R v Layden 2025
L was convicted of the murder of C. On appeal, the Court of Appeal quashed L’s conviction on the basis that a direction issued by the judge relating to identification evidence had been inadequate and ordered a re-trial pursuant to section 7 of the Criminal Appeal Act 1968. Directions were issued that the re-trial should be heard by the Crown Court, the prosecution should prefer a fresh indictment for the retrial within two months pursuant to section 8 of the Criminal Appeal Act 1968 and that L should be remanded into custody pending consideration of bail by the Crown Court.
Under section 7(1) of the Criminal Appeal Act 1968, where the Court of Appeal allows an appeal against conviction it may order a defendant to be retried if it appears to the court that the interests of justice so require. Section 8 of the Act provides supplementary provisions relating to re-trials ordered under section 7, including that arraignment may not take place after the end of two months from the date of the order for retrial without the leave of the Court of Appeal. An extension would only be granted in defined situations, ensuring that retrials take place as soon as reasonably practicable.
Whilst the prosecution in L’s case served a fresh indictment, they failed to apply for arraignment of L and the re-trial took place without arraignment having occurred as required by section 8. Following the re-trial, L was convicted of murder and sought leave to appeal but this was refused.
L referred his case to the Criminal Cases Review Commission (CCRC) who refused to refer the matter for appeal on the grounds submitted by L, instead inviting L to make a fresh application to them based on the fact that the failure of the court to arraign L on a fresh indictment within two months of the re-trial being ordered, potentially impacted the safety of L’s conviction.
Upon the application being made, the CCRC decided that there was a real possibility that the Court of Appeal would quash L’s conviction and so under section 9 of the Criminal Appeal Act 1995 referred his case to the Court of Appeal who quashed the conviction based on the authority of previous cases within which it was decided that where the procedural requirements of section 8 had not been complied with, Parliament intended total invalidity of Crown Court Proceedings.
The Supreme Court granted the prosecution permission to appeal – the central legal issue on the appeal, as certified by the Court of Appeal, was whether a failure to comply with the procedural requirements in section 8(1) deprived the Crown Court of jurisdiction to re-try a defendant notwithstanding an order of the Court of Appeal under section 7(1) of the Act.
Held
Appeal allowed. L’s conviction restored on the indictment and matter remitted to the Court of Appeal.
The purpose of section 7 was determined as ensuring the integrity of the criminal justice system, avoiding it being brought into disrepute by allowing an apparently guilty person to be freed on a technicality. The purpose of section 8 was to then ensure that the retrial proceedings were brought under judicial control, and that a retrial takes place as soon as reasonably practicable. The Supreme Court determined that both purposes were relevant to determining whether Parliament intended total invalidity to follow from non-compliance with the procedural requirements of section 8.
The consequences of a failure to comply with section 8 is not specifically stated in the legislation. Although the section expressed final terms, referred to the fact that a defendant ‘shall’ be tried on a fresh indictment and ‘may not’ be arraigned after the specified two-month period without permission of the Court of Appeal, the Supreme Court determined that it was difficult to make a finding that total invalidity of jurisdiction would occur following non-compliance with section 8.
As part of making their determination, the Supreme Court highlighted that they were required to look at what the alternative to total invalidity would be. The Court determined the alternative would be an appeal against conviction in which the question of whether there should be a retrial would be determined by the Court of Appeal where procedural non-compliance was of relevance. This approach undermined that previously taken by the courts and would also not avoid the section 8 procedure.
The court highlighted that it was difficult to endorse the argument that Parliament intended total invalidity. Some of the reasons provided included the fact that such an approach would act as an incentive for a defendant to do nothing or abscond to avoid arraignment and in doing so, render proceedings invalid. It would undermine the entire purpose for which section 7 was originally enacted.
It was the view of the court that Parliament could not have intended total invalidity of proceedings where there had been non-compliance with section 8 of the Criminal Appeal Act 1968. Analysing the legislative history of the sections, the provisions were introduced due to concerns relating to cases where a person may have been released on a technicality. Failure to comply with section 8 rendering proceedings invalid would go against that.
It was concluded that the Crown Court were not deprived of jurisdiction to re-try a defendant notwithstanding an order of the Court of Appeal under section 7.
View the full case document here, with links to related legislation and similar cases.
