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Criminal Justice and Immigration Act 2008

Section 44: Determination of prosecution appeals: England and Wales

325.Section 44 alters the test in subsection (5) of section 61 of the 2003 Act for ordering a retrial (or that the trial should resume) where the Court of Appeal allow a prosecution appeal against a terminating ruling. At present where the prosecution successfully appeal against a judge’s decision that has the effect that proceedings should stop (for example on a submission at the end of the prosecution evidence that the defendant has no case to answer), the defendant must be acquitted unless the Court consider it "necessary in the interests of justice" for the trial to continue or for a fresh trial to take place. The substituted subsection (5) has the effect that the trial must continue or a fresh trial must take place unless the Court considers that the defendant could not receive a fair trial.

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