Thompson & Anor, R v

A Crown appeal under section 58 of the Criminal Justice Act 2003 is unavailable against a pre-arraignment dismissal of a charge under Schedule 3 to the Crime and Disorder Act 1998. Although section 58 uses broad language, its appeal mechanism presupposes an actual or potential acquittal. A successful Schedule 3 application instead requires dismissal of the charge and quashing of any related count, without an acquittal.

Schedule 3 separately provides that, after such a dismissal, further proceedings may be brought only by voluntary bill of indictment. Section 58 does not silently create an alternative Crown appeal route. Decisions treating the Schedule 3 procedure as a matter relating to trial on indictment for judicial-review purposes do not determine the different statutory question under section 58.

The respondents were charged with conspiracy to cheat the Revenue in connection with property transactions. Before arraignment, they applied under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 to dismiss the charge on the ground that the prosecution evidence was insufficient.

A Crown Court judge accepted the application, dismissed the charge and quashed count 1. The Crown sought leave to appeal under section 58 of the Criminal Justice Act 2003, contending that the ruling was a terminating ruling made in relation to a trial on indictment. The central issue was whether section 58 conferred jurisdiction to entertain that appeal.

1. The application for leave to appeal was refused. The court held that it had no jurisdiction under section 58 of the Criminal Justice Act 2003 to entertain a Crown appeal from a dismissal under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998.

2. The breadth of the expressions “ruling” and “in relation to a trial on indictment” did not resolve the issue. Section 58, read with sections 58(8), 58(12) and 61(3), contemplates that the ruling itself, or an unsuccessful Crown appeal, results in an acquittal. A Schedule 3 application can be made only before arraignment. If it succeeds, paragraph 2(2) requires dismissal of the charge and quashing of any related count. Neither consequence is an acquittal, as shown by the continuing possibility of a voluntary bill of indictment.

3. Paragraph 2(6)(a) provides that, after dismissal, no further proceedings may be brought except by voluntary bill of indictment. The court rejected the Crown’s submission that an appeal in the same proceedings fell outside that restriction. The 2003 Act contained no express amendment and did not impliedly add a section 58 appeal as an alternative remedy.

4. Regina (Snelgrove) v. Crown Court at Woolwich [2004] EWHC 2172 (Admin) and O v. Central Criminal Court [2006] EWHC 256 (Admin) concerned the exclusion of judicial review under section 29(3) of the Supreme Court Act 1981. They did not determine whether the distinct section 58 appeal regime extended to a Schedule 3 dismissal.

• Court of Appeal (Criminal Division): The Crown’s application for leave to appeal was refused for want of jurisdiction: [2006] EWCA Crim 2849.

• Crown Court at Bristol: The judge granted the respondents’ pre-arraignment Schedule 3 application, dismissing the charge and quashing count 1.