T, R. v

Where the statutory preconditions for a prosecution appeal may not have been met, the court should not finally determine jurisdiction without proper argument. On a provisional reading of section 58(8) of the Criminal Justice Act 2003, the prosecution must give its agreement to the specified acquittal consequences at or before notifying its intention to appeal. A later notification may therefore prevent the appeal from being entertained. The point remained open because the parties had not provided full legal research or written submissions.

The Crown sought leave to appeal against HHJ Shorrock’s ruling in the Crown Court on 13 August 2009 staying an indictment for nine specimen indecent assaults as an abuse of process. The judge had held that delay would deny the defendant a fair trial.

Immediately after the ruling, the Crown notified the court of its intention to appeal under section 58(4) of the Criminal Justice Act 2003. It did not then give the agreement required by section 58(8) that the defendant should be acquitted if leave were refused or the appeal abandoned. That agreement was given the following day.

The central issue was whether the failure to give the section 58(8) notification at the required time deprived the Court of Appeal of jurisdiction.

1. The Crown’s application was adjourned. The court did not finally determine whether it had jurisdiction to entertain the prosecution appeal. It directed both parties to lodge full skeleton arguments, additional authorities and any academic comment within 28 days.
2. Section 58(4) of the Criminal Justice Act 2003 permits a prosecution appeal only if, after the ruling, the prosecution informs the court that it intends to appeal or seeks an adjournment to consider an appeal. Section 58(8) separately provides that the prosecution may not give that notification unless, at or before that time, it also gives the specified agreement as to acquittal.
3. The court considered that the plain language of section 58(8) made the Crown’s submission difficult to accept. On the material then before it, the court would have had no hesitation in concluding that the appeal failed for want of jurisdiction. The court regarded LSA [2008] EWCA Crim 1034, especially paragraphs 26 and 27, as strongly supporting that provisional view.
4. However, the construction of section 58(8), and its relationship with section 58(4), was important. Counsel had not researched or fully argued the point, and the court considered that later authority or commentary might bear on the meaning of “at that time”. It was therefore inappropriate to reach a final conclusion before receiving proper submissions.

• Court of Appeal (Criminal Division): The Crown’s application for leave to appeal was adjourned pending full argument on the effect of sections 58(4) and 58(8) of the Criminal Justice Act 2003.
• Crown Court: HHJ Shorrock stayed the indictment on 13 August 2009 as an abuse of process because delay would deny the defendant a fair trial.