Ex parte Guardian Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE |
| Judgment Date | 30 September 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0930-3 |
| Docket Number | Case No: 98/05678/S1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 September 1998 |
[1998] EWCA Crim J0930-3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Mr Justice Kay
Mr Justice Maurice Kay
Case No: 98/05678/S1
MR MICHAEL TUGENDHAT QC (instructed by Siobhain Butterworth) appeared on behalf of the Appellants)
MR R BOYLE (instructed by the Serious Fraud Office)
MR ALUN JONES QC and MR JAMES WOOD (instructed by Simons Muirhead and Burton) appeared for the Defendant Jamshid Hashemi Naini
MR EDMUND LAWSON QC and MR MUKUL CHAWLA (instructed by Kingsley Napley) appeared for the Defendant Michael James Palmer
On 9th September 1998 Guardian Newspapers Ltd gave notice of application pursuant to Section 159(1)(b) of the Criminal Justice Act 1988 for leave to appeal against an order made by Collins J at the Central Criminal Court on 8th September 1998 pursuant to the inherent jurisdiction of the court that the part of the criminal proceedings before him which concerned the defendants' application to stay those proceedings as an abuse of process be held in camera.
Section 159(1)(b) provides for the possibility, if this court grants leave to appeal, for a person aggrieved to appeal to this court against an order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial. Section 159(6) creates power to make special provision, by way of rules of court, as to the practice and procedure to be followed in relation, inter alia, to appeals from orders for hearings in camera.
On the face of it, Rule 16B of the Criminal Appeal Rules appears to make such provision. It is, however, expressly tied to proceedings in which one of the parties has served a notice under Rule 24A(1) of the Crown Court Rules 1982 of his intention to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of a witness or any other person.
Rule 16B reads, so far as is material:
"(1) This rule applies to proceedings in which a prosecutor or a defendant has served a notice under rule 24A(1) of the Crown Court Rules 1982 of his intention to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of a witness or any other person.
(2) Where a notice has been displayed under rule 24A(2) of the Crown Court Rules 1982, a person aggrieved may serve notice in writing on the Registrar as prescribed in Form 20 that he intends to appeal against any order that may be made on the prosecutor's or defendant's application, and he shall serve a copy of such notice on the appropriate officer of the Crown Court where the trial is to take place, on the prosecutor and the defendant and on any other interested person.
(3) Subject to paragraph (4) a notice shall be served on the Registrar under paragraph (2) within 7 days of the display of the notice under rule 24A(2) of the 1982 Rules and where such an order is made at the trial, the notice shall be treated as the application for leave to appeal against the order.
(4) Where an order is made at the trial, a person aggrieved who has not served a notice under paragraph (2) may apply for leave to appeal against the order by notice in writing as prescribed in Form 20 served on the Registrar within 24 hours after the making of the order, and he shall forthwith serve a copy of such notice on each of the persons who are to be served under paragraph (2).
(6) An application for leave to appeal shall be determined by a judge of the Court, or the Court as the case may be, without a hearing.
(7) Where leave to appeal is granted, the appeal shall be determined without a hearing."
In Ex p Guardian Newspapers Ltd The Times, October 26, 1993, this court has held that notwithstanding these provisions, written submissions from an appellant or applicant would be permitted, and we have received written submissions from all the parties in this case.
We have first to decide, however, whether Rule 16B on its proper construction does apply in the situation before us, or whether the rule-makers have completely failed to make rules providing for the present situation, notwithstanding their powers under Section 159(6) of the Act. To consider the force of this submission, it is necessary to say something about the stage the proceedings had reached when the judge made his order.
The two defendants faced an indictment containing five joint counts charging them with conspiracy to defraud and five individual counts of charging one or other of them with dishonesty of one kind or another. They had pleaded not guilty on arraignment, but they had not yet been put in charge of a jury. Indeed, the judge was hearing a number of applications which included an application to stay the proceedings for abuse of process. We were told that preparatory hearings were likely to take place off and on over the rest of this year, and the trial proper would not start till next year.
It has now been decided by the House of Lords that an order made on an application to stay proceedings for abuse of process is an order relating to trial on indictment within Section 29(3) of the Supreme Court Act 1981 and is not therefore amenable to judicial review. See In re Ashton [1994] 1 AC 9 where Lord Slynn of Hadley said at p 20D:
"In the present case where the order was made at the very beginning of the trial, or even if strictly just before the trial was due to begin, it is no less an order made 'as an integral part of the trial process …'"
On the other hand this court has held that such an order does not fall within The range of orders which may be made at a preparatory hearing provided for by statute. The special statutory provision which allows for appeals against an order made at such a hearing does not, for this reason, create a path for an interlocutory appeal to this court. See Re Gunawardena 91 Cr App R 55 and Hedworth [1997] 1 Cr App R 421. The combined effect of these decisions is that no remedy is available to a defendant aggrieved by a refusal to stay proceedings on the grounds of abuse of process until a trial is over.
We should add that it is well settled that a trial does not start on arraignment, unless there is any statutory provision creating this effect. It starts when a jury is sworn and the defendant is put into the charge of the jury ( Tonner 80 Cr App R 170). The entering of a plea of "not guilty" does not mark the commencement of a trial but merely establishes the need for a trial ( Quazi v DPP [1988] Crim LR 529).
We are concerned in this case, however, with a different issue. Rule 24A(1) and (2) of the Crown Court Rules 1982, entitled "Hearings in camera", provide:
"(1) Where a prosecutor or a defendant intends to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of the identity of a witness or any other person, he shall not less than seven days before the date on which the trial is expected to begin serve a notice in writing to that effect on the appropriate officer of the Crown Court and the prosecutor or the defendant as the case may be.
(2) On receiving such notice, the appropriate officer shall forthwith cause a copy thereof to be displayed in a prominent place within the precincts of the Court."
The lawyers acting for both defendants invoked the provisions of Rule 24A. Notices were served on the Crown Court at the appropriate time indicating an intention to apply for an order that part of the proceedings to be heard on 7th September 1998 and following be heard in camera, and although only one of these notices was displayed in a prominent place, no point is now taken about this, since the failure to display both notices was not due to any default by either defendant. A point is, however, taken that the notices failed to state whether national security or the protection of the identity of a witness was the reason for the application, and they also failed to specify to which part or parts of the proceedings the notice related.
A journalist for The Observer newspaper, Mr Michael Gillard, saw the notice and took exception to it, and it was in these circumstances that Guardian Newspapers Limited appeared by leading counsel on 8th September to oppose the making of an order of this kind. We have been able to read the submissions made by Mr Tugendhat QC to the judge. He also showed the judge a clip of newspaper cuttings which revealed how much information about this case was already in the public domain. The Crown took a neutral stand. The judge then heard submissions in camera from counsel for the immediate parties to the proceedings before making a ruling in these terms:
"Mr Tugendhat, I expect that you have received the message that I have decided, after hearing argument, that we ought to hear the application in camera. Now that, of course, does not mean that, necessarily, there will be any hearing in camera if the trial goes ahead because part of the application is that it is based on an abuse of process…
It is not possible for me to give reasons in open court as to why I have done that. I am quite prepared to give you reasons and I think that I can say things which are in the public domain, as it were, which give you, broadly, the reasons and they are essentially these…
Essentially, the matters that you referred to (that is to say, the newspaper cuttings) lie behind this and it has seemed to me that, essentially, for two main reasons:
(1) because of the need to protect any wide ranging consideration of matters which could affect public—national...
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