H, R. v

Under Rule 67.2 of the Criminal Procedure Rules, allowing a prosecutor until the next business day to decide whether to appeal is the general rule, not an inflexible maximum. A Crown Court may allow a longer, justified period. Section 58 of the Criminal Justice Act 2003 prescribes no fixed time limit, and a departure from the general rule does not invalidate a prosecution appeal.

A resident occupier with a binding contractual right to occupy premises remains a residential occupier under the Protection from Eviction Act 1977, even if the agreement is wrongly labelled and the precise tenancy-or-licence classification is unresolved. A purported notice cannot end a fixed contractual right of occupation before its agreed expiry absent an applicable contractual right of re-entry.

The Crown appealed a preliminary ruling at Kingston Crown Court, made before the jury was sworn. The respondent had been charged under section 1(3A)(a) of the Protection from Eviction Act 1977 with acts alleged to have interfered with the peace or comfort of two occupiers.

The trial judge held that the occupiers were excluded licensees whose right to occupy had ended under a notice to quit. She indicated that she would direct acquittals, and the Crown offered no evidence. The Crown gave notice that it might appeal and was allowed seven days to decide whether to do so. The central issues were whether that adjournment deprived the Court of Appeal of jurisdiction and whether the occupiers retained a contractual entitlement to occupy when the alleged acts occurred.

1. The appeal was allowed. The seven-day adjournment did not deprive the court of jurisdiction under section 58 of the Criminal Justice Act 2003. Section 58 imposes no prescribed time limit. Rule 67.2(2)(b) of the Criminal Procedure Rules makes the next business day the general rule, but its wording permits justified exceptions. The court rejected an interpretation that made any longer adjournment invalid. That reading also accorded with the overriding objective and the approach to procedural invalidity in R v Soneji [2006] 1 AC 340 and R v Clark & Day [2008] UKHL 8.

2. The Crown Court ruling was wrong in law. The written agreement gave the complainants a consensual contractual right to occupy their room for six months, ending on 8 April 2005. It replaced the earlier oral arrangement. The agreement was supported by mutual consideration and was not shown to be a sham. Its erroneous description of the arrangement as an assured shorthold tenancy did not prevent it from creating an enforceable contract: see Foster & Robinson [1951] 1 KB 149.

3. The respondent had no contractual right to terminate occupation on 8 February 2005. There was no evidence of a breach entitling her to re-enter, and incompatibility was not such a ground. It was therefore unnecessary to decide whether the arrangement was a tenancy or a licence. At the times alleged in counts 2 to 6, the complainants occupied under a contract and were residential occupiers within section 1(1) of the Protection from Eviction Act 1977. The prosecution evidence consequently disclosed a case to answer.

4. The court reversed the ruling but concluded that the interests of justice did not require either resumed proceedings or a fresh trial. It took account of the presumption of innocence, the elapsed time, the likely outcome and sentence, the respondent's good character, and the public interest and cost of further litigation.

• Court of Appeal (Criminal Division) — The Crown's appeal under section 58 of the Criminal Justice Act 2003 was allowed. The Crown Court ruling was reversed, but the court declined to order resumed proceedings or a fresh trial.
• Crown Court at Kingston — Before the jury was sworn, Her Honour Judge Barnes ruled that the complainants had ceased to be protected occupiers. The Crown offered no evidence and acquittals were entered.