Crown Prosecution Service v C & Ors

A prosecution appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003 is available only if the prosecution gives the statutory acquittal agreement when, or before, it notifies the trial court of its intention to appeal. The agreement is a condition of the right of appeal and protects a defendant while the ruling is temporarily without effect. An offer of no evidence compelled by the judge is not the equivalent of that agreement.

Obiter, where no adjournment is granted, the prosecution must communicate its intention to appeal immediately after the ruling. A request for an adjournment that is refused does not leave time at large.

The respondents were charged with wounding with intent and affray. The prosecution had not served copies of important CCTV footage despite earlier directions. At an adjourned plea and case-management hearing in Woolwich Crown Court, the judge refused a short adjournment, required the trial to begin at once, and thereby caused prosecution counsel to offer no evidence. The judge directed acquittals under section 17 of the Criminal Justice Act 1967.

Later that day the Crown Prosecution Service notified the judge that it intended to appeal under section 58 of the Criminal Justice Act 2003. It had not, at any time, notified the statutory agreement that the respondents should be acquitted if leave were refused or the appeal abandoned. The central issue was whether that omission deprived the Court of Appeal of jurisdiction.

1. The appeal was dismissed for want of jurisdiction. The Crown Prosecution Service had never given the agreement required by section 58(8) of the Criminal Justice Act 2003 when seeking to invoke a prosecution appeal.

2. Section 58 creates a limited and exceptional prosecution right of interlocutory appeal. The notice of an intention to appeal under section 58(4), together with the acquittal agreement under section 58(8), activates the provisions that suspend the effect of the ruling. The agreement is the price of preserving that position if the appeal is not pursued. It protects the defendant from the Crown later seeking to revive proceedings after the ruling has temporarily been deprived of effect.

3. Following R v. LSA [2009] EWCA Crim 1034, the court held that the agreement is a condition of the right to appeal, not a procedural formality capable of later cure. Counsel's compelled offer of no evidence was not an agreement under section 58(8). Counsel had maintained that the Crown had evidence and wished to consider an appeal.

4. The court therefore did not need to decide the separate consequences of the directed acquittals, the precise mode of communication, or whether notice had to be given in open court. The acquittals could not be challenged.

5. Obiter, notification of an intention to appeal must be immediate unless an adjournment has been granted, in which event it must be given within the permitted period. A refused request for an adjournment does not suspend that requirement. The court also considered that, had jurisdiction existed, the judge's decision to force an immediate trial and refuse even a short adjournment was unreasonable. A more proportionate response to the prosecution's default was available, particularly in a serious violence case.

• Court of Appeal (Criminal Division): The Crown Prosecution Service's appeal was dismissed for want of jurisdiction: [2009] EWCA Crim 2614.
• Woolwich Crown Court: His Honour Judge Shorrock refused an adjournment, required the prosecution to proceed immediately, and directed acquittals after the prosecution offered no evidence under section 17 of the Criminal Justice Act 1967.