Criminal Justice Act 2003, section 61

Determination of appeal by Court of Appeal

Part 9 Prosecution appeals

(1)On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

(2)Subsections (3) to (5) apply where the appeal relates to a single ruling.

(3)Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(4)Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a)order that proceedings for that offence may be resumed in the Crown Court,

(b)order that a fresh trial may take place in the Crown Court for that offence,

(c)order that the defendant in relation to that offence be acquitted of that offence.

[F115 (5)But the Court of Appeal may not make an order under subsection (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under subsection (4)(a) or (b).F115]

(6)Subsections (7) and (8) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.

(7)Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(8)Where the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal, make any of the orders mentioned in subsection (4)(a) to (c) (but subject to subsection (5)).

Definitions used in section 61 2

the court

(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.

Defined in Sch.22 para.11(2) · see it in the full Act
ruling

“ruling” includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement,

Defined in s.74(1) · see it in the full Act

Cases considering section 61 66

R v McCafferty and others

[2026] UKSC 20 · 14 July 2026

The power to order a fresh Crown Court trial after reversing or varying a ruling could not be used to facilitate an indictment amendment which the prosecution had never sought at trial (see paras [78]–[79]). Dismissal of the prosecution appeal and confirmation of the no-case ruling required an order acquitting the defendants (see para [77]).

R v LEJ

[2026] EWCA Crim 49 · 15 January 2026Limits

The court identified the power to confirm, reverse or vary the challenged ruling as the scope of its appellate jurisdiction. (see para [2]) The court noted that confirmation of the ruling would require an acquittal, but that consequence did not arise because the appeal was allowed. (see para [3]) After reversing the ruling, the court applied the statutory alternatives and ordered a fresh trial. (see paras [3]; [33]) The court treated the statutory exception to mandatory resumption or retrial as turning on whether a fair trial was possible. It found that the issues could fairly be assessed in a new trial. (see para [31])

R v ACR

[2025] EWCA Crim 1220 · 30 July 2025

The court applies section 61(4)(a) to direct that the Crown Court proceedings resume, in practical terms by commencing a new trial on count 1. (see para [33])

46 more judgments, and what each says about section 61, are in the case-law panel in the full Act.

Explanatory note

283.This section sets out the powers of the Court of Appeal when determining a prosecution appeal. This needs to be read in conjunction with section 67.

284.Subsection (1) authorises the Court of Appeal to confirm, reverse or vary a ruling appealed against. The section is drafted to ensure that, after the Court of Appeal has ordered one or other of these disposals, it must then always make it clear what is to happen next in the case.

285.When the Court of Appeal confirms a ruling, subsection (3) and (7) provide that it must then order the acquittal of the defendant(s) for the offence(s) which are the subject of the appeal.

286.When the Court of Appeal reverses or varies a ruling, subsections (4) and (8) provide that it must either order a resumption of the Crown Court proceedings or a fresh trial, or order the acquittal of the defendant(s) for the offence(s) under appeal. By virtue of subsections (5) and (8), the Court of Appeal will only order the resumption of the Crown Court proceedings or a fresh trial where it considers it necessary in the interests of justice to do so.

All the explanatory notes for the Act

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F115S. 61(5) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 44, 153 (with Sch. 27 para. 16); S.I. 2008/1586, art. 2(1), Sch. 1 para. 23

Commencement

  1. I41S. 61 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to art. 2(2), Sch. 2)