We have all been there. After a careful and skilful handling of the case against you the time arrives to make a half time submission. Skeleton arguments are exchanged and the argument is aired before the trial judge. Galbraith and Shippey are re examined. The ruling goes in your favour-there is no case to go to the jury. The defendant is moments away from being acquitted and then…the prosecution decides to invoke its right of appeal pursuant to section 58 Criminal Justice Act 2003. The jaws of victory are firmly snapped shut and the spectre of a trip to the Court of Appeal thoroughly dampens the mood of celebration. You are left to explain to your client how it can possibly be fair that the judge who has heard the evidence, seen the witnesses and listened to the arguments can have his ruling reversed and the trial be continued. In this article we look at the provisions of ss58-61 CJA 2003 and examine some of the authorities with a view to assisting the practitioner who finds himself presented with such a situation.
Part 9 of the Criminal Justice Act came into force in April 2005 and created a new species of interlocutory appeal contained in ss 58-61. A general right of appeal exists in respect of a ruling in relation to one or more offences included in the indictment. Although the words do not appear anywhere in the Act the appeal relates to “terminating rulings” (an expression used during the consultation process and its passage through Parliament of this part of the Act) and ss58(12) and 61(3) make it plain that the price to the Crown of bringing an interlocutory appeal under s58 is that if it fails the defendant must be acquitted.
What qualifies as a ruling? Although most often utilised following half time decisions the right of appeal is not confined to such a situation. The answer is to be found in the not very helpful Interpretation section 74. “Ruling” is defined as including a decision, determination, direction, finding, notice, order, refusal, rejection or requirement. In other words pretty much any utterance of the judge qualifies. The ruling must be one made before the start of the judges summing up (s58(13)). Such a wide definition includes a case management decision such as whether to order an adjournment before the trial (or before the start of the summing up) if its effect would be to terminate proceedings (see R v Clarke  1 Cr. App. R 33).
It would also extend to what can be described as an “evidentiary ruling” ie rulings on the admissibility of evidence. Sections 62-66 deal expressly with evidentiary rulings. However, those provisions are not yet in force. (Putting it mildly serious practical difficulties would be created for the progress of jury trials and the work of the Court of Appeal if these provisions were implemented). The Court of Appeal have taken the view that evidentiary ruling are included in the definition of “ruling” in section 74 and clearly come within the section 58 description of a ruling relating to one or more offences on the indictment. So an application by the prosecution to adduce a hearsay statement that is refused with the result that the defendant would have to be acquitted qualifies as a ruling that can be appealed under section 58. The matter is made clear by s62(11) which, although not in force, is a powerful aid to construction [see R v Y (2008) 1 Cr App r 34].
Evidentiary rulings may also be “piggy backed’ onto an appeal against a ruling of no case to answer [s58 (7)(b)]. It caters for the situation where the judge first excludes evidence which the prosecution wanted admitted and then, as a consequence of its inadmissibility, allows a half time submission. The prosecution can challenge not only the “no case” decision but also the evidentiary ruling which preceded it.
Practitioners should be alive to the fact that the right of appeal is governed by conditions in subsections (4) and (8) which must be strictly complied with. The Court of Appeal have made it plain time and again that failure to strictly adhere to the conditions in those subsections will be fatal to an appeal regardless of the merits otherwise.
- (4) The prosecution may not appeal in respect of the ruling unless:
- Following the making of the ruling it
- informs the Court that it intends to appeal, or
- requests an adjournment to consider whether to appeal, and
- If such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.
- Following the making of the ruling it
- (8) The prosecution may not inform the Court in accordance with subsection (4) that it intends to appeal unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) are fulfilled (this is known as the “acquittal agreement”).
So, the prosecution must:
- inform the court that it intends to appeal or wants time to think about it
- if the former then it must also enter into the acquittal agreement at the same time.
These are mandatory pre conditions. The emphasis is on “may not” and “unless”.
When is the ruling “made” for the purposes of the subsection? And what does “following” mean in subsection (4)(a)?
Usually the judge will make his ruling when he announces it in open court in the presence of all the parties. Of course it will have to be a reasoned (however brief) ruling to enable the prosecution to make an informed decision as to what move it wants to next make (i.e. informing the Court it intends to appeal or requesting an adjournment).
It is not uncommon for judges these days to e mail the ruling in advance of such an open court announcement. Whether that amounts to the “making” of a ruling may depend on whether the ruling was embargoed and restricted eg to counsel only and so the client isn’t in the loop until the open court announcement.
See by way of example R v F (JR)  2 Cr App R 13. The judge heard argument on 11th January and the judge announced that she would make her ruling the following week. On 16th January she e mailed her ruling to counsel and the Court did not reconvene until 19th February. The Court of Appeal interpreted s 58 as meaning a ruling given in the court room and a preliminary e mail which was merely a courtesy to counsel could not be accorded the status of a formal ruling which triggered the strict rules.
However, it is submitted that the situation may be different if the judge contemplated at the argument stage that the ruling would be given by e-mail.
[A recent example of e-mail communication is R v Quillan and ors Court of Appeal 11th December 2014 Thomas LCJ; Edis J and Henderson J. The court rejected the argument that the prosecution had failed to comply with the rules in circumstances where the judge had e-mailed the judgment in advance. The judgment was handed down in open court the following day and the prosecution requested an adjournment to reflect as to whether they wanted to appeal or were seeking an adjournment to consider whether they should appeal which was a curious middle ground between subsection (4) (a) and (b). The final written ruling is awaited. Since writing this article the judgment has been handed down see R v Quillan and others  EWCA Crim 538 25th March 2015.]
What does “following the making of the ruling mean”?
Rule 67.2 of the Criminal Procedure Rules requires the appellant to tell the Crown Court judge of any decision to appeal “immediately” after the ruling.
A 5 judge Court of Appeal led by the LCJ n R v T (N)  2 Cr App R 12
In a case where the acquittal agreement was not given immediately the court said in relation to subsection (4)(a) and (b) that:
“postponement of both of the alternatives is not an option. In other words, unless the prosecution informs the court of its intention to appeal immediately following the making of the ruling, or immediately requests an adjournment to consider whether to appeal, this first pre condition is not fulfilled…section 58(8) provides a further pre condition. The prosecution is forbidden from informing the court of its intention to appeal …unless when it gives the court the information required by s58(4) it indicates that it has agreed, or simultaneously agrees, to the acquittal of the defendant …”
See also R v Mian  2 Cr App R 9 where the Court of Appeal observed that “immediately following the ruling” meant there and then and in any event before anything important has happened. It would be going too far to say that it means simultaneously with the conclusion of the ruling but plainly there is no room for temporising.
In R v B  EWCA Crim 2078 the prosecution sought leave to appeal the decision of the trial judge in refusing to grant an adjournment. The Court in making it plain that the prospective appeal had merit made it clear that to allow the prosecution to appeal would be a case of hard cases making bad law. Per Macur LJ at paragraph 24 “The need for strict compliance is borne from the creation of the prosecution’s right of appeal where none previously existed. Procedural safeguards are imperative and the procedure to be followed by the prosecution patently clear”.
Section 59 provides for the judge to expedite the appeal. Expedited appeals are, of course, desirable in an effort to continue a trial should the Court of Appeal reverse the ruling. The circumstances in which a judge may consider that expedition of the appeal is desirable are too many and varied to contemplate but an obvious example would be a half time submission in a long running case where the prospect of having to restart the case would be costly in terms of expense to the parties or Legal Aid fund and strain on the defendant. Similar considerations would apply in those cases where vulnerable witnesses have given evidence.
The Court may confirm, vary or reverse a ruling (section 61) and order the continuation of the trial, a fresh trial or an acquittal. It must have regard to the interests of justice before ordering a continuance of the trial or a fresh trial. The Court may not reverse a ruling on appeal unless it is satisfied that the ruling was wrong in law, involved an error of law or principle or was a ruling that it was not reasonable for the judge to have made (s 67).
The procedural conditions that must be observed by the prosecution are to be strictly applied. The clock will only be stopped for as long as the prosecution is able to take steps under section 58 (4). It is imperative that the prosecution agrees that the price of bringing an interlocutory appeal is that the defendant will be acquitted if they fail. Although the Court of Appeal standard form NG (Pros) contains the acquittal agreement it is to be given at the same time as the intention to appeal is communicated to the Court. Timing is everything and in these days of e communications the practitioner should be sure to clarify whether a judge intends any e mail communication of a ruling to be merely a courtesy or the means by which the final ruling is to be made (whether or not it is handed down or formally announced at a subsequent hearing).