Court of Appeal, Criminal Division
Published May 22, 2008
Regina v B (Judicial discretion)

The Court of Appeal, Criminal Division, would not give the Crown leave to appeal unless it was seriously arguable, not that a judge in exercising his discretion or making his judgment in the course of a criminal trial might have decided differently, but that it was unreasonable for him to have done it in the way he had.

The Court of Appeal, Criminal Division, (Sir Igor Judge, President, Mr Justice Aikens and Mrs Justice Swift) so stated on May 1, 2008, when refusing an application by the Crown for leave to appeal under section 57 of the Criminal Justice Act 2003 against a ruling by Judge Rogers, QC, on April 24, 2008, at Mold Crown Court, staying the proceedings against B, who was charged with attempted abduction, as an abuse of process.

THE PRESIDENT said that when a judge exercised his discretion or made his judgment during a criminal trial, the very fact that he had had carefully to balance conflicting circumstances would almost inevitably mean that he could reasonably have reached a different or opposite conclusion to the one which he did reach.

No trial judge should exercise discretion in a way which he personally believed might be unreasonable but that was not to say that he would necessarily find every such decision easy.

However, the mere fact that a judge could reasonably have reached a decision different from the one that he did reach did not begin to provide the basis for a successful appeal.

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