M, R. v

A prosecution appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003 is competent only if the prosecution acts immediately. It must either notify its intention to appeal or seek an adjournment to decide whether to appeal. It must also give the statutory acquittal agreement no later than notification of its intention.

“Immediately” does not require simultaneous action at the final word of the ruling. It requires action there and then, without temporising and before a significant step occurs. A later adjournment cannot cure non-compliance after the trial has effectively been brought to an end. If those conditions precedent are not met, the appeal is incompetent and must be dismissed.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling that M had no case to answer on a charge of assisting unlawful immigration.

After the ruling, prosecuting counsel queried it but did not announce an intended appeal or seek an adjournment. The judge adjourned to assemble the jury to acquit M. On resumption, the Crown indicated an intention to appeal, but did not give its acquittal agreement before the jury was discharged. A further adjournment was then granted and the Crown later confirmed its intended appeal.

The issue was whether the statutory conditions precedent in section 58(4) and (8) had been fulfilled so that the Court of Appeal had jurisdiction to entertain the Crown’s appeal.

1. Appeal dismissed. The Crown had not fulfilled the conditions precedent to its statutory right of appeal. The respondent was to be acquitted pursuant to section 61(3) of the Criminal Justice Act 2003.

2. Section 58 requires the prosecution, immediately after a terminating ruling, either to notify an intention to appeal or to seek an adjournment to consider an appeal. If it notifies an intended appeal, it must at or before that time give the section 58(8) acquittal agreement. Both requirements are strict conditions precedent.

3. Immediacy does not demand simultaneity with the conclusion of the ruling. Section 58(3) gives the requirement a functional character. Nevertheless, there is no room for delay or temporising. The prosecution must act there and then, and before a significant event has occurred.

4. Here, counsel had an opportunity immediately after the ruling to announce an intended appeal or seek an adjournment, but instead queried the ruling. The court then adjourned for the jury to be assembled to acquit the respondent. That was a significant event. Although counsel later indicated an intended appeal, the required acquittal agreement was not even attempted until after the jury had been discharged. It was therefore not given at or before notification of the intended appeal.

5. The later adjournment, and the subsequent confirmation of the intended appeal, could not cure those defects. Section 59 confirms that a jury should only be discharged on the basis of a competent appeal, unless the appeal is expedited and the trial adjourned. The appeal was incompetent and the unreversed terminating ruling was confirmed.

• Court of Appeal (Criminal Division): The Crown’s appeal under section 58 of the Criminal Justice Act 2003 was dismissed as incompetent: [2012] EWCA Crim 792.
• Crown Court at Isleworth: The recorder ruled that M had no case to answer and discharged the jury. No citation for that ruling was stated in the judgment.