No: 200803773 D5 
Neutral Citation Number: [2008] EWCA Crim 2186
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 2nd September 2008
 
B e f o r e:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE COULSON 
 
MR JUSTICE MADDISON 
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R E G I N A 

v 

A
 
Application by CPS under s.58 Criminal Justice Act 2003 
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Mr J Hulme appeared on behalf of the Applicant/Crown 
Mr P Brooks appeared on behalf of the Respondent/Defendant 
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J U D G M E N T 

1.	LORD JUSTICE SCOTT BAKER:  The prosecution seek leave to appeal against the terminating ruling of Mr Recorder Bartle QC in the Crown Court at Southwark on 2nd July of this year.  He concluded that there was no case for the respondent to answer on a charge of dishonestly handling nine mobile phones knowing them to have been stolen. 
2.	It is necessary for the prosecution to obtain leave to appeal against the terminating ruling before they can proceed with the substantive appeal.  That leave was not sought from the Recorder but is sought from us.  The legislation gives no indication as to the criteria that the court should take into account in deciding whether or not to grant leave in an individual case.
3.	It seems to us that in deciding whether to grant leave we should apply a broader interest of justice test than just to ask ourselves whether the prosecution appeal is arguable or has some prospect of success.  In reaching that conclusion, we have had very much in mind the provisions of section 61 of the Criminal Justice Act 2003.  They are as follows: 
"61.  Determination of appeal by Court of Appeal 
 (1) On an appeal under section 58 [which is what this would be] 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 [that is this case]. 
 (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." 
4.	In the present case there is no question of the proceedings being resumed.  The only options are (b) or (c), that is a fresh trial or a direction that the defendant be acquitted.  We should mention that subsection (4) covers the situation where this court reverses or varies the ruling of the judge.  The position is, therefore, that notwithstanding that this court came to the conclusion (if it did) that the trial judge was wrong and that there was a case to go to the jury, it would still be an option for this court to order that the appellant be acquitted.  Subsection (5) is important in this regard, because it provides:  
"But the Court of Appeal may not make an order under section (4)(a) or (b) in respect of an offence unless it considers it necessary in the interests of justice to do so." 
So the court may conclude that the judge was wrong and that it is not necessary in the interests of justice for there to be further proceedings.  In those circumstances, rather than matters being left in the air, the court has to order that the defendant is acquitted.  Then continuing with the provisions in the section: 
"(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) [and then these important words] (but subject to subsection (5))."
5.	It seems to us that it is important, in deciding whether or not to grant permission, to look ahead to see what the various options are for the court in the event that the appeal succeeds.  The critical point seems to us to be that were we to hear the prosecution appeal and allow it, it does not inevitably follow either that the trial indeed would be resumed (it cannot be now anyway) or that there should be a fresh trial.  Section 61(5) makes it plain that we can only order such a course if we consider it necessary in the interests of justice to do so.  
6.	A complication has arisen in the course of the hearing in that our attention has been drawn to procedural changes in the Criminal Justice and Immigration Act 2008 which came into effect on the 14th July of this year.  The particularly important change arises in section 44 of that Act which substitutes a new provision for subsection 61(5).  The new provision reads: 
"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)." 
So the position is that the court's discretion is significantly tightened.  No longer is the test whether a new trial is necessary in the interests of justice.  The test now is whether the court considers that the defendant could not receive a fair trial if an order for a further trial or continued trial was made.  
7.	That provision, however, does not bite directly on the facts of the present application because the critical date is whether the application was lodged before 14th July of this year.  That is to be found in paragraph 16 of the relevant schedule which is in the third supplement to the current edition of Archbold at P192.  So the position is that the original section 61(5) is applicable to any appeal in the present case for which permission to appeal is granted.  It is to be observed that that subsection requires it to be not just in the interests of justice to order a fresh trial, but that it should be necessary in the interests of justice to do so.  
8.	Thus far we have been looking ahead to what conceivably may happen.  The discretion that we have to exercise is the discretion whether or not to grant permission to appeal.  In our judgment, whether the law applicable under section 61(5) is the old version or the new version, Parliament has done nothing to limit the discretion that the court has in deciding whether to grant permission to appeal.  In our judgment, it is necessary to look rather more widely at the interests of justice than simply to ask ourselves the question whether an appeal has a realistic prospect of success, or some other test directed solely at the merits of the appeal.
9.	We make the following observations about the present case.  It is in our judgment, on any view, a borderline case whether there was evidence to go to the jury.  We have heard an outline from Mr Hulme in argument as to how he puts the case, and he is able to advance a powerful argument that the judge was wrong.  But nevertheless, whether the judge was right or wrong, this was not a strong case.  Secondly, the appellant is a man of good character.  Thirdly, the offence does not cross the custody threshold.  We do not think that there is any dispute about that.  Fourth, were there to be a further trial there would be an additional charge on public funds and the public would be paying for both sides of the case, both Crown and defence.  Fifth, a retrial would, in our judgment, be disproportionate to the gravity (or rather the lack of it) of the case.  Sixth, we do not wish to encourage appeals by the prosecution against terminating rulings in cases where there is little or no public interest in doing so.
10.	Without having heard full argument on the substantive appeal, we cannot of course say with certainty what the outcome would have been, but we are clear that it would not be in the interests of justice to allow the appeal to go forward in this case.  Accordingly, in our judgment, the Recorder's decision must stand and we order that the respondent be acquitted of the offence.  
11.	We should perhaps add for the avoidance of doubt that even if this were a case where the new substituted section 61(5) were in force, we would still have come to the same conclusion because, in our judgment, the court is given a sufficiently broad discretion to be able to take into account broader considerations of the interests of justice.  That will still be the position after 14th July and in our judgment it is appropriate for the court to do so in cases where it has to consider the granting of leave.
12.	MR BROOKS:  My Lord, the concern of myself and Mr Brooks is whether or not this court, having refused leave, has the power to order an acquittal.
13.	LORD JUSTICE SCOTT BAKER:  What else can we do? 
14.	MR BROOKS:  Since the Crown undertakes, when applying to the judge indicating that they are going to apply for leave, that we will offer no evidence if leave is refused ‑‑ 
15.	LORD JUSTICE SCOTT BAKER:  Is that a better way of doing it? 
16.	MR BROOKS:  It seems that it should return to the Crown Court.
17.	LORD JUSTICE SCOTT BAKER:  You undertake to take it back to the Crown Court and offer no evidence.
18.	MR HULME:  My Lord, I think that is right and I think it follows quite clearly from section 61(3).
19.	LORD JUSTICE SCOTT BAKER:  I am sure you are right.  I have been trying to keep all these various provisions in mind.  Yes.  We will agree to that on that basis.  Thank you both very much indeed.