Criminal Justice Act 2003, section 62

Right of appeal in respect of evidentiary rulings

Part 9 Prosecution appeals

(1)The prosecution may, in accordance with this section and section 63, appeal in respect of—

(a)a single qualifying evidentiary ruling, or

(b)two or more qualifying evidentiary rulings.

(2) A “qualifying evidentiary ruling” is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.

(3)The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(4)The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(5)If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—

(a)of its intention to do so, and

(b)of the ruling or rulings to which the appeal relates.

(6)In respect of the ruling, or each ruling, to which the appeal relates—

(a)the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and

(b)any other offence to which the ruling relates may, but need not, be the subject of the appeal.

(7)The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.

(8)For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—

(a)evidence begins to be adduced by or on behalf of a defendant,

(b)it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,

(c)a defendant’s case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).

(9)In this section—

  • “evidentiary ruling” means a ruling which relates to the admissibility or exclusion of any prosecution evidence,

  • “qualifying offence” means an offence described in Part 1 of Schedule 4.

(10)The Secretary of State may by order amend that Part by doing any one or more of the following—

(a)adding a description of offence,

(b)removing a description of offence for the time being included,

(c)modifying a description of offence for the time being included.

(11)Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 58.

Definitions used in section 62 3

qualifying evidentiary ruling

“qualifying evidentiary ruling” is to be construed in accordance with section 62(2),

Defined in s.74(1) · 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
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

Cases considering section 62 6

Y, R v

[2008] EWCA Crim 10 · 25 January 2008Interprets

Section 62 creates a distinct, broader interlocutory appeal route for qualifying evidentiary rulings. Its existence did not exclude a concurrent section 58 appeal, although the section 62 route had not been brought into force (see paras [17]-[18]; [22]-[23]). The express preservation of a section 58 appeal from an evidentiary ruling was a powerful aid to the construction of section 58, notwithstanding that section 62 was not in force (see paras [22]-[23]). The ruling excluding Crown hearsay was an evidentiary ruling because it concerned admissibility of prosecution evidence. That classification did not prevent it also falling within section 58 (see para [22]).

Ikram, R v

[2018] EWCA Crim 440 · 14 March 2018Defines

The court explained that the expression terminating ruling is convenient shorthand and differs from an evidentiary ruling as defined by this provision (see para [42]).

O, J and S, R v

[2008] EWCA Crim 463 · 6 March 2008Defines

The court used this subsection’s definition of an evidentiary ruling to distinguish the special evidentiary-appeal regime from the wider jurisdiction for terminating rulings (see para [24]).

What each judgment says about section 62 is in the case-law panel in the full Act.

Explanatory note

287.This section provides that the prosecution may appeal either a single or two or more qualifying evidentiary rulings. Like the right of appeal in section 58 this right of appeal will only be available to the prosecution.

288.Subsection (2) defines a qualifying evidentiary ruling as one made by a judge in relation to a trial on indictment at any time before the opening of the case of the defence (defined in subsection (8)).

289.Subsections (3) and (4) limit the right of appeal to a qualifying ruling or rulings that relate to qualifying offences, regardless of whether the ruling also relates to other (non-qualifying) offences.

290.Subsections (5), (6) and (7) set out the procedure that must be followed when the prosecution is seeking to appeal against a single or two or more qualifying evidentiary rulings.

291.Before the opening of the case for the defence, the prosecution must inform the court that it intends to appeal and give details of the ruling or rulings and the offences, including the qualifying offences to which the appeal relates.

292.Subsection (9) makes clear that the term “evidentiary ruling” includes rulings that relate both to the admissibility and the exclusion of any prosecution evidence. It also defines a qualifying offence as one listed in Schedule 4.

All the explanatory notes for the Act