Neutral Citation Number: [2009] EWCA Crim 2614
Case No: 200902945 B5
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HIS HONOUR JUDGE SHORROCK
T20097113, T20097121
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/12/2009
Before :

LORD JUSTICE RIX
MR JUSTICE TUGENDHAT
and
HIS HONOUR JUDGE PERT QC
- - - - - - - - - - - - - - - - - - - - -
Between :

	Crown Prosecution Service	Appellant	
	- and -		
	   C, M and H    	Respondents	
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A Jafferjee QC (instructed by Crown Prosecution Service) for the Appellant
Mr J Anders (instructed by JB Wheatley & Co Solicitors) for the Respondent C
Mr H Puri (instructed by MK Law Solicitors) for the Respondent M
Mr T Brown (instructed by Tuckers Solicitors) for the Respondent H

Hearing dates : 08th September 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Rix : 
1.	This is an application by the Crown Prosecution Service (“CPS”) for leave to appeal from a terminating ruling made at an adjourned plea and case management hearing. What happened was that when the CPS had failed to produce and serve on the defence important CCTV footage (of the incident in respect of which the defendants had been charged) during the time extended for that to be done, the judge demanded that the trial should begin there and then. In the circumstances counsel instructed by the CPS felt obliged to offer no evidence, and the judge thereupon directed an acquittal of the three defendants. Counsel had asked for an adjournment for him to have the opportunity to consider with the CPS the question of an appeal against a terminating ruling pursuant to section 58 of the Criminal Justice Act 2003 (the “2003 Act”). The judge refused any such adjournment. Later that day, after the defendants had been acquitted and their counsel had left the court at the completion of the hearing in their case, counsel for the CPS informed the court that the CPS did intend to appeal the judge’s ruling. However, CPS counsel at no time gave its agreement in terms of section 58(8) of the 2003 Act to the effect that the defendants should be acquitted if either leave to appeal to this court was not obtained, or the appeal was abandoned before it was determined here.

2.	The preliminary question which has arisen in these circumstances is whether there is jurisdiction for such an appeal within the terms of the statute. If there is, the next question would be whether the judge’s ruling was one that it was not reasonable for him to have made. For the limited purpose of arguing the question of jurisdiction, we have given the CPS leave to appeal, but at the hearing of this appeal dismissed such appeal for want of jurisdiction. These are our reasons for doing so. It may be that the theoretically purer answer would simply be to refuse leave to appeal.  

The Criminal Justice Act 2003

3.	The 2003 Act introduced the concept of a limited right of appeal for the prosecution in respect of what have come to be known as terminating rulings, although that term is not in fact found within the statute.

4.	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 judge starts his summing-up to the jury.

5.	Therefore, in broad outline, section 58 contemplates that where the prosecution wishes to appeal against a terminating ruling, it should do so “following the ruling”, or else within the time allowed to it by the trial court by way of adjournment. The process of appeal is initiated by the prosecution informing the trial court (a) that “it intends to appeal” (subsection (4)) and (b) “at or before that time” also that it agrees that the defendant should be acquitted if its appeal does not proceed (subsection (8)). These two requirements have the appearance of being conditions of the right of appeal, for subsection (4) is written in terms of “The prosecution may not appeal in respect of the ruling unless…”), and subsection (8) states that “The prosecution may not” exercise its right to inform the court it intends to appeal under subsection (4) “unless” it also by that time informs the court of its agreement that the defendant should be acquitted if its appeal does not proceed. (If the appeal is heard, then the court of appeal, where it confirms the ruling, must order that the defendant is acquitted of any relevant offence (section 61(3))). As long as the prosecution is in a position to initiate an appeal and as long as the appeal process has been initiated as contemplated by subsection (4), the ruling is to have no effect: see subsections (3), (10) and (11). Thus the clock is stopped to permit the right of appeal to be effective. 

6.	In the current case the judge refused an adjournment to consider whether to appeal. Subsection (5) says that a judge “may” grant such an adjournment. However, part 67 of the Criminal Procedure Rules 2005 (the “2005 Rules”) provides as follows:

“67.1–(1) This Part applies where a prosecutor wants to appeal under section 58(2) of the Criminal Justice Act 2003.

(2) A reference to an “appellant” in this Part is a reference to such a prosecutor. 

67.2–(1) An appellant must tell the Crown Court judge of any decision to appeal –
(a) immediately after the ruling against which the appellant wants to appeal; or
(b) on the expiry of the time to decide whether to appeal allowed under paragraph (2).

	(2) If an appellant wants time to decide whether to appeal –
(a) the appellant must ask the Crown Court judge immediately after the ruling; and
(b) the general rule is that the judge must not require the appellant to decide there and then but instead must allow until the next business day.”

7.	These provisions raise the following questions which have been debated before us: (i) How does the prosecution “inform” the court of its subsection (4) intention to appeal or its subsection (8) agreement? Does that have to be “in the face of the court”? How explicit does such information have to be, or can it be inherent in the situation at court? (ii) How quickly does the prosecution have to inform the court of its intention and/or agreement, in the absence of any adjournment allowed for that purpose? Does that have to be “immediately” or “there and then” following the ruling, or is there some room for flexibility? (iii) What is to happen if no adjournment is allowed by the judge, but counsel for the prosecution still needs time to obtain instructions from the Crown Prosecution Service (“CPS”) as to its intentions? (iv) In any event, is the provision by the prosecution to the court of the information required by subsections (4) and/or (8) a condition precedent to the right of appeal such that there is no jurisdiction to appeal in its absence? (v) What is the effect of the defendants’ acquittal in this case, or has the “clock been stopped”? 

The factual background

8.	The three defendants (here respondents) were charged with offences of wounding with intent (section 18) and affray. Initially M and H were charged on one indictment, and C on another: but the two indictments were joined and preferred on 27 May 2009.

9.	The charges arose out of an incident on 26 July 2008. The Crown’s case was that the three defendants embarked on a joint attack on the complainant, in which H had stabbed him in the neck with a knife, causing a 3-4cms wound. C and M were arrested at the scene. H was arrested on 8 October 2008, having been traced via DNA retrieved from blood found at the scene. 

10.	In interview, C and M each admitted presence but denied any involvement in the attack. H answered no comment to all questions. 

11.	The incident was variously captured on CCTV by three separate cameras. Apparently the clearest footage was on a local authority camera (exhibit MM/1), but there was also footage from another camera capturing the departure from the scene of one of the defendants (exhibit KB/1) and poor quality footage from a third camera capturing the incident from an oblique angle (exhibit AC/1). Although the prosecution case had been served on the defence in accordance with directions given at preliminary hearings in March 2009 (in the case of M and H) and April 2009 (in the case of C), and the served case included the interview transcripts and statements from the complainant, another eye witness and the arresting officers and also included the statements producing the CCTV exhibits, nevertheless copies of the footage itself were not served, as they had not yet been obtained by the CPS.

12.	On 12 May 2009 the case was listed for a plea and case management hearing (“PCMH”) before Mr Recorder Shorrock. The CCTV exhibits had still not been served. The defence for C indicated that he intended to make an application to dismiss the case against him on the basis that the footage would show that he was not a participant in the attack. 

13.	No arraignment took place on that occasion and the PCMH was adjourned to 27 May 2009 to allow the prosecution to serve copies of the CCTV exhibits on the defence. No directions were given as to a timetable for any application to dismiss on the part of C.

The 27 May 2009 hearing

14.	By 27 May 2009 the CCTV exhibits had still not been served, although a memorandum had been sent by the CPS to the police following the previous hearing requesting copies. That morning Crown counsel, Mr Kelleher, had received a file note informing him that it was to be hoped that copies of the CCTV footage would be available later that day. The author of that note was apparently en route to the hearing, but his whereabouts were unknown. Mr Kelleher was thus unable to give a good account of why the footage had not been served or of when it would be served.   

15.	The adjourned PCMH had been listed before HHJ Shorrock (as Mr Recorder Shorrock had become in the meantime) at 10.15. 

16.	Discussion turned immediately to the question of the CCTV footage and Mr Kelleher explained the current situation, accepting the judge’s comment that “This simply is not good enough”. 

17.	Counsel on behalf of C asked for the case against him to be dismissed. He said that he had already prepared an application which he was about to serve on the Crown for a dismissal on the facts. He explained that at C’s full interview the police officers “tended to agree to a large extent of how he described the event, they having seen the video, he having not seen the video”. 

18.	The judge then explored how he could bring about a situation where the prosecution would be brought to a halt. He contemplated staying the proceedings, but considered that to be unsatisfactory from the defendants’ point of view as the matter would still be hanging in the air. C’s counsel then suggested that the defendants be arraigned, and the Crown be invited to offer such evidence as they had or else verdicts of not guilty. Counsel for the other two defendants agreed. 

19.	A joined indictment was then preferred and signed and the defendants were arraigned. All entered not guilty pleas to both counts.

20.	The judge then addressed Mr Kelleher, saying “Where do we go from here?” Mr Kelleher submitted that the Crown was seeking to proceed, having served a case, apparent from the papers, against all three defendants. Although the CCTV footage was lacking, in a serious case, in which the complainant was stabbed in the neck, almost fatally, that fault could best be dealt with in costs. The judge, however, said that it was not right for the CPS to be able to assume that the seriousness of a case would lead to indulgence in their failure to comply with the court’s directions. “The answer this time is no”. And with that the judge called for a jury. 

21.	There was then the following exchange between Mr Kelleher and the judge:

“K. Your Honour, before you make that direction, may I invite the court to postpone this case for a short time –   

HHJ: No. Your application is refused.

K. – so that I can make some – 

HHJ. You want go ahead, we will go ahead. Can I have a jury, please?

K. May I make one further submission in that case, your Honour? It seems to me – and I have to say, I have not come prepared to respond to this particular outcome – that the effect of your Honour’s order, because, of course, your Honour, I do not have witnesses here to call – 

HHJ. Indeed not, no. You are going to have to offer no evidence and somebody is going to have to go and explain to the victim why this has happened.

K. Your Honour, I understand that. It occurs to me, therefore, that in effect, what your Honour’s order may be is effectively a terminating ruling against the Crown, for which we may have the right to appeal against. I think under the guidance, I am obliged to seek an adjournment, at least for a short time, to take instructions as to whether we would seek to appeal such a ruling. I can do that now or later in the day, but, your Honour, it seems to me that the effect of what your Honour is ordering is a terminating ruling or may well be argued as one in due course.

HHJ. Again, Mr Kelleher, I accept readily I am forcing your hand. I am going to ask for a jury to be brought into court and this trial will start as soon as it has been sworn in. You will then have to offer no evidence. If you want to go elsewhere and complain about what I have done, you are more than welcome to do so.

K. Very well.

HHJ. Do you want a jury?

K. Your Honour, there is no point because it is a matter of bringing twelve people in for me to say, “We are offering no evidence”. 

HHJ. Precisely so. 

K. I have no instructions to offer no evidence.

HHJ. No, indeed you do not.

K. It would be wrong for me to simply say we are offering no evidence. We do have evidence. If a jury were sworn and your Honour adjourned for the rest of the day, I would have witnesses here who would, no doubt, be summoned. I would call them and then we would have a case against all three defendants.

HHJ. Assuming I were to adjourn the case for the rest of the day, but I can tell you now, I am not prepared to.

K. Well, in that case, it is entirely a formality. I have no evidence if forced to call it now, plainly.

HHJ. Then I am forcing your hand. Jury, please.

K. Your Honour, it is a pointless exercise, with great respect, your Honour. If your Honour, in effect, means, I am forced to offer no evidence, then that is what I must do, but as your Honour knows, I have no instructions to do that.

HHJ. No, no. I quite appreciate that…I am trying to protect you…Then you can say, “I had no choice in the matter.”

K. Your Honour, there is a representative, fortunately, from the Crown Prosecution Service in court. He hears what is going on. I think in those circumstances there is really no point in having twelve people brought in for the sake of it for an outcome which is obvious, so, your Honour, I have to offer no evidence…

HHJ. ...In those circumstances, no evidence having been offered against each of the defendants on both of the counts on the indictment, I formally acquit each of the three of you in relation to these two counts. I order that verdicts of not guilty be entered on the file in relation to each of you. So far as this court is concerned with regard to this case, that is the end of the matter…Mr Kelleher…I repeat, I know it is not your fault…but this kind of thing has been happening far too frequently here. If it takes a serious case to make sure that the wheels start to turn properly and on time, well, it has at least served its purpose.”

22.	Thus the defendants were acquitted, by the direction of the judge, under section 17 of the Criminal Justice Act 1967. That provides:

“Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defender is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without any further steps being taken in the proceedings, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury or a court.”

23.	Those proceedings were concluded by 10.30 that morning. At 14.00 that afternoon, Mr Kelleher appeared again before the judge in a separate trial (in the absence of these defendants and their legal representatives, who it may be presumed had long departed the court) and took that opportunity to tell the judge that he was now 

“instructed to notify the court that the Crown will be seeking an appeal under section 58 of the Criminal Justice Act in relation to what will be submitted as a terminating ruling…I think there is a slight ambiguity in the rules as to whether the ruling having been made and the consequences that have flown from it having happened, whether we are still under a duty to notify your Honour. For the avoidance of doubt, I do so. We will obviously serve notice on all parties in due course.”

The submissions

24.	On behalf of the Crown, Mr Jafferjee QC primarily submitted that where an adjournment for the prosecution to consider whether to appeal had been refused, section 58(4) left open the time during which the court had to be informed of the prosecution’s intention to appeal. Thus section 58(4) only said that the prosecution may not appeal unless following the making of the ruling it either informed the court that it intended to appeal or requested an adjournment to consider whether to appeal. In the present case it had requested an adjournment, so that one of these alternative conditions had been met. Therefore there was no prohibition on the bringing of an appeal. 

25.	In any event, all that could be said was that such an intention had to be indicated “following the making of the ruling” (section 58(4)). There was no requirement in the statute that this intention had to be indicated immediately. Although Rule 67.2(1) of the 2005 Rules added the requirement of “immediately after the ruling”, the Rules could not insert an additional requirement into the statute, and in any event what such immediacy required must depend on the circumstances prevailing. On the facts, the court had been informed within a matter of hours. This was as fast as the circumstances permitted in a case where it was obvious that Mr Kelleher needed to seek instructions, the statute itself contemplated that an adjournment might be requested for just such a purpose, and the 2005 Rules provided that if an adjournment was requested the prosecution must not be required to decide on its course “there and then” but instead “must” be allowed until the next business day. That, moreover, was not a limit to the length of an adjournment that might be allowed: see R v. H [2008] EWCA Crim 483, where seven days was recognised as allowable. Nor was there any requirement that the information provided to the court had to be in the presence of the defendants. 

26.	As for the section 58(8) requirement that the court should be informed in addition of the prosecution’s agreement to an acquittal if its appeal did not proceed (referred to at our hearing as an “undertaking”, but more properly referred to as an “agreement”), it was acknowledged that no such agreement had been notified to the court at any time. Nevertheless, it was submitted first, that section 58(8) did not apply where the prosecution had been disabled from adopting the contemplated procedure by what had transpired in court, whereby the judge had already compelled the prosecution against its will to offer no evidence and thus to partake itself in the formal acquittal of the defendants; and secondly, that in any event the prosecution’s offering of no evidence amounted to what was purposively, if not formally, the equivalent of the statutory procedure.

27.	In any event, Mr Jafferjee submitted, the section 58(4) and (8) requirements were not conditions precedent (see R v. Soneji [2006] 1 AC 340). Section 58 should be construed purposively, and so construed the statute allows an appeal in such a striking case, where the judge, by acting so peremptorily and unreasonably, even to the extent of refusing any adjournment, had made the prosecution’s task impossible. 

28.	On behalf of the defendants, these submissions were opposed. Section 58 had to be construed as requiring a decision on an intention to appeal which, in the absence of any adjournment, had to be notified to the court then and there following the ruling, in the face of the court and in the presence of the defendants. The subsection (4) and (8) requirements could not be watered down. There was nothing to prevent the prosecution from complying with them. Counsel could always have informed the court of the prosecution’s intention to appeal, even if, when instructions had been obtained, the prosecution had not proceeded with such an appeal. The prosecution’s acknowledgment of an acquittal following on from the offering of no evidence did not amount to an agreement in terms of subsection (4). 

29.	In any event, the judge’s ruling was reasonable. It was a case management decision which was entirely within his discretion. Part 1 of the 2005 Rules emphasised the overriding objective that criminal cases be dealt with justly, which included dealing with them efficiently and expeditiously and with regard to the needs of other cases. Rule 3.5 of the same Rules emphasised the trial court’s powers and duties to manage cases actively, to fix, postpone, bring forward, extend or cancel a hearing; and Rule 3.6 recognised the need to reflect changing circumstances. It was impossible to say that no judge could reasonably have acted as Judge Shorrock had done. A sanction in costs was ineffective. It was acknowledged that the judge had disciplined the CPS to the extent of punishing it by making an example of this case, but that was the only adequate sanction. 

The jurisprudence on section 58

30.	We were helpfully supplied with a number of recent decisions of this court on the section 58 jurisdiction.

31.	In R v. Clarke [2007] EWCA Crim 2532, [2008] 1 Cr A Rep 33 the judge refused the prosecution’s request for an adjournment of the trial. The question was whether a ruling on an adjournment, something described as “pre-eminently a case management decision” (para 22) could amount to a “ruling” within section 58. This court, in the judgment of Sir Igor Judge, President of the Queen’s Bench Division, held that it was. As Sir Igor Judge said (at para 28):

“…and in this particular case its effect, unless successfully appealed would have been to require the prosecution to offer no further evidence, thus in effect terminating the trial.”   

32.	In R v. H [2008] EWCA Crim 483, this court, presided over by Sir Igor Judge, President, held in a judgment given by Davis J that an adjournment of seven days for the purposes of section 58(4) was permissible, and that the submission that such an adjournment must be limited to one business day because of Rule 67.2 of the 2005 Rules was wrong. The reasons given were that: first, section 58 itself imposed no set time limits; secondly, Rule 67.2(2)(b) itself spoke in terms of “the general rule” as one that did not require a decision there and then but allowed of adjournment; and thirdly, a purposive interpretation did not require a “next business day” adjournment rule to be both mandatory and exclusive (at paras 11/12). As Davis J said (at para 11) in this context –

“it is very difficult to see why the rules should mandate so rigid and inflexible approach as advanced…and there is good practical reason why it should not.”

33.	In H the Crown had informed the court of its intention to appeal within the time allowed by the seven day adjournment. Moreover, the adjournment had been requested and granted immediately after the judge had made her ruling (at para 5). No question there arose about the additional section 58(8) requirement. However, in the meantime, following the permission to adjourn the decision whether to appeal, the Crown “at the invitation of the judge, offered no evidence on any of the counts and verdicts of not guilty were duly entered” (at para 3). This differed from the present case, where the verdicts of not guilty were entered in advance of any adjournment and before the Crown had notified the judge that afternoon that it intended to appeal. 

34.	In R v. MT and MT [2009] EWCA Crim 668 the prosecution following the ruling had stated in no uncertain terms that it would not be appealing it. However, on the following day Crown counsel returned to court and stated that a decision had been taken after all to appeal the ruling. Hallett LJ, giving the judgment of this court, cited section 58(4) and stated that –

“prosecuting counsel must be alive to the fact that if a ruling is made they will either have to take an immediate decision or they will have to request an adjournment to consider whether to appeal.”
 
Therefore the prosecution’s application for leave to appeal was likely to “fail at the first hurdle”, and this was emphasised by the terms of Rule 67.2 with its repeated use of the word “immediately”. 

35.	Finally, R v. LSA [2009] EWCA Crim 1034 concerned a court martial prosecution brought under provisions of military law which mirror sections 58/61 of the 2003 Act (article 4 reproduces section 58). A question arose as to whether the more serious charge of dangerous driving could be brought together with a lesser charge of unfitness to drive. In that context there was a ruling that both charges had been brought on the same facts, and that therefore the unfitness to drive charge would have to be withdrawn (the “first ruling”). There was a direction to return a verdict of not guilty on the unfitness to drive charge. As Hughes LJ observed (at para 13): “That verdict was returned. The defendant stood acquitted.” Following a lunchtime adjournment, the defendant’s submission that in such circumstances the continued prosecution on the more serious charge was an abuse of process was accepted (the “second ruling”). The prosecutor asked for and obtained a short adjournment to consider appeal, and a short time later the prosecutor informed the court that he intended to appeal against both rulings. Nothing was said about the section 58(8) acquittal agreement. The next day, the prosecutor asked the judge advocate to grant leave to appeal, which he did. Neither the defendant nor her advisors knew anything of this exchange. A further five days later the Crown’s notice of appeal contained for the first time its agreement that the defendant should be acquitted of both charges if the appeal did not proceed. This court refused leave to appeal on jurisdictional grounds which are akin to those relied on by the defendants in the present case.

36.	Thus as to the first ruling, Hughes LJ said this: 

“The prosecutor could have given notice under Article 4 that he intended to appeal the first ruling, and if he had, that ruling would then have been of no effect pending appeal: see Article 4(10). However, he did not do so. Instead, the ruling was given effect by the directed acquittal of the defendant on the first charge of unfitness to drive. There is no power to appeal, under Article 4, following acquittal by the tribunal of fact. Nor would there be any such power to appeal under s 58 Criminal Justice Act 2003 following acquittal by a jury in the Crown Court. The prosecution has no appeal against acquittal; the only possible procedure open to it is a reference on a point of law by the Attorney-General under s 36 Criminal Justice Act 1972. That of course is a procedure which determines the law but does not affect the acquittal of the particular defendant. No such reference is before us. For these reasons, we cannot entertain the Crown’s appeal in respect of the first charge of unfitness to drive.” 

37.	As to the second ruling, Hughes LJ focussed on article 4(4) and 4(8), the equivalent provisions to section 58(4) and 58(8). Hughes LJ explained:

“23…Thus [article 4(4)] stipulates that the prosecution can only appeal if it tells the court it is going to do so, either immediately following the ruling or after time to reflect has been granted. But the Order (like the statute) goes on to impose a further condition on when the prosecutor can inform the court that it intends to appeal. The further condition is in Article 4(8)…

24. The transcript demonstrates that at no time on 13 December [the day of the rulings] did the prosecutor inform the court that he agreed that the defendant should be acquitted of either charge if the paragraph 9 conditions should be fulfilled…The article 4(8)/s 58(8) undertaking (or ‘acquittal agreement’: see R v. R [2008] EWCA Crim 370 at para 19) is crucial to this new right of appeal. It is that which determines whether there is a right of appeal or not…The criterion for the right to seek leave to appeal is the giving of the acquittal agreement as acceptance of the price of failure. In the present case the Crown did not accept this price of failure until service of the written notice of appeal…”

38.	Hughes LJ then considered the argument that the section 58(8) requirement was not, when unfulfilled, or fulfilled late, a bar to the appeal procedure. The court’s task was to ascertain from the terms of the legislation what Parliament intended to be the consequences of the statutory provisions not being complied with: see R v. Clarke & McDaid [2008] UKHL 8, [2008] 1 WLR 338. (The House of Lords there considered its own decision in R v. Soneji as well as earlier major decisions of this court such as R v. Sekhon [2002] EWCA Crim 2954, [2003] 1 WLR 1655.) In Clarke the House of Lords held that the absence of due signature of an indictment had invalidated the proceedings. 

39.	Hughes LJ concluded that the section 58(8) requirement was of a similar nature. He said –

“26…But whatever may be the precise Parliamentary history, 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 if 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…

27. As we have made clear, Article 4 of the Order is in terms materially identical to section 58 Criminal Justice Act 2003. Prosecutors who wish to launch appeals against rulings must give the article 4(8)/section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether 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.”

Discussion on jurisdiction

40.	In our judgment, the decision of this court in LSA makes this appeal an impossible one. It is accepted by Mr Jafferjee that no section 58(8) agreement or undertaking was notified to the court at any time. Hughes LJ’s reasoning deals expressly with Mr Jafferjee’s submission that Soneji can be relied on to the effect that the requirements of subsection (8) are not a mandatory requirement and that a right of appeal can still survive without its fulfilment. To the extent that he submits that Mr Kelleher’s bowing to the inevitability of an acquittal amounts to the giving of such an agreement or undertaking and to the court being informed of such, we are unable to agree with that submission. While Mr Kelleher was bowing to the inevitable, given the judge’s ruling and directions, he was indicating to the judge throughout his submissions not only that he had no authority to offer no evidence and considered that the Crown had evidence to offer to the jury, if only the Crown were given the time to put its tackle in order even later in the day, but also that he wished to consider whether the prosecution intended to appeal against the judge’s ruling as being in error. It seems to us that such an attitude cannot be regarded as the equivalent of the statutory information to be provided to the court pursuant to section 58(8). It was not so regarded in relation to the first ruling in LSA. We think that the way to look at the matter is as follows: 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. 

41.	For these reasons alone we consider that there is no jurisdiction for the Crown’s appeal in this case. We do not therefore have to rely on the fact that the defendants were also acquitted by the direction of the judge and thus with “the same effect as if the defendant had been tried and acquitted on the verdict of a jury” (section 17 of the Criminal Justice Act 1967). In that respect, it is possible that there may be some apparent inconsistency between H on the one hand and LSA on the other. It will be recalled that in H the defendant was acquitted after the Crown offered no evidence, but that did not prevent the Crown’s appeal going ahead and being successful, albeit this court concluded that it would not be in the interests of justice for the proceedings against H to be resumed. In LSA on the other hand, Hughes LJ said that there could be no appeal after an acquittal. We think that this apparent inconsistency may be no inconsistency in fact: in H the adjournment prior to the acquittal “stopped the clock”; but in LSA the acquittal preceded any subsequent attempt of the Crown to bring itself within article 4 (section 58) and thus the clock could not be stopped. On that basis, this case would appear to be within, or much closer to, the precedent of LSA. However, it is not necessary for us to resolve this question. 

42.	Similarly, it is not necessary for us to answer any of the other questions canvassed before us. What follows is therefore obiter. However, we would briefly observe that it was the view of this court in both AT and MT and LSA that the court had to be informed of the Crown’s intention to appeal “immediately” after the ruling, unless time is granted for that decision to be made, in which case the information has to be given to the court within the time allowed by way of adjournment. We think that this is not only borne out by the language of Part 67, with its “immediately” and “there and then”, but is inherent in the structure of section 58 itself. If the alternative is an adjournment, there is plainly not much room for delay in the absence of an adjournment. Even so, it may be that the concept of immediacy cannot be reduced to split-second timing: however, it is only for as long as “the prosecution is able to take any steps under subsection (4)” (see subsection (3)) that the clock is stopped: and there is plainly an argument that where something significant has first occurred, such as an acquittal, it becomes too late for the prosecution to inform the court of its intention to appeal or to seek an adjournment to prolong further the time for it to make its decision.

43.	As for Mr Jafferjee’s submission that section 58(4) does not bite at all where an adjournment has been requested and refused, a point not previously considered in the authorities shown to us, we consider that this cannot be right. It would leave time at large in the very situation where, because the court has refused an adjournment, it is indicating that time for a decision and its communication to the court is of the essence; and all against the background where, both for the reasons set out in AT and MT and LSA and because of the “stop the clock” provisions of section 58, there is clearly a need for promptness. 

44.	Similarly, there is no need for us to settle the question of what amounts to a sufficient information for the court, a matter left open by Hughes LJ in LSA. It is also unnecessary for us to determine whether the information must be provided “in open court” as Hughes LJ stated in LSA; or in the presence of the defendant or his legal representatives, as the defendants submitted. Plainly, if the decision to appeal is notified there and then, without any adjournment, it probably will be in court and in the presence of a defendant or his legal representatives: and this may well be what the statute contemplates as happening “following the ruling”. If, however, there is an adjournment, it is not clear that the information has to be given in open court and in the presence of a defendant or his representative: but even in such a case there will have to be sufficient clarity (such as might be provided by writing) to establish that the necessary requirements of subsections (4) and (8) have been complied with, and in time. 

45.	Finally, it is unnecessary for us to rule on Mr Jafferjee’s submission that Mr Kelleher was unable to inform the judge of the Crown’s intention to appeal without first obtaining instructions from the CPS. Of course, it would have been desirable for him to have been able to obtain such instructions before informing the judge of an intention to appeal. Section 58(4) itself, and Part 67 of the 2005 Rules, by providing for the obtaining of an adjournment for the express purpose of considering whether to appeal, supports the view that this is a matter which should be done after consideration and upon proper instructions. Nevertheless, if an adjournment cannot be obtained, any delay following the ruling may clearly be prejudicial, even fatal, to the Crown’s right of appeal. No rule of practice or professional etiquette has been cited to us by Mr Jafferjee to demonstrate that in the difficult circumstances which faced Mr Kelleher, admittedly none of his making and perhaps such as he could not even have anticipated, he did not have authority to protect the Crown’s interests by providing the court with the necessary information under section 58(4) and (8). When it came to deciding whether to offer no evidence, Mr Kelleher was able to take that decision while at the same time making it clear that it was done without instructions. We are inclined therefore to think that Mr Kelleher could have done the same with respect to the section 58 information: if in the event, the CPS did not wish to proceed with any appeal, no harm will have been caused and everyone’s interests, including those of the defendants who will have been protected by the section 58(8) agreement, will have been preserved. Even if we were wrong to think that Mr Kelleher could have properly proceeded in this way, we think that he must have been entitled to have informed the court of the Crown’s intention to appeal and of its agreement under subsections (4) and (8) in connection with the judge’s second ruling, whereby the judge refused even a limited adjournment (in conflict with Rule 67.2(2)(b)). That might possibly have been sufficient to preserve the Crown’s position, but we have heard no argument about that. 
46.	In sum, there is no jurisdiction for this appeal to enable the Crown to challenge the judge’s ruling. The defendants’ acquittals cannot be challenged.

Reasonableness of the ruling

47.	In the circumstances, we cannot rule upon the legitimacy of the judge’s ruling. What follows is therefore necessarily obiter. 

48.	Section 67 of the 2003 Act provides that this court may not reverse a ruling on appeal unless it is satisfied that the ruling was wrong in law, involved an error of law or principle, or was “a ruling that it was not reasonable for the judge to have made”. In dealing with a case management decision, the question for this court, had there been jurisdiction to hear the Crown’s appeal on its merits, would have been whether the judge’s ruling was unreasonable: see for instance R v. B & T [2009] EWCA Crim 99 at para 19. 

49.	Obiter as these remarks must be, we do not think it would be right to conclude this judgment without some comment on what has occurred. We have considered the submissions put forward as to why the judge’s ruling could be supported. In our judgment, however, it was an unreasonable decision, as was his refusal to allow any adjournment during which Mr Kelleher could seek instructions. 

50.	The extracts from the proceedings which we have quoted above make it plain that the judge was deliberately setting out to bring the proceedings to an end once and for all. He was not even prepared to contemplate such a stay as might enable the Crown to start up the proceedings again at some future date. We do not think that he intended to deprive the Crown of its right of appeal, indeed he appears to have contemplated a challenge to his decision by way of appeal, but his refusal of even the limited adjournment requested by Mr Kelleher was, in our view, quite unnecessary and, as now appears to be the case, prima facie contrary to Rule 67.2. This was a serious case, perhaps involving a near fatal injury as Mr Kelleher observed in his submissions to the judge, and we think that however exasperated the judge must have been by the conduct of the prosecution on this occasion, he ought to have seen his way to a more proportionate response, which would have done justice to both the defendants and the Crown. The public interest in the prosecution of serious violence is not to be lightly overlooked. And, as the judge himself observed, somebody would have to tell the complainant “why this has happened”. We do not think that the complainant will easily have understood why the judge suppressed the prosecution because of delay, however regrettable and avoidable, in serving the CCTV footage. 

51.	We do not overlook the inconvenience to the court, the negligence with which the court’s directions appear to have been treated, and above all the prejudicial delay to any trial of the defendants, and particularly the position of C, who wished to use the CCTV footage to exculpate himself. However, there were other sanctions which the judge could have deployed: he could have made a costs order, he could have asked for a senior representative of the CPS to attend court, he could have given a final warning, he could even have stayed the indictment; he could have deployed more than one of these remedies in tandem. As it was, an (adjourned) plea and case management hearing was suddenly transformed, apparently without prior warning, into a trial and without even a limited same day adjournment to enable the Crown to assemble its evidence. In our judgment this was an unreasonable ruling and should not have occurred.   

Conclusion

52.	However, in the circumstances there is no jurisdiction for this appeal, which cannot therefore be proceeded with. The defendants stand acquitted.