similar language in 28 U.S.C. 1292(b) to confer appellate jurisdiction over the entire order, rather than particular reasons for the order, and that the Seventh Circuit had relied on that authority in holding that 28 U.S.C. 1447(d) authorizes appellate courts to review any issue in a remand order so long as removal was premised in part on the federal-officer removal statute or the civil-rights removal statute. But the court concluded that those decisions were insufficient to abrogate preexisting Circuit authority interpreting 28 U.S.C. 1447(d) as conferring appellate jurisdiction over only the enumerated grounds for removal.

  • A U.S. federal court can ask that a U.S. state's highest court resolve a question of state law that is unresolved in the relevant state by posing what is called a "certified question" to the state's highest court. But the decision regarding whether a certified question will be presented by a U.S. federal court is discretionary and is basically unreviewable.

  • In the U.S. federal courts, appeals of certain kinds of prisoner's petitions, such a habeas corpus petitions, are generally allowed only with leave of the court, which is basically unreviewable. Some of the details of this are discussed in this Congressional Research Service report. This situation is most similar to the general rule which the question asserts applies in New Zealand.

I qualify some of these statements by saying "basically" because often a decision which is ordinarily not subject to appellate review can still be reviewed by the highest relevant state court, or in the federal system by either a U.S. Court of Appeals or by the U.S. Supreme Court, with a discretionary extraordinary writ such as a writ of mandamus (or a court rule providing for an equivalent kind of review such as Colorado Appellate Rule 21).

Also, while the rules set forth above reflect the overwhelming majority rule in U.S. states, there may be some exceptions in particular U.S. states to the general rule, particularly in states where there is no intermediate appellate court.

Utah's system is particularly unusual, with an appeal of right to the Utah Supreme Court in many kinds of cases, which in turn, either decides the case itself (a minority of the time) or refers the case to Utah's intermediate Court of Appeals (most of the time).

Historical Footnote

This was not always the case in appeals of federal criminal convictions in the United States. The direct appeal of right in criminal convictions entered in federal court dates only to 1891, when the intermediate U.S. Courts of Appeal were established.

U.S. states mostly started to allow direct appeals of right of criminal convictions in the same time frame, plus or minus a couple of a decades. Prior to 1891, federal criminal convictions could only be set aside through a writ of habeas corpus (on much narrower grounds than a direct appeal of a criminal conviction) or through a Presidential pardon (something that was granted much more freely as a result of the lack of a direct appeal remedy).

The right to a direct appeal of a trial court ruling is still not a constitutional right under the U.S. federal constitution in either state court or federal court cases, although certain constitutional rights (like the right of an indigent criminal defendant to have state appointed counsel and the preparation of a trial court transcript at state expense) do apply to direct appeals of right in cases where they are allowed by statute or court rule.

There is only a U.S. constitutional right to file a writ of habeas corpus challenging a criminal conviction or an incarceration not supported by a criminal conviction. Historically, this was largely limited to review of the jurisdiction of the court, the existence of a conviction, the legality of the law establishing the crime, speedy trial rights for someone who has not been convicted, and the duration of incarceration authorized by the sentence imposed upon conviction. These days, however, a habeas corpus petition can be granted on wider grounds than it could have been in the late 1700s and early 1800s.

Thus, a New Zealand style scheme for criminal appeals would not be unconstitutional is established by Congress or a U.S. state, under the U.S. federal constitution.

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is not a common-law jurisdiction, and as a consequence the answer is rather simplified. But hey, comparative law is fun, right?

"Leave to appeal" does not exist

As a consequence, it cannot be denied, nor granted.

As a funny example, look at TJ Paris, 25/02/2021, 21/50553. Twitter’s motion asks, in case the court finds against them, that it "takes notice that Twitter may [appeal the decision]". I suppose some US-based attorney demanded that local counsel include an application for leave of appeal, and the local counsel did their best to obey the request without beclowning themselves asking for something that does not exist. (The court answered that "it does not belong to the court to take notice of a party’s available avenues to appeal", which is fairly tame as denials of weird motions go.)

OK, maybe for constitutional matters

If one wishes to attack a law as unconstitutional, there is a certiorari-like process called QPC (question prioritaire de constitutionnalité - priority question of constitutionality), see article 23-2 of the relevant constitutional law. You must raise the matter as a separate motion. The court decides whether to transfer it or not to the relevant highest court. If it does transfer it, that cannot be appealed; if it does not, that can only be appealed in the same way as the main decision.

It is theoretically possible that a QPC be denied in a non-appealable manner. That is because there are multiple French supreme courts: the Conseil Constitutionnel holds jurisdiction over (most) QPCs and some election law issues, the Conseil d’État over administrative law issues and (a few) QPCs, the Cour de Cassation over all criminal and civil cases. A QPC can be raised before the Cour de Cassation, for transfer to the Conseil Constitutionnel; the Cour de Cassation does not have jurisdiction over constitutional issues (and is in that sense "not the highest court"), but its decisions (including a denial of QPC transmission) cannot be appealed.

This is somewhat unlikely, though. First, QPC and cassation procedures rare in general (and expensive!). Furthermore, any legal arguments should be made at the lower levels, not introduced as an appelate matter (French procedure gives more leeway than US procedure to introduce new arguments, but it is still a fight best avoided), unless there was a constitutional change as the case made its way through the courts.

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Yes

Most superior courts (i.e.the top level ones) in common law jurisdictions must grant leave to appeal and they will only do so where there is a serious issue of law. Their decision not to grant leave is not subject to review.

This is true of the US Supreme Court, the Canadian Supreme Court, the Australian High Court, and the UK Supreme Court plus state/provincial equivalents where applicable.

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  • This question does not apply to the top level courts: I thought it would be obvious as the finality in question refers to the absence of the right to apply to the higher court i.e. there must be one. I'll edit to make it clear..
    – Greendrake
    Commented Sep 6 at 10:14
  • @Greendrake state and provincial top level courts have higher courts in the national top level court
    – Dale M
    Commented Sep 6 at 10:39
  • Aha, well, they are not quite "top level" then, so yes, this answer counts. What about the number of judges in the court making decision not to grant leave? Can it be just one like in NZ?
    – Greendrake
    Commented Sep 6 at 11:36
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    I don't know about the other jurisdictions, but this answer is wrong in the United States.
    – bdb484
    Commented Sep 6 at 13:37

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