R v Layden

Held, allowing the appeal, that Parliament could not fairly have intended that total invalidity of retrial proceedings ordered pursuant to section 7 of the Criminal Appeal Act 1968 would follow from non-compliance with the procedural requirements of section 8(1) of that Act, bearing in mind the wording and purpose of sections 7 and 8, the alternative to total invalidity and the consequences of total invalidity; that, as to wording, section 8 expressly set out the circumstances in which the Crown Court was deprived of jurisdiction to conduct a retrial (namely where an order was made under section 8(1B)(b) setting aside the order for retrial and directing the entry of a judgment and verdict of acquittal), which was inconsistent with a construction whereby section 8 implicitly provided that the Crown Court was also deprived of jurisdiction where there was a failure to comply with the procedural requirements of section 8(1); that the purpose of section 7 was to preserve the integrity of the criminal justice system and to avoid it being brought into disrepute by allowing an apparently guilty person to be freed on a technicality, while the purpose of section 8 was to ensure that the retrial proceedings were brought under judicial control and took place as soon as reasonably practicable; that the alternative to total invalidity was that where the procedural requirements of section 8(1) had not been complied with retrial proceedings would nevertheless be valid, but the defendant would have the right to apply for an order under section 8(1B)(b) and, if that right was not exercised and the defendant was convicted at retrial, the defendant would have the right to appeal against conviction on the ground that the retrial should never have taken place; that the consequences of total invalidity, which would arise irrespective of whether the purpose of section 8 had been met, were that where the procedural requirements of section 8(1) had not been complied with there would be a perverse incentive for the defendant to abscond in order to avoid arraignment rather than to apply for an order under section 8(1B)(b), a conviction would be set aside even where it was clear that leave to arraign would have been granted under section 8(1B)(a), a failure to arraign would not affect the validity of a trial whereas a failure to arraign timeously would render a retrial invalid, and convictions which were otherwise safe would be set aside on a technicality, even in the most serious of cases; that, therefore, on a true construction a failure to comply with the procedural requirements in section 8(1) of the 1968 Act did not deprive the Crown Court of jurisdiction to retry a defendant pursuant to an order of the Court of Appeal under section 7(1) of the Act; and that, accordingly, the Crown Court had had jurisdiction to retry the defendant in the present case and his conviction would be restored (post, paras 64–72, 73–75, 82–83, 84–94, 95, 96).

R v Soneji [2006] 1 AC 340, HL(E) applied.

R v X [2010] EWCA Crim 2368, CA considered.

R v Llewellyn [2023] QB 459, CA overruled.

Per curiam. The requirement in section 8(1B) of the 1968 Act that the Court of Appeal should not give leave to arraign under section 8(1B)(a) unless they are satisfied that the prosecution has acted with “all due expedition” should be interpreted consistently with, and so as to give effect to, the purpose of section 8. Thus: (i) the requirement is not a disciplinary provision; (ii) “due expedition” means such expedition as would be shown by a competent prosecutor conscious of his duty to ensure that the retrial proceedings are brought under judicial control and that the retrial takes place as soon as reasonably practicable; and (iii) there is no lack of “due” expedition if there is a prosecutorial delay which has no effect on the object of ensuring that the retrial proceedings are brought under judicial control and that the retrial takes place as soon as reasonably practicable. Moreover, the issue of “due expedition” should be considered by reference to all the circumstances rather than by reference solely to the arraignment (post, paras 58–61).

R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841, DC and R v Leeds Crown Court, Ex p Bagoutie The Times, 31 May 1999, DC applied.

Dicta of Gross LJ in R v Pritchard (Craig) [2012] EWCA Crim 1285 at [5(3)], CA disapproved.

Decision of the Court of Appeal [2023] EWCA Crim 1207; [2024] 3 All ER 689; [2024] 1 Cr App R 6 reversed.