276.This section sets out the procedure that must be followed when the prosecution wishes to appeal against a terminating ruling. The section covers both rulings that are formally terminating and those that are de facto terminating in the sense that they are so fatal to the prosecution case that, in the absence of a right of appeal, the prosecution would offer no or no further evidence. It applies to rulings made at an applicable time during a trial (which is defined in subsection (13) as any time before the start of the judge’s summing up to the jury).
277.By virtue of subsection (4), following the ruling, the prosecution must either inform the court that it intends to appeal or request an adjournment to consider whether to appeal (subsection (4)(a)). If such an adjournment is requested, the judge has the discretion to grant it (subsection (5)) but that discretion will be exercised in accordance with rules of court or other guidance. It is likewise envisaged that the period of any adjournment will be specified in rules of court. Following such an adjournment the prosecution must advise the court whether or not it intends to appeal (subsection (4)(b)). Under subsection (6), a ruling which affects more than one offence need not be appealed against insofar as it affects all the offences. It can be appealed against, if the prosecutor wishes, only insofar as it affects one or more of the offences.
278.Subsections (3), (10) and (11) provide that the judge's ruling has no effect while the prosecution follows the procedure in subsection (4) in order to consider whether to appeal or is pursuing an appeal.
279.It is only possible for the prosecutor to appeal under this section against a single ruling. However, under subsection (7), where the ruling that is the subject of the appeal is a ruling of no case to answer the prosecutor may nominate other rulings that relate to the offence that is the subject of the appeal, for the Court of Appeal to consider at the same time. These rulings will also be regarded as the subject of the appeal.
280.Where the prosecution fails to obtain leave to appeal or abandons the appeal, the prosecution must agree that an acquittal follow by virtue of subsections (8) and (9).
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