West Law Report

Applying test of interests of justice on appeals

Posted in Times Law Report by mrkooenglish on October 18, 2008

From The TimesOctober 3, 2008

Applying test of interests of justice on appeals
Court of Appeal, Criminal Division
Published October 3, 2008
Regina v Al-Ali
Before Lord Justice Scott Baker, Mr Justice Coulson and Mr Justice Maddison
Judgment September 2, 2008

On an application by the prosecution for leave to appeal from a ruling of a trial judge in the crown court, the Court of Appeal should not simply consider whether the appeal had a realistic prospect of success because even if the judge’s ruling was wrong it would only be if it were in the interests of justice that the trial should be resumed or started afresh.

The Court of Appeal, Criminal Division, so held when refusing an application by the Crown under section 58 of the Criminal Justice Act 2003 for leave to appeal against a ruling made at Southwark Crown Court by Mr Recorder Bartle, QC, on July 2, 2008, that there was no case for the defendant, Firas Al-Ali, to answer in respect of two charges of handling stolen goods.

Section 61 of the Act 2003 Act provides: “(4) Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following – (a) order that proceedings for that offence may be resumed in the crown court, (b) order that a fresh trial may take place in the crown court for that offence, (c) order that the defendant in relation to that offence be acquitted of that offence. “

(5) But the Court of Appeal may not make an order under subsection (4)(a) or (b) in respect of an offence unless it considers it necessary in the interests of justice to do so.”

Mr John Hulme for the prosecution; Mr Paul Brooks for the defendant.

LORD JUSTICE SCOTT BAKER, giving the judgment of the court, said that there was no indication in the legislation as to the criteria that the Court of Appeal should take into account when deciding whether to grant leave to the Crown to appeal in an individual case.

It seemed to their Lordships that in deciding whether to grant leave they should apply a broad “interests of justice” test rather than ask merely whether the prosecutor’s case was arguable or had some prospect of success. It was important to look ahead to see what options were available for the court in the event that the appeal succeeded.

In reaching that conclusion, they had very much in mind the provisions of section 61 of the 2003 Act, particularly section 61(5). If the court concluded that the judge’s ruling was wrong but that it was not necessary in the interests of justice for the trial to be continued or resumed, the defendant could be acquitted in accordance with s 61(4)(c).

A complication had arisen as a result of the coming into force on July 14, 2008, of section 44 of the Criminal Justice and Immigration Act 2008, which substituted a new provision for section 61(5) so that the question that arose for decision after that date was whether the defendant could receive a fair trial if an order were made under subsection (4)(a) or (b), rather than applying the “interests of justice” test.

That provision, however, did not bite directly on the present application because it was launched before July 14, 2008: see paragraph 16 of Schedule 27 to the 2008 Act. But in their Lordships’ judgment, even if the law applicable under section 61(5) had changed, Parliament had done nothing to limit the discretion which the court had.

Their Lordships made the following observations about the present case:

(i) whether the judge’s ruling was right or wrong this was not a strong case; (ii) the defendant was a man of good character; (iii) the offence did not cross the custody threshold; (iv) if there were to be a further trial there would be an additional charge on public funds to pay for the prosecution and defence; (v) a retrial would be disproportionate to the gravity of the offence; (vi) appeals by the prosecution in cases where there was little or no public interest involved should not be encouraged.

Accordingly, the recorder’s ruling that there was no case for the defendant to answer would be upheld.

Solicitors: Crown Prosecution Service, Central London; Janes.


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