R v Richard Wyn Lewis

Under section 58 of the Criminal Justice Act 2003, the prosecution’s notification of an intention to appeal a terminating ruling and its acquittal agreement are conditions precedent to jurisdiction. The statutory obligation is to inform the court. Written notification can suffice, although fairness generally requires the defence to receive the same information and notification in open court is best practice.

On a disclosure application based on an asserted police-informant status, the court should proceed on the assumption that the assertion is true but must identify relevance to an issue in the trial. Disclosure concerning the probative value of previous convictions is premature until any bad-character application has been determined.

The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003 against a terminating ruling made during the respondent’s retrial on fraud charges. The ruling followed an application under section 8 of the Criminal Procedure and Investigations Act 1996 for disclosure concerning the respondent’s asserted status as a police informant, police-supplied telephones, alleged police associations and previous convictions.

The application and ruling were dealt with in closed hearings. The prosecution lodged a written document notifying the Crown Court of its intention to appeal and agreeing to acquittal if the appeal did not proceed or failed, but did not immediately communicate the non-sensitive material to the defence. The central issues were whether the Court of Appeal had jurisdiction and whether the disclosure order was justified.

1. Jurisdiction. Leave to appeal was granted. The requirements in section 58 of the Criminal Justice Act 2003 were conditions precedent to jurisdiction. The prosecution had to inform the Crown Court of its intention to appeal and give the required acquittal agreement. The statutory language required communication to the court, not simultaneous communication to the defence. A written document could satisfy the requirements. The court adopted the reasoning in R v. PY [2019] EWCA Crim 17 and applied it to the circumstances of this case.
2. The requirement to act immediately had to be construed sensibly in light of the statutory purpose of preserving an effective appeal without unnecessary trial delay. Notification in open court was best practice, and parties should ordinarily be copied into communications. However, failure to communicate the non-sensitive material to the defence did not deprive the Court of Appeal of jurisdiction. It could cause unfairness and might justify relief on appeal, but jurisdiction depended on statutory construction.
3. Disclosure. The judge below should have considered the application on the assumption that the respondent’s assertion that he was a police informant was true. The application should have been dealt with in open court, subject to genuinely sensitive material, and refused because the requested material had no sufficiently identified relevance to the fraud counts. The bare assertion made to a witness did not provide meaningful evidence of the asserted status. The relevance of the cannabis grow and alleged police associations was also not established.
4. It was premature to order disclosure directed to the probative value of the respondent’s previous convictions before the prosecution’s bad-character application had been determined. If that application failed, the convictions would not be before the jury. Only if it succeeded would it be necessary to consider disclosure of the surrounding circumstances.
5. As additional guidance, if the respondent gave evidence about informant status and the prosecution elected not to challenge it because of the police confirm-or-deny policy, the judge could direct the jury to accept that evidence and then address its relevance. Applications of this kind, particularly those based on defence statements, should ordinarily be made well before trial.
6. The appeal was allowed and a fresh trial was ordered under section 61(4)(b) of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division). Granted leave, allowed the prosecution appeal and ordered a fresh trial under section 61(4)(b) of the Criminal Justice Act 2003.
• Crown Court at Mold. During the respondent’s retrial, the judge made a terminating ruling following a section 8 disclosure application. The prosecution sought leave to appeal.