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|Session 2006 - 07|
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R v. H (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
LORD NICHOLLS OF BIRKENHEAD
1. In this case the defendant, with others, was charged, with conspiracy to defraud. She made an application, under section 8 of the Criminal Procedure and Investigations Act 1996, for disclosure of documents in the possession of the prosecution. The application was made in the course of a preparatory hearing ordered under section 7 of the Criminal Justice Act 1987. Judge Hodson refused the application. The issue on this appeal is whether the judge's ruling is susceptible of appeal under section 9(11) of the 1987 Act.
2. This issue raises two questions. The first concerns the scope of a judge's powers at a preparatory hearing. The appeal provision in section 9(11) of the 1987 Act applies only to rulings and orders made at a preparatory hearing. If, as a matter of strict law, Judge Hodson's disclosure ruling was not made 'at' the preparatory hearing, in the sense of 'as part of' the preparatory hearing, then section 9(11) is not in point. In that event this appeal must fail. The Court of Appeal would have no power to entertain an appeal from the disclosure ruling.
3. If however Judge Hodson's ruling was made 'at' the preparatory hearing in the sense just mentioned, then a second question arises. Section 9(11) applies only to orders made under section 9(3)(b) or (c). Paragraph (c) is the material paragraph in the present appeal. The second question is whether the judge's ruling on the defendant's disclosure application was a ruling on a 'question of law relating to the case' within section 9(3)(c). This is a question of interpretation of paragraph (c). If the judge's ruling was within this paragraph, this appeal succeeds; if not, not.
The first question
4. The scope of a judge's powers at a preparatory hearing is a much vexed question. Many judges have wrestled with the legislation and struggled to reconcile the authorities. The authorities are carefully summarised in the opinion of my noble and learned friend Lord Mance. I hope I may be acquitted of discourtesy to the judges concerned if, in the interests of simplicity and clarity, I express my own views shortly and without elaboration.
5. The purposes for which a judge may order a preparatory hearing are set out in section 7(1). One purpose is to alleviate the practical inconveniences caused by the need for the jury to absent when the judge decides many time-consuming issues which arise during a trial. Disputes on the admissibility of confession evidence are an obvious instance. Proceedings before the jury would be expedited if these trial questions could be decided before the jury is sworn.
6. Accordingly the 1987 Act made provision for a judge to be able to start and proceed with part of a criminal trial before the jury is sworn. Arraignment duly takes place, but the jury is not empanelled. This part of a trial is called the 'preparatory hearing'.
7. The purposes set out in section 7(1) are to be interpreted generously. But in applying these provisions, and in deciding whether to order a preparatory hearing, judges will always have in mind that the underlying object of a preparatory hearing is to conduct part of the trial before the jury is sworn because of the benefits this course is likely to have. The preparatory hearing procedure is not intended to be the means for deciding questions which can and should be decided in advance of the trial. I emphasise this distinction because ordering a preparatory hearing has custody time limit consequences. As a general rule a judge should not order a preparatory hearing where the court has adequate powers to decide the matters in dispute before the trial takes place.
8. Section 9 enables the judge, at a preparatory hearing, to exercise the powers set out in that section. This enabling provision cannot be interpreted as exhaustive of the judge's powers during a preparatory hearing. It cannot be, for example, that the judge's case-management powers exercisable at a preparatory hearing ordered pursuant to section 7(1)(d) are limited to those set out expressly in section 9. Rather, the key lies in recognising and giving full effect to the generality of section 8(1): the trial begins with the preparatory hearing. The preparatory hearing is part of the trial. This has the effect that at the preparatory hearing the judge can exercise any of the powers the trial judge may exercise in the absence of the jury.
9. A complication arises when a question which should properly be raised and decided before the trial is first raised during the course of a preparatory hearing. Disclosure is an example. In my view, for the reason just given, when this happens the judge has power to decide the question as part of the preparatory hearing. The clock cannot be turned back. The trial has started. I see no occasion for interpreting the legislation in a way which would mean that at a preparatory hearing the trial has begun for the purpose of deciding one question but not for the purpose of deciding another question.
10. If the consequence of this view is that a ruling made by a judge is appealable or not depending on whether it is given before the preparatory hearing or at the preparatory hearing, so be it. This consequence follows from the fact that the right of appeal given by the legislation is confined to certain rulings made at preparatory hearings. The limited nature of this provision does not require, or justify, cutting down the width of the powers available to the judge in his conduct of the 'preparatory hearing' part of a criminal trial.
11. For these reasons I consider Judge Hodson's disclosure ruling, made during the preparatory hearing in this case, was a ruling made as part of that hearing.
The second question
12. The second question therefore arises for determination: was this ruling on a 'question of law relating to the case' within the meaning of section 9(3)(c)? In my view it was not. On its face this ruling was not directed to any question of law. There could be cases where a disclosure ruling depends on the judge's view on a question of law, such as the proper interpretation of part of the indictment. Then bound up within the judge's disclosure ruling would be a ruling on a question of law relating to the case.
13. That is not the position here. The challenge to the judge's ruling in this case is simply that, so it is said, the judge misdirected himself when deciding whether disclosure should be ordered. Whether the judge misdirected himself, and thereby vitiated his decision, is a question of law. But that is not the type of question of law at which section 9(3)(c) is aimed. Whether an order or ruling is an order or ruling on a question of law within the meaning of section 9(3)(c) depends, as my noble and learned friend Lord Scott of Foscote says, on the nature of the issue which the order or ruling decides. Here the judge's decision to refuse the defendant's application for disclosure of certain prosecution documents did not decide any question of law.
14. Clearly it would sometimes be advantageous if the Court of Appeal could review an order refusing disclosure at an early stage rather than after the end of the trial. At present the Court of Appeal has no such power. This is a matter for consideration by Parliament. The absence of such a power does not entitle the House to strain the language of the 1987 Act on this point, particularly when no provision for appeal was included by Parliament in the legislation directly concerned with disclosure applications, namely, section 8 of the Criminal Procedure and Investigations Act 1996.
15. For these reasons, which are substantially the same as those of Lord Scott of Foscote, I would dismiss this appeal.
LORD HOPE OF CRAIGHEAD
16. The questions of law of general public importance that are before your Lordships in this case relate to the conduct of criminal proceedings at first instance in the Crown Court. I am grateful to my noble and learned friend Lord Mance for the care which he has taken to try to reconcile the previous case law. But I agree with him that this exercise has demonstrated that it is necessary to return to first principles. The issues are best addressed, as my noble and learned friend Lord Rodger of Earlsferry indicates, by concentrating on the meaning that is to be given to sections 7 to 9 of the Criminal Justice Act 1987. We are free to find our own way through the provisions of the statute.
17. On 21 July 2006 the Court of Appeal (Criminal Division) granted a certificate under section 33(2) of the Criminal Appeal Act 1968 in which the following questions of law were set out:
(a) For an appeal to lie to the Court of Appeal under the provisions of section 9(11) of the Criminal Justice Act 1987 from an order or ruling made during the course of a preparatory hearing held under section 7(1) of the said Act, does the order or ruling itself have to be for one of the purposes set out in section 7(1) of the said Act?
(b) If so, can an order or ruling in determination of an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 fall within one of those purposes?
(c) In any event, can an order or ruling in determination of an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 be the subject of an appeal under the provisions of section 9(11) of the Criminal Justice Act 1987?
18. The third question emanated from the court itself. It is the only question that really needs to be answered. It focuses the issue of general public importance which lies at the heart of this appeal. The question whether the powers that the judge may exercise at a preparatory hearing under section 9 of the 1987 Act include the determination of an application for disclosure has given rise to a division of opinion among your Lordships. But, given that there can be no objection to the judge doing things during a preparatory hearing which he could do at any time, the answer that is given to it is of no practical importance. The point that matters is whether his order or ruling in determination of an application for disclosure while he is conducting a preparatory hearing can be the subject of an appeal under section 9(11). This matters because an affirmative answer to that question would confer an advantage on those who choose to defer their applications for disclosure until the preparatory hearing which those who apply for disclosure earlier do not enjoy. It would tend to distort pre-trial procedure in a way that, in my opinion, cannot have been intended by Parliament.
19. The key to what the preparatory hearing is all about, and to a proper understanding of the powers that may be exercised under section 9 for the purposes that section 7(1) identifies, lies in the provisions of section 8 of the 1987 Act. Section 8(1) provides that, where the judge orders a preparatory hearing, the trial shall begin with that hearing. Section 8(2) provides that arraignment shall accordingly take place at the start of it. Two important consequences follow from these provisions. First, the judge who conducts the preparatory hearing must conduct the trial, save in exceptional circumstances: R v Southwark Crown Court, Ex p Customs and Excise Commissioners  1 WLR 764, 772F-G. Secondly, the defendant no longer has the protection of the relevant custody time limits: In re Kanaris  UKHL 2;  1 WLR 443. As I said in Kanaris, para 17, a judge who is minded to order a preparatory hearing should be careful not to deprive a defendant who is in custody of the protection of the statutory custody time limit until it becomes necessary for him to do so.
20. Considerable progress can be made in the preparation and exchange of information under sections 3 to 8 of the Criminal Procedure and Investigations Act 1996, as amended by the Criminal Justice Act 2003, before the trial judge engages in a detailed discussion as to how the trial is to be managed having regard to the purposes for ordering a preparatory hearing that are set out in section 7(1) of the 1987 Act. It is for the purposes that section 7(1) sets out that the powers in section 9 are available to be exercised. They enable the judge to do things before the trial proper begins which, without the benefit of those powers, he would not otherwise be able to do. He has no need of those powers to deal with an application for disclosure under section 8 of the 1996 Act. An application for disclosure under section 8 of the 1996 Act can be dealt with at any time.
21. In principle, therefore, there is great force in the argument that issues about the disclosure of prosecution material ought to have been disposed of well before the question arises as to whether benefits are likely to accrue from ordering a preparatory hearing for the purposes that section 7(1) sets out. The purpose which that section was designed to serve is to minimise the risk of interruption and delay during the trial proper by dealing with matters that can conveniently be dealt with in the jury's absence before the trial proper starts. The list of purposes in section 7(1), and the powers set out in section 9 that are available for the judge to exercise, must be read in the light of that background.
22. Among the powers that the judge may exercise at a preparatory hearing are those in section 9(3)(b) and (c). They enable him to determine any question as to the admissibility of evidence and any other question of law relating to the case at that stage. Section 9(11) provides that an appeal shall lie to the Court of Appeal, with leave, from any order or ruling of the judge under those provisions. This is a departure from the ordinary rule that appeals against any such order or ruling cannot be taken until the trial is over. There is an obvious advantage to be gained in cases which are sufficiently serious or lengthy to justify a preparatory hearing to enable questions of law which raise issues suitable for consideration by the Court of Appeal to be determined before the start of the trial proper. But this is a carefully limited avenue of appeal. It must not be seen as an encouragement to give the words used in section 9(c) a wider meaning than they would normally bear, or to broaden the circumstances in which a judge has power to order a preparatory hearing under section 7(1) beyond those that are available under that subsection read in the light of the powers that section 9 will enable him to exercise.
23. In respectful agreement with Lord Rodger, therefore, I would hold that a judge has power under section 8(2) of the Criminal Procedure and Investigations Act 1996 to determine an application for disclosure whenever it is made. But I also agree with him that power to do this is not that which is given to the judge by section 9 of the 1987 Act. It would not be open to the judge, for example, to hold a preparatory hearing for the sole purpose of dealing with an application for disclosure under section 8(2) of the 1996 Act. There is no doubt that he has power to deal with an application for disclosure while he is conducting a preparatory hearing which has been ordered for other purposes. This is simply because he has power to deal with these applications at any time. A disclosure ruling made during a preparatory hearing may be said, then, to have been made as part of the hearing. But that just tells one when it was made. The important point is that an order or ruling on disclosure is made under section 8(2) of the 1996 Act, not section 9 of the 1987 Act. Moreover, for the reasons more fully explained by both Lord Rodger and Lord Mance, an application for disclosure of prosecution material does not of itself raise a question of law "relating to the case" within the meaning of section 9(3)(c) of the 1987 Act. The words which I have quoted are words of limitation, which must be read in the light of the purposes for which a preparatory hearing may be ordered in section 7(1) of the Act.
24. In this case the judge agreed that the contested applications for disclosure should be dealt with at the preparatory hearing with the expressed intention that the provisions of section 9(11) would be applicable to any ruling that he made on that application. In my opinion this was a misuse of the powers that were available to him under section 9. An appeal cannot be taken under section 9(11) against the order that the judge makes on the application for disclosure just because he happens to be dealing with that application at the same time as he is conducting a preparatory hearing under section 7 of the 1987 Act. It will only be if he finds it necessary to determine a question of law relating to the case in order to dispose of the application for disclosure that he would need to exercise the power that is given to him to deal with that question at a preparatory hearing by section 9(3). It might, for example, be necessary for him to resolve a question of law as to the scope of the indictment before dealing with the application for disclosure. In that event an appeal on that question of law, and that question only, will lie under section 9(11) of the Act. His determination of the application for disclosure would not of itself be appealable.