R v AWY

For a prosecution appeal against a terminating Crown Court ruling under the Criminal Justice Act 2003, the acquittal undertaking required by section 58(8) and (9) must be given at or before the prosecution informs the court of its intention to appeal. A later undertaking cannot cure an earlier notice that omitted it. The requirement is strict. If it is not met, the Court of Appeal has no jurisdiction, whatever the merits of the ruling. The appeal proceedings do not alter the position in the Crown Court, and an undertaking given after the defective notice has no effect.

The prosecution sought leave under section 58 of the Criminal Justice Act 2003 to appeal against a ruling by the Crown Court at Inner London refusing to admit the complainant’s recorded interviews and witness statements as hearsay. The trial concerned serious sexual offences and other alleged offending. The prosecution argued that the complainant was in fear and that admission was in the interests of justice.

The Court of Appeal first considered whether the prosecution had complied with the statutory requirement to give the acquittal undertaking at or before notifying the Crown Court of its intention to appeal. The central issue was whether an oral notification followed by a later undertaking was sufficient to confer jurisdiction.

Application for leave refused for want of jurisdiction. The court did not determine the merits of the Crown Court’s hearsay ruling.

1. Statutory requirement. Section 58 of the Criminal Justice Act 2003 requires the prosecution to give the acquittal undertaking at or before informing the Crown Court of its intention to appeal. Compliance is a condition of the Court of Appeal’s jurisdiction. The court relied on the binding effect of R v PY [2019] EWCA Crim 17.
2. Strict timing. The court applied R v BJF [2024] EWCA Crim 1670, where notification of an intention to appeal before the undertaking was given did not satisfy section 58. A later communication could not regularise the defect. The same principle applied here. After the Crown Court judge had handed down his ruling, prosecuting counsel’s subsequent reference to giving notice, followed by discussion of expedition, showed that notice of an intention to appeal had been given. No acquittal undertaking was given at or before that time. The later letter and eventual undertaking were ineffective.
3. Consequences. The Court of Appeal therefore had no jurisdiction to entertain the proposed appeal. It did not evaluate the merits or express any view about the Crown Court judge’s finding concerning the complainant’s fear. Nothing done in the Court of Appeal affected the position in the Crown Court. The case returned there for any applications concerning the continuation of the outstanding counts and sentencing on the guilty pleas. A further hearing within 28 days before the acting resident judge was suggested.
4. Reporting restriction. The court assumed that section 71 of the Criminal Justice Act 2003 applied, but lifted the restriction to permit publication of the anonymised judgment. The separate anonymity protection under the Sexual Offences (Amendment) Act 1992 continued to apply.

1. Court of Appeal (Criminal Division): The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003. The application was refused because the statutory acquittal undertaking had not been given at or before notice of the intention to appeal. [2025] EWCA Crim 754.
2. Crown Court at Inner London: His Honour Judge Rudolph KC refused the prosecution’s application to admit the complainant’s recorded interviews and witness statements as hearsay.