Clarke, R. v

A prosecution appeal under section 58 of the Criminal Justice Act 2003 may extend to a case-management refusal to adjourn. The statutory definition of a ruling is sufficiently broad to include such a decision where its practical effect is to terminate the prosecution.

The Court of Appeal may reverse an adjournment ruling only on the grounds stated in section 67. It must respect the trial judge’s assessment of the overall balance of the available material. It cannot intervene merely because a different course was available. Where the judge’s refusal was reasonable, leave to appeal must be refused.

The defendant faced allegations of assault, rape, criminal damage and an act tending and intended to pervert the course of justice. The complainant repeatedly said that she did not wish to give evidence. Two earlier jury trials had been discharged for unrelated difficulties.

When the complainant failed to attend the re-fixed trial at Nottingham Crown Court, a warrant was issued. She could not be located by the following day. His Honour Judge Milmo QC refused the prosecution’s application for a further adjournment of up to four weeks. The prosecution applied for leave to appeal that ruling under section 58 of the Criminal Justice Act 2003.

The central issues were whether a case-management refusal to adjourn was an appealable terminating ruling and, if so, whether the refusal was one that no reasonable judge could have made.

Application for leave to appeal refused. The Court held that the defendant should be acquitted of the offences as the inevitable statutory consequence of that refusal.

1. The statutory appeal right was engaged. Section 74(1) of the Criminal Justice Act 2003 gives “ruling” a broad definition, including a decision, order, refusal or rejection. A refusal to adjourn before the summing-up can therefore be a terminating ruling for section 58 where its effect is that the prosecution must offer no further evidence and the trial ends. The appeal right is not confined to rulings of no case to answer. The decision was also a ruling relating to all offences in the indictment within section 58(1).

2. The Court nevertheless had no basis to interfere. Under section 67, it could reverse the ruling only if it was wrong in law, involved an error of law or principle, or was not reasonable for the judge to have made. An adjournment decision requires the trial judge to balance all material then available. Appellate intervention is not justified merely because another reasonable judge might have granted an adjournment.

3. Judge Milmo had properly weighed the seriousness of the allegations against the prolonged and uncertain history of the proceedings, the complainant’s deliberate absence and unknown prospects of being found, the defendant’s continued custody, and the implications of admitting him to bail if there were a further delay. He was also entitled to take account of the limited further opportunity that the previous judge had afforded the prosecution to execute the warrant. His conclusion was reasonable.

4. Since leave to appeal was not obtained, section 58(12) required the defendant’s acquittal.

• Court of Appeal (Criminal Division) — The prosecution’s application for leave to appeal under section 58 of the Criminal Justice Act 2003 was refused. The Court ordered the defendant’s acquittal as the statutory consequence.
• Nottingham Crown Court — On 18 September 2007, His Honour Judge Milmo QC refused the prosecution’s application for a further adjournment to locate and arrest the complainant.
• Lincoln Crown Court — Earlier trial listings had been aborted after the complainant’s reluctance to give evidence and other trial difficulties. A warrant to secure her attendance had been issued before the case was re-listed at Nottingham.