LSA, R. v

A prosecution interlocutory appeal is available only if the prosecutor gives the statutory acquittal undertaking in open court at, or before, notifying the trial court of the intention to appeal. A later written undertaking cannot cure that failure. Once the tribunal of fact has returned a directed acquittal, the prosecution cannot invoke the interlocutory appeal procedure against that ruling. The Court-Martial leave provisions also require an oral application and an opportunity for the accused to make oral representations. Failure to satisfy the statutory conditions deprives the appellate court of jurisdiction, so the Court-Martial rulings stand.

The prosecution brought an interlocutory appeal from rulings of a Court-Martial at Bulford. The respondent faced separate charges of driving dangerously and driving while unfit through drink, arising from events on the same evening.

The Judge Advocate treated the charges as founded on the same facts. He directed an acquittal on the unfitness charge and subsequently stayed the dangerous-driving charge as an abuse of process. The prosecution gave notice of an intended appeal, but did not give the required acquittal undertaking in court until a later written notice of appeal. A certificate granting leave was also issued after the hearing without the required oral process.

The central issue was whether the Court of Appeal had jurisdiction to entertain the prosecution's purported appeal.

Appeal dismissed for want of jurisdiction. The Court held that neither ruling could be reviewed under the interlocutory prosecution-appeal regime.

1. Under Article 4 of the Courts-Martial (Prosecution Appeals) Order 2006, mirroring section 58 of the Criminal Justice Act 2003, the prosecution may notify an intended appeal only if it gives the acquittal undertaking at, or before, that notification. The undertaking is the condition which creates the right of appeal. The later written notice could not cure its absence at the hearing.
2. The first ruling had already been given effect by a directed verdict of not guilty on the unfitness charge. Article 4 did not permit an appeal after that acquittal. The only identified route for resolving a point of law without affecting the acquittal was an Attorney-General reference under section 36 of the Criminal Justice Act 1972.
3. The purported grant of leave was also procedurally defective. The applicable supplementary Order required an oral application, oral representations from the accused, and a decision by the Judge Advocate. The later letter and certificate did not comply. That defect could potentially have been cured by the Court of Appeal, but the acquittal and the missing undertaking were independently fatal.
4. Obiter, the Court explained that R v Forest of Dean Justices, ex p Farley [1990] RTR 228 concerned an exceptional and improper two-court prosecution manoeuvre. It did not establish a general rule that dangerous-driving and drink-driving charges founded on the same facts may not be tried together. The common-law protection associated with successive trials concerns trying a person again, not presenting appropriate alternative or cumulative charges at one trial.

The merits of the allegations were therefore not determined. The acquittal on one charge and the stay on the other remained in force.

• Court of Appeal (Criminal Division) — dismissed the prosecution's purported interlocutory appeal for want of jurisdiction: [2008] EWCA Crim 1034.
• Court-Martial at Bulford — the Judge Advocate directed an acquittal on the unfitness-to-drive charge and stayed the dangerous-driving charge as an abuse of process.