While the Crown has a lot of advantages in the criminal justice system - the resources and powers of the police foremost - many aspects of the system, are tilted in favour of a defendant - for example, the requirement that the Crown prove charges beyond reasonable doubt before there is a conviction.
Another part of the criminal justice system that has long favoured the defence is the appellate system. This isn't to say appealing is easy - once a conviction has been entered, the courts are very reluctant to interfere - but defendants, at least, have a right to appeal, and as a general rule, the Crown does not. If you're acquitted, that's almost always the end of it.
We have changed the law around this in recent years. We have allowed the Crown to reserve a question of law during a trial, a procedure that saw George Gwaze face two jury trials, resulting in not guilty verdicts both times.
We also created a limited power for the Crown to appeal where they think that a judge got the law wrong in throwing a case out before it gets to trial, whether by discharging the accused, or by staying a prosecution. This came up recently in the Red Devils case, where Justice Simon France had granted a stay of prosecution after police forged court documents to bolster the credibility of an undercover officer. The Court of Appeal overturned that stay of prosecution, and the case is presumably going to trial.
And, for a while now, the Crown has been able to seek permission from the Court to appeal against sentence. It doesn't do this often - the decision is always made by a senior lawyer in the Crown Law Office, not even Crown Solicitors - but it seems to be doing it more often than it used to (I haven't actually OIA'd to check whether this is true). This has come up recently, with the prosecutors of those who assaulted Stephen Dudley asking the Solicitor-General to appeal the decision of the High Court to enter discharges without conviction.
A decision to discharge without conviction is different from a decision to discharge someone before trial. The power of the Crown to appeal a discharge before trial does not allow the Crown to appeal a discharge without conviction. A discharge before trial involves a judge throwing out a case (usually because there is insufficient evidence to establish one of the elements of a charge), a discharge without conviction is something that happens in place of sentencing.
The Crown can challenge a discharge without conviction. It has done it in some high profile cases, including, for example, "the comedian". However, it does not do this by an appeal, but by judicially reviewing the decision. The Crown can appeal a sentence, but a discharge without conviction isn't a sentence and without a statutory power to appeal, you can't appeal (I looked at an example of this with John Banks' judicial review).
Which brings us back to those who assaulted Stephen Dudley. The prosecutor asked the Crown to consider appealing or reviewing the decision. The Crown's decision has been reported in a number of different misleading ways. It has been stated that "appeal bid fails", and that an appeal has been "denied".
But there has been no appeal. The Crown does not have the power to appeal a discharge without conviction. There can also be no judicial review. The Crown can sometimes judicially review a decision to enter a discharge without conviction, but there is a very important distinction between the cases where it can do that, and the case here, of the assault that preceded the death of Stephen Dudley. The discharges without conviction that can be judicially reviewed are those entered by District Court judges. And because the assault charges involved here started as manslaughter charges (which were dropped when the Crown accepted it couldn't prove what caused Stephen's death), the case was heard in the High Court. And you can't judicially review a High Court Judge.
This was not a case where the Crown decided not to appeal, or decided not to review a decision it disagreed with, it was a case where it realised it had no power to do that even if it wanted to.
I'm not convinced that the law changes extending appeal powers to the Crown were necessary or good. But I can't see the law in this case as anything other than an anomaly. If the Crown can seek leave to appeal a sentence imposed by a High Court Judge, the distinction that means it would be wrong for it to be able to seek leave to appeal an order imposed in place of a sentence eludes me. I am not sure I disagree with the decision of Justice Winkelmann to discharge the two people who admitted assaulting Stephen Dudley without convictions - it seems to be a decision that was open to the judge in the circumstances - but if the Crown thinks she got it seriously wrong, I can't see a proper basis to prevent them from taking the case to the Court of Appeal. The law does not currently allow this, but if the Crown is to be permitted to seek leave to appeal a sentence, then the law should allow them to challenge a discharge without conviction as well, whether entered in the District Court or the High Court.