Summary and Background Part 9 – Prosecution appeals
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 pretrial hearing or during the trial, at any time up until 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. The second group relates to an evidentiary ruling or series of rulings made in certain trials for qualifying offences listed in Schedule 4. This right of appeal is limited to those rulings that significantly weaken the prosecution case and may only be exercised up to the opening of the defence case.
37.Leave to appeal must be obtained either from the judge or the Court of Appeal. Depending upon the circumstances of the case the judge will decide whether the appeal follows either an expedited route, where the trial is adjourned pending the conclusion of the appeal, or a non-expedited route, where any jury that has been empanelled may be discharged. In both cases any judicial ruling effectively acquitting the defendant or otherwise terminating the trial will not take effect while the prosecution is considering whether to appeal and, if an appeal is pursued, until the conclusion of the appeal or its abandonment. When appealing a terminating or effectively terminating ruling the prosecution must agree to the acquittal of the defendant(s) for the offence(s) to which the ruling applies, if leave to appeal is not granted or the appeal is abandoned. This does not apply to appeals against significantly weakening evidentiary rulings where the trial will usually continue or a fresh trial will take place, whatever the outcome of the appeal.
38.The Court of Appeal will be able to confirm, reverse or vary the ruling appealed against. Where it confirms a terminating or effectively terminating ruling, the Court of Appeal must order the acquittal of the defendant(s) for the offence(s) to which the appeal applies and it has the discretion to do so where it reverses or varies the ruling. Where it reverses or varies a terminating or effectively terminating ruling, the Court of Appeal may only order that proceedings in the Crown Court should continue or that a fresh trial should take place if this is necessary in the interests of justice. In the case of prosecution appeals against evidentiary rulings, after confirming, reversing or varying the ruling(s) appealed against, the Court of Appeal may order the continuation of the proceedings in the Crown Court or a fresh trial to take place. But where the prosecution indicates that it does not intend to continue with the prosecution the Court of Appeal may order the acquittal of the defendant. Under both categories of appeal, both the prosecution and the defence will have a further right of appeal to the Houses of Lords on a point of law of general public importance.
39.This Part also provides for restrictions on reporting the proceedings associated with the appeal and the appeal itself, until after the conclusion of the trial. The aim is to ensure that, if the appeal is successful, matters prejudicial to the continuing or fresh trial are not reported. This restriction will cover reports in England and Wales, Scotland and Northern Ireland. Contravention will be a summary offence subject to a maximum penalty of a level 5 fine.