R v Layden

Non-compliance with the arraignment requirements governing a retrial ordered by the Court of Appeal does not deprive the Crown Court of jurisdiction or make the retrial automatically invalid. Jurisdiction subsists unless the retrial order is set aside.

After a conviction, the Court of Appeal must ask whether a timely application for leave to arraign would have failed and the retrial order would have been set aside. The requirement that the prosecution act with all due expedition is purposive. Delay is material where it affects judicial control of the proceedings or the holding of the retrial as soon as reasonably practicable.

The respondent’s murder conviction was quashed in 2015 and the Court of Appeal ordered a retrial under section 7 of the Criminal Appeal Act 1968. A fresh indictment was preferred, but he was neither arraigned within the two months prescribed by section 8 nor arraigned later. No party applied to the Court of Appeal under section 8.

Following a retrial, the respondent was convicted of murder. The Criminal Cases Review Commission later referred the conviction after R v Llewellyn (Andrew) [2022] EWCA Crim 154. The Court of Appeal, applying that decision, quashed the conviction: [2023] EWCA Crim 1207; [2024] 3 All ER 689.

The prosecution appealed. The central issue was whether failure to comply with section 8(1) deprived the Crown Court of jurisdiction notwithstanding the subsisting retrial order under section 7(1).

1. Appeal allowed unanimously. Lord Hamblen, with whom Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Simler agreed, held that non-compliance with section 8(1) of the Criminal Appeal Act 1968 did not deprive the Crown Court of jurisdiction. R v Llewellyn (Andrew) [2022] EWCA Crim 154 was overruled. The respondent’s conviction was restored.

2. A retrial order under section 7 vests the Crown Court with the power and duty to conduct the retrial. Section 8 expressly identifies how that jurisdiction may cease: the Court of Appeal may set aside the retrial order and direct an acquittal under section 8(1B)(b). Clear language would be required to make jurisdiction cease automatically through procedural non-compliance. The statutory text contains no such language.

3. The mandatory language of section 8 requires its procedure to be followed, but does not determine the consequences of breach. Applying R v Soneji [2005] UKHL 49, the question was whether Parliament could fairly be taken to have intended total invalidity. The text, legislative history and statutory purposes showed that it could not. Automatic invalidity could defeat a fair and expeditious retrial, reward inaction or absconding, and release a properly convicted person on a technicality.

4. The statutory protections remain effective without automatic invalidity. A defendant may apply under section 8(1A) to set aside the retrial order. If a retrial proceeds to conviction, the defendant may appeal on the ground that a timely section 8 application would have led to refusal of leave and the setting aside of the retrial order. That hypothetical application should be assessed as if made immediately before the retrial, using the statutory criteria. A conviction following a retrial which should not have occurred is unsafe.

5. The requirement of “all due expedition” in section 8(1B)(b)(i) is purposive, not disciplinary. It asks whether a competent prosecutor, conscious of the need for judicial control and a retrial as soon as reasonably practicable, acted with due expedition. Prosecutorial delay which does not affect those objectives does not establish a lack of due expedition. Paragraph 5(3) of R v Pritchard (Craig) [2012] EWCA Crim 1285, which confined the inquiry to arraignment, was replaced accordingly.

6. Questions concerning bail, surrender to custody and ancillary matters were remitted to the Court of Appeal.

• United Kingdom Supreme Court: The prosecution’s appeal was allowed unanimously. The respondent’s conviction was restored, R v Llewellyn (Andrew) [2022] EWCA Crim 154 was overruled, and ancillary matters were remitted to the Court of Appeal.
• Court of Appeal (Criminal Division): The respondent’s conviction was quashed on 25 October 2023 because the court considered the Crown Court’s jurisdiction contingent upon compliance with section 8 of the Criminal Appeal Act 1968: [2023] EWCA Crim 1207 ; [2024] 3 All ER 689.
• Criminal Cases Review Commission: After an initial refusal, the Commission reconsidered the case following R v Llewellyn (Andrew) [2022] EWCA Crim 154 and referred the conviction to the Court of Appeal.
• Crown Court at Norwich: Following the quashing of an earlier conviction and an order for retrial, the respondent was convicted of murder on 17 May 2016. He had not been arraigned on the fresh indictment.