| CRIME — Court of Appeal (Criminal Division) — Jurisdiction — Crown applying for leave to appeal judge’s ruling dismissing charges against defendant — Whether right of appeal existing — Crime and Disorder Act 1998, s 51, Sch 3, para 2 — Criminal Justice Act 2003, s 58
R v Thompson and another [2006] EWCA Crim 2849
CA: Rix LJ, Dobbs J and Sir Charles Mantell: 22 November 2006
The Crown’s right of appeal under s 58 of the Criminal Justice Act 2003 did not extend to a judge’s ruling pursuant to para 2 of Sch 3 of the Crime and Disorder Act 1998, 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.
The Court of Appeal (Criminal Division) so held in refusing an application by the Crown under s 58 of the Criminal Justice Act 2003 for leave to appeal against the dismissal on 29 September 2006 by Judge Ticehurst at Bristol Crown Court of charges against Glyn Thompson and Brian Hanson of various offences against the Revenue, and the quashing of counts in an indictment relating to those charges, pursuant to para 2 of Schedule 3 of the Crime and Disorder Act 1998.
RIX LJ, in the reserved judgment of the court, said that the defendants had been sent for trial to the Crown Court, pursuant to s 51 of the Crime and Disorder Act 1998. It was therefore open to them to challenge the adequacy of the Crown’s case in advance of trial by use of the procedure contained in Sch 3 to the 1998 Act. Their Lordships observed that the application under para 2 of Sch 3 could only be made before arraignment; that the result of a successful application was that the charge was dismissed and, if an indictment had been preferred, the relevant count was quashed; and that, where a charge was dismissed, “no further proceedings” might be brought on it except by means of the preferment of a voluntary bill of indictment. In their Lordships’ view it followed that since the defendants had not yet been arraigned, the dismissal of the charge and quashing of the count did not amount to a formal acquittal of the defendants. Their Lordships observed, inter alia, that “ruling” was given a broad and inclusive definition in s 74(1) of the 1998 Act; that the basic subject matter was a ruling “in relation to a trial on indictment” (s 58(1)); that the language “terminating ruling” was not the language of the statute but that, by reason of the self-policing provisions of s 58(8) and (9), the effect of failure on the part of the prosecution was the acquittal of the defendant in respect of the offence concerned; and that there was nothing in the statute expressly to amend or qualify the provision in Sch 3 to the 1998 Act that, upon dismissal of a charge, no further proceedings might be brought except by way of voluntary bill of indictment. Defence counsel submitted that, broad as some of the language of s 58 was, there had never been any intention to embrace an appeal from a dismissal of a charge or the quashing of an indictment under the Sch 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 s 58 procedure: see ss 58(8), 58(12) and 61(3). Their Lordships agreed that for those reasons there was no jurisdiction under s 58 of the 2003 Act to give leave to appeal a ruling under para 2 of Sch 3 of the 1998 Act and the application was refused.
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