10.5 Prosecution Appeals, Attorney General's References & the CCRC

10.5 Prosecution Appeals, Attorney General's References & the CCRC

The general rule that the prosecution cannot appeal an acquittal has been eroded by a series of targeted statutory exceptions. Each has its own trigger, time limit and consequence, and confusing them is the most common error in this area.

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1. Prosecution appeals against terminating rulings — s.58 CJA 2003

What it covers. A ruling by a Crown Court judge, at any time before the start of the judge's summing up, which effectively terminates the prosecution case — a ruling of no case to answer, a ruling excluding evidence without which the prosecution cannot proceed, or a stay for abuse of process.

The undertaking — the defining feature. The prosecution may appeal only if it agrees that, if leave to appeal is not obtained or the appeal is abandoned, the defendant shall be acquitted of the offence to which the ruling relates (s.58(8)). The prosecution cannot appeal and, having lost, simply carry on.

Procedure.

1. The prosecution must inform the court immediately that it intends to appeal, or ask for an adjournment to consider whether to do so; the adjournment must be until the next business day;
2. It must give the required undertaking;
3. Leave is required, from the judge or from the Court of Appeal;
4. The appeal may be expedited (in which case the trial is adjourned) or non-expedited (in which case the jury may be discharged);
5. On the appeal the Court of Appeal may confirm, reverse or vary the ruling, and may order that proceedings resume, that a fresh trial take place, or that the defendant be acquitted.

Evidentiary rulings. Section 62 CJA 2003, which would have allowed prosecution appeals against certain non-terminating evidentiary rulings, has never been brought into force.

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2. Attorney General's references

On a point of law after acquittal — s.36 CJA 1972

Where a defendant is acquitted on indictment, the Attorney General may refer to the Court of Appeal any point of law which arose in the case, for its opinion.

• The purpose is purely to clarify the law for the future;
• Section 36(7) is emphatic: the reference does not affect the acquittal in the case referred;
• The acquitted person is entitled to be represented (or to decline to take part) and is not named;
• The Court of Appeal may refer the point onwards to the Supreme Court.

Against an unduly lenient sentence — s.36 CJA 1988

The Attorney General may refer a sentence to the Court of Appeal on the ground that it is unduly lenient, so that the sentence may be reviewed.

The contrast to remember. Under the 1972 Act the acquittal is untouched; under the 1988 Act the sentence can be increased. Both are called "an Attorney General's Reference" and SBAs exploit that.

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3. The Criminal Cases Review Commission

The CCRC is an independent statutory body created by the Criminal Appeal Act 1995 to investigate suspected miscarriages of justice.

The power to refer — s.9 (Crown Court convictions) and s.11 (magistrates' court convictions). The CCRC may refer a conviction, verdict, finding or sentence to the appropriate appellate court — the Court of Appeal in Crown Court cases, the Crown Court in magistrates' court cases. A reference is treated as an appeal by the convicted person.

The test — s.13. A reference may not be made unless:

1. The Commission considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made;
2. That real possibility arises because of an argument or evidence not raised in the proceedings (or, on a sentence reference, an argument on a point of law or information not raised); and
3. An appeal has been determined, or leave to appeal has been refused.

Section 13(2) provides an escape: the Commission may nevertheless refer where there are exceptional circumstances which justify making it.

Powers. The CCRC can require a public body to produce documents and other material (s.17), can appoint an investigating officer, and can ask the Court of Appeal to investigate and report on any matter (s.15).

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4. Appeals to the Supreme Court

Either the prosecution or the defence may appeal from the Court of Appeal (Criminal Division) to the Supreme Court under ss.33–34 of the Criminal Appeal Act 1968. Two cumulative requirements:

1. The Court of Appeal must certify that a point of law of general public importance is involved in its decision; and
2. Leave must be granted, either by the Court of Appeal or by the Supreme Court.

The certificate is the gateway and only the Court of Appeal can give it — a refusal to certify cannot itself be appealed. The application for a certificate must be made within 28 days of the Court of Appeal's decision. The same route runs from a Divisional Court decision in a criminal cause or matter, under s.1 of the Administration of Justice Act 1960.

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Exam traps in this section

• A s.58 CJA 2003 appeal requires the acquittal undertaking — this is what distinguishes it from every other appeal.
• Section 62 CJA 2003 is not in force.
• A 1972 Act reference does not affect the acquittal; a 1988 Act ULS reference can increase the sentence.
• 28 days for a ULS reference, and it cannot be extended.
• The CCRC test is a real possibility the conviction would not be upheld, normally requiring new argument or evidence and exhausted appeal rights.
• The Supreme Court route needs a certificate from the Court of Appeal and leave.