R v AMF & Anor

Prosecution appeals against terminating rulings under section 58 of the Criminal Justice Act 2003 require expedition. The short time limit for serving an Appeal Notice reflects the incursion into the finality of Crown Court proceedings. The court will require a reasonable and satisfactory explanation for delay; absence of prejudice or the general objective of convicting the guilty does not, by itself, justify an extension. The court should also consider whether the proposed counts could result in lawful convictions. Where the evidence cannot establish an essential statutory age requirement, the no-case submission is unanswerable. A trial judge must not usurp the jury’s fact-finding function, particularly in historical sexual-abuse cases, but an appeal may nevertheless fail for procedural default. On refusal to extend time, the respondents may be acquitted under section 61(7) of the 2003 Act.

AMF and AZJ were tried in the Crown Court on historical sexual-offence charges. During the trial, the judge ruled that there was insufficient evidence for counts 20 to 23, concerning alleged abuse of VV. The prosecution informed the court that it intended to appeal under section 58 of the Criminal Justice Act 2003, but the jury was discharged and the Appeal Notice was served eight business days late.

The prosecution applied for an extension of time and leave to appeal. The proposed appeal challenged the judge’s assessment of witness credibility and his treatment of the circumstances of historical sexual-abuse allegations. The central issues were whether the delay was satisfactorily explained and whether the proposed appeal should proceed despite the absence of demonstrated prejudice.

1. Application refused. The prosecution had to serve its Appeal Notice within five business days under Criminal Procedure Rule 38.3(2)(b). The Notice was served eight business days late. The explanation, said to be a misunderstanding between counsel and the Crown Prosecution Service about who was to serve it, was unsatisfactory and did not explain the delay.
2. The time limit serves the need for expedition. A prosecution appeal against a trial judge’s terminating ruling is an incursion into the finality of Crown Court proceedings. The absence of prejudice, and reliance on the overriding objective or the desirability of convicting the guilty, did not justify an extension. The court followed R v H [2008] EWCA Crim 483 at [12], which required real justification for extending time and recognised that expedition is requisite.
3. The court also noted that counts 21 and 23 could not lawfully result in convictions. The relevant law required the child to be under 14, and the prosecution accepted that the evidence did not show that VV was under 14 when the alleged offences occurred.
4. Although the court dealt only briefly with the proposed appeal’s merits, it considered that, if VV’s evidence had stood alone, the indecent-assault counts would have been left to the jury. The evidence of C raised substantial credibility issues, but the prosecution’s submission that the jury could rationally reject C’s evidence was a matter for the jury. Trial judges should not usurp the jury’s function, particularly in historical sexual-abuse cases.
5. Because time was not extended, leave to appeal was refused. Under section 61(7) of the Criminal Justice Act 2003, AMF and AZJ were acquitted on counts 20 to 23. The jury’s discharge required a fresh trial on counts 1 to 19 against AMF, at a venue to be determined by the relevant Presiding Judge.

• Court of Appeal (Criminal Division): On an application under section 58 of the Criminal Justice Act 2003, the court refused an extension of time for service of the Appeal Notice and refused leave to appeal the Crown Court’s terminating ruling. It ordered acquittals on counts 20 to 23 under section 61(7) of the 2003 Act and stated that counts 1 to 19 would require a fresh trial.