| CRIME — Court of Appeal (Criminal Division) — Prosecutor’s appeal — Judge refusing to adjourn trial further after repeated failure by complainant to attend — Whether prosecutor having right to appeal against such ruling — Criminal Justice Act 2003, s 58
R v Clark
CA: Sir Igor Judge P, Pitchford and Calvert-Smith JJ: 9 October 2007
A case management decision refusing to order an adjournment before trial or indeed at any time before the start of the summing up could constitute a terminating ruling against which a prosecutor could appeal.
The Court of Appeal, Criminal Division, so held when refusing an application by the Crown for leave to appeal against a ruling made by Judge Milmo QC on 18 September 2007 in the Crown Court at Lincoln (sitting at Nottingham) before the start of the trial of the defendant, Martin Clark, who had pleaded not guilty to charges of rape, assault occasioning actual bodily harm, common assault and criminal damage.
The complainant and the defendant had known each other for about 10 years and had lived together for about two of those years. It was alleged that in February 2007 the defendant had assaulted and raped the complainant and caused damage in her home. The case was set down for trial on 3 September 2007 when the complainant attended but refused to go into court. She was arrested for contempt and released on bail. On 4 September she attended court and indicated she would be prepared to give evidence via video link but owing to insufficient time the case was adjourned until 10 September when the defendant refused to see his counsel. The case was adjourned until 17 September when the complainant failed to attend court and when telephoned refused to reveal her whereabouts. An adjournment was granted until the following day and a warrant for the complainant’s arrest was issued. On 18 September the warrant having not been executed and the complainant failing again to attend the Crown applied for an adjournment for one month with the defendant to be allowed bail. Judge Milmo QC ruled that there were no reasonable grounds to anticipate that the complainant would then attend and he refused an adjournment. The Crown applied for leave to appeal against that ruling under s 58 of the Criminal Justice Act 2003.
SIR IGOR JUDGE P, giving the judgment of the court, said that the first question which arose was whether the right of appeal granted by s 58 of the 2003 Act extended to a ruling which amounted to a case management decision; and the second question was whether, assuming that it did, leave to appeal should be granted. S 74(1) of the 2003 Act defined “ruling” for these purposes as including “a decision, determination, direction, finding, notice, order, refusal, rejection or requirement”. In their Lordships’ judgment this legislation was clear: a case management decision on whether to order an adjournment before trial, or indeed before the start of the summing up, could constitute a terminating ruling. A right of appeal was not confined to a ruling of “no case to answer”. By s 67 the Court of Appeal might not reverse a ruling on an appeal unless it was satisfied “(a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made”. Their Lordships focused on s 67(c). A decision of the kind made by the judge in this case was usually described as an exercise of discretion but was in fact a decision made by the judge on all the material before him. On the facts of the present case, the judge’s decision was eminently reasonable and their Lordships could not interfere with it. The application would be refused and the defendant acquitted.
|
