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)
24. Mr Caldwell, counsel for Mr Kanaris, then stated that because of his mental state there was considerable doubt as to whether he was fit to stand trial at that time. At page 22 counsel stated:
At pages 24 and 25 Crown counsel observed:
Immediately following these observations the judge stated at page 25:
The defendants with the exception of Mr Kanaris and Mr Correya were then arraigned and pleaded not guilty to the counts against them.
25. The judge then discussed with Crown counsel the starting date for a trial and at page 35 he said:
At page 38 Crown counsel said:
At page 40 counsel for the defendant Kyriacou asked:
After the luncheon adjournment Crown counsel said at page 43
There was then discussion about obtaining a medical report in respect of Mr Kanaris and the judge said at page 45:
The judge then discussed other matters with counsel and the hearing concluded.
26. On 5 October 2001 Mr Kanaris, now represented by Mrs Radford QC, appeared at Wood Green Crown Court before His Honour Judge McGregor-Johnson. No other defendants appeared at the hearing. Miss Bewsey appeared for the Crown. No issue was raised as to the fitness of Mr Kanaris to plead and Mrs Radford informed the judge that the indictment could be put. Mr Kanaris was arraigned and pleaded not guilty to the four counts against him. A full transcript of this hearing was also before the Administrative Court and before the House.
27. At page 5 Crown counsel stated:
28. Mrs Radford then referred to the fact that Mr Kanaris had been refused bail. The judge said at page 7:
I observe that it would probably be more accurate if the transcript of the last part of these comments by the judge read:
Crown counsel then said at page 8:
There was then a brief discussion between the judge and Crown counsel as to the documents to be served and the judge said at page 8:
There was then some discussion between the judge and Crown counsel and Mrs Radford about certain days when the Court would not sit during the course of the trial and the hearing concluded.
29. In his judgment Andrew Smith J set out the Crown Court judge's words at the hearing on 7 September when he said at page 25 of the transcript: "it is right to start the preparatory hearing to this extent: to have arraignment today of those defendants apart from Mr Correya and Mr Kanaris". The High Court judge then said:
30. The Judge rightly rejected the first of these meanings. But he also rejected the second meaning and gave the Crown Court judge's words the third meaning. He said:
31. I am unable to agree with the view taken by the High Court judge. Whilst, when analysed in hindsight, the statements of counsel and of the Crown Court judge may have lacked some degree of precision, and whilst some of the observations of the judge on 7 September could be read to mean that a preparatory hearing would not take place until January, I think that it is reasonably clear both from the transcript of the hearing on 7 September read as a whole and from the orders made by the judge, that he ordered at the hearing on 7 September that the nine defendants should be arraigned and that the preparatory hearing in respect of them should begin, because the judge said: "In my view it is right to start the preparatory hearing to this extent: To have arraignment today of those defendants apart from Mr Correya and Mr Kanaris for the reasons that have already been set out."
32. Moreover after the nine defendants had been arraigned the judge at page 35 made the very orders which a Crown Court judge is empowered to make at a preparatory hearing by section 31(4) and (6) of the 1996 Act, viz. an order for the service of the prosecution case statement by 30 October and the service of a defence statement by 14 December. The fact that section 32 of the 1996 Act empowers the Crown Court judge to make orders under section 31(4) to (7) before the preparatory hearing does not assist the respondent because the Crown Court judge made it clear at page 25 that he was holding a preparatory hearing on that day. Having regard to the words used by the judge and to the orders which he made pursuant to section 31(4) and (6) I consider that there is no substance in the suggestion that he mistakenly thought that the mere fact of arraigning the nine defendants was sufficient in itself to constitute a preparatory hearing in respect of them. Nor does it materially assist the respondent that at the hearing on 7 September the judge referred to a preparatory hearing in January; under section 31(2) the judge may adjourn a preparatory hearing from time to time, and I consider that the references to a preparatory hearing in the New Year related to a further preparatory hearing in January. This is confirmed by the judge's statement at the hearing on 5 October at page 8 that "the next preparatory hearing will be the 11th January".
33. I further consider that the observations of Crown counsel and of the judge at the hearing on 5 October confirm that there was a preparatory hearing in respect of the nine defendants on 7 September and that there was a preparatory hearing in respect of the respondent on 5 October. On 5 October the judge said expressly at page 5 that he had ordered on the last occasion that "the preparatory hearing should start on that occasion" and that "unless Miss Radford wants to say anything about that, I'll make the same order, as far as this is concerned." At that point, although she expressed concern that Mr Kanaris would be in custody until May, Mrs Radford did not dispute the statements by Crown counsel and the judge that the hearing on 7 September had been a preparatory hearing. I am unable to agree with the view of Andrew Smith J in paragraph 44 of his judgment that after Mrs Radford had addressed him the judge did not make an order that a preparatory hearing would start against the respondent. I consider that the words of Crown counsel and of the Crown Court judge at page 8 make it clear that the judge was ordering a preparatory hearing against the respondent on that date and that the same timetable for the delivery of documents pursuant to section 31(4) and (6) would apply to him. As I have already observed in relation to the nine defendants, the fact that a preparatory hearing in respect of the respondent took place on 5 October is confirmed by the judge's words at page 8 that "And then the next preparatory hearing will be the 11th January."
Separate preparatory hearings
34. A further and separate ground on which Andrew Smith J held that no preparatory hearing had begun in respect of the respondent was that when there was an indictment against a number of defendants, and particularly where a number of defendants were charged on the same count, there could not be a separate preparatory hearing in respect of one or some defendants. The judge said at paragraph 34 of his judgment:
35. In my opinion the judge erred in making this ruling. The law is clear that where a number of defendants are charged in the same indictment or in the same count, each defendant is charged with having himself committed an offence. In Director of Public Prosecutions v Merriman  AC 584 the respondent and his brother were jointly charged with the offence of wounding another man with intent to do him grievous bodily harm. Lord Morris of Borth-y-Gest stated at page 591H:
36. In R v Fenwick (1953) 54 SR (NSW) 147 (approved by the House in Merriman) Street CJ stated at page 152:
In R v Gibbins and Proctor  13 Cr App R 134, 136 Darling J stated: "The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately but the judge must exercise his discretion judicially." Moreover, it was stated in R v Assim  2 QB 249, 258F:
37. Therefore I consider that there is no rule of statute or practice which prevents a judge from ordering a separate preparatory hearing in respect of one defendant jointly charged with other defendants in the same indictment if he considers that it is in the interests of justice to do so. In most cases it will be appropriate for a preparatory hearing to take place in respect of all those who are charged in the same indictment, but I consider that a judge has power to order a separate preparatory hearing in respect of one defendant where the circumstances require it. In my opinion the present case was one where the judge was fully entitled to take the view that it was desirable to make such an order. Eleven defendants represented by separate counsel, who had each received a proposed agenda headed "PREPARATORY HEARING 7 September 2001", had appeared before him in the Crown Court, the Crown submitted that the case was a proper one for a preparatory hearing, and the judge accepted this submission. However a question was raised as to the fitness of one defendant, the respondent, to stand trial, and therefore there could not be a preparatory hearing in respect of him on that date. In addition counsel for another defendant informed the judge that he intended to apply for dismissal. In those circumstances rather than adjourn the entire case to a future date for the first preparatory hearing, I think that it was sensible for the judge to proceed with the preparatory hearing in respect of the other nine defendants and to make orders pursuant to section 31(4) and (6) in respect of them, and to adjourn to another day the preparatory hearing in respect of the respondent.
An actual preparatory hearing
38. Andrew Smith J also accepted a further submission by Mrs Radford that even if the Crown Court judge had ordered that a preparatory hearing should begin in respect of the respondent on 5 October, in reality no such hearing did begin. Counsel submitted that to take away a defendant's right to bail it was not enough for a judge merely to direct that a preparatory hearing should begin or to state that a preparatory hearing was taking place, but that a preparatory hearing actually had to take place. In support of this submission counsel relied on the decisions of the Divisional Court in R v Maidstone Crown Court Ex parte Hollstein  3 All ER 503 and R v Maidstone Crown Court Ex parte Clarke  1 WLR 831 (when the custody time limit ran until arraignment) that arraignment should not take place artificially and should not be used as a mechanism for terminating the right to bail. In accepting this submission the Judge relied on his ruling that there could not be separate preparatory hearings, but he also stated:
39. I am again unable to agree with the view of the High Court judge that it was a fiction to say that preparatory hearings began on 7 September and 5 October and that the arraignment of the defendants was a device to circumvent the time limits. On 7 September the Crown Court judge ordered pursuant to section 29 of the 1996 Act that there would be a preparatory hearing in respect of the nine defendants, and in the course of that preparatory hearing he made orders pursuant to section 31(4) and (6). Therefore there was not a fictitious preparatory hearing but an actual preparatory hearing. The arraignment of the nine defendants was not an artificial device to circumvent the time limits but took place because section 30(b) provides that arraignment shall take place at the start of the preparatory hearing unless it has taken place before that. The same procedure for the same reasons took place in respect of the respondent on 5 October.
40. It is also relevant to observe that at the hearing on 5 October when Mrs Radford made the point that the respondent would be in custody until the trial began in May the Crown Court judge observed in reply (in the passage of the transcript set out in paragraph 10 above) that at the hearing on 7 September it was counsel for Mr Kanaris who submitted that the defence would not be ready before Easter, and that if any suggestion had been made at the hearing on 7 September that there was a problem in respect of the custody time limit he would have addressed that problem before fixing the date for the trial.
Custody time limits
41. Although I am unable to agree with Andrew Smith J that no preparatory hearings had begun against the respondent and against the other nine defendants, I am in agreement with him that the custody time limits are an important safeguard for accused persons and that prosecutors and judges should consider with care whether prolonged detention before trial is properly justified. This is a matter to which particular reference is made in the speech of my noble and learned friend Lord Hope of Craighead which I have had the advantage of reading in draft. On this aspect of the case I would wish to make two observations. The first observation is that where a preparatory hearing takes place before the custody time limit expires so that a defendant loses the right to bail which he would have enjoyed if the time limit had expired before there had been a preparatory hearing, he is still entitled to apply for bail to the Crown Court, and the period which would elapse before the case came to trial is a factor which the judge hearing the application would have to take into account. This is a point to which the Crown Court judge referred in his comments at page 7 of the transcript of the hearing on 5 October 2001 which is set out in paragraph 11 of this opinion. But it appears that in this case no application for bail on behalf of the respondent was made to the Crown Court after the preparatory hearing on 5 October 2001.