X, R. v [2010] EWCA Crim 2368

[2010] EWCA Crim 2368Case No 2009/06638/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 28 September 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE OWEN
and
MR JUSTICE FLAUX
__________________
- v -
Between
X__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr P Mostyn appeared for AppellantMr I Clarke appeared for Crown____________________J U D G M E N T (As Approved by the Court)
[1]On 21 September 2010 this court, differently constituted, quashed the appellant's convictions for wounding with intent and ordered pursuant to section 7 of the Criminal Appeal Act 1968 that there be a retrial. The order of the court was as follows:
"THE COURT OF APPEAL CRIMINAL DIVISION on 21 September 2010 CONSIDERED the appeal against conviction AND HAS 1. Allowed the appeal and quashed the convictions on counts 1 and 2; 2. Ordered that the defendant be retried on two counts of wounding with intent; 3. Directed that a fresh indictment be served; 4. Directed that the defendant be arraigned upon the fresh indictment within two months; 5. Directed that the retrial take place at a Crown Court to be determined by the Presiding Judge for the South Eastern Circuit; 6. Directed that the defendant be remanded in custody pending the retrial and that any application for bail be made to the Crown Court; ...."
[2]The reason why this court declined to entertain an application for bail was that the Crown Court was in a better position to be aware of the appropriate conditions which would be relevant to the defendant, and in a better position to identify when a trial could take place which might itself impact upon the conditions of bail. Other circumstances frequently transpire in this court which would generally lead to a similar conclusion. They include the absence of an appellant who has waived his right and the lack of up-to-date information about potential residence or sureties.[3]In the event the successful appellant applied to the Crown Court at Snaresbrook (where he was originally tried) for bail. The matter came before His Honour Judge Freeland QC who was concerned that the Crown Court was not seised of the matter on the basis that an indictment had not yet been signed. The point was made that the case had not been allocated to the court for a retrial. However, as has been conceded this morning, there is only one indivisible Crown Court, and an application for bail in one Crown Court does not preclude the Presiding Judge of the South Eastern Circuit nominating a different Crown Court for trial.[4]The point which concerned Judge Freeland relates to the construction to be placed upon the powers of this court and the Crown Court. There is no doubt that when it disposed of the appeal this court had the ability to grant or refuse bail. Section 8(2) of the Criminal Appeal Act 1968 provides:
"The Court of Appeal may, on ordering a retrial, make such orders as appear to them to be necessary or expedient -- (a) for the custody or, .... release on bail of the person ordered to be retried pending his retrial; ...."
[5]That provision was construed in R v X (CA No 2002/0461/X3, 22 August 2003) by the Vice President of this court (Rose LJ) who dealt with the submission that the words "on ordering a retrial" ought in effect to be construed to mean "having ordered a retrial" in order to avoid a potential lacuna in jurisdiction in relation to bail. The court rejected that submission. In X a fresh indictment had been served. The Vice President, without deciding whether the service of such an indictment was determinative, concluded that once such an indictment had been served the jurisdiction of the Court of Appeal ceased and matters in relation to bail were properly within the jurisdiction of the Crown Court.[6]It is submitted that where no indictment has been served, this court retains jurisdiction. Reliance is placed upon other provisions of section 8 of the Criminal Appeal Act which permit the matter to be referred back to the court in the event that an appellant is not arraigned within the time ordered by the Court of Appeal. We do not find that reference to be of assistance because in those circumstances what is being challenged is the effect of an order of this court and the extent to which that order may be set aside or amended. In the case of bail we concur with the view of the Vice President that the words "on ordering a retrial" do not mean "having ordered a retrial".[7]The jurisdiction of the Crown Court to hear a bail application is contained within section 80(1)(c) of the Supreme Courts Act 1981. It is in the clearest terms:
".... the Crown Court may .... grant bail to any person .... who is in the custody of the Crown Court pending the disposal of his case by the court."
[8]In our judgment the effect of the order of this court of 21 September 2010 is to place the appellant back into the jurisdiction of the Crown Court, albeit that the precise location of the Crown Court at which he is to be retried is yet to be determined. There are many circumstances in which a case is within the jurisdiction of the Crown Court without an indictment having been preferred and yet with the Crown Court having jurisdiction to deal with bail and ancillary matters. In our judgment this is one such case. Although it did not fall to the Vice President to decide whether a new indictment was an essential prerequisite to the jurisdiction of the Crown Court, in our judgment it is not.[9]In those circumstances the Crown Court does have jurisdiction to grant bail. Equally, for the reasons which we have sought to identify based upon the Vice President's interpretation of section 8(2) of the Criminal Appeal Act 1968, unless when ordering a retrial this court has expressly retained jurisdiction to deal with bail, any subsequent application must be made to the Crown Court. ___________________________________

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