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A prosecution appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003 exists only if the statutory preconditions are met. Immediately after the ruling, the prosecution must either state its intention to appeal or seek an adjournment. When stating that intention, it must at the same time, or earlier, give the required agreement that the defendant will be acquitted if leave is refused or the appeal is abandoned.

These requirements are mandatory conditions of the statutory power to appeal. A court cannot cure or overlook delayed compliance, even where the prosecution gives the agreement the following day and the defendant suffers no practical prejudice.

The prosecution appealed against a ruling of Judge Shorrock in the Crown Court at Woolwich staying a nine-count indictment for historic indecent assaults as an abuse of process because a fair trial was not possible.

Immediately after the ruling, prosecution counsel stated that the Crown intended to appeal. The following day, counsel stated that the defendant should be acquitted if leave were not obtained or the appeal were abandoned. The prosecution had therefore not given that agreement when it announced its intention to appeal.

The Court of Appeal determined whether that omission deprived the prosecution of the statutory power to appeal a terminating ruling under section 58 of the Criminal Justice Act 2003.

1. Appeal dismissed. Section 58 of the Criminal Justice Act 2003 creates a statutory, interlocutory right for the prosecution to appeal a terminating ruling. The court has no inherent jurisdiction to entertain such an appeal if the statutory preconditions have not been fulfilled.

2. Under section 58(4), immediately after the ruling the prosecution must either inform the court that it intends to appeal or request an adjournment to consider whether to appeal. Rule 67(2) of the Criminal Procedure Rules correctly reflects that requirement. The prosecution complied with this first condition.

3. Section 58(8) imposes a separate and mandatory condition. When, or before, it informs the court of its intention to appeal, the prosecution must state its agreement that the defendant will be acquitted if leave is not obtained or the appeal is abandoned. The agreement protects the defendant where the effect of the terminating ruling has been suspended but the appeal does not proceed.

4. The court followed R v LSA [2008] EWCA Crim 1034. The statutory words require the undertaking to be given when the right of appeal is invoked. They apply equally where the terminating ruling is fatal to the prosecution case. A delayed undertaking could not retrospectively satisfy the condition.

5. The omission deprived the prosecution of the power to appeal. The court could neither vest itself with jurisdiction nor dispense with the failure to comply. It therefore did not consider the merits of the abuse-of-process ruling.

• Court of Appeal (Criminal Division): The prosecution appeal was dismissed for non-compliance with section 58(8) of the Criminal Justice Act 2003 [2010] EWCA Crim 711.
• Crown Court at Woolwich: Judge Shorrock stayed the indictment as an abuse of process on the ground that a fair trial was not possible.