England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/03/2012

Lord Justice Richards :

1. On 8 February 2012 we gave judgment allowing the appellant's appeal and quashing his conviction on a count of rape. At the conclusion of the hearing the court asked counsel whether there were any further applications. Counsel indicated that there were none. Since there was no basis for the appellant's continued detention, he was told by the court that he was free to go. The court's order was communicated immediately to those in charge of the cells at the Royal Courts of Justice and the appellant was duly released.
2. An application was subsequently made by the Crown for a retrial. The application was listed for hearing before the same constitution on 14 February. Between the time of the application and the date when it was heard, however, a formal order recording our decision to allow the appeal and quash the conviction had been sent out by the Criminal Appeal Office. This led Mr McGrath, counsel for the appellant, to submit at the hearing that the appeal proceedings were at an end, the court was functus officio and it no longer had power to order a retrial. Having heard submissions from Mr McGrath and from Miss Purnell, for the Crown, both on that issue and on the question whether we should order a retrial if we had power to do so, we reserved our judgment so as to enable the factual and legal position to be investigated further and to give counsel the opportunity to address any additional submissions to us in writing. We and counsel have subsequently been provided with helpful material by the Criminal Appeal Office, and both counsel have made further written submissions in the light of that material.

The facts in greater detail

3. We are told by Miss Purnell that at the time when the court gave judgment on the morning of Wednesday 8 February (the hearing ended at 11.32), she had no instructions to ask the court to order a retrial. She therefore made no application when given the opportunity to do so.
4. Immediately after the hearing, however, she was told by the officer in the case, who was in attendance, that the complainant wanted a retrial. Miss Purnell communicated this at once outside court to Mr McGrath and told him that the mechanics would need to be set in motion. She accepts that she made a mistake in not going straight back into court and seeking to make the application there and then. On returning to chambers she spoke to the instructing lawyer at the CPS who confirmed that the instructions would have been to apply for a retrial. We say at once that those instructions ought to have been given expressly to counsel in advance of or at the hearing of the appeal on 8 February, given the obvious possibility that the court would allow the appeal and quash the conviction. Had that been done, an application for a retrial could have been made in court immediately after judgment and the problem with which this judgment is concerned would have been avoided altogether.
5. Miss Purnell then telephoned the Criminal Appeal Office and spoke to a member of staff whose identity is not known but who was evidently not a lawyer. Miss Purnell relayed the facts and her wish to apply for an order for retrial and asked if she could go back to court that afternoon in order to make the application. She was told that this was not possible and that she should write a note within 14 days explaining the position, and that the note would be put before the relevant person and the matter would proceed from there.
6. The member of staff was mistaken in referring to a 14 day period within which to make the application. The position was not clear at the time of the hearing before us on 14 February: reference had been made to a period of 7 or 14 days but counsel had been unable to identify such a provision in the rules. It appears from further investigation that there is nothing in the rules to cover it and that the reference to a period of 7 or 14 days was based on a simple misunderstanding.
7. In any event, Miss Purnell did not rely on having 14 days in which to make an application. She acted promptly, submitting to the Criminal Appeal Office by email at 13.45 on the same day, 8 February, a "Note for Registrar – Application for a retrial to be ordered under s.7". The email was forwarded internally to the relevant lawyer in the office. Unfortunately, however, the lawyer was out of the office at the time and was unable to action the email until her return on Friday 10 February. She did action it speedily then, making arrangements to list the application for hearing before the same constitution, specially convened for the purpose, on the following Tuesday, 14 February.
8. In the meantime, however, on Thursday 9 February, the notifications clerk in the Criminal Appeal Office had sent out the order recording the decision of the court to allow the appeal and quash the conviction. The order was in standard form, headed "Order on the Appeal" and stating that on 8 February 2012 the court had considered the appeal against conviction and had "Allowed the appeal and quashed the conviction". An email attaching the order was sent to the prison at which the appellant had been detained, with a request that a copy be printed out for the prison file and a copy be printed out and passed on or forwarded to the appellant. A separate email attaching the order was sent to Croydon Crown Court, with the request: "Please make arrangements to update the relevant screen on CREST with the Court of Appeal decision. Please arrange to place one copy on your file and forward one copy to the Trial Judge." The CREST system contains the court records in computerised form. We understand that the relevant screen was updated as requested so as to reflect this court's decision. The date when that was done is not recorded, but the current Crown Court Manual states that the Crown Court must update CREST as soon as the appeal result is received, and we understand that the practice is always to make updates within 48 hours of receipt of an order. It can therefore reasonably be inferred that the update was effected prior to the further hearing before this court on 14 February.
9. It is the sending out of the order and the giving of due effect to it by the Crown Court that lie at the heart of the problem discussed below. Clearly, the order was sent out by the notifications clerk in accordance with the usual practice where a conviction has been quashed and no retrial ordered. On that basis, it was highly desirable to give the relevant persons prompt notification of the court's decision. The standard form of order where a conviction has been quashed but a retrial has been ordered is very different, containing not only the decision to quash the conviction and order a retrial but also the detailed directions needed in respect of the retrial. Moreover, the practice is to send such an order to the Crown Court not by email but under cover of a letter from the Registrar enclosing the order and the judgment of the court.
10. That is the situation with which the court is now faced as a result of the initial failure of the CPS to give express instructions to counsel to apply if necessary at the hearing of the appeal for an order for a retrial, and counsel's omission even to raise the issue of a retrial when given an opportunity to do so at the end of the appeal hearing.

The legal framework

11. Section 2 of the Criminal Appeal Act 1968 ("the 1968 Act") provides:

"2(1) Subject to the provisions of this Act, the Court of Appeal:

(a) shall allow an appeal against conviction if they think that the conviction is unsafe …

(2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.

(3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal."

12. Section 7 sets out the power of the court to order a retrial. It provides, so far as material:

"7(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried …."

13. Supplementary provisions as to retrial are contained in section 8. Subsections (1)-(1B) concern the preferment of a fresh indictment and the timing of arraignment on that indictment where a retrial is ordered. Subsection (2) deals inter alia with detention in custody or release on bail pending the retrial. It provides:

"(2) 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, subject to section 25 of the Criminal Justice and Public Order Act 1994, release on bail of the person ordered to be retried pending his retrial …."

Subsections (3) and (3A) deal with the more complicated position of a person who immediately before the determination of his appeal was liable to be detained pursuant to provisions of the Mental Health Act 1959. Subsection (4) brings in the provisions of Schedule 2 concerning matters of procedure and sentence at the retrial itself.

Discussion

14. At the hearing on 14 February, Mr McGrath put the decision of the Court of Appeal in R v Cross (Patrick) [1973] 1 QB 937 at the forefront of his submissions. In that case the court had allowed an appeal against sentence; but later the same day the defendant was brought back because the court thought that he had not been frank in answering questions about another offence. The court set aside its original judgment and directed a rehearing, at which it was held that there was indeed power to alter the original decision. The judgment of the court on the rehearing, given by Lord Widgery CJ, explained the limits of the power to alter a judgment or order:

"It is well recognised that a court of record has power to alter a judgment or order which it has made within certain limits. The limits set in general appear to be that the power to alter the judgment ceases when the judgment is, in the words of the civil courts, drawn up. In other words, the general principle seems to be that once the judgment has been finally recorded, then the inherent power to vary it is lost. We are satisfied from the arguments before us, and indeed from our own experience, that that rule has been extensively applied in the criminal courts in the past. …

We think that the same principles ought to apply to this court, and so we have investigated, partly with the assistance of counsel and partly by making our own inquiries within the internal organisation of the court, to determine the appropriate equivalent moment at which proceedings in this court reach that degree of finality when no further change in the decision of the court is possible. …

When a judgment of this court is given, the registrar is required by the rules to notify the decision to a variety of people. By rule 15 of the Criminal Appeal Rules 1968 it is provided as follows:

'(1) The registrar shall, as soon as practicable, serve notice of any determination by the court or by any judge of the court under section 31 of the Act on any appeal or application by an appellant on – (a) the appellant; (b) the Secretary of State; (c) any person having custody of the appellant; (d) in the case of an appellant detained under the Mental Health Act 1959 the responsible authority. (2) The registrar shall, as soon as practicable, serve notice on the proper officer of the court of trial of the order of the court disposing of an appeal or application for leave to appeal.

It is to be observed that the formality required of the registrar under that rule is in no sense the making of a record. What the registrar is required to do, and does do, when he performs his duties under rule 15, is to give notice to interested parties of what the order of the court has been. Accordingly, it does not seem to us that it would be right or appropriate to pick upon the moment when these notices are issued as being the moment when the record is made up, because they are, as I have endeavoured to describe, in no sense a record. However, by order of the Lord Chancellor following the creation of the Crown Court, there is published a Crown Court Manual which contains specific provision as to what is to be done by the court of trial on receipt of notification from the registrar under rule 15. What the Crown Court Manual requires is that the officer of the court of trial on receiving notice of the determination of this court from the registrar, shall record the determination so transmitted to him. …

There is, therefore, for the first and really the only time the making of a formal record of the determination of this court, and we think that the proper interpretation of the position, so far as the matter presently under review is concerned, is that the court of trial is the court that maintains a formal record of proceedings in this court, and it is enabled to maintain such records by the registrar performing the duty cast upon him under rule 15. Consequently when the question arises, as it arises in this case, of the court's power to make a change in any decision or order which it has pronounced, the vital question is whether that decision or order has been recorded by the proper officer at the court of trial pursuant to the directions to which I have just referred" (940B-941E).

15. In the instant case, by contrast with R v Cross, there is no question of altering a previous decision: the court's decision to allow the appeal and to quash the conviction pursuant to section 2(1) and (2) of the 1968 Act is not in issue. We are concerned with the separate power under section 7 to order a retrial. Nevertheless the reasoning of the court in R v Cross is important, because it establishes the point at which an order on an appeal becomes final, namely when it is recorded by the proper officer of the court of trial. Mr McGrath submits that that is the point at which the appeal proceedings are concluded and the court is functus officio, so that it no longer has jurisdiction to exercise the power to order a retrial.
16. There has been some debate before us as to whether rule 15 of the Criminal Appeal Rules 1968, on which the court in R v Cross placed such weight, is still in force. It was intended that existing procedural rules would be superseded by the Criminal Procedure Rules on their introduction in 2005. Yet rule 15 still features on the Westlaw UK database as being in force, and Mr McGrath has provided us with written submissions as to why that may be the correct position. We strongly doubt the point: the Lexis Library looks more accurate in referring to the revocation of the 1968 Rules. It is unnecessary, however, to go into the legislative history or to reach a decision on the point. Rule 65.7(2) of the Criminal Procedure Rules contains a similar provision, that the Registrar must serve every decision on (a) the parties, (b) any other person whom the court requires to be served, and (c) the Crown Court officer and any party's custodian, where the decision determines an appeal or application for permission to appeal. The procedure we have described complies with that rule and is needed in order to give effect to section 2(3) of the 1968 Act, whereby an order of the Court of Appeal quashing a conviction is to operate as a direction to the court of trial. Further, as stated above, the current version of the Crown Court Manual referred to in R v Cross requires that when notice of the order is served on the Crown Court, immediate effect is given to it by updating the relevant page in the CREST system. In practice and substance, therefore, the position remains essentially as it was at the time of the judgment in R v Cross. It cannot therefore be said that subsequent developments have undermined the reasoning in that case so as to deprive it of its force as a binding precedent.
17. Applying R v Cross to the instant case where, on the information available to us, the order notified to the Crown Court must be taken to have been recorded on the CREST system before the hearing of the application for a retrial, we are satisfied that the order had become final by the time of that hearing. But the matter does not end there. By section 2(3) of the 1968 Act, the order operated as a direction to the Crown Court to enter, instead of the record of conviction, a judgment and verdict of acquittal; and we take it that the relevant CREST entry was to that effect. It follows that there is in place a final order to which effect has been given at the court of trial by entering a verdict of acquittal. It cannot possibly be open to this court to order a retrial after the appellant's acquittal has been recorded in that way.
18. The terms of the 1968 Act lean in any event towards the conclusion that the question of a retrial must be considered before an order quashing the conviction is notified to the Crown Court. Section 2(3) establishes a link between the power or duty in section 2(2) to quash a conviction and the power in section 7 to order a retrial: an order quashing a conviction "shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial …". It suggests that there is to be one order, which will either quash the conviction (in which case it operates as a direction to the court of trial as specified in subsection 2(3)) or quash the conviction and order a retrial (in which case it does not of course operate as such a direction).
19. A further point worth mentioning is that the provision in section 8(2) as to the making of orders for custody or release on bail pending retrial would not bite in the case of a late application for a retrial, where the conviction had already been quashed and the appellant had been discharged and was no longer before the court. This might not of itself be an insuperable problem: Miss Purnell submits that if a retrial were ordered and the Crown Court became seized of the matter, that court would have power under section 80(2) of the Senior Courts Act 1981 to issue a summons to the defendant to attend and be arraigned upon the newly preferred indictment. But section 8(2) does arguably contemplate that the court is to consider the question of a retrial while the appellant is still before it.
20. We do not need, however, to reach any wider decision as to the jurisdiction of the court to entertain late applications for a retrial. It suffices that in our judgment it is too late to exercise the power to order a retrial once the appellant's acquittal has been recorded by the court of trial pursuant to a final order of this court.
21. Miss Purnell seeks to avoid the foregoing by invoking the doctrine of nullity. She draws attention to cases such as R v Medway (1976) 2 Cr App R 85 and R v Palmer [2002] EWCA Crim 2675. In Medway it was held that the court has jurisdiction to give an applicant or appellant leave to withdraw a notice of abandonment of appeal or application for leave to appeal where the notice of abandonment can be treated as a nullity, that is to say where "the mind of the applicant did not go with his act of abandonment" (page 98). In Palmer the application of the same principles was considered in relation to an application by the Crown to withdraw its abandonment of an application for leave to appeal to the House of Lords. But we think it unnecessary to examine those cases in any detail because, whilst we accept that the principle in R v Cross does not apply when what has happened is a nullity (see R v Daniel (1977) 64 Cr App R 50 at 53), we cannot see how the doctrine of nullity can assist in this case.
22. The argument advanced by Miss Purnell is directed towards persuading the court to proceed as if an application for a retrial had been made at the original hearing; but the notion that the doctrine of nullity can operate to conjure up an application that was not made at all (as opposed to causing an application to revive through treating its abandonment as a nullity) strikes us as thoroughly misconceived. In any event, there can be no sensible basis for treating as a nullity the order recording the court's decision to allow the appeal and quash the conviction; and it is the finality of that order, together with the effect given to it by the Crown Court, that precludes the exercise of the power under section 7 to order a retrial.

Conclusion

23. For those reasons we are satisfied that it is not open to us in the particular circumstances of this case to order a retrial. That being so, no useful purpose would be served by our considering the substantive merits of the application for a retrial.
24. We end by drawing attention to the observation we have made at the end of [4] above. It is highly desirable that prosecuting counsel appearing at the hearing of a conviction appeal should have clear instructions as to whether to apply for a retrial in the event of the appeal being allowed and the conviction or convictions being quashed.