- On Monday 8th December 2003 we had before us an application
by the prosecution for leave to appeal pursuant to section 35(1) of the Criminal
Procedure and Investigations Act 1996. On behalf of the respondent/defendant
Mr Geoffrey Cox QC submitted that the section does not apply to the decision
of Sir Stephen Mitchell which the prosecution want to bring before this court.
After hearing oral submissions we accepted that submission on behalf of the
respondent for reasons to be given later, and we now give those reasons.
Background.
- On 2nd July 1999 Mohammed Raja was murdered in his home at Sutton,
by two men who stabbed him five times and shot him with a sawn-off single
barrel shot gun. The two men were Robert Knapp and David Terence Croke. They
were convicted of murder at the Central Criminal Court on 19th July
2002. They were jointly charged with the present respondent who, the prosecution
contended, had ordered the killing of Raja or that he suffer really serious
bodily harm. He was acquitted of murder, but convicted of manslaughter. He
appealed against his conviction and on 23rd July 2003, before
another division of this court, that appeal was allowed, and the conviction
was quashed. The reason why the appeal was allowed was that the trial judge
had misdirected the jury as to what had to be established before they could
convict of the offence of manslaughter. The direction he gave was said to
be too wide, but the court directed that there be a re-trial in relation
to that offence. It was not at the time suggested by anyone that there should
not be a re-trial, so a fresh indictment was preferred on 8th August
2003, and on 26th August 2003, when the respondent was re-arraigned,
the Common Serjeant ordered that there be a preparatory hearing before Sir
Stephen Mitchell, sitting as a deputy high court judge, who was the nominated
trial judge.
Before the trial judge.
- Thus the case came before Sir Stephen last month, and, as he put it in
the judgment which he delivered on 2nd December 2003, Mr Cox endeavoured
to persuade him that this case should not proceed to trial. Because of the
way that the case had come before the trial judge there was no possibility
of an application to dismiss under the provisions of the Crime and Disorder
Act 1988, so Mr Cox raised what he described as a more fundamental objection,
namely that even if the prosecution was able to prove the facts it set out
to prove, and which were conveniently encapsulated in a written "agreed
basis of the Crown’s Case for the purposes of legal argument", the jury
would not in law be entitled to conclude that the defendant was guilty of
manslaughter. The application made by Mr Cox was not technically a motion
to quash the indictment, because there was no defect on the face of the indictment
and the circumstances in which it might be possible to examine the evidence
relied upon in support of the indictment in order to consider whether to
quash it did not apply, but it was an application, Mr Cox submits, which,
once made, had to be considered – not least because of the requirements of
Article 7 of the European Convention on Human Rights and section 6 of the
Human Rights Act 1998. It cannot be right to keep a man in custody and subject
him to a long trial when even if the prosecution proves all the facts it
sets out to prove he cannot properly be convicted of the offence with which
he is charged.
- Mr David Waters QC, for the Crown, did not seek to persuade the trial judge
not to hear the application made by Mr Cox. Indeed he agreed that the issue
raised should be decided, the position of the Crown being that it fell to
be decided as part of the preparatory hearing ordered by the Common Serjeant.
- Sir Stephen therefore heard submissions from both sides as to the effect
of the decision of the House of Lords in Powell and English [1999]
1 AC 1 and a number of other authorities dealing with the liability of a
secondary party for a criminal act which caused death. As Sir Stephen put
it at page 4E of the transcript of his judgment, the liability of such a
party –
"Depends
now on whether he was a party with the primary offender to some initial
joint venture and if he was, whether the relevant
act of the primary offender was of a type foreseen but nor necessarily intended
by the secondary party as a possible incident of the common unlawful enterprise.
In other words foresight defines the scope of the joint enterprise. The criminal
culpability lies in participating in the venture with that foresight."
Mr Cox submitted that even if the prosecution could prove
what they set out to prove Mr van Hoogstraten could not be liable in law
for the act which caused death because it is not alleged that he contemplated
that act. The submission is set out in the judgment at 26B –
"The
act which caused death, so the argument runs, is an act of fundamentally
different character from the act contemplated
by Mr van Hoogstraten. The act which caused death was the deliberate discharge
of a firearm deliberately aimed at Mr Raja. The act contemplated by Mr van
Hoogstraten was the deliberate discharge of a firearm in circumstances which
excluded the deliberate causing, by the use of the firearm, of any physical
injury, let alone the deliberate causing of death."
The prosecution relied on some authorities which, the court
held, do not survive the reasoning of the House of Lords in Powell and
English and at 42C Sir Stephen said –
"I
have come to the conclusion that the application of the foresight test
to the agreed facts of this case reveals that there
is no basis upon which a jury could conclude that Mr van Hoogstraten contemplated
the act which in this case caused death."
For present purposes it is unnecessary to examine further
in any detail the process of reasoning of the trial judge. After he delivered
his judgment the prosecution sought leave to appeal. The judge had power
to grant leave pursuant to section 35(1) of the 1996 Act if the ruling could
properly be described as a ruling under section 31(3), that is to say a ruling
made at the preparatory hearing as to a question of law relating to the case.
He declined to grant leave or to quash the indictment, but on the basis that
Mr Waters might be able to persuade this court that the ruling did fall within
section 31(3) and that leave to appeal should be granted the trial judge
gave the prosecution an opportunity to make the application which we heard.
Statutory provisions.
- In order to decide whether we have jurisdiction to hear the appeal which
Mr Waters wanted to develop before us we have to look first at the relevant
sections of the 1996 Act. We begin with section 29 which obtains the power
to order a preparatory hearing. That section begins –
"(1)
Where it appears to a judge of the Crown Court that an indictment reveals
a case of such complexity, or a case whose trial
is likely to be of such length, that substantial benefits are likely to accrue
from a hearing –
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2),
he may order that such a hearing (in this part referred
to as a preparatory hearing) shall be held.
(2) The purposes are those 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 proceedings before the jury;
(d)
assisting the judge’s management of the trial."
- Section 30 states that –
"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."
- Section 31, so far as relevant, provides –
"(1)
At the preparatory hearing the judge may exercise any of the powers specified
in this section.
(3) He may make a ruling as to –
(a) any question as to the admissibility of evidence;
(b)
any other question of law relating to the case."
- Section 35 deals with appeals to this court, and so far as relevant it
provides –
"An
appeal shall lie to the Court of Appeal from any ruling of the judge under
section 31(3), but only with the leave of the judge
or of the Court of Appeal."
If the statutory wording were new and we had no assistance
from authorities we might find it difficult to resist the submission of Mr
Waters which, in the context of this case, can be summarised as follows –
a preparatory hearing was ordered, at that hearing Mr Cox asked for a ruling
on what was plainly a question of law related to the case, the judge made
a ruling, and therefore if we grant leave section 35(1) gives a right of
appeal.
Other legislation and authorities.
- However, the statutory wording is not new. It derives from the Criminal
Justice Act 1987 which made it possible to have preparatory hearings in cases
involving serious and complex frauds, and over the years since 1987 this
court has considered on a number of occasions the extent of the statutory
right of appeal. It was common ground before us that there have been no significant
changes in the statutory wording. In Gunawardena [1990] 91 Cr App
R 55 at the preparatory hearing the defendants sought an order that the trial
be stayed as an abuse of process on the grounds of unjustifiable delay. That
was refused, as was their application for leave to appeal, both at first
instance and in this court. Watkins LJ said at page 60 –
"In
our judgment the words of sections 7, 8 and 9 themselves plainly demonstrate
the object of Parliament in creating the preparatory
hearing. It must have been, according to the language used, we think, the
intention of parliament in introducing this novel procedure – novel in that
it has not been introduced in respect of any other kind of criminal trial
– to ensure that it be used for a specific purpose or purposes. It deliberately
so enacted, in our view, the provisions of subsection (1) of section 7 in
order to make it clear that it was creating this new and very valuable procedure
for the specified purposes and no other.
We
cannot bring ourselves to believe that Parliament can possibly, by using
the clear
words which they have used in sections 7 and
9, to allow a preparatory hearing to commence for a certain specified purpose
have intended to permit, once a preparatory hearing for that purpose is in
being, argument to range around all manner of issues which cannot be said
to relate to any of the specified purposes."
Gunawardena was followed in Moore, 5th February
1991 unreported, where one of the matters considered at the time of the preparatory
hearing was whether to quash a count of theft. At page 5 of the transcript
Lord Lane CJ said –
"The fact that a possible incidental effect of the
purposes of the application does find itself within those sub-provisions
(a) to (d) is not one of the purposes of those provisions. It is the word "purpose" by
which the situation is governed. In our judgment it is improper and misconstruction
to redraft the wording so as to substitute some such word as "consequences" for
the word "purpose". So far as the motion to quash is concerned,
it does not, in our judgment, come within those four sub-provisions. Basing
ourselves on Gunawardena by which we are bound, and with which we
respectively agree, in our judgment the prosecution’s argument succeeds.
There is no jurisdictional basis upon which this Court can entertain the
appeal."
- In Hedworth [1997] 1 Cr App R 421 the indictment was amended to
take into account the decision of the House of Lords in Preddy [1996]
AC 85, and at a preparatory hearing application was made to quash the amended
indictment on the basis that the charges were not supported by evidence in
the depositions or Notices of Further Evidence which had been served. That
was refused, and in this Court counsel for the applicant submitted that once
a preparatory hearing begins then all applications to the trial judge form
part of it, and any order which he makes involving a question of law can
be appealed. Alternatively, if it was necessary to identify a purpose within
section 7(1) (for present purposes section 29(2)) then it was possible to
do so. The court looked at the earlier cases to which we have referred, and
also at Jennings [1994] 98 Cr App R 308 and Maxwell 9th February
1995 unreported, and concluded that counsel’s first submission was wrong.
At 430 E Evans LJ said –
"Two
conditions must be satisfied before the Court of Appeal can have jurisdiction:
first, there must be a issue of law, or
evidence, within section 9(3); secondly, the order appealed from must have
been made within the ambit of the preparatory hearing, that is to say within
the scope of section 7(1)."
The alternative submission was rejected by reference to Moore and Maxwell and
Evans LJ dealt with the need to show that the ruling said to be appealable
was made for one of the purposes of a preparatory hearing as defined in section
7(1) of the 1987 Act (now section 29(2) of the 1996 Act). He said at 432B
–
"We
would hold, first, that the reference to ‘purpose’ comes from section 7(1)
itself. It is not fruitful, in our view to consider
whose purposes: meaning what subjective purposes the applicant or the court
or any other person may have had. Section 7(1) is concerned with an application
and a hearing and an order made on that application after that hearing. The
purpose of the application or the hearing or the order is clear, or it can
be derived, in our view from those facts alone; maybe this is saying it is
an objective rather than a subjective test. No one can doubt what the purpose
of an application or an order to quash one or more counts in an indictment
is: it is to obviate the need for arraignment of the defendant on that count
or counts and his trial thereafter.
Section
7(1), in our judgment, presupposes a valid indictment, the preparatory
hearing is concerned with the applications and orders which
will facilitate the trial of those charges. That we would call the scope
or the ambit of the preparatory hearing. The purpose of an application to
quash is diametrically opposed to that: it is to prevent the arraignment
or the trial from taking place."
- The only other authority to which we need refer at this stage is R v
W [1998] STC 550 where at a preparatory hearing it was submitted that
the Crown Prosecution Service should be prevented from prosecuting where
the Inland Revenue had enforced penalties against a tax payer. At 554C
Rose LJ said that there was no jurisdiction to entertain an appeal. The
defence application was "akin to an application to quash the indictment".
It had not been made at the time of the arraignment because at that stage
no settlement had been reached with the Revenue. In the present case an
application to quash might have been made prior to arraignment if Mr Cox
had been instructed at that stage, and had obtained as particulars of the
indictment the information set out in the Agreed Basis of the Crown’s Case.
At 554e Rose LJ continued –
"As Moore shows, an application to quash is
not within section 7(1): the fact that such an application may indirectly
have one of the results identified in section 7(1)(a), (b), (c) or (d), does
not mean that it is ‘the purpose’ of the application. We respectfully agree
with Evans LJ in Hedworth that, as the reference to ‘purpose’ comes
from section 7(1) itself, the matter has to be looked at objectively and
the subjective purpose of the judge, the defendant or any one else is irrelevant."
The court then cited the passage from the judgment in Hedworth at
432 which is set out above, and continued –
"Such
was the purpose of the application in the present case. The judge’s ruling,
although given in the course of a preparatory hearing,
was not a ruling for any of the purposes identified in section 7(1) and accordingly
there is no jurisdiction to entertain an appeal at this stage under section
9(11). We therefore refuse leave to appeal."
Submissions.
- Mr Walters submitted that the issue which the judge was called upon to
decide was a matter of law within the scope of the preparatory hearing. He
accepted that an application to quash the indictment would be outside its
scope, but this, as Mr Cox conceded and the judge accepted, is not an application
to quash. Manslaughter had not even been charged in the original indictment,
but it had been left to the jury as an alternative, and as a result of their
verdict it was the only alternative now available to the Crown.
- Mr Waters further submitted that when considering the purposes of a preparatory
hearing identified in section 29(2) of the 1996 Act this court should have
in mind the overall purpose served by the application, not the subjective
purposes of the defendant, or of the prosecution. The overall purpose in
this case, he submitted, was to formulate the law as it applied to the facts
of the case. That would greatly assist in preparing for and conducting the
trial. That could be contrasted with the situation in R v W where
the application made was really more like an application for a stay on the
grounds of abuse of process, and should have been so regarded by this court.
Such an application, Mr Waters conceded, would be outside the ambit of a
preparatory hearing, but in this case the application, properly categorised,
was within its ambit because of the effect that the ruling would have upon
the conduct of the trial. That was not the case in R v W. The respondent,
Mr Walters submitted, was wrongly categorising this application by reference
to its result, whereas the right approach is to consider whether, before
the result is known, the question of law being canvassed is or is not within
the scope of the preparatory hearing. Otherwise there can be a distorted
result, because if the decision goes against the Crown there will be no right
of appeal, whereas if it goes against the defendant he may be able to take
advantage of section 35(1).
- Mr Waters also drew our attention to the decision of the House of Lords
in the case of Shayler [2003] 1 AC 247 as to the availability of a
defence upon which the defendant wanted to rely. The advantages of that issue
being resolved at an early stage are spelt out by Lord Bingham at paragraphs
16 and 17 and Mr Walters submitted that the application in the present case
was no more than the reverse side of the same coin. Ruling that a particular
defence is not available may in reality bring a case to an end. That may
also happen if an alleged confession is ruled admissible yet such a ruling
is plainly within the scope of a preparatory hearing, which must aim to extract
sufficient information as to the nature of the prosecution case to enable
the court to identify issues of fact and of law. It must also identify objections,
and issues of law which may be raised by the defence. The trial can then
be focussed for the benefit of the jury. In order to preserve the integrity
of the trial it is plainly desirable that all rulings made at a preparatory
hearing should be capable of being tested on appeal, and the fact that a
particular ruling is adverse to the Crown should not lead to a different
result.
- For the respondent Mr Cox submitted that a ruling in relation to the availability
of a defence is different because it does not as a matter of law bring the
trial to an end. It is still open to the defendant to put the Crown to proof
of its case. The principle, he submitted, is that identified in Hedworth and R
v W, namely that where, as here, the object of the application is to
prevent the trial occurring then it is outside the scope of the preparatory
hearing, and whichever way the ruling goes it cannot be appealed pursuant
to section 35(1). In his skeleton argument before the trial judge Mr Cox
made his position clear. He was not seeking guidance for the conduct of the
trial. He was asking the court "to stay or quash the indictment".
If his application succeeded the proceedings had to be brought to an end.
To prolong them would contravene Article 7, and that was in truth the purpose
of the application, a purpose which on the authorities lies outside the scope
of section 29(2). As Evans LJ said in Hedworth the subsection "presupposes
a valid indictment". It is, Mr Cox submits, of some note that there
is no record of any case in which this court has entertained an appeal from
a decision to bring a trial to an end. Referring again to what was said by
Evans LJ in Hedworth Mr Cox submitted that section 29(2) is concerned
with an application and a hearing and an order made on that application after
that hearing, from which the purpose of the exercise will be clear or can
be determined by means of an objective test. In the present case the purpose
was clear. It was as the trial judge recognised at page 3e of the transcript,
to persuade him that the case should not proceed to trial.
Conclusion.
- In our judgment the weight of authority is overwhelmingly in favour of
the respondent’s submission that we have no jurisdiction to entertain an
appeal against the ruling made by the trial judge because that ruling was
not within the ambit of section 29(2) of the 1996 Act. In some ways that
is a satisfactory conclusion because it seems to be common ground that if
an attempt had been made to quash the indictment at arraignment (by means
of a request for particulars followed by an application to quash), or if
such an attempt had been made after the jury was empanelled, in neither instance
would the Crown have any right of appeal. It would be, to say the least,
odd if the right of appeal were to depend on when the application was made
rather than on its substance. That may be an argument for saying that such
rulings whenever made should always be reviewable on appeal by the prosecution
as well as by the defendant, who at the present can appeal an adverse ruling
at the end of the case. But the conclusion we have reached is plainly unsatisfactory
in other ways. First and foremost the ruling which the trial judge felt compelled
to make at the end of a careful and compelling judgment is a ruling which
thwarts the interests of justice as identified by this court at the end of
the appeal last July. Those interests require that Mr van Hoogstraten be
re-tried for his alleged part in causing the death of Mr Raja. Because he
has been acquitted of murder he cannot as the law now stands be re-tried
for that offence. It is therefore of some importance for an appellate court
to be able to consider whether the trial judge is right in his conclusion,
because if he is then, as it seems to us, it is necessary to consider how
justice is to be done in similar cases in the future. It may be that when
a re-trial is ordered in the case of an appellant who has been convicted
of manslaughter on a charge of murder the prosecution should be entitled,
if they choose, to seek again a conviction for murder. Otherwise, as this
case and other cases have shown, the prosecution is likely to be neutered
by the partial acquittal, but that is a matter for Parliament and not for
this court.
- For the reasons we have given we are satisfied that we have no jurisdiction
to entertain an appeal from the ruling made by the trial judge.