Blackwood, R v

After an appeal against conviction has been allowed, a retrial must be sought before the order quashing the conviction becomes final and is recorded by the court of trial. Once the final order has resulted, under section 2(3) of the Criminal Appeal Act 1968, in a recorded acquittal, the Court of Appeal cannot exercise its section 7 power to order a retrial.

The doctrine of nullity may preserve an abandoned application where the applicant’s mind did not accompany the purported abandonment. It cannot create an application for a retrial which was never made, nor invalidate a properly made order quashing a conviction without a proper basis.

The appellant had been convicted of rape at Croydon Crown Court. On 8 February 2012 the Court of Appeal allowed his conviction appeal, quashed the conviction and released him. The Crown had not then applied for a retrial, although it promptly sought one later that day.

Before the Crown’s application was heard, the Criminal Appeal Office issued the order allowing the appeal and quashing the conviction. The Crown Court was asked to record the result on its CREST system. The appellant contended that the order had become final, that the appeal proceedings had ended, and that the Court of Appeal was functus officio.

The central issue was whether the court could order a retrial after the final quashing order had been recorded and had operated as a direction to enter an acquittal.

1. The Crown’s application for a retrial was refused. The court had already allowed the conviction appeal and quashed the conviction. The question was whether its separate power under section 7 of the Criminal Appeal Act 1968 remained exercisable after the order had become final.

2. R v Cross (Patrick) [1973] 1 QB 937 remained binding. It establishes that an appellate order becomes final when it is recorded by the proper officer of the court of trial. The replacement notification procedure in rule 65.7(2) of the Criminal Procedure Rules, and the Crown Court’s practice of recording the result on CREST, preserved the substance of that position.

3. On the available information, the notified order had been recorded before the retrial application was heard. Under section 2(3), an order quashing a conviction, unless a retrial is ordered, directs the trial court to substitute an acquittal. A final order had therefore been given effect by recording an acquittal. It was then impossible for the Court of Appeal to order a retrial.

4. The statutory structure pointed in the same direction. Sections 2(3) and 7 contemplate one appellate order: either an order quashing the conviction that produces an acquittal, or an order quashing it and ordering a retrial. Section 8(2), concerning custody or bail pending retrial, also supported the view that retrial should be considered while the appellant remains before the court.

5. The nullity doctrine did not assist the Crown. It can address a purported abandonment that was not a genuine act of abandonment. It cannot retrospectively supply an application that was never made, or render the final quashing order a nullity. The court did not consider the merits of a retrial.

The court added that prosecuting counsel should have clear instructions before a conviction appeal on whether to seek a retrial if the appeal succeeds.

• Court of Appeal (Criminal Division): On 8 February 2012, the court allowed the appellant’s appeal against conviction and quashed his rape conviction. In this judgment, it refused the Crown’s later application for a retrial because the quashing order had become final and an acquittal had been recorded.
• Croydon Crown Court: The appellant had been convicted of rape. The judgment does not state the date of conviction or identify the trial judge.