Court of Appeal, Criminal Division
Published October 29, 2007
Regina v Clark
Before Sir Igor Judge, President, Mr Justice Pitchford and Mr Justice Calvert-Smith
Judgment October 9, 2007

A refusal by a trial judge to order an adjournment before trial, or indeed at any time before the start of the summing-up, was a case management decision which could constitute a terminating ruling against which a prosecutor could appeal.

The Court of Appeal, Criminal Division, so held when refusing an application under section 58 of the Criminal Justice Act 2003 by the Crown for leave to appeal against a ruling made by Judge Milmo, QC, on September 18, 2007, in Nottingham Crown Court before the start of the trial of Martin Clark who had pleaded not guilty to charges of rape, assault occasioning actual bodily harm, common assault and criminal damage.

The judge ruled that there were no reasonable grounds to anticipate that the complainant would attend the trial, since her whereabouts were unknown, and he refused an adjournment. Mr Michael Cranmer-Brown for the Crown; Mr Gordon Aspen for the defendant.

THE PRESIDENT, giving the judgment of the court, said that the first question was whether the right of appeal granted by section 58 of the 2003 Act extended to a ruling which amounted to a case management decision; and the second was whether, assuming that it did, leave to appeal should be granted.

Section 74(1) of the 2003 Act defined “ruling” as including “a decision, determination, direction, finding, notice, order, refusal, rejection or requirement”.

In their Lordships’ judgment, the legislation was clear: a case management decision on whether to order an adjournment before trial, or indeed before the start of the summing-up, could constitute a terminating ruling. A right of appeal was not confined to a ruling of no case to answer.

By section 67 the Court of Appeal might not reverse a ruling on an appeal unless it was satisfied, inter alia: “(c) that the ruling was a ruling that it was not reasonable for the judge to have made."

A decision of the kind made by the judge in this case was usually described as an exercise of discretion but was in fact a decision made by the judge on all the material before him.

On the facts, the judge’s decision was eminently reasonable and their Lordships could not interfere with it. The application would be refused and the defendant acquitted.

Solicitors: Crown Prosecution Service, Lincolnshire; Bird & Co, Grantham.

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