Neutral Citation Number: [2012] EWCA Crim 792
Case No: 201105328 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
MISS RECORDER J HUMPHREYS, QC
T2011 0172
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/04/2012
Before :

LORD JUSTICE RIX
MR JUSTICE TREACY
and
SIR GEOFFREY GRIGSON
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Between :

	REGINA	Appellant	
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	M	Respondent	

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Mr A Edis QC (instructed by CPS Heathrow and Hillingdon) for the Appellant
Mr M A Groves (instructed by Asghar & Co Solicitors) for the Respondent

Hearing dates : Thursday 15th March 2012
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Judgment

Lord Justice Rix : 
1.	This is the Crown’s appeal against a terminating ruling pursuant to section 58 of the Criminal Justice Act 2003.

2.	The respondent, M, faced trial on a single count of assisting unlawful immigration to a member state pursuant to section 25(1) of the Immigration Act 1971, before Miss Recorder Humphryes QC and a jury at the Crown Court at Isleworth.

3.	On 20 September 2011 the judge ruled that the respondent had no case to answer and discharged the jury. The Crown has the leave of the single judge to appeal against that ruling, but one of the issues in the appeal is whether there is jurisdiction to bring the appeal. If there is no jurisdiction, the appeal cannot be proceeded with. The court has so far only heard argument on the question of jurisdiction. 

4.	The issue of jurisdiction is whether the conditions precedent for such an appeal, set by section 58(4) and (8) of the 2003 Act, have been fulfilled. It is well established that the conditions provided for in those subsections are true conditions precedent: see R v. LSA [2009] EWCA Crim 1034, CPS v. C, M and H [2009] EWCA Crim 2614, and R v. T(N) [2010] EWCA Crim 711, [2010] 2 Cr App R 12. 

5.	Section 58 provides as follows: 

“(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2) The prosecution may appeal in respect of the ruling in accordance with this section.

(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

(4) The prosecution may not appeal in respect of the ruling unless –
	(a) following the making of the ruling, it
		(i) informs the court that it intends to appeal, or
(ii) requests an adjournment to consider whether to appeal, and
(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

(5) If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment…

(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence either if either of the conditions mentioned in subsection (9) is fulfilled.

(9) Those conditions are –
(a) that leave to appeal to the Court of Appeal is not obtained, and

(b) that the appeal is abandoned before it is determined by the Court of Appeal.

(10) If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

(11) If and to the extent that a ruling has no effect in accordance with this section –
	(a) any consequences of the ruling are to have no effect,
(b) the judge may not take any steps in consequence of the ruling, and
	(c) if he does, any such steps are also to have no effect.

(12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.”

6.	Section 59 provides:

“(1) Where the prosecution informs the Court in accordance with section 58(4) that it intends to appeal, the judge must decide whether or not the appeal should be expedited.

(2) If the judge decides that the appeal should be expedited, he may order an adjournment.

(3) If the judge decides that the appeal should not be expedited, he may –
	(a) order an adjournment, or
	(b) discharge the jury (if one has been sworn)…”

7.	Rule 67 of the Criminal Procedure Rules 2005 (the “2005 Rules”) provides further information concerning the provisions of section 58. Thus –

“67.1-(1) This Part applies where a prosecutor wants to appeal under section 58(2) of the Criminal Justice Act 2003.

(2) A reference to an “appellant” in this Part is a reference to such a prosecutor.

67.2-(1) An appellant must tell the Crown Court judge of any decision to appeal –
(a) immediately after the ruling against which thr appellant wants to appeal; or
(b) on the expiry of the time to decide whether to appeal allowed under paragraph (2).

(2) If an appellant wants time to decide whether to appeal –
(a) the appellant must ask the Crown Court judge immediately after the ruling; and
(b) the general rule is that the judge must not require the appellant to decide there and then but instead allow until the next business day.”

8.	In R v. T(N) this court made it clear that “immediately” in rule 67.2(1)(a) of the 2005 Rules means “immediately” and that it is a correct interpretation of the requirement of the 2003 Act itself. Lord Judge said (at [13]):

“Section 58(4) does not expressly require that this information should be made “immediately” after the questioned ruling. That is a provision of r.67(2) of the Criminal Procedure Rules 2005 (SI 2005/384) (as substituted by the Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007/2317)). Although these provisions do not assist in the construction of the statute, they plainly represent a correct interpretation of legislation which requires that the court be informed of the intention to appeal, or, alternatively, that an adjournment should be requested for the question to be considered. Postponement of both these alternatives is not an option. In other words, unless the prosecution informs the court of its intention to appeal immediately following the making of the ruling, or immediately requests an adjournment to consider whether to appeal, this first pre-condition to an appeal is not fulfilled.”

9.	Lord Judge went on to point out that the second requirement, that of an “acquittal agreement” pursuant to section 58(8), must also be given by the time that notice of the intention to appeal needs to be given, whether that is “immediately” following the making of the terminating ruling, or by the time allowed by way of adjournment, immediately sought (at [14]). Lord Judge confirmed the potential significance of the acquittal agreement by reference to what I had said in R v. C, M and H at [40]:

“…if a right of appeal is claimed, then the Crown would naturally seek to rely on the provisions of section 58(3), (10) and (11) to prevent its appeal being ineffective. If an appeal is heard but dismissed, then it is for the court to acquit the defendant (section 61(3)). That leaves, however, the situation where the position is first frozen by reason of the intimation of an intention to appeal, but the appeal is not or cannot then be proceeded with. In that case, the Crown is put on terms that it will not seek to go behind the judge’s ruling, for instance by trying to argue that the ruling is not after all a terminating ruling. Where an acquittal is potentially of no effect, the defendant does need the protection of the Crown’s section 58(8) agreement and its notification to the judge.”

10.	In C, M and H no acquittal agreement was notified to the court at any time. In R v. T(N) the trial court was immediately informed of the intention to appeal, but no acquittal agreement was provided until the next day. It was only in the course of the section 58 appeal that this failure was observed and became the initial point of dispute: as Lord Judge put it (at [9]):

“The single question is whether this omission by the prosecution to inform the court of what has conveniently been called the “acquittal agreement” deprived this court of jurisdiction to hear the appeal, or perhaps more accurately, whether its omission disentitled the prosecution from exercising the statutory power created by s. 58 of the 2003 Act to appeal the ruling.”

There again the Crown’s appeal failed.

The circumstances in the Crown Court

11.	The judge gave her ruling on the morning of 20 September 2011. She ruled, on an application to stop the case, that the Crown had failed to show that any underlying immigration offence had been committed or that the defendant could therefore know or have any reasonable cause for believing that his act had facilitated such an offence. She concluded by saying that –

“in all the circumstances I find that it is a matter of law that there is no case to answer for this defendant.”

12.	The very next thing that happened was that Mr James Dean, who had appeared for the prosecution, rose to ask the judge if she had directed her mind to a certain provision of the Immigration Act 1971, to which, as it happened, she had not made express mention in her ruling. The judge said that she had, and that she was not going to add anything further. She then addressed the defendant, asked him to stand up, and said:

“It is my view that this case cannot properly proceed against you, and in the circumstances I am going to invite the jury to find you not guilty. That should happen right now but unfortunately one of the jurors has had difficulties with transportation in arriving at the Court on time, and therefore, as soon as the jury have arrived we will reconvene.”

She then turned back to Mr Dean and told him that it was not an easy decision, but she had made it. She then rose and the court adjourned at 10.38.

13.	When the court resumed ten minutes later, still in the absence of the jury, there was a malfunction of the tape and as a result the opening words of the resumed hearing are lost. Nevertheless, it can reasonably be inferred from what followed when the tape was working again that Mr Dean had then informed the judge that the Crown intended to appeal the ruling. However, it can also be inferred that he did not at that time inform the court of the Crown’s acquittal agreement. The judge asked Mr Dean what action he wanted her to take when the jury came back into court. He suggested that “you should proceed on the basis that we arrived at 15 minutes ago”. The judge said:

“What, inviting them to find him not guilty? That is not right…if you are appealing a terminatory ruling. The whole point of appealing a terminatory ruling is so that you can then, if you wish to, come back and try the defendant.”

14.	Mr Dean then suggested that “the jury perhaps should not be discharged”: at which the judge demurred and said that the jury would have to be discharged but not invited to reach a not guilty verdict. Counsel for the defendant, Mr Matthew Groves, then submitted, we think correctly, that the judge had two choices: either to order the appeal to be expedited, in which case the jury could be retained, or otherwise to discharge the jury and allow the appeal to take its course. The judge replied that she was minded to do the latter, since the trial had barely got under way.

15.	So the jury entered court at 11.03 and were discharged. That was done at that time on the basis that there would be a section 58 appeal, for otherwise the judge would have invited the jury to acquit the defendant. 

16.	The jury then left the court, whereupon, at 11.05, Mr Dean sought to provide the court with the Crown’s section 58(8) acquittal agreement, even if the judge interrupted him before he had managed to complete it. Mr Dean said:

“Your Honour, there is one matter I omitted to mention in relation to the information just given and that is that I am required to inform the Court that the prosecution agree that…if either leave to appeal through the Court of Appeal is not obtained, or that the appeal is abandoned, before it is determined by the Court of Appeal…”

17.	Unhappily the judge interrupted him (with a question which no longer matters), and then asked him how long he wanted to make the decision whether he was in fact intending to appeal. There was nothing in what Mr Dean had said to provoke such a question. Mr Dean had already said that the Crown was intending to appeal, and he was not asking for an adjournment to consider his position. That was the reply that Mr Dean then gave the judge. However, the judge persisted in giving him an adjournment of seven days “for that decision to be finalised”. It is perhaps unsurprising in the circumstances that Mr Dean accepted that adjournment. However, Mr Groves then rose to attempt to clarify the situation, because he had properly understood that the Crown had made its decision and was not seeking an adjournment. So the judge asked:

“Has a decision, Mr Dean, actually been taken that an appeal will be lodged, or is it yet to be taken?”

Mr Dean replied, perhaps a little confusingly, that he had not yet obtained direct advice, and that he had had both the indication of a request for an adjournment and a decision that the Crown intended to appeal. The upshot was that Mr Dean continued to succumb to the offer of an adjournment of seven days.

18.	The judge then turned to the defendant and said:

“…because the ruling that I made is a ruling that would bring an end to this case against you, I had not realised that the prosecution would intend to possibly appeal that ruling. They have not made a decision as to whether they wish to or not. They are being given seven days…”

19.	However, in the meantime Mr Groves had been consulting his Archbold, and referred the judge to rule 67.2 and to its suggestion of a normal adjournment to the next business day. The judge expressed her gratitude for that information. The judge then found and read out rule 67.2(1)(a)’s reference to “immediately after the ruling”, and observed:

“Well, unfortunately that was not done, which is why I was able, in your presence, to tell Mr [M] that a not guilty verdict would be recorded and nothing was said by you. There was then an adjournment waiting for the jury to attend, because in fact the jury would have been brought straight into Court, would they not, and he would have been found not guilty, it would have been too late. It was only because the juror was late that you were in a position to reflect upon it without my leave and then make a decision that you have…Do you have any submissions?”

20.	Mr Dean did not, because he did not have the rules in front of him. The judge then suggested that the single day suggested by the rules should suffice, and directed that the Crown’s decision should be provided by noon the next day. Following some further discussion, the judge said this:

“In view of the fact that a decision has not been made and therefore it may be that no appeal is to take place, and in view of the fact that as a result of the decision not being taken immediately and me being informed, this defendant was told by me that a not guilty verdict would be recorded, which I have now had to go back on, because the jury was not available to be brought straight into Court there and then, it does seem to me that it is appropriate that we bring this case back tomorrow and that the decision is formally notified at 12 o’clock tomorrow.”

21.	Just before the adjournment, Mr Dean apologised “for the discourtesy of not informing your Honour that I was pursuing this matter.” That appears to be a recognition by Mr Dean that he was at fault in not mentioning the matter of the Crown’s wish to appeal as soon as the ruling had been made. The judge replied that it was not a discourtesy to her, but it was the disadvantage to the defendant that concerned her.

22.	The next day, 21 September 2011, at a little after noon, Mr Dean informed the judge that a decision had been taken by those instructing him to proceed with an appeal. The judge directed Mr Dean to put into writing how the Crown were proposing to put their case, requesting a skeleton argument by the next day. Apparently a fresh authority relevant to the ruling of no case to answer had been produced. The judge even canvassed the possibility of revisiting her ruling under the slip rule, referring to the issues as “troubling and complex”. However, quite properly nothing came of that. 

23.	On 22 September 2011 the parties returned to court. Mr Dean had submitted a skeleton as directed but submitted that the judge lacked jurisdiction to revisit her ruling. The judge agreed, while clearly remaining troubled about her ruling in the light of the new authority. There was also the following exchange between the judge and Mr Dean:

“J: I should ask you, Mr Dean, because you have not done so, I assume that you are giving the normal undertaking in relation to the Court of Appeal? 
	
D: Your Honour, does your Honour refer to the undertaking as to acquittal?

J: Yes

D: Yes, I thought I did say that the day before yesterday, but I do give that undertaking, yes.”

24.	In the event the Crown brought forward this appeal, which came before the single judge, Cranston J, for leave. Mr Groves drafted a respondent’s notice and grounds of opposition. That made it clear that, among other submissions relating to the merits of the ruling and the appeal, a jurisdictional point to the effect that the Crown had not complied with the terms of subsections (4) and (8) of section 58 of the 2003 Act. In giving leave to appeal, Cranston J seems to have overlooked the jurisdictional point, or what Lord Judge referred to as the point concerning the conditions precedent to exercising the Crown’s statutory power to appeal. That should perhaps have led the single judge to refer the leave to appeal application to the full court. In any event, the criminal appeal office, in preparing its usual helpful summary for this court, assumed that since leave had been granted by the single judge, the jurisdictional point had disappeared. But it had not. In the event, we only heard argument about that point, and had to reserve argument for the substantive points of the appeal, should the Crown survive this first hurdle.

The submissions

25.	Mr Edis submitted that the section 58 conditions precedent had been sufficiently fulfilled. Mr Dean had informed the judge of the Crown’s intention to appeal within minutes of the judge’s ruling. It may have been unfortunate that the judge had addressed the defendant in the interim to inform him that he would be acquitted by the jury as soon as they were complete, but that acquittal had never happened. The mischief of the requirement of immediacy was to prevent anything serious happening in the trial before the Crown made its intentions clear; and nothing serious had happened. Section 58(3) would be unnecessary (in the absence of any adjournment) if the Crown’s intention had to be simultaneous with the end of the terminating ruling (see C, M an H at [42]). It was not the Crown’s fault that the judge had straightway addressed the defendant as she had done. As for the acquittal agreement, that had been effectively given, even if interrupted by the judge, only a few minutes later, and the discharge of the jury in the meantime had been on the basis that there would be an appeal. As it was, the judge had persuaded Mr Dean that he should have an adjournment, and thus the acquittal agreement had in the end preceded the ultimate decision to intend to appeal as notified to the judge on the next day. In R v. O, J and S [2008] EWCA Crim 463 (see at [34]) the conditions precedent had been performed the day after the ruling, and this court had held that that had fulfilled rule 67.2(1).

26.	On behalf of the respondent, Mr Groves argued to the contrary. As for the section 58(4) condition, he submitted that there was nothing to prevent Mr Dean rising immediately to his feet at the end of the ruling either to state the Crown’s intention to appeal or to request an adjournment to consider their position. The purpose of the requirement of immediacy was precisely to forestall the like of what occurred, namely the defendant being given the expectation that he would be acquitted. As for the section 58(8) requirement, he submitted that it had been provided only after the jury had been discharged, had been overtaken and rendered a nullity by the acceptance of an adjournment, and then had ultimately been provided only the day (22 September) after the announcement of the intention to appeal (21 September).  

Discussion and decision

27.	In our judgment the section 58 conditions precedent to the statutory right to appeal were not here fulfilled.

28.	It is clear that either an adjournment must be sought immediately, or the decision to appeal and the acquittal agreement must be notified to the court immediately. In any event, the acquittal agreement must be provided by at latest the time when a decision to intend to appeal is notified. What in this context does “immediately following the ruling” mean? In our judgment it means there and then and in any event before anything important has happened. We think that it would be going too far to say that it means simultaneously with the conclusion of the ruling, and section 58(3) suggests that the requirement has functional rather than merely temporal bite. Otherwise there would be no need for any provision to stop the clock (in the absence of an adjournment). But plainly there is no room whatsoever for temporising. We are content to apply what was said in R v. C, M and H at [43], while emphasising the plain need for urgency:

“If the alternative is an adjournment, there is plainly not much room for delay in the absence of an adjournment. Even so, it may be that the concept of immediacy cannot be reduced to split-second timing: however, it is only for as long as “the prosecution is able to take any steps under subsection (4)” (see subsection (3)) that the clock is stopped: and there is plainly an argument that where something significant has first occurred, such as an acquittal, it becomes too late for the prosecution to inform the court of its intention to appeal or to seek an adjournment to prolong the time for it to make its decision.” 

29.	In the present case, there was an adjournment overnight from 19 to 20 September 2011 with the judge’s ruling on the submission of no case to answer being given at the opening of the court on 20 September. Therefore there was no reason why Mr Dean could not have been prepared to deal with the consequences of losing the terminating ruling as soon as it was delivered. As it was, he rose to his feet immediately after the ruling, but to query the ruling rather than to request an adjournment or announce the Crown’s intention to appeal. Thus he permitted the judge the opportunity to address the defendant in the terms which the judge adopted, which could plainly have been anticipated; and he allowed the court to adjourn for the jury to be assembled so that an acquittal could be directed. At that adjournment, short as it turned out to be, the immediate prospect was of an acquittal and not of a statutory appeal by the Crown. Even at that stage, ie immediately before that adjournment, counsel could still have told the judge that an acquittal could not be proceeded with because of the question of an appeal by the Crown.

30.	We would not over-emphasise in itself the way in which the judge was thus permitted to address the defendant, because it might be said that it was inherent in the judge’s decision (of no case to answer) that the defendant would be entitled to be acquitted – at any rate barring an appeal. Even so, it is plainly going a stage further to tell a defendant that he will be acquitted as soon as the jury can be assembled, rather than to have to tell him that he would have been acquitted there and then but for the Crown’s right to appeal. Perhaps there would be wisdom in judges being cautious not to jump the gun and anticipate even the most keyed up of prosecutors. It would be unfortunate if counsel were put in the position of having to interrupt the judge, where courtesy would naturally encourage counsel to defer to the judge’s conduct of the proceedings, because the judge allowed no real opportunity to the prosecutor to gather his thoughts upon receiving the ruling. However, we emphasise: counsel can always ask for an adjournment to consider the impact of a ruling, and its validity, and to discuss such matters with those instructing him, and it takes very little to ask for an adjournment, even of a short while, for an initial consideration of the position; even if thereafter it is decided to ask for an adjournment until the following day.

31.	At any rate, the court then adjourned without any mention of even the possibility of an appeal or the absence of a prompt acquittal, and it adjourned to allow for the jury to be assembled so that it could acquit the defendant. When the court resumed a short time later, it appears that the jury were kept out for the interim because Mr Dean wanted to address the judge on the Crown’s intention to appeal: and it seems that he did then inform the judge of that intention. However, he did not then notify the judge of the Crown’s acquittal agreement, which section 58(8) required of him. We would not say that the announcement of the acquittal agreement had to precede the announcement of the intention to appeal, for it makes more sense for that to take place the other way round: but it is clear from section 58(8) that the giving of the acquittal agreement must be “at or before that time”, ie at latest at the same occasion as the court is informed of the Crown’s intention to appeal. In the present case that did not happen: Mr Dean’s attempt to give the acquittal agreement did not take place until after the jury had entered and then been discharged.

32.	In the discussion which preceded that happening there was even a moment when Mr Dean seems to have contemplated the acquittal of the defendant despite the Crown’s announced intention to appeal: which would not have been appropriate at all. The judge quite rightly would not have that; but the fact was that the jury was then discharged, on the basis that the Crown would seek to appeal, before the acquittal agreement was given or attempted to be given. We think that that was a significant event, for it brought the defendant’s trial to an end, without the opportunity for him to be acquitted by the jury. Even though that was on the basis that there would (if leave were given) be an appeal by the Crown, such an appeal would have been incompetent without an acquittal agreement. We are inclined to think therefore that, relatively brief as the interlude was before Mr Dean, after the jury left the court following their discharge, sought to give the acquittal agreement, it was not given “at or before” the time when the court was informed of the Crown’s intention to appeal as required by section 58(8).

33.	As it was, despite Mr Dean’s attempt to give the acquittal agreement, he never reached the critical words of the undertaking for he was interrupted by the judge, who does not seem to have appreciated what Mr Dean was saying, as further indicated by the later exchange between her and Mr Dean on the subject on 22 September (see at para 23 above). A strict view would say that the acquittal agreement was not then given: for not only was the agreement not completed but it was reasonably clear that the judge was not at that time understanding what was being said and the discussion diverted to the question of an adjournment. In such circumstances it may be doubtful whether the Crown had achieved its obligation to “inform” the court of its agreement; but we do not make our decision on that basis. Even if a clear acquittal agreement had been announced to the court at that time we think that it was difficult to say that it had been given timeously.  

34.	In any event, Mr Dean was then content to allow his announced intention to appeal to be superseded by the grant of an adjournment for the Crown to consider its decision. At that point therefore there was no announced decision to appeal; only an adjournment to allow the Crown to consider its position, and that was already after the jury had been discharged. 

35.	On the following day Mr Dean informed the judge that the Crown did intend to appeal, but no acquittal agreement was confirmed. If in truth (which we doubt) it had already been given, that would not matter; but if it had not been, the failure to inform the court of it would possibly have been fatal by itself, although we note that nothing further of any significance had happened between the hearings of 21 and 22 September.

36.	In sum, we think that these events did not fulfil the two conditions precedent within section 58(4) and (8) which must have been fulfilled for the Crown’s right to appeal a terminating ruling to be competent. Jurisprudence has shown that compliance with these conditions needs to be strict. O, J and S cited by Mr Edis does not assist, for there the effect of what was described as “the extraordinary sequence of events on the previous day” led to an adjournment to the next day for the Crown’s decision to be taken and announced “once the judge had decided that the jury should be directed to disregard all Margerrison’s evidence on the eight listed topics”: see para 34. That was what revealed that the judge’s decisions on admissibility had created a terminating ruling despite his dismissal of an application of no case to answer. In the present case, however, two critical things had happened before both conditions had been fulfilled (if the section 58(8) condition could be said to have been fulfilled at all before 22 September): first, the court had adjourned for the jury to be assembled to acquit the defendant before anything at all was said on behalf of the Crown; and secondly, the jury was discharged before an acquittal agreement had even been attempted to have been given to the court. The provisions of section 59 demonstrate that the discharge of a jury should only be done (in the absence of expediting the appeal and adjournment of the trial) on the basis of a competent appeal. 

37.	We regret the decision to which we have come, because the papers reveal that there was much to argue about the judge’s ruling here. Nevertheless, this case reveals, albeit not for the first time, the need for prosecuting counsel (and also, it may be said, judges) to be fully apprised of the provisions of the 2003 Act and the 2005 Rules concerning terminating rulings. There should in most cases be no difficulty in anticipating the possible consequences of such a ruling. 

38.	Since leave has been given for this appeal but the appeal is not competent, none of the provisions of section 61 of the 2003 Act appear to be particularly appropriate. Nor do the conditions of the Crown’s acquittal agreement apply. However, the effect of T(N) is that in such cases the incompetent appeal is simply dismissed (see there at [20]). It would seem to follow that the effect of this appeal, if not by the terms of this judgment, is that the judge’s ruling, being neither reversed nor varied, is confirmed. In such a case, it is plain that the defendant, and here the respondent, should be acquitted pursuant to section 61(3). We so direct.