R v I-I and Others
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 14 August 2009 |
| Neutral Citation | [2009] EWCA Crim 1793 |
| Docket Number | No: 2009/4038/C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 August 2009 |
[2009] EWCA Crim 1793
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Vice President Of The Criminal Division
(lord Justice Hughes)
Mr Justice Griffith Williams
Mr Justice King
No: 2009/4038/C5
Miss S Wass QC and Miss E Schutzer-Weissman appeared on behalf of the Appellant Crown
Mr O Nsugbe QC appeared on behalf of the Respondent Defendants
: The question in this interlocutory appeal is whether on the facts of this case the judge could lawfully rule that although he had conducted a preparatory hearing he should not be the trial judge.
The concept of a preparatory hearing was devised in the late 1980s by the Roskill report on the trial of large frauds (1986). The Criminal Justice Act 1987 (“ CJA 1987”) created the Serious Fraud Office, permitted transfer of its cases directly to the Crown Court without committal proceedings, and made what were then ground-breaking provisions for the case management of large cases of fraud. The Act inaugurated, in sections 7-10, the novel concept of a preparatory hearing. If a judge directed a preparatory hearing he was given statutory authority by that Act to give a number of case management directions. They included requiring the prosecution to render its evidence into a jury-friendly form by way of schedules and the like and to provide a written statement of its case. They included also directing the defence to answer suggestions for admissions and to respond to the prosecution case statement by way of written indication of what it disputed and why —and a sanction was provided for non-compliance in the form of legitimating comment, with the leave of the judge, upon it. In addition, the Act recognised for the first time in statute the possibility that an issue of law, of the admissibility of evidence, or of severance, might be decided in advance of what was ordinarily the beginning of the trial with the swearing in of the jury. Later, by sections 29 and following of the Criminal Procedure and Investigations Act 1996 (“ CPIA”) it was provided that the same device of a preparatory hearing was extended to non-fraud cases of sufficient complexity or length.
The case management of criminal trials has come a long way in the meantime. Even at the time of the CJA 1987 there were of course instances of pre-trial rulings, for example as to severance of defendants or separate trials of charges, and there were certainly examples of directions to the parties designed to smooth the course of the trial. The Central Criminal Court had adopted a practice of pre-trial review as long ago as November 1977, which was gradually adopted over the next ten years or so by most other Crown Courts. This court had held in Thorne (1977) 66 Cr App R 6 that a pre-trial review should take place in any complicated case. But there remained considerable uncertainty about the stage at which it was proper to make rulings of law and about the extent of management directions which could properly be given. Furthermore, outside the serious fraud provisions of the CJA 1987 no sanction for non-compliance with directions existed. All that has greatly changed. Nowadays:
I) a judge in any complex trial is enjoined by the Lord Chief Justice's protocol on the management of heavy fraud and other complex criminal cases (22 March 2005; Archbold 2009 Appendix N) to adopt wherever appropriate what are substantially the procedures recognised by the 1987 Act;
Ii) the CPIA 1996, already 13 years old, but progressively amended since its enactment, requires of the defendant in every criminal case a statement of his position in relation to the evidence against him and provides by a combination of sections 5(5), 6A and 11(5) for the same sanction for non-compliance that originated in the 1987 Act and is now, for preparatory hearing cases, contained in sections 9(5) and 10 CJA 1987 and sections 31(7) and 34 CPIA;
Iii) most of all, the same CPIA provides by sections 39-43 statutory recognition of the power of a judge to make binding rulings of law in a hearing held in advance (and sometimes long in advance) of the swearing in of the jury;
Iv) the Criminal Procedure Rules lay down an overriding obligation on all parties to a criminal case actively to assist the court in its duty of active case management: See rules 3.2 and 3.3; and
V) in all cases a ruling stands unless varied or discharged for good reason: In the case of a preparatory hearing this is provided for by section 31(11) CPIA or s 9(10) CJA 1987, and in the case of a non-preparatory pre-trial hearing by CPIA section 40(4) and (5); although those provisions are somewhat differently expressed we have no doubt whatever that the same principles apply to both; in particular a judge, whether the same as before or a different judge, is not obliged to re-visit a ruling previously made unless there is good reason to do so; he is perfectly entitled to deal summarily with any request that he do so unless there appears to him to be some change of circumstance or other sufficient reason to re-open it.
For all practical purposes, the court now has exactly the same powers of management in a non-preparatory hearing case as it has in one where a direction for a preparatory hearing is given. We leave to one side the special rules where non-jury trial is under consideration (sections 43-45 Criminal Justice Act 2003). Otherwise, the sole practical difference which counsel or we have been able to identify is that in the case of the preparatory hearing a ruling of law or as to severance may be challenged by either side by interlocutory appeal: section 35(1) and 31(3) CPIA or sections 9(11) and 9(3) CJA 1987. In the case of a ruling given outside a preparatory hearing there is no general power of interlocutory appeal; the only avenue of such appeal which exists is that available to the Crown under section 58 Criminal Justice Act 2003 in the limited circumstances in which it is willing to give the undertaking stipulated for in section 58(8) that acquittal shall follow a failure of its appeal.
Judicial continuity is an essential feature of good case management. Case management is a continuous process and demands consistency of approach. Successive decisions are likely to impact one upon the other. In order to give case management of upcoming cases the close attention it needs, at the same time as coping with current trials, the judge needs to be committed to the case. It is a waste of resources for more than one judge to have to read properly into a large volume of papers; the heavier the case the more this is so.
These propositions are in no sense limited to cases of preparatory hearings. The Roskill report recommended that the judge who presided at its proposed preparatory hearing should, save in exceptional circumstances, conduct the trial. Similarly, the Lord Chief Justice's protocol of March 2005 (see paragraph 4 above) says this at paragraph 3:
“(a) In any complex case which is expected to last more than four weeks the trial judge will be assigned under the direction of the Presiding Judges at the earliest possible moment.
(b) Thereafter the assigned judge should manage that case 'from cradle to grave': It is essential that the same judge manages the case from the time of his assignment and that arrangements are made for him to be able to do so. It is recognised that in certain court centres with a large turnover of heavy case (eg Southwark) this objective is more difficult to achieve. But in those court centres there are teams of specialist judges who are more readily able to handle cases which the assigned judge cannot continue with because of unexpected events; even at such courts there must be no exception to the principle that one judge must handle all the pre-trial hearings until the case is assigned to another judge.”
As that excerpt from the protocol recognises, the necessary objective of judicial continuity can bring with it complications. To an extent it is necessarily in tension with the flexibility which any court needs to cope with the unexpected. Judicial illness or onward appointment, the overrun of current cases, and the unexpected arrival of new defendants or evidence are but simple examples of events which, in the best-managed courts, can throw up the necessity for hard choices to be made between maintaining judicial continuity and dealing efficiently with other cases. The problem is by no means limited to criminal cases; it is felt also elsewhere, particularly in the management of care and other children cases in the family courts. The greater the number of cases that are actively managed, the greater the opportunity for this tension to arise. The Criminal Procedure Rules expressly recognise the need for flexibility. Rule 3.8(2) provides:
“At every hearing the court must, where relevant
…
(d) in giving directions ensure continuity in relation to the court and to the parties' representatives where that is appropriate and practicable.” (emphasis supplied).
When there is a preparatory hearing, the trial begins with it. This has always been a feature of the concept. Both section 8 CJA 1987 and section 30 CPIA provide:
“If a judge orders a preparatory hearing —
(a) The trial shall start with that hearing and
(b) arraignment shall take place at the start of that hearing unless it has taken place before then.”
Those are statutory provisions which while they stand of course override any general propositions contained in the Criminal Procedure Rules. Such a provision was a key feature of the regime for case management by preparatory hearing...
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