R v BJF

The prosecution’s statutory right to appeal a terminating ruling is conditional on strict compliance with the acquittal-guarantee requirement. The agreement that the defendant will be acquitted if leave is refused or the appeal is withdrawn must be communicated at or before the prosecution informs the court of its intention to appeal. Separate communications, even shortly apart and absent any intervening significant event, do not satisfy that requirement. The Court of Appeal may extend time for service of an appeal notice where the interests of justice require it, and the Crown Court may extend time for a case-management direction. However, failure to comply with the acquittal-guarantee requirement deprives the Court of Appeal of jurisdiction. The second limb of abuse of process is exceptional and requires prosecutorial misconduct of the requisite kind.

The prosecution sought leave to appeal against a Crown Court judge’s terminating ruling staying proceedings against BJF for abuse of process. The case arose after an aborted retrial on a charge of unlawful wounding. The judge had discharged the jury after prejudicial body-worn-camera footage was shown and then concluded that three matters, considered together, undermined the integrity of the criminal justice system, although a fair trial remained possible.

The prosecution requested time to decide whether to appeal. It sent an email stating that it would appeal, followed about 90 minutes later by a second email containing the acquittal guarantee required by section 58 of the Criminal Justice Act 2003. The appeal notice was also served one day late, after an initial attempt used a defunct email address. The issues were whether the Court had jurisdiction and, if so, whether leave should be granted.

1. Jurisdiction and time. The prosecution was entitled to seek an adjournment to consider an appeal, and section 58(4) of the Criminal Justice Act 2003 imposed no fixed limit on its length. The reference in CPR 38.2 to the next business day stated the general rule, not an inflexible limit. A longer period could be appropriate where the jury had been discharged. The Crown Court also had power to extend the period for a case-management direction, including after its expiry, under CPR 3.5(2)(g).
2. The one-day delay in serving the Appeal Notice did not deprive the Court of jurisdiction. The error arose from use of a defunct email address, was remedied within 24 hours, and the interests of justice required an extension under CPR 38.3(2).
3. Acquittal guarantee. Section 58(8) required the prosecution, at or before informing the court of its intention to appeal, to agree that the defendant would be acquitted if the appeal failed or was withdrawn, including where leave to appeal was not obtained. The first email objectively informed the court of an intention to appeal. It contained no acquittal agreement. The second email, sent about 90 minutes later, did not comply with the statutory requirement. The absence of a significant intervening event did not alter that conclusion.
4. The failure to comply with section 58(8) meant that the Court had no jurisdiction to hear the prosecution appeal, irrespective of the merits of the terminating ruling.
5. Obiter merits observations. The judge below had failed to recognise the exceptional nature of the second limb of abuse of process. The relevant authorities principally dated from 2010 onwards, and the conclusion that public perception of prosecutorial neutrality was lacking was unreasonable on the facts. Even if that perception had been justified, the required test would not have been met because there was no hint of the necessary prosecutorial misconduct.
6. Leave to appeal was refused.

• Court of Appeal (Criminal Division): The Court extended time for service of the Appeal Notice but held that non-compliance with the acquittal-guarantee requirement deprived it of jurisdiction. Leave to appeal was refused: [2024] EWCA Crim 1670.
• Crown Court: The judge stayed the proceedings on the basis that the prosecution’s conduct, viewed cumulatively, undermined the integrity of the criminal justice system, although a fair trial was possible.