Double Jeopardy and Prosecution Appeals Part VII [2001] EWLC 267(7) (15 March 2001)

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Cite as: [2001] EWLC 267(7)

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PART VII
PROSECUTION APPEALS AGAINST JUDGES' RULINGS

We now turn to the subject matter of CP 158, where we discussed the possibility of introducing more extensive rights of appeal for the prosecution against rulings in the Crown Court.

7.2

We received 71 responses. The broad thrust of the provisional proposals in CP 158 enjoyed a high degree of support. It is particularly noticeable that the judiciary, by far the largest category of respondents, was overwhelmingly in favour, by 20 to four. The strength of support from academics (six to one) is also striking. All the prosecutors and police respondents were in favour. The only category to show significant opposition was that composed of professional organisations and interest groups, five out of seven of which opposed extending prosecution appeals into the trial.

^[1]

Of the substantive proposals, only two gave rise to any significant level of specific dissent. They were: our proposal not to extend the rights of appeal presently given under the preparatory hearing regimes to enable appeals against non-terminating rulings under the pre-trial hearing regime; and our proposal that there be no prosecution appeal against a successful submission of no case to answer at the conclusion of the prosecution case, whether under limb one or two of Galbraith.

^[2]

How much would prosecution appeals be used?

Part I of CP 158 concluded by our inviting views on "whether the prosecution rights of appeal discussed in this paper, if enacted, would be used to a significant extent."

^[3]

It seems inherently plausible that there are a significant number of cases in which the judge makes an error of law which disadvantages the prosecution to the extent that there is an acquittal where there would otherwise have been a finding of guilt. In 1998, out of 10,761 convictions after pleas of not guilty^[4] in the Crown Court,^[5] there were 2,099 applications for leave to appeal against conviction, of which 714 were granted.^[6] Of the 693 appeals heard in 1998, 290 were ultimately successful, in whole or part.^[7] In most of these cases, although by no means all,^[8] the Court of Appeal will have found that the trial judge made some error, and that that error was sufficiently serious to render the conviction unsafe. It would seem proper to assume that the number of occasions on which similar errors occur to the detriment of the prosecution is at least of a similar order of magnitude. No doubt there would not be a similar number of successful appeals – the incidence of the burden of proof, and the test to be applied by the Court of Appeal in appeals against conviction, are such that one would expect very many more appeals against conviction to be successful than appeals against acquittal. Nevertheless, in the light of these statistics it would be surprising if the number of acquittals that would fall to be quashed would be insignificant, were any such procedure available. It seems to us likely that significant use would be made of prosecution rights of appeal, and we proceed on that basis.^[9]

About ten respondents

^[10]

not

^[11]

There was no correlation between these judgments and the views of the respondents on whether there should be any extension of prosecution rights of appeal. Of those who opposed any such extension, some thought that extended rights of appeal would be seldom used and that this was a reason for not creating them, because no need for such extension had been shown. Others, on the other hand, thought that the new rights would be frequently used and that such use would be evidence of pressure being brought to bear on prosecutors by disgruntled complainants, investigators and, in some cases, the press, to make extensive use of the new rights. They saw the consequence of this as substantial delay in finality of the particular proceedings, and a knock-on delay in hearing other defendants' appeals against conviction or sentence.

7.7

Of those who supported extension of the prosecution's rights of appeal, some thought the new rights would be used infrequently, and cited this as an argument that extension would not cause undue disruption to the system or significant commensurate delay. Others thought that the new rights would be often used, and that this would evidence the need for them.

7.8

Our analogy with the statistics on defence appeals was subject to some criticism. It was pointed out that, amongst the successful appeals against conviction, there would be a number of cases in which the appeal was based on new evidence or a misdirection to the jury. Such bases of appeal were not, it was said, analogous to the kind of erroneous ruling which was the subject of our proposals. Thus, extrapolation from the number of successful defence appeals against conviction was not a reliable guide to the likely frequency of erroneous rulings which would be caught by an extended prosecution right of appeal.

7.9

We can see some force in this argument and that it would be a mistake to place too much reliance upon our statistical approach in what is essentially a matter of speculation. In our view, having reflected on the points made by respondents on this question, our best guess is that, whilst there would be occasions when an extended prosecution right of appeal against an acquittal arising out of a terminating ruling would be exercised, it is unlikely to be anywhere near as often as defence appeals against conviction. The defence's rights of appeal would still be far more extensive than those of the Crown.

7.10

Two respondents, each of them Lords Justices of Appeal, questioned the relevance of posing such a question at all. The issue was said to be what powers are to be made available to the Crown, not the frequency with which those powers would be exercised. We have some sympathy with this approach. Whilst there would be no point in legislating what would be a dead letter because the power was never used, once the judgment is that it would be used to some extent, the question of how often it would be used ceases to be of much significance beside the question of principle whether the Crown should have such a facility. It is, in our judgment, sufficient to conclude that, inevitably, judges will, from time to time, make mistakes which will result in prosecutions being terminated where in fact the defendant is guilty. The question then is, as one respondent put it, "whether it is unfair to an accused to deprive him of the adventitious fruits of an error of the court". Our view remains that this must be judged by whether the injustice caused by the error of the court may be corrected without doing undue harm to the other values which underpin the system by, for example, increasing delay in obtaining finality of proceedings, or putting a person who may, after all, be not guilty at further risk of conviction having once been acquitted.

7.11

What we do know is that there has been a small number of highly publicised cases involving murder, rape, and serious drugs offences which have highlighted the desirability of there being a prosecution right of appeal so as to enable the correctness of the judge's ruling to be tested. It is also the case that the abuse of process jurisdiction is being developed by the courts so that the occasions when a case will be stayed by a ruling of a judge will, in all likelihood, increase. The absence of a right of appeal, on a point of law, against a verdict for one side only is an anomaly within our system, which otherwise provides the loser in litigation, whether claimant or defendant, with the facility of a higher court giving a second opinion on questions of law. Extending the availability of a prosecution right of appeal would provide such a facility and would avoid placing the final responsibility for aborting the trial upon the first instance trial judge. The CPS expressed it in this way:

Although the right would be rarely exercised, the occasions on which it would be used would be significant – affecting the conduct of important cases or the decision of important points of law. The very existence of the right will, we believe, improve the quality of judicial rulings at trials and thereby keep its use to a minimum.

We believe that this is a useful and authoritative statement of the likely extent to which such a right would be put.

The principles affecting the availability of a prosecution appeal

7.12

In Part III of CP 158 we tried to identify the main principles and aims which have a bearing on the question whether it would be fair to extend the prosecution's existing rights of appeal. We distinguished two aims of the criminal justice system. One such aim, which we called accuracy of outcome, is to ensure, as far as possible, that those who are guilty are convicted and that those who are not guilty are acquitted. On the other hand, we pointed out, there is also a process aim in ensuring that the system shows respect for the fundamental rights and freedoms of the individual. Accuracy of outcome can benefit either the prosecution or the defendant, depending on whether the defendant is guilty or innocent. By contrast, process aims by their nature work only in favour of the defendant. They arise out of the relationship between the citizen and the state, and regulate what the state can properly do to the citizen. They reflect society's valuation of the citizen's autonomy and entitlement to be treated with dignity and respect.

^[12]

In general, the existence of prosecution rights of appeal may be expected to militate in favour of accurate outcomes, because an accurate outcome is more likely to be achieved if the law is correctly applied than if it is not. On the other hand, the existence of such rights may arguably detract from the process aims of the system. In CP 158 we provisionally concluded that the proper approach to the question whether to grant the prosecution a particular right of appeal was

(1) to identify the extent (if any) to which that right of appeal would enhance or detract from the aim of ensuring accuracy of outcome;

(2) to identify the extent (if any) to which it would detract from process aims; and,

(3) by balancing these factors, to come to a conclusion whether the trial process would thus be rendered unfair.^[13]

This approach found favour with the large majority of respondents. Some, however, were critical. In particular there were those who criticised the concept of seeking to achieve a balance between contending sides. They said that in doing so we were inappropriately adopting the language of games playing in a serious context. They pointed out that the public all too often has the impression that a criminal trial is a procedural game played by lawyers to achieve a result which has no bearing on the underlying merits. By way of contrast, one Lord Justice of Appeal expressed the view that the principal justification for the prosecution having no way to upset an acquittal based on an erroneous ruling of law seemed to have more to do with sport than with justice.

7.15

Others found unsatisfactory the dichotomy between prosecution and defence, and pointed out that there are other interests involved, including the complainant (who may also be a witness), or other witnesses, who may have a different perspective from that of the prosecution. In particular it was pointed out that the complainant and some witnesses' participation in the trial may give rise to "process values" reflected, for example, in some of the arrangements for their giving evidence. It was also pointed out that the complainant, whilst having an interest in an accurate outcome, may also have an independent interest in having the complaint "go the distance" (that is, be judged by a jury), the defendant having been obliged to elect whether to give evidence and, if so, having that evidence tested. Such an interest would be affected by a premature ending of the trial and is worthy of regard as a process value, alongside that of the defendant in not being subject to delay in determination of the issue, or being placed at risk for a second time.

7.16

One respondent called into question our positing the approach in terms of "fairness". He couched his support for our main proposals, differentiating between rulings which do and do not bring the trial to an end ("terminating" and "non-terminating" rulings), in terms of: (i) the practical implications of constant interruptions of the trial and (ii) the inconsistency of the rule that the prosecution cannot appeal an acquittal whereas the defence may contest a conviction.

7.17

A number of respondents agreed with us that delay was a major factor affecting the defendant which should be taken into account. So too was the question whether, if the prosecution is to have a right of appeal against an acquittal arising from a terminating preliminary ruling, the defence should equally have a right to appeal a refusal to make a preliminary ruling which, if made, would have terminated the prosecution.

7.18

In our judgment our approach as set out in CP 158, which was approved by the large majority of respondents who addressed the issue, is broadly correct. We have concluded that, whether or not this description finds universal favour, a trial is a forum in which it is sought to do justice between the different, often incompatible, interests of the various participants. We agree, however, that the participants whose interests have to be accommodated are not limited to the prosecution, representing the public interest, and the defendant, but may also include the complainant insofar as that person may have a different perspective from that of the prosecution. The concept of "balancing" those competing interests is, nonetheless, in our judgment entirely appropriate.

7.19

The concept of the "fairness" of the trial now has a particular meaning by virtue of the ECHR, which, in conjunction with the Human Rights Act 1998, imposes on our legislature and our courts an obligation to ensure that our rules and procedures are capable of achieving, and in their application do achieve, a "fair" trial for the defendant.

^[14]

Which rulings should give rise to a prosecution right of appeal?

Rulings made in advance of the trial

Our provisional proposals and the response on consultation

In Part V of CP 158 we explained that there are two different kinds of hearing in which rulings may be made in advance of the trial proper, namely preparatory hearings and pre-trial hearings. Preparatory hearings may be held only in certain kinds of case and only for purposes of trial management. Rulings made at them are appealable by either side. Pre-trial hearings are freely available, but rulings made at them are not appealable (except as a ground of appeal by the defence in the event of a conviction).

7.21

The assumption which underpins the preparatory hearing regime is that the rulings made will not normally have the effect of bringing the proceedings to an end, because they can only be made for the purposes of the better management of the trial. An application to stay the proceedings as an abuse of process, for example, falls outside the ambit of a preparatory hearing;

^[15]

^[16]

^[17]

and/or

prosecution

Rulings made at pre-trial hearings may be terminating or non-terminating. There is no requirement that such hearings be held only for purposes of trial management. We considered in CP 158 whether there should be a right of appeal against an acquittal arising from a terminating ruling made during the trial itself. We concluded that there should. From that conclusion it followed logically that there should be a right of appeal against an acquittal arising from a terminating ruling made before the trial, whether made at a preparatory or a pre-trial hearing. We also considered in CP 158, however, whether there should be a prosecution right of appeal against all non-terminating rulings made before the trial, not only (as at present) where they are made at a preparatory hearing, but also where they are made at a pre-trial hearing. We provisionally rejected this idea on the ground that it would make for excessive delay and disruption, given the frequency with which pre-trial hearings are held on what is scheduled to be the first day of the trial.

7.23

We provisionally concluded, therefore, that

(1) the present preparatory hearing regimes, under which either side may appeal a ruling in advance of the start of the trial before the jury, constitute elements of a fair trial procedure;^[18] but

(2) there is no sound basis for extending the rights of appeal under the preparatory hearing regimes to non-terminating rulings made under the pre-trial hearing regime;^[19] and

(3) there should be a prosecution right of appeal against a ruling made before the start of the trial proper (and not covered by the existing right of appeal against a ruling at a preparatory hearing), but only where the ruling is a terminating one.^[20]

There were no dissentients to proposals (1) and (3). Certain respondents suggested, however, that if there was to be a prosecution right of appeal against an acquittal arising from a pre-trial terminating ruling then equality of arms required that there be a corresponding defence right of appeal against a refusal of an application for such a ruling. The point was made that if the judge had erroneously refused such an application it was a total waste of resources, time and effort for the defendant then to have to go through a long trial and, if convicted, only at that stage to have the right to appeal the conviction. We consider this below.

^[21]

Of the respondents who dealt specifically with our conclusion that no right of appeal should be introduced against non-terminating rulings at pre-trial hearings, two thirds agreed but one third did not. Some thought that there should be a system which encourages prosecution and defence to identify issues for determination before the trial. Others could not see the logic of limiting the operation of the preparatory hearing regime and thought that any ruling, whether terminating or non-terminating, should be susceptible to appeal if made in advance of the trial. Others were of the view that the interests of justice were no less harmed where, as the result of an erroneous ruling, the prosecution case was emasculated, leading to an acquittal, than where the impact of the ruling was such as to persuade the prosecutor to drop the case. The difference between the two types of case might be marginal, and reasonable prosecutors might, as a matter of judgment, differ as to which was the right course.

7.26

One respondent thought that non-terminating rulings on the way in which children, or other vulnerable witnesses, might give evidence presented a clear example of the inequity of denying the prosecution an appeal where such decisions were made otherwise than at a preparatory hearing.

7.27

One respondent, a retired Lord Justice of Appeal, suggested that the problem was that preparatory hearings in non-fraud cases were limited to cases of length and complexity. This meant that very serious cases, which were neither long nor complex, would not fall within the preparatory hearing regime, with the consequence that erroneous non-terminating rulings would not be susceptible to appeal. He suggested that if the seriousness of a fraud case was sufficient justification for a preparatory hearing, there was no reason why it should not be sufficient in non-fraud cases too.

7.28

We received information from Scotland that the prosecution there has the right to appeal a decision of a trial judge at a preliminary hearing on any question of relevancy or competency, subject to leave of the trial judge. Further, there is a catch-all power for the trial judge to consider any point which could be resolved with advantage before trial, with the prosecution having a similar right of appeal with leave. As a matter of practice, however, we were informed that Scottish courts are loth to determine questions of the admissibility of evidence in advance of the start of the trial. Their approach is to regard such applications as academic, unrealistic, or unfair to the Crown, because they are judged in vacuo and require the Crown to anticipate pessimistically the nature of the evidence it will be able to lead at the trial. Further, a ruling on such a matter is binding on the trial judge and cannot be reopened.

Our conclusions

7.29

The preparatory regime is apparently acceptable. It involves, as a fundamental consequence, that a ruling made in advance of the trial may be appealed, whereas the same ruling made during the trial cannot. Thus, we conclude that there is no objection in principle to an arrangement under which the same ruling, made at different stages of the proceedings, may be either susceptible or not susceptible to appeal by virtue only of the stage at which it is made.

7.30

The problems on which we focused in rejecting a right of appeal against non-terminating rulings made at pre-trial hearings were those of inconvenience, delay and disruption, given the large number of cases in which such rulings are routinely and properly sought immediately before the start of the trial. We can see no good reason to change that view. By parity of reasoning we also reject the suggestion made by some respondents that the defence should have an immediate right of appeal against a refusal to make a terminating ruling at a pre-trial hearing (as distinct from a refusal to make such a ruling at a preparatory hearing). That does not mean, however, that there is any reason in principle not to give either side a right of appeal against a non-terminating or a terminating ruling made at a hearing in advance of trial, provided that that hearing is part of a structure under which the delay to the trial and inconvenience to the participants is kept to a minimum. In our view the preparatory hearing procedure satisfies these requirements.

7.31

As we pointed out in CP 158, the recent enlargement of the power to order a preparatory hearing has a significant potential. It may be used by either side and either side may appeal rulings made at such hearings. The case of Z

^[22]

Edwards

^[23]

^[24]

Furthermore, we can see no reason why preparatory hearings should be limited to considering matters which relate solely to the management of the trial and should not, in addition, be hearings at which issues such as severance, joinder of counts, or applications to quash the indictment or to stay proceedings on the grounds of abuse of process may be determined, with each side having a right of appeal from decisions made.

7.33

Likewise, we can see no good reason for the present distinction between fraud cases, where a preparatory hearing may be held if the case is of such seriousness or complexity that substantial benefits are likely to accrue from such a hearing, and other cases, where such a hearing may be held only if the trial is likely to be long or complex enough to warrant it. We consider that there should be jurisdiction to hold preparatory hearings, with rights of appeal for either party, whenever the case is of such seriousness that substantial benefits are likely to accrue from a preparatory hearing, regardless of whether the trial is likely in addition to be long or complex.

7.34

We recommend that

(1) the preparatory hearing regime, in both fraud and non-fraud cases, should be extended to include rulings on potentially terminating matters such as severance, joinder of counts, or defendants' applications to quash the indictment or to stay the proceedings on the grounds of abuse of process; and

(2) in non-fraud cases, the criterion of seriousness should be added to the list of matters which will enable a preparatory hearing to be held.

(Recommendation 25)

7.35

Such recommendations would, in our judgment, rationalise the present anomalous position, and would encourage the parties to apply their minds at an early stage to the issues which may advantageously be determined in advance of the trial and from rulings on which either side may appeal.

7.36

One respondent suggested that the failure of a defendant to appeal an adverse ruling made at a preparatory hearing should preclude the defendant from raising the correctness of that ruling on appeal against conviction, unless it would be contrary to the interests of justice to deny the defendant an appeal against conviction on that ground. This suggestion would impact on the defendant's existing and possible future rights of appeal and falls outside our terms of reference. Accordingly we make no recommendation on it. It may be thought to have some merit and to be worthy of consideration for inclusion in a measure which extends the rights of appeal of both sides by expanding the scope of the preparatory hearing. It might be said that such a rule would encourage unnecessary interlocutory appeals. We do not think it would. Such appeals would only be against rulings where the first instance judge has decided that substantial benefits would accrue from having the issue dealt with at a preparatory hearing. That advantage must be enhanced by making sure that the ruling is correct, provided the existing procedures for expediting such appeals from preparatory hearing rulings are applied properly.

Non-terminating rulings in the course of the trial

7.37

In CP 158 we provisionally concluded that the prosecution should not be given a right to appeal against a non-terminating ruling made during the course of a trial.

7.38

The vast majority of respondents who addressed this conclusion agreed with it. Suffice it to say that, save for one respondent, no serious argument was put up to counter our reasoning – namely that an appeal against a non-terminating ruling during the trial would be wholly impracticable, would throw the system into chaos and would be contrary to long established principle. The one argument against our conclusion was that the disincentives to abandoning a trial part way through, in order to pursue an appeal against a non-terminating ruling, were such that the prosecution would only do so for very good reason. In our view that places far too much reliance on the judgment of the prosecution, and would result in individual prosecutors routinely being placed under intolerable pressure by those who perceived that their interests had been damaged by such a ruling.

7.39

Accordingly we make no recommendation for a prosecution right of appeal against a non-terminating ruling made during the course of a trial.

Terminating rulings during the prosecution case

7.40

In CP 158 we provisionally concluded that a prosecution right of appeal against a terminating ruling made during the course of a trial is capable of being fair.

^[25]

^[26]

The proposal was supported by the vast majority of those who specifically addressed it. Of those who opposed it, the Criminal Bar Association and the Bar Council said that the only fair way for the prosecution to have such a right of appeal was to give the defence a corresponding right of appeal against refusal of an application for such a ruling. As that could not be done within the trial, the only way to give the prosecution the right of appeal against such rulings was to extend the preparatory hearing regime. We remain unpersuaded by that view for the reason given in CP 158, namely that the defence right of appeal is most properly and conveniently exercised at the end of the trial after conviction. It may, of course, include, as a ground of appeal, the refusal of the trial judge to make a terminating ruling. A defence right of appeal during the trial would lead to the delay and disruption to which we referred in CP 158. There is effective and practical parity in that, if the defendant is convicted, then the general right of defence appeal against conviction includes an appeal against the refusal of an application for a terminating ruling. Thus both sides have an appeal against the ruling at the conclusion of the trial, whenever that may be.

7.42

Two other respondents said that rulings on the admissibility of evidence, or on identification evidence, often involved the trial judge forming a view of oral evidence given by witnesses whom the Court of Appeal would not have seen. This is certainly true. The point is, however, that the jury will not have seen that evidence either, as it will have been given in the voir dire. Thus the judge is not at that stage carrying out a quasi-jury role, so there would be no question of an appeal against such a decision impinging on the fact-finders' role. Moreover, the admission of evidence after a voir dire is a well established basis for a defence appeal against conviction, and there are long established principles which guide the Court of Appeal on when, and on what basis, it may overturn a decision taken as a matter of discretion by a trial judge after hearing evidence. We do not regard the fact that it may be disinclined to allow appeals against acquittals arising from certain types of terminating ruling, absent the most startling of circumstances, as a reason for not giving a right of appeal which may, in an appropriate case, succeed.

7.43

A number of respondents raised an interesting procedural point, namely: what happens where an indictment contains a number of counts, a terminating ruling is made in respect of one, or some, but not all, and the prosecution there and then expresses its intention to appeal against the acquittals on those counts but also to continue with the remaining counts. Our conclusion is that this presents no difficulty. The trial of the remaining counts will proceed as at present, with verdicts being brought in. At the hearing of the prosecution appeal against the acquittals, the fact that there has been a trial and a verdict in respect of some of the counts will have to be considered by the Court of Appeal in addressing the "interests of justice" test. We can distinguish three types of case.

(1) Two or more counts on the indictment arise out of the same facts, and one or some are terminated but the other(s) remain. If the trial proceeds to a verdict on the remaining count(s) any further trial of the terminated count may be barred by the operation of the rule in Connelly v DPP.^[27]

(1) Where the count remaining is a strict, but lesser, alternative to the one which has been terminated (for example, a count of theft where the terminated count is one of robbery) and can be proceeded with, then the Connelly principle may operate to prevent a further trial on the more serious count even if it was wrongly dismissed at the first trial.

(1) Alternatively, if the count left on the indictment were a more serious alternative than that which had been terminated and was the subject of prosecution appeal (for example, a count of wounding with intent where the terminated count is one of maliciously inflicting grievous bodily harm) the autrefois rule may operate as a bar to any further trial of the lesser, terminated count. This would be equally so whether the defendant was acquitted or convicted of the more serious count. It is highly unlikely that such a sequence of events would arise but, if it did, that would be the outcome.

In the first two circumstances described above, it is quite possible that the Court of Appeal would recognise an exception to the rule in Connelly, by analogy with the exceptions already recognised in Lord Devlin's speech in that case. In order to avoid any possible Connelly/double jeopardy trap, the prosecution might wish, at the time of the ruling and when announcing its intention to seek leave to appeal, to apply to have the first jury discharged without the alternative count proceeding to a verdict. The trial judge would then have to make a ruling on that application. If the judge were to refuse that application at the behest of the defence then, prima facie, any consideration by the Court of Appeal of the impact of the rule in Connelly on the question whether a retrial of the terminated count would be in the interests of justice would take into account the fact that the Crown had made that application and the court, at the behest of the defence, had refused it. In those circumstances we would be surprised were the Court of Appeal to rule that there could never be a further trial by way of an exception to the rule in Connelly.

7.45

It is just conceivable (though highly unlikely) that there might be a case where the prosecution might decide to treat the court's refusal to discharge the jury as a terminating ruling, by offering no further evidence on the remaining counts. The ensuing acquittal might then be capable of appeal by the prosecution, though we doubt whether the Court of Appeal would be sympathetic to the prosecution taking such a course.

7.46

The fact that in such cases nice judgments may have to be made, respectively, by prosecution, defence and the trial judge does not, in our judgment, undermine the merit of the proposal. It is unlikely that any such questions would arise where the joinder of the counts was on the basis that they comprised a series of the same or similar offences, as distinct from arising out of the same facts.

7.47

It would follow, as a matter of good practice, that an appeal by the prosecution in respect of counts which had been terminated should not be heard until after the conclusion of the trial of the remaining counts. That might well be an occasion for a successful application for extension of the time limits for a hearing of the appeal.

^[28]

We anticipate no problems where there are trials of co-defendants, one of whom is discharged, but where the trial of the remainder continues, save that, as in the previous paragraph, we can see the case for an extension of the time for hearing the appeal until after the conclusion of the case concerning the remaining defendant(s).

7.49

We recommend that the prosecution should have a right of appeal against an acquittal arising from a terminating ruling made during the trial up to the conclusion of the prosecution evidence.

(Recommendation 26)

Rulings of no case to answer

7.50

At the close of the prosecution's case, it is open to the defence to make a submission that there is no case to answer. If the judge agrees, the jury is directed to acquit immediately. The criteria to be applied by the judge in ruling on such a submission were laid down by the Court of Appeal in Galbraith.

^[29]

(1) there is no evidence that the alleged offence was committed by the defendant,^[30] or

(2) the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it.

These are known as the two "limbs" of Galbraith. Limb one is a pure point of law. Limb two involves the judge coming to a conclusion on the evidence. In explaining the ambit of the second limb the Court of Appeal distinguished a case falling within that limb from a case where

the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty …

In such a case the judge should leave the case to the jury.

7.52

In CP 158 we argued that the existence of a prosecution right of appeal against a successful submission of no case would put the defence in an invidious position. The dilemma for the defence would be that if it makes a submission of no case, and is successful, there is a danger that the prosecution will appeal and there will be a retrial, which might go worse for the defence than the original trial. There might therefore be a disincentive to the making of a submission, even if it might succeed. We thought it wrong that such a disincentive should be created. We therefore provisionally concluded that there should be no right of appeal by the prosecution against a ruling of no case to answer made at the conclusion of the prosecution case.

^[31]

The main lines of argument put forward by those who opposed our proposal were as follows.

7.54

If there is to be a right for the prosecution to appeal an acquittal arising from an erroneous terminating ruling made during the prosecution case, it is irrational to refuse such a right against an acquittal arising from an erroneous terminating ruling made within minutes of the end of the prosecution case. Where the ruling is, in truth, based on an assessment of the strength of the evidence, the screen of having to obtain leave to appeal would prevent appeals by the prosecution in all save the most exceptional cases.

7.55

There is ample precedent for such a right of appeal in the procedure requiring magistrates to state a case at the behest of the prosecution. This is often in the context of a ruling of no case at the conclusion of the prosecution evidence. The tests being applied by the magistrates at that stage are the same. The defence power to make a submission of no case is the same. The tactical prejudice that we perceived as arising for defendants, if the Crown were given such a right in the Crown Court, does not appear to have arisen as a notable problem at the magistrates' court level.

7.56

A successful submission of no case, erroneously acceded to, deprives the jury of a proper opportunity to judge the case, diminishes the legitimacy of the resulting acquittal, may appear to interested persons and the public to be the product of bizarre technicality, and damages public confidence in the system.

7.57

The possibility of an appeal against an acquittal arising from an erroneous ruling of no case would help to "keep the judges honest". A senior trial judge with Court of Appeal experience argued that "It is a temptation for a weak judge with a difficult case to rule against there being a case to answer. That, I believe, is significant."

7.58

Some respondents doubted the cogency of our assertion that the defence would be impaled on the horns of an intolerable dilemma, in that it would have to choose between making a submission of no case (with the risk of a retrial following a successful appeal against the judge's acceptance of that submission) and allowing the case to go to the jury (with the risk of a conviction offering no grounds for appeal). Some thought the way to remove this dilemma was to impose a duty on the trial judge to consider at the close of every case whether or not the Crown had made out a case, even if the defence had not raised the issue. One thought that there should be a duty upon the defence to raise it.

7.59

A few respondents opposed our proposal only insofar as it applied to the first limb of Galbraith, that is where the question was whether there was no evidence that the crime had been committed by the defendant. One High Court judge put it this way:

The first type,^[32] by far the commonest, is … where a judge decides that as a matter of evidence the prosecution have not produced sufficient to justify a conviction. The second class^[33] is a decision that the evidence adduced, even if believed, does not disclose the offence in law. There should be no right of appeal against the first category … though judges must be careful not to usurp the jury's function there are many occasions when the trial judge's decision to withdraw the case is based on his view that the crucial witnesses for the prosecution are so obviously unreliable that it would be unsafe to permit the trial to continue and the defendant to remain in jeopardy. However for the second type of decision … based on matters of law rather than the judge's discretion … in my opinion there should be a right of appeal, and, if the appeal succeeds, a retrial.

The CPS summarised its opposition to our proposal in the following way:

… in reality (i) The right to appeal would discourage unmeritorious submissions whether before, during, or at the close of the prosecution case.

(ii) The prosecution would never be able to mount an appeal based upon a Galbraith assessment of the credibility of the evidence which the Court of Appeal had not heard but only upon erroneous rulings of law, eg as to the legal nature of an element of crime …

(iii) The mere existence of the right would serve to improve the quality of such rulings and, in cases where the judge had clearly erred in law, to clarify the law.

It is unacceptable to right thinking people that defendants should be acquitted of serious offences because of a mistake by a judge as to the law.

Our conclusions on appeals from rulings of no case to answer

7.61

We have concluded that we should amend our proposals to take account of some of these arguments. In particular we agree that there is no logical distinction between a terminating ruling of law made during the prosecution case and one made at its conclusion.

7.62

We also accept that there may be a temptation for trial judges too readily to accept defence submissions where they know that their reasoning will not be susceptible to scrutiny by the Court of Appeal. In any event the discipline of possible appeal to the Court of Appeal would serve to concentrate minds and improve both the quality of decision taken and its expression.

7.63

If a case is to fail on a legal argument it is better for public confidence in the system of criminal justice that it be susceptible to the second opinion of a higher court than that it be unappealable.

7.64

We also agree that the case stated procedure in the magistrates' court is a template, at least for a prosecution appeal on a point of law, and that there is no evidence that defendants labour under a disadvantage in pursuing a submission of no case at that level because of it.

7.65

On the other hand we do not accept the arguments which seek to diminish the dilemma for the defence which we described. The fact that the defence has other difficult choices to make is not a sufficient argument for adding to that burden. Arguments were presented which suggested that there is no particular disadvantage to a defendant in being required either (i) to make a submission and to face a retrial after an appeal; or (ii) to forgo a submission and give evidence for fear that an appealed ruling of no case would deprive the defendant of the chance of an acquittal by a jury in a trial which is going well. We reject those arguments. They fail to take any, or any sufficient, account of the fact that trials are organic unpredictable events, each one of which has its own momentum, or feel, deriving from the particular interplay of its cast of characters on a particular occasion. The progress made by the defence in one trial may well not be repeated at a retrial. It is a truism, recognised by most experienced practitioners, that the high point of the defence case is invariably at the close of the prosecution case. This is quite apart from the obvious fact that at a retrial witnesses will have had a dry run, tactics will have been revealed and weaknesses in the prosecution case will have been spotted and possibly plugged.

7.66

In our view, it is possible to reconcile these different arguments in a principled way.

7.67

There is no doubt that the two limbs identified in Galbraith are distinct. The first limb concerns a question of law, and there is no logical reason why the prosecution should not have a right of appeal against an acquittal arising from such a terminating decision if it is to have a right of appeal against acquittals arising from other terminating rulings made in the course of its case.

7.68

On the other hand, the second limb of Galbraith does not involve a point of law at all. Rather, the judge is required to perform a quasi-jury role. Without usurping the role of the jury, the judge has to assess the strength of the prosecution case. If the judge is of the view that, taking that case at its highest, no jury properly directed could properly convict, the judge's duty is to protect the defendant from any further risk by removing the case from the jury.

7.69

There is no more reason to give the prosecution a right of appeal against such a decision than there is to give it a right of appeal against an acquittal by a jury. We are heartened in this conclusion by the CPS's view that such an appeal would be inconceivable.

7.70

In CP 158 we expressed the opinion that it would be difficult in practice to distinguish the two limbs of Galbraith and that it might lead to bizarre positions being taken up in argument by, respectively, the prosecution and defence.

^[34]

both

There was a suggestion that the trial judge might be required to certify under which limb of Galbraith the ruling is made. We do not think there would be any need for such a formal procedure. We recommend below that the prosecution must at the trial indicate its intention to seek leave to appeal.

^[35]

The defence dilemma which we described in CP 158 is one which will arise almost invariably where the submission to be made is on the basis of limb two, and so would not be affected by the existence of a prosecution right of appeal against an acquittal arising from a limb one ruling. If and to the extent that there were such a dilemma in the case of a limb one ruling, we now believe that the balance is in favour of the prosecution having the right of appeal. If the defence has decided to try to persuade the judge to dismiss the case on a legal basis which turns out to be wrong, it can have no cause to complain if on appeal it is denied the benefit of an error of law which it by its own arguments has induced.

7.73

It follows from the above analysis that we do not recommend any prosecution right of appeal where the case is one of identification and it is withdrawn from the jury because the quality of the identifying evidence is poor, such as where it depends solely on a "fleeting glance".

^[36]

Galbraith

admissibility

We recommend that the prosecution should have a right of appeal against an acquittal arising from a ruling of no case to answer made at the conclusion of the prosecution evidence, but only where that ruling is made on a point of law under the first limb of Galbraith.

(Recommendation 27)

Terminating rulings on disclosure after the close of the prosecution case

7.75

In CP 158 we identified one situation in which a terminating ruling might be made after the close of the prosecution evidence and the determination of any submission that there is no case to answer, namely where the ruling is for the disclosure of relevant material in the hands of the prosecution. The general rule is that such material should be disclosed to the defence, but the Crown can apply to the judge (who will hear only the Crown, in private) for a ruling that disclosure need not be made where it would not be in the public interest (such as where it would reveal the name of an informer).

^[37]

^[38]

^[39]

Twenty-one respondents addressed this issue. Ten were in favour of a special rule and ten against. One merely noted that such rulings were very rare as disclosure issues invariably emerged during cross-examination of prosecution witnesses. On the other hand, Customs and Excise were of the view there should be such a special rule, and stated that their National Investigation Service were aware of a number of cases where potentially terminating rulings had been made on disclosure during the course of the defence case. They suggested that the absence of such a special rule might lead to the defence attempting to delay rulings on disclosure for tactical reasons. One High Court judge suggested that the prosecution should be given the right to discontinue proceedings during the defence case where the alternative was to provide disclosure. We recognise the force of this point and it is a matter worthy of consideration. It falls outside our terms of reference, however, and so we make no formal recommendation upon it.

7.77

With the exception of Customs and Excise, the preponderance of opinion was that such issues scarcely ever arise at such a late stage. We are not persuaded, therefore, that a case has been made out for the creation of a singular exception to the general rule which we propose. Accordingly, we make no recommendation for such an exception. Were it to become apparent that defendants, or their advisers, were, for tactical reasons, withholding issues so that rulings on disclosure had to be made after the end of the prosecution case, then we can see no reason why the issue should not be revisited.

Misdirections to the jury

7.78

In CP 158 we provisionally concluded that there should be no right of appeal by the prosecution against a jury's verdict of not guilty, even where there has been a misdirection by the trial judge which may have favoured the defence.

^[40]

The offences to which the new right of appeal should apply

We have concluded that it would not be unfair to defendants to give the prosecution a right of appeal against acquittals arising from terminating rulings made in the course of the trial. This conclusion applies irrespective of the nature of the offence charged. It does not follow, however, that the introduction of such a right of appeal would be equally desirable irrespective of the nature of the charge. Offences tried on indictment range from the very serious to the comparatively minor. In the latter kind of case, it is arguable that the costs and delays inherent in an appeal, even if not rendering the appeal unfair, would nevertheless be out of proportion to the public interest in securing a conviction. In CP 158 we argued that only in the more serious cases is there a pressing need for reform, because it is in those cases that the public interest is most damaged by the erroneous termination of proceedings.

7.80

We therefore provisionally proposed that the new right of appeal should be available only where, had the defendant been convicted, the Attorney-General would have had power to refer the sentence to the Court of Appeal on the ground that it was unduly lenient.

^[41]

^[42]

The large majority of respondents who dealt with this proposal (including the CPS) approved it. There were nine who opposed. All save two were in favour of no limit to the offences for which the prosecution could appeal. Those who favoured no limit did so for a variety of reasons. One was a perception that victims of any crime should have the same right to have errors of law corrected in the case which directly affected them. A variation on that theme was that otherwise there would develop a two-tier system of justice. Another line of attack was that the concept of limiting the reach of appeal was Treasury-driven and should be disregarded. Another said that the sole determinant of which cases to pursue on appeal should be the CPS, who had to have regard to the public interest and could be trusted so to do. In our judgment, whilst these are respectable arguments in theory, in practice they are unsustainable. As it stands the criminal law is hierarchical, based on perceptions of seriousness applied by various decision-takers. Like it or not, there are not only resource implications but, as we emphasised in CP 158, delay implications which would impact on defendants and victims in cases beyond the instant one.

7.82

The other argument was that the limit should be fixed at offences which carry a certain maximum sentence. One suggestion was of 14 years or more. This was on the basis that by restricting it to a particular level of seriousness there was the possibility of parity with our proposals on double jeopardy. That, of course, would not arise under our final recommendations for double jeopardy.

^[43]

The other suggestion was to limit the right of appeal to offences where there was a maximum sentence of five years or more but that, within those offences, only serious instances should be capable of appeal. The prosecuting authority should determine what cases were sufficiently serious to justify an appeal. The rationale for this suggestion was that a number of frauds which are not categorised as "serious" for the purpose of trial management are, nonetheless, in colloquial terms, "serious" and affect large numbers of individuals. These cases by their nature can give rise to a number of technical legal arguments and rulings, some of which may be terminating and arise during trial. Under our scheme the prosecution would not have the right to appeal in these cases. We have some sympathy for this argument. We believe, however, that the solution to the problem lies in part with the enhanced preparatory hearing regime which we have recommended,

^[44]

We remain of the view that our proposal is the best available. It has the advantage of certainty and consistency with the other significant prosecution right of appeal at the end of a trial. Further it is flexible as, if a need arises, the Minister can act to bring a certain category of case within the regime.

7.85

We recommend that the new right of appeal should be available only where, had the defendant been convicted of the offence (or any of the offences) of which he or she is acquitted, the Attorney-General would have had power to refer the sentence to the Court of Appeal on the grounds that it was unduly lenient.

(Recommendation 28)

The criteria for the new right of appeal

7.86

We argued in CP 158 that, even if the Court of Appeal concluded that the judge's ruling was wrong, it would be wrong for a prosecution appeal to result in a retrial without the court first considering whether, in all the circumstances of the case, a retrial was in the interests of justice. For example, something may have happened between the time that the original trial was terminated and the appeal hearing that substantially undercuts the prosecution case, such that the Court of Appeal considers that there is now no prima facie case; or the health of the defendant might have deteriorated to such an extent that further prosecution was no longer in the interests of justice, after the delay necessitated by the appeal. Allowing the Court of Appeal to decline to order a retrial in such circumstances would provide the court with the means to do justice in unusual and unforeseeable cases.

7.87

We went on:

Yet another possible reason for refusing a retrial is that, although the ruling was wrong, the prosecution's decision to offer no or no further evidence in the light of that ruling was questionable. It is possible that a prosecutor may decide on that course of action not because the ruling makes the prosecution case unsustainable but because it offers an opportunity to terminate a trial which, for whatever reason, is perceived as going badly and is therefore likely to fail – thus preserving the chance of a retrial, after a successful appeal, before a different judge and jury, and where the mishaps of the first trial may be avoided. In other words, the decision may have been dictated by tactics in circumstances where, but for the right of appeal, the prosecution would not have been terminated. We doubt that this situation would often arise. Nevertheless, we think prosecutors should be discouraged from regarding an appeal as an easy option, offering the opportunity to treat an erroneous, damaging, but not fatal ruling as a pretext for aborting a trial which is going badly in the hope of securing a retrial.^[45]

We provisionally proposed that

(1) the sole criterion to be applied by the Court of Appeal in determining an appeal against a terminating ruling should be whether, in all the circumstances of the case, it is in the interests of justice that the acquittal should be quashed and a retrial ordered; but

(2) in determining whether that criterion is satisfied, the court should be required to consider, together with any other factors that it may consider to be relevant,

(a) whether the ruling appealed against was correct, and

(b) where the trial was terminated by a decision of the prosecution to offer no or no further evidence, whether that decision was one which was open to a competent and conscientious prosecutor.^[46]

There was general support for the first proposal. One senior judge took the view that the sole criterion should be whether the ruling was correct. If it was not, the appeal should succeed. The Justices Clerks' Society thought that the question should be whether the proceedings overall would be fair were there to be a retrial. Another group of practitioners thought that the test should be whether the ruling was wrong as a matter of law, or whether the exercise of discretion was unlawful in the Wednesbury sense.

7.90

In our view the question whether the judge erred should be no more conclusively determinative of an appeal by the prosecution than it is on an appeal by the defendant, where the test is whether the conviction is unsafe.

7.91

On the "fairness" point we are aware that the Court of Appeal has twice in recent weeks dealt with the relationship between the domestic concept of "unsafe" and the ECHR requirement for fair proceedings

^[47]

^[48]

A number of respondents expressed misgivings about our proposal that the court should merely make an order on the outcome of the appeal, without making it clear whether or not the judge's ruling had been wrong. A number of respondents touched on our concern for the invidious position of the defendant where the appeal was refused on the general test, but the decision reported was that the defendant had been the beneficiary of an erroneous ruling which had resulted in an directed acquittal. One suggestion for overcoming this was that the court should specifically be empowered to restrict reporting of the decision to dismiss the appeal to that fact. Any further reporting of the case should not reveal the identity of the defendant. This would have the same effect, in terms of reporting the case for purposes of precedent, as the practice of identifying preparatory hearing appeals by reference to a letter, such as R v Z.

7.93

We can see some merit in that argument. We agree that, whatever the formal decision may say, the Court of Appeal in giving its reasons will be obliged to state its reasoning, and, if this means that it dismissed the appeal notwithstanding that the judge's terminating ruling was wrong in law, then that will become apparent. This may be invidious for the defendant whose acquittal has, after all, been upheld. It seems to us, however, that to adopt the proposal referred to above would unduly restrict freedom of speech in reporting public hearings. The order of the court will be that the appeal is dismissed so that the acquittal stands. This is a legally unambiguous statement. An acquittal by a jury, or the quashing of a conviction by the Court of Appeal, is never a declaration of the defendant's innocence. It is only ever a statement that the prosecution has not satisfied the jury of the defendant's guilt to the requisite standard, or that the jury's finding of guilt was unsafe. Whether anyone wishes to make a comment which goes behind the verdict or the order of the Court of Appeal is a matter for them, subject to the laws of defamation. We can see no reason why the successful respondent to a prosecution appeal should be in any different a position to any other acquitted defendant.

7.94

On the other hand we think there is force in the objection that an erroneous ruling is not merely (as we suggested) a relevant factor in determining whether a retrial would be in the interests of justice, but an essential prerequisite to the ordering of a retrial. It is inconceivable that the court might order a retrial despite concluding that the ruling was correct, and it is not our intention that there should be jurisdiction to do so. In our view the power to order a retrial should arise only if the Court of Appeal concludes that the ruling was wrong. This is not inconsistent with our view that the court should make no formal order other than to allow or dismiss the appeal. It simply involves giving express recognition to the practical reality that the court will first consider whether the ruling was right, and only if it concludes that the ruling was wrong will it go on to consider where the interests of justice lie.

The prosecutor's decision to treat the ruling as terminating

7.95

On our proposal that, where it was the prosecution's decision to offer no or no further evidence in the light of the ruling, the Court of Appeal should consider whether this decision was appropriate, there was more dissent. This raises the question how the Court of Appeal should deal with a case where the ruling has become a terminating one, not because it was intrinsically so, but because the prosecution chose to make it so by offering no evidence. We had, for good reasons, proposed that there should be no prosecution appeal against non-terminating rulings. We defined terminating rulings in such a way that it gave the prosecution the power, to an extent, to define what rulings were terminating rulings. Our concern, which found expression in this proposal, was that there may be occasions when the prosecution decided to throw in its hand where its case had become difficult but not impossible. If it did so then it would, by that means, gain a right of appeal. It would, in effect, have the power to grant itself a right of appeal, subject to obtaining leave, whenever it felt that the ruling was wrong and it would like the opportunity to test it on appeal.

7.96

We did not intend to suggest that prosecution counsel would, in bad faith, take a decision to offer no further evidence in order to gain a prospect of an appeal against an unhelpful ruling where the prosecution could have gone on, albeit to an extent handicapped. (Some of our respondents did suggest that this was a possibility which such a requirement would discourage.)

7.97

However, it was noticeable how vehement was certain of the opposition to our suggesting that there should be no appeal against non-terminating rulings during trial, and/or no extension of appeal against non-terminating rulings in advance of the trial. In particular, it was strongly pointed out that much injustice might be caused by an erroneous or perverse ruling on a matter of admissibility of evidence or the form of evidence which, whilst not leaving the prosecution's case so hopeless that it had to be abandoned, nonetheless left it significantly weakened, so that an acquittal may properly be said to have been attributable to that erroneous or perverse ruling. It is in those situations that we perceive prosecution counsel may have to make a difficult decision, and may come under pressure, from those who understandably feel strongly about the ruling and its impact, to drop the case and appeal. The temptation placed before counsel would be to opt to live to fight another day, by embarking on a route leading to an appeal, rather than carry on from a position of weakness.

7.98

It seemed to us right that the Court of Appeal should not be in the position of having one part of its jurisdiction determined by the subjective judgment of one of the parties, and that there should be some mechanism for enabling it to limit its jurisdiction so as to ensure that it heard only cases it was proper for it to hear. This would at the same time give prosecuting counsel a basis for resisting pressure to take a marginal decision for unsound reasons. Our proposed mechanism was to make it part of the "interests of justice" test for the court to consider whether the decision of the prosecution to deny the defendant the continuation of the trial, and to run the risk of a retrial, was a responsible one. The test we fixed on was the same as is already applied in cases where the conduct of the prosecution is being judged on its application for an extension of the custody time limits.

7.99

One supplementary suggestion was that the trial judge should have to issue a certificate that the ruling was a terminating one. This would not determine the decision of the Court of Appeal, but would be a matter to be taken into account by it. It is true that the trial judge will have a feel for the way the trial has gone, and will have some knowledge of the evidence which is yet to come. In that case it may be said that the judge is in a position to make an educated assessment whether the ruling has made the prosecution's case so weak that a decision to offer no further evidence satisfies the test we proposed. In most cases we should have thought this would give little problem. There is, however, a raft of knowledge in respect of a trial that is denied the judge, and which the prosecution cannot be expected to reveal. This may include the nervousness of the remaining witnesses and the impact on them of the decision to be appealed against. There may also be matters of which both counsel are aware but of which the judge is properly ignorant. Thus, whilst it is an attractive idea, we think, in practice, it would advance the argument little. In the cases where it is obvious that the ruling was effectively fatal to the Crown case there is no advantage in the trial judge being required to state the obvious. The procedure would only have relevance in cases where the trial judge might be surprised at the decision of the Crown to throw in its hand and might, either in advance of or after the directed acquittal, indicate a disinclination to provide such a certificate. This would place prosecuting counsel in an impossible position. Counsel would either have to reverse the decision to offer no further evidence, having revealed to the defence a lack of confidence in continuing with the case, or persuade the judge to issue the certificate by revealing matters in court which it may be improper or undesirable to reveal, or hinting to the judge that there are matters within counsel's knowledge which cannot be revealed but which have informed the decision. This would, in turn, leave the judge in an invidious position of being privy to matters which should not be disclosed, or passing judgment on the reliability of particular counsel by either accepting or rejecting what counsel says on these matters. In short we conclude that the question whether the case should be stopped is a matter of judgment for counsel at the trial, and is not a matter for consideration by the trial judge.

7.100

The CPS took objection to our proposal and strongly objected to the suggestion that prosecuting counsel might, for tactical reasons, offer no evidence in a case other than one in which the ruling was in fact fatal to the Crown's case. It set out a series of reasons in terms of its experience and practical considerations why, quite apart from the duty imposed on prosecutors to have impartial regard to the public interest, such a suggestion was unthinkable. We repeat that we do not in any way seek to suggest that prosecuting counsel or the CPS would be a party to any decision taken other than in good faith. However, that does not mean that the Court of Appeal, in considering the interests of justice, need be bound in every case to accept as sound the judgment of the prosecution to offer no further evidence where the prosecution has, thereby, deprived the defendant of a full trial and is seeking a retrial as a consequence.

7.101

The CPS did not suggest that this should be the case, but offered an alternative formulation:

In a case where the trial was terminated by a decision of the prosecution to offer no further evidence, the Court of Appeal in considering the question whether it would be in the interests of justice to quash the acquittal and order a retrial where the ruling was wrong should have regard to whether:

(a) there was insufficient evidence remaining at trial after the ruling to provide a prima facie case against the defendant; or

(b) in a case of a ruling on disclosure, the public interest in prosecuting the case was outweighed by the public interest in protecting the material ordered to be disclosed.

7.102

We assume that in the former case the material upon which that judgment would be made by the Court of Appeal would be the transcript of the evidence already given and the statements of available witnesses yet to be called. In the latter case the material for the Court of Appeal would have to be from those responsible for taking the decision to offer no further evidence.

7.103

We note that in making this suggestion the CPS is accepting that the decision of the prosecution to offer no further evidence should be made the subject of scrutiny by the Court of Appeal. We think the suggested criteria are helpful. If it is suggested at the hearing of the appeal that the prosecutor ought not to have treated the ruling as a terminating one, the court may well approach this question in the first instance by asking whether there was still a case to answer. If there was not, it follows inevitably that the prosecutor's action in dropping the case must have been justified. The CPS's second criterion rightly focuses on the question which the Crown will have had to consider in the light of an order for disclosure, namely whether the public interest in the protection of the material was outweighed by the public interest in proceeding with the case. We agree that this is an appropriate question for the Court of Appeal to address in considering whether to allow the appeal. This is different from the question whether the public interest in the protection of the material was outweighed by the defendant's interest in disclosure. This latter question will have been considered by the trial judge in deciding whether to order disclosure, and will be considered by the Court of Appeal in deciding whether that order was rightly made.

7.104

On the other hand, we do not think the CPS's criteria give sufficient indication of the approach to be adopted by the Court of Appeal where, despite the ruling, there was still a case to answer. It might be construed as implying that in those circumstances the prosecutor ought always to proceed, however unlikely it now appears to be that the jury will in fact convict. We would not accept that this is necessarily the case. In our view it should be open to the Court of Appeal to hold that the prosecutor acted correctly in dropping the case, and therefore (if the ruling was wrong) that a retrial would be in the interests of justice, even if there was still a case to answer. For this reason we regard the CPS's criteria as a useful supplement to, but not a substitute for, the criteron we originally proposed.

7.105

We recommend that

(1) the Court of Appeal should have power to allow an appeal against an acquittal arising from a terminating ruling only if

(a) the ruling was wrong in law, and

(b) in all the circumstances of the case, it appears to the court that a retrial would be in the interests of justice; and

(2) where the trial was terminated by a decision of the prosecution to offer no or no further evidence as a consequence of the ruling, the court should, in determining whether a retrial would be in the interests of justice, be required to have regard to

(a) whether there was sufficient evidence remaining at trial after the ruling to provide a prima facie case against the defendant;

(b) in the case of a ruling on disclosure, whether the public interest in prosecuting the case was outweighed by the public interest in protecting the material ordered to be disclosed; and

(c) whether the decision to offer no or no further evidence was one which was open to a competent and conscientious prosecutor, together with any other considerations which appear to the court to be relevant.

(Recommendation 29)

Leave and consent requirements

7.106

In CP 158 we provisionally proposed that there should be a leave requirement, in the same form as for existing rights of appeal to the Court of Appeal, in respect of prosecution appeals.

^[49]

We recommend that the new right of appeal should be exercisable subject to the same leave requirements as the existing right of appeal against conviction, namely with the leave of the Court of Appeal or a certificate from the trial judge that the case is fit for appeal.

(Recommendation 30)

We provisionally considered that it would be neither necessary nor desirable to introduce a further check on the exercise by the prosecution of its rights of appeal, such as a requirement for the Attorney-General's consent or that of the Director of Public Prosecutions (though we invited views on whether, where the consent of any person was needed to initiate the prosecution, that person's consent should be required before the prosecution could appeal against a ruling).

^[50]

Time limits for applications for leave

In CP 158 we suggested that, whilst there was no reason to disturb the present time limits on appeals from preparatory hearings, appeals against terminating rulings not made at preparatory hearings were more analogous to appeals against the grant of bail, where an immediate decision has to be taken.

^[51]

(1) in respect of appeals arising from a preparatory hearing, the requirements for notice of an application for leave to appeal should be as they are in the current law; but

(2) in respect of other appeals against terminating rulings, the prosecution should be required

(a) to indicate at the hearing itself that it is minded to appeal against the ruling; and

(b) within seven days of the ruling, to serve a full notice of application for leave to appeal on the trial judge and/or the Court of Appeal.^[52]

On the first proposal there was no specific dissent, and we make no recommendation for any change in this respect.

7.110

On the second proposal there was no dissent on the suggested structure of an immediate indication of intent followed by a swift filing of an application for leave.

7.111

One respondent questioned whether it was right for the application for leave to be served on the trial judge, and suggested that the current practice should be followed, namely that the notice of application for leave is served at the trial court for it to forward to the Court of Appeal together with the trial papers. It was said that this saves time before the single judge has to deal with the application. We accept that point and recommend accordingly.

7.112

On time limits for the application for leave, there were only two dissentients. The Legal Committee of District Judges (Magistrates' Courts) thought that seven days might be too long, bearing in mind that the acquitted person might have been remanded in custody in the meantime. On the other hand the CPS thought 14 days would be more appropriate. In our view seven days is the least time to allow for drafting and serving a full application for leave to appeal which is consistent with practicality. We believe that it should be practicable in the vast majority of cases for the prosecution to decide to pursue an appeal and to draft and serve the application for leave within that time. The arguments will already have been formulated at trial. Those sought to be advanced on appeal should be capable of being speedily reduced to an appropriate form. It is important to invest the whole procedure with a sense of urgency. Delay in dealing with a person who has been acquitted is an important downside to the existence of the procedure. The prosecution, being the beneficiary, must be expected to act so as to reduce that delay to the minimum.

7.113

We have considered a suggestion made by a respondent that seven days be regarded as the norm, but that the trial judge should have the power to extend the time on application made at trial by the Crown. Such an application to extend time would not cause any delay in itself as it would be made at the trial at the same time as the intention to seek leave was announced. The trial judge would be in the best position to assess whether it would be impractical to expect the Crown to draft a full application within seven days. The question whether the defendant would be in custody or on bail pending the outcome of the appeal would have to be a specific matter which the court must take into account in considering such an application. That would be entirely appropriate as the trial judge would be deciding whether to grant bail on that occasion. We believe that this would introduce a useful flexibility in the procedure which would not cause undue delay.

7.114

We recommend that, where the prosecution seeks to appeal against an acquittal arising from a terminating ruling made otherwise than at a preparatory hearing, it should be required

(1) to indicate at the hearing itself that it is minded to appeal against the acquittal, and

(2) either

(a) on that occasion, to obtain a certificate from the trial judge that the case is fit for appeal, or

(b) within seven days of the acquittal (or such extended time as the trial judge may on that occasion grant), to serve a full notice of application for leave to appeal at the trial court for forwarding to the Court of Appeal.

(Recommendation 31)

Detention pending appeal

7.115

In CP 158 we argued that, where the defendant has not previously been admitted to bail, and the reasons for refusing bail continue (or new ones have arisen), it would be unsatisfactory for the defendant automatically to have bail whilst a prosecution appeal is pending against the directed acquittal. This is the more so as we envisage that the outcome of any successful prosecution appeal would be a retrial. Were it otherwise, the procedure for prosecution appeals followed by a retrial could be readily thwarted by a defendant absconding or intimidating witnesses who may well be required to give evidence in any retrial, should the prosecution succeed. We therefore provisionally proposed that, pending the hearing of a prosecution appeal,

(1) the court should have the power to detain the defendant;^[53] but

(2) the defendant should have the right to bail on the same basis as other unconvicted defendants.^[54]

On the first proposal there was some outright dissent, and some misgivings were expressed. The dissent was on the basis that further detention of a defendant who had been once acquitted, albeit possibly on a legal technicality which was being challenged, would be contrary to fairness. We recognise the moral force of this argument. The question is whether there are no circumstances in which a person in this position ought not to be granted bail. We think it would not be difficult to envisage circumstances in which the risk of absconding, or of interfering with witnesses, is so great that the grant of bail would severely jeopardise the prospect of a proper retrial.

7.117

Some respondents queried whether detention in such circumstances would comply with Article 5 of the ECHR, and the Law Society of Scotland asserted that it would not. We consider that it is capable of falling under Article 5(1)(b), "in order to secure the fulfilment of any obligation prescribed by law" – namely the obligation to attend any future hearing in the Court of Appeal, or retrial, and to abstain from interfering with the course of justice – and/or Article 5(1)(c) (the detention of a person for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence) in combination with Article 5(3). The fact that the acquittal is subject to a pending appeal would, in our view, mean that it was not a final acquittal, and it therefore would not preclude the defendant being brought before the Court of Appeal on reasonable suspicion of having committed an offence. The CPS would not be pursuing the appeal were its criteria for continuing with the prosecution not satisfied – that is, if there were no longer a realistic prospect of a conviction.

7.118

One respondent pointed out that there is no power to detain a person who has been released when the Attorney-General refers the sentence to the Court of Appeal on the ground that it is unduly lenient. This is so, but the situations are by no means analogous.

7.119

First, although the Attorney-General has referred some cases where a non-custodial or suspended sentence has been passed, many such references have concerned the length of the custodial sentence passed, in which case the defendant will have been in custody throughout the appeal process. Under our scheme the acquitted defendant will almost always be free to leave court unless in custody for some other matter. The prosecution will have announced at the trial its intention to seek leave to appeal and the question of detention will be considered there and then, so there will be no question of the defendant being once released and then redetained pending the appeal. The apparent inequity of redetaining a person who has once been released must, we surmise, have had some influence on the decision not to include any power of detention pending a prosecution appeal against the sentence of a person who has been released.

7.120

Second, the issue on an appeal against sentence is limited. Whilst a person might be detained after the appeal having already been released from a sentence, or having initially received a non-custodial sentence, that is not a threat of a change in circumstances as fundamental as there being the prospect of a retrial at which an acquittal is at risk.

7.121

Third, where it is possible that there will be a retrial, interference with witnesses may arise as a separate or additional problem. Thus, whilst we do not shrink from saying that detention after acquittal pending an appeal would be relatively rare and would have to be justified by strong reasons, nonetheless we are not persuaded that the power to detain may not be necessary in the interests of justice.

7.122

The second limb of our proposal, that the defendant should have the right to bail on the same basis as other unconvicted defendants, attracted no dissent.

7.123

During the period between the acquittal, at which the prosecution has announced its intention to appeal, and the service of a notice of application for leave, there will be no appeal or application pending. We can see no reason in principle why the court should not have power to detain an acquitted defendant during such period.

7.124

7.125

We recommend that, pending the final outcome of a prosecution appeal or the making of any application for leave or the lodging of a petition for leave to appeal,

(1) the court should have the power to detain the defendant; but

(2) the defendant should have the right to bail on the same basis as other unconvicted defendants.

(Recommendation 32)

Custody time limits

7.126

In CP 158 we provisionally proposed that there should be a time limit in all cases where the defendant is remanded in custody, to run between the conclusion of the trial and the conclusion of the appellate process before the Court of Appeal. We invited views on what the time limit should be, but provisionally suggested something of the order of two months.

^[55]

and

^[56]

There was no dissent on the principle of the first proposal and scarcely any on the principle of the second. Such opposition as there was came from the Law Society, but was the corollary of its opposition to there being any power to detain pending a prosecution appeal.

7.128

On the specific time limit proposed, there was surprisingly little dissent. One respondent thought the time was too long. One thought it too optimistic, and one, the Law Society, proposed 28 days as an alternative. In our view the two month period achieves a degree of urgency without sacrificing what is practicable. If longer is required then it should be applied for under the extension regime.

7.129

We recommend that

(1) where the defendant is remanded in custody pending a prosecution appeal against an acquittal arising from a terminating ruling, there should be a custody time limit of two months from the conclusion of the trial until the conclusion of the appeal before the Court of Appeal; but

(2) the Court of Appeal should have power to extend that time limit, at any time before it expires, if satisfied that

(a) the prosecution has exercised due diligence in promoting the hearing of the appeal, and

(b) there is a good and sufficient reason to extend the limit in the interests of justice.

(Recommendation 33)

Further time limits

A general time limit on the hearing of the appeal

7.130

In CP 158 we invited views on whether, in addition to a custody time limit, there should be a time limit within which all prosecution appeals must be heard, whether or not the defendant is in custody.

^[57]

There were few respondents who ventured a specific period. Those who did varied between 56 days and four months. One respondent pointed to the machinery for "fast tracking" appeals, particularly those from rulings at preparatory hearings, though there is no formal time limit for the hearing of such appeals.

7.132

Our view is that there should be a specific, presumptive, time limit for the conclusion of prosecution appeals in the Court of Appeal against acquittals arising from terminating rulings. We do not believe we are equipped to identify what it should be, in the absence of any emerging consensus from our respondents. Any such limit must achieve what is practicable, but also reflect the sense of urgency which ought properly to be given to appeals where the defendant has already been acquitted.

7.133

Further, we can see that there should be power to extend such a time limit on the same basis as presently applies to custody time limits. There is no reason why the defence should not be given the power to seek an extension of the time limit on the same basis as the prosecution. Prima facie it is in the interests of an acquitted defendant not to protract the matter, but there may be circumstances where the defence does, legitimately, need more time, for example to prepare its case or secure the services of a particular counsel who, perhaps, was counsel at the trial.

7.134

We have also considered whether to recommend any specific regime of time limits for appeals to the House of Lords. The case of Z

^[58]

We recommend that

(1) there should be a statutory time limit within which prosecution appeals against acquittals arising from terminating rulings must be concluded by the Court of Appeal, the length of that time limit to be determined after consultation with the relevant parties, including the Registrar of the Criminal Division of the Court of Appeal; but

(2) the Court of Appeal should have power to extend that time limit, at any time before it expires, if satisfied that

(a) the prosecution has exercised due diligence in promoting the hearing of the appeal, and

(b) there is a good and sufficient reason to extend the limit in the interests of justice.

(Recommendation 34)

A time limit for the start of the retrial

7.136

In CP 158 we provisionally proposed that there should be a time limit of two months for the defendant to be arraigned on a new indictment, if the Court of Appeal orders a retrial. We invited views on whether the parallel existing provisions relating to retrials following the quashing of convictions work well.

^[59]

There was virtually no dissent from this proposal. The Law Society thought two months was too long and that this situation was not one which was parallel to a retrial ordered after a successful appeal against a conviction.

7.138

In our view our proposal has the advantages of giving effect to urgency and practicality. Further it has the virtue of consistency with other provisions where retrial is ordered after an appeal. We believe that there is a parallel in that in each case the defendant is to be subject to the risk of a retrial, and the need to minimise delay in the final outcome is no different. We recommend that, where the Court of Appeal orders a retrial on an appeal by the prosecution against an acquittal arising from a terminating ruling, there should be a time limit of two months after which the defendant may not be arraigned on the new indictment without the leave of the Court of Appeal.

(Recommendation 35)

7.139

We have had our attention drawn by one respondent to an apparent problem which affects those presently awaiting retrial after a successful appeal against conviction. Those affected have become defendants rather than convicted persons and are liable to be detained as such pending trial, subject to their right to bail. That detention, however, is not subject to any custody time limit because, once the first trial has commenced, no further custody time limit can apply. It may be, therefore, that they will be detained awaiting retrial for a much longer period than the custody time limit would have permitted had they been awaiting a first trial. Under our recommendations a person whose acquittal has been quashed has similarly become a defendant awaiting trial. Such a defendant would similarly be potentially subject to detention without the protection of the custody time limit regime. We do not think it appropriate to make a recommendation on this point because it goes wider than the subject matter of this report. However, we raise for consideration whether a new custody time limit should arise at the conclusion of an appeal, whether by defence or prosecution, at which a retrial is ordered, such period to run from the order for a retrial until the start of the retrial. Such a new regime would apply to retrials ordered under the present arrangements as well as under our recommendations.

Reporting restrictions

7.140

In CP 158 we provisionally proposed that there should be an automatic ban on the reporting of an appeal until either the appeal is dismissed, or, if it is allowed, the retrial has finished, but that the Court of Appeal should have power to vary the order.

^[60]

There was scarcely any dissent from these proposals. One or two respondents felt that there might be difficulties with the right to freedom of expression under Article 10 of the ECHR. We were, however, referred to the case of BBC Scotland v UK

^[61]

The question was raised whether there was a need for a specific power in the court to restrict reporting. We believe there is. Powers to restrict reporting of public hearings are contained in a series of specific statutes, each dealing with a specific prohibition as justified to Parliament. In our view there is ample justification for such restrictions, and it is better that it be specifically legislated than that it be exercised by virtue of an inherent power.

7.143

We recommend that

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(1) there should be a prohibition on the reporting of an appeal against an acquittal arising from a terminating ruling until the appeal is finally dismissed or any retrial has finished; but

(2) the Court of Appeal should have power to make an order disapplying or varying that prohibition if

(a) the defendant does not object to the making of such an order, or

(b) having heard representations from the defendant, the court is satisfied that it is in the interests of justice to make it.

(Recommendation 36)

Note 1    Those against were the Justices’ Clerks’ Society, the North Eastern Circuit, the Bar Council/Criminal Bar Association (joint response), the Criminal Law Group of the Society of Labour Lawyers and JUSTICE. The Criminal Law Committee of the Law Society was in favour.    [Back]

Note 2    See para 7.50 below.    [Back]

Note 3    Para 1.26.    [Back]

Note 4    Generally, there is no real prospect of a successful appeal against conviction where the defendant has pleaded guilty, except where the judge has made a ruling the effect of which is to deprive the defendant of a defence in law: see Chalkley [1998] QB 848.    [Back]

Note 5    Lord Chancellor’s Department, Judicial Statistics: Annual Report (1998) Cm 4371, p 66, table 6.11.    [Back]

Note 6    Ibid, p 12, table 1.7.    [Back]

Note 7    Ibid, table 1.8.    [Back]

Note 8    A comparatively small number of appeals are based on new evidence, or some irregularity not attributable to the judge, such as improper contact with the jury.    [Back]

Note 9    CP 158, para 1.25.    [Back]

Note 10    Possibly only eight: in a couple of cases the respondent’s meaning was not entirely clear.    [Back]

Note 11    See para 1.8 above.    [Back]

Note 12    What we term accuracy of outcome and process aims appear elsewhere as competing justifications for procedural rights: see the discussion in P P Craig, Administrative Law (4th ed 1999) pp 402–403. Process values (or aims) were identified in R Summers, “Evaluating and Improving Legal Processes – a plea for ‘process values’” (1974) 60 Cornell LR 1. Other important texts are J Mashaw, Due Process in the Administrative State (1985) and F Michaelman, “Formal and Associational Aims in Procedural Due Process” in Pennock and Chapman (eds) Due Process (1977) p 126. D J Galligan favours what we call accuracy of outcome, and in Due Process and Fair Procedures (1996) pp 75–82 attacks the coherence of what he describes as the “dignitarian” alternative. The argument is essentially about the theoretical priority of one or other of the two possible justifications. Our use of the distinction is theoretically simpler and does not require us to enter that debate. Terminology differs: Summers uses “good result efficacy” and “process values”, Michaelman uses “formal” and “nonformal”, Galligan uses “outcome related” and “non-outcome related”, and Craig uses “instrumental” and “non-instrumental”.    [Back]

Note 13    Para 3.21.    [Back]

Note 14    Article 6 gives the defendant a right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The requirements of a fair trial in ECHR terms are the subject of a substantial body of jurisprudence. For a useful summary, see John Wadham and Helen Mountfield, Blackstone’s Guide to the Human Rights Act 1998 (1999).    [Back]

Note 15    Gunawardena (1990) 91 Cr App R 55.    [Back]

Note 16    Hedworth [1997] 1 Cr App R 421.    [Back]

Note 17    The Independent 10 April 2000.    [Back]

Note 18    Para 5.16.    [Back]

Note 19    Para 5.24.    [Back]

Note 20    Para 5.29.    [Back]

Note 21    Para 7.41 below.    [Back]

Note 22    [2000] 2 AC 483.    [Back]

Note 23    K, The Times 7 November 2000.    [Back]

Note 24    A, unreported, 15 January 2001.    [Back]

Note 25    Para 4.18.    [Back]

Note 26    Para 6.7.    [Back]

Note 27    [1964] AC 1254; see paras 2.16 – 2.19 above.    [Back]

Note 28    See paras 7.130 – 7.135 below.    [Back]

Note 29    [1981] 1 WLR 1039.    [Back]

Note 30    This includes the case where there is evidence of some elements of the offence, but no evidence of one or more other essential elements.    [Back]

Note 31    Para 6.20.    [Back]

Note 32    That is, the second limb ofGalbraith. (Footnote added)    [Back]

Note 33    That is, the first limb ofGalbraith. (Footnote added)    [Back]

Note 34    Paras 6.18 – 6.19.    [Back]

Note 35    Para 7.114 below.    [Back]

Note 36    See Turnbull [1977] QB 224.    [Back]

Note 37    Criminal Procedure and Investigations Act 1996, ss 3(6), 7(5), 8(5) and 9(8); Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997 (SI 1997 No 698) rr 2–3.    [Back]

Note 38    Criminal Procedure and Investigations Act 1996, s 15(3).    [Back]

Note 39    Para 6.9.    [Back]

Note 40    Para 6.26.    [Back]

Note 41    Para 7.9.    [Back]

Note 42    Criminal Justice Act 1988 (Reviews of Sentencing) Order 1994 (SI 1994 No 119); Criminal Justice Act 1988 (Reviews of Sentencing) Order 1995 (SI 1995 No 10); Criminal Justice Act 1988 (Reviews of Sentencing) Order 2000 (SI 2000 No 1924).    [Back]

Note 43    See para 4.42 above.    [Back]

Note 44    See para 7.34 above.    [Back]

Note 45    Para 7.29.    [Back]

Note 46    Para 7.33.    [Back]

Note 47    Francom and Latif, The Times 24 October 2000; Togher, The Times 21 November 2000. See para 7.19, n 14 above.    [Back]

Note 48    Forbes [2001] 2 WLR 1.    [Back]

Note 49    Para 7.10.    [Back]

Note 50    Para 7.13.    [Back]

Note 51    Bail (Amendment) Act 1993, s 1(4).    [Back]

Note 52    Para 7.16.    [Back]

Note 53    Para 7.18.    [Back]

Note 54    Para 7.19.    [Back]

Note 55    Para 7.22.    [Back]

Note 56    Para 7.24.    [Back]

Note 57    Para 7.25.    [Back]

Note 58    [2000] 2 AC 483.    [Back]

Note 59    Para 7.26.    [Back]

Note 60    Para 7.34.    [Back]

Note 61    (1998) 25 EHRR CD 179.    [Back]

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	The Law Commission
You are here: BAILII >> Databases >> The Law Commission >> Double Jeopardy and Prosecution Appeals Part VII [2001] EWLC 267(7) (15 March 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/267(7).html Cite as: [2001] EWLC 267(7)

The Law Commission

PART VIIPROSECUTION APPEALS AGAINST JUDGES' RULINGS

PART VII
PROSECUTION APPEALS AGAINST JUDGES' RULINGS