X, R. v

Following an order for retrial, the Court of Appeal’s power under section 8(2) of the Criminal Appeal Act 1968 to deal with bail operates when it orders the retrial. It does not create a continuing appellate jurisdiction after that order.

Unless the Court of Appeal expressly retains jurisdiction, a later bail application must be made to the Crown Court. The retrial order returns the defendant to the Crown Court’s jurisdiction, even before a fresh indictment has been served or the venue for retrial has been selected.

The appellant’s convictions for two counts of wounding with intent had been quashed by the Court of Appeal on 21 September 2010. The court ordered a retrial and directed service of a fresh indictment, arraignment within two months, and remand in custody pending retrial.

The Court of Appeal had declined to determine bail because the Crown Court was better placed to assess current bail conditions and trial arrangements. When the appellant applied for bail at Snaresbrook Crown Court, the judge questioned whether that court had jurisdiction before a fresh indictment was signed and before the retrial venue was allocated.

The issue was whether, after a retrial order, jurisdiction to consider bail remained with the Court of Appeal or lay with the Crown Court.

1. Issue determined. The Crown Court had jurisdiction to consider and grant bail. The appellant had been returned to the jurisdiction of the Crown Court by the retrial order, notwithstanding that no fresh indictment had yet been served and the Crown Court for retrial had not yet been nominated.
2. Section 8(2) of the Criminal Appeal Act 1968 empowered the Court of Appeal, on ordering a retrial, to make orders concerning custody or bail. The words did not mean that the court retained an open-ended jurisdiction merely because it had previously ordered a retrial. The court approved the construction adopted in R v X (CA No 2002/0461/X3, 22 August 2003).
3. The court held that a fresh indictment was not an essential prerequisite to the Crown Court’s jurisdiction. A defendant may be within that jurisdiction before an indictment is preferred, and the Crown Court may then deal with bail and ancillary matters.
4. Accordingly, unless the Court of Appeal expressly retains jurisdiction over bail when ordering a retrial, any subsequent bail application must be made to the Crown Court. The court made no determination whether bail should in fact be granted.

• Court of Appeal (Criminal Division) In this judgment, reported at [2010] EWCA Crim 2368, the court held that the Crown Court had jurisdiction to determine the post-retrial bail application.
• Court of Appeal (Criminal Division) On 21 September 2010, a differently constituted court allowed the appeal against conviction, quashed the convictions for wounding with intent, and ordered a retrial.
• Crown Court at Snaresbrook The appellant had originally been tried and convicted there. After the retrial order, the judge questioned whether the court had jurisdiction to grant bail before a fresh indictment was signed.