The prosecutor appealed against a stay of the prosecution as an abuse. The prosecution had failed give the undertaking necessary on lodging the appeal to the court against whose ruling it wanted to appeal, that it agreed that the defendant should be acquitted if leave to appeal was not obtained or the appeal was abandoned before being determined.
Held: The court sat as a five judge court to reconcile conflicting rulings in previous cases. A court would not have jurisdiction to hear the appeal. It was for the prosecutor to comply with the Act, not for the court to remedy the failure. The law was new and a major change in criminal law practice.
‘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.’
Lord Judge LCJ, Moses LJ, rafferty J, Wilkie J, Maddison J
[2010] EWCA Crim 711, [2010] WLR (D) 93, [2010] 4 All ER 545, [2010] 2 Cr App Rep 12, [2010] Crim LR 711, [2010] 1 WLR 2655
Bailii, WLRD
Criminal Justice Act 2003
England and Wales
Citing:
Cited – LSA, Regina v CACD 16-May-2008
(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no . .
Cited – Crown Prosecution Service v C, M and H CACD 11-Dec-2009
The CPS sought leave to appeal against a terminating ruling. It had failed to produce and serve evidence on the defendant even after an adjournment for the purpose. The judge directed an acquittal and refused an adjournment to allow the CPS to . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Clarke, Regina v CACD 9-Oct-2007
. .
Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Cited – T, Regina v CACD 23-Sep-2009
. .
Cited – AT and MT, Regina v CACD 12-Mar-2009
Application for leave to appeal. . .
Cited by:
Cited – Regina v F CACD 14-Mar-2013
The crown sought leave to appeal against a terminating ruling. The defendant was accused of rape and sexual assault against his sister, profoundly deaf and with learning difficulties. The judge had found the victim to not be competent to give . .
Cited – PY, Regina v CACD 22-Jan-2019
Police ‘lawful use’ of dog must be police work
The prosecutor wished to appeal from the acquittal of a police officer, whose police dog, while being exercised, attacked a runner causing injury. The judge had accepted the defence, since the dog required exercise, the officer was using the dog for . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 02 November 2021; Ref: scu.408576