Abstract
When the Court of Appeal (Criminal Division) allows an appeal against conviction it has the power to order a retrial by s. 7 of the Criminal Appeal Act 1968 if it thinks doing so is in the interests of justice. When it does so, it orders that a fresh indictment be preferred and for the appellant to be re-arraigned within two months. This is in pursuance of the provisions of s. 8, which states that the person ‘may not be’ arraigned for retrial more than two months after the order for retrial (without further leave of the Court of Appeal). Where the time limit expires the defendant can apply to the Court of Appeal to set aside the order for a retrial and ask for an order of acquittal to be entered (s. 8 (1A)). The prosecution can apply for leave to arraign out of time by s. 8(1), but the Court of Appeal can grant leave by s. 8(1B)(b) only if it is satisfied that the prosecution has acted with due expedition, and there is good cause to retrial.
The question of what happens if the requirements of s. 8 were not complied with was recently considered by the Court of Appeal in R v Llewellyn ([2022] EWCA Crim 154, Fulford LJ, Cutts, Cockerill JJ). The Court observed that in a case specifically involving a retrial ordered by the Court of Appeal following the quashing of a conviction, the proceedings will already have taken a significant period of time [39]. The purpose of s. 8 is to ensure that the retrial takes place as soon as possible. The Court concluded that the Crown Court only had jurisdiction to retry because the Court of Appeal had ordered a retrial under s. 7, and that ‘Parliament made this jurisdiction contingent on fulfilment of the obligations set out in s. 8’ [45]. Further, Parliament clearly intended the total invalidity of the later proceedings if the requirements were not complied with [46]. ‘Parliament did not intend that this procedure could simply be avoided, intentionally or otherwise, thereby depriving an accused of a substantive and unique protection’ (id). The appeal in that case was allowed and the conviction quashed.
The appellant in the present case, Stuart Layden (L), invited the Court to reconsider the question. L was convicted of the murder of Ian Church (C) in 2013. He was sentenced to life imprisonment with a minimum term of 8 years. The facts of the incident are not relevant to the issues raised in the appeal. That conviction was quashed on 19 March 2015 and a retrial was ordered by the Court of Appeal on the same day; the two month period for re-arraignment thus expired on the 19th May 2015. L was granted bail and appeared before the relevant Crown Court in April 2015 but he was not formally re-arraigned. It seems (and it was conceded) that he was arraigned on the 28th September 2015, before the jury was empanelled on the first day of the retrial [5]. The retrial took place but the jury was discharged during its deliberations. A second retrial took place, and L was convicted in May 2016. L appealed against that conviction in 2017 on other grounds (no point being made about the application of s. 8) but that appeal was dismissed (see R v Layden [2017] EWCA Crim 216). The present appeal appeared before the Court of Appeal on a reference from the Criminal Cases Review Commission (CCRC).
L argued that Llewellyn correctly stated the law, and that Parliament had decided that material non-compliance with section 8 would be a jurisdictional bar to any retrial. His conviction is therefore a nullity and unsafe. The respondent Crown argued that Llewellyn was wrongly decided: Failure to arraign within two months was an irregularity not a jurisdictional bar. The Court of Appeal should depart from Llewellyn as a matter of principle.
On the question of whether the Court should depart from its precedent in Llewellyn, the Court found that it was in any event correctly decided but provided guidance as to when the Court may depart from previous decisions. While the Court does not apply stare decisis with the same rigidity as in civil cases, the circumstances in which the Court will depart are limited [35]. The Court said: there was no material factual difference between Llewellyn and Layden; there were no conflicting lines of authority; and there was no basis for saying Llewellyn was in ignorance of relevant statutory authority [36]. As such, it would have considered itself bound by the decision in any event.
Commentary
Arraignment is the process by which the charges are put to the defendant at a Plea and Trial Preparation Hearing, against which the defendant is to plead. If a defendant pleads not guilty (as in this case) the date for trial will be set. As the Court observed (at [19]) the focus is on arraignment, rather than mere appearance at the PTPH, because once that has taken place the trial is under judicial control and the judge can ensure the retrial occurs as soon as possible. The defendant must be formally arraigned. The intention is that retrials will take place as soon as possible. The Court of Appeal was here restating that where certain actions are mandated in ordinary and clear language by Parliament, it (the Court) will strictly require such requirements are complied with. This is so notwithstanding that it was a procedural error (albeit a remarkable oversight, repeated numerous times throughout the life of the case), that the conviction was ‘otherwise sound’, and that no prejudice was caused by the error [39]. Counsel, the prosecution, and the judiciary, have now been put on clear notice in two recent cases that retrials ordered by the Court of Appeal conducted in breach of s. 8 are unsafe.
On the question of when it will be appropriate for the Court of Appeal to grant permission to arraign beyond two months see R v Pritchard [2012] EWCA Crim 1285, where the order was refused. More recently, see R v Al-Jaryan [2020] EWCA Crim 1801 where the Court refused to grant permission almost nine months after the order for retrial was made. The Court there said that simply overlooking the deadline was unacceptable and far beyond what would considered reasonable speed. The duty to arraign on time is on the Court, but that obviously requires an amount of joined-up thinking between the CPS, defence, and the Court. It is up to the CPS primarily to take urgent and purposeful steps to call to the Court's attention the need for a date for re-arraignment. (Cf. R v Gill [2023] EWCA Crim 976, decided after Llewellyn, where an order under s. 8 (1) was granted as the Court found there was a simple error and the parties had acted expeditiously). The dividing line seems to be that the CPS must have pressed the issue to the Court that arraignment must occur.
The truth is that this appeal was not answerable by the prosecution. Rarely, certainly in the Criminal Division, is an appeal on all fours with a precedent, but this was such a case. The respondent attempted to avoid the consequences of Llewellyn by asking the Court to find that it was wrongly decided. The Crown pointed to two potentially ‘absurd’ consequences (see [25]): (1) logjams caused where the defendant voluntarily absented themselves before arraignment, and (2) where both the prosecution and defence wish to proceed they still need to apply to the Court of Appeal for permission to arraign. Neither overrode the clear intention of Parliament in enacting s. 8. The Court doubted whether there would be significant logjam given the relatively limited class of defendants to whom the rules apply (i.e., those who have had an appeal allowed and a retrial ordered and who were then granted bail). It accepted (2) is a consequence of Llewellyn, but observed that this was the regime created by s. 8 of the Act.
This appeal raises several worrying questions. To err is human, but to anybody aware of the statutory regime, this was an obvious and indeed fatal error. Lack of proper arraignment was not noticed by anybody despite the case passing through two retrials and an appeal against conviction. It is striking that two appeals against conviction should appear before the Court of Appeal within two years on precisely the same question. The Court of Appeal has been ordering tens of retrials each year for decades; how many more convictions have been secured following an unlawful re-arraignment over this time? Such convictions are unlawful and are unsafe. The public record is wrong. It may be that some kind of review is required, perhaps with a legislative ‘fix’ put in place. The error with the arraignment in Mr Layden's case occurred around March – May 2015, long before Llewellyn publicised the issue. As such, this is not a ‘change of law’ case – s. 8 has said what it says since the 1988 Criminal Justice Act. Since it is not a change of law case, there is no need to satisfy the ‘substantial injustice’ test and, as in Layden, it does not apply only to conviction secured after Llewellyn. This may add up to a serious headache for those administering criminal justice.
A cautionary note if any more is needed: any person dealing in any capacity, and especially within the CPS, with retrials following an order by the Court of Appeal must be aware of the need to arraign within two months of the order, or to seek an order under section 8(1). The case law suggests that the Court of Appeal is not keen on granting such orders, it will depend upon the level of effort made to arraign the defendant on time. Prosecuting counsel (in particular) should be on top of the relevant dates for arraignment and should press the issue to the presiding judge of the importance of arraigning (see comments in Gill (above) at [39]. Al-Jaryan (above) also placed the duty on Crown Court officers: once the Crown Court centre receives notification from the Registrar of Criminal Appeals of the retrial order it should list the case before a judge to fix a date for arraignment. These two cases show the importance of ensuring that this takes place.
Conclusion
This case was legally indistinguishable from Llewellyn; once it is established that the appellant was not arraigned in time and that no permission for late arraignment was granted the conviction must be unsafe. All practitioners dealing with retrials ordered by the Court of Appeal are now put on notice of the rules in section 8, and would be well advised to ensure they are complied with.