Appeals – Prosecution Rights

updated 19 December 2019|Legal Guidance

Introduction
Principle
Part I: Procedure
Part II: Points to consider

Introduction

Part 9 of the Criminal Justice Act 2003 (the 2003 Act) contains provisions for a prosecution appeal against adverse rulings by Crown Court judges in respect of trials on indictment. Section numbers in this guidance refer to the 2003 Act unless otherwise stated.

This guidance deals with the general right of appeal against a ruling by a Crown Court judge, that has the effect of terminating the trial (section 58).

No implementation date has yet been set for the right of appeal against an evidentiary ruling or series of rulings (section 62).

References to 'Rule' in this guidance are to the Criminal Procedure Rules.

Appeal forms are prescribed by the Criminal Practice Direction (CCP Forms).

References in this guidance to a “business day” means any day other than a Saturday, Sunday, Christmas Day, Good Friday or a Bank Holiday.

Principle

The general right of appeal

The general right of appeal in section 58 is available only in relation to trials on indictment. The appeal lies to the Court of Appeal and may be brought only with the leave of the trial judge or the Court of Appeal.

Section 58 allows the prosecution to appeal a ruling by the judge that:

relates to one or more offences included in the indictment;
was made at any time until the start of the judge's summing up;
has the effect of terminating the trial.

There is, therefore, no right of appeal against a judge misdirecting a jury in his summing up.

By virtue of section 57 the right does 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.

Section 58 allows the prosecution to appeal only a single ruling. Where, however, the ruling is one of no case to answer, the prosecution may nominate other rulings that relate to the offence for the Court of Appeal to consider (section 58(7)). This must be done 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 other nominated rulings will be regarded as subject to the appeal.

Reversal of rulings

The Court of Appeal may not reverse a ruling unless it is satisfied that:

(a) the ruling was wrong in law;
(b) the ruling involved an error of law or principle; or
(c) the ruling was a ruling that it was not reasonable for the judge to have made.

The acquittal guarantee

At or before the time the prosecution informs the court that it intends to appeal, the prosecutor must give the guarantee of acquittal required by section 58(8) Criminal Justice Act 2003. If this step is not followed there can be no appeal. (See the line of cases including R v LSA [2008] EWCA Crim 1034; CPS v C, M and H [2009] EWCA Crim 2614; and R v NT [2010] EWCA Crim 711).

The prosecutor must give the ‘acquittal guarantee’ at or before informing the court that it intends to appeal. The acquittal guarantee will usually be given orally in court when the parties are present. However where the ruling is “handed down” and the parties not required to attend court then notice can be given by email see R v PY [2019] EWCA Crim 17.

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.

Stay of proceedings

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).

Submission of no case to answer

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 and the trial terminates.

Disclosure of sensitive material

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.

Severance and joinder

The 2003 Act widens the ambit of the preparatory hearing regime, to the effect that a decision on severance or joinder falls within the statutory preparatory hearing regime (section 310). The preparatory hearing regime has also been amended to include serious offences (section 309).

Where there are issues of severance and joinder of the indictment prosecutors should apply for a preparatory hearing before the jury is sworn:

in cases of serious fraud (section 7(1) Criminal Justice Act 1987); or
in 'a case of such seriousness' (section 29 Criminal Procedure and Investigations Act 1996).

The advantage of preparatory hearings is that they have their own appeal procedure without the need for the giving of an acquittal agreement.

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. The Court of Appeal will not interfere with the ruling unless it can be shown that the judge took account of irrelevant considerations, or ignored relevant ones, or arrived at a manifestly unreasonable decision.

Quashing an indictment

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.

Part I: Procedure

The decision to appeal

Section 58(4) provides that immediately following the contested ruling the prosecution must either:

inform the court that it intends to appeal or
request an adjournment to consider whether to appeal.

Only CCPs, DCCPs, Heads of Central Casework Divisions (or a person nominated by them) may authorise an appeal. The CCP or DCCP 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.

Application for adjournment

In order to carefully and objectively consider the ruling and to take advice and obtain consent from the CCP, DCCP, Head of Central Casework Division or nominated person on whether or not to appeal, the prosecutor will usually request an adjournment.

The general rule is that the trial judge must give the prosecutor time to consider whether or not to appeal and the length of the adjournment will usually be until the next business day after the day on which the ruling was given (Rule 38.2(2)(b)).

In some cases it may be appropriate for the court to grant a longer period if it is in furtherance of the overriding objective that it is just to do so see R v SA [2019] EWCA Crim 144.

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 prosecutor should request the Crown Court to provide a transcript of the ruling which is subject to the proposed appeal to the prosecutor (Rule 36.8(4)).

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)).

Expedited and non-expedited appeals

The 2003 Act provides two 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 complexity of case, number of witnesses, length of trial and other relevant factors.

If the appeal is expedited, the judge may order an adjournment. If not, the judge may order an adjournment, or discharge the jury if one has been sworn.

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 and wants the court to expedite an appeal, he must ask the judge, giving reasons (Rule 38.6(1)). The judge must allow a defendant directly affected by the ruling an opportunity to make representations (Rule 38.6(2)). This does not apply where the prosecutor wants to appeal against a public interest ruling (Rule 38.8(5)).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. 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 (Rule 38.5(3)).

The prosecutor and the defendant 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 (Rule 38.9(b)).

Application for leave

Immediately following the ruling or the adjournment, the prosecutor who wants the Crown Court judge to give permission to appeal must apply orally or in writing for leave to appeal (Rule 38.5(1)). On the same day as the application for permission is made, the judge must decide whether or not to give leave to appeal (Rule 38.5(4)). The judge may extend this time (Rule 36.3)).

If the prosecution informs the court that it intends to appeal, the ruling will have no effect (in relation to the offence or offences which are the subject of the appeal) whilst the appeal is pursued (section 58(10)).

On the same day as the application for permission is made, the judge must decide whether or not to give leave to appeal (Rule 67.5(4)). The judge may extend this time (Rule 65.3).

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 must be served on the Registrar of the Court of Appeal, the Crown Court, and every defendant directly affected by the ruling which the prosecutor wants to appeal by the next business day after informing the Crown Court judge of the decision to appeal (Rule 38.3 (2)(a)).

In any other case, such as a non-expedited appeal, the notice of appeal or application for leave must be served within 5 business days of the prosecutor informing the judge that he intends to appeal(Rule 38.3(2)(b)).

The Court of Appeal may shorten or extend the period of service either before or after it expires (Rule 36.3).

The application must be in the form set out in the Practice Direction (Form NG (pros)). It must include specifying 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 or note 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. The requirements of what must be included in the application are set out in Rule 38.4.

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 38.8, see below.

Leave to appeal may be granted by the single judge (Rule 38.9(a)). Where the single judge has refused leave, the prosecution may renew the application by applying to the full court (Rule 38.10).

Defendant's response

The defendant (Respondent) may serve a response to the notice of appeal or application for leave and must do so if he wants to make representations to the court or the court so directs (Rule 38.7). 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.

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 5 business 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

Documents should be served, unless otherwise directed by the court, in accordance with Part 4 of the Rules. 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

Rule 38.8 applies where a prosecutor wants to appeal a public interest ruling. The prosecutor must 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 (Rule 38.8(2)). The prosecutor must not include in an appeal notice the material that was the subject of the ruling or any indication of the type of the material if the prosecutor thinks that to do so would reveal something that ought not to be disclosed (Rule 38.3).

The prosecutor must serve on the Registrar with the appeal notice a confidential annex indicating the reasons for the prosecutor’s decision (Rule 38.8(4)). The right of a defendant directly affected to make representations does not apply in these circumstances (Rule 38.8(5)). The defendant is not entitled to be present at the hearing unless otherwise directed by the Court of Appeal (Rule 36.6(2)).

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 (Rule 36.13).

Powers of Court of Appeal Judge

A judge of the Court of Appeal may:

give permission to appeal;
reverse a decision of the judge that the appeal is expedited;
order the acquittal of the defendant, and where appropriate, his release from custody; and
order payment of costs where the prosecution has served a notice of abandonment.

In addition a judge may exercise the powers given by other legislation (Rule 38.9).

Powers of the registrar

The registrar may exercise in the same manner as the Court of Appeal the powers set out in section 31A and 31B of the Criminal Appeal Act 1968.

Granting leave to appeal

Finally but very importantly, the prosecution can only appeal with the leave of the judge or the Court of Appeal. Trial judges should not normally give leave. See R v B (Judicial Discretion) [2008] EWCA 1144 in which the Court of Appeal said that leave to appeal will not be given unless the case is seriously arguable not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was.

In R v A [2008] EWCA Crim 2186 the Court said that it was necessary to look rather more widely at the interests of justice than simply ask whether an appeal had a realistic prospect of success or some other test directed solely at the merits of the appeal. This was a case which was borderline, the evidence was not strong, D was of good character, the offence did not merit custody, additional charge on public funds if there was a further trial, a retrial was disproportionate to the gravity of the case, and the court did not want to encourage appeals where there is little or no public interest in doing so.

Renewing applications

Rule 36.5 (renewing an application refused by a judge or the Registrar) applies with an amended time limit of 5 business days (Rule 38.10). Where a judge or Registrar has refused an application to exercise any of his powers, the party making the application may appeal to the full court.

The Court of Appeal may extend this time limit either before it expires or after (Rule 36.3).

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 (Rule 36.8).

The hearing at the Court of Appeal

A defendant in custody has a right to attend a hearing in public. The court or Registrar may direct that attendance is by live link (Rule 38.11).

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 see section 60(2)). 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 sections 58 see section 61. If the Court of Appeal confirms the judge's ruling it must order that the defendant is acquitted of the offence(s) the subject of the appeal see 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.

The Court of Appeal may not make an order to acquit the defendant unless it considers that the defendant could not receive a fair trial if an order were made to resume the proceedings or to have a fresh trial see section 61(5)).

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 see section 67).

With leave of the court, an appeal lies to the Supreme Court 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.

Reporting restrictions

There are restrictions on reporting the proceedings associated with the appeal and the appeal itself, until after the conclusion of the trial see section 71). 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 restrictions 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.

Part II: Points to consider

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 or DCCP, 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 or DCCP may seek advice, if necessary, from the Appeals and Review Unit, Directors of Legal Services and, if appropriate, from the DPP.

Where the CCP is not available, a person or persons nominated by them should take the decision. Therefore the CCP is 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 the CCP or DCCP 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. It also means that the CCP or DCCP 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 or DCCP, 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 DCCP as soon as possible to determine whether to proceed with or abandon the appeal.

How should the prosecution exercise the right of appeal?

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 if it considers that the defendant could not receive a fair trial. 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. If it is not such a case leave to appeal is unlikely to be granted see below.

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 the CCP or DCCP 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. This 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 or DCCP 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.

A ruling of no case to answer may be based on either of two limbs as laid down in the case of R v 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 or DCCP should then consider whether it is likely that Court of Appeal will reverse the ruling. If the CCP or DCCP 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 or DCCP 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 the CCP or DCCP 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 must continue the trial or order a fresh trial unless the defendant could not receive a fair trial. The CCP or DCCP, in accordance with the Code for Crown Prosecutors, has a duty of continuing review and must apply the public interest stage of the Full Code Test in deciding whether the case should proceed.

The factors for the CCP or DCCP 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.

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 or DCCP 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 (Attorney-General's Reference (No1 of 1975) [1975] QB 773).

If there is a point of law of general public importance, then as long as the criteria set out elsewhere in this guidance are met, then there may be an appeal under section 58.

The CCP or DCCP 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.

Monitoring

It is necessary for the Director of Public Prosecutions and the Attorney General to monitor the exercise and use of this power and that the reputation of the Service is not damaged by unmeritorious appeals.

It is the responsibility of the CCP or DCCP that each and every appeal should be notified to Appeals and Review Unit (part of SCCTD) via email to [email protected]

The notification form is below.

Notification Form: Section 58 Criminal Justice Act 2003

Name of Case:

Length of adjournment to consider appeal (if any):

Brief reasons for the appeal:

Appeal authorised by:

Expedited or non-expedited appeal:

Leave granted/refused by Judge or Court of Appeal or abandoned by prosecution:

Time between prosecution appealing following the ruling and the hearing of the appeal (if known):

CPS Area and contact details:

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