Thompson & Anor, R v [2006] EWCA Crim 2849

[2006] EWCA Crim 2849

Case No 2006 04895 C5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

An application under section 58 of the Criminal Justice Act 2003

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/11/2006

Before

LORD JUSTICE RIX

MRS JUSTICE DOBBS DBE

SIR CHARLES MANTELL

Between

ReginaApplicant

(1) Glyn ThompsonRespondents

(2) Brian HansonRespondent

Mr Nigel Lickley, Mr Dominic Kay & Mr Rupert Baldry instructed by Revenue and Customs Prosecutions Office appeared for Applicant

Mr Andrew Mitchell QC & Mr M Lucraft instructed by Messrs Corker Binning appeared for 1st Respondent

Mr Philip Hackett QC & Mr Graham Brodie instructed by Messrs BCL Burton Copeland appeared for 2nd Respondent

Hearing Hearing date: 6 October 2006

Judgment

This is the judgment of the court :

[1]This judgment concerns an application brought by the Crown for leave to appeal the ruling of a Crown Court judge whereby he dismissed a charge and accordingly quashed a count relating to it in an indictment, pursuant to paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998. The application is brought under the new provisions contained in section 58 of the Criminal Justice Act 2003, whereby the Crown is given a general right of appeal in respect of rulings which are recognised by the Crown as so-called “terminating rulings”. An initial issue has arisen on this application as to whether there is jurisdiction under section 58 which encompasses a dismissal of this kind. At the conclusion of argument on 6 October 2006, we rendered our decision that there was no jurisdiction for such an appeal under section 58 and we accordingly refused leave to appeal. These are the reasons for our decision.

[2]In these proceedings, brought by the Revenue and Customs Prosecution Office (RCPO), Glyn Thompson and Brian Hanson were charged with various offences against the Revenue. Counts 2 to 12 inclusive charged Mr Thompson alone and are not the subject of this appeal. We need say nothing more about them. Count 13 charged Mr Hanson alone. RCPO conceded before the judge that they did not seek to uphold that count. The judge therefore dismissed it and we are not concerned with it. We are therefore concerned solely with count 1, which charged both Mr Thompson and Mr Hanson (for convenience, the “respondents”) with conspiracy to cheat the Revenue between 1 January 1995 and 31 October 2002 in connection with a property transaction or transactions by dishonestly failing to disclose all taxable payments.

[3]The offence alleged in count 1 concerned the property dealings of a Guernsey based company called White Ladies Investments Ltd (the “company”) in which it was said that the respondents had significant financial interests. The prosecution case was that the company, although based in Guernsey, was used as a vehicle for the respondents’ property transactions in the UK, in particular in relation to the buying and selling of two properties in Bristol on which substantial profits had been made. It was alleged that the company was centrally managed and controlled in the UK by the respondents. Mr Thompson’s father was a director of the company, but RCPO alleged that his role had been usurped by the respondents and that as a result the company should be viewed as resident for tax purposes in the UK. In effect, said RCPO, the company’s central management and control were exercised in the UK by the respondents and not in Guernsey by the father.

[4]In due course the offence charged under count 1, with the other offences charged, had been sent for trial to the Crown Court, pursuant to section 51 of the Crime and Disorder Act 1998.

[5]It was therefore open to the respondents to challenge the adequacy of RCPO’s case in advance of trial by use of the procedure contained in Schedule 3 to the 1998 Act. In effect, the respondents could raise the issue of sufficiency which previously had been available to the defence at an old style committal. Thus paragraph 2 of Schedule 3 provides as follows:

“2.-(1) A person who is sent for trial under section 51 of this Act on any charge or charges may, at any time – (a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and (b) before he is arraigned (and whether or not an indictment has been preferred against him), apply orally or in writing to the Crown Court sitting at the place specified in the notice under subsection (7) of that section for the charge, or any of the charges, in the case to be dismissed. (2) The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him… (6) If the charge, or any of the charges, against the applicant is dismissed – (a) no further proceedings may be brought on the dismissed charge or charges except by means of the preferment of a voluntary bill of indictment; and (b) unless the applicant is in custody otherwise than on the dismissed charge or charges, he shall be discharged.” (a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and (b) before he is arraigned (and whether or not an indictment has been preferred against him), (a) no further proceedings may be brought on the dismissed charge or charges except by means of the preferment of a voluntary bill of indictment; and (b) unless the applicant is in custody otherwise than on the dismissed charge or charges, he shall be discharged.”

[6]It will be observed that the paragraph 2(2) test is the same Galbraith test as that which applies to an application of no case to answer at half time at trial; that the paragraph 2 application can only be made before arraignment (paragraph 2(1)(b)); that the result of a successful application is that the charge is dismissed and, if an indictment has been preferred, the relevant count is quashed; and that, where a charge is dismissed, “no further proceedings” may be brought on it except by means of the preferment of a voluntary bill of indictment.

[7]The judge, HHJ Ticehurst, sitting at the Crown Court at Bristol, acceded to the respondents’ application under paragraph 2 of Schedule 3. In a written ruling dated 31 July 2006 he explained why he preferred the defence submissions which had been advanced in favour of dismissing the charge under count 1. On 29 September 2006, having heard further submissions, he dismissed the charge and quashed count 1.

[8]It follows, as we think Mr Lickley (now Mr Lickley QC) on behalf of RCPO accepts, that, since the respondents had not yet been arraigned, the dismissal of the charge and quashing of the count did not amount to a formal acquittal of the respondents; and that a voluntary bill of indictment could be sought. Indeed, he submits that the section 58 route of appeal is an alternative to the voluntary bill of indictment route.

[9]It is probably unnecessary for the purposes of the issue over section 58 jurisdiction to go further into the nature of the judge’s ruling on the substance of the respondents’ application than to say that the judge had to consider both the evidence and the law relating to the residence of the company. RCPO submit, or would have submitted, that the judge erred as a matter of law in applying the wrong test.

[10]The judge was asked by RCPO to grant leave to appeal under section 57(4) of the 2003 Act, but declined to do so. Therefore RCPO applied to this court for leave to appeal. It was on that application that the argument as to jurisdiction has arisen.

The appeal procedure under the 2003 Act

[11]The provisions relating to the new interlocutory right of appeal accorded the Crown under Part IX of the 2003 Act came into force on 4 April 2005. For present purposes, the relevant provisions are as follows: “Introduction 57.-(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.

(2) But the prosecution is to have no right of appeal under this Part in respect of – (a) a ruling that a jury be discharged, or (b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment.

(3) An appeal under this Part is to lie to the Court of Appeal.

(4) Such an appeal may be brought only with the leave of the judge or the Court of Appeal. General right of appeal in respect of rulings 58.-(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. (3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4). (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… (7) Where – (a) the ruling is a ruling that there is no case to answer, and (b) the prosecution, at the same time informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal, that other ruling, or those other rulings, are also to be treated as the subject of the 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… (12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence. (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… Determination of appeal by Court of Appeal 61.-(1) In an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates… (3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence… Interpretation of Part 9 74.-(1) In this Part – … “ruling” includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement…” (2) But the prosecution is to have no right of appeal under this Part in respect of – (a) a ruling that a jury be discharged, or (b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment. (3) An appeal under this Part is to lie to the Court of Appeal. (4) Such an appeal may be brought only with the leave of the judge or the Court of Appeal. (2) The prosecution may appeal in respect of the ruling in accordance with this section. (3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4). (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… (i) informs the court that it intends to appeal… (a) the ruling is a ruling that there is no case to answer, and (b) the prosecution, at the same time informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal, that other ruling, or those other rulings, are also to be treated as the subject of the 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. (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… (12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence. (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… (3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence… …

[12]It will be observed that “ruling” is given a broad and inclusive definition (section 74(1)); that the basic subject matter is a ruling “in relation to a trial on indictment” (section 58(1)); that such a ruling may be made “at an applicable time”, ie whether before or after the commencement of the trial” (section 58(1) and (13)); that there is nothing express in the statute to limit “at an applicable time” to after arraignment; that the language “terminating ruling” is not the language of the statute, but that by reason of the self-policing provisions of section 58(8) and (9) the effect of failure on the part of the prosecution is the acquittal of the defendant in respect of the offence concerned (and see also section 61(3)); and that there is nothing in the statute expressly to amend or qualify Schedule 3 to the 1998 Act’s provision that upon dismissal of a charge (see under its paragraph 2(6)) no further proceedings may be brought except by way of voluntary bill of indictment. “In relation to trial on indictment”

[13]The words “in relation to trial on indictment” found in section 58(1) are also found in section 29(3) of the Supreme Court Act 1981, which provides:

“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters in relation to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”

[14]In other words, matters in relation to trial on indictment within the jurisdiction of the Crown Court are excluded from the judicial review jurisdiction of the High Court.

[15]The divisional court had to consider the scope of that exclusion in Regina (Snelgrove) v. Crown Court at Woolwich

[2004] EWHC 2172 (Admin)

[2005] 1 WLR 3223

(“Snelgrove”). Snelgrove had been sent for trial under section 51 of the 1998 Act and had applied under paragraph 2 of Schedule 3 to that Act to have the charge against him dismissed on the ground of the insufficiency of the evidence against him. Having failed in that application, he sought judicial review of the judge’s decision. The issue was whether that pre-arraignment application was “in matters in relation to trial on indictment”. The divisional court held that it was, on reasoning which on behalf of RCPO Mr Lickley submits is determinative of the present application, a fortiori because Snelgrove has been applied by the divisional court in O v. Central Criminal Court

[2006] EWHC 256 (Admin)

, 27 January 2006 in the context of arguments which bear on the right of appeal provisions of the 2003 Act. Mr Lickley therefore submits that HHJ Ticehurst’s ruling was likewise “a ruling in relation to a trial on indictment” within section 58(1) and that RCPO have a right of appeal under that section.

[16]Thus in his judgment in Snelgrove Auld LJ stressed that the decision whether to dismiss the charge had three attributes which pointed to the logic of the section 29(3) exclusion, for such a decision(a) affected the conduct of a trial,

(b) was an integral part of the trial process, and

(c) was an issue between the Crown and the defence arising out of the charge: in such circumstances there was good reason for the exclusion of any process of appeal or judicial review which would interfere with or delay the trial process itself. These three “pointers” Auld LJ derived from previous decisions on the House of Lords (at paras 19/32).

(i) ):

“The clear underlying purpose of section 51 of and Schedule 3 to the 1998 Act (and for that matter section 6 of the 1987 Act and section 53 of and Schedule 6 to the 1991 Act) are to speed the criminal justice process, a purpose that Mr Perry rightly emphasised. As the court said in R (Salubi) v Bow Street Magistrates’ Court [2002] 1 WLR 3073, 3083, para 16, the intention of Parliament in introducing the 1998 Act procedure was to simplify and speed the procedure of transmission of all indictable only cases against adults to the Crown Court to enable it to deal with preliminary challenges to charges of this seriousness, requiring it to dismiss the charge where, in the words of paragraph 2(2) of Schedule 3 to the 1998 Act, “the evidence against the applicant would not be sufficient for a jury properly to convict him”

. Thus, the argument advanced by Mr Perry, on behalf of the Crown Prosecution Service is consistent with that policy. The availability of judicial review would inject delay and uncertainty into proceedings in the Crown Court, which cannot have been the intention of Parliament. A claimant’s remedies, in the event of failure of his application to dismiss, lies in the trial process, or, if he is convicted, on appeal to the Court of Appeal (Criminal Division).”

[17]Auld LJ immediately went on to state, quite simply, that “with or without the three “pointers” given by the House of Lords” the exclusionary words of section 29(3) “in matters relating to trial on indictment” were sufficiently broad to cover the 1998 Act dismissal procedure (at para 43(ii)).

[18]Snelgrove was concerned with a defendant’s right to judicial review. Mr Lickley nevertheless submits that now that Parliament has decided to give to the Crown a right of appeal from interlocutory rulings “in relation to trial on indictment”, despite any concern with delay to the trial process, the very reasons which in Snelgrove counted against the defendant count in favour of RCPO in the present context.

[19]This is a somewhat complicated submission. With or without the purposive argument in Snelgrove, the divisional court found the exclusionary words to be wide enough to cover the paragraph 2 dismissal procedure. Mr Lickley I think relies on Auld LJ’s straightforward linguistic approach, but also, so far as Auld LJ’s purposive approach is concerned, seeks to turn the argument, in the new circumstances of the 2003 Act, back on a successful, as distinct from an unsuccessful, defendant.

[20]On behalf of the respondents, however, it is not submitted that the words “a ruling in relation to a trial on indictment” cannot be wide enough to cover rulings to dismiss a charge under paragraph 2 of Schedule 3 to the 1998 Act: but the issue is nevertheless raised on the whole of the relevant provisions both of paragraph 2 and of section 58 as to whether dismissals under the former are intended to be within the latter.

[21]In O v. Crown Prosecution Service the claimant, O, had similarly failed in his application to dismiss under paragraph 2 of Schedule 3 and was seeking judicial review. He had also failed to persuade the Crown Court judge to require the complainant to submit herself to cross-examination at the hearing of the dismissal application. He accepted that prima facie he was bound by Snelgrove but submitted that that decision should be revisited in the light of the Human Rights Act 1998 and an argument founded on

article 5(4) of the European Convention on Human Rights

. It was submitted that Snelgrove had been decided per incuriam and was wrong. The divisional court roundly rejected that submission (at paras 41/42, 67). Nevertheless, in the course of setting out the claimant’s submissions, Hallett LJ said this:

“19. He submitted that in Snelgrove, the court placed considerable reliance on the delay factor and this ignored the fact that it is often the most serious matters that have delay in being listed for trial. We were reminded in written submissions of Parliament’s decision to afford the prosecution a statutory right to appeal a judge’s evidentiary ruling pursuant to Section 62 of the Criminal Justice Act 2003. This, it was said, will inevitably delay a criminal trial. Pausing there, it was pointed out in argument that such an appeal will not be to the Divisional Court, with possible applications to the House of Lords following, but it will be to the Court of Appeal Criminal Division. My Lord Jack J commented that he and I had dealt with an interlocutory appeal in a serious fraud case very recently…[The trial] was delayed by just one week by the appeal. The delay inherent in appeals to the Court of Appeal Criminal Division pre or during trial cannot therefore be equated with the delay inherent in judicial review proceedings… 21. Further, in his attempt to demonstrate flaws in the court’s reasoning in Snelgrove, Mr Anelay argued that an application to dismiss is in fact a test of whether there should ever be an indictment within the jurisdiction of the Crown Court. Until arraignment, the Crown Court is not seized of an indictment but simply a charge sheet; applications to dismiss must be made before arraignment. He argued that the fact that the prosecution are given a specific remedy in the event that charges are dismissed, namely proceeding by way of a voluntary bill, further emphasises that Parliament intended applications to dismiss to be subject to distinct rules from trials on indictment and to form a special class of their own. If the application to dismiss is successful, we were reminded, no verdict is entered in relation to charges, unlike a trial on indictment… 22. As I have already indicated, similar arguments were considered and rejected in Snelgrove, which binds this court, unless obviously wrong. So, without further ado, I turn to the argument upon which this application is based, namely the alleged incompatibility with article 5, an issue not addressed directly in Snelgrove.”

[22]Mr Lickley relies on those passages to submit that the divisional court there was expressly accepting that the new section 58 right of appeal embraced appeals from terminating rulings under the dismissal procedure of paragraph 2 of Schedule 3 to the 1998 Act.

The submissions

[23]Turning from Snelgrove and O more broadly to the submissions before us, we would express them as follows.

[24]On behalf of RCPO, Mr Lickley submits that section 58’s essential wording is broad and unlimited. Thus “ruling” is given a broad definition in section 74(1). In any event, a decision under the dismissal procedure of paragraph 2 of Schedule 3 to the 1998 Act is a ruling “in relation to a trial on indictment” (Snelgrove; O). Although that decision (necessarily) took place before arraignment, section 58(13)’s broad definition of “applicable time” (“whether before or after the commencement of the trial”) emphasised the width of the section 58 jurisdiction. Although the width of the language of section 58 was to some extent restricted by the logic of the so-called “terminating ruling” requirements of section 58(8) and (9), that presented no limitation in the present case, since a dismissal of a charge was plainly within the purpose of giving to the Crown an opportunity of challenging by way of interlocutory appeal a ruling which would otherwise have the effect of bringing the whole proceedings to an early end. In this connection reliance was placed on an explanatory note to Part IX (see below). If a successful application of no case to answer at the close of the prosecution case at trial would fall within the section 58 jurisdiction, as was not in dispute, then a purposeful interpretation of the statute would similarly embrace the pre-trial dismissal procedure under Schedule 3. Thus both the broad language and the purpose of section 58 and its ancillary provisions combined to support RCPO’s right to apply for an appeal in the present case.

[25]On behalf of Mr Thompson, however, Mr Mitchell QC submitted that, broad as some of the language of section 58 is, there had never been any intention to embrace an appeal from a dismissal of a charge, or the quashing of an indictment, under the Schedule 3 procedure. Since that procedure could only lead to the dismissal of a charge or the quashing of an indictment, it could not result in the acquittal of the defendant. And yet the acquittal (or prospective acquittal) of a defendant was the necessary premise of the section 58 procedure: see sections 58(8), 58(12) and 61(3). In any event, paragraph 2(6)(a) of Schedule 3 continued to say that no further proceedings could be brought on the dismissed charge except by means of the preferment of a voluntary bill of indictment. There had been no amendment of that provision. It could not have been intended to give to the Crown an alternative remedy of either the voluntary bill of indictment procedure or a section 58 appeal: the whole purpose of section 58 was to provide the Crown with a remedy for the collapse of a case where it had no other remedy. Reliance was also placed on the Crown Prosecution Service’s own literature published in explanation of the Crown’s rights of appeal under the 2003 Act (see below). This literature reproduced examples of “terminating rulings” which had been used during parliamentary debates concerning section 58, but which nowhere included an example of dismissal of a charge or quashing of an indictment under Schedule 3.

[26]On behalf of Mr Hanson, Mr Hackett QC adopted Mr Mitchell’s submissions.

[27]In anticipation of or response to the submissions made on behalf of the respondents Mr Lickley also argued that “no further proceedings” within paragraph 6(2)(a) of Schedule 3 did not embrace an appeal in the same proceedings: therefore there was no need for any amendment to that provision to permit the new right of appeal to join the existing and otherwise unique remedy of the preferment of a voluntary bill of indictment. As to the latter remedy, it was cumbersome, dilatory and uncertain and, even if successfully used, may simply leave the “terminating” issue or an analogous one for a later date as on the close of the prosecution case. In any event it lacked the authority of this court. On the other hand the appeal process ensured that the original case remained intact until the court of appeal had ruled; prevented the need to commence new proceedings and to seek joinder; and provided clarity where for example issues of law were involved.

The explanatory note

[28]Mr Lickley relied on an explanatory note to Part IX in the following terms:

“36. Under current legislation, the defendant has a right of appeal at the end of the trial against both conviction and sentence but the prosecution has no equivalent right of appeal against an acquittal whether as a result of a jury’s decision or a judge’s ruling that has the effect of bringing trial to an end early. This Part introduces an interlocutory prosecution right of appeal against two categories of ruling by a Crown Court judge. The first group comprises a ruling that has the effect of terminating the trial made either at a pre trial hearing or during the trial, at any time up to the start of the judge’s summing up. This includes both rulings that are terminating in themselves and those that are so fatal to the prosecution case that the prosecution proposes to treat them as terminating and, in the absence of the right of appeal, would offer no or no further evidence.”

[29]We are not sure what the status of such explanatory notes is in this case: but see R (on the application of Westminster City Council) v. National Asylum Support Service

[2002] UKHL 38

[2002] 1 WLR 2956

at paras 5/6. In any event, we do not think that the explanatory note assists RCPO. It is perfectly possible to see that, if a decision under Schedule 3 is assumed to be within section 58, then it would be a decision which (subject to the preferment of a voluntary bill of indictment) could be described as “terminating”, albeit that is not a statutory word. The statute, on the other hand, deals with the concept of what is described in the note as a “terminating” ruling in terms of a process involving or leading to “acquittal”: see section 58(8) and (12). Moreover, the explanatory note sets the context by speaking of an “equivalent right of appeal against an acquittal”. We do not consider that the issue is advanced by reference to an explanatory note which glosses the statutory language of acquittal (“should be acquitted”…“be acquitted”) by the language of termination.

The CPS literature

[30]Mr Mitchell referred us to a CPS document, available on the internet, entitled “Prosecution Rights of Appeal”. In its Introduction, it again adopts the language of terminating rulings (“The first category (a general right of appeal) section 58 comprises a ruling that has the effect of terminating the trial either at a pre-trial hearing or during the trial”). However, there is much that follows which seeks to identify what rulings do and what rulings do not fall within the statute. Thus – “(Annex A) contains a list of examples where the judge’s ruling had the effect of terminating the case. (Annex B) contains a list of cases relating to evidentiary rulings that were not fatal to the prosecution. The Government used the examples in Annex A and B, during the passage of the Bill in Parliament, to support the provisions… The rights do not extend to a ruling that a jury be discharged, or to a ruling that can be appealed to the Court of Appeal by virtue of any other enactment… Although the right applies to any ruling of the judge, the intention of the 2003 Act is to restrict the right of appeal to terminating rulings, such as a stay of proceedings, a ruling of no case to answer, or those that are [so?] fatal to the prosecution case that the prosecution proposes to treat them as terminating and, in the absence of a right of appeal, would offer no or no further evidence. This is because the prosecution, as a condition of informing the court that it intends to appeal, must agree that the defendant should be acquitted of the offence subject to the appeal, if leave to appeal is not obtained or the appeal abandoned before it is determined by the Court of Appeal – section 58(8)… Quashing an indictment has the effect that the defendant may not be tried on the indictment (or a particular count, if the motion does not relate to the whole), but he is not acquitted and further proceedings may be brought for the same offence. The use of section 58 is therefore not appropriate where an indictment is quashed. The options open to the prosecution should be: to institute fresh committal proceedings; apply for a voluntary bill of indictment; or the better course to ask the judge to stay (but not quash) the defective indictment and at the same time prefer a fresh indictment correcting the error.”

[31]In Annex A twelve examples of section 58 terminating rulings are set out which were used during parliamentary debates on the bill. A further four examples are cited of rulings which led to a decision by the prosecution to abandon the proceedings. None of these examples includes a dismissal under paragraph 2 of Schedule 3.

Discussion

[32]Despite the width of the expressions “ruling in relation to a trial on indictment” and “at an applicable time”, and the decisions in Snelgrove and O relating to the dismissal process under Schedule 3 to the 1998 Act, all of which enables RCPO to mount a substantial argument that the ruling in question falls within section 58, in the end we are not persuaded that it does. Our reasons essentially track the submissions advanced on behalf of the respondents. We would seek to put the matter as follows.

[33]First and most importantly, it is not possible to have an acquittal under the Schedule 3 procedure. Ultimately, I do not think that is even in dispute. A Schedule 3 application to dismiss can only be made before arraignment. The result of a successful Schedule 3 application is the dismissal of the charge and, if an indictment has been preferred, the quashing of the relevant count. Neither of these amounts to an acquittal. If it were, it would not be possible to prefer a voluntary bill of indictment. Nor is it easy to see how the dismissal of a charge or the quashing of an indictment leaves anything in being on which an acquittal could be premised. Mr Lickley expressly abjured the possibility of going on to arraign the defendant and then offering no evidence. That could be done where the charge or indictment was left in being, but was stayed; or where, following an unsuccessful application for public interest immunity from disclosure, the Crown chose to proceed no further with its prosecution. In such situations, the charge or indictment would remain, albeit under a stay. If the defendant had not yet been arraigned, that could still occur, the Crown could offer no evidence, and an acquittal would thus be effected. The CPS document “Prosecution rights of appeal” expressly contemplates the Crown offering no evidence or no further evidence where a ruling is fatal to the prosecution case: as may be the case either before or, if necessary, after appeal. This would explain why section 58 does not reflect the language of Schedule 3’s paragraph 2(1)(b) by expressly enacting that a ruling must take place after arraignment. There might be pre-arraignment rulings, other than rulings under the Schedule 3 dismissal process, which could lead to review under the section 58 right of appeal procedure.

[34]Mr Lickley did not submit that a judge hearing a Schedule 3 application to dismiss could properly choose to stay the proceedings rather than dismiss the charge and quash any indictment, expressly so as to permit an appeal to be launched under section 58. After all, in the case of a Schedule 3 dismissal application, the judge is given no option but to dismiss the charge and quash any relevant count in any indictment (see “shall dismiss…and accordingly quash”, in paragraph 2(2) of Schedule 3). The Schedule 3 procedure can only be employed before arraignment. Therefore, the Schedule 3 procedure appears to be inherently immunised from a right of appeal.

[35]Secondly, despite the otherwise broad language of section 58, the section and its ancillary provisions as a whole appear to contemplate that an acquittal of the defendant is the necessary result of either the ruling itself or the Crown’s attempt, if unsuccessful, to appeal it: see section 58(8), section 58(12) and section 61(3). However, as already discussed, a successful Schedule 3 dismissal application cannot lead to acquittal.

[36]In this connection, the court explored with Mr Lickley whether the effect of these last mentioned provisions was that the statute was here contemplating a form of artificial or stipulated acquittal, arising out of the Crown’s agreement, which it must make as a condition of informing the court of an intention to appeal, that the defendant “should be acquitted” if the Crown were unsuccessful in obtaining an appeal; or a form of mandatory acquittal where the court of appeal itself heard an appeal but confirmed the ruling. However, such submissions held no attractions for Mr Lickley.

[37]Thirdly, Schedule 3 by its paragraph 2(6)(a) makes it clear that the only remedy for the Crown in the face of a dismissal of a charge or the quashing of an indictment is to seek the preferment of a voluntary bill of indictment. We are not attracted by Mr Lickley’s submission that the expression “no further proceedings” would permit the obtaining of an appeal in the same proceedings. We do not think that such a conclusion would have gone unremarked in the language or amendments of the 2003 Act. Nor do we think that the 2003 Act has silently effected an implied amendment of Schedule 3’s paragraph 2(6)(a). On the contrary, we agree with the respondents that it would be remarkable if the Crown were able to add to its remedies a new right of appeal where it already had a remedy by way of the preferment of a voluntary bill of indictment. It is true that that procedure might lack some of the advantages of the interlocutory right of appeal now afforded under section 58; and that the purpose of that right of appeal might be argued to extend to a dismissal or quashing before arraignment as much as it applies to the finding of no case to answer at half time. Nevertheless, we think that the Schedule 3 procedure does to this extent stand on its own, even if, for the purpose of the separate question whether it falls within the section 29(3) exclusion of judicial review, the answer to be given is that of Snelgrove and O. Otherwise, the section 58 right of appeal would have effectively destroyed, sub silentio, the whole process of a voluntary bill of indictment. It is true that a casual reading of paragraphs 21/22 of O (see above) might suggest that the divisional court was there thinking that a Schedule 3 dismissal was within section 58 as a ruling “in relation to a trial on indictment”: but the present point was not there under consideration. It was rather being suggested that a Schedule 3 dismissal could lie outside the exclusion of judicial review to be found in section 29(3) of the 1981 Act.

[38]Fourthly, we are impressed by the fact that the Schedule 3 dismissal procedure was not put forward to Parliament as an example of a “terminating ruling”, despite the numerous examples discussed for that purpose in the Parliamentary debates on the bill.

Conclusion

(a) Conclusion

[39]For these reasons, we consider that there is no jurisdiction under section 58 of the Criminal Justice Act 2003 to give leave to appeal a ruling under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998. It follows that this application for leave to appeal Judge Ticehurst’s dismissal of the charge and quashing of the indictment in respect of count 1 is refused. Despite that refusal of leave to appeal, however, we make it clear, if it is necessary to do so, that this judgment may be cited on future occasions, seeing that it has considered in detail a point of jurisdiction.