R v AYP

Under the Criminal Justice Act 2003, the prosecution may appeal a Crown Court ruling if it gives the statutory acquittal undertaking. “Ruling” has the wide meaning in section 74. It is unnecessary to ask whether the order is “terminatory”. An order that an indictment lie on the file can therefore be appealed.

Notice under section 58(4) and rule 38.2 is assessed in context. The prosecution must act immediately and must not temporise, but practical allowance may be made for the circumstances and complexity of the ruling. A trial judge may express strong views about public interest, custody and court resources, but cannot substitute them for the prosecuting authority’s decision. The lie-on-file power cannot be used to manage the court list.

The defendant was charged with possessing a bladed article in a public place. The Crown Court at Exeter ordered the indictment to lie on the file, without the prosecution’s consent, after the judge concluded that continuing the case would waste court time and that any sentence would not justify the defendant’s period in custody.

The prosecution applied under sections 57(4) and 58 of the Criminal Justice Act 2003 for leave to appeal. The issues were whether the order was appealable, whether the prosecution had complied with the statutory and procedural notice requirements, and whether the judge was entitled to impose the order despite the CPS decision to continue the prosecution.

Appeal allowed. The order that the indictment lie on the file was reversed, and the Crown Court proceedings were ordered to continue.

1. Appealability. Section 74 of the Criminal Justice Act 2003 defines “ruling” broadly. Section 58 is not confined to decisions that finally terminate a prosecution. The prosecution’s acquittal undertaking is the price of an interlocutory appeal, but any ruling within section 74 may be appealed where that undertaking is given. The court followed the reasoning in R v Y [2008] EWCA Crim 10 and treated “terminating ruling” as an unsafe statutory test. The observation in R v B [2009] EWCA Crim 99 also showed that even a case-management decision might fall within the shorthand.
2. Notice. Section 58(4) and rule 38.2 require immediate notice of an intention to appeal or an immediate request for an adjournment. “Immediate” is assessed in context. The authorities, including R v Mian [2012] EWCA Crim 792 and R v Quillan [2015] EWCA Crim 538, require prompt action but allow for the practicalities and complexity of the case. The prosecution’s notification, made about 45 minutes after the ruling in circumstances where counsel was not physically present and the judge had introduced an additional abuse-of-process issue, was immediate. This court therefore had jurisdiction.
3. Merits. The CPS has constitutional independence and responsibility for deciding whether a prosecution is in the public interest. A trial judge may express strong views, but may not impose his own prosecutorial decision. Custody concerns could be addressed by bail. Any abuse-of-process application would have to be considered at the appropriate later stage, and is an exceptional remedy. The court left open the boundaries of the power to order an indictment to lie on the file, including whether consent is necessary. The power cannot be used as a means of managing the court list.
4. Orders. The proceedings were to resume at a venue and before a judge determined by the Presiding Judges of the Western Circuit. The reporting restrictions under section 71 were disapplied for the appeal, subject to a continuing prohibition on identifying the defendant.

1. Court of Appeal (Criminal Division): The prosecution’s appeal was allowed. The order that the indictment lie on the file was reversed, and the proceedings were directed to resume at another venue before a different judge.
2. Crown Court at Exeter: On 19 January 2024, the Crown Court ordered the indictment to lie on the file and not to be proceeded with without leave.