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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v R [2008] EWCA Crim 370 (29 February 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/370.html Cite as: [2008] EWCA Crim 370 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
HHJ Tanzer
T20060494/T20070024
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE COLLINS
and
MR JUSTICE MADDISON
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R |
Appellant |
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- and - |
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R |
Respondent |
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Christina Lambert & Matthew Barnes (instructed by Eastwoods Solicitors ) for the Respondent
Hearing date: Friday 22 February 2008
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Crown Copyright ©
Lord Justice Dyson giving the judgment of the court:
The relevant statutory provisions
"58 General right of appeal in respect of rulings
(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.
….
(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.
…
(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.
…
(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 start of the judge's summing-up to the jury.
…
62 Right of appeal in respect of evidentiary rulings
(1) The prosecution may, in accordance with this section and section 63, appeal in respect of—
(a) a single qualifying evidentiary ruling, or
(b) two or more qualifying evidentiary rulings.
(2) A "qualifying evidentiary ruling" is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.
…
(9) In this section—
"evidentiary ruling" means a ruling which relates to the admissibility or exclusion of any prosecution evidence,
…
(11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 58.
…
63 Condition that evidentiary ruling significantly weakens prosecution case
(1) Leave to appeal may not be given in relation to an appeal under section 62 unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled.
(2) In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution's case in relation to the offence or offences which are the subject of the appeal.
…
67 Reversal of rulings
The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—
(a) that the ruling was wrong in law,
(b) that the ruling involved an error of law or principle, or
(c) that the ruling was a ruling that it was not reasonable for the judge to have made."
"24.1 (1) Following…. (b) the committal for trial of any person… if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done so or the evidence is the subject of an application for leave to adduce such evidence in accordance with section 41 of the Youth Justice and Criminal Evidence Act 1999-
i) furnish the other party or parties and the court with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence and notify the expert of this disclosure, and
…
24.3. A party who seeks to adduce expert evidence in any proceedings and who fails to comply with rule 24.1 shall not adduce that evidence in those proceedings without the leave of the court."
The facts
"Now clearly 24.3 grants me a general discretion. That discretion is to be exercised having regard to not only the overriding objective, giving a balance between the parties so that criminal cases be dealt with justly, but also having regard to rule 1.2, which is the duties of the participants in a criminal case, which is to prepare and conduct the case in accordance with the overriding objective, and (b) comply with these rules, practice directions and directions made by the court. And, importantly, 1.3, that I must further the overriding objective, in particular when exercising any power due to it by legislation, including these rules, applying any practice direction or interpreting any rule or practice direction."
"In applying the provision, one of the overriding objectives is that cases be dealt with efficiently and expeditiously. I have, of course, to take into account the gravity of the offences alleged, the complexity, the consequences for the defendant, and the needs of other cases.
This case cannot be more grave for the defendant. If I grant leave, then in reality the defendant is looking at not having a trial until some time in the middle of next year, some two years and more after he was first questioned about part of the indictment. That, for a man whose whole life and professional career hangs in the balance, appears to me to be wholly undesirable. But it would be the only choice.
It would have a second implication, namely that having lived in the expectation of counsel, as I said, familiar with his case, conducting his defence, he would have to find new counsel. Again, of itself not determinative, but an indicator of the impact on the defendant of granting leave.
As far as the Crown is concerned, I have to ask myself whether it is right that a party who fails to comply with the rules should then be able to act to the detriment of the defendant, placing an argument as to the public interest as a reason. Now the public interest may well override any detriment. But here, it is not submitted that the Crown would not be able to continue its case in the absence of this evidence. It is not submitted that this would operate in any way as a terminating ruling. It is a request that I balance the competing interests of the parties.
In my judgment, this is a case where the history and, on its somewhat exceptional facts, the interests of the defendant to have his trial, and have his trial when he expects to, must take precedence over the Crown's interest in the late production and adducing of evidence. For those reasons, I decline to grant leave under rule 24.3. "
"5.1 This is a case where the Crown can be said to be entirely the author of its own misfortune as a result of failing to comply with the CPR and thereby precipitating the embarrassment of counsel which is a matter which could have been cured had the breach not occurred. The interests of the prosecution have to be balanced against those of the defendant within the context of the overriding objective.
5.2 Having reviewed the background, I can discern no reason to revise my views as to where the balance lies and in the circumstances decline to grant leave."
The jurisdiction issue
"It is accepted that no definition of a terminating (as opposed to evidentiary) ruling is supplied in the Act. However, it can not reasonably be argued that any ruling which might retrospectively be categorised by the Crown as a terminating ruling falls within the scope of section 58. It is submitted that, for a ruling to be a terminating ruling it must be one which, viewed objectively, is capable of being considered in good faith by a reasonable and fair-minded prosecutor as so damaging to the Crown's case that there remains no reasonable prospect of conviction."
"For s 58 the critical condition which must be met before any appeal can be launched is that contained in s 58(8). In effect the Crown is bound to accept, as the price of bringing an interlocutory appeal under s 58, the consequence that if it fails the Defendant must be acquitted (as well as the possibility that this Court may order such acquittal on the grounds that it is necessary in the interests of justice to do so). It is no doubt this s 58(8) condition which led to the use of the expression "terminating ruling" during the consultation process preceding this part of the Act and its passage through Parliament. It is no doubt true that the Crown will not ordinarily embark on an appeal against a ruling which requires the giving of the s 58(8) undertaking, unless the ruling, if effective, will bring the case to an end. But whilst the expression "terminating ruling" may have, and have had, its convenience as shorthand, its use is best avoided when considering how the Act must be construed, for it appears nowhere in the statute. For that reason, we do not think that it is helpful to try to answer the jurisdictional question by asking whether or not the ruling presently in question would bring the prosecution to an end. As a matter of law, it would not; in practice, unless the Crown altered its position, it would. It would not in law because the Crown could continue with the trial and seek to persuade the Judge that other evidence establishes a prima facie case against the Defendant Y. That in this case the Crown told the Judge that it did not feel able to argue that there is a prima facie case unless the hearsay evidence goes in does not alter that legal position. However, no doubt if that is the Crown's view the effect of the ruling, in practice if not in law, would be to bring the case to an end."
The reasonableness issue
Conclusion