Criminal Procedure Act 2010

23.

Appeals by Director etc., in certain criminal proceedings.

23.— (1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, F4 [ may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to

(I) the Court of Appeal, or

(II) in the case of a person who is tried on indictment in the Central Criminal Court, the Court of Appeal or the Supreme Court under Article 34.5.4 ° of the Constitution. ]

F4 [ (2) Where a person s conviction of an offence on indictment is quashed on appeal by the Court of Appeal and the Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General, as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court under Article 34.5.3 ° of the Constitution. ]

(3) F4 [ An appeal referred to in this section ] shall lie only where—

F4 [ (a) a ruling was made by a court

(i) during the course of a trial referred to in subsection (1), or

(ii) during the hearing of an appeal referred to in subsection (2),

which erroneously excluded compelling evidence, or, ]

( b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—

(i) the direction was wrong in law, and

(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

F4 [ (4) An appeal referred to in this section shall be made on notice to the person who is the subject of the appeal within 28 days or such longer period not exceeding 56 days as

(a) in the case of an appeal referred to in subsection (1), the Court of Appeal or the Supreme Court, as the case may be, or

(b) in the case of an appeal referred to in subsection (2), the Supreme Court,

may, on application to it in that behalf, determine, from the day on which the person was acquitted or the conviction was quashed, as the case may be. ]

(5) Where a person fails to appear before F4 [ the Supreme Court or the Court of Appeal, as the case may be, ] in respect of the appeal, the Court, if it is satisfied that it is, in all the circumstances, in the interests of justice to do so, may proceed to hear and determine the appeal in the absence of the person concerned.

(6) F4 [ For the purposes of considering an appeal referred to in this section the Supreme Court or the Court of Appeal, as the case may be, ] shall hear argument—

( a) by, or by counsel on behalf of, the Director, or as the case may be, the Attorney General,

( b) by the person who is the subject of the appeal or by counsel on his or her behalf, and

( c) if counsel are assigned under subsection (7) , by such counsel.

(7) F4 [ The Supreme Court or the Court of Appeal, as the case may be, shall assign counsel to argue in support of the acquittal referred to in subsection (1) or the decision not to order a re-trial referred to in subsection (2), as the case may be, if ]

( a) the person who is the subject of the appeal does not wish to be represented or heard under subsection (6)(b), or

( b) notwithstanding the fact that the person concerned exercises his or her right to be represented or heard under subsection (6)(b), the Court considers it desirable in the public interest to do so.

F4 [ (8) Where an appeal referred to in this section has been made to the Court of Appeal or the Supreme Court and a legal aid (appeal) certificate or, as the case may be, a legal aid (Supreme Court) certificate, is granted under subsection (9), or deemed to have been granted under subsection (10), in respect of the person who is the subject of the appeal, he or she shall be entitled to free legal aid in the preparation and conduct of any argument that he or she wishes to make to the Court of Appeal or the Supreme Court, as the case may be, and to have a solicitor and counsel assigned to him or her for that purpose in the manner prescribed by regulations under section 10 of the Act of 1962. ]

F4 [ (9) The person may, in relation to an appeal referred to in this section, apply for a legal aid (appeal) certificate to the Court of Appeal or a legal aid (Supreme Court) certificate to the Supreme Court, as the case may be, either

(a) by letter to the registrar of the Court of Appeal or, as the case may be, the registrar of the Supreme Court, setting out the facts of the case and the grounds of the application, or

(b) to the Court of Appeal, or the Supreme Court, itself, as the case may be,

and the Court concerned shall grant the certificate if (but only if) it appears to the Court that the means of the person are insufficient to enable him or her to obtain legal aid. ]

(10) If a legal aid (trial on indictment) certificate was granted under the Act of 1962 in respect of the person concerned in relation to the earlier proceedings in respect of the offence concerned, F4 [ a legal aid (Supreme Court) certificate or a legal aid (appeal) certificate, as the case may be, ] shall be deemed to have been granted in respect of him or her F4 [ in relation to an appeal referred to in this section ].

(11) F4 [ On hearing an appeal referred to in subsection (1) the Court of Appeal may ]

( a) quash the acquittal F5 [ ] and order the person to be re-tried for the offence concerned if it is satisfied—

(i) that the requirements of F4 [ subsection (3)(a)(i) or (b) ], as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12) , it is, in all the circumstances, in the interests of justice to do so,

or

( b) if it is not so satisfied, affirm the acquittal F5 [ ].

F6 [ (11A) On hearing an appeal referred to in this section, the Supreme Court may

(a) quash the acquittal or reverse the decision of the Court of Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied

(i) that the requirements of subsection (3)(a) or (b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

or

(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Appeal, as the case may be. ]

(12) F4 [ In determining whether to make an order under paragraph (a) of subsection (11) or (11A), the Court of Appeal or the Supreme Court, as the case may be, ] shall have regard to—

( a) whether or not it is likely that any re-trial could be conducted fairly,

( b) the amount of time that has passed since the act or omission that gave rise to the indictment,

( c) the interest of any victim of the offence concerned, and

( d) any other matter which it considers relevant to the appeal.

(13) ( a) F4 [ The Court of Appeal or the Supreme Court, as the case may be, ] may make an order for a re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.

( b) Subject to paragraph (a), where F4 [ the Court of Appeal or the Supreme Court, as the case may be, ] makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.

(14) In this section “compelling evidence”, in relation to a person, means evidence which—

( a) is reliable,

( b) is of significant probative value, and

( c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.