1. LADY JUSTICE HALLETT: The prosecution in the case of "AT" and "MT" seek leave to appeal under section 58 of the Criminal Justice Act 2003.

2. AT and MT faced trial at the Crown Court in Leeds on an indictment containing three counts alleging cruelty to children. There were two complainants and a further child witness. The two complainants were "J" and "A", one an adopted child and one a foster child of the accused. During the course of her interviews, A also accused J of raping her. There was therefore an allegation by one complainant against another complainant.

3. Counsel for AT and MT both wished to explore in varying amounts of detail with a number of witnesses including J and A, the fact of the allegation of rape, the truth of the allegation, the fact of the decision not to prosecute J and the dates when the allegation was made and eventually the decision was taken not to pursue it. We have our doubts both as to the wide ambit of the defence request and the wisdom of the prosecution’s refusal to accept that any reference to the rape complaint was admissible. At trial they adopted the stance that the evidence was not, even in short form, admissible. The trial judge, His Honour Judge McCallum, was asked to rule, and on 29th January 2009 he ruled that the defence should be allowed to introduce, by way of cross-examination, evidence in relation to the rape complaint. We are told he also permitted the defence to explore not only the fact that the decision had been made by the Crown not to prosecute J but the reasoning behind it.

5. If that is so, we confess that we have our doubts certainly as to the second part of the ruling. However, in our judgment, it is not necessary to consider further the merits of the application because, following the ruling, the prosecution stated in no uncertain terms that it would not be appealing it. Miss Barlow, who appeared for the prosecution, requested time, which the judge granted, to discuss the effect of the ruling with the Crown Prosecution Service lawyer, but only to the extent that it involved any warning of J as to questions that might be put to him and to consider the need for any reporting restrictions. However, on 30th January 2009 Miss Barlow returned to court and stated that the decision had been taken to appeal the judge's decision. The leave of the trial judge was not sought and the application was not expedited. It is unfortunate that at this stage counsel did not get together to see whether or not there were parts of the evidence which the defence wished to have admitted which could be put before the jury by agreement, for example the fact, timing and circumstances of the rape complaint and the timing of the decision not to prosecute. Mrs Smales on behalf of her lay client had suggested a compromise along similar lines before the judge’s ruling.

6. However, that was not pursued. This application for leave to appeal was lodged despite the fact it must have been obvious it was likely to fail at the first hurdle. Section 58 states in relation to the right of appeal in respect of rulings at 58(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."

This means prosecuting counsel must be alive to the fact that if a ruling is made they will either have to take an immediate decision to appeal or they will have to request an adjournment to consider whether to appeal.

7. Should there be any doubt as to the obvious urgency of the situation part 67.4 of the Criminal Procedure Rules puts the matter beyond doubt. It reads:

"(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 time 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 him until the next business day."

The repeated use of the word "immediately" and the reference to "the next business day" in 2(b), in our judgment, do not allow for days of reflection as the effect of the ruling dawns on the prosecution. Thus, had the prosecution wished to appeal, either Miss Barlow should have informed the court that she intended to appeal immediately after the ruling was made or she should have requested an adjournment to consider whether to appeal. She could then have returned with her decision the next business day. Miss Barlow frankly conceded she did neither; indeed she went further, she informed the court that she did not intend to appeal. She conceded she failed to comply with the Act and the Rules in a fundamental way. She sought to argue that it was only when J refused to testify, if questioned about the alleged rape, the prosecution realised it could not proceed and, therefore, “time should not run” until the effect of the ruling became clear. For our part, we have a number of doubts about that line of argument including whether or not J’s apparent refusal to answer questions was the insurmountable obstacle to the prosecution’s proceeding that they suggest.

8. We do not intend to consider further whether the Act and the Rules allow for any flexibility in more meritorious cases than this (as Miss Barlow sought to persuade us) because in all the circumstances of this case, we have decided it would be wrong to entertain this appeal. There were a number of avenues the prosecution could and should have explored before resorting to these proceedings. The application for leave is refused.