R v AWY

This is an application by the prosecution for leave to appeal against an evidential ruling made in the Crown Court. It is an appeal under section 58 of the Criminal Justice Act 2003, which may be advanced where such a ruling is treated as a terminating ruling, which is the effect of the acquittal undertaking or guarantee which is required as a condition for such an appeal being advanced.

Before moving to deal with the issue which this judgment concerns, it is right to record two things. First, the provisions of section 71 of the Criminal Justice Act 2003 apply to these proceedings. No publication may include a report of these proceedings, save for specified basic facts, until the conclusion of the trial, unless the court orders that the provisions are not to apply. We will, I hope, hear some further brief submissions when we have finished giving this judgment as to what, if anything, we should do in relation to section 71.

It is also right to record that, in any event, whatever happens in relation to section 71, the complainant in this case alleges that she has been the victim of a series of sexual offences. The Sexual Offences (Amendment) Act 1992 therefore applies in this case. Under those provisions, no matter relating to her during her lifetime may be included in any publication if it is likely to lead members of the public to identify her as the victim of any of these offences. This prohibition will apply unless waived or lifted in accordance with the Act, and there is no reason at all to suppose that it ever will be.

This application comes before the court today to be determined on its merits, if leave is granted and if the court concludes that it has jurisdiction to hear it. Before advancing on the merits, however, we have, with the assistance of counsel, identified an issue which needs to be resolved in order to determine whether the court has jurisdiction to proceed any further under section 58 of the 2003 Act. If the court does not have jurisdiction, it is both otiose and also undesirable for the court to engage in any evaluation of a ruling which has been given in the Crown Court by a judge who undoubtedly had jurisdiction to make it. If we cannot entertain an appeal against it, it will stand, and it would not be helpful for us to analyse it in order to indicate what would have happened if the appeal had proceeded to a determination. We have not heard the argument in relation to the merits and should not be understood to be expressing any views in this judgment about them.

We will record here a short account of what has happened in this case in order to make our decision intelligible. The respondent, anonymised in these proceedings as AWY, is charged on an indictment containing 12 counts. Some of those counts allege serious sexual offences against the complainant, and one count alleges false imprisonment of her.

The indictment also contains other counts of coercive and controlling behaviour and offences of violence in the context of a lengthy relationship which existed between these two people.

Originally, the respondent pleaded not guilty to all 12 counts. Because of the nature of the allegations, an arrangement was made for the complainant to attend court to be cross-examined under section 28 of the Youth Justice and Criminal Evidence Act 1999. That attempted cross-examination occurred as long ago as 24 November 2023. Unhappily, there was some difficulty with the recording equipment and the court ran out of time in order to conclude that hearing. It appears that in those circumstances the complainant agreed that she would give her evidence at the trial.

Nearly a year later, the respondent was re-arraigned in relation to some counts on this indictment and entered guilty pleas to them. He pleaded guilty to count 1, coercive and controlling behaviour; to count 6, disclosing or threatening to disclose private sexual photographs and films with intent to cause distress; count 7, assault occasioning actual bodily harm; and counts 9 and 10, being offences of theft and fraud, relating to his use of the complainant's credit card. He did not plead guilty to the offences alleged in counts 2, 3, 4, 5, 8, 11 and 12. These were extremely serious allegations of very serious sexual offences by him against the complainant, together with, as we have said, one allegation of false imprisonment of her, which was also, on the basis of the allegation as advanced, a very serious offence.

The trial of those counts which the respondent continued to deny began on 4 September 2024. The jury was empanelled and heard the complainant's Achieving Best Evidence interviews and such meaningful evidence as had been recorded in the aborted section 28 hearing. She then gave evidence live in court behind a screen. She became distressed. The trial judge adjourned the trial to the following day so that she could continue to be cross-examined on the live link. On that day a withdrawal statement was produced and the jury was discharged.

The withdrawal statement included a number of reasons why she said that she had decided not to continue with her evidence and why she said that she could not do so in the future. Among these reasons was a fear of violence.

The trial was adjourned until 4 March 2025. On 5 March 2025, there was a contested application by the prosecution for leave to adduce as hearsay evidence the content of the ABE interviews and the witness statements which the complainant had made. The basis of that application was that the complainant was in fear and that it was in the interests of justice for her evidence to be placed before the court in that way.

The judge heard the argument and reserved his decision until the following day. On the following day he handed down a written ruling refusing the prosecution application. He did this because he found that he was not sure that the complainant's refusal to give evidence was caused by fear and considered in any event that the admission of her evidence as hearsay would not be in the interests of justice where such fear as she may be subject to was not on the evidence caused by the conduct of the respondent.

As we have said, the judge, His Honour Judge Rudolph KC handed that ruling down in writing. The position therefore was that for a period of weeks it had been apparent the way in which the prosecution intended to conduct that trial could only proceed if that application were to succeed. During 5 March 2025 it must have been apparent that the judge was considering the question with care and it was therefore no doubt reasonably foreseeable that his decision might be adverse to the prosecution. As we have said, he handed down his decision in writing and therefore there had been considerable opportunity before he did that for the prosecution to plan for the eventuality that he may not accede to their application. It appears that for whatever reason there was no such plan.

At all events, on that afternoon it is clear that the prosecution were considering whether they should appeal against the ruling given by the judge to this court. We shall explain shortly how matters proceeded in that regard, but we begin by recording briefly the legal context in which those events occurred.

The ability of the prosecution to appeal against an adverse ruling in the Crown Court in these circumstances was created by the Criminal Justice Act 2003, including in particular section 58. Under subsections (8) and (9) of that provision, the prosecution must give what is described as the acquittal undertaking or guarantee when informing the court of its intention to appeal. Those provisions say:

The effect of those provisions has been considered in this court by a long series of different decisions. It is unnecessary for the purposes of this judgment to refer to only two of those. First, for a review of the background and of the state of the law as it is in binding upon us we refer to R v PY [2019] EWCA Crim 17, a decision of a constitution of this court presided over by Lord Burnett CJ. The effect of that decision and its predecessors is that unless the prosecution complies with section 58, and the part of it to which we have just referred, this court acquires no jurisdiction to entertain any appeal.

The second decision which we mention is a decision of this court in R v BJF [2024] EWCA Crim 1670, a decision of a constitution of this court presided over by Lord Justice William Davis. The factual position in that case is somewhat similar to the factual position with which we are confronted. At [29] of its judgment, the court said:

Applying those decisions and the provisions of section 58 to the facts of the present case, we first record what happened when, during the hearing, the judge handed down his written ruling. At that stage prosecuting counsel asked for an hour in which to consider the position. The judge granted that. So far so good. The Criminal Procedure Rules and the terms of section 58 itself indicate that the court must either be informed immediately after the ruling of the prosecution's intention to appeal against it, or must be invited to consider adjourning the proceedings to enable the prosecution to decide what to do. The Criminal Procedure Rules provide that in the ordinary course of events the judge ought to grant at least until the following business day for that to happen. In this case the judge granted the time that he was asked to grant and he cannot be criticised for doing that.

When the court reconvened, the following exchange took place:

It is unnecessary to attempt to identify what was said during that quiet discussion because it is clear that what was not said was anything resembling the acquittal undertaking.

What happened next was that the judge was invited to consider ordering expedition. In our judgment, this meant that everyone present thought that there would be an appeal because notice had been given. It would be entirely in the wrong order if the question of whether an appeal should be expedited was decided before the decision that there would be an appeal at all.

On the following day, 7 March, the Crown Prosecution Service wrote a letter to the court in which they thanked the judge for extending time and asked for the case to be listed in the near future so that they could announce their decision as to what they intended to do.

It will be apparent from that description of these events that there were indeed some similarities between this case and the events which took place in BJF, cited above. In this case there was a less than satisfactory oral exchange in court between the prosecution and the judge. In BJF that unsatisfactory communication was achieved by an email. In both cases, following unsatisfactory initial communication, the prosecution attempted to regularise the matter by sending a further communication to the court. That did not work in BJF, and in our judgment it does not work here either. Whatever may be the merits of the rigid procedural requirements which have resulted from the interpretation of section 58 by successive decisions of this court, it is quite clear that those decisions are strictly binding on us.

It follows that the only real question for us to decide on the jurisdictional issue is whether the oral utterance of prosecuting counsel before the judge, which we have set out above, amounted to her giving notice of an intention to appeal. It is true, as Mr Paul Jarvis KC has helpfully submitted to us, that her utterances were not entirely clear. However, it seems to us that by the end of that exchange in which she refers to giving "notice" and then moves on to the issue of expedition, the overall effect of that unsatisfactory exchange can only be interpreted as meaning that the prosecution gave notice of intention to appeal and did not at or before that time give the necessary acquittal undertaking.

It follows, therefore, that we have no jurisdiction to entertain the appeal which they wish to advance.

An issue has arisen about what will be the consequences of the decision which we have just announced. It means, in our judgment, that nothing has taken place in the Court of Appeal Criminal Division which is capable of affecting what has happened or may happen in the Crown Court. The case returns to the Crown Court. If the appeal had failed for some other reason than want of jurisdiction, then the respondent would be entitled to acquittal on the counts to which it related. But that has not happened.

The acquittal undertaking, when it was eventually given, was given at a time when it was incapable of having any effect.

What options, therefore, are open to the prosecution in relation to the counts which were the subject of this appeal will have to be considered by them and, if they consider that the case can be sustained and advanced at trial in the Crown Court, then they will no doubt make such applications as that requires and the Crown Court will decide what should occur. If they consider that there is no way in which those counts can be advanced before a jury, then the counts to which the respondent has pleaded guilty will have to be sentenced. Either way, the case will be listed before the Crown Court.

We suggest that the next hearing in this case should take place within 28 days at the Inner London Crown Court and that it should be heard by the acting resident judge. The reason for that is that His Honour Judge Rudolph heard the evidence and made a finding of fact about the complainant. He found that he was not sure on the material before him that she was in fear. We have not criticised or evaluated that finding in any way whatever in the course of these proceedings for the reasons we have explained. However, we consider that the future conduct of the case would be better in the hands of a judge who comes to it afresh, without having made any factual evaluations about any of the key participants. That is why, although it is a matter for the acting resident judge at Inner London how she chooses to deal with this, we have made that suggestion to her.

That concludes our judgment. What is the significance of section 71 in the current situation and the anonymity of the respondent?

MR JARVIS: My learned friend and I had a conversation when the court was out because even my poor skills at reading tealeaves gave me an indication of what might be the outcome.

We understand the court's concern to be – can I express it this way – I think the court's concern would be: has anything been done under section 58 in circumstances where what the prosecution did was not compliant with the provisions and therefore does section 71 in fact apply at all?

LORD JUSTICE EDIS: Yes – to this court.

MR JARVIS: To this court for these purposes. I note in the BJF case at paragraph 1, it was certainly the view of the constitution of that court that section 71 did apply, and the court then went on to exercise its powers to disapply it ---

LORD JUSTICE EDIS: Yes.

MR JARVIS: --- which is the same as saying it does not apply, in effect.

LORD JUSTICE EDIS: Exactly.

MR JARVIS: It would arguably only apply if anything done or purportedly has been done on the basis that the prosecution certainly purported to have done something, but the reality, we submit, is that if the court is content to anonymise the judgment in the way the court has, in the same way as was done in BJF, there is no obvious reason why it should not be reported – either because section 71 does not apply, or it does apply and the court exercises its power in subsection (3) to order a report – so, possibly belts and braces. But there is nothing, I would submit, in the way in which the court set its judgment out that would conceivably prejudice anything that might be happening in the Crown Court.

LORD JUSTICE EDIS: Well, I am glad you thought that. We did put in a little thought as to how we might phrase it with a view to achieving that. All right. So, either section 71 does not apply, or it does and we can disapply it, and that would permit the reporting of the judgment ---

MR JARVIS: Yes.

LORD JUSTICE EDIS: --- in an anonymised form?

MR JARVIS: Indeed.

LORD JUSTICE EDIS: Thank you. Mr Hasslacher?

MR HASSLACHER: Nothing to add.

LORD JUSTICE EDIS: Very well. Thank you. We will not engage in what might be quite a complicated exercise in deciding whether section 71 applies in this situation or not. We will assume that it does. But we will say that there should be no reporting restriction in relation to the anonymised judgment which we have just delivered, and we will lift the section 71 reporting restriction to that extent. So, when the transcript is perfected, it will go to the National Archives in the usual way.

Mr Hasslacher, that obviously is on the basis that there is nothing prejudicial to any trial which might take place in that judgment.

MR HASSLACHER: My learned friend summarises the issue. We have had the opportunity to discuss it and I have nothing further to add.

LORD JUSTICE EDIS: Thank you very much. That is very helpful. Very well. Well, thank you both very much for your help.