Attorney General's Reference on a Point of Law

• Legal Principles
• What sort of cases can be referred?
• Time limits
• Criminal Procedure Rules
• What sort of cases should not be referred?
• Guidance
• Appeals and Review Unit - Responsibility
• Initial consideration
• Instructing Treasury Counsel
• Submission to the Attorney General’s Office
• Action by the Attorney General’s Office
• After service of the Reference
• Respondent

Legal Principles

Where a person tried on indictment has been acquitted on all or part of the indictment, the Attorney General has the power to seek the opinion of the Court of Appeal on a point of law which has arisen in the case, section 36 (1) Criminal Justice Act 1972 (CJA 1972). The purpose of the procedure is to clarify the law. It is not a means to change the outcome of the individual case, section 36 (7) CJA 1972.

Since the introduction of section 58 Criminal Justice Act 2003 (CJA 2003), the prosecution has been able to appeal rulings on points of law before the summing up and acquittal. This is the primary means by which rulings adverse to the prosecution should, in appropriate cases, be challenged and therefore Attorney General’s References fell mainly into abeyance after this power came into effect in 2005, although see Attorney General's Reference No. 1 of 2020 [2020] EWCA Crim 1665. However, where there has been no appeal to the judge’s ruling(s) under section 58 CJA 2003 because the ruling is not so adverse to the case as to merit the giving of the acquittal guarantee; or for another reason it was decided not to seek a ruling but the point of law would nonetheless benefit from being clarified; or where the judge's summing up is in error and not corrected, then a Reference on a point of law can be used, (as per Reference No 1 of 2020).

What sort of cases can be referred?

A Reference will only be appropriate if the ruling in question:

• is sufficiently clear and precise to be capable of being challenged
• is concerned with a point of law, rather than the sufficiency of the evidence in the case; and
• raises a point of practical importance which is likely to be followed in other cases.

There must have been an acquittal (section 36(1) CJA1972).

The staying of an indictment for abuse of process is not an acquittal. If a Reference is desirable a stay can be lifted by the court so that the prosecution can offer no evidence under section 17 Criminal Justice Act 1967. This should only occur having consulted the Attorney General's Office about the proposal to pursue a Reference.

The Court of Appeal has said that References need not be confined to cases where “very heavy” questions of law arise. The procedure can be used for short but important points that require a quick ruling of the Court of Appeal before a potentially incorrect decision of law has too wide a circulation in the Courts, per Widgery LCJ in: Attorney General's Reference (No 1 of 1975) [1975] QB 773 at 778.

A material consideration may be whether the ruling has been reported and is likely to be followed in other cases, or whether other cases can be identified where a similar ruling has been contended for or obtained.

Time limits

There are no statutory time limits for the lodging of a Reference but matters should be handled expeditiously as the aim is to clarify the law quickly and prevent an erroneous decision being followed in other cases.

Criminal Procedure Rules

The rules governing the detailed procedure for References can be found in Part 41 Criminal Procedure Rules.

What sort of case should not be referred?

The Reference procedure is not to be used to:

• determine theoretical questions of law; or
• refer to the Court of Appeal a ruling which is clearly in ignorance of or inconsistent with clear existing authority.

Guidance

Set out below is the usual procedure to be followed although the Attorney General may decide to adopt a different approach.

Appeals and Review Unit - Responsibility

It is the responsibility of the Appeals and Review Unit (ARU) to deal with:

• The initial decision whether or not to seek a Reference (in liaison with the Area);
• The preparation of any draft Reference;
• To assist in the conduct of the proceedings with the Attorney General's Office (AGO) once the Reference has been served.

Initial consideration

The first step is for the Area to consider that a point of law is worthy of a Reference. The Area should obtain the opinion of the prosecution advocate who prosecuted the case. The opinion should:

• briefly recite the facts of the case;
• indicate the point of law;
• set out the terms of the judge's ruling; and
• set out the reasons why it is thought the judge is incorrect.

If the Area thinks that the point of law is worthy of Reference it should notify the ARU, attaching the prosecution advocate's opinion, a case summary and the views of the CCP/DCCP.

The ARU in conjunction with the Area will decide whether the point of law is worthy of Reference and to seek the Attorney's consent.

Instructing Treasury Counsel

If the ARU concludes that a Reference ought to be pursued then it may instruct Treasury Counsel to advise and to draft the Reference, having liaised with the AGO. It may be that the AGO will instruct Treasury Counsel instead or in addition to the CPS.

Prior to instructing Treasury Counsel it will be necessary to obtain a transcript of the legal argument and the judge's ruling.

Treasury Counsel's draft Reference will be in accordance with CrimPR 41.3:

• summarise the facts of the case;
• specify the issue of law and identify the opinion that the Attorney invites the court to give;
• identifying each ground and outline each argument in support;
• present the point of law in the form of a question or questions on which the Court of Appeal is asked to give its opinion;
• exclude any reference to the defendant's name/identity; and
• set out any relevant authorities.

Submission to the Attorney General's Office

The ARU, with assistance from Area, must forward the following to the AGO:

• the draft Reference;
• Treasury Counsel's opinion, if obtained;
• Trial Advocate's opinion;
• the indictment;
• the statements;
• the exhibits;
• the transcript of the legal argument and Judge's ruling;
• the ARU's assessment of the case;
• any other documents that may be relevant to the Attorney General's deliberations; and
• the name and contact details of the legal representatives for the acquitted person.

The papers should be clearly marked: Application for a Reference on a point of law under section 36 Criminal Justice Act 1972 and should be sent to:

Attorney General's Office

102 Petty France, London, SW1H 9EA

By email to [email protected]

Action by the Attorney General's Office

Following the submission of a draft Reference, a lawyer at the AGO will consider the papers submitted and advise the Attorney General.

If the Attorney General decides to make a Reference, the AGO lawyer will finalise the draft Reference and place it before the Attorney General for signature.

The AGO will serve the Reference on the Court of Appeal and the defendant in accordance with CrimPR 41.2. The AGO will send a copy of the Reference to the ARU.

After service of the Reference

If the Attorney General decides to refer the case to the Court of Appeal the ARU will take over the responsibility for dealing with the Reference after the notice has been served on the court.

The ARU will instruct Treasury Counsel to conduct the hearing; provide casework support as necessary and liaise directly with the Court of Appeal.

Any application to vary or withdraw the Reference by the Attorney General will be in accordance with CrimPR 41.5.

The ARU, with assistance from the Area, will deal with any correspondence or Parliamentary Questions/correspondence arising from individual cases. All correspondence should be copied to the AGO, and it is essential that there is close liaison with the AGO in relation to any Parliamentary Question or correspondence.

The ARU will keep the AGO informed of developments in the case and particularly regarding the hearing date. Once the matter has been heard, the AGO should be notified of the outcome and the judgment sent to them, when available.

Respondent

The Respondent i.e. the defendant may serve a respondent's notice in accordance with CrimPR 41.5.

No details which may lead to their identification should be disclosed, either directly or by handling papers within the view of unauthorised persons.

If the respondent is unrepresented at the hearing of the Reference, the Court of Appeal will usually ask the Attorney General to appoint an advocate to the court. The advocate to the court is instructed by the Treasury Solicitor and is there to ensure that the appellant’s case is properly tested and that all relevant arguments are fully deployed before the Court of Appeal, reflecting their own views as to the merits of the argument.

The court should ensure that the identity of the acquitted person is not disclosed during the proceedings on a Reference except where they have given their consent. (CrimPR 41.7). The proceedings are referred to as ‘Attorney General’s Reference No. X of Y’. In general, media handling of a Reference should have clear regard to the presumption of innocence, although the consideration of a reference and the legal questions which arise are distinct from the individual defendants or case involved.