Bradley, R v

The transitional provision in Criminal Justice Act 2003 Part 11 applies by reference to the beginning of the part of a criminal case in which the strict rules of evidence apply. It therefore applies to trials and Newton hearings begun after the relevant commencement date, even if the charge or information was laid earlier.

The new rules cannot be introduced part way through a trial already under way. The expression criminal proceedings in section 141 has the same meaning as in the Part’s interpretation provisions. Procedural notice requirements may be adapted or extended where the interests of justice require it.

The appellant was charged in July 2004 with robbery and possessing an imitation firearm with intent. His trial at Newcastle-upon-Tyne Crown Court began on 15 December 2004. He was convicted two days later.

The trial judge admitted the appellant’s earlier robbery conviction under section 101(1)(d) of the Criminal Justice Act 2003. The appellant appealed with the trial judge’s certificate, contending both that the conviction was inadmissible and that Part 11 could not apply because the criminal proceedings had begun before its provisions came into force.

The central issue was whether section 141 referred to proceedings begun by charge or information, or instead to a trial or Newton hearing begun after commencement.

1. Appeal dismissed. The court gave a joint judgment and held that the trial judge correctly applied Part 11 of the Criminal Justice Act 2003.

2. Part 11 changed evidential rules rather than substantive criminal law. The ordinary presumption was therefore that a procedural change applied to pending as well as future proceedings. Section 141 imposed a qualification upon that presumption, but did not exclude every case in which a charge had been laid before commencement.

3. The phrase criminal proceedings in section 141 had the same meaning as in sections 112(1), 134(1) and 140. In the criminal context, the qualification concerning proceedings to which the strict rules of evidence apply could sensibly refer only to those parts of a case in which those rules apply: trials and Newton hearings. It followed that Part 11 applied to all such hearings begun after the relevant provision came into force. It did not apply where the hearing itself had already started, because the evidential rules should not change mid-hearing.

4. Section 107(1), which expressly refers to a trial before judge and jury, did not support a contrary construction. Its purpose was to confine the obligation to direct an acquittal or discharge a jury to trial on indictment. The notice regime under the Crown Court (Amendment No 3) Rules 2004 did not prevent this result, since rule 3(7) permitted flexible notice and time limits in the interests of justice.

5. The court also considered that the appellant’s construction would create serious practical difficulties in joint trials, trials involving charges laid on both sides of commencement, and retrials. The previous robbery conviction was accordingly admissible. The court certified the proposed question of law of general public importance but refused leave to appeal to the House of Lords.

• Court of Appeal (Criminal Division): By [2005] EWCA Crim 20, dismissed the appeal against conviction, certified a question of law of general public importance, and refused leave to appeal to the House of Lords.
• Newcastle-upon-Tyne Crown Court: Following a trial beginning on 15 December 2004, convicted the appellant of robbery and possessing an imitation firearm with intent. The judge admitted a previous robbery conviction under section 101(1)(d) of the Criminal Justice Act 2003.