R. v B

A prosecution appeal from a terminating ruling may succeed only if the ruling was one which it was not reasonable for the trial judge to make under section 67(c) of the Criminal Justice Act 2003. It is insufficient that the judge could reasonably have reached the opposite conclusion.

Where a delayed identification prosecution has lost critical contemporaneous material, including the complainant’s original account, identification material and the defendant’s interviews, the judge may properly conclude that the resulting prejudice makes a fair trial impossible. The appellate court will not interfere with that evaluative judgment merely because the prosecution case might otherwise appear strong.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a terminating ruling made by Judge Rogers QC in the Crown Court at Mold. The defendant faced two counts of attempted child abduction, one concerning an alleged incident in 1995 and the other an alleged incident in 2007.

The trial judge stayed count 1 after concluding that the loss of important 1995 material meant that the defendant could not receive a fair trial. The missing material included the complainant’s original video account, the E-Fit, identification-parade documents and the defendant’s contemporaneous interviews. The issue was whether that ruling was one which it was not reasonable for the judge to make.

1. Appeal dismissed. The court confirmed the terminating ruling and ordered the defendant’s acquittal on count 1.
2. Section 67(c) of the Criminal Justice Act 2003 permits intervention only where the terminating ruling was one which it was not reasonable for the judge to make. The court was not asked to find that the judge had misdirected himself about the relevant considerations.
3. The judge had permissibly balanced the competing considerations. Count 1 was a twelve-year-old identification allegation. Critical contemporaneous evidence had disappeared: the complainant’s original recorded account and description, the E-Fit, documents relating to an identification parade at which she had not identified the defendant, and the defendant’s contemporaneous interviews. Those absences materially impaired the defence’s ability to test the identification evidence and present the defendant’s original response.
4. The apparent strength of parts of the Crown case did not cure that prejudice. It also had to be viewed against the earlier decision, when the evidence was fresh, not to continue the prosecution. The trial judge was entitled to conclude that a fair trial could not take place.
5. The court gave general guidance on leave and appellate review. A discretionary or evaluative ruling is not impeached because the opposite result was also reasonably open. Leave should be granted only where it is seriously arguable that the judge’s actual exercise of judgment was unreasonable. That threshold was not met.

• Court of Appeal (Criminal Division): The Crown’s appeal was dismissed and the terminating ruling was confirmed: [2008] EWCA Crim 1144 .
• Crown Court at Mold: Judge Rogers QC ruled that the defendant could not receive a fair trial on count 1 because critical material from the 1995 investigation was unavailable.