The Supreme Court held that failure to comply with the arraignment time limit in section 8(1) of the Criminal Appeal Act 1968 does not deprive the Crown Court of jurisdiction to retry a defendant. The Court of Appeal’s decision in Llewellyn was overruled, and the respondent’s murder conviction was restored.
Background
On 11 April 2013, Stuart James Layden was convicted of the murder of Ian Church following a violent incident at the Bricklayers Arms in Great Yarmouth. He was sentenced to life imprisonment with a minimum term of 13 years. The respondent appealed against his conviction, and on 19 March 2015 the Court of Appeal quashed his conviction on the basis that the trial judge’s direction on identification evidence had been inadequate. On the same day, the Court of Appeal ordered a retrial under section 7 of the Criminal Appeal Act 1968, directing that the respondent be arraigned on a fresh indictment within two months.
A fresh indictment was served on 14 April 2015 and a Plea and Case Management Hearing took place on 7 May 2015, within the two-month period. However, no arraignment took place at that hearing or at any subsequent time. No application was made to the Court of Appeal by either the prosecution or the defence under section 8. At the start of the retrial on 28 September 2015, the question of arraignment was briefly raised but not pursued, with defence counsel stating they would not take any point on it. That first retrial was aborted due to disclosure issues, and a second retrial took place in May 2016, resulting in the respondent’s conviction for murder.
Following the Court of Appeal’s decision in R v Llewellyn [2022] EWCA Crim 154, the Criminal Cases Review Commission referred the respondent’s case back to the Court of Appeal on the basis that the failure to arraign within the statutory time limit could impact the safety of his conviction. The Court of Appeal quashed the conviction, holding that non-compliance with section 8(1) deprived the Crown Court of jurisdiction, rendering the retrial proceedings totally invalid.
The Issue
The certified question of law of general public importance was whether a failure to comply with the procedural requirements in section 8(1) of the Criminal Appeal Act 1968 deprives the Crown Court of jurisdiction to retry a defendant notwithstanding an order of the Court of Appeal under section 7(1).
The Parties’ Key Arguments
The Appellant (The Crown)
The Crown argued that the appeal should be determined by conventional statutory interpretation applying the principle in R v Soneji [2005] UKHL 49: where Parliament casts its commands in imperative form without expressly spelling out the consequences of non-compliance, the court must ask whether Parliament can fairly be taken to have intended total invalidity. The Crown contended that Parliament did not so intend; that the legislative history (including comparison with the Scottish model which expressly provided for automatic acquittal upon non-compliance) supported this; and that an order for retrial remains intact until set aside by the Court of Appeal.
The Respondent
The respondent accepted that the Soneji principle applied but contended that the Crown Court’s jurisdiction was contingent on fulfilment of the bespoke requirements of section 8, which provided critical protections for an accused that Parliament had reposed exclusively in the Court of Appeal. The respondent argued that the decisions in Llewellyn and in his own case correctly stated the law.
The Court’s Reasoning
Statutory Interpretation and the Soneji Principle
Lord Hamblen, with whom the other Justices unanimously agreed, held that the applicable principles of statutory interpretation were not in dispute. The meaning of the statutory words must be ascertained in light of their context and the purpose of the provision. Where Parliament uses mandatory language without specifying the consequences of non-compliance, the Soneji principle applies.
“The emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity” (citing Lord Steyn in Soneji at para 23).
Lord Hamblen acknowledged that section 8 is expressed in mandatory terms but held that this did not answer the Soneji question:
“The fact, however, that section 8 is expressed in mandatory terms does not answer the Soneji issue. All statutes in relation to which the Soneji principle arises for consideration are likely to be expressed in mandatory terms. The problem is that the consequences of non-compliance with those mandatory requirements are not stated.”
Legislative History
The Court considered the legislative history in detail. The general power to order a retrial was introduced by the Criminal Justice Act 1988 to address concerns that the criminal justice system was brought into disrepute when apparently guilty persons were freed on technicalities. The Law Commission’s 1986 discussion paper was noted as identifying this mischief. Significantly, Parliament had before it the Scottish model, which expressly provided for automatic acquittal if the new prosecution was not commenced within two months, yet Parliament chose not to include any equivalent automatic consequence in section 8 for failure to arraign within the specified period.
The Wording of Sections 7 and 8
Lord Hamblen held that an order for retrial under section 7 confers jurisdiction on the Crown Court, and that section 8(1B)(b) expressly provides for the circumstances in which that jurisdiction ceases — namely, where the Court of Appeal sets aside the order for retrial and directs acquittal. The clear implication is that, subject to such an order, jurisdiction subsists:
“The essential point is that section 8 expressly sets out the circumstances in which the Crown Court is deprived of its jurisdiction to conduct a retrial. Those circumstances are where an order is made setting aside the order for retrial and directing the entry of a judgment and order for acquittal under section 8(1B)(b). As a matter of wording it is difficult to see how section 8 is at the same time implicitly providing that the Crown Court is deprived of jurisdiction where there is a failure to comply with the procedural requirements of section 8(1).”
Lord Hamblen also identified that the concept of jurisdiction being “contingent” on section 8 compliance, as the Court of Appeal had held, gave rise to insuperable conceptual and practical difficulties — including whether jurisdiction ceased automatically at the two-month mark, or only at the start of the retrial hearing, neither of which was supported by the statutory language.
The Alternative to Total Invalidity
Critically, Lord Hamblen identified that if a retrial proceeds without proper arraignment and the defendant is convicted, the defendant has the right to appeal under section 1 of the 1968 Act. On such an appeal, it would be a good ground if the defendant could show that, had a section 8 application been made, leave to arraign would have been refused and the order for retrial set aside. This would be determined by the Court of Appeal by reference to the statutory criteria. The only difference would be that it would involve a hypothetical rather than actual application, but this did not preclude the court from applying those criteria.
“The recognition that this is the alternative to total invalidity undermines the foundational reasoning of the Court of Appeal in Llewellyn and in this case. The section 8 procedure would not be avoided or neutered. A decision would be made by reference to the section 8 criteria and by the Court of Appeal. The defendant’s section 8 protections would not be lost.”
Consequences of Total Invalidity
Lord Hamblen identified seven serious adverse consequences of the total invalidity approach: (1) invalidity could arise irrespective of whether the statutory purpose had been met; (2) it created a perverse incentive for the defendant to do nothing rather than apply to set aside the retrial order; (3) it created a perverse incentive to abscond to avoid arraignment; (4) convictions would be set aside even where leave to arraign would undoubtedly have been granted; (5) the anomaly that failure to arraign at all does not invalidate a trial, but late arraignment on a retrial would; (6) the ruling could read across to double jeopardy retrials; and (7) most fundamentally, it undermined the purpose of section 7 and risked bringing the criminal justice system into disrepute.
“In a case where there has been a retrial as soon as possible, a retrial which is conducted fairly, a conviction which is otherwise safe and the guilt of the defendant is not in doubt, the conviction will nevertheless be set aside on a technicality, even in the most serious of cases.”
Refinement of the ‘Due Expedition’ Test
Lord Hamblen also refined the applicable principles governing section 8(1B)(b), drawing on the reasoning of Lord Bingham in R v Manchester Crown Court, Ex p McDonald and R v Leeds Crown Court, Ex p Bagoutie. He concluded that the requirement of “due expedition” is not a disciplinary provision; it means such expedition as would be shown by a competent prosecutor conscious of his duty to ensure the retrial proceeds as soon as reasonably practicable; and there is no lack of due expedition where prosecutorial delay has had no effect on the achievement of the statutory purpose. He held that Gross LJ’s summary in Pritchard at sub-paragraph (3) should be replaced accordingly.
Practical Significance
This decision is of considerable importance to the administration of criminal justice. It overrules the Court of Appeal’s decision in R v Llewellyn [2022] EWCA Crim 154 and establishes that non-compliance with the procedural requirements of section 8(1) of the Criminal Appeal Act 1968 does not automatically deprive the Crown Court of jurisdiction to conduct a retrial ordered under section 7. Instead, such non-compliance may be addressed through the existing appellate framework: a defendant convicted following a retrial where section 8 was not complied with may appeal on the ground that had an application been made, the order for retrial would have been set aside. This approach preserves the defendant’s protections whilst avoiding the serious adverse consequences of automatic invalidity. The decision also refines the test for “due expedition” under section 8(1B)(b), aligning it more closely with the statutory purpose rather than treating it as a free-standing disciplinary requirement focused narrowly on arraignment. The ruling has wider implications for double jeopardy retrials under analogously worded legislation.
Verdict: The Supreme Court unanimously allowed the appeal, holding that failure to comply with the procedural requirements of section 8(1) of the Criminal Appeal Act 1968 does not deprive the Crown Court of jurisdiction to retry a defendant. The Court of Appeal’s decision in R v Llewellyn was overruled. The respondent’s conviction for murder was restored, and the issue of his continuation of bail, surrender to custody and ancillary matters was remitted to the Court of Appeal.
Source: R v Layden [2025] UKSC 12
