R (O) v Central Criminal Court
| Jurisdiction | England & Wales |
| Judge | DY JUSTICE HALLETT,MR JUSTICE JACK,Lady Justice Hallett,LADY JUSTICE HALLETT,Mr Justice Jack |
| Judgment Date | 27 January 2006 |
| Neutral Citation | [2006] EWHC 256 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2006 |
| Docket Number | CO/4501/2005 |
[2006] EWHC 256 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lady Justice Hallett
Mr Justice Jack
CO/4501/2005
MR RICHARD ANELAY QC (instructed by Messrs Clarke Kiernan, 2–4 Bradford Street, Tonbridge, Kent TN9 1DU) appeared on behalf of the CLAIMANT
MR KEVIN BARRY (instructed by Crown Prosecution Service, Special Cases Unit, 4th Floor, Ludgate Hill, London EC4M 7EX) appeared on behalf of the DEFENDANT
On 22nd September 2004, the complainant, SS, made allegations of rape, false imprisonment, sexual assault and threats to kill against the claimant. On 24th September 2004, the Greenwich Magistrates' Court sent the claimant forthwith to the Crown Court for trial on the charges pursuant to Section 51 of the Crime and Disorder Act 1998; ie with no consideration of the sufficiency of the evidence.
Under Schedule 3 2(1), of the Act, however, any person sent for trial under this procedure may, "before he is arraigned (and whether or not an indictment has been preferred against him) apply orally or in writing to the Crown Court for the charge or charges to be dismissed." Regulation 2(2) provides, where relevant, that.
"The judge shall dismiss a charge (and accordingly quash any count relating to it) … If it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him."
Provision is also made for the hearing of oral evidence at such a hearing in the following way. Regulation 2(4) reads:
"Oral evidence may be given on such an application only with the leave of the judge or by his order; and the judge shall give leave or make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so."
Regulation 2(6) provides that, if any charge is dismissed, no further proceedings can be brought upon it, save by way of voluntary bill of indictment. The claimant's legal representatives at the time of transfer of the charges decided to seek the leave of the judge for oral evidence to be given by the complainant under Regulation 2(4) of Schedule 3 and to apply to dismiss the charges pursuant to Regulation 2(2) of Schedule 3 of the Act.
According to the witness statement from O's solicitor, Mr Dennis Clark, a solicitor very experienced in his field, the main reason for asking that the complainant give oral evidence was that the defence wished to test the accuracy and reliability of her recollection and her mental health. The complainant has admitted that she is a crack cocaine addict who has also abused alcohol. Mr Anelay QC conceded before us that, without the opportunity to explore the complainant's evidence in cross-examination, the application to dismiss was unlikely to succeed. The defence team in the Crown Court hoped to demonstrate by cross-examination that the complainant's account was so fundamentally undermined and her credibility was so poor, unsupported by other evidence, that it could not properly found verdicts of guilty and the charges should be dismissed. In accordance with the provisions of Regulation 6, the accused would then have been discharged immediately.
The applications for leave to call oral evidence and dismiss the charges were made to HHJ Hawkins QC, at the Central Criminal Court. He found against the claimant on both. He gave his reasons for refusing to allow the complainant to be called to give oral evidence on 1st April 2005 and on 11th May 2005 he gave his reasons for refusing to dismiss the charges. Although the matter was rightly described as urgent, the claim form was not issued, I note, until 5th July 2005. Davis J refused permission to bring Judicial Review on 7th July 2005. On a renewed application, this court gave permission on 14th October 2005. The claimant now with leave seeks Judicial Review of the decisions of HHJ Hawkins QC.
The central issue which arises for our decision is a simple one to state. It is as follows: Whether each of the rulings under review are "matters relating to trial on indictment" so that the provisions of Section 29(3) of the Supreme Court Act 1981 are engaged and this court is deprived of jurisdiction. Section 29(3) provides:
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."
In this regard, we were referred to the decision of the Divisional Court in R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr.App.R 18 DC. The claimant, Snelgrove, was similarly charged with an indictable only offence and was sent for trial by the Magistrates to the Crown Court under Section 51. Before an indictment was preferred, he sought the leave of the trial judge for oral evidence to be called as to the mental state of the complainant Reynolds. He too applied for the charge to be dismissed and this was on the basis that the only evidence against him came from Reynolds. The unused material revealed that he had made a number of inconsistent statements and had at one stage indicated an apparent willingness to allow the dropping of all charges. The trial judge refused both applications and Snelgrove claimed Judicial Review of those rulings.
Auld LJ, with whom Richards J, as he then was, agreed, undertook a comprehensive review of the authorities on the question of jurisdiction and the effect of Section 29(3). He considered in particular the decisions of the House of Lords in Re Smalley [1985] 80 Cr.App.R 205 and in Re Sampson [1987] 84 Cr.App.R 376. He also subjected the decision of this court in R v Central Criminal Court ex p Directors of the Serious Fraud Office [1993] 96 Cr.App.R 248 (Asil Nadir) to particularly careful analysis. This decision was relevant to the issue in Snelgrove because, in Asil Nadir, the court held that a decision to stay proceedings as an abuse of the process of the court was judicially reviewable prior to arraignment, on this occasion at the behest of the prosecution. Auld LJ noted, however, that in his judgment Woolf LJ, as he then was, emphasised that, having accepted the jurisdiction existed, he went on to hold that it should be exercised in exceptional cases.
However, Auld LJ's analysis of the authorities led him to the conclusion that the decision in Asil Nadir had been overtaken, as he put it, by decisions of the House of Lords in Ashton [1993] 97 Cr.App.R 203; [1994] 1 AC 9 and R v Manchester Crown Court ex p Director of Public Prosecutions [1994] 98 Cr.App.R 461. He adopted his own comments in R (Salubi and Ors) Bow Street Magistrates' Court [2002] 2 Cr.App.R 660, in which he expressed doubts that Parliament had intended, when attempting to provide a more streamlined procedure for serious offences, that a defendant could challenge by way of Judicial Review rulings as to dismissal or stay of proceedings, proceedings which themselves could be appealed elsewhere. At paragraphs 42 to 47, Auld LJ set out his conclusions and the reasons therefore. At paragraph 43, he said this:
"i) The clear underlying purpose of section 51 of, and Schedule 3 to the 1998 Act (and for that matter section 6 of the 1987 Act and section 53 of, and Schedule 6, to the 1991 Act) are to speed the criminal justice process, a purpose that Mr Perry rightly emphasised. As the Court said in Salubi, at para 16, the intention of Parliament in introducing the new 1998 Act procedure was to simplify and speed the procedure of transmission of all indictable-only cases against adults to the Crown Court to enable it to deal with preliminary challenges to charges of this seriousness, requiring it to dismiss the charge where, in the words of paragraph 2(2) of Schedule 3 to the 1998 Act, 'the evidence against the applicant would not be sufficient for a jury properly to convict him'. Thus, the argument advanced by Mr Perry, on behalf of the Crown Prosecution Service is consistent with that policy. The availability of judicial review would inject delay and uncertainty into proceedings in the Crown Court, which cannot have been the intention of Parliament. A claimant's remedies, in the event of failure of his application to dismiss, lies in the trial process, or, if he is convicted, on appeal to the Court of Appeal (Criminal Division).
"ii) The exclusionary words of section 29(3), namely 'in matters relating to trial on indictment' are themselves sufficiently broad, with or without the three 'pointers' given by the House of Lords, to cover the 1998 Act dismissal procedure.
"iii) Pace the ratio of the Court in Asil Nadir, the effect in law and fact of the 1998 Act (as also in the cases of the 1987 and 1991 Acts) is that, following the sending of a case to the Crown Court, it is seized of the matter and all decisions concerning the issue between the accused and the Crown, decisions that necessarily 'relat[e] to … [his] trial on indictment'.
"iv) The decision whether to dismiss the charge also satisfies all three House of Lords 'pointers' to resolution of such an issue, namely: i) it affects the conduct of the trial, that is, whether or not it proceeds, as Lord Slynn observed in Ashton, at 520C-D in relation to a decision on an application to stay for abuse of process; ii) it is, as Lord Slynn in Ashton, at 520D, also indicated, an integral part of the trial process; and iii) it is clearly an issue between the Crown and the...
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