Neutral Citation Number: [2010] EWCA Crim 711
Case No: 2009/04471/D5
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH 
HIS HONOUR JUDGE SHORRICK

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/03/2010
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE MOSES
MRS JUSTICE RAFFERTY
MR JUSTICE WILKIE
and
MR JUSTICE MADDISON

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Between :

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	NT		

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Mr Christopher Stimpson for the Prosecution
Mr Richard Crabtree for the Respondent

Hearing dates : 23rd March 2010
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Judgment

The Lord Chief Justice of England and Wales: 
1.	This is an appeal by the prosecution against the ruling by His Honour Judge Shorrock on 13 August 2009 at Woolwich Crown Court that the indictment should be stayed as an abuse of process.  The application for leave to appeal raised an issue relating to jurisdiction which required resolution by a 5 judge constitution.  For that reason, and that reason alone, leave to appeal was given.
2.	The respondent (or “the defendant” as it is convenient to describe him) faced a 9 count indictment of specimen historic indecent assaults covering the period between 1976 to 1985 when the complainant, the defendant’s step-daughter, was aged 8 to 16 years.  The defendant consistently denied the allegations.  
3.	On 13 August, before any evidence was called, it was submitted to Judge Shorrock that the case should be stopped as an abuse of process on delay grounds.  Having considered the submission, the judge directed himself to come to a decision “entirely on the basis of the consideration of whether I think a fair trial is possible”.  He examined the relevant material.  He concluded that the difficulties faced by the defendant could not be remedied through the trial process itself, and that a fair trial would not be possible.  Accordingly he stayed the indictment.
4.	Immediately his judgment was concluded counsel for the prosecution told the judge that he was instructed “to automatically, as it were, appeal”.  The judge recorded that in the context of what he described as the rules and regulations “about terminatory rulings”, this constituted formal notice.  The judge permitted the defendant to leave the dock, which he did.  
5.	On the following day counsel for the Crown addressed the judge in open court and reminded him that the Crown had indicated that his ruling would be appealed.  He continued, “if there was any ambiguity or indeed if I omitted to mention, obviously if that appeal fails as it were, as in no leave is granted, or the appeal is indeed abandoned,…obviously the defendant will be acquitted.”
6.	During the preparation of the papers in the office of the Registrar of Criminal Appeals, it became apparent that the prosecution appeared to have failed to have given the statutory undertaking required by section 58(8) of the Criminal Justice Act 2003 (the 2003 Act) at the time and on the occasion prescribed by statute.  The attention of the court and the parties was drawn to the decision of this court in R v LSA [2008] EWCA Crim 1034.  No further submissions were received from either side.  The case therefore was listed for hearing on 23rd September 2009.  At this hearing, with Dyson LJ presiding, the court expressed concern that neither counsel had sufficiently researched the jurisdiction point to the extent that it had sufficient confidence that it was seised of all the material relevant to the consideration and interpretation of section 58(8).  The hearing was therefore adjourned, and the parties directed to submit full skeleton arguments on the point, together with any additional authorities as well as any relevant commentary on the point.  
7.	In the meantime judgment was given on 11 December 2009, in a case raising similar questions, in CPS v C, M and H [2009] EWCA Crim 2614.  
8.	When the present case was listed on a second occasion, the court discerned a possible conflict of authorities on the section 58(8) issue.  Any such conflict should be resolved in a constitution presided over by the Lord Chief Justice.  Thereafter, the Registrar of Criminal Appeals decided that the case should be heard before a 5 Judge constitution.
9.	From this brief summary it is clear that immediately following the judge’s ruling, the prosecution informed the court that it intended to appeal.  It is also clear that it was not until afterwards (the next day) that the prosecution informed the court that if leave to appeal to the Court of Appeal was not obtained, or the prosecution abandoned the appeal before it was determined by the Court of Appeal, the defendant should be acquitted in accordance with the judge’s ruling.  The single question is whether this omission by the prosecution to inform the court of what has conveniently been described as the “acquittal agreement” deprived this court of jurisdiction to hear the appeal, or perhaps more accurately, whether its omission disentitled the prosecution from exercising the statutory power created by section 58 of the 2003 Act to appeal the ruling.
10.	Part 9 of the 2003 Act created a new power enabling the prosecution to appeal against the rulings made by a judge in the Crown Court in a trial on indictment.  Such rulings may be evidentiary rulings (ss 62-67) or, although not so defined in the legislation, conveniently described as terminating rulings (ss 58-61).  The ruling in the present case was a terminating ruling.  Therefore, subject to the possible exercise by the prosecution of the newly created power to appeal under section 58, the trial was at an end, and apart from the statutory amendments of the double jeopardy principle, or a successful appeal by the prosecution, the defendant ceased to be in jeopardy of conviction.     
11.	The 2003 Act provides as follows:

“58.–(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
 
(2) The prosecution may appeal in respect of the ruling in accordance with this section.
  
(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

(4) The prosecution may not appeal in respect of the ruling unless –
(a) following the making of the ruling, it –
(i) informs the court that it intends to appeal, or
(ii) requests an adjournment to consider whether to appeal, and
(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

(5) If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment…

(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9) Those conditions are –
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal.

(10) If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

(11) If and to the extent that a ruling has no effect in accordance with this section –
(a) any consequences of the ruling are also to have no effect,
(b) the judge may not take any steps in consequence of the ruling, and
(c) if he does so, any such steps are also to have no effect.

(12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence. 

(13) In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the time when the start of the judge’s summing-up to the jury.”

12.	It is a feature of this legislation that the court has no inherent jurisdiction to hear an appeal by the prosecution against a terminating ruling.  Jurisdiction does not arise unless the prosecution has complied with the pre-conditions which enable the appeal to be brought.  In effect section 58(8) requires the prosecution to undertake that if the conditions in sub-section (9) are fulfilled, the defendant will be acquitted. Notwithstanding that the prosecution failed to comply with the express requirements relating to the time when the court must be informed of the acquittal agreement as prescribed in section 58(8), Mr Stimpson argued that the prosecution was entitled to pursue the appeal.  He submitted that the omission to comply with section 58(8), in the context of a proper notification of the Crown’s intention to appeal under section 58(4), did not prohibit this court from determining an appeal against an unreasonable decision to stay proceedings in the Crown Court. He suggested that there could have been no ambiguity or associated uncertainty for the defendant about his prospects once the Crown had stated in open court, in his presence immediately after the ruling, that it intended to appeal.  The appropriate information was given on the following day, and if therefore the defendant had been subject to any possible prejudice from the omission it was cured within the shortest possible time.  Moreover if, instead of informing the court of its intention to appeal, the Crown had simply asked for a 24 hour adjournment to consider its position, and then returned on the following day to explain that it intended to appeal and that it would bind itself to an acquittal agreement, the prosecution would have been entitled to proceed.  As the order made by the judge was fatal to the Crown’s case, the declaration required by section 58(8) was, in the present context, nugatory.  The requirements in section 58(4) and 58(8) were directory, not mandatory.  Having complied with the requirements of section 58(4) the delayed compliance with section 58(8) did not prohibit the prosecution from proceeding with the appeal, or the court dealing with it.
13.	We have reflected on these submissions, acknowledging that there are many situations in which it is open to the court to extend or abridge time where the interests of justice so indicate.  However, within the present legislative structure, section 58(2) limits the entitlement of the prosecution to appeal a terminating ruling to the circumstances defined in the remainder of section 58.  Section 58(4) provides the first condition. Following the making of the ruling, the prosecution must inform the court of its intention to appeal, or request an adjournment.  Section 58(4) does not expressly require that this information should be made “immediately” after the questioned ruling.  That is a provision of rule 67(2) of the Criminal Procedure Rules. Although these provisions do not assist in the construction of the statute, they plainly represent a correct interpretation of legislation which requires either that the court should be informed of the intention to appeal, or, alternatively, that an adjournment should be requested for the question to be considered. Postponement of both these alternatives is not an option. In other words, unless the prosecution informs the court of its intention to appeal immediately following the making of the ruling, or immediately requests an adjournment to consider whether to appeal, this first pre-condition to an appeal is not fulfilled.  In this present case this first condition was properly observed.
14.	Section 58(8) provides a further pre-condition.  The prosecution is prohibited from informing the court of its intention to appeal (whether immediately following the making of the ruling, or after an adjournment for the purposes of considering whether to appeal) unless when it gives the court the information required by section 58(4) it indicates that it has agreed, or simultaneously,  agrees to the acquittal of the defendant if the subsection (9) conditions are fulfilled.  
15.	The potential significance of an acquittal agreement was explained by Rix LJ in his judgment in CPS v C, M and H [2009] EWCA Crim 2614 at para 40:
“…if a right of appeal is claimed, then the Crown would naturally seek to rely on the provisions of section 58(3), (10) and (11) to prevent its appeal being ineffective.  If an appeal is heard but dismissed, then it is for the court to acquit the defendant (section 61(3)).  That leaves, however, the situation where the position is first frozen by reason of the intimation of an intention to appeal, but the appeal is not or cannot then be proceeded with.  In that case, the Crown is put on terms that it will not seek to go behind the judge’s ruling, for instance by trying to argue that the ruling is not after all a terminating ruling.  Where an acquittal is potentially of no effect, the defendant does need the protection of the Crown’s section 58(8) agreement and its notification to the judge.”
16.	We should add that section 58(12) is an integral part of the process, whether in the end before the judge in the Crown Court or in this court.  Express provision is made for either court to order the acquittal of the defendant where either of the situations in sub-section (9) occurs.  The requirement to order the acquittal is treated by the statute as consequent on the acquittal agreement itself.
17.	For the purposes of this judgment we have considered the decisions of this court in R v Clarke [2008] 1 Cr AR 33; R v R [2008] EWCA 370; R v H [2008] EWCA Crim 483; R v MT and MT [2009] EWCA Crim 668; CPS v C,M and H[2009] EWCA Crim 2614; R v T [2009] EWCA Crim 1947; R v Soneji[2006] AC 240; R v Clarke and McDaid [2008] 1WLR 338; and R v LSA [2008] EWCA Crim 1034.  In the context of the principles which apply to section 58 of the 2003 Act we do not discern any relevant inconsistencies, and for the future, none of these decisions need to be referred to in the context of the legislation relating to acquittal agreements.
18.	The reasoning in R v LSA, a Court Martial case, brought under the provisions of military law which are identical to ss 58-61 of the 2003 Act is compelling.  Omitting the references relevant to military law, Hughes LJ observed:
“…we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with s 58 of the Criminal Justice Act 2003, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms. It may be that the new right could have been as effectively controlled if the statute and order had provided that whether or not an undertaking in the terms of article 4(8) was given in open court, any appeal was to be on terms that if leave were refused, or the appeal abandoned, or it failed in due course, acquittal should follow. Or it may be that alternative form of control would not be so effective. What is clear is that alternative form of control is not what has been enacted. The words 'may not….unless, at or before that time' must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution "may not" inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset. Nor can we see any proper basis of construction under which what is in section 58(8) … can be read differently according to whether the ruling under challenge is ipso facto fatal to the prosecution or one in relation to which the Crown chooses to give the acquittal agreement. There would, moreover, be considerable scope for argument about which category some rulings fall into. On these grounds alone, we are unable to see that we have any jurisdiction to hear the appeal against either ruling. 
Prosecutors who wish to launch appeals against rulings must give the article …section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.”
19.	 We respectfully endorse this analysis.  The requirement that the statutory undertaking in relation to the acquittal agreement should be given, and the latest time for giving it, are pre-conditions to this particular appeal process.  Unless these mandatory pre-conditions are established, the court is unable to vest itself with a jurisdiction which it does not have, or permit the prosecution to exercise a power which it has failed to exercise in accordance with the statutory provisions.  In summary therefore, the conclusion we have reached on the basis of the structure of the statute is that the failure by the prosecution to comply with the statutory requirement laid down by section 58(8) leads to the inevitable conclusion that it was deprived of or deprived itself of the power to appeal this terminating ruling.
20.	This appeal must be dismissed.  In dismissing the appeal we are following a consistent line of authority.  The responsibilities of the prosecution, and the limitations on the right to exercise the power to appeal, have been described and clarified more than once.  This court cannot cure nor ignore non compliance by the prosecution with the pre-conditions in section 58(4) and 58(8).  The prosecution itself must ensure compliance.
21.	We do not propose to make any observations at all on the decision that the case should have been stopped as an abuse of process.  Its merits or otherwise do not now arise for consideration.