Held, leave granted and appeal allowed against the judge’s ruling of 23 January 2023. (1) Where a judge made an initial ruling the Crown believed to be wrong but which did not gravely weaken their case then made a further ruling which greatly increased the adverse effect on the prosecution of the first decision, a question of fact and degree arose in each case as to whether, in all the circumstances, it was fair to regard two decisions as being two stages of a single ruling. If the Crown made the request for clarification or expansion immediately and caused the judge to take time to reflect before adding to the ruling the following day, it might be treated as a single ruling for the purposes of section 58(4) of the Criminal Justice Act 2003. As part of the fact-specific consideration of such an issue the court might need to reflect on whether the giving of two separate rulings was brought about by some failure on the part of the defence to make submissions at an appropriate time and in accordance with any direction given to enable all matters to be addressed in a single ruling. The rulings in the present case could not be treated as a single ruling and the strict approach to the statutory conditions precedent required the court to regard the ruling on 20 January 2023 as a first ruling and that on 23 July 2023 as a distinct second ruling. Since the Crown did not inform the court of an intention to appeal nor request an adjournment to consider whether to appeal immediately after the ruling on 20 January the opportunity to appeal that decision had been lost (paras 44–46 ).

(2) The defence argument and judge’s ruling of 20 January 2023 involved an error of law or principle and in excluding Film B on grounds of unfairness the judge exercised her discretion under section 78 of the Police and Criminal Evidence Act 1984 in a way which was not reasonable for her to do, depriving the ruling of its foundation. There being no rule of law or established principle which required the Crown always to charge every person said to have been party to a conspiracy, it was an error of principle for defence counsel to suggest and for the judge to state as a general proposition that it would be self-contradictory, wrong or improper for the Crown to conduct a trial on the basis that a number of persons who had not been charged were parties to the alleged conspiracy with those charged, which was the principal reason for her ruling. It was not open to her to find that the prejudicial effect of the evidence so far outweighed its probative value that it should be excluded. No defendant would have been impeded in advancing the defence that they were not party to any conspiracy, they acted honestly and properly throughout and had no influence or control over or involvement in any dishonest representations any salesman may have made to any customer. In each case a fact-specific decision would be required to consider whether the course taken by the Crown resulted in unfairness to those charged Although it was not now open to the Crown to appeal against the ruling of 20 January, the subsequent ruling of 23 January was based upon the first and contained the same error of law and principle. It was a ruling which was not reasonable for the judge to make, and there was no substance in the assertion by the defendants that they would be unfairly prejudiced because they could not challenge the evidence of wrongdoing by sales representatives who had not been charged. Accordingly, although the decision to exclude Film B stood, the decision excluding the evidence of customers concerning dealings with sales representatives was set aside (paras 33, 35, 37–40, 42, 47–51).