A, R. v

When deciding whether to grant the prosecution leave to appeal a terminating ruling, the Court of Appeal must apply a broad interests-of-justice assessment. It is not confined to whether the proposed appeal is arguable or has a realistic prospect of success.

The court should look ahead to the available consequences if an appeal succeeds, including whether a retrial could properly be ordered. Relevant considerations may include the strength and gravity of the case, proportionality, cost, the defendant’s circumstances and the public interest in further proceedings.

The prosecution sought leave under section 58 of the Criminal Justice Act 2003 to appeal a terminating ruling made by the Recorder at Southwark Crown Court on 2 July 2008.

The Recorder had held that there was no case for the defendant to answer on a charge of dishonestly handling nine mobile telephones knowing them to have been stolen. The Court of Appeal considered the proper approach to leave, the potential consequences of a successful prosecution appeal, and the effect of amendments to section 61 of the 2003 Act.

1. Leave was refused. The court held that its discretion to grant prosecution leave to appeal a terminating ruling required a broader assessment of the interests of justice than an inquiry into the merits or arguability of the proposed appeal alone.
2. The court should look ahead to the orders that could follow a successful appeal. Under section 61 of the Criminal Justice Act 2003, a successful appeal would not automatically justify a resumed or fresh trial. Under the version applicable to this application, a fresh trial could be ordered only if necessary in the interests of justice.
3. The proposed appeal concerned a borderline evidential case rather than a strong one. The defendant was of good character, the offence did not cross the custody threshold, and a retrial would impose public cost disproportionate to the gravity of the allegation. There was little public interest in encouraging a prosecution appeal in those circumstances.
4. The court therefore declined to permit the appeal to proceed. Although it initially stated that it would order an acquittal, it accepted after submissions that the Crown should instead return the matter to the Crown Court and offer no evidence.
5. The court added that the amendment made by section 44 of the Criminal Justice and Immigration Act 2008 did not limit the separate discretion to grant leave. It would have reached the same conclusion even if that amended provision had governed the application.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 2186, the court refused the prosecution leave to appeal. It accepted the Crown’s undertaking to return to the Crown Court and offer no evidence.
• Crown Court at Southwark: On 2 July 2008, the Recorder made a terminating ruling that there was no case for the defendant to answer.