SA & Ors, R.

A prosecution appeal against a terminating ruling remains subject to the strict statutory conditions in Criminal Justice Act 2003, but neither section 58 nor Criminal Procedure Rule 38.2 imposes an absolute jurisdictional bar on an adjournment lasting beyond the next business day. That period is a general rule. A judge retains a closely controlled discretion to grant a longer adjournment where justice requires it.

A no-case ruling should stand unless the evidence could enable a properly directed jury to infer guilt. On a prosecution appeal, the Court of Appeal may reverse only on the grounds in section 67. A conspiracy to defraud requires an agreement to achieve an unlawful object or use unlawful means, and the indictment defines the agreement which the prosecution must prove.

The prosecution sought leave to appeal terminating rulings made by HHJ Lambert QC at Bristol Crown Court. The proceedings concerned an alleged conspiracy to burgle, an alleged conspiracy to defraud an insurer through negotiations for the return of stolen paintings, and a consequential money-laundering count.

The judge ruled that there was no case to answer on the burglary count, refused a late application to amend the particulars of the conspiracy-to-defraud count, and then found no case to answer on the fraud and money-laundering counts. The prosecution appealed the rulings on counts 1, 3 and 4.

The respondents initially contended that an extension of time for the prosecution to decide whether to appeal deprived the Court of Appeal of jurisdiction. The central issues were whether that objection was sound and whether the trial judge's terminating rulings satisfied the statutory threshold for reversal.

1. The prosecution applications for leave to appeal were refused. The court had jurisdiction to entertain the proposed appeal on count 1, but none of the terminating rulings was wrong in law, involved an error of law or principle, or was a ruling that it was unreasonable for the judge to make within section 67 of the Criminal Justice Act 2003.

2. Section 58 contains no limit on the duration of an adjournment requested by the prosecution to consider an appeal. Rule 38.2(2)(b) of the Criminal Procedure Rules provides a general, rather than invariable, rule that time should be allowed until the next business day. A longer adjournment may be granted where justified, although prosecution appeals require urgency and judges should not permit drift. The court followed R v H [2008] EWCA Crim 483. The extension granted here therefore concerned the exercise of the judge's power, not the existence of the court's jurisdiction.

3. On count 1, the correct question was whether a properly directed jury could infer guilt from the evidence. The DNA evidence was equivocal and more consistent with handling the recovered painting than participation in the burglary. The later telephone and other evidence was fragmentary and speculative. The prosecution case against each respondent was too tenuous to be left to the jury.

4. On count 3, conspiracy to defraud required an agreement dishonestly to deprive another of property or a proprietary right, or otherwise to employ unlawful means. Actual loss need not occur, but the unamended particulars defined and confined the alleged agreement. The prosecution had not appealed the refusal to amend them and could not advance a case based on fraudulent misrepresentation or non-disclosure.

5. The evidence disclosed an ordinary, professionally advised reward negotiation. The asserted threat that a painting might be sold was no more than a mere puff and could not found an agreement to defraud. The agreed variation identifying the account into which the reward would be paid was likewise incapable of supporting the count. Count 4 stood or fell with count 3 and therefore also disclosed no case to answer.

6. Under section 61(3) of the Criminal Justice Act 2003, the respondents on counts 1, 3 and 4 were acquitted.

• Court of Appeal (Criminal Division). The prosecution applications for leave to appeal the terminating rulings on counts 1, 3 and 4 were refused. The court ordered acquittals under section 61(3) of the Criminal Justice Act 2003.

• Bristol Crown Court. HHJ Lambert QC upheld submissions of no case to answer on counts 1, 3 and 4, and refused the prosecution's application to amend the particulars of count 3 save for immaterial changes.