T, R. v

LORD JUSTICE DYSON: This is an application by the Crown for leave to appeal against the ruling by HHJ Shorrock at Woolwich Crown Court on 13 August 2009, whereby he stayed an indictment on the grounds that it would be an abuse of process for the court to continue with the trial, because the defendant would be denied a fair trial by reason of delay.

The defendant faced a nine count indictment of specimen indecent assaults covering the period 1976 to 1985, a period during which the complainant, the defendant's step-daughter, SB, was aged 8 to 16. A preliminary point has arisen in this way: the judge ruled on 13 August that the proceedings should be stayed, as we have indicated. Immediately following the ruling Mr Stimpson, who appeared for the Crown then as today, informed the court that the Crown intended to appeal. That information was given pursuant to section 58(4) of the Criminal Justice Act 2003.

He did not at, or before, that time inform the court that the Crown agreed that if the appeal were to be unsuccessful, then the defendant should be acquitted of all nine counts. The requirement to give such information to the court arises under section 58(8) of the 2003 Act. Alive to the fact that he had failed to provide that information on 13 August, Mr Stimpson did provide it on 14 August.

The question whether the failure to provide that information at or before the time when the Crown informed the court that it intended to appeal was fatal to any appeal, was not raised by the defence in this appeal. The point first surfaced, it seems, about a week ago when somebody in the Criminal Appeal Office drew the attention of the parties to the decision of this court in the case of LSA [2008] EWCA Crim 1034. Section 58(4) provides:

Unfortunately neither counsel has researched this point to an extent which gives this court confidence that it is seized of all the material that is relevant to the interpretation of subsection (8). The only authority to which our attention has been drawn is that of LSA, to which we have referred. There are passages in that decision which strongly support the submission that is now made by Mr Crabtree, that this court has no jurisdiction to entertain this appeal because of the failure on the part of the Crown to comply with section 58(8). The relevant paragraphs in the judgment of the court given by Hughes LJ are paragraphs 26 and 27. It seems to us that those two paragraphs provide strong support for the conclusion that the court has no jurisdiction to hear this appeal.

Mr Stimpson has sought to circumvent the difficulty by saying that it is clear that Parliament intended that all that would be required was that the Crown should notify the court of its intention to appeal. The consequences of an unsuccessful appeal would be, in a case such as this, he submits, plain and obvious to any defendant. As we understand it, Mr Stimpson submits that it is sufficient for the Crown to show that it was clear on 13 August that the Crown intended to appeal.

It seems to us that that is a submission which it is very difficult to accept. On the plain language of section 58(8) it would seem to be unsustainable. That would also appear to be the conclusion expressed in the LSA case.

We are concerned, however, that we have not had proper argument on the point and it has not been researched by counsel at all. At least one member of the court thinks that there may be commentary on LSA and/or other authorities; and there may be scope for some argument as to what is meant by "at that time" in section 58(8). On the material that has been presented before us, we would have no hesitation in concluding that this appeal fails at the first hurdle because there is no jurisdiction to hear it.

The proper interpretation of section 58(8) and its relationship with section 58(4) is a matter of some importance. If, as may be the case, there have been authorities subsequent to LSA, which amplify or gloss what was said by this court in that decision, then we would have wanted to have the benefit of those authorities and full and proper argument on them. Because of the importance of this point, and our concern that we have not been provided with proper legal argument on it, and the possibility that there are further authorities, we have come to the conclusion that it would not be right for us to reach a final conclusion today.

We accordingly propose to adjourn this application. We direct that full skeleton arguments be lodged by both parties on this point. We should have said that the point has not been the subject of any written submissions thus far. We direct that both parties submit full skeleton arguments with any additional authorities and any academic comment on section 58(8). We direct that those skeleton arguments be lodged within 28 days. The matter should be adjourned to a date to be fixed. It need not come back to this constitution. It will be very difficult to arrange a date which is convenient to this constitution.