The prosecution’s application for permission to arraign the defendant just under nine months after his conviction for possession of a prohibited firearm had been quashed and a retrial had been ordered, was dismissed. The Court of Appeal, Criminal Division, held, among other things, that the mandatory requirement in s 8(1B)(b)(i) of the Criminal Appeal Act 1968 was not met, because the prosecution had not acted with all due expedition. In so ruling, the court gave guidance as a means of endeavouring to avoid any repetition of the delay that had occurred in the present case. The defendant’s application for an order, directing his acquittal, was allowed.

[2020] All ER (D) 131 (Dec)

*R v Al-Jaryan

[2020] EWCA Crim 1801


Court of Appeal, Criminal Division

Simler LJ, Goss J and the Recorder of Sheffield

7 December 2020


Criminal law – Retrial – Guidance given following prosecution’s application for permission to arraign defendant eight months after conviction quashed and retrial ordered

In March 2020, the defendant’s conviction for possession of a prohibited firearm, contrary to s 5(1)(aba) of the Firearms Act 1968 (FA 1968), was quashed and a retrial was ordered by the Court of Appeal, Criminal Division. An order, preventing reporting of the judgment until the conclusion of the trial, was made under s 4(2) of the Contempt of Court Act 1981 (CCA 1981), and the court ordered that the indictment should be served within one month, and that the defendant should be re-arraigned within two months.

The indictment was promptly served and uploaded to the Digital Case System. However, the defendant was not arraigned on that indictment within the two-month period specified. In October 2020, at a plea and trial preparation hearing (the PTPH) concerning a fresh matter, the mistake was appreciated, and case was sent back to the Court of Appeal.

The prosecution applied for permission to arraign the defendant just under nine months after his conviction had been quashed. The application was made pursuant to ss 8(1) and 8(1B)(a) of the Criminal Appeal Act 1968 (CAA 1968). The defendant opposed the application and sought an order, setting  aside the order for retrial and directing a verdict of not guilty on the indictment, pursuant to CAA 1968 s 8(1B)(b).

Whether the prosecution’s application should be allowed, or whether an order should be made, setting aside the order for retrial and directing a verdict of not guilty.

The prosecution had two hurdles to surmount in making the present application. Both had to be overcome. The first was to demonstrate that they had acted with all due expedition. The second was to demonstrate that there was a good and sufficient cause for a retrial in spite of the lapse of time. If the prosecution failed in relation to one or both hurdles, the defence application had to succeed (see [19] of the judgment).

Given that the future trial was a retrial, so that inbuilt delay had occurred, it was important that it should take place swiftly. Very little would usually need to be done in terms of further preparation for trial as the case was to be retried. The prosecution papers would have been served earlier and the defence should be ready for trial (see [25] of the judgment).

Two important stages had to be accomplished with some speed: first, service of the indictment. Second, arraignment. The focus of s 8 was on arraignment to ensure judicial control and oversight. Arraignment engaged active judicial oversight in order to ensure the case could be listed for trial at the earliest practical opportunity. When that was not done, the Court of Appeal only had power to permit arraignment out of time when the cumulative requirements of s 8(1B)(b)(i) and (ii) were met, that was to say the prosecution had to have acted with ‘all due expedition’, and there had to be a ‘good and sufficient cause’ for a retrial in spite of the lapse of time since the order of the Court of Appeal was made (see [25] of the judgment).

The expression ‘due expedition’ meant reasonable speed in relation to securing arraignment. The primary duty to ensure that arraignment took place within the time allowed was on the Crown Court. Both the prosecution and the defence were required to be proactive in that regard but, ultimately, it was the duty of the court to ensure the case was listed within time. Orders of the Court of Appeal usually arrived in the court office within a short space of time following the decision of the court, and prompt action by court staff was generally to be expected thereafter (see [24], [25] of the judgment).

It might be helpful to give some guidance as a means of endeavouring to avoid any repetition of the delay that had occurred in the present case. First, it was the duty of the Crown Prosecution Service (CPS) to upload the new indictment to the Digital Case System at the first reasonable opportunity after the decision of the Court of Appeal. Second, once the notification from the Registrar of Criminal Appeals arrived at the Crown Court, usually within a very short time after the conclusion of the case, and usually accompanied by the order of the full court, the Crown Court should list the case before a judge for directions or pre-trial review on a fixed day within one month of the order of the Court of Appeal to enable arraignment to take place. Third, the date, so fixed, should not be altered or adjourned without the express permission of the Resident judge, and only then to a date within two months of the order of the Court of Appeal. It was recommended that that be no later than several days before the expiry of the deadline. If the above regime was adopted, that would mean that there was proper judicial oversight and control of the date for arraignment and would lead to securing the earliest reasonable trial date. Should there be any lack of expedition on the part of either party, it could be corrected by the intervention of the court at an early stage. The second and third stages were pivotal to the efficient operation of the retrial process when that was what had been directed by the Court of Appeal (see [33] of the judgment).

In the present case, as circumstances had transpired, the case had not been listed on 18 May 2020 and, at some point, that had to have become clear to counsel for the prosecution and/or the reviewing lawyer. However, notwithstanding that, once again, nothing whatever had occurred. There was nothing to suggest that counsel who had attended court had contacted the CPS lawyer to say that the case had not been in the list, nor that the lawyer had contacted the Crown Court to query why the case had not been in the list, given the significance of 18 May as the last day before the deadline. Had urgent action been taken, even at that point, no doubt an urgent listing could have been made for 19 May 2020 (see [28] of the judgment).

In simple, terms, it seemed that nothing had been done beyond 2 April 2020 by the Crown Court or the CPS, or indeed the defence, to secure a date for arraignment in court. Even when 18 May 2020 had approached, it appeared that nothing had been done to alert the court to the fact that an important deadline had been imminent. Even after the deadline had passed, nobody had sought to remedy the situation. Months had passed before the problem had been noted by a judge who had been dealing with a new and unconnected case which had happened to be in the same Crown Court, and involving the defendant (see [29] of the judgment).

It was appreciated that the Crown Court and all the parties in the present appeal had been labouring in difficult circumstances during the early stages of the response to the COVID-19 pandemic. That might account for some of the failings, but simply to have overlooked the deadline and, thus, a mandatory order of the Court of Appeal, was unacceptable. It could not be characterised as anything approaching reasonable speed on the part of the prosecution. Accordingly, the mandatory requirement within s 8(1B)(b)(i) was not met. The prosecution had not acted with all due expedition. It should have taken urgent and purposeful steps to call the attention of the court to the absence of a firm date for arraignment well before 15 May 2020, but, at the very latest, on 15 May 2020. The conduct after that date revealed the absence of any semblance of urgency (see [30] of the judgment).

Given that conclusion, the present court did not have to consider whether there was good and sufficient cause for a retrial within s 8(1B)(b)(ii), and since any conclusion the court expressed would be academic, it preferred to express no view in relation to that hurdle (see [31] of the judgment).

Accordingly, leave to arraign the defendant outside the two months permitted by CAA 1968 s 8(1) would be refused. Furthermore, the defendant’s application pursuant to s 8(1A), to set aside the court’s order for a retrial, would be granted. The Crown Court would be directed to enter judgment and verdict of acquittal on count 2 of the original indictment, which was the count on which he was to be retried (see [32] of the judgment).

The prosecution’s application  would be refused. The defence’s application to direct an acquittal of the defendant would be granted. The order made under CCA 1981 s 4(2) would be lifted (see [34] of the judgment).

R v Pritchard [2012] EWCA Crim 1285 adopted.

Timothy Sleigh-Johnson for the defendant.

S Ward for the Crown.

Carla Dougan-Bacchus Barrister.