Criminal Justice Act 1972 - Attorney General's Reference on a Point of Law under Section 36
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Where a person tried on indictment has been acquitted on all or part of an indictment, the Attorney General has the discretion to seek the opinion of the Court of Appeal on a point of law which has arisen in the case (section 36 (1) of the Criminal Justice Act 1972; Archbold 7-360).
The procedure is to clarify the law. It is not a means to change the outcome of the individual case. (section 36(7) Criminal Justice Act 1972).
What sort of cases can be referred?
A Reference will only be appropriate if the ruling in question:
- Is sufficiently clear and precise to be capable of being challenged;
- Is concerned with a point of law, rather than the sufficiency of the evidence in the case; and
- Raises a point of practical importance which is likely to be followed in other cases.
There must have been an acquittal (section 36(1) Criminal Justice Act 1972; Criminal Procedure Rules Part 70).
The staying of an indictment for abuse of process is not an acquittal. If a Reference is desirable a stay can be lifted by the Court so that the prosecution can offer no evidence under section 17 of the Criminal Justice Act 1967.
The Court of Appeal has said that References need not be confined to cases where very heavy questions of law arise. The procedure can be used for short but important points that require a quick ruling of the Court of Appeal before a potentially incorrect decision of law has too wide a circulation in the Courts. (Widgery LCJ in: Attorney Generals Reference (No 1 of 1975)  QB 773 at 778).
What sort of cases cannot be referred?
The Reference procedure is not to be used to determine theoretical questions of law.
The procedure will not be used to refer to the Court of Appeal a ruling which is clearly in ignorance of or inconsistent with clear existing authority.
A material consideration may be whether the ruling has been reported and is likely to be followed in other cases.
There are no statutory time limits for the lodging of a Reference but matters should be handled expeditiously as the aim is to clarify the law quickly and prevent an erroneous decision being followed in other cases.
This is particularly so if the Reference raises important ECHR points such that it should be considered by the ECHR Fast Track Group established by the AGO.
Rules and guidance
The rules governing the detailed procedure for References can be found in Part 70 of the Criminal Procedure Rules.
There is useful practical and procedural guidance in the Blue Guide (Court of Appeal Criminal Division) which is available at the Courts Service website.
In 2007 the responsibility for Attorney Generals References was fully devolved to Areas. It is the responsibility of the Area to deal with:
- the initial decision whether or not to seek a Reference;
- the preparation of any draft Reference for approval;
The first step is to obtain the opinion of the advocate who prosecuted the case. The opinion should:
- briefly recite the facts of the case;
- indicate the point of law;
- set out the terms of the judges ruling; and
- set out the reasons why it is thought the judge is incorrect.
On the basis of this opinion, the Area should then decide whether the point of law is worthy of Reference.
Advising Appeals Unit
Once an Area has decided that a Reference ought to be pursued, it should advise Appeals Unit; immediately. The purpose of this is, first, to ensure that there is a full central record of all appeals and references and, secondly to ensure that the relevant input and assistance is provided.
Trial counsels opinion together with a case summary should be provided.
Instructing Treasury Counsel
If the Area concludes that a Reference ought to be pursued then it must instruct Treasury Counsel to advise and to draft the Reference.
Prior to instructing Treasury Counsel it will be necessary to obtain a transcript of the legal argument and the judges ruling. Private shorthand firms provide the transcription service at each Crown Court. Details of these firms are available from each Crown Court. The arrangements for obtaining expedited transcripts of the relevant part of proceedings will need to be invoked in fast track cases.
Treasury Counsels draft Reference will:
- summarise the facts of the case;
- present the point of law in the form of a question or questions on which the Court of Appeal is asked to give its opinion; and
Submission to the Attorney Generals Office
The Area must forward the following to the Attorney Generals Office (AGO):
- the draft Reference
- Treasury Counsel's opinion
- Trial Advocate's opinion;
- the indictment;
- the statements;
- the exhibits;
- the transcript of the legal argument and Judge's ruling;
- the CPS reviewing lawyers assessment of the case;
- any other documents that may be relevant to the Attorney General's deliberations; and
- the name and contact details of the legal representatives for the acquitted person.
The papers should be clearly marked:
Application for a Reference on a point of law under section 36 Criminal Justice Act 1972 and should be sent to:
Attorney Generals Office
20 Victoria Street
Action by the Attorney General's Office
Following the submission of a draft Reference, a lawyer at the AGO will consider the papers submitted and advise the Attorney General.
If the Attorney General decides to make a Reference, the AGO lawyer will finalise the draft Reference and place it before the Attorney General for signature.
The AGO will serve a Notice of Reference on the Court of Appeal (Part 70.2 Criminal Procedure Rules) and inform the court which CPS Area is dealing with the Reference for correspondence purposes. The AGO will send a copy of the Reference to the CPS Area.
Action by the court
The Registrar of the Court of Appeal will serve the Notice of Reference (on the defendant Part 70.4 Criminal Procedure Rules) who may then serve a Respondents Notice (Part 70.5 Criminal Procedure Rules) and participate in the appeal process.
After service of the Notice
If the Attorney General decides to refer the case to the Court of Appeal (See Action by the Attorney Generals Office above) the Area will take over the responsibility for dealing with the Reference after the Notice has been served on the court.
The Area will instruct Treasury Counsel and ensure he is available to conduct the hearing. The Area will also provide casework support as necessary. The Area will liaise directly with the Court of Appeal with regard to the listing of the matter.
The Area will deal with any correspondence or Parliamentary Questions/correspondence arising from individual cases. All correspondence should be copied to the AGO, and it is essential that there is close liaison with the AGO in relation to any Parliamentary Question or correspondence. This will help to ensure that the information being provided is accurate and in accordance with the AGOs view of the case.
The Area must keep the AGO informed of developments in the case and particularly with regard to the hearing date. Once the matter has been heard, the AGO should be notified of the outcome. The judgement should always be obtained from the Court of Appeal and sent to the AGO without delay.
The preparation of the draft Reference and the subsequent proceedings will be conducted by Treasury Counsel. This ensures that there is independent consideration of the case.
The prosecuting advocate at the trial should not be given any indication that they will be briefed to appear on behalf of the Attorney General if a Reference is made.
If the respondent is unrepresented at the hearing of the Reference, the Court of Appeal will usually ask the Attorney General to appoint an advocate to the court. The advocate to the court is instructed by the Treasury Solicitor, and is there to ensure that the appellants case is properly tested and that all relevant arguments are fully deployed before the Court of Appeal, reflecting his or her own views as to the merits of the argument.
Identity of Respondent
The proceedings are referred to as Attorney Generals Reference No. X of Y. Care should be taken not to disclose the identity of the defendant who was acquitted.
No details which may lead to his/her identification should be disclosed, either directly or by handling papers within the view of unauthorised persons.
The court should ensure that the identity of the acquitted person is not disclosed during the proceedings on a Reference except where he/she has given his/her consent. (Part 70.8 of the Criminal Procedure Rules).