No case to answer in a prosecution alleging the murder of a baby by his parents and leave to appeal refused to the prosecution by the Court of Appeal

18 December 2017

C and D were the natural parents of a baby boy born in late August 2016 who died within a few days of birth. Neither parent had informed any medical or other professional person of the pregnancy, the birth or the death. The parents secretly buried the body at the edge of a cemetery near to their home. When the fact of the birth (and death) was discovered some weeks later and the body located medical experts could not ascertain the cause of death with certainty. The prosecution at trial relied on other evidence which, they asserted, when considered with the expert evidence provided a clear and unlawful cause of death resulting from an intentional act or omission by the parents. The trial judge disagreed and acceded to the defence submissions of no case at the conclusion of the prosecution case ruling that there was no case to answer on the murder count. He refused leave to appeal his ruling.

The prosecution then applied to the Court of Appeal for leave to appeal against this terminatory ruling and the matter was listed on 12th December 2017.

Having heard submissions from all counsel and considered detailed written submissions, the Court of Appeal refused to consider the prosecution’s application for leave to appeal. The prosecution had failed to comply with the strict requirement to give what is commonly referred to as ‘the acquittal notice’ “before or at the time” when they notified the court of their intention to seek leave to appeal (section 58(8) of the Criminal Justice Act 2003). The ‘acquittal agreement’ had been given at a later stage, but only after notice had been given and the appeal process had commenced.

Sir Brian Leveson, President of the QBD, stated “the mandatory terms (of section 58(8) of the CJA 2003) are of critical importance and are determinative in this case. The court has no jurisdiction to determine this appeal. We must stress to the CPS that it is critical that if applications are to be made to appeal to this court against terminatory rulings then a strict compliance with the jurisdictional requirements of the law is absolutely essential.”

Garden Court North Chambers’ Pete Weatherby QC and Nina Grahame represented C, the father of the baby, instructed by Karen Rolls of Clifford Johnson Solicitors.