Criminal Appeal Act Section 8: Retrial and Try Again

Published date01 February 2024
AuthorPaul Dargue
Date01 February 2024
Subject MatterCase Notes
Criminal Appeal Act Section 8:
Retrial and Try Again
R v Layden [2023] EWCA Crim 1207
Murder, retrials, jurisdiction, precedent, statutory interpretation
When the Court of Appeal (Criminal Division) allows an appeal against conviction it has the power to
order a retrial by s. 7 of the Criminal Appeal Act 1968 if it thinks doing so is in the interests of
justice. When it does so, it orders that a fresh indictment be preferred and for the appellant to be
re-arraigned within two months. This is in pursuance of the provisions of s. 8, which states that the
person may not bearraigned for retrial more than two months after the order for retrial (without
further leave of the Court of Appeal). Where the time limit expires the defendant can apply to the
Court of Appeal to set aside the order for a retrial and ask for an order of acquittal to be entered (s. 8
(1A)). The prosecution can apply for leave to arraign out of time by s. 8(1), but the Court of Appeal
can grant leave by s. 8(1B)(b) only if it is satisf‌ied that the prosecution has acted with due exped ition,
and there is good cause to retrial.
The question of what happens if the requirements of s. 8 were not complied with was recently con-
sidered by the Court of Appeal in R v Llewellyn ([2022] EWCA Crim 154, Fulford LJ, Cutts,
Cockerill JJ). The Court observed that in a case specif‌ically involving a retrial ordered by the Court of
Appeal following the quashing of a conviction, the proceedings will already have taken a signif‌icant
period of time [39]. The purpose of s. 8 is to ensure that the retrial takes place as soon as possible.
The Court concluded that the Crown Court only had jurisdiction to retry because the Court of Appeal
had ordered a retrial under s. 7, and that Parliament made this jurisdiction contingent on fulf‌ilment of
the obligations set out in s. 8[45]. Further, Parliament clearly intended the total invalidity of the later
proceedings if the requirements were not complied with [46]. Parliament did not intend that this proced-
ure could simply be avoided, intentionally or otherwise, thereby depriving an accused of a substantive
and unique protection(id). The appeal in that case was allowed and the conviction quashed.
The appellant in the present case, Stuart Layden (L), invited the Court to reconsider the question. L
was convicted of the murder of Ian Church (C) in 2013. He was sentenced to life imprisonment with
a minimum term of 8 years. The facts of the incident are not relevant to the issues raised in the
appeal. That conviction was quashed on 19 March 2015 and a retrial was ordered by the Court of
Appeal on the same day; the two month period for re-arraignment thus expired on the 19th May 2015.
L was granted bail and appeared before the relevant Crown Court in April 2015 but he was not formally
re-arraigned. It seems (and it was conceded) that he was arraigned on the 28th September 2015, before the
jury was empanelled on the f‌irst day of the retrial [5]. The retrial took place but the jury was discharged
during its deliberations. A second retrial took place, and L was convicted in May 2016. L appealed
against that conviction in 2017 on other grounds (no point being made about the application of s. 8)
but that appeal was dismissed (see R v Layden [2017] EWCA Crim 216). The present appeal appeared
before the Court of Appeal on a reference from the Criminal Cases Review Commission (CCRC).
L argued that Llewellyn correctly stated the law, and that Parliament had decided that material non-
compliance with section 8 would be a jurisdictional bar to any retrial. His conviction is therefore a
Case Note
The Journal of Criminal Law
2024, Vol. 88(1) 6769
© The Author(s) 2024
Article reuse guidelines:
DOI: 10.1177/00220183241230341

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