AT & Anor, R. v

A prosecution appeal under section 58 of the Criminal Justice Act 2003 is subject to a strict, prompt notification requirement. Immediately after an adverse ruling, the prosecutor must either state an intention to appeal or seek an adjournment to decide whether to appeal. The corresponding procedural rule permits time only until the next business day where such an immediate request is made; it does not permit several days of reflection. The court left open whether flexibility might be available in a more meritorious case. It refused leave where the prosecution neither complied with the statutory and procedural requirements nor pursued available alternatives before seeking an appeal.

AT and MT were being tried at Leeds Crown Court on three counts of cruelty to children. One complainant, A, had alleged during interview that the other complainant, J, had raped her.

The defence sought to question witnesses about the rape allegation, its truth, the decision not to prosecute J, and the timing and reasons for that decision. On 29 January 2009 the trial judge permitted cross-examination about the complaint. The prosecution initially said that it would not appeal, but the following day stated that it had decided to do so.

The prosecution sought leave to appeal the interlocutory ruling under section 58 of the Criminal Justice Act 2003. The central issue was whether it had complied with the immediate-notification requirements for such an appeal.

1. The application for leave to appeal was refused. The prosecution had failed to satisfy the mandatory procedural conditions for a prosecution appeal against a ruling.

2. Section 58(4) of the Criminal Justice Act 2003 required the prosecution, after the ruling, either to inform the court that it intended to appeal or to request an adjournment to consider an appeal. The prosecutor had done neither. She had instead expressly informed the court that the prosecution did not intend to appeal.

3. Part 67.4 of the Criminal Procedure Rules reinforced the urgency of that statutory scheme. Its repeated requirement for immediate action, together with the provision for a decision by the next business day after an adjournment request, did not allow days for the prosecution to reflect on the practical effect of the ruling.

4. The court treated the non-compliance as fundamental. It doubted that J's apparent refusal to answer questions about the allegation necessarily made continuation of the prosecution impossible, and noted that the prosecution had not explored possible agreed means of presenting limited material to the jury.

5. The court did not decide whether the statutory regime could allow flexibility in more meritorious circumstances. On the facts before it, however, it would be wrong to entertain the appeal.

• Court of Appeal (Criminal Division): The prosecution's application for leave to appeal under section 58 of the Criminal Justice Act 2003 was refused: [2009] EWCA Crim 668.

• Crown Court at Leeds: On 29 January 2009, the trial judge ruled that the defence could cross-examine witnesses about the rape complaint made by one complainant against another. No citation for that ruling was stated.