R v R

For a prosecution appeal under section 58 of the Criminal Justice Act 2003, an acquittal agreement made by the Crown in good faith satisfies the statutory condition for an appeal. The Crown is the sole judge of whether the ruling makes an acquittal agreement appropriate. The court has no power to assess objectively whether the ruling has sufficiently weakened the prosecution case.

A decision whether to permit late expert evidence under the Criminal Procedure Rules is discretionary. An appellate court will not treat the decision as unreasonable merely because it would have given different weight to relevant considerations. Intervention requires perversity or another recognised error.

The Crown sought leave to appeal a Croydon Crown Court ruling refusing, under rule 24.3 of the Criminal Procedure Rules, permission to rely on a late expert report in the trial of a medical practitioner charged with indecent assaults on patients.

The report was served on the Friday before a trial due to begin on the following Monday. Its author was an unrelated civil client of defence counsel. If the evidence were admitted, counsel could not continue and the trial would have had to be adjourned until September 2008. The judge refused leave, holding that the Crown's procedural default should not cause that prejudice to the defendant.

The Crown gave an acquittal agreement and applied under section 58 of the Criminal Justice Act 2003. The issues were whether that gave the Court of Appeal jurisdiction and whether the ruling was unreasonable.

1. Leave to appeal was refused. The Crown's application nevertheless fell within the court's jurisdiction under section 58 of the Criminal Justice Act 2003.

2. Section 58(8) requires an acquittal agreement as the condition for a prosecution appeal. Such an agreement must be made in good faith and not for an improper purpose. Subject to that requirement, the Crown alone decides whether the consequence of the ruling should be an acquittal if the appeal is not pursued or fails. The statutory language gives the court no power to examine objectively whether the ruling in fact destroyed, fatally undermined, or significantly weakened the prosecution case.

3. The contrast with section 63(2) was decisive. That provision expressly requires the court to be satisfied that an evidentiary ruling significantly weakens the prosecution case. Parliament used no equivalent objective condition in section 58(8). The expression “terminating ruling” was only convenient shorthand and should not control the construction of section 58. The court's conclusion was consistent with R v Y [2008] EWCA Crim 10.

4. On the merits, the Crown had not shown that the judge's refusal under rule 24.3 was unreasonable. The ruling involved a discretionary balance. The Crown had delayed in considering expert evidence, missed the ordered service date, and served the report only shortly before trial. Admission would have caused a substantial further delay and required the defendant to obtain new counsel. The judge was entitled to give those consequences precedence over the Crown's interest in adducing the late evidence.

5. There was no suggested failure to consider a material factor or reliance on an immaterial factor. The complaint concerned weight. Weight is for the decision-maker, and an appellate court will not intervene unless the decision is perverse. This decision was plainly reasonable.

• Court of Appeal (Criminal Division): The Crown's application for leave to appeal was refused: [2008] EWCA Crim 370.
• Crown Court at Croydon: HHJ Tanzer refused the Crown leave under rule 24.3 of the Criminal Procedure Rules to adduce its late expert evidence.