Court of Appeal gives guidance on late arraignments prior to retrial

Tim Sleigh-Johnson secured an acquittal of the defendant at the Court of Appeal in R v A [2020] EWCA Crim 1801 following a failure by the CPS to secure rearraignment within the time limit.


As the back log of cases increase in the Crown Court, and delays continue as a result of Covid-19, the Court of Appeal examined a case where the CPS sought permission to arraign a defendant almost nine months after an order for retrial was made.


The law on arraignments prior to retrial


Section 8 of the Criminal Appeal Act 1968 is clear that where a person is to be retried for an offence, there should be a fresh indictment and arraignment within 2 months of an order for retrial.


If there is no fresh indictment and arraignment within 2 months, the Crown must seek the leave of the Court of Appeal. The Court of Appeal will only grant leave if they are satisfied that:


  1. The prosecution have acted with all due expedition; and

  2. That there is a good and sufficient cause for retrial in spite of the lapse of time.

Where a defendant has been ordered to be retried byt may not be retried without leave, he may make an application to set aside the order for retrial and for an acquittal to be directed.


Chronlogy of the case


  • 19 March 2020: the conviction of the defendant was quashed and retrial ordered. The Court of Appeal ordered that the indictment should be served within one month and the defendant rearrainged within 2 months.

  • 23 March 2020: the new indictment was uploaded to the Digital Case System (DCS).

  • 27 March 2020: the Crown requested an urgent listing.

  • 2 April 2020: the case was listed for a bail application. The defendant was granted conditional bail. He was not produced and therefore not arraigned.

  • 14 October 2020: the lack of arraignment was raised during at hearing at the Crown Court. The prosecution thereafter made an application under section 8 of the Criminal Appeals Act for leave for the defendant to be rearraigned out of time. The application was opposed by the Defence.


Conclusion


The Court of Appeal was clear that, even in the context of Covid-19, to overlook the deadline was unacceptable. The court considered that it could not be characterised as anything approaching reasonable speed on the part of the prosecution and that the Crown had not acted with all due expedition. In particular:


"the prosecution 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 reveals the absence of any semblance of urgency. "

The Court of Appeal provided the following guidance:


“Firstly, we emphasise that it is the duty of the CPS to upload the new indictment to the Digital Case System at the first reasonable opportunity after the decision of the Court of Appeal Criminal Division. Secondly, once the notification from the Registrar of Criminal Appeals arrives 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 pretrial review on a fixed day within one month of the order of the Court of Appeal Criminal Division to enable arraignment to take place. Thirdly, 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 is recommended this be no later than several days before the expiry of the deadline. If the above regime is adopted, that will mean that there is proper judicial oversight and control of the date for arraignment and will lead to securing the earliest reasonable trial date. Should there be any lack of expedition on the part of either party, it can be corrected by the intervention of the court at an early stage. The second and third stages are pivotal to the efficient operation of the retrial process when that is what has been directed by the Court of Appeal.”

Timothy Sleigh-Johnson is a criminal barrister in chambers and was called in 2010. To instruct Tim, contact the clerks by email at clerks@2drj.com or by telephone on 0207 936 2613.