House of Lords - In re Kanaris (Respondent)(application for a writ of Habeas Corpus)(on appeal from the Administrative Court of the Queen's Bench Division of Her Majesty's High Court of Justice)

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Session 2002 - 03
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Judgments

Judgments - In re Kanaris (Respondent)(application for a writ of Habeas Corpus)(on appeal from the Administrative Court of the Queen's Bench Division of Her Majesty's High Court of Justice)

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 2
on appeal from: [2002] EWHC 109 Admin

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

In re Kanaris (Respondent) (application for a writ of

Habeas Corpus)

(on appeal from the Administrative Court of the Queen's Bench Division of Her Majesty's High Court of Justice)

ON

THURSDAY 30 JANUARY 2003

The Appellate Committee comprised:

  Lord Nicholls of Birkenhead

  Lord Slynn of Hadley

  Lord Steyn

  Lord Hope of Craighead

Lord Hutton

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

In re Kanaris (Respondent) (application for a writ of

Habeas Corpus)

(on appeal from the Administrative Court of the Queen's Bench Division of Her Majesty's High Court of Justice)

[2003] UKHL 2

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1. I have had the opportunity of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons given by Lord Hutton, with which I agree, I would allow this appeal. I agree also with the cautionary observations of Lord Hope of Craighead.

LORD SLYNN OF HADLEY

My Lords,

    2. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. For the reasons he gives with which I agree I would allow the appeal and make the order he proposes.
LORD STEYN
My Lords,

    3. For the reasons given by Lord Hutton I would also allow the appeal. The broader observations of Lord Hope of Craighead may provide valuable perspectives in future cases.

LORD HOPE OF CRAIGHEAD

My Lords,

    4. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. I agree with it, and for the reasons which he has given I too would allow the appeal. But I should like to add a few observations of my own about the consequences of this decision on statutory custody time limits, in a case where the trial judge is considering whether it would be appropriate to order that a preparatory hearing should be held under Part III of the Criminal Procedure and Investigations Act 1996.

The statutory time limits

    5. Section 22 of the Prosecution of Offences Act 1985 gave power to the Home Secretary to make provision by regulations as to the maximum period which was to be allowed to the prosecution to complete any specified preliminary stage of proceedings for an offence (the "overall time limit") or during which the accused might be held in custody (the "custody time limit"). Section 22(3) of the Act provides that a court may, at any time before the expiry of a time limit, extend it if it is satisfied that there is a good and sufficient cause for doing so and that the prosecution has acted with all due expedition. This measure has been described as a cautious approach to the establishing of time limits in criminal trials: see the general note to section 22 of the Act in Current Law Statutes 1985, vol 2. Caution has certainly been exercised in making use of the power which the section provides. Provision was made by the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) for the maximum period that an accused person might be held in custody before trial. Regulation 5(6B) of the 1987 Regulations, as amended, provides that where an accused is sent for trial under section 51 of the Crime and Disorder Act 1998 the maximum period of custody between the accused being sent to the Crown Court and the start of the trial shall be 182 days, less any period during which he has been in the custody of the magistrates' court since his first appearance for the offence. But no regulations have yet been made providing for overall time limits.

    6. The custody time limit which regulation 5(6B) lays down is comparatively generous to the prosecution by United Kingdom standards. Section 65(4)(b) of the Criminal Procedure (Scotland) Act 1995 provides that an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than 110 days unless the trial is commenced within that period. This is an overall time limit, as a failure to bring the accused to trial within that period will result in his being free for ever from all question or process for the offence. The period may be extended if delay in the commencement of the trial is due to a sufficient cause which is not due to fault on the part of the prosecutor, but this test is not easily satisfied. The system is highly visible and easy to administer. Every step in the proceedings and every order made is recorded precisely in a minute prepared by the clerk of court, of whom much more appears to be expected than in the case of his counterpart in England and Wales. There is no room for doubt as to what each step in the proceedings is about, as to whether and if so to what date the time limit has been extended and as to when the commencement of the trial takes place.

The facts

    7. The respondent was arrested on 10 April 2001 and charged with conspiring with others to launder the proceeds of criminal conduct including drug trafficking. He was detained in custody. On 27 April 2001 his case was transferred to the Crown Court at Southwark under section 51 of the Crime and Disorder Act 1998. It was linked up there with the cases of ten other defendants, but they were later all transferred to the Crown Court sitting at Kingston. As a result the respondent was now one of eleven defendants named on a single indictment. He faced four charges of conspiracy on that indictment, and on each of the four charges against him he was charged jointly with all or some of the other defendants. The effect of regulation 5(6B) of the 1987 Regulations was that his custody time limit was due to expire on 21 October 2001.

    8. After some preliminary procedure all eleven defendants appeared before the judge in the Crown Court at Kingston on 7 September 2001. Section 29(1) of the 1996 Act permits a judge to hold a preparatory hearing if it appears to him that the indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from his doing so before the jury are sworn. Section 29(2) provides that the purposes for which such a hearing may be ordered are those of identifying the issues that are likely to be material, assisting the jury's comprehension of these issues, expediting the proceedings before the jury and assisting the judge's management of the trial. The powers that may be exercised to enable the judge to identify and clarify the issues in the case are set out in section 31. They include power to require the prosecutor to prepare and serve a written case statement and to require the accused to give written notice of any objections to the case statement and of any points of law he wishes to take.

    9. When the defendants appeared before him on 7 September 2001 the judge was invited by the prosecutor to hold a preparatory hearing in this case, and he agreed to do so. On that date nine of the eleven defendants were arraigned and pleaded not guilty. In the respondent's case an issue was raised as to whether he was fit to plead, so his arraignment was postponed to enable a psychiatric assessment to take place. The other defendant had indicated that he would be applying for the charges to be dismissed against him. The respondent appeared again before the judge on 5 October 2001. The issue as to his fitness to plead was resolved, and he was then arraigned and a plea of not guilty was taken from him. As your Lordships have held, the hearing which took place in the respondent's case on that date was a preparatory hearing within the meaning of section 29 of the 1996 Act.
Discussion

    10. The question whether the hearing which took place on 5 October 2001 in the respondent's case was or was not a preparatory hearing had a direct bearing on the protection which regulation 5(6B) of the 1987 Regulations gave against his being held too long in custody. At the outset of his submissions on 7 September 2001, when he was inviting the judge to order a preparatory hearing in this case, counsel for the prosecution very properly drew the judge's attention to the fact that three of the defendants were in custody. This was important because section 30 of the 1996 Act provides that, if a judge orders a preparatory hearing, the trial shall start with that hearing. One of the effects of that provision is that the judge who conducts the hearing must conduct the trial, save in exceptional circumstances: R v Southwark Crown Court, ex p Commissioners of Customs and Excise [1993] 1 WLR 764, 772F-G. Another is that it brings to an end the protection of the statutory custody time limit, as that time limit applies only during the period between the first appearance in court and the start of the trial. Section 22(11) of the 1985 Act provides that the expression "preliminary stage" does not include any stage of the proceedings after the accused has been arraigned in the Crown Court or, in the case of summary trial, the magistrates' court has begun to hear evidence for the prosecution in the case. In the normal course of a trial on indictment the jury is sworn immediately after arraignment at the commencement of the trial. Arraignment has to be complete before the preparatory hearing starts, as the trial cannot commence until the defendant has pleaded to the indictment: R v Southwark Crown Court, ex p Commissioners of Customs and Excise, p769F.

    11. The effect of your Lordships' decision that the hearing which took place on 5 October 2001 was a preparatory hearing is that the protection of the statutory custody time limit came to end on that date. It was, as I have said, due to expire on 21 October 2001. That was the date when the respondent would have had to be released from custody if the trial had not yet started, unless the time limit was extended under section 22(3) of the 1985 Act. In the event, the start of the preparatory hearing deprived him of the statutory protection against being held for too long a period in custody. The discipline of having to observe the time limit, and of having to justify any extension of it, was removed from the case.

    12. The effect of this on the progress of the trial is not hard to see. Instead of having to ensure that the trial proper began before the expiry of the time limit on 21 October 2001 or any later date to which the time limit could properly be extended under section 22(3) of the 1985 Act, the court was relieved of the need to concern itself with any time limits. The judge exercised the power to adjourn the preparatory hearing which was given to him by section 31(2) of the 1996 Act. In order to give sufficient time for the preparatory steps to be taken, the date for trial was fixed for 7 May 2002. At a hearing on 11 January 2002 at which all the eleven defendants were represented, the date for trial was moved to 2 September 2002. At a further hearing on 1 March 2002 the case was severed into two trials. The first trial was fixed for 2 September 2002, but it was later put back to 7 October 2002. The second trial, which is the one at which the respondent is to be tried, was fixed for 7 May 2003, but it is not now likely to be heard until the second half of 2003. This means that the respondent's trial will not start until well over two years after the date of his first appearance in court on the charges which he faces on this indictment.

    13. The significance of this point was not lost on Andrew Smith J when he was considering the respondent's application for habeas corpus. It is plain from his carefully worded judgment that he did not regard it as acceptable that the hearing on 5 October 2001 at which so little was achieved should have the result of depriving the respondent of his liberty for the many months that were going to elapse before his trial was heard. After concluding that it was a fiction, and in his view an impermissible fiction, to say that the preparatory hearing began on that date, he made these observations in para 49 of his judgment:

"It might be said that the applicant is exploiting a technical argument when it is clear that those involved in the proceedings regarded the preparatory hearing as begun against him and the custody time limit protected. And it might well be that in this case the prosecution could have justified an application to extend the time limit: indeed, although I have not heard argument on the point, there is every indication that, if the Crown had sought an extension of the custody time limits the defendants would have had difficulty in resisting it. However the fact remains that, although Mrs Radford fired a warning shot on 5 October 2001 when the prosecution could still have applied for an extension of the limit, no application was made. The custody time limits rules are an important safeguard for accused persons and demand that prosecutors and the court consider with care whether prolonged detention before trial is properly justified. This is witnessed by the narrow view the courts have taken of what constitutes 'good and sufficient cause' to extend custody time limits. It is not an answer to an accused entitled to his liberty after the limit has expired that his argument is a technical one."
Conclusions
    14. I agree that, on a proper reading of all that took place on 5 October 2001 as revealed by the transcript of the proceedings, the hearing which the judge ordered to take place on that date was indeed a preparatory hearing and that the appeal must be allowed on this ground. But I think that there is much force in the observations which Andrew Smith J. made about the importance of the safeguard which is afforded to accused persons by the statutory custody time limit. While it is true that the accused may apply to the judge for bail after the removal of that time limit, he will no longer have the benefit of the statutory rules which restrict the grounds on which the statutory custody time limit may be extended. The significance of this point can be seen by reading the transcript of the proceedings in the Crown Court on both 7 September and 5 October 2001. Conspicuous by its absence, when the timetable for further proceedings in the case was being fixed, is any discussion of the effect of that timetable on the three defendants, including the respondent, who were still being detained in custody.

    15. It has not been suggested that this was not an appropriate case for the judge to exercise the case management powers which have been given to him by Part III of the 1996 Act or that the time which he allowed for the preparatory steps to be taken was unreasonably long. His rulings on these matters are not open to review in these proceedings. But there is no doubt that a careful assessment was required of the need for this procedure. The cases where a preparatory hearing is likely to produce a significant saving in time and money overall are unlikely to be many. It was made clear by the government when this legislation was introduced that it was the intention that this power should not be widely used. There is no doubt that this was the view of Lord Taylor of Gosforth CJ, as he observed during the debate on Second Reading (Hansard, HL Vol 567, col 478) when he said:

"Such hearings certainly have their place, both in serious fraud trials and in other exceptionally long or complex cases; but I do not expect their use to become widespread and hope that is not the intention."

    16. An additional factor which this case has revealed is the effect which the delays which the use of the procedure is likely to introduce into the case will have on those who are being detained in custody. The introduction of a preparatory hearing as part of the trial in serious and complicated fraud trials by section 7 of the Criminal Justice Act 1987 followed a recommendation to that effect in the Roskill Report: The Report of the Roskill Committee on Fraud Trials (HMSO, 1986). The Roskill Report did not discuss the question whether, and if so how, account should be taken of the effect of the procedure on those detained in custody. Perhaps this was not perceived to be a problem, as the accused in trials of that kind are almost always released on bail. But the extension of the same procedure by Part III of the 1996 Act to other long and complex trials such as those involving allegations of drug trafficking means that this factor can no longer be ignored. Moreover there is the obligation which section 6(1) of the Human Rights Act 1998 has now imposed on the court as a public authority. Article 5.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that everyone lawfully arrested or detained on reasonable suspicion of having committed an offence "shall be entitled to trial within a reasonable time or to release pending trial."

    17. These considerations suggest that a judge who is minded to order a preparatory hearing in a long and complex case should be careful not to deprive an accused who is in custody of the protection of the statutory custody time limit until it has become necessary for him to do so. Section 32(2)(a) of the 1996 Act enables a judge to exercise the powers under section 31(4) to (7) before the preparatory hearing begins, and thus before arraignment, in a way that would be compatible with the accused's Convention right. The use of this procedure should enable considerable progress to be made in the preparation and exchange of information before the judge engages in a detailed discussion of how the trial is to be managed, while at the same time preserving to the accused in the meantime the full protection of the statutory custody time limit.

LORD HUTTON

My Lords,

    18. The principal issue which arises on this appeal is whether a Crown Court judge can conduct two separate preparatory hearings in respect of different defendants who are charged with criminal offences in the same indictment. However before consideration can be given to this issue, a preliminary question must be addressed, which is what were the orders which the Crown Court judge made on 7 September and 5 October 2001 when counsel appeared before him. It is also necessary to state briefly the background to the case and to refer to the relevant legislation.

The background and the relevant legislation

    19. The respondent, Mr Kanaris, is one of eleven defendants in an indictment containing eight counts, and he is charged jointly with other defendants in four of the counts with conspiracy to launder drugs money or the proceeds of other crime or both. The respondent was arrested on 10 April 2001 and remained in custody until the order made by Andrew Smith J in the Administrative Court on 9 January 2002 that a writ of habeas corpus should issue and that the respondent should be released on bail. It is against the judgment of Andrew Smith J that the Crown now appeals to this House.

    20. Section 22(1)(b) of the Prosecution of Offences Act 1985 provides that the Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period during which the accused may, while awaiting completion of that stage by the prosecution, be in the custody of the Crown Court in relation to that offence. Regulation 5(6B) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 provides that where (as in this case) an accused is sent for trial under section 51 of the Crime and Disorder Act 1998, the maximum period of custody between the accused being sent to the Crown Court by a magistrates' court for an offence and the start of the trial in relation to it, shall be 182 days. In this case the custody time limit in respect of the respondent would have expired on 21 October 2001. Therefore if the respondent's trial had not started before that date he would have been entitled to be released on bail.

    21. Part III of the Criminal Procedure and Investigations Act 1996 makes provision for a judge of the Crown Court to order a preparatory hearing. Section 29 provides:

"(1)  Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing—

(a)  before the jury are sworn, and

(b)  for any of the purposes mentioned in subsection (2),

he may order that such a hearing (in this Part referred to as a preparatory hearing) shall be held.

(2)  The purposes are those of—

(a)  identifying issues which are likely to be material to the verdict of the jury;

(b)  assisting their comprehension of any such issues;

(c)  expediting the proceedings before the jury;

(d)  assisting the judge's management of the trial."

Section 30 provides:

"If a judge orders a preparatory hearing—

(a)  the trial shall start with that hearing, and

(b)  arraignment shall take place at the start of that hearing, unless it has taken place before then."

Section 31 provides:

"(1)  At the preparatory hearing the judge may exercise any of the powers specified in this section.

(2)  The judge may adjourn a preparatory hearing from time to time.

(3)  He may make a ruling as to—

(a)  any question as to the admissibility of evidence;

(b)  any other question of law relating to the case.

(4)  He may order the prosecutor—

(a)  to give the court and the accused or, if there is more than one, each of them a written statement (a case statement) of the matters falling within subsection (5); ….

(c)  to give the court and the accused or, if there is more than one, each of them written notice of documents the truth of the contents of which ought in the prosecutor's view to be admitted and of any other matters which in his view ought to be agreed; ….

(5)  The matters referred to in subsection (4)(a) are—

(a)  the principal facts of the case for the prosecution;

(b)  the witnesses who will speak to those facts;

(c)  any exhibits relevant to those facts;

(d)  any proposition of law on which the prosecutor proposes to rely;

(e)  the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d).

(6)  Where a judge has ordered the prosecutor to give a case statement and the prosecutor has complied with the order, the judge may order the accused or, if there is more than one, each of them—

(a)  to give the court and the prosecutor a written statement setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution; …"

Section 32 provides:

"(1)  This section applies where—

(a)  a judge orders a preparatory hearing, and

(b)  he decides that any order which could be made under section 31(4) to (7) at the hearing should be made before the hearing.

(2)  In such a case—

(a)  he may make any such order before the hearing (or at the hearing), and

(b)  section 31(4) to (11) shall apply accordingly."
The preliminary question: what orders did the Crown Court judge make on 7 September 2001 and 5 October 2001?
    22. On 7 September 2001 the eleven defendants, all of whom were represented by counsel, appeared at Kingston Crown Court before His Honour Judge McGregor-Johnson. Mr Black QC appeared for the Crown. Prior to the hearing the Crown had sent to the defendants' representatives a document which was headed:

"PREPARATORY HEARING - 7 SEPTEMBER 2001

PROPOSED AGENDA"

This document was also provided to the Crown Court judge. A full transcript of this hearing on 7 September 2001 was before the Administrative Court and before the House.

    23. At the outset of the hearing Crown counsel stated at page 3:

"Your Honour, can I set out, I hope very briefly, the current position in relation to these proceedings. Your Honour may remember that the case was last before you on the 8th June as a complete case when the Crown indicated this is a case where we thought it was appropriate to create a preparatory hearing. The principal concern at that stage was service of the material in the case and your Honour set a deadline for that.

The material has been served and your Honour will see from the agenda, note the extent of it."

At page 4 he said:

"Your Honour, the indictment, of course, at some stage has got to be put. The Crown respectfully submit the sooner the better as far as that is concerned so that the preparatory hearing can commence.

As far as the position of custody time limits are concerned, your Honour will also recall three defendants remain in custody and the custody time limits clearly expire towards the middle of October.

We believe the 21st October is the latest date so if we can have that very much in the back of our mind as far as the timetable is concerned. That is obviously important in respect of the proceedings in the case.

So firstly there is the indictment. The Crown welcome that being put at the very first available opportunity so we know the shape of the trial, who is to contest it and so forth."

At page 6 Crown counsel referred to section 29 of the 1996 Act and said:

"We submit this is a case that cries out for a preparatory hearing.

JUDGE MCGREGOR-JOHNSON: That is certainly my view and I will hear anything anybody else wants to say but certainly subject to argument I would have thought it qualifies.

MR BLACK: I am very grateful.

JUDGE MCGREGOR-JOHNSON: Of course, I have got power, effectively, to order statements and the like in advance if it is necessary to do so."

Then Crown counsel stated that the defendant Correya had notified the Crown that he might apply for dismissal. At page 7 Crown counsel stated:

"There will clearly be preliminary matters to deal with in this case. There may be severance, there may be other matters such as that."

At page 8 the judge said:

"On the timetable that you are suggesting, obviously I will hear what other people have to say about it, it seems to me that the earliest date for a proper full preparatory hearing after the service of statements is probably going to be the very beginning of January."

At page 10 counsel for the defendant Correya requested that the case statement from the Crown should be served on him and stated that the defence would then serve its formal application to dismiss. Counsel then stated:

"As your Honour is aware from the remark your Honour made a few moments ago that section 32 of the Act does allow you to make orders which can properly and should be properly be made at a preparatory hearing in advance of a preparatory hearing. That includes an order for the service by the Crown of a case statement."

In response to the application by counsel for Correya Crown counsel stated at page 13:

"The difficulty is, of course, is in a sense the earlier we get started with the preparatory hearings the earlier we can get on with the case."

The judge commented in reply:

"I wouldn't envisage on the sort of timetable you are proposing, obviously I haven't heard from other people about that, that that would necessarily interfere with the date of the preparatory hearing. I would still expect those representing Mr Correya to proceed on the basis that the matter is going ahead and to be ready for a preparatory hearing along with everybody else."

Counsel for Correya then observed:

"I have no representations to make as to whether or not it is appropriate to proceed with the preparatory hearing in respect of other defendants but plainly it cannot be right that formal arraignment of Mr Correya take place today."

The judge then requested the views of counsel for the other defendants on the proposed timetable. Counsel for the defendant Mackenzie stated at page 14:

"As I say, we accept that at some stage there should be arraignment and a preparatory hearing should commence then in the not too distant future.

JUDGE MCGREGOR-JOHNSON: Is there any reason not to have arraignment today in relation to those defendants to whom an application to dismiss does not apply?

MR DE-SILVA: Your Honour, we are very neutral on that. I think others might prefer it to be deferred for some short period of time. As I say I can indicate informally that it will be a plea of not guilty and that is not going to change."

Counsel for the defendant Green stated that his client would be pleading not guilty and said at page 17:

"We do not feel that, even if all the evidence is served by the 30th October of this year with a preparatory hearing, a preparatory hearing being held sometime in early November with a preparatory hearing in January that within two or three months thereafter we shall be in a position to proceed."

Counsel for the other defendants also stated that pleas of not guilty would be entered.