Prosecution Appeals against Acquittals in Bench Trials—The Criminal Justice Act 2003 and the Government's Fear of the Dark
| Author | Michael Bohlander |
| Published date | 01 August 2005 |
| Date | 01 August 2005 |
| DOI | http://doi.org/10.1350/jcla.2005.69.4.326 |
| Subject Matter | Comment |
Prosecution Appeals against Acquittals in
Bench Trials—The Criminal Justice Act 2003
and the Government’s Fear of the Dark
Michael Bohlander*
This short note addresses the issue of prosecution appeals against acquit-
tals when a judge has conducted or continued a trial without a jury,
either for reasons of complexity or because of jury tampering, according
to Part 7 of the Criminal Justice Act 2003. Section 48(3) and (4) of the
Criminal Justice Act 2003 confers on the judge all the powers of the full
Crown Court and equates all provisions referring to the full judge and
jury trial, unless the context otherwise requires, with the trial by judge
alone. Section 48(5) requires the judge to give reasons for his judgment
in cases of a conviction. E contrario this will mean that an acquittal need
not be supported by reasons, and that view apparently is based on the
general principle of the English common law that acquittals cannot be
appealed directly by the prosecution, especially if they have been pro-
nounced by a jury.1
Just what the basis for this principle is, is unclear. However, as
Rosemary Pattenden2 has trenchantly argued, all the traditional justifi-
cations appear to fail. The most readily used argument is that of double
jeopardy, i.e. that the defendant should not be put in peril twice for the
same offence. First of all, one must remember that this doctrine only
applies to final3 verdicts; a criminal justice system that allows prosecu-
tion appeals, as do many continental and some common law jurisdic-
tions, by definition cannot violate the double jeopardy rule. Secondly,
the ban on appeals against acquittals does not apply for applications to
the High Court against acquittals by way of case stated when the
acquittal was handed down by a magistrates’ court. These appeals in
theory do not attack the factual foundation of the acquittal, but may
question whether the magistrates came to the right conclusion based on
the undisputed facts.4 In such a case, the prosecution can to some extent
obtain a supervisory decision of the High Court on the evaluation of the
* Professor of Law,...
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