R v T(N)

Hearing dates: 23 rd March 2010

The Lord Chief Justice of England and Wales:

This is an appeal by the prosecution against the ruling by His Honour Judge Shorrock on 13 August 2009 at Woolwich Crown Court that the indictment should be stayed as an abuse of process. The application for leave to appeal raised an issue relating to jurisdiction which required resolution by a 5 judge constitution. For that reason, and that reason alone, leave to appeal was given.

The respondent (or “the defendant” as it is convenient to describe him) faced a 9 count indictment of specimen historic indecent assaults covering the period between 1976 to 1985 when the complainant, the defendant's step-daughter, was aged 8 to 16 years. The defendant consistently denied the allegations.

On 13 August, before any evidence was called, it was submitted to Judge Shorrock that the case should be stopped as an abuse of process on delay grounds. Having considered the submission, the judge directed himself to come to a decision “entirely on the basis of the consideration of whether I think a fair trial is possible”. He examined the relevant material. He concluded that the difficulties faced by the defendant could not be remedied through the trial process itself, and that a fair trial would not be possible. Accordingly he stayed the indictment.

Immediately his judgment was concluded counsel for the prosecution told the judge that he was instructed “to automatically, as it were, appeal”. The judge recorded that in the context of what he described as the rules and regulations “about terminatory rulings”, this constituted formal notice. The judge permitted the defendant to leave the dock, which he did.

On the following day counsel for the Crown addressed the judge in open court and reminded him that the Crown had indicated that his ruling would be appealed. He continued, “if there was any ambiguity or indeed if I omitted to mention, obviously if that appeal fails as it were, as in no leave is granted, or the appeal is indeed abandoned,…obviously the defendant will be acquitted.”

During the preparation of the papers in the office of the Registrar of Criminal Appeals, it became apparent that the prosecution appeared to have failed to have given the statutory undertaking required by section 58(8) of the Criminal Justice Act 2003 (the 2003 Act) at the time and on the occasion prescribed by statute. The attention of the court and the parties was drawn to the decision of this court in R v LSA [2008] EWCA Crim 1034. No further submissions were received from either side. The case therefore was listed for hearing on 23 ^rd September 2009. At this hearing, with Dyson LJ presiding, the court expressed concern that neither counsel had sufficiently researched the jurisdiction point to the extent that it had sufficient confidence that it was seised of all the material relevant to the consideration and interpretation of section 58(8). The hearing was therefore adjourned, and the parties directed to submit full skeleton arguments on the point, together with any additional authorities as well as any relevant commentary on the point.

In the meantime judgment was given on 11 December 2009, in a case raising similar questions, in CPS v C, M and H [2009] EWCA Crim 2614.

When the present case was listed on a second occasion, the court discerned a possible conflict of authorities on the section 58(8) issue. Any such conflict should be resolved in a constitution presided over by the Lord Chief Justice. Thereafter, the Registrar of Criminal Appeals decided that the case should be heard before a 5 Judge constitution.

From this brief summary it is clear that immediately following the judge's ruling, the prosecution informed the court that it intended to appeal. It is also clear that it was not until afterwards (the next day) that the prosecution informed the court that if leave to appeal to the Court of Appeal was not obtained, or the prosecution abandoned the appeal before it was determined by the Court of Appeal, the defendant should be acquitted in accordance with the judge's ruling. The single question is whether this omission by the prosecution to inform the court of what has conveniently been described as the “acquittal agreement” deprived this court of jurisdiction to hear the appeal, or perhaps more accurately, whether its omission disentitled the prosecution from exercising the statutory power created by section 58 of the 2003 Act to appeal the ruling.

Part 9 of the 2003 Act created a new power enabling the prosecution to appeal against the rulings made by a judge in the Crown Court in a trial on indictment. Such rulings may be evidentiary rulings (ss 62–67) or, although not so defined in the legislation, conveniently described as terminating rulings (ss 58–61). The ruling in the present case was a terminating ruling. Therefore, subject to the possible exercise by the prosecution of the newly created power to appeal under section 58, the trial was at an end, and apart from the statutory amendments of the double jeopardy principle, or a successful appeal by the prosecution, the defendant ceased to be in jeopardy of conviction.

The 2003 Act provides as follows:

“58.–(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2) The prosecution may appeal in respect of the ruling in accordance with this section.

(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

(4) The prosecution may not appeal in respect of the ruling unless –

(a) following the making of the ruling, it –

(i) informs the court that it intends to appeal, or

(ii) requests an adjournment to consider whether to appeal, and

(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

(5) If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment…

(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9) Those conditions are –

(a) that leave to appeal to the Court of Appeal is not obtained, and

(b) that the appeal is abandoned before it is determined by the Court of Appeal.

(10) If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

(11) If and to the extent that a ruling has no effect in accordance with this section –

(a) any consequences of the ruling are also to have no effect,

(b) the judge may not take any steps in consequence of the ruling, and

(c) if he does so, any such steps are also to have no effect.

(12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

(13) In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the time when the start of the judge's summing-up to the jury.”

It is a feature of this legislation that the court has no inherent jurisdiction to hear an appeal by the prosecution against a terminating ruling. Jurisdiction does not arise unless the prosecution has complied with the pre-conditions which enable the appeal to be brought. In effect section 58(8) requires the prosecution to undertake that if the conditions in sub-section (9) are fulfilled, the defendant will be acquitted. Notwithstanding that the prosecution failed to comply with the express requirements relating to the time when the court must be informed of the acquittal agreement as prescribed in section 58(8), Mr Stimpson argued that the prosecution was entitled to pursue the appeal. He submitted that the omission to comply with section 58(8), in the context of a proper notification of the Crown's intention to appeal under section 58(4), did not prohibit this court from determining an appeal against an unreasonable decision to stay proceedings in the Crown Court. He suggested that there could have been no ambiguity or associated uncertainty for the defendant about his prospects once the Crown had stated in open court, in his presence immediately after the ruling, that it intended to appeal. The appropriate...