ANDREW LLEWELYN v Regina

When the Court of Appeal orders a retrial under section 7 of the Criminal Appeal Act 1968, arraignment on the fresh indictment must occur within two months. After that period, only the Court of Appeal may grant leave, and only where the prosecution acted with all due expedition and there is good and sufficient cause for a retrial despite the delay.

These are substantive protections, not a waivable procedural formality. The Crown Court cannot cure material non-compliance by considering waiver, absence of prejudice or abuse of process. Material non-compliance removes its jurisdiction and renders the ensuing trial invalid. The position differs from an ordinary trial conducted without formal arraignment.

The appellant was initially convicted of causing grievous bodily harm with intent. His appeal succeeded, and the Court of Appeal ordered a retrial under section 7(1) of the Criminal Appeal Act 1968. The order required a fresh indictment and arraignment within two months under section 8(1).

The appellant was arraigned after that period without an application for leave to the Court of Appeal. The Crown Court rejected his application to quash the indictment, relying on waiver, absence of prejudice and authorities concerning defective or absent arraignment. He was convicted after retrial. The central issue was whether the late arraignment rendered the subsequent trial a nullity.

The court granted leave to appeal. It allowed the appeal, quashed the conviction and declined to order a retrial.

1. The power to order a retrial under section 7(1) of the Criminal Appeal Act 1968 involves balancing the public interest and the defendant’s legitimate interests. Section 8 is a bespoke protection intended to ensure that a retrial takes place swiftly. Its focus on arraignment returns the case to judicial control. The court adopted the approach described in R v Pritchard [2012] EWCA Crim 1285.
2. After the two-month period has expired, the trial cannot proceed unless the Court of Appeal grants leave. The statutory requirements are cumulative: the prosecution must have acted with all due expedition, and there must be good and sufficient cause for a retrial despite the lapse of time. The importance of that protection was illustrated by R v Muner Al-Jaryan [2020] EWCA Crim 1801.
3. The jurisdiction to decide those matters belongs exclusively to the Court of Appeal. The Crown Court cannot speculate about what the Court of Appeal would have decided, treat the requirement as waived, or validate the trial by finding no ordinary trial prejudice. The procedural-failure analysis discussed in R v Soneji [2006] 1 AC 340 and R v Ashton [2007] 1 WLR 181 did not permit this statutory scheme to be bypassed.
4. Abuse of process was not a substitute safeguard. Delay-based abuse ordinarily requires prejudice, while category-two abuse involves a balance of competing public interests. Those principles, discussed in Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, F(S) [2011] EWCA Crim 1844, D Ltd v A [2017] EWCA Crim 1172, Latif [1966] 1 All ER 353 and DPP v Humphrys [1977] AC 1, could not replace section 8 protection.
5. Parliament intended material non-compliance with section 8 in a retrial case to deprive the Crown Court of jurisdiction and produce total invalidity of the later proceedings. The ordinary rule concerning a trial without formal arraignment, stated in R v Williams (Roy) [1978] QB 373 and R v Johnson; R v Burton [2018] EWCA Crim 2485, did not apply because sections 7 and 8 create a distinct retrial regime.

• Court of Appeal (Criminal Division): [2022] EWCA Crim 154. Leave granted; appeal allowed; conviction quashed; no retrial ordered.
• Crown Court at Wolverhampton: The application to quash the indictment was refused on 27 February 2021. The appellant was subsequently convicted after retrial.
• Court of Appeal (Criminal Division): On 14 May 2020, the original convictions were quashed and a retrial was ordered under section 7 of the Criminal Appeal Act 1968.
• Crown Court at Shrewsbury: The appellant was initially convicted on 8 November 2019 and sentenced on 13 November 2019.