Neutral Citation No. [2012] NICA 23	Ref:     	COG8524	
			
Judgment: approved by the Court for handing down	Delivered:	14/06/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 ________ 

ON APPEAL FROM THE CROWN COURT AT NEWRY
 ________ 

IN THE MATTER OF A PROSECUTION APPEAL PURSUANT TO ARTICLE 17 OF THE CRIMINAL JUSTICE (NORTHERN IRELAND) ORDER 2004
 ________ 

BETWEEN:

THE PUBLIC PROSECUTION SERVICE FOR NORTHERN IRELAND

Appellant;
-and-

HEATHER RAMSEY AND SAMUEL RAMSEY

Respondents.
________ 

Before: Higgins LJ, Girvan LJ and Coghlin LJ
 ________ 

COGHLIN LJ (delivering the judgment of the court)

[1]	This is an application for leave to appeal brought by the Public Prosecution Service for Northern Ireland (“the applicant PPS”) in accordance with the provisions of Article 17 of the Criminal Justice (Northern Ireland) Order 2004 (“the 2004 Order”).  The application relates to the trial on indictment of Heather Ramsey (“the first named respondent”) and Samuel Ramsey (“the second named respondent”) at Newry Crown Court commencing before His Honour Judge Finnegan and a jury on 17 October 2011.  Mr Peter Sefton and Ms McCullough appeared on behalf of the applicant, the first named respondent was represented by Mr O’Rourke QC and Mr Hutton while Mr Daly and Mr P O’Kane appeared on behalf of the second named respondent.  The court wishes to acknowledge the assistance that it derived from the helpful oral and written submissions of all counsel.

The background facts

[2]	The trial on indictment of the respondents commenced before His Honour Judge Finnegan at Newry Crown Court on 17 October 2011.  The respondents faced an indictment containing four counts as follows:

(1)	Count 1 – The first named respondent was charged with concealing criminal property, contrary to Section 327(1)(A) of the Proceeds of Crime Act 2002 (“POCA”) on a date unknown between 1 May 2009 and 1 September 2009 amounting to £22,000 or thereabouts.  

(2)	Count 2 – The first named respondent was charged with possessing criminal property, contrary to Section 329(1)(c) of POCA in that on 7 November 2009 she had possession of £8,940 or thereabouts. 

(3)	Count 3 – The first named respondent was charged with possessing criminal property, contrary to Section 329(1)(c) of POCA in that on 7 November 2009 she had possession of €5,445 or thereabouts.  

(4)	Count 4 – The second named respondent was charged with concealing criminal property, contrary to Section 327(1)(a) of POCA on 13 November 2009 amounting to some £22,000 or thereabouts.

[3]	On 27 October 2011 Mr O’Rourke applied to the learned trial judge for a direction that the first respondent had no case to answer on each of the three counts that she faced.  Mr Daly, on behalf of the second named respondent, made a similar application.  The learned trial judge reserved his decision to the following morning.  

[4]	On Friday 28 October 2011 the learned trial judge said that he would indicate the “state of play” and explained that he was satisfied at the moment that he should grant the application in respect of Counts 2 and 3 against the first respondent and in respect of Count 4 against the second respondent.  He indicated that he needed further time to assimilate and analyse the contents of the evidence relating to Count 1.  Ms McCullough, on behalf of the PPS, sought an adjournment in order to consider the possibility of an appeal and pressed the learned trial judge to give reasons for the ruling that he intended to deliver.  The learned trial judge agreed to do so “in due course” but emphasised that he was satisfied that the jury should now be discharged.  The 28 October 2011 was the Friday prior to the commencement of the mid-term break and it seems that the jury had been given undertakings that the case would be completed by that date.  Some of the jurors appear to have made holiday arrangements in accordance with such undertakings. The learned trial judge indicated that it would not be possible to give reasons for his ruling that day which was the last day upon which the jury could reasonably have been asked to continue to sit.  He went on to observe:

“At the moment that was why I indicated there was still a query that the court was anxious about Count 1, but all I am doing at the moment is discharging the jury.  The trial remains intact.  Everybody’s position is confirmed other than for me to say the matters that I have indicated were in the court’s mind will be taken into account at a later stage when we decide a common way forward when we will have court time to deal with the issues arising.  That may not be satisfactory for any of the parties in this case, but it is all I can do today.”

The learned trial judge had earlier explained that “… in view of this development the court will retain seisin of it (the case) and has its own remedies to deal with any injustice over the fact that we have a jury that will not be able to continue in this case.”  When pressed by Mr O’Rourke as to whether he was going to rule on the applications the trial judge declined to do so saying that he had merely indicated the way in which he intended to make a ruling.  The learned trial judge then proceeded to discharge the jury.  

[5]	The case was further mentioned on 8 and 9 November when Ms McCullough again requested reasons for the ruling and it appears that there was some delay in arranging for a transcript to be made or discs of the ruling to be produced.  On the latter occasion, when asked by Mr O’Rourke whether he was in a position to indicate his decision while postponing the full reasons the learned trial judge stated:

“Yes, the judgment will disclose that I am minded to, and when we get another jury, to direct them to enter not guilty verdicts on 2, 3 and 4, but that there is a case to answer on Count 1.”

[6]     At a further mention on 11 November 2011 there was an indication that the discs recording the ruling had been mislaid and it was not until 15 November 2011 that the learned trial judge was able to deliver a formal ruling with detailed reasons.  Ms McCullough then indicated that the PPS sought leave to appeal the ruling in accordance with Article 17(2) of the Criminal Justice (Northern Ireland) Order 2004 (“the 2004 Order”) and informed the court, in accordance with Article 17(8) and (9) of that Order that in the event of leave to appeal to the Court of Appeal not being obtained or the appeal being abandoned before it was determined by the Court of Appeal the PPS agreed that the respondents should be acquitted of the relevant counts.  The learned trial judge refused leave to appeal to the Court of Appeal.  Ms McCullough then indicated that the application would be renewed to this court.

The relevant statutory framework

[7]	The relevant provisions of Article 17 of the 2004 Order provide as follows:

“17-(1)	  This Article applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.  

(2)	The prosecution may appeal in respect of the ruling in accordance with this Article.

(3)	The ruling is to have no effect whilst the prosecution is able to take any steps under paragraph (4).  

(4)	The prosecution may not appeal in respect of the ruling unless, following the making of the ruling – 

(a)	it informs the court that it intends to appeal; or

(b)	it requests an adjournment to consider whether to appeal and if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

(5)	If the prosecution requests an adjournment under paragraph (4)(b), the judge may grant such an adjournment.  

…

(8)	The prosecution may not inform the court in accordance with paragraph (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in paragraph (9) is fulfilled.  

(9)	Those conditions are –

(a)	that leave to appeal to the Court of Appeal is not obtained; and

(b)	that the appeal is abandoned before it is determined by the Court of Appeal.

(10)	If the prosecution informs the court in accordance with paragraph (4) that it intends to appeal, the ruling mentioned in paragraph (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

…

(12)	Where the prosecution has informed the court of its agreement under paragraph (8) and either of the conditions mentioned in paragraph (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

(13)	In this article ‘applicable time’, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the time when the judge starts his summing-up to the jury.

(14)	The reference in paragraph (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up if there were a jury.”

[8]	Article 20 of the 2004 Order deals with the powers of the Court of Appeal on an appeal under Article 17:

“20-(1)  On an appeal under Article 17, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

(2)	Paragraphs (3) to (5) apply where the appeal relates to a single ruling.  

(3)	Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of appeal, order that the defendant in relation to that offence be acquitted of that offence.

(4)	Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following –

(a)	order that proceedings for that offence may be resumed in the Crown Court;

(b)	order that a fresh trial may take place in the Crown Court for that offence;

(c)	order that the defendant in relation to that offence be acquitted of that offence.

(5)	But the Court of Appeal may not make an order under paragraph (4)(a) or (b) in respect of an offence unless it considers it necessary in the interests of justice to do so.

(6)	Paragraphs (7) and (8) apply where this relates to a ruling that there is no case to answer and one or more other rulings.

(7)	Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(8)	When the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal make any of the orders mentioned in paragraph (4)(a) to (c) (but subject to paragraph (5)).”

The proceedings before this court

[9]	Before this court counsel on behalf of the PPS and both respondents submitted that this court had no jurisdiction to grant the application for leave to appeal.  On behalf of the first respondent Mr O’Rourke argued that the ruling to which the application relates was not made “at an applicable time … in relation to a trial on indictment” in that at the time when it was delivered by the learned trial judge there was no longer a trial on indictment.  Mr Sefton and Mr Daly also primarily relied upon the proposition that there was no appealable ruling under the 2004 Order.  However, whilst there was agreement between the parties as to the absence of an appealable ruling, no such agreement existed with regard to the consequences of such a state of affairs.  Mr Sefton on behalf of the PPS argued that the case should be re-listed before the Crown Court at Newry while Mr O’Rourke and Mr Daly submitted that the prosecution should abandon the appeal leaving the respondents thereby entitled to be acquitted of the relevant counts in accordance with the agreement expressed on behalf of the PPS in accordance with Article 17(8) of the 2004 Order.

Discussion

[10]	It seems clear to this court, and appears to be accepted by all parties, that, in this particular case, the learned trial judge discharged the jury before delivering the ruling that is the subject of this application.  The decision to discharge the entire jury is solely a matter for the discretion of the trial judge and is not subject to review or appeal – see Winsor v R (1866) LR 1 QB 390 and Hambley [1977] QB 924.  The discharge of the entire jury is not equivalent to a verdict of acquittal and the defendant may be remanded either on bail or in custody for a fresh trial – see R v Randall [1960] Crim. L.R. 435 and R v Robinson [1975] QB 508.  

[11]	The 2004 Order introduced for the first time the right of the prosecution to appeal certain procedural or evidential rulings made by a trial judge during the course of a criminal trial including a direction to the jury that a defendant had no case to answer in respect of one or more counts on the indictment.  Parliament undoubtedly recognised the need for such a right to be clearly defined and tightly prescribed in order to reduce the risk of unmerited appeals adding unnecessarily to the cost and time taken up by criminal trials.  Hence the right of appeal was made strictly conditional upon compliance with Articles 17(4) and (8).  Article 17(1) of the 2004 Order restricts the situations in which the prosecution is to enjoy a right of appeal to rulings made by the judge at “an applicable time”.  Article 17(13) defines “applicable time” in relation to a trial on indictment as any time, whether before or after the commencement of the trial, before the time when the judge starts his summing up to the jury. In this case the jury into whose charge the respondents had been placed at the commencement of the trial had been discharged from bringing in verdicts thereby effectively bringing the trial to an end before the purported delivery of the relevant ruling. 

[12] In the circumstances we are satisfied that this court has no jurisdiction to entertain an application on behalf of the PPS for leave to appeal in accordance with Article 17 of the 2004 Order because there is no valid ruling in existence in respect of which such leave might be granted.  The ruling to which this application relates purports to have been delivered more than two weeks after the jury had been discharged.  Clearly, the ruling was delivered outside the “applicable time” specified in Article 17 at a time when the trial had been brought to an end and no jury existed to which a direction could be delivered to acquit either of the respondents of any of the counts.  In such circumstances the rights and obligations specified in Article 17 simply do not arise.  Accordingly, it seems to us that the proper course is for the case to be remitted to the Crown Court in Newry and for the trial to recommence on the basis of the original indictment.

[13]	As we have indicated in the course of this ruling, the prosecution rights of appeal contained in the 2004 Order comprise a technical and tightly defined system the effective compliance with which requires considerable care and attention on the part of practitioners.  In this case the learned trial judge was quite properly concerned with the undertakings that had been given to the members of the public serving on the jury which he, rightly, felt obliged to honour.  In our view counsel on behalf of the PPS quite properly conceded in this court that the judge was entitled to expect and to receive a little more assistance from counsel, particularly with regard to the potential consequences of discharging the jury at the point in the trial when that event occurred.