Al-Jaryan, R. v

Under Criminal Appeal Act 1968, section 8, leave to arraign a defendant for a retrial after the two-month limit may be granted only if the prosecution has acted with all due expedition and there remains good and sufficient cause for a retrial. The requirements are cumulative.

Due expedition means reasonable speed directed to securing arraignment. Although the Crown Court bears the primary duty to list the case, the parties must act proactively. A prosecution that allows a mandatory deadline to pass without checking that arraignment has been listed, or urgently seeking to remedy the omission, has not acted with all due expedition. The court must then refuse leave and direct an acquittal, without deciding the separate good-and-sufficient-cause requirement.

The defendant's conviction for possessing a prohibited firearm had previously been quashed by the Court of Appeal, which ordered a retrial. The new indictment was uploaded promptly, but the defendant was not re-arraigned within the two months specified by the court.

The Crown Prosecution Service and counsel mistakenly assumed that arraignment had been fixed for the final day before the deadline. No one checked the listing, alerted the Crown Court when the hearing did not occur, or took prompt steps after the deadline expired. The omission was discovered about nine months after the retrial order, during proceedings on unrelated new charges.

The prosecution sought leave to arraign out of time under section 8 of the Criminal Appeal Act 1968. The defendant sought to set aside the retrial order and obtain an acquittal. The central issue was whether the prosecution had acted with all due expedition.

1. The application for leave to arraign out of time was refused. The defendant's application succeeded. The court set aside its earlier retrial order and directed Isleworth Crown Court to enter a judgment and verdict of acquittal on count 2.

2. Section 8 of the Criminal Appeal Act 1968 imposes cumulative conditions. Leave may be granted only if the prosecution acted with all due expedition and there is good and sufficient cause for a retrial despite the delay. Adopting the summary in R v Pritchard [2012] EWCA Crim 1285, the court held that due expedition means reasonable speed directed to securing arraignment, not simply other trial preparation.

3. The Crown Court has the primary responsibility for ensuring arraignment within time, but both prosecution and defence must cooperate proactively. Here, the prosecution had promptly uploaded the indictment and initially sought a listing. That did not cure its later failure to check whether arraignment was actually listed, to notify the court of the imminent deadline, or to act when the deadline passed.

4. The COVID-19 pandemic explained the difficult operating conditions but did not make the complete loss of a mandatory deadline reasonably expeditious. The prosecution should have taken urgent and purposeful steps to secure a firm arraignment date well before 15 May 2020, and at the latest on that date. Its subsequent inaction showed no sufficient urgency.

5. As the due-expedition condition was not met, the court had no power to grant leave. It was unnecessary and academic to decide whether there was good and sufficient cause for a retrial. The court additionally gave prospective guidance that a Crown Court should fix a directions or pre-trial hearing within one month of a retrial order, with any arraignment date several days before the two-month deadline.

• Court of Appeal (Criminal Division): On 19 March 2020 the defendant's firearm conviction was quashed and a retrial was ordered. In the present judgment, the court set aside that retrial order because leave to arraign out of time was refused.

• Isleworth Crown Court: The defendant was not re-arraigned within the period required following the retrial order. The court was directed to enter a judgment and verdict of acquittal on the retrial count.