Dales, R. v

Leave to arraign a defendant after the two-month period for a court-ordered retrial requires satisfaction of both conditions in section 8(1B) of the Criminal Appeal Act 1968. The prosecution must show that it acted with all due expedition in securing the arraignment and that there remains good and sufficient cause for a retrial despite the delay.

Due expedition is concerned with the arraignment, rather than every aspect of trial preparation. Although the court has the primary duty to secure timely arraignment, the prosecution bears the statutory burden and must take effective steps to ensure compliance. Serious administrative omissions by the prosecution will prevent leave being granted.

The defendant pleaded guilty at St Albans Crown Court to causing death by careless driving after a fatal road accident. He was later convicted, following a jury trial, of dangerous driving arising from a separate accident.

His dangerous-driving conviction was quashed because bad-character evidence had wrongly been admitted. The Court of Appeal ordered a retrial and required re-arraignment on a fresh indictment within two months. Confusion over the transfer of the case and failures by the Crown Prosecution Service meant that no timely arraignment occurred.

The prosecution sought leave to arraign out of time under section 8 of the Criminal Appeal Act 1968. The defendant applied for the retrial order to be set aside. The central issue was whether the statutory conditions for permitting a late arraignment were met.

1. The prosecution application was dismissed. The court held that the prosecution had not shown that it acted with all due expedition, as required by section 8(1B) of the Criminal Appeal Act 1968. The defendant’s application to set aside the retrial order therefore succeeded.

2. The statutory conditions for leave are cumulative. The prosecution had to establish both all due expedition in relation to arraignment and good and sufficient cause for a retrial despite the elapsed time. Failure on the first condition was sufficient to refuse leave.

3. Applying the guidance in R v Jones [2002] EWCA Crim. 2284, the test of due expedition is less demanding than the custody-time-limit test of due diligence and expedition. It concerns the timely arraignment, not other trial preparation. The court has the primary responsibility for compliance, but all parties must co-operate; the prosecution expressly bears the burden under section 8(1B)(i).

4. The CPS had made three material errors. It failed to establish the venue for the retrial, failed to answer the Luton court’s enquiry about the indictment, and failed to take steps as the deadline approached. A seasonal staff event could not excuse the failure to respond. The defence was not at fault.

5. There was a public interest in giving effect to the retrial order, including the value of a conviction if dangerous driving were proved. That did not justify overriding the statutory time limit. The limited available sentencing powers and the need for prompt resolution where eyewitness accounts conflicted reinforced the conclusion that a late retrial should not proceed.

• Court of Appeal (Criminal Division): In this judgment, [2011] EWCA Crim 134, the court refused the prosecution leave to arraign out of time and allowed the defendant’s application to set aside the retrial order.
• Court of Appeal (Criminal Division): On 28 October 2010, the court quashed the dangerous-driving conviction because bad-character evidence should not have been admitted, ordered a retrial, and required re-arraignment within two months.
• St Albans Crown Court: The defendant pleaded guilty to causing death by careless driving and was convicted after trial of dangerous driving. Concurrent sentences of detention and a driving disqualification were imposed.