Judgments - R v. H (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

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    25.  It would be extraordinary, as Lord Rodger points, if there was an immediate right of appeal under section 9(11) from a decision on an application for disclosure made when conducting a preparatory hearing when no immediate right of appeal is available from a decision on such an application which is made before the preparatory hearing takes place or during the trial proper after the preparatory hearing is over. Although not decisive, this reinforces the conclusion which he has reached.

    26.  For these reasons, and for those more fully set out by Lord Rodger with whose speech I am in complete agreement, I would dismiss the appeal. I would answer the certified questions as follows:

    (a)  The powers specified in section 9 of the Criminal Justice Act 1987 may only be exercised for any one or more of the purposes set out in section 7(1) of that Act.

    (b)  Those powers do not extend to the determination of an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996, which may be dealt with under that section at any time.

    (c)  An order or ruling in determination of an application for disclosure under section 8 of the 1996 Act cannot of itself be the subject of an appeal under section 9(11) of the 1987 Act.

LORD SCOTT OF FOSCOTE

My Lords,

    27.  The background facts that have led to this appeal to your Lordships are fully set out in the opinions of my noble and learned friends Lord Rodger of Earlsferry and Lord Mance. I have had the advantage of reading their opinions in advance of writing my own and gratefully adopt, and need not repeat, their exposition of the facts.

    28.  Put shortly, this appeal has its origins in the appellant's application, under section 8 of the Criminal Procedure and Investigations Act 1996, for an order requiring the prosecution, the respondent to this appeal, to disclose records of IKEA's trading records with certain named suppliers. The appellant had been charged, with others, of conspiracy to defraud by inducing companies in the IKEA group to pay for goods they had never received. The appellant believed that these records would, or might, enable her to undermine the cogency of important prosecution evidence, namely the evidence of a forensic accountant employed by the Serious Fraud Office who had investigated the transactions between IKEA companies and supplier companies with which the appellant was associated.

    29.  A preparatory hearing under section 7(1) of the Criminal Justice Act 1987 had been ordered. The appellant, and the other defendants, were arraigned at the commencement of the preparatory hearing and the appellant's section 8 discovery application was made. The judge, Judge Hodson, dismissed the application and refused leave to appeal. The appellant asked the Court of Appeal for leave to appeal but the Court of Appeal held that it had no jurisdiction to hear the appeal. In order, however, to allow the point to be tested in this House the Court of Appeal granted leave to appeal but then dismissed the appeal on the jurisdiction ground. It did not address the merits of the appellant's disclosure application. The Court of Appeal did, however, certify that a point of general public importance was involved and formulated the three questions set out in paragraph 17 of Lord Hope of Craighead's opinion and in paragraph 78 of Lord Mance's. Leaving aside the three questions, to which I must return in due course, the issue in this appeal is whether the Court of Appeal was right in concluding that it had no jurisdiction to entertain an appeal against Judge Hodson's dismissal of the appellant's disclosure application.

    30.  The Court of Appeal is a court created by statute and with the jurisdiction conferred on it by statute. It is common ground that its jurisdiction to entertain the appellant's appeal against the dismissal at the preparatory hearing of her disclosure application must be found in section 9(11) of the Criminal Justice Act 1987, as amended (but n.b., as Lord Mance has pointed out in paragraph 80 of his opinion, the amendments made by the Criminal Justice Act 2003 did not come into effect in time to apply to these proceedings). So stated, the jurisdiction issue ought to be a short and simple one. But unfortunately, as Lord Mance has demonstrated in paragraphs 84 to 90 of his opinion, the current jurisprudence on the scope of sections 7 to 9 of the 1987 Act, deriving from Court of Appeal and Crown Court cases from In re Gunawardena Harbutt and Banks [1990] 1 WLR 703 to the Court of Appeal decision in the present case, constitutes a "maze" (Lord Rodger's description: see para 50 of his opinion) through which it is now impossible to find a coherent path. In my opinion your Lordships should not attempt to do so but, instead, should take a chain-saw to the impenetrable thicket of interpretation that has grown up and should start again. I understand that all your Lordships agree that that should be done (see Lord Mance para 91, Lord Rodger para 50 and Lord Hope of Craighead para 16).

    31.  The first of the three questions posed by the Court of Appeal asks whether, for an appeal to lie to the Court of Appeal under section 9(11) of the 1987 Act from an order or ruling made during the course of a preparatory hearing held under section 7(1) of the Act, the order or ruling must be for one of the purposes set out in section 7(1). This question requires a view to be taken about the scope of the section 7(1) purposes. There are four of them -

    "(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; or

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

    32.  The common thread that runs through all these purposes is, surely, that of producing an efficient and expeditious disposal of the criminal proceedings in question and thereby of avoiding, or reducing to a minimum, any waste of the judge's time, the jury's time or the time of the lawyers engaged in the case. Some of the previous case law had held that an application to quash an indictment (Hedworth (1996) 1 Cr App R 421), or to stay proceedings on the ground of an abuse of process (Gunawardena [1990] 1 WLR 703), or to obtain a ruling that the prosecution was bound to fail (van Hoogstraaten [2003] EWCA Crim 3642), would fall outside the section 7(1) purposes and therefore could not be dealt with at a section 7(1) preparatory hearing. These cases should, in my opinion, be treated, on that point, as wrongly decided. Every such application would, unless it were unarguable, tend to promote the efficient and expeditious disposal of the criminal proceedings in question and would, in my opinion, come within the section 7(1) purposes, broadly and purposively construed. I am, therefore, in respectful agreement with the views about the breadth of the section 7(1) purposes expressed by Lord Mance in paragraph 91 of his opinion and by Lord Rodger in paragraphs 50 and 53 of his.

    33.  A preparatory hearing takes place, of course, before a jury has been empanelled. But section 8 of the 1987 Act says that where a preparatory hearing has been ordered the trial commences with that hearing. Arraignment of the accused must therefore take place at the start of the preparatory hearing (see s.8(2)). The fact that the preparatory hearing is part of the trial itself bears upon the next issue to be addressed, namely, the function of section 9. Two views about the function of section 9 are possible. One possible view is that Parliament intended section 9 to set out exclusively all the powers that could be exercised by the judge at a preparatory hearing. If that were right it would follow that the judge could not at a preparatory hearing deal with an application unless the application could be brought within the language of one or other of the section 9 subsections, notwithstanding that the effect of the application might plainly be to expedite the conduct of the trial after the jury had been empanelled. The other possible view is that the express references in the section 9 sub-sections to particular powers that the judge "may exercise" at a preparatory hearing are not intended to be exclusive but are simply important examples, and in some respects necessary examples, of powers that the judge may exercise. Since this is a matter on which I understand the views of your Lordships to be divided, it is necessary to examine the alternative views more closely.

    34.  The actual language of the section is, as it seems to me, consistent with either view. Sub-section (1) of section 9 says that the judge, at the preparatory hearing, "may exercise any of the powers specified in this section". It does not say that the judge may "only" exercise the powers specified in the section. The words "may exercise" are not words of exclusion. Nor, on the other hand, is language such as "may exercise, among other powers, any of the powers specified in this section" used. If it had been, the doubt as to which of the two views is the right one would not arise.

    35.  It is a legitimate question to ask why the specific powers or matters mentioned in subsections (2), (3), (4) and (5) of section 9 have been singled out for mention if the intention was that any interlocutory matters apt to promote the efficient and expeditious disposal of the criminal proceedings could be dealt with at a preparatory hearing. I think an answer must be attempted even if it cannot be a fully comprehensive one.

(i)  As to sub-section (2), which says that the judge "may adjourn a preparatory hearing from time to time", the concept of a preparatory hearing to take place before the empanellment of a jury but that would nonetheless be a part of the trial was a completely novel one. It may well not have seemed obvious to the legislators that a power to adjourn the preparatory hearing from time to time, and thereby to have repeated trial sessions before the jury had been empanelled, would have been an available power for the judge to exercise. An argument in favour of a once-and-for-all preparatory hearing might well, in the absence of sub-section (2), have been advanced.

(ii)  Sub-section (4) says that the judge may order the prosecution to provide various types of case statements to the court and the defendant. And sub-section (5) says that the judge may then order the defendant to give the court and the prosecution information about, or notice of, the proposed defence or points of law that will be taken. It is not clear that without this express mention the judge would have had power to so order.

(iii)  Finally, there is sub-section (3) which says that the judge "may determine -

    "(aa)  a question arising under section 6 of the Criminal Justice Act 1993 …;

(b)  any question as to the admissibility of evidence; and

(c)  any other question of law relating to the case;

and also, after the amendments made by section 310 of the Criminal Justice Act 2003 had come into effect on 4 April 2005 (see para 93 infra),

(d)  any question as to the severance or joinder of charges"

An explanation for the express reference to the determination by the judge of the questions mentioned in (b), (c) and (d) can be found in section 9(11). Sub-section (11) authorises an appeal, with leave, to the Court of Appeal "from any order or ruling of a judge under subsections (3), (b), (c) or (d)". Since, as clearly appears from sub-section (11), it was desired to limit strictly the interlocutory appeals that could be brought and to permit only appeals against determinations by the judge of (b), (c) or (d) questions it explains why express reference to those determinations was made in sub-section (3).

With the sole exception therefore of sub-section (3)(aa), there was, as it seems to me, good reason for the express mention of the sub-section (2), (3), (4) and (5) powers, not in the least inconsistent with treating the section 9 empowering provisions as examples of powers that may be exercised at preparatory hearings rather than as exclusive of the exercise of any other powers. The sole exception to which I have referred (the para.(aa) power in sub-section (3)) does not seem to me to provide much of a textual argument to the contrary.

    36.  The arguments against a construction of section 9 that treats the expressly mentioned powers as the only powers that can be exercised at a preparatory hearing seem to me much the stronger. If it is right, as I understand all your Lordships have concluded it is, that the statutory purposes expressed in section 7(1) that enable a judge to order a preparatory hearing to be held should be given a broad and purposive construction, it is very difficult to conclude that Parliament intended that the business that could be transacted at a preparatory hearing should be limited to the exercise of the powers expressly referred to in sub-sections (2), (4) and (5) of section 9 or the determination of the questions expressly referred to in sub-section (3). An application that would assist the judge's management of the trial would clearly fall within the section 7(1) purposes but it might well not fall within any of the sub-sections of section 9 that say what the judge at a preparatory hearing "may" do. To produce a construction of sections 7 to 9 that allowed a particular proposed application to be a sufficient ground for ordering a preparatory hearing to be held but excluded that application from the business that could be transacted at the preparatory hearing would, to my mind, be absurd. I do not see how one could attribute to Parliament an intention to produce such a result. On a broader front, if the purpose underlying the institution of preparatory hearings was to expedite the conduct of criminal proceedings once the jury had been empanelled and to avoid the waste of time and of costs incurred by interlocutory applications made after the jury had been empanelled, most of which applications would need to be dealt with in the absence of the jury, what possible sense could there be in treating section 9 as limiting the type of interlocutory applications that could be made at a preparatory hearing? Moreover, since a preparatory hearing is part of the trial there would be a natural expectation that any interlocutory application that could be made at the trial could be made at a preparatory hearing.

    37.  Two points made by my noble and learned friends Lord Rodger and Lord Hope in favour of the narrower view of section 9 have been made in their respective opinions. First, they point out the implications of section 8 for custody time limit purposes. An effect of section 8 is that the trial must be taken to have started before, and perhaps many months before, the trial before the jury is able to begin. The statutory limits on the time a defendant may be kept in custody pending trial will cease to apply when the preparatory hearing commences and defendants may, therefore, be prejudiced by an early preparatory hearing. This point, if I may respectfully say so, is entirely valid, but, surely, the remedy lies in the good sense of judges in not ordering preparatory hearings unless and until it is necessary to do so and, until then, in dealing with interlocutory applications, which, under the broader construction of section 9, could be dealt with at a preparatory hearing, as free-standing applications to be dealt with without the umbrella of a preparatory hearing.

    38.  My noble and learned friends' second point is that, if the narrow construction of section 9 that they prefer is the right one, interlocutory applications that do not qualify to be dealt with at a preparatory hearing can, nonetheless, be dealt with as extra business on the occasion of a preparatory hearing. As Lord Rodger put it in paragraph 57 of his opinion, "the judge can deal with all these matters on the same occasion ….". (see also para 20 of Lord Hope's opinion: "An application for disclosure under section 8 of the 1996 Act can be dealt with at any time.")

    39.  If the narrow construction of section 9 were the right one, I would respectfully agree with Lord Rodger that "all matters", whether or not within the narrow construction, can be dealt with by the judge on the same, preparatory hearing, occasion. The question, therefore, identified by Lord Rodger in paragraph 58 of his opinion, namely whether a judge has power under section 9 to determine an application for disclosure under section 8(2) of the 1996 Act, may seem of academic interest only. Even if he does not, he can deal with the application at, although not as part of, the preparatory hearing.

    40.  The final question is whether, if the judge does have power under section 9 to determine a disclosure application, an appeal lies under section 9(11) against the judge's determination. The answer to this question does not depend at all on whether the construction of section 9 that I favour is right. My noble and learned friends all agree that an interlocutory application can be dealt with at a preparatory hearing occasion whether or not it can be dealt with as part of the preparatory hearing business. So any disagreement about the scope of that business is academic. Section 9(11) allows appeals from the determination of questions under (b), (c) or, now, (d) of sub-section (3) and, if the determination is not a determination under sub-section (3) at all, it is common ground that there can be no appeal.

    41.  Mr Rees QC, counsel for the appellant, in his submissions to your Lordships, concentrated on the nature of the ruling or order that is sought to be appealed and on the question whether that ruling or order raises any question of law. But, in my respectful opinion, the concentration should be not on the nature of the determination but on the nature of the question that has been determined. The judicial determination of almost any question is capable of raising an issue of law. The judge may have made an error of law in his approach to the application. He may have produced a determination that no judge properly directing himself could have produced or that offends against some relevant principle of law. But it does not, in my opinion, follow that he has determined a "question of law relating to the case" (ss 3(c)).

    42.  The present appeal arises out of an interlocutory application for disclosure of IKEA's records. The judge was not asked to determine any question of law. He was simply asked to direct disclosure of the documentary material. In declining to so order the judge did not purport to "determine … any … question of law". His grounds for refusal included -

    (i) the need to look at the application "from the position of IKEA" (para.14 of his Reasons);

    (ii) the difficulty of obtaining the relevant records (para.18);

    (iii) his conclusion that the appellant had not shown she had reasonable cause to believe the material requested would assist her defence (para.19); and

    (iv) that the request for disclosure was not "proportionate".

These grounds may or may not, taken together or singly, raise questions of law but I do not see how the judge's ruling can be described as a determination of a question of law.

    43.  For the reasons I have given I am of the opinion that a judge does have power to determine an application for disclosure within the scope of a preparatory hearing, but I do not consider that he derives this power from section 9(3)(c) unless, as might sometimes be the case, the application does raise a question of law for his determination. In the present case the appellant's application did not, in my opinion, do so and I respectfully agree with my noble and learned friends that the application did not fall within the scope of section 9(3)(c) and that it follows that no appeal lies under section 9(11). I agree, also, with Lord Rodger's comments in paragraphs 67 and 68 of his opinion.

    44.  In my opinion, therefore, the Court of Appeal had no jurisdiction to deal with the appellant's appeal and this appeal should be dismissed. If it is desirable that the Court of Appeal should have jurisdiction to entertain appeals on any question of law arising out of the determination of a disclosure application, or out of the determination of any other interlocutory application in criminal proceedings, legislation conferring that jurisdiction is, in my opinion, necessary.

    45.  Finally, I must return to the 3 questions posed by the Court of Appeal in certifying that this appeal raised a point of law of public importance.

    (a) Given the view I take of the breadth of the section 7(1) purposes for which an order for a preparatory hearing to be held can be made, I cannot conceive of an order or ruling under section 9(3) (b), (c) or, now, (d), thus qualifying for an appeal under section 9(11), that would not be for one of the purposes set out in section 7(1). My answer to the question is that nothing more need be shown than that the appeal can be brought within section 9(11).

    (b) I cannot conceive of an application for disclosure under section 8 of the 1996 Act that would not fall within one or other of the section 7(1) purposes.

    (c) An order or ruling in determination of an application for disclosure under section 8 of the 1996 Act would qualify for an appeal under section 9(11) if, but not unless, it involved the determination of a "question of law relating to the case". It would not necessarily, or, in my opinion, usually, do so, and if it did not do so the order or ruling could not be the subject of an appeal under section 9(11).

LORD RODGER OF EARLSFERRY

My Lords,

    46.  The appellant and her co-defendants are charged with conspiracy to defraud (and associated counts of making and receiving corrupt payments) by dishonestly inducing IKEA, by false invoicing, to pay sums that were not due and owing between 1 January 1998 and 31 December 2000.

    47.  For purposes of her defence the appellant aims to show that during the relevant period IKEA's records were defective. In preparation for that exercise she asked the Crown to disclose records of IKEA's trading with other suppliers during the same period. The Crown rejected her request and the appellant made an application under section 8 of the Criminal Procedure and Investigations Act 1996 ("the 1996 Act") for an order requiring the prosecution to disclose the records. HHJ Hodson first dealt with the application at a hearing on 17 March 2006, but counsel for the appellant indicated that he wanted the judge to decide his application in the context of a preparatory hearing which had already been ordered under section 7(1) of the Criminal Justice Act 1987 ("the 1987 Act") and which was eventually fixed for 22 May 2006. This would, he contended, give him an opportunity to appeal if the decision went against the appellant.

    48.  In due course the preparatory hearing was held on 22 - 24 May. On that occasion the judge heard and rejected the appellant's application. The appellant then applied to the Court of Appeal Criminal Division (Maurice Kay LJ, Crane and Dobbs JJ) for leave to appeal under section 9(11) of the 1987 Act. Under reference to a line of cases, the Court of Appeal held that they had no jurisdiction to hear the appeal since the judge's decision had not formed part of the preparatory hearing. Nevertheless, they granted leave to appeal and certified that a point of law of general public importance was involved. The House granted leave to appeal.

    49.  Although the question which the Court of Appeal had to decide related to their own jurisdiction to hear the appeal, as they pointed out, in this case that question really turned on whether the judge had had power to deal with the appellant's application within the context of the preparatory hearing. The Court of Appeal held that, since the application and the judge's order on that application did not have one of the purposes in section 7(1), the decision did not form part of the preparatory hearing under section 9. In reaching that conclusion, the Court of Appeal loyally applied the previous decisions of the court in R v Maxwell 9 February 1995 (unreported), R v Crown Prosecution Service [2005] EWCA Crim 2342 and R v G and B [2004] 2 Cr App R 37, para 3, while expressing concern "at the relative elusiveness of this jurisprudence."

    50.  Rather than attempt to find a path through the maze of cases which puzzled the Court of Appeal, I prefer to identify the approach which Parliament intends judges to adopt by simply construing sections 7(1) and 9 of the 1987 Act. Section 7(1), as amended, is in these terms:

    "(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from a hearing (in this Act referred to as a 'preparatory hearing') before the jury are sworn, for the purpose 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; or

    (d)  assisting the judge's management of the trial,

    he may order that such a hearing shall be held."

Under section 7(1), a judge may order a preparatory hearing where it appears to him that the evidence on an indictment reveals a case of fraud of such seriousness or complexity "that substantial benefits are likely to accrue from a hearing ... before the jury are sworn," for any of four purposes set out under heads (a) to (d). The first thing to notice is that the purposes which the subsection lists are all matters which are of concern to any judge who aims to conduct a fair trial in an efficient way. What the judge has to consider, therefore, is whether substantial advantages in respect of one or more of those purposes are likely to accrue if he holds a preparatory hearing rather than leaving everything to be dealt with at the trial proper - by which I mean the trial when the jury are sworn.

    51.  When a judge is considering this question, he must naturally have regard to the powers which he will be entitled to exercise in such a hearing if he does decide to order one. They are to be found in section 9, as amended, which, so far as relevant for present purposes, 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 determine—

      (aa) a question arising under section 6 of the Criminal Justice Act 1993 (relevance of external law to certain charges of conspiracy, attempt and incitement);

      (b) any question as to the admissibility of evidence; and

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

    (4) He may order the prosecution—

      (a) to supply the court and the defendant or, if there is more than one, each of them with a statement (a 'case statement') of the following—

      (i) the principal facts of the prosecution case;

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

      (iii) any exhibits relevant to those facts;

      (iv) any proposition of law on which the prosecution proposes to rely; and

      (v) the consequences in relation to any of the counts in the indictment that appear to the prosecution to flow from the matters stated in pursuance of sub-paragraphs (i) to (iv) above;

      (b) to prepare their evidence and other explanatory material in such a form as appears to him to be likely to aid comprehension by the jury and to supply it in that form to the court and to the defendant or, if there is more than one, to each of them;

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

      (d) to make any amendments of any case statement supplied in pursuance of an order under paragraph (a) above that appear to the court to be appropriate, having regard to objections made by the defendant or, if there is more than one, by any of them.

    (5)  Where—

      (a) a judge has ordered the prosecution to supply a case statement; and

      (b) the prosecution have complied with the order,

    he may order the defendant or, if there is more than one, each of them—

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

    (ii)  to give the court and the prosecution notice of any objections that he has to the case statement;

    (iii)  to inform the court and the prosecution of any point of law (including a point as to the admissibility of evidence) which he wishes to take, and any authority on which he intends to rely for that purpose;

    (iv)  to give the court and the prosecution a notice stating the extent to which he agrees with the prosecution as to documents and other matters to which a notice under subsection (4)(c) above relates and the reason for any disagreement.

    ...

    (11)  An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal."

 
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