Prosecution Rights Of Appeal

Part I – Law And Procedure
Part II - Application
ANNEX A
ANNEX B
Useful Links

Part I – Law And Procedure

Introduction

<Part 9 (sections 57 – 74)> of the Criminal Justice Act 2003 (the 2003 Act) provides an interlocutory prosecution right of appeal against two categories of ruling made by a Crown Court judge. The first category (a general right of appeal) <section 58> comprises a ruling that has the effect of terminating the trial made either at a pre-trial hearing or during the trial. These provisions will come into force on the 4 April 2005.

The second category (evidentiary rulings) <section 62> relates to an evidentiary ruling or series of rulings made in qualifying offences listed in <Schedule 4> of the 2003 Act. This right of appeal is limited to those rulings that significantly weaken the prosecution case and may only be exercised up to the opening of the defence case. No implementation date has yet been set for these provisions

This guidance relates to the two categories of ruling, but the appeals against evidentiary rulings will not be implemented until a later date. The purpose of the evidentiary right of appeal is to supplement the general right of appeal right under section 58. Where an evidentiary ruling has the effect of terminating the proceedings (for example the only evidence against the defendant is confession evidence which is excluded) an appeal is likely to be under section 58 because without the confession the prosecution would have to cease the proceedings. An appeal would have to be brought under section 58 if the ruling related to an offence which was not a “qualifying offence” within section 62.

The Criminal Procedure Rules Committee, in exercise of the powers conferred upon it by the Courts Act 2005 has made the Criminal Procedure Rules 2005. These rules only apply to the general right of appeal and not to appeals relating to evidentiary rulings.

This guidance describes the provisions of Part 9 of the 2003 Act in detail. It explains the general concepts; sets out the procedure to be followed, identifies the CCP/Director, Casework or a nominated person to exercise the right of appeal, and sets out the criteria in exercising the right of appeal.

The Criminal Procedure Rules 2005 provide for the procedure to be followed when the prosecution appeal or apply for leave to appeal a ruling under section 58. The forms, as prescribed by Practice Direction and set out in (Annex A), are:

The judge’s certificate of leave to appeal;
The prosecution’s notice and grounds or application for leave to appeal;
Notice and grounds of opposition to appeal;
Notice of abandonment of the appeal; and
Renewal of applications.

The general concepts

<Part 9 of the 2003 Act> gives the prosecution two new rights of appeal, namely a general right of appeal and an appeal against evidentiary rulings. <Section 57>(Archbold 7-243) sets out some ground rules for the operation of both rights of appeal.

The rights are available only in relation to trials on indictment and the appeal lies to the Court of Appeal. The appeal may only be brought with the leave of the judge or the Court of Appeal.

The rights do not extend to a ruling that a jury should be discharged, or to a ruling that can be appealed to the Court of Appeal by virtue of any other enactment, such as a ruling made in a preparatory hearing under the Criminal Procedure and Investigations Act 1996 or the Criminal Justice Act 1987. There is no right of appeal against a judge in his summing up misdirecting a jury or acquittals resulting from them.

The general right of appeal

<Section 58>(Archbold 7-244) allows the prosecution to appeal a ruling by a judge in relation to a trial at an applicable time and the ruling relates to one or more offences in the indictment <section 58 (1)>. This allows the prosecution to appeal a ruling that is made either at a pre-trial hearing or during the trial, at any time until the start of the judge’s summing up <section 58 (13)>.

Although the right applies to any ruling of the judge, the intention of the 2003 Act is to restrict the right of appeal to terminating rulings, such as a stay of proceedings, a ruling of no case to answer, or those that are fatal to the prosecution case that the prosecution proposes to treat them as terminating and, in the absence of the right of appeal, would offer no or no further evidence. This is because the prosecution, as a condition of informing the court that it intends to appeal, must agree that the defendant should be acquitted of the offence subject to the appeal, if leave to appeal is not obtained or the appeal abandoned before it is determined by the Court of Appeal - <section 58 (8)>.

Particular types of ruling

In deciding whether to treat a ruling as terminating, prosecutors should bear in mind the effect of the ruling on the proceedings. Those rulings where the prosecution are barred from proceeding with the case have the effect of terminating the case.

Rulings on stays for abuse of process and rulings of no case to answer have such an effect. An application to stay proceedings as an abuse of process, is in effect, a plea in bar and should be considered as a preliminary issue before plea, although there is nothing to prevent the issue being raised at a later stage. A submission of no case should be allowed when there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict. In such a case, a directed verdict must be taken from the jury.

In addition, the prosecution may treat the ruling as terminating if the judge orders disclosure of sensitive material which the prosecution is not willing to disclose and so the prosecution has no other option but to drop the case.

Rulings on severance and joinder may be taken for trial management reasons, such as to reduce the length and complexity of trial and facilitate jury comprehension (although not exclusively) and the results of those rulings will have an impact on the progress of the case, either directly or indirectly. The 2003 Act, which widens the ambit of the preparatory hearing regime, makes amendments to the effect that a decision on severance and joinder falls within the statutory preparatory hearing regime <section 310>. The preparatory hearing regime has also been amended to include serious offences - <section 309>. Prosecutors should apply for preparatory hearings where there are issues of severance and joinder of the indictment and or where the case is serious. The advantage of preparatory hearings is that they have their own appeal procedure and if the prosecution is not successful on the appeal, the prosecution does not have to agree an acquittal as it does under the general right of appeal. The provisions amending preparatory hearings come into force at the same time as the general right of appeal under Part 9. Therefore where there are such issues, the prosecution should apply for the proceedings to be dealt with under the preparatory hearing regime rather than treat as a terminating ruling.

Where the proceedings are not conducted under the preparatory hearing regime, it would not, generally, be appropriate for the prosecution to appeal a ruling under section 58 where it related to questions of joinder, whether of offences or offenders. This is because that such questions are matters of practice for the courts and that the Court of Appeal will not interfere with the ruling unless there has been a miscarriage of justice.

The court has discretion to order separate trials of defendants who have properly been joined in one indictment. However, the Court of Appeal will only interfere with the exercise of the judge’s discretion if it can be shown that the judge took account of irrelevant considerations, or ignored relevant ones, or arrived at a manifestly unreasonable decision. However these types of cases will be very rare and great care should be given before such a ruling is appealed. Again, if there are questions of severance the prosecution should apply for the proceedings to be dealt with under the preparatory hearing regime rather than appeal under section 58. If the judge refuses to order a preparatory hearing then an appeal under section 58 may be the only option to pursue. However, CCPs should bear in mind that if the appeal is not successful before the Court of Appeal or the appeal is abandoned or leave to appeal is refused the defendant will be acquitted on the charge which is the subject of the appeal.

Quashing an indictment has the effect that the defendant may not be tried on the indictment (or a particular count, if the motion does not relate to the whole), but he is not acquitted and further proceedings may be brought for the same offence. The use of section 58 is therefore not appropriate where an indictment is quashed. The options open to the prosecution should be: to institute fresh committal proceedings; apply for a voluntary bill of indictment; or the better course to ask the judge to stay (but not quash) the defective indictment and at the same time prefer a fresh indictment correcting the error.

Application for an adjournment

<Section 58(4)> provides that following the ruling the prosecution must either inform the court that it intends to appeal or request an adjournment to consider whether to appeal. The prosecution must decide immediately whether to appeal the ruling or request an adjournment to consider whether or not to appeal (CPR Part 66.1).

In order to carefully and objectively consider the ruling and to take advice and obtain consent from the CCP or nominated person on whether or not to appeal, the prosecutor will usually request an adjournment. The trial judge shall grant the adjournment unless the interests of justice require the prosecution to indicate immediately (CPR Part 66.2(3)). As the Attorney General said in the Committee Stage of the Bill:

“It is vital that the prosecutor is given sufficient time to consider lodging an appeal and, in appropriate cases, to take advice and consult senior colleagues..…..The Government believe it better to provide a necessary protection for both prosecutors and defendants, to provide that there really has to be an adjournment for that consultation to take place if the prosecutor is not in a position to say there and then that an appeal should be brought.” (Hansard HL 17 July 2003: Column 1018).

The length of the adjournment will be until the next business day after the day on which the ruling was given unless the interests of justice make a longer adjournment necessary (CPR 66.2(4)). “Business day” means any day other than a Saturday, Sunday, Christmas Day, Good Friday or a Bank Holiday.

In some cases it may not be possible either to obtain the approval within 24 hours of the CCP or nominated person or because of the complexity of the case, that it may be sensible for the period to be a little longer in the interests, while keeping the delay down, of getting a sound decision that does not lead to an unmeritorious appeal.

After such an adjournment, if granted, the prosecution must advise the court whether or not it intends to appeal. It is also open to the prosecutor to appeal immediately after the ruling where it has been anticipated and the prosecutor has been able to consult with the CCP (or nominated person) in advance of the ruling e.g. abuse of process applications or adverse rulings on disclosure of PII material.

As soon as reasonably practicable after the prosecutor informs the judge that he intends to appeal or requests an adjournment to consider an appeal, the Crown Court shall provide a transcript of the ruling which is subject to the proposed appeal to the prosecutor, the defendant and any interested party (CPR 66.2(5)).

An interested party means a party other than the defendant who is a party to the proceedings, namely a co-defendant (CPR 66.1(d)).

Effect of section 58

The effect of section 58 means that the prosecution may only appeal a single ruling (Archbold 7-244). If the prosecution does not inform the court immediately that it intends to appeal or immediately requests an adjournment to consider appealing, the prosecution will have lost the right to appeal that particular ruling.

However, there is a statutory exception. Where the ruling that is subject to the appeal is a ruling of no case to answer, the prosecution may nominate, at the same time as it informs the court of its intention to appeal or request an adjournment to consider whether or not to appeal the no case to answer, other rulings that relate to the offence that is subject to the appeal, for the Court of Appeal to consider. These other nominated rulings will also be regarded as subject to the appeal - <section 58 (7)>.

Where the ruling relates to more than one offence, it is the responsibility of the prosecution to decide which offence or offences are to be appealed. The judge’s ruling has no effect in relation to the offence(s) that are subject of an appeal or potential appeal while the prosecution is considering an appeal or is pursuing an appeal - <section 58(3)>.

Application to the trial judge for leave to appeal

Immediately following the ruling or the adjournment, the prosecutor must inform the judge that he intends to appeal and at the same time may apply orally for leave to appeal (CPS 66.3(1). On the same day as the oral application, the judge must decide whether or not to give leave to appeal (CPR 66.3(3). The judge may extend this time only if it is in the interests of justice to do so (CPR 66.3(4). If the judge gives leave he must issue a certificate (see Annex A) and send it to the registrar of criminal appeals (CPR 66.3(5).

Expedited and non-expedited appeals

The Act provides two alternative procedural routes, expedited and non-expedited, and gives the court the flexibility to determine which route to follow. The trial judge will determine which route the appeal will follow depending on the case, e.g. complexity of case, number of witnesses, length of trial etc. In an expedited appeal the trial may be adjourned - <section 59 (2)> (Archbold 7-245). In a non-expedited appeal the judge may adjourn the proceedings or discharge the jury if one has been sworn <section 59 (3)>.

It is likely that rulings made pre-trial will follow the non-expedited route similar to an appeal against a ruling made at a statutory preparatory hearing. Rulings made during the trial, particularly if a jury has been empanelled, are more likely to follow the expedited route. Both the judge and the Court of Appeal have power to reverse a decision to expedite an appeal, thus transferring the case to the non-expedited route. If this is done the court has power to discharge the jury - <section 59 (4)>.

Where the prosecutor informs the judge that he intends to appeal, he must also make oral representations as to whether or not the appeal should be expedited (CPR 66.4(1). The judge may hear representations from the defendant but not an interested party (CPR 66.4(2). The intention is that before making a ruling, the court will consult with the Criminal Appeal Office to ascertain their views on expediting the appeal. The judge must then decide whether or not the appeal should be expedited (<section 59 (1)>) and give his reasons in writing to the prosecutor, defendant and interested party (CPR 66.4(3). The judge has power to reverse his decision that the appeal should be expedited at any time before notice of application or application for leave is served by the prosecutor on the Crown Court and if so he must give his reasons in writing (CPR 66.4(4).

The prosecutor and the defendant, but not an interested party, may invite the Court of Appeal to reverse the judge’s decision to expedite the appeal after notice of appeal or leave to appeal has been served on the registrar. This must be in writing and served on all parties (CPR 66.4(5).

Notice of appeal or application for leave to appeal to the Court of Appeal

Where the judge has decided that the appeal should be expedited, the notice of appeal (where the judge has granted leave) or the prosecutor’s application for leave to the Court of Appeal (see Annex A) must be served on the Registrar of the Court of Appeal, the Crown Court, the defendant and any interested party by 5pm on the day the prosecutor informed the judge of his intention to appeal. If the prosecutor can demonstrate to the judge that it is not practical to serve the application by 5pm, then he must serve it by 5pm on the next business day (CPR 66.5(2)(a).

In any other case, such as a non-expedited appeal, the notice of appeal or application for leave must be served within 7 business days (business day is defined in CPR Part 66.1(b) of the prosecutor informing the judge that he intends to appeal (CPR Part 66.5(2)(b)).

The Court of Appeal may extend the period of service either before or after it expires, on application by the prosecutor CPR Part 66.5(3).

The application must specify the grounds of the appeal, summarising any arguments to be put before the Court of Appeal and specifying any authorities to be cited. Where the prosecutor is appealing a no case to answer, he must specify the relationship between any earlier rulings he has nominated and the ruling of no case to answer.

A transcript of the ruling, any skeleton arguments provided to the judge by the parties in respect of the issue which gave rise to the ruling and if the appeal is expedited, a copy of the reasons provided by the judge must be sent with the notice of appeal or application for leave (CPR Part 66.5(4)).

Where the notice of appeal or application for leave to appeal relates to a ruling concerning public interest immunity then the giving of notice of the appeal or application and the service of any documents on the parties is subject to Rule 8.

Leave to appeal may be granted by the single judge (CPR Part 66.11 (1)(a)). Where the single judge has refused leave, the prosecution may apply to the full court by serving notice of renewal (see Annex A) (CPR Part 66.13 (1)).

A worked example

The expedited procedure should operate, therefore, as follows. The judge makes a ruling which is either terminating or has the effect of terminating the prosecution case. The prosecution immediately indicates to the judge that it wants an adjournment. The adjournment will generally be for twenty-four hours. The next day, after that adjournment, the prosecutor must inform the judge if he intends to appeal. The prosecutor must make representations at that stage as to whether the appeal should be expedited or not, and the judge must make an early decision as to expedition. The prosecutor may orally seek leave to appeal from that judge at the same time. The prosecutor must then serve written notice to the Court of Appeal, before 5.00pm on that day (which is the day that he informed the judge that he intends to appeal) unless impracticable. If the trial judge refuses leave, or the prosecutor does not apply to the trial judge for leave, the prosecutor may apply to the Court of Appeal. In that case, the prosecutor must serve written notice to the Court of Appeal before 5.00 on that day (which is the day he informs the judge that he intends to appeal) unless impracticable. This relates to business days so that a ruling occurring on a Friday, the next business day is a Monday.

The non-expedited procedure operates in a similar way, except that the prosecutor has seven days, from informing the trial judge that he intends to appeal, to serve written notice.

Defendant’s response

The defendant may serve a response to the notice of appeal or application for leave (CPR 66.6). After receiving a notice of appeal or application for leave, the defendant if he wishes to oppose the appeal or application must serve his response (see Annex A).

The defendant’s response must be served on the next business day after the day on which the appeal or application is served on the defendant, where the judge has decided that the appeal should be expedited and that it has not been reversed. In any other case it must be served within 7 days. The Court of Appeal may extend the period of service either before or after it has expired.

The defendant’s response must be served on the registrar, the Crown Court, the prosecutor and any interested party.

Service of documents

Service of documents should be served, unless otherwise directed by the court, in accordance with (CPR Part 66.17). This allows for service by fax or e-mail to the Registrar of the Court of Appeal, the defendant and any interested parties.

Public interest rulings

Under (CPR Part 66.8), a prosecutor need not describe the material that is the subject of a public interest ruling in the notice of appeal or application for leave to appeal (CPR 66.8(2)). The prosecutor need not describe the category of material if it would have the effect of disclosing material which the prosecutor considers should not be disclosed (CPR 66.8(3). The prosecutor need not serve notice of appeal or application for leave to appeal on the defendant or interested party if the fact that a public interest ruling has been made would have the effect of disclosing material which the prosecutor considers should not be disclosed (CPR 66.8(4).

Where the prosecutor withholds the notice of appeal or application for leave and the public interest material from the defence and interested party, then such notice served on the registrar must be accompanied by a confidential annex indicating the reasons for the prosecutor’s decision (CPR 66.8(5)). Where the prosecutor does not serve a notice of appeal or application for leave to appeal to keep secret from the defence or interested party the fact that a public interest ruling was made, the defendant is not entitled to be present at the hearing unless otherwise directed by the Court of Appeal (CPR 66.8(6)).

Abandonment of proceedings

An appeal or application for leave to appeal may be abandoned before it is heard by the Court of Appeal by serving notice on the registrar (see Annex A) (CPR Part 66.10).

Powers of the single judge

The single judge may exercise in the same manner as the Court of Appeal the following powers (CPR Part 66.11(1)):

To give leave to appeal;
To reverse a decision of the judge that the appeal is expedited;
To extend time for service of the notice of appeal or an application for leave;
To extend time for service of the defendant’s response;
To direct that the defendant in custody be present at the hearing or the appeal or the application;
To order the acquittal of the defendant, and where appropriate, his release from custody and order of payment of costs where the prosecution has served a notice of abandonment.

If the single judge exercises any power, the registrar must serve notice of that decision on all parties (CPR Part 66.11(3)).

Powers of the registrar

The registrar may exercise in the same manner as the Court of Appeal the following powers (CPR Part 66.12(1)):

To extend time for service of the notice of appeal or application for leave; and
To extend time for service of the defendant’s response.

The registrar, in exercising his powers, must give notice of his decision on all parties (CPR Part 66.12(2). If the registrar refuses an application to exercise his powers, a party making the application may have it determined by the single judge by serving a renewal notice (see Annex A) (CPR Part 66.12(3)).

Determination by the full court

Where the single judge has refused an application to exercise any of his powers, the party making the application may appeal to the full court by serving a renewal notice (see Annex A) (CPR Part 66.13(1)).

The notice of renewal must be served within 7 business days of the day on which the single judge’s decision was served on the party (CPR Part 66.13(2). The Court of Appeal may extend this time either before it expires or after (CPR Part 66.13(3).

If the notice of renewal is not served within the period or such extended period as granted by the Court of Appeal, the application shall be treated as refused by the court (CPR Part 66.13(5).

Assistance from the Crown Court

The registrar may require the Crown court officer to furnish the Court of Appeal with any assistance or information which it may require for the purposes of exercising its jurisdiction under Part 9 (CPR Part 66.15).

The hearing at the Court of Appeal

A defendant in custody is not entitled to be present in person, unless the Court of Appeals so directs (CPR 66.7(1)).

A defendant in custody is entitled to appear by way of live television link at the hearing of an appeal or application for leave to appeal (CPR 66.7(2)). In deciding whether the defendant in custody should be present, the Court of Appeal must take into account: any representations of the prosecutor and the defendant; any practical difficulties relating to the live link which may cause delay or disruption; practical difficulties with the defendant attending in person; and whether or not the appeal is expedited (CPR 66.7(3)).

The registrar must give notice, as far in advance as possible of the hearing date, to all parties (CPR 66.14(1)).

The registrar must serve notice of the decision of the Court of appeal on all parties as soon as reasonably practicable (CPR 66.14(2)).

Other offences not subject to the appeal

The judge has discretion to continue with proceedings in relation to any offence to which the appeal does not apply <section 60 (2)> (Archbold 7-246). A ruling may affect several offences, but the prosecutor may only wish to appeal against a ruling insofar as it affects one or more of those offences Thus proceedings may continue against any offences affected by the ruling but not by the appeal.

Other defendants not subject to the appeal

Where two or more defendants are charged jointly with the same offence, they are to be treated as charged with separate offences <section 74 (5)>. This means that an appeal will be possible against a ruling so far as it relates to only one of the defendants.

The powers of the Court of Appeal

The Court of Appeal may confirm, reverse or vary a ruling appealed under section 58 <section 61> (Archbold 7-247). If the Court of Appeal confirms the judge’s ruling it must order that the defendant be acquitted of the offence(s) the subject of the appeal <section 61 (3) and (7)>.

If it reverses or varies the ruling the court must decide between three options: to order resumption of the Crown Court proceedings; to order a fresh trial; or to order the acquittal of the defendant for the offence(s) the subject of the appeal <section 61(4)>.

As of 14 July 2008, a new subsection (5) is inserted into section 61 of the 2003 Act (by section 44 of the Criminal Justice and Immigration Act 2008). The effect of this is that the Court of Appeal may only make an order that the defendant be acquitted of an offence in respect of which the prosecution have successfully appealed a terminating ruling if it considers that the defendant could not receive a fair trial were it to order the continuance of proceedings or a fresh trial.

A further significant limitation is that the Court of Appeal may not reverse a ruling on appeal unless it is satisfied that the ruling was wrong in law, involved an error of law or principle, or was a ruling that was not reasonable for the judge to have made <section 67> (Archbold 7-254).

With leave of the court, an appeal lies to the House of Lords from a decision by the Court of Appeal on a prosecution appeal against a ruling made under Part 9 of the 2003 Act.

Custody time limits

Custody time limits do not apply where proceedings for an offence are adjourned pending the determination of an appeal <section 70 (2)>. However, custody time limits resume after the appeal has been determined. Prosecutors must ensure that all dates relating to the appeal process are recorded accurately so that there are no custody time limit failures.

The evidentiary right of appeal (not yet in force)

<Section 62>(Archbold 7-248 – 7-249) provides for a prosecution right of appeal against an evidentiary ruling or a series of rulings that significantly weaken the prosecution case but falls short of being fatal (and so qualifying under section 58). The difference between this right of appeal and the right of appeal under section 58 is that the trial will continue regardless of the outcome of the appeal. The Court of Appeal will not be required to acquit if the appeal is unsuccessful and the prosecution will not be required to accept that, if leave to appeal is not obtained or the appeal is abandoned, the defendant should be acquitted.

The prosecution may appeal against one or more “qualifying evidentiary rulings” <section 62>. It is a “qualifying ruling” if it is made by a judge in relation to a trial on indictment at any time (whether before or after the commencement of the trial) before the opening of the defence case <section 62(2)>. The reason for this is to prevent multiple appeals in a case. A judge may exclude evidence at different stages in the trial. It allows the prosecution to assess the effect of the ruling(s) up to the close of the prosecution case and then to decide whether or not to appeal. This does not mean that the prosecution has to wait until the end of the prosecution case because in an appropriate case, it may be necessary to appeal a ruling before any other evidence is called.

“Evidentiary ruling” means a ruling which relates to the admissibility or exclusion of any prosecution evidence. “Qualifying offence” means an offence listed in Part 1 of Schedule 4 <section 62(9)>.

Before the Court of Appeal can give leave under section 62, it has to be satisfied that the ruling significantly weakens the prosecution case. Where there are two or more qualifying evidentiary rulings, then the rulings taken together must significantly weaken the prosecution case <section 62(3)>.

It is a matter of fact and degree in each case whether the qualifying evidentiary ruling significantly weakens the case. In other words the exclusion of evidence has a significant impact for the worse on a prosecution case but is not fatal to it.

However, prosecutors should note that it is not the case that evidentiary rulings can only be appealed against under section 62. The purpose of the evidentiary right of appeal is to supplement the right under section 58. Where an evidentiary ruling has the effect of terminating the proceedings (the only evidence against the defendant is confession evidence which is excluded) an appeal is likely to be under section 58 because without the confession the prosecution would have to cease the proceedings. An appeal would have to be brought under section 58 if the ruling related to an offence which was not a “qualifying offence” within section 62.

The same principles apply to the judge in deciding whether or not to expedite an appeal in respect of an evidentiary ruling as they do under the general right of appeal. The court also has power to continue proceedings for an offence not affected by a ruling <section 65>.

The Court of Appeal may confirm, reverse or vary any ruling. As with the right general right of appeal, the Court of Appeal may not reverse a ruling unless it was wrong in law; the ruling involved an error of law or principle; or the ruling was a ruling that it was not reasonable for the judge to have made. However, unlike the general right of appeal, if leave to appeal is refused, or the appeal is abandoned, or the Court of Appeal confirms the ruling and the prosecution loses the appeal, it must order the proceedings to continue or a fresh trial to take place. There is no interest of justice test to apply. The Court of Appeal may only order the defendant to be acquitted if the prosecution has indicated that it does not intend to continue with the offence <section 66(3)> (Archbold 7-253).

Reporting restrictions

There are restrictions on reporting the proceedings associated with the appeal and the appeal itself, until after the conclusion of the trial <section 71> (Archbold 7-256). This is to ensure that, if the appeal is successful, matters prejudicial to the continuing or fresh trial are not reported. The judge, Court of Appeal and the House of Lords have power, by order, to lift the reporting restriction either completely or to a specified extent. Any restrictions on reporting will cover reports in England and Wales, Scotland and Northern Ireland. Contravention will be a summary offence, which requires consent of the Attorney General, and carries a maximum penalty of a level 5 fine <section 72> (Archbold 7-257).

Transitional arrangements

The provisions relating to the general right of appeal came into force on the 4 April 2005. The provisions apply to cases tried on indictment which have been committed, transferred or sent to the Crown Court on or after 4 April 2005.

Part II - Application

Who is to exercise the right of appeal?

Part 9 of the 2003 Act provides the Crown Prosecution Service with formidable power to test the correctness of a judge’s ruling. An appeal against a judge’s ruling is a decision of such significance (generating a testing of the ruling to the Court of Appeal) that it should only be taken at an appropriate Area level by those with sufficient experience, responsibility and ownership of the consequences.

It is the responsibility of the CCP for the Area, or the Director, Casework (if the case is prosecuted by Casework Directorate), to decide whether the right of appeal should be exercised, after consultation with the prosecution advocate and any other appropriate person such as the reviewing lawyer and the officer in the case. The CCP may seek advice, if necessary, from the DPP, Directors of Casework Directorate and Policy Directorate.

Where the CCP or the Director, Casework is not available, a person or persons nominated by them should take the decision. Therefore CCPs are advised to identify a nominated person or persons bearing in mind the criteria as set out above. All staff should be informed of the name or names of the nominated person or persons.

In expedited cases, an adjournment granted to the prosecution to decide whether or not to appeal will be for a very short time, for example, generally overnight, although in some cases it may be sensible for the period to be a little longer to ensure that a sound decision is made. It will be important for Areas to have procedures in place to ensure that decisions can be taken very quickly.

It is important that prosecutors anticipate the possibility of adverse rulings in particularly important cases. Instructions to the prosecution advocate should identify or should request the prosecution advocate to identify possible adverse rulings. This will allow CCPs or the Director, Casework to be notified in advance of a particular case and for the prosecution advocate to seek their preliminary view so that they are not consulted unexpectedly about a possible appeal on all occasions. It also means that CCPs or the Director, Casework will have some knowledge of the case and will be better placed to make a quick decision, if necessary, on whether or not to appeal.

In the unlikely event that a judge refuses an adjournment and the prosecution advocate is unable to consult with the CCP, the prosecution advocate must make the decision, following these guidelines, whether or not to appeal. The decision of the prosecution advocate should be reviewed by the CCP or the Director, Casework as soon as possible to determine whether to proceed with or abandon the appeal.

Where the defendant is in custody, everyone involved in the appeal process must ensure that they record accurately all dates when applications are made and that records are updated to avoid a custody time limit failure.

How should the prosecution exercise the right of appeal?

By giving the prosecution this right of appeal it is hoped that this in itself will deter a judge from giving an unreasonable ruling and as a result mean that there are very few appeals.

Before launching an appeal, the prosecution will have to concede that should the appeal be lost, whether by refusal of leave or abandonment of the appeal, or if the Court of Appeal confirms the ruling, the accused will be acquitted. Even where the prosecution wins the appeal, it will be open to the Court of Appeal not to allow the case to resume or continue unless it considers it in the interests of justice to do so. The effect of the provisions will confine appeals to more serious cases where the prosecution have a very significant ground of complaint against the judge’s findings.

The right of appeal should not be exercised automatically where the ruling is wrong or the judge’s discretion is incorrect. The right of appeal is to be exercised sparingly and judiciously in order to prevent unmeritorious appeals.

In deciding whether or not to appeal a ruling a CCP/Director, Casework must be satisfied that the following criteria are met:

That the ruling meets the statutory requirements set out in <section 67>;
That there is a likelihood of the Court of Appeal reversing the ruling, and regardless of whether the Court of Appeal will find that the ruling is wrong or unreasonable that the public interest requires the prosecution to continue; and
That the court is likely to grant leave.

Statutory requirements

The ruling has to meet one of the statutory criteria set out in <section 67> (Archbold 7-254). Section 67 provides that the Court of Appeal may not reverse a ruling unless it is satisfied that the ruling was wrong in law; that the ruling involved an error of law or principle; or the ruling was a ruling that was not reasonable for a judge to have made.

A ruling may be wrong in law where, for example, the judge rules that the facts of the case do not amount to an offence.

Where the ruling involves an error of principle, or a ruling that it was not reasonable for the judge to make, the Court of Appeal will not reverse the ruling of the judge, even if they would have exercised their discretion differently, unless it is ‘Wednesbury unreasonable’ (Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 K.B. 223). In these circumstances, a CCP should only consider an appeal where the judge:

has failed to exercise any discretion;
has failed to take into account a material consideration;
has taken into account an immaterial consideration; or
has exercised his discretion that no sensible person would believe came within his authority.

An example of a judge exercising his discretion unreasonably is shown by the following case and referred to by the Attorney General during the passage of these provisions in Parliament. The case concerned 12 defendants who were charged with serious offences involving money laundering connected with drug dealing, where the amount of money involved was £10m. The defendants were severed and in the first trial, 3 defendants were prosecuted. About three months into the trial the judge stayed the case against the 3 defendants and also against the other 9 defendants because of a failure of disclosure by the prosecution. The judge said that there was no deliberate intention to mislead the court and that a mistake had occurred. He also said that, although the document had not been disclosed when it should have been, it had now been disclosed, that the position was not irretrievable and had been retrieved. Nonetheless the judge stopped the case against all defendants even where the document that was not initially disclosed was irrelevant to some of the defendants’ cases.

A ruling of no case to answer may be based on either of two limbs as laid down in the case of Galbraith. The first limb is a point of law, namely that there is no evidence that the alleged offence was committed by the defendant. The second limb involves the judge coming to a conclusion on the evidence that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. An appeal under the second limb of Galbraith will be very unusual because the Court of Appeal has given trial judges considerable latitude when reviewing rulings grounded in an assessment of the evidence given at trial. An appeal will only be appropriate where the judge’s ruling is manifestly unreasonable.

Likelihood of the Court of Appeal reversing the ruling

Once one of the statutory criteria has been satisfied, the CCP should then consider whether it is likely that Court of Appeal will reverse the ruling. If the CCP is satisfied that the Court of Appeal is likely to reverse the ruling, he or she must decide whether the public interest requires the prosecution to continue. The CCP must carefully assess the evidence on a case by case basis bearing in mind that if the appeal fails or the application for appeal is abandoned or leave of the court to appeal is not obtained, the defendant will be acquitted of the charge which is the subject of the appeal.

However, there may be cases where there is no basis for deciding the likelihood of the Court of Appeal reversing the ruling, for example a new point of law or no similar precedent. Therefore a CCP/Director, Casework should consider in deciding whether or not to appeal whether there is a point of law of general public importance <see Attorney General’s Reference: Criminal Justice Act 1972 below>.

Public interest

Under <section 61>, the Court of Appeal can only order the trial to continue or order a fresh trial where it is in the interests of justice. A CCP/Director, Casework always acts in the interests of justice, and in accordance with the Code for Crown Prosecutors he or she has a duty of continuing review and must apply the wider public interest test in deciding whether the case should proceed.

The factors for a CCP/Director, Casework to take into account when deciding whether to appeal a ruling may include:

The nature and extent of the error of law or principle or the unreasonableness of the ruling;
If there were no appeal, whether or not public confidence in the criminal justice system might be damaged or undermined;
The serious risk of harm to any person or persons;
The nature and seriousness of the offence;
In relation to a ruling, which does not fatally damage the prosecution case whether, taking account of the risk that an appeal might not succeed, there is still a realistic prospect of conviction; and
In cases where there are other counts to which the ruling does not apply, the likelihood of securing convictions on those counts, and the sentencing powers of the court to reflect the criminality of the offences not subject to the ruling.

Public interest factors such as the seriousness of the offence and the serious risk of harm to a person may or may not be appropriate to consider. Each case must be considered in the light of its own particular facts. The factors should not be considered cumulatively but may need to be weighed against each other. For example, a ruling in a murder case or rape case may undermine public confidence, whereas a ruling in a theft case may not. While the seriousness of the offence or serious risk of harm to a person may be a factor to consider, it does not mean that a ruling relating to an offence such as theft, or an offence where there is no risk of serious harm to a person, should not be appealed, especially where the ruling may damage public confidence in the criminal justice system.

Attorney General’s reference: Criminal Justice Act 1972

There is also the question of the relationship between appeals in Part 9 and a reference by the Attorney General under section 36 of the Criminal Justice Act 1972. In deciding whether or not to appeal, the CCP/Director, Casework may also consider, if appropriate, whether the case involves a point of law of general public importance. This should not be confined to cases where ‘very heavy questions of law arise’ but should also be made when ‘short but important points require a quick ruling before a potentially false decision of law has too wide a circulation in the courts’. per Lord Widgery CJ in (A-G’s Ref (No1 of 1975) [1975] QB 773). If there is a point of law of general public importance, then as long as the criteria is met in <see How should the prosecution exercise the right of appeal? above>, then there may be an appeal under <section 58>. While there may be cases where the Attorney is still asked to refer cases to the Court of Appeal, it is envisaged that in the light of these new provisions, the number of referrals will be reduced.

A CCP/Director, Casework should balance the need to clarify the law against the needs of the particular case where there is more than one offence on the indictment not affected by the ruling and consider the effect on witnesses of a delay in the trial caused by an appeal.

However, if the case comes within the amended preparatory hearing regime <sections 309 and 310 of the 2003 Act> (namely seriousness), the prosecution should apply pre-trial for the proceedings to be dealt within that regime.

The ‘interests of justice’ test

The test the Court of Appeal has to apply is that not only is one of the criteria in <section 67> met, but also that it is in the ‘interests of justice’ for the case to proceed. The ‘interests of justice’ test is not defined in Part 9. However, circumstances necessitating such a test may include, for example, something which occurs between the giving notice of appeal and the appeal hearing which substantially undermines the prosecution case, or the health of the defendant may deteriorate to such an extent that further prosecution would no longer be in the interests of justice. These examples are likely to be of most relevance for the non-expedited appeal route, the ‘interests of justice’ test applies to all appeals, as there may inevitably be cases where the Court of Appeal finds the ruling to be wrong but cannot in the interests of justice order the case to proceed. This provides the Court of Appeal with the means to decline to order the case to proceed in order to do justice in unusual and unforeseeable cases.

Granting leave to appeal

Finally, the prosecution can only appeal with the leave of the judge or the Court of Appeal. Leave is generally at the discretion of the court. There is no reason why the same test, which applies to defendants seeking leave to appeal against conviction, should not apply to prosecution appeals, namely that the prima facie test to be applied in deciding whether to grant leave to appeal is whether the court feels the need to hear the parties on the merits of the appeal. It follows that if the CCP/Director, Casework is satisfied that the other criteria, as mentioned above, are met, then it is likely that the court will grant leave to appeal.

Monitoring

It is necessary for the Director of Public Prosecutions and the Attorney General to monitor the effectiveness of this new power to ensure that the power is being exercised correctly and that there are no unmeritorious appeals. CCPs/Director, Casework are responsible for providing returns to Policy Directorate on all appeals setting out the reasons for the appeal, the time between the ruling and the appeal hearing and the result of the appeal.

The monitoring of appeals should commence from the implementation of these provisions for a period of two years or unless otherwise advised. CCPs/Director of Casework are advised to complete the monitoring form at (Annex B) and return to Policy Directorate quarterly.

Annex A

Appeal to the Court of Appeal against ruling adverse to prosecution

(Criminal Procedure Rules, Part 66)

Judge’s certificate of leave to appeal under s.58 Criminal Justice Act 2003

(Criminal Procedure Rules, r 66.3(5))

Details required:

1. Case Details

Name of Crown Court where tried:

Name of Judge:

Date the trial or proceedings started:

Name of the defendant(s):

Details of indictment:

Note: ‘details of the indictment’ includes the number of the indictment and the offences on the indictment which are the subject of the appeal.

2. Details of the ruling

The ruling or rulings that is the subject of this application for leave to appeal:

What date was that ruling or rulings made:

3. Certification

I certify that leave is granted for the prosecutor to appeal on the following grounds:

Signed:

Judge of the court

Notice and grounds of prosecution appeal or application for leave to appeal under s.58 Criminal Justice Act 2003

(Criminal Procedure Rules, r 66.5(1))

Details required:

1. Case details

Name of Crown Court where tried:

Name of Judge:

Date the trial or proceedings started:

Name of the defendant(s):

Details of indictment:

Note: ‘details of the indictment’ includes the number of the indictment and the offences on the indictment which are the subject of the appeal.

2. Details of the ruling

Provide details of the ruling or rulings that is the subject of this appeal or application for leave to appeal:

Notes: If one ruling is a ruling of no case to answer, please specify the relationship between those earlier rulings and the ruling of no case to answer.

What date was that ruling or rulings made:

Please attach a transcript of the ruling which is the subject of the appeal and any skeleton arguments provided to the judge of the court by the parties in respect of the issue which gave rise to the ruling.

3. Is the defendant(s) in custody?

If the defendant(s) is in custody:

(a) give the defendant’s prison index no. and address where detained; and

(b) indicate whether there are any difficulties with the defendant appearing by way of live link at the hearing.

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4. Undertaking

I, a person conducting a prosecution, (insert name of prosecutor) consent to the acquittal of the named defendant(s) if:

(a) 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.

Note: Section 58 Criminal Justice Act.

5. Application to the Crown Court

State whether there was an application to the judge of the court for leave to appeal (yes/no)

If yes, was the application granted? (yes/no)

If applicable, state the grounds on which leave was granted.

6. Expedited appeal

State whether the judge of the court decided that the appeal should be expedited (yes/no).

Note: Section 59 Criminal Justice Act 2003.

If yes, please attach the written reasons provided by the judge of the court in accordance with Rule 66.4(3).

7. Public interest ruling

State whether a public interest ruling is the subject of the appeal or application for leave to appeal (yes/no).

Note: If yes, this notice must be accompanied by a confidential annexe as required by rule 66.8(5).

Do you have reason to believe that to reveal to the defendant or any other interested party the fact that a public interest ruling has been made would have the effect of disclosing that which you consider should not be disclosed (yes/no).

Note: If yes, the prosecutor need not serve this notice on the defendant or any interested party as otherwise required under rule 66.5.

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If the answer above is no, describe the category of the material that is the subject of the ruling, unless you have reason to believe that to reveal this to the defendant or any interested party would have the effect of disclosing that which you consider should not be disclosed.

8. Extension of time

Note: Criminal Procedure Rules, r 66.5(3).

Are you applying for an extension of time in which to give notice of appeal or application for leave to appeal? (yes/no)

If yes, please also state your reasons:

9. Grounds of appeal

1. Specify the question of law in respect of which the appeal is brought (and where appropriate, such facts of the case as are necessary for the proper consideration of the question of law.

2. Summarise the arguments that you intend to put to the Court of Appeal (specifying any authorities to be cited).

Name of Prosecutor:

Name of Prosecuting Agency:

Address:

Signature of Prosecutor:

Date:

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Notice and grounds of opposition to appeal under s.58 Criminal Justice Act 2003

(Criminal Procedure Rules, rr 66.5(5), 66.6(1))

Details required:

1. Details of the defendant(s):

Name:

Address:

Date of birth:

If you are in custody, please give your Prison Index No. and address where detained.

2. Case details

Name of Crown Court where tried:

Name of Judge:

Date the trial or proceedings started:

Details of indictment:

Note: ‘details of the indictment’ includes the number of the indictment and the offences on the indictment which are the subject of the appeal.

Date on which the notice of appeal or application for leave to appeal was received:

3. Ancillary applications

State whether you are applying for (tick where appropriate)

extension of time in which to serve notice (yes/no)
Note: If you require an extension of time in which to give notice please state your reasons (Criminal Procedure Rules, r 66.6(3)).
representation order (yes/no)

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4. Defendants in custody

If you are a defendant in custody you are entitled to appear by way of live link. The Court of Appeal, however, may direct that you appear in person. Please state here if there are reasons why you want appear in person at the appeal or application for leave to appeal and why a live link would not be appropriate.

Note: (Criminal Procedure Rules, r 66.7(2)).

5. Grounds

Summarise the arguments you intend to put to the Court of Appeal, specifying any authorities to be cited.

Signature of defendant:

Date:

Details of any person signing on behalf of the defendant:

Name:

Address

Solicitors ref:

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Notice of Abandonment of Proceedings instituted under s.58 Criminal Justice Act 2003

(Criminal Procedure Rules, r 66.10)

Details required:

1. Case details

Name of Crown Court where tried:

Name of Judge:

Date the trial or proceedings started:

Name of the defendant(s):

Details of indictment:

Note: ‘details of the indictment’ includes the number of the indictment and the offences on the indictment which are the subject of the appeal.

2. Details of the ruling

What is the ruling or rulings that is the subject of the appeal or application for leave to appeal?

What date was that ruling or rulings made:

Date that leave to appeal was granted:

If applicable, date of written notice of appeal:

3. Abandon proceedings

Note: Criminal Procedure Rules, r 66.10.

I, a person conducting a prosecution, ..(insert name) abandon the appeal in the Court of Appeal against the ruling or rulings made by the Crown Court at the time, date and place set out above.

Name of prosecutor:

Name of prosecuting agency:

Address of prosecutor:

Signature of prosecutor:

Date:

Determination by the Registrar or a single judge of applications, and notice of renewal, under Part 9 Criminal Justice Act 2003

(Criminal Procedure Rules, rr 66.12(3), 66.13(1))

Details required:

1. Details of the applicant

Name:

Address:

If you are in custody, please give your Prison Index No. and address where detained:

ORDER by …

2. Application considered:

(tick where appropriate)

Application for leave to appeal.

Application to reverse a judge’s decision to expedite the appeal.

Application for extension of time.

Application for a defendant(s) in custody to be present in person at the hearing of the appeal or application for leave to appeal.

3. Decision:

Note: If an application has been refused, it may be renewed for consideration by either a single judge (if the decision was made by the Registrar) or the Full Court (if the decision was made by a single judge). The applicant must fill in section 4 of this Form and return it to the Registrar.

Signed:

Dated:

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4. Notice of Renewal

The following application (s) are renewed:

Notes: Applicants must use this section (section 4) for the renewal of applications.

An application not renewed in time will be treated as if refused. Notice of renewal must be served on the registrar within seven days of the day on which this notice was served on the party making the application, unless a longer period has been specified by the Court.

The Date that this Form was delivered to the applicant:

Signed (by the Applicant)

Date:

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