H, R v. [2007] UKHL 7 (28 February 2007)

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United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> H, R v. [2007] UKHL 7 (28 February 2007)
URL: http://www.bailii.org/uk/cases/UKHL/2007/7.html
Cite as: [2007] 2 AC 270, [2007] 2 Cr App R 6, [2007] 2 Cr App Rep 6, [2007] UKHL 07, [2007] 3 All ER 269, [2007] UKHL 7, [2007] 2 WLR 364, [2007] Crim LR 731

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

HOUSE OF LORDS

SESSION 2006-07

[2007] UKHL 7

on appeal from: [2006] EWCA Crim 1975

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

H (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

Appellate Committee

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Mance

Counsel

Appellants:

John Charles Rees QC

Jonathan Elystan Rees

(Instructed by Byrne & Partners)

Respondents:

Joanna Korner QC

Frederick Ferguson

Timothy Godfrey

(Instructed by Serious Fraud Office)

Hearing date:

13 December 2006

WEDNESDAY 28 FEBRUARY 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

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

[2007] UKHL 7

LORD NICHOLLS OF BIRKENHEAD

My Lords,

In this case the defendant, with others, was charged, with conspiracy to defraud. She made an application, under section 8 of the Criminal Procedure and Investigations Act 1996, for disclosure of documents in the possession of the prosecution. The application was made in the course of a preparatory hearing ordered under section 7 of the Criminal Justice Act 1987. Judge Hodson refused the application. The issue on this appeal is whether the judge's ruling is susceptible of appeal under section 9(11) of the 1987 Act.

This issue raises two questions. The first concerns the scope of a judge's powers at a preparatory hearing. The appeal provision in section 9(11) of the 1987 Act applies only to rulings and orders made at a preparatory hearing. If, as a matter of strict law, Judge Hodson's disclosure ruling was not made 'at' the preparatory hearing, in the sense of 'as part of' the preparatory hearing, then section 9(11) is not in point. In that event this appeal must fail. The Court of Appeal would have no power to entertain an appeal from the disclosure ruling.

If however Judge Hodson's ruling was made 'at' the preparatory hearing in the sense just mentioned, then a second question arises. Section 9(11) applies only to orders made under section 9(3)(b) or (c). Paragraph (c) is the material paragraph in the present appeal. The second question is whether the judge's ruling on the defendant's disclosure application was a ruling on a 'question of law relating to the case' within section 9(3)(c). This is a question of interpretation of paragraph (c). If the judge's ruling was within this paragraph, this appeal succeeds; if not, not.

The first question

The scope of a judge's powers at a preparatory hearing is a much vexed question. Many judges have wrestled with the legislation and struggled to reconcile the authorities. The authorities are carefully summarised in the opinion of my noble and learned friend Lord Mance. I hope I may be acquitted of discourtesy to the judges concerned if, in the interests of simplicity and clarity, I express my own views shortly and without elaboration.

The purposes for which a judge may order a preparatory hearing are set out in section 7(1). One purpose is to alleviate the practical inconveniences caused by the need for the jury to absent when the judge decides many time-consuming issues which arise during a trial. Disputes on the admissibility of confession evidence are an obvious instance. Proceedings before the jury would be expedited if these trial questions could be decided before the jury is sworn.

Accordingly the 1987 Act made provision for a judge to be able to start and proceed with part of a criminal trial before the jury is sworn. Arraignment duly takes place, but the jury is not empanelled. This part of a trial is called the 'preparatory hearing'.

The purposes set out in section 7(1) are to be interpreted generously. But in applying these provisions, and in deciding whether to order a preparatory hearing, judges will always have in mind that the underlying object of a preparatory hearing is to conduct part of the trial before the jury is sworn because of the benefits this course is likely to have. The preparatory hearing procedure is not intended to be the means for deciding questions which can and should be decided in advance of the trial. I emphasise this distinction because ordering a preparatory hearing has custody time limit consequences. As a general rule a judge should not order a preparatory hearing where the court has adequate powers to decide the matters in dispute before the trial takes place.

Section 9 enables the judge, at a preparatory hearing, to exercise the powers set out in that section. This enabling provision cannot be interpreted as exhaustive of the judge's powers during a preparatory hearing. It cannot be, for example, that the judge's case-management powers exercisable at a preparatory hearing ordered pursuant to section 7(1)(d) are limited to those set out expressly in section 9. Rather, the key lies in recognising and giving full effect to the generality of section 8(1): the trial begins with the preparatory hearing. The preparatory hearing is part of the trial. This has the effect that at the preparatory hearing the judge can exercise any of the powers the trial judge may exercise in the absence of the jury.

A complication arises when a question which should properly be raised and decided before the trial is first raised during the course of a preparatory hearing. Disclosure is an example. In my view, for the reason just given, when this happens the judge has power to decide the question as part of the preparatory hearing. The clock cannot be turned back. The trial has started. I see no occasion for interpreting the legislation in a way which would mean that at a preparatory hearing the trial has begun for the purpose of deciding one question but not for the purpose of deciding another question.

If the consequence of this view is that a ruling made by a judge is appealable or not depending on whether it is given before the preparatory hearing or at the preparatory hearing, so be it. This consequence follows from the fact that the right of appeal given by the legislation is confined to certain rulings made at preparatory hearings. The limited nature of this provision does not require, or justify, cutting down the width of the powers available to the judge in his conduct of the 'preparatory hearing' part of a criminal trial.

For these reasons I consider Judge Hodson's disclosure ruling, made during the preparatory hearing in this case, was a ruling made as part of that hearing.

The second question

The second question therefore arises for determination: was this ruling on a 'question of law relating to the case' within the meaning of section 9(3)(c)? In my view it was not. On its face this ruling was not directed to any question of law. There could be cases where a disclosure ruling depends on the judge's view on a question of law, such as the proper interpretation of part of the indictment. Then bound up within the judge's disclosure ruling would be a ruling on a question of law relating to the case.

That is not the position here. The challenge to the judge's ruling in this case is simply that, so it is said, the judge misdirected himself when deciding whether disclosure should be ordered. Whether the judge misdirected himself, and thereby vitiated his decision, is a question of law. But that is not the type of question of law at which section 9(3)(c) is aimed. Whether an order or ruling is an order or ruling on a question of law within the meaning of section 9(3)(c) depends, as my noble and learned friend Lord Scott of Foscote says, on the nature of the issue which the order or ruling decides. Here the judge's decision to refuse the defendant's application for disclosure of certain prosecution documents did not decide any question of law.

Clearly it would sometimes be advantageous if the Court of Appeal could review an order refusing disclosure at an early stage rather than after the end of the trial. At present the Court of Appeal has no such power. This is a matter for consideration by Parliament. The absence of such a power does not entitle the House to strain the language of the 1987 Act on this point, particularly when no provision for appeal was included by Parliament in the legislation directly concerned with disclosure applications, namely, section 8 of the Criminal Procedure and Investigations Act 1996.

For these reasons, which are substantially the same as those of Lord Scott of Foscote, I would dismiss this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

The questions of law of general public importance that are before your Lordships in this case relate to the conduct of criminal proceedings at first instance in the Crown Court. I am grateful to my noble and learned friend Lord Mance for the care which he has taken to try to reconcile the previous case law. But I agree with him that this exercise has demonstrated that it is necessary to return to first principles. The issues are best addressed, as my noble and learned friend Lord Rodger of Earlsferry indicates, by concentrating on the meaning that is to be given to sections 7 to 9 of the Criminal Justice Act 1987. We are free to find our own way through the provisions of the statute.

On 21 July 2006 the Court of Appeal (Criminal Division) granted a certificate under section 33(2) of the Criminal Appeal Act 1968 in which the following questions of law were set out:

(a) For an appeal to lie to the Court of Appeal under the provisions of section 9(11) of the Criminal Justice Act 1987 from an order or ruling made during the course of a preparatory hearing held under section 7(1) of the said Act, does the order or ruling itself have to be for one of the purposes set out in section 7(1) of the said Act?

(b) If so, can an order or ruling in determination of an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 fall within one of those purposes?

(c) In any event, can an order or ruling in determination of an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 be the subject of an appeal under the provisions of section 9(11) of the Criminal Justice Act 1987?

The third question emanated from the court itself. It is the only question that really needs to be answered. It focuses the issue of general public importance which lies at the heart of this appeal. The question whether the powers that the judge may exercise at a preparatory hearing under section 9 of the 1987 Act include the determination of an application for disclosure has given rise to a division of opinion among your Lordships. But, given that there can be no objection to the judge doing things during a preparatory hearing which he could do at any time, the answer that is given to it is of no practical importance. The point that matters is whether his order or ruling in determination of an application for disclosure while he is conducting a preparatory hearing can be the subject of an appeal under section 9(11). This matters because an affirmative answer to that question would confer an advantage on those who choose to defer their applications for disclosure until the preparatory hearing which those who apply for disclosure earlier do not enjoy. It would tend to distort pre-trial procedure in a way that, in my opinion, cannot have been intended by Parliament.

The key to what the preparatory hearing is all about, and to a proper understanding of the powers that may be exercised under section 9 for the purposes that section 7(1) identifies, lies in the provisions of section 8 of the 1987 Act. Section 8(1) provides that, where the judge orders a preparatory hearing, the trial shall begin with that hearing. Section 8(2) provides that arraignment shall accordingly take place at the start of it. Two important consequences follow from these provisions. First, the judge who conducts the preparatory hearing must conduct the trial, save in exceptional circumstances: R v Southwark Crown Court, Ex p Customs and Excise Commissioners [1993] 1 WLR 764, 772F-G. Secondly, the defendant no longer has the protection of the relevant custody time limits: In re Kanaris [2003] UKHL 2; [2003] 1 WLR 443. As I said in Kanaris, para 17, a judge who is minded to order a preparatory hearing should be careful not to deprive a defendant who is in custody of the protection of the statutory custody time limit until it becomes necessary for him to do so.

Considerable progress can be made in the preparation and exchange of information under sections 3 to 8 of the Criminal Procedure and Investigations Act 1996, as amended by the Criminal Justice Act 2003, before the trial judge engages in a detailed discussion as to how the trial is to be managed having regard to the purposes for ordering a preparatory hearing that are set out in section 7(1) of the 1987 Act. It is for the purposes that section 7(1) sets out that the powers in section 9 are available to be exercised. They enable the judge to do things before the trial proper begins which, without the benefit of those powers, he would not otherwise be able to do. He has no need of those powers to deal with an application for disclosure under section 8 of the 1996 Act. An application for disclosure under section 8 of the 1996 Act can be dealt with at any time.

In principle, therefore, there is great force in the argument that issues about the disclosure of prosecution material ought to have been disposed of well before the question arises as to whether benefits are likely to accrue from ordering a preparatory hearing for the purposes that section 7(1) sets out. The purpose which that section was designed to serve is to minimise the risk of interruption and delay during the trial proper by dealing with matters that can conveniently be dealt with in the jury's absence before the trial proper starts. The list of purposes in section 7(1), and the powers set out in section 9 that are available for the judge to exercise, must be read in the light of that background.

Among the powers that the judge may exercise at a preparatory hearing are those in section 9(3)(b) and (c). They enable him to determine any question as to the admissibility of evidence and any other question of law relating to the case at that stage. Section 9(11) provides that an appeal shall lie to the Court of Appeal, with leave, from any order or ruling of the judge under those provisions. This is a departure from the ordinary rule that appeals against any such order or ruling cannot be taken until the trial is over. There is an obvious advantage to be gained in cases which are sufficiently serious or lengthy to justify a preparatory hearing to enable questions of law which raise issues suitable for consideration by the Court of Appeal to be determined before the start of the trial proper. But this is a carefully limited avenue of appeal. It must not be seen as an encouragement to give the words used in section 9(c) a wider meaning than they would normally bear, or to broaden the circumstances in which a judge has power to order a preparatory hearing under section 7(1) beyond those that are available under that subsection read in the light of the powers that section 9 will enable him to exercise.

In respectful agreement with Lord Rodger, therefore, I would hold that a judge has power under section 8(2) of the Criminal Procedure and Investigations Act 1996 to determine an application for disclosure whenever it is made. But I also agree with him that power to do this is not that which is given to the judge by section 9 of the 1987 Act. It would not be open to the judge, for example, to hold a preparatory hearing for the sole purpose of dealing with an application for disclosure under section 8(2) of the 1996 Act. There is no doubt that he has power to deal with an application for disclosure while he is conducting a preparatory hearing which has been ordered for other purposes. This is simply because he has power to deal with these applications at any time. A disclosure ruling made during a preparatory hearing may be said, then, to have been made as part of the hearing. But that just tells one when it was made. The important point is that an order or ruling on disclosure is made under section 8(2) of the 1996 Act, not section 9 of the 1987 Act. Moreover, for the reasons more fully explained by both Lord Rodger and Lord Mance, an application for disclosure of prosecution material does not of itself raise a question of law "relating to the case" within the meaning of section 9(3)(c) of the 1987 Act. The words which I have quoted are words of limitation, which must be read in the light of the purposes for which a preparatory hearing may be ordered in section 7(1) of the Act.

In this case the judge agreed that the contested applications for disclosure should be dealt with at the preparatory hearing with the expressed intention that the provisions of section 9(11) would be applicable to any ruling that he made on that application. In my opinion this was a misuse of the powers that were available to him under section 9. An appeal cannot be taken under section 9(11) against the order that the judge makes on the application for disclosure just because he happens to be dealing with that application at the same time as he is conducting a preparatory hearing under section 7 of the 1987 Act. It will only be if he finds it necessary to determine a question of law relating to the case in order to dispose of the application for disclosure that he would need to exercise the power that is given to him to deal with that question at a preparatory hearing by section 9(3). It might, for example, be necessary for him to resolve a question of law as to the scope of the indictment before dealing with the application for disclosure. In that event an appeal on that question of law, and that question only, will lie under section 9(11) of the Act. His determination of the application for disclosure would not of itself be appealable.

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.

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,

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.

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.

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.

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).

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 -

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), [1996] EWCA Crim 1794, 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.

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.

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.

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 -

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

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.

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.

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.

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.")

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.

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.

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)).

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 -

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.

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.

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.

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.

LORD RODGER OF EARLSFERRY

My Lords,

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.

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.

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.

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."

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:

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.

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

Since the preparatory hearing is meant to achieve one or more of the purposes listed in section 7(1), it is no surprise to find that the powers which section 9 confers on the judge at such a hearing are all indeed designed to achieve those purposes. Orders made under section 9(4) and (5) - which can be made before the hearing by virtue of section 9A as inserted by the 1996 Act - will help to identify the matters in contention between the parties. This should not only help to identify the issues which are likely to be material to the verdict of the jury (section 7(1)(a)), but should, more generally, save time and so expedite the proceedings before the jury (section 7(1)(c)). An order under section 9(4)(b) will, hopefully, assist the jury in their comprehension of the material issues (section 7(1)(b)). Determining any of the points specified in subsection (3) before the jury are sworn should expedite the proceedings once the jury have been sworn (section 7(1)(c)). Overall, the exercise of these various powers should assist the judge in his management of the trial (section 7(1)(d)). In short, the common factor which unites the powers in section 9 is that they are all powers which it may be beneficial for the judge to exercise in advance but which, under the law as it stood before sections 7 and 9 were enacted, he could only exercise at the trial proper.

Since the powers in section 9 are designed to achieve the purposes in section 7(1), in practice a judge who is considering whether to hold a preparatory hearing need only ask himself whether exercising any of these powers at such a hearing, rather than at the trial when the jury have been sworn, is likely to result in substantial benefits. For instance, will determining a question of the admissibility of evidence - whether under section 76 of the Police and Criminal Evidence Act 1984 or otherwise - or any other question of law relating to the case at a preparatory hearing save a significant amount of time which the jury would otherwise waste while the matter was resolved in their absence? The potential benefits are described by Lord Bingham of Cornhill in R v Shayler [2003] 1 AC 247, 265, para 16:

Of course, there may be other desirable benefits. For instance, if a confession is held to be inadmissible under section 76 in a voire dire at a preparatory hearing, might this also knock out one of the counts and so narrow the range of issues to be opened to the jury - thereby both shortening the opening and assisting in identifying the issues which are going to be material to their verdict? Similarly, would it be beneficial to settle the form of any evidence or explanatory material in advance, rather than leaving it to the trial proper - with the consequential risk that an adjournment might be necessary for the judge's instructions to be carried out? In short, looking at the overall picture, would holding a hearing and dealing with the various matters then, rather than during the trial proper, be likely to result in substantial benefits? If so, the judge can order a preparatory hearing and exercise those of his powers under section 9 which he thinks are likely to achieve those benefits. In so far as any decision of the Court of Appeal is inconsistent with this approach, I would overrule it.

It follows, in particular, that the mere fact that the question of the admissibility of evidence or the question of law has not been raised by the prosecution or the defence in order to further one of the purposes in section 7(1) is irrelevant. What matters is whether, by deciding the question at a preparatory hearing rather than at a later stage, the judge is likely to achieve a substantial benefit in respect of one or more of those purposes.

For the appellant, Mr Rees QC submitted that, since section 8(1) provides that the trial is to begin with the preparatory hearing, in the context of that preparatory hearing the judge must be able to exercise all the common law and other powers, including the power to order disclosure, which he can exercise at any stage in the trial. Subject to what I say in a moment, I reject that argument. In my view, as subsection (1) indicates, in section 9 Parliament has specified the powers which the judge is to be able to exercise at a preparatory hearing. They have been chosen because they are designed to achieve the purposes set out in section 7(1). In these circumstances I see no room for inferring that Parliament envisaged that under section 9 the judge would be able to exercise other powers. If that had been the intention, Parliament would have used some such formula as "without prejudice to any other powers conferred by common law or under statute".

On behalf of the Crown Ms Korner QC submitted that, while the only powers which the judge could exercise in the preparatory hearing were those set out in section 9, nevertheless he could, simultaneously, exercise other powers. In effect, there would be another form of hearing going on at the same time as the preparatory hearing and in that other hearing the judge could exercise his other common law and statutory powers. In particular, I understood her to argue that in those parallel proceedings he could determine any application for an order for disclosure under section 8(2) of the 1996 Act.

At first sight the approach advocated by counsel for the Crown may seem like a recipe for confusion. But, if there are indeed issues which the judge has power to decide at that stage, even though they do not fall within the scope of section 9, there are obvious practical advantages in the judge being able to resolve them on the same occasion. There is, moreover, no reason in principle why two hearings should not be held on the same occasion provided that all concerned keep clearly in mind the distinction between the two hearings and between the issues which the judge can determine in each. First, there are those matters which the judge has power to decide under section 9 in the preparatory hearing - some of which will be appealable under section 9(11); secondly, there are any other matters, such as an application for bail, which the judge could have decided at that stage, even if sections 7 and 9 had not been enacted. The judge can deal with all these matters on the same occasion, but only the matters falling within section 9(3) will give rise to a possible appeal under subsection (11). Because the right of appeal is limited in this way, as Lord Scott of Foscote points out, the difference of opinion between my noble and learned friends, Lord Nicholls of Birkenhead and Lord Scott, and the remainder of your Lordships on the range of powers, beyond section 9(3), which can be exercised at a preparatory hearing is likely to be largely academic.

Understandably, at the hearing of the appeal before the House counsel for both parties tended to focus on whether there was a right of appeal under section 9(11) against the determination of an application for disclosure. But again, as is implicit in what I have just said, there are really two separate questions. The first is whether a judge has power under section 9 to determine an application for disclosure under section 8(2) of the 1996 Act. The second is whether, if he does, an appeal lies under section 9(11) of the 1987 Act from the judge's decision on that application.

As far as the first of these issues is concerned, it is apparent both that an application for disclosure could only fall under section 9(3) and that it does not fall under section 9(3)(aa) or (b). So, under section 9(3) the judge would have power to determine the application only if it were a "question of law relating to the case" under (c). An application for disclosure is not a question of law. In my view, therefore, in any normal use of the English language it cannot be said that a judge who sits to determine an application for disclosure is sitting to determine "a question of law relating to the case". The mere fact that, when considering such an application, the judge must correctly identify the scope of his powers and duties and apply the correct test cannot mean that, when he orders or declines to order disclosure, he is determining a "question of law relating to the case" in terms of section 9(3)(c). Such a broad interpretation would not only make paragraphs (aa) and (b) redundant but would also turn any application to a judge, whatever its nature and whether under statute or at common law, into a question of law for the purposes of paragraph (c). Again, if Parliament had intended the judge to have this sweeping power to determine any application at all in a preparatory hearing, it would have found easier and clearer ways of saying so.

Such a broad interpretation of section 9(3)(c) would also run counter to the view of Lord Bingham in R v Shayler [2003] 1 AC 247, 265, para 17, that the limitation to questions "relating to the case" must be strictly observed. The kinds of questions relating to the case which the provision was designed to cover can be seen from paras 6.97-6.98 of the Report of the Fraud Trials Committee chaired by Lord Roskill (HMSO, 1986) which gave rise to the 1987 Act. In particular, the committee urged that defence counsel should be required to raise at a preparatory hearing "points of law which go to the root of the case or any point of law relating to the admissibility of the evidence as disclosed on the papers" - foreshadowing paragraphs (b) and (c) in section 9(3).

The report of Lord Roskill's committee is helpful in another way. In para 6.25 the committee indicated that, in their view, the pre-trial review should be regarded as a "preparatory part of (not preparatory to) the trial." They continued:

In order to emphasise that this review was to be considered as part of the trial, the committee recommended that it should be referred to as "preparatory hearings", the terminology which was adopted in the 1987 Act. Consistently with this approach, the preparatory hearing marks the start of the trial for the purposes of the relevant custody time-limits: section 22(11A) of the Prosecution of Offences Act 1985 as amended by section 21 of the 1996 Act.

The point to notice at present is that the committee envisaged that any preparatory hearing would take place after the relevant essential work of preparation for the trial had been completed. Therefore the judge would determine questions of law relating to the case, as fully prepared for trial, not questions of law relating to the essential preparations for the trial of the case.

Today at least, sorting out problems relating to the disclosure of prosecution material forms an important part of the essential preparations for a trial. The material which is disclosed may well help to clarify and define the issues between the parties. So the parties may be unable to carry out their respective obligations under section 9(4)(a)(v) and (c) and section 9(5)(b)(i) and (iv) until the necessary disclosure has taken place. If the parties are unable to resolve any dispute about disclosure, the accused may apply to the court for an order requiring the prosecutor to disclose the appropriate material: section 8(2) of the 1996 Act. The application can be made at any time after the preconditions are satisfied - and, in my view, it should be made at the earliest possible opportunity. In that way the question can be resolved, and any material disclosed, before the judge has to decide whether it would be useful to order a preparatory hearing.

Although disclosure was not nearly so prominent an issue in the 1980s when the Roskill committee reported and the 1987 Act was passed, the discussion of the authorities in R v Maguire [1992] QB 936, 956-957, shows that points were arising even then. A few years later, the effects of the decision of the Court of Appeal in R v Ward [1993] 1 WLR 619 forced Parliament to step in to regulate the question of prosecution disclosure in sections 6 to 8 of the 1996 Act. Though seised of the question in this way, in the 1996 Act Parliament did not take the opportunity to amend section 9(3) of the 1987 Act so as to provide for applications for disclosure to be determined at the preparatory hearing. This was deliberate rather than an oversight: when enacting a similar system of preparatory hearings for other complex cases in Part III of the same 1996 Act, Parliament did not include applications for disclosure under section 8(2) in section 31(3), the equivalent of section 9(3) of the 1987 Act.

The appropriate conclusion is, accordingly, that the absence of applications for disclosure from section 9(3) of the 1987 Act is not a lacuna, but reflects a legislative intention that applications for disclosure should not be determined at, but preferably before, any preparatory hearing. This is consistent with Parliament adhering to the original view that preparatory hearings are designed to deal with matters which can be conveniently resolved once the essential preparations for the trial, such as prosecution disclosure, have been completed. Proceeding in this way minimises the potential delays. By contrast, including applications for disclosure in the matters which could be determined at the preparatory hearing, with the possibility of an appeal, would inevitably have led - as this case shows - to accused persons and their representatives postponing such applications until the preparatory hearing, in the hope of being able to appeal an unfavourable determination. If the application succeeded, there would then have been further considerable delays while disclosure was completed and the accused's lawyers studied the documents and perhaps carried out further investigations. All this would have been utterly inconsistent with any realistic idea of the preparatory hearing as the first stage of the trial. Moreover, it would have tended to undermine still further the protection which the relevant custody time-limits are intended to afford to remand prisoners. For the difficulties which section 22(11A) of the Prosecution of Crimes Act 1985 causes in any event, I refer to the speech of my noble and learned friend, Lord Hope of Craighead, in In re Kanaris [2003] 1 WLR 443.

Like Lord Hope and my noble and learned friend, Lord Mance, I conclude, accordingly, that a judge does not have power to determine an application for disclosure within the scope of a preparatory hearing. More particularly, in agreement with all your Lordships, I conclude that a judge has no power to determine such an application under section 9(3). But the judge does have power under section 8(2) of the 1996 Act to determine an application for disclosure, whenever it is made. There is, therefore, nothing to prevent a trial judge from determining that application on the same occasion as, but separately from, a preparatory hearing - which is, in substance, what the judge did in the present case. The important point, however, is that, if he does so, his decision on that matter does not fall within the scope of section 9 and no appeal lies under section 9(11). So the parties, and indeed the judge, gain nothing by delaying the determination of such applications until the time when any preparatory hearing is held.

The contrary view, that an application for disclosure is a "question of law relating to the case" in terms of section 9(3)(c), would inevitably mean that, subject to leave, an appeal would always be available under section 9(11), whatever the basis for the judge's decision on the application.

Moreover, a broad interpretation of section 9(3)(c), embracing applications for disclosure, would have the extraordinary effect that there would be no right of appeal from a judge's decision on an application for disclosure if it were made and decided before any preparatory hearing, but there would be a right of appeal if the application were made and decided at a preparatory hearing. I am unable to think of any good reason why Parliament would have intended to penalise an accused person who made a prompt application by denying him an opportunity to appeal which, on this hypothesis, would be available to a more sluggardly accused who waited until the preparatory hearing. In law, as in nature, the early bird should get the worm.

Situations can, of course, be envisaged where material in the hands of the prosecution may or may not have to be disclosed, depending on the admissibility of certain evidence or on some point of law relating to the case, such as the scope of one of the counts in the indictment. In situations of that kind, the question of the admissibility of the evidence or the question of law relating to the count in the indictment will naturally fall within section 9(3) and (11). When the question is finally determined within the framework of section 9, this will also, incidentally, determine whether the material should be disclosed and, hence, the outcome of any parallel application for disclosure. I respectfully agree with what Lord Hope says on this point in para 24 of his speech.

I am conscious, first, that the conclusion which I have reached is contrary to the view expressed obiter by Lord Bingham in R v Shayler [2003] 1 AC 247, 265, para 16. He clearly envisaged that applications for disclosure would fall within the scope of section 9(3). It is also the case that the appeal on a matter of public interest immunity which the House decided in R v H [2004] 2 AC 134 arose out of an application for disclosure which was made at a preparatory hearing. The simple fact, however, is that in neither case was the jurisdiction of the court to hear an application for disclosure under section 9(3) in issue. The present appeal is the first occasion on which the House has required to confront the point directly.

For these reasons I would hold that, while the judge had power to determine the appellant's application for disclosure, he had no power to do so under section 9(3) of the 1987 Act. It follows that no appeal lay to the Court of Appeal under section 9(11).

I would accordingly answer the third of the questions contained within the certified point of law of general public importance in the negative. Since the other two questions are based on a misconceived interpretation of sections 7 and 9 of the 1987 Act, I would decline to answer them.

The appeal to your Lordships' House should accordingly be dismissed.

LORD MANCE

My Lords,

The applicant was a co-owner of five companies supplying goods to IKEA for retail. She is, together with co-defendants, charged with conspiracy to defraud and associated charges of making and receiving corrupt payments, by dishonestly inducing IKEA by false invoicing to pay sums that were not due and owing between 1st January 1998 and 31st December 2000.

IKEA's original assessment was that invoices rendered by the five companies, and paid by IKEA, in respect of 44 types of article exceeded actual supplies in this period by some £15 million. The Serious Fraud Office took the matter up. Its forensic accountant, Mr McDonald, examined the documentation, made allowances in favour of the five companies for missing documents and inadequacies in IKEA's accounting system, eliminated from consideration 10 of the 44 articles and on that basis reported an apparent shortfall of some £7 million. The prosecution relies on Mr McDonald's report.

The appellant's defence is that the whole of the apparent shortfall in the indicted period can be explained by gaps and inadequacies in IKEA's documentation and systems. She has identified five other companies supplying IKEA in relation to which no suggestion of fraud has been made, and has requested the prosecution to disclose records of IKEA's trading with those suppliers during the relevant period. She maintains that expert analysis of such records would confirm her defence, by disclosing an apparent shortfall corresponding to that in relation to which she is charged. The prosecution have rejected the request, on the ground that the records are irrelevant. Although the records requested were IKEA's, the prosecution did not, in rejecting the request, take any point that they were not in its possession. The prosecution has at all material times had in its possession a number of MHS tapes containing IKEA records, and (whether or not those contain all the material requested) has been content to address the request on the basis that it relates not to third party material, but to material already in the prosecution's possession. After the prosecution rejected her request, the appellant applied under section 8 of the Criminal Procedure and Investigations Act 1996 for an order requiring the prosecution to disclose the records requested.

At hearings in March and April 2006, the intended trial judge, HHJ Hodson, ordered that the preparatory hearing under section 7(1) of the Criminal Justice Act 1987 should be held first on 22nd to 24th May 2006. He agreed that the section 8 application should be heard within the context of that hearing. Evidently, in delaying the hearing of the section 8 application, he was (rightly or wrongly) influenced by a defence submission that this would enable an appeal if he ruled against the defence. At the commencement of the preparatory hearing, the appellant and her co-defendants were arraigned. In the ruling that he gave on 24th May 2006 HHJ Hodson said that it seemed to him "important to look at this application from the position of IKEA" and attached significance to the absence of any evidence of corrupt payments to the other five suppliers identified by the appellant. He held that the appellant had failed to show "reasonable cause to believe that the material requested might reasonably be expected to assist the defence" and further that the defence request was not proportionate in that the trial (fixed to last six months) was about her five companies, not others, and "should not be allowed to be deflected". He refused leave to appeal.

The matter came before the Court of Appeal Criminal Division on 7th and 21st July 2006. The Court raised with counsel the question whether, under section 9(11) of the 1987 Act, it had jurisdiction to hear the appeal. After hearing submissions, it concluded in the light of prior Court of Appeal authority that it did not. To enable leave to be sought to take the matter further to this House, the Court of Appeal gave leave to appeal to the Court of Appeal and certified three questions of law pursuant to section 33(2) of the Criminal Appeal Act 1968, as follows:

Leave to appeal to the House was on 12th October 2006 granted by the House.

The legislation

The Criminal Justice Act 1987 was introduced to give effect to the Report of the Fraud Trials Committee chaired by Lord Roskill of 1986 (ISBN 0 11 380008 8). The radical nature of the reforms which the Act introduced may not always have been fully appreciated or accepted. The Serious Fraud Office ("SFO") was established (sections 1 to 3). Provision was introduced for transfer of proceedings against persons charged with serious and complex fraud to the Crown Court without committal, by decision of (among others) the Director of Public Prosecutions or the Director of the SFO (sections 4-5). Provision was at the same time made enabling any person charged to apply "at any time before he is arraigned …… to the Crown Court for the charge to be dismissed on the ground that the evidence which has been disclosed would not be sufficient for a jury properly to convict him of it" (section 6). Sections 7 to 9 are key to the present appeal. I set them out in paragraph 82 below, but in summary they provide as follows. By section 7 a Crown Court 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 and complexity that substantial benefits are likely to accrue" from such a hearing before the jury are sworn for one or more of several specified purposes. Section 8 provides for the trial to begin with, and for arraignment to take place at the start of, any preparatory hearing so ordered. This reflects the Roskill Committee's recommendation that the "the pre-trial review should be regarded as being a preparatory part of (not preparatory to) the trial)" (paragraph 6.25 of the Report). Section 9 specifies powers which "the judge may exercise" at the preparatory hearing. Section 9(11), giving a right of appeal with leave from any order or ruling under section 9(3) (b) or (c) was the product of an initiative in committee in Parliament, where it was described by the sponsoring Minister (Mr David Mellor QC) as "a fundamental safeguard for the proper conduct of a preparatory hearing and …. a great boon to defendants if they should be subject to wrong decisions made at that time" (Standing Committee F, Hansard, 22 January 1987, col 246, also set out in The Decline and Fall of the Preparatory Hearing, Alun Jones QC, [1996] Crim LR 460, 461).

The Act has been amended in a number of respects, notably by the Criminal Justice Act 1988, the Criminal Justice and Public Order Act 1994, the Criminal Procedure and Investigations Act 1996 and the Criminal Justice Act 2003. The 1996 Act also contained in sections 29-31 and 35 provisions which parallel sections 7-9 of the 1987 Act but apply to other types of case of sufficient seriousness or length to justify a preparatory hearing. The amendments implemented by the 2003 Act came into force subsequent to the date (7th July 2004) when the present proceedings were sent to the Crown Court under section 51 of the Crime and Disorder Act 1998, and so do not apply to these proceedings.

Part 9 of the 2003 Act also introduced specific provision for prosecution appeals: under section 58 the prosecution may appeal in relation to a ruling in relation to a trial on indictment made before or after the commencement of the trial (but before the start of the summing up), but the effect of sections 58(8) and (12) and 61(3) is that the defendant will be acquitted of any offence to which the appeal relates if leave to appeal is not obtained or the appeal is either abandoned or fails before the Court of Appeal. Section 58(7) makes clear that, where the appeal relates to a ruling that there is no case to answer, any other ruling that the prosecution may nominate is also to be treated as the subject of the appeal. Sections 62-63 permit a prosecution appeal in respect of any evidentiary ruling (viz. a ruling relating to the admissibility or exclusion of any prosecution evidence) made before or after the commencement of the trial (but before the opening of the defence case), it being however a condition of leave for such an appeal that the ruling(s) in question should "significantly weaken" the prosecution's case in relation to the offence(s) the subject of appeal.

The 1987 Act as it applies to the present proceedings provides as follows:

Sections 7(1), 9(3)(b) and (c) and 9(11) of the 1987 Act are key to the present appeal. They remain in the form in which they were first enacted in 1987. I refer in paragraph 97 below to the full original text of section 9(3). I state only at this point that there seems to me little room for doubt that the powers stated in section 9 represent the full range of powers intended to be capable of exercise as part of any preparatory hearing. Section 8 merely locates the preparatory hearing and arraignment as a (separate and first) part of the trial. The right of appeal provided by section 9(11) was an afterthought (see paragraph 79 above) which cannot explain the careful delineation of powers in section 9(3), (4) and (5). However, as my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry also observe, there is nothing to prevent a judge from exercising - in parallel with, though technically outside the ambit of, any such preparatory hearing - any other powers which he might, prior to the trial proper, have either at common law or under statute.

The court's interpretation of the legislation

After the enactment of the 1987 Act, there was concern about the number of appeals or applications for leave to appeal that sections 7 to 9 might generate: cf Jennings (1993) 98 Cr App R 308, Hunt [1994] Cr. L.R. 747 and Maxwell (No. 94/7352/S2; 9th February 1995). In a series of authorities the Court of Appeal set limits to the powers afforded by section 9 and, in particular, to the right to seek leave to appeal afforded by section 9(11). In Gunawardena [1990] 1 WLR 703, the court refused leave to appeal against a judge's rejection, during the course of a preparatory hearing, of a defence application to stay the proceedings on grounds of abuse of process arising out of prejudice through delay, on the ground that the application and ruling fell outside the ambit of a preparatory hearing (and so outside section 9(11)). Only rulings on applications which could "be said to relate to any of the specified purposes" in section 7(1) fell within section 9 (p.707B). Further:

Subsequently, the Court of Appeal held it insufficient that a "possible incidental effect of the purposes of the application" fell within section 7(1); the word "consequences" was not to be substituted for the word "purpose": see e.g. Moore Nos. 155/S1/91, etc.; 5th February 1991. Rulings on an application to quash one of several counts and on an application seeking an order that the prosecution elect between two counts thus both fell outside section 9.

In later authorities, the court developed a more fundamental objection to rulings on applications of the kind in issue in Moore, namely that sections 7 and 9, read together, are concerned with facilitating trial on the charges indicted, rather than with rulings on applications which will preclude or terminate trial on such charges: see Hedworth [1997] 1 Cr App R 421, [1996] EWCA Crim 1794 (an application to quash an indictment, on the grounds that the charges were not supported by the evidence in the depositions or notices of further evidence - at p.432E, the Court, while acknowledging that an application to quash charges may be made even after arraignment, said that that "does not affect its nature or purpose. Conceptually it precedes the arraignment and therefore the preparatory hearing"), W [1998] STC 550, [1998] EWCA Crim 893 (an application to quash or stay on the ground that the Revenue had disentitled itself by conduct from prosecuting) and Van Hoogstraaten [2003] EWCA Crim 3642 (where a judge's ruling that, even if the prosecution proved all the facts alleged in their case, the jury would not be entitled to convict, so that the proceedings fell to be dismissed or stayed, was held to be outside the ambit of section 31 of the 1996 Act, treated as identical to section 9 of the 1987 Act - however, Kennedy LJ commented that, apart from the authority of Gunawardena, Moore and Hedworth, the Court might have found it difficult to resist the contrary submission). These cases contrast uneasily with G [2001] EWCA Crim 442; [2002] 1 WLR 200, where leave was granted to appeal a ruling at a preparatory hearing as to the construction of an indictment, which had the effect of limiting the charge to a small part of the much larger conspiracy that the Crown wished to pursue and of rendering irrelevant 80% of the Crown's evidence, on the ground that the ruling was for the purpose of "identifying issues which are likely to be material to the verdict of the jury" within section 7(1)(a).

In further contrast, the Court of Appeal has accepted rulings on the admissibility of evidence as falling within the scope of section 9, despite the difficulty of treating their direct purpose, as distinct from consequence, as having been one or more of the purposes in section 7(1). In Claydon [2001] EWCA Crim 1359; [2004] 1 WLR 1575 (decided in June 2001), and (it appears) R (22 February 2000), to which reference is made in Claydon, applications were made at a preparatory hearing first to stay proceedings and second to exclude certain evidence under section 78 of the Police and Criminal Evidence Act 1984 ("PACE"), in each case on the ground of entrapment. There was, as Henry LJ put it in Claydon, "a substantial overlap between the two grounds of application: they were effectively two routes to the same end" (p.1582G-H). In each case, the Court held, following Gunawardena, that the ruling on the application to stay fell outside the preparatory hearing, but went on to hold that the ruling on admissibility fell within the preparatory hearing and could be appealed. In Claydon, the Court concluded that the making of a ruling on admissibility (which in Claydon itself involved a voire dire during which the judge heard evidence from some 22 police officers and one of the defendants) should be treated as being for the purpose of "expediting the proceedings before the jury" within section 7(1)(c), even though the Court observed that this did not fit well with the approach in Gunawardena (p.1586B) or in Moore (p.1586D). The correctness of the Court of Appeal's decisions in R and Claydon was not questioned before the House on the present appeal, and I would endorse the Court of Appeal's willingness to treat issues of admissibility of evidence under section 78 of PACE as falling within section 9. The preparatory hearing would otherwise be unable to cover issues of a kind likely to occupy much time at trial in the absence of the jury.

I turn to the area in issue on this appeal: disclosure. In Tariq [1991] 1 WLR 101 (decided ten months after though without reference to Gunawardena, but before Moore), the Court of Appeal heard without objection and allowed an appeal against a judge's ruling at a preparatory hearing ordering defendants to disclose statements of their defence to each other as well as to the court and the Crown. However, after Moore the Court took a different attitude, applying the distinction between purpose and consequences in Maxwell (No. 94/7352/S2; 9 February 1995), and R v. CPS [2005] EWCA Crim 2342 (although the subject-matter of that case may be viewed as no more than case-management).

These cases need to be considered in the light of dicta in Shayler [2002] UKHL 11; [2003] 1 AC 247 on sections 29-31 of the 1996 Act. The principle in Gunawardena was acknowledged in the judgment of the Court of Appeal ([2001] EWCA Crim 1977; [2001] 1 WLR 2206, para. 86) and the case was cited in argument in the House of Lords (cf p.250C). But in both courts the value of the preparatory hearing procedure was emphasised. Lord Bingham of Cornhill said:

In H [2003] EWCA Crim 2847; [2003] 1 WLR 3006 (CA) and [2004] UKHL 3; [2004] 2 AC 134 (HL), the judge had ruled at a preparatory hearing that, first, the Crown's public interest immunity application should take place in secret and, second, special independent counsel should be appointed. An appeal was pursued with leave and was dismissed in respect of the first but allowed in respect of the second ruling. No comment was made about lack of jurisdiction in either appellate court. The House at paragraphs 14-17 underlined the importance attaching to disclosure of material which weakens the prosecution's or strengthens a defendant's case, and traced the development of domestic practice from prior to the issue of the Attorney General's Guidelines in December 1981 (Practice Note (Criminal Evidence: Unused Material) [1982] 1 All ER 734), to the case of Ward (Judith) [1993] 1 WLR 619, to the statutory provisions of sections 3-7 of the 1996 Act and to date.

In G [2004] EWCA Crim 1358; [2004] 1 WLR 2932 and Goldstone [2005] EWCA Crim 2461, the Court of Appeal rejected submissions that the questions as to disclosure raised before it fell outside the ambit of a preparatory hearing, adopting in each case a relaxed approach which is difficult to reconcile with Moore and cases following it such as Maxwell, Clowes [1992] 3 All ER 440 and R v. CPS.

Analysis

(a) Sections 7 and 9

In my view, it is necessary to return to first principles, and take a fresh look at the legislation. I consider that courts have to date failed to recognise its full scope, and have in their caution introduced limitations which have deprived it of much utility. Taken by itself, the decision in Gunawardena would not have had this effect, had a broad view been taken of the purposes in section 7 as well as of the circumstances in which a ruling under section 9 could be regarded as being for such a purpose. But in Moore and later cases the courts have required the direct purpose, and not merely the consequence, of a ruling under section 9 to come within section 7, in order for such a ruling to fall within the ambit of a preparatory hearing. There is, I consider, no justification on any basis for so narrow a reading of these sections. Mr John Rees QC for the appellant indicated that he would be content if the House held either (a) that a broad view was to be taken of the purposes in section 7 and of the circumstances in which a ruling under section 9 could be regarded as being for such a purpose or (b) that section 9 is independent of, rather than subordinate to, section 7. In practical terms, it may not matter which analysis one adopts. My own preference is for the view that, once a preparatory hearing has been validly ordered under section 7, the judge has powers under section 9 which are independent of section 7 (in other words, that the Court of Appeal was wrong in Gunawardena to require any link between the exercise of the section 9 powers and purposes within section 7). But, assuming some link to be required, the Court of Appeal was in my opinion wrong on any view in subsequent authority to require a direct or immediate link, as well as to restrict the exercise of section 9 powers to circumstances where a ruling would promote, rather than preclude or terminate trial before a jury.

Once a preparatory hearing has validly been ordered, the power to make a ruling under section 9 is thus on any view exercisable - whatever the direct or dominant object of the application or ruling - whenever the judge reasonably considers that it would also serve a useful trial purpose within one of the heads in section 7(1) to make such a ruling. Courts do not and should not have to engage in minute and, as the authorities show, sometimes elusive arguments, about whether the direct or dominant purpose of the ruling would be one specified in section 7(1); I find it difficult to envisage any case, from now on, in which an appellate court should entertain an argument or refuse to hear an appeal from a ruling on a subject-matter falling within paragraph (b), (c) or (since the 2003 Act came into force) (d) of section 9(3) on the ground that the purpose of the ruling fell outside section 7(1). However, the powers exercisable during a preparatory hearing must, as I have stated in paragraph 83 above, be taken to be limited to those specified in section 9 of the 1987 Act. This does not mean that the judge may not at the same time exercise any other powers which he may have at common law or by statute prior to the swearing of a jury. Their exercise would not, however, strictly form part of the preparatory hearing.

Subsequent amendments of the 1987 Act and the enactment of the 1996 Act do not lead to a different conclusion. The insertion by section 310 of the Criminal Justice Act 2003, with effect from 4th April 2005, of section 7(1)(e) covering "considering questions as to the severance or joinder of charges" and of section 9(3)(d) covering "any question as to the severance or joinder of charges", combined with the expansion of section 9(11) to cover any order or ruling under section 9(3)(d) show Parliament's awareness of the restrictive nature of some of the previous case-law, and a desire to reverse it. But they do not prevent a conclusion that the previous case-law was in fact anyway wrong: see e.g. West Midland Baptist (Trust) Association Inc v. Birmingham Corporation [1970] AC 874, 898F-G per Lord Reid. (In fact, under the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Savings Provisions) Order 2005 SI 2005/950 article 2(1), Schedule 1 and Schedule 2 paragraphs 3(1)(b) and (2)(c), the insertions conferred no additional power to hold a preparatory hearing in respect of proceedings like the present which were sent for trial under section 51 of the Crime and Disorder Act 1998 prior to 4th April 2005. To that extent, the power in section 9 seems to have been viewed, in the transitional arrangements, as independent of section 7.)

(b) Terminating and non-terminating rulings

I also consider that that the more fundamental conceptual objection, discussed in paragraph 85 above, has no basis. First, an application to quash one of several counts or to require the prosecution to elect between counts (cf Moore) would clearly meet the purposes of clauses (a), (b) and probably also (c) of section 7(1). If that is so, it is difficult to impute to Parliament an intention to cover an application which would limit the trial in such a way, but to exclude an application which would if successful prevent any trial at all.

Second, with regard to the conceptual distinction drawn in Hedworth, there are in my view clear indications in both the Roskill Report and the 1987 Act as originally enacted that this distinction was not envisaged as having the significance which has been attached to it. The Roskill Committee set out and was clearly impressed by the model powers exercisable at a pre-trial review, or directions hearing, under the Central Criminal Court Practice Rules in existence in 1986: see e.g. paragraphs 6.4 to 6.5 and 6.98. Rule 5(h) and (l), set out in the Report at paragraph 6.4, provided that counsel should at such a hearing inform the court "of any point of law which may arise on trial, any question as to the admissibility of evidence which then appears on the face of the papers" as well as "of any other significant matter which might affect the proper and convenient trial of the case". The Report further observed at paragraph 6.5 that "Provision is also made in rule 6 for the judge to hear and rule upon any application by any party to sever any count or defendant and to amend or provide further and better particulars of any count in the indictment". The Roskill Report recommended that the pre-trial review should become a preparatory part of the trial, known as the preparatory hearing. At paragraph 6.97, the Report observed that trials were frequently interrupted and juries sent out and "expensive trial time is wasted" while points of law were argued, some "at the beginning of the trial (for example, a submission that the offence charged is not one known to the law)", some "while the evidence is being given (for example, that the evidence which a witness is about to give is inadmissible)", some "as part of a defence submission of no case at the end of the prosecution's evidence", and "some at the end of the whole of the evidence before the judge sums up". At paragraph 6.98, the Report noted that:

By "points of law which go to the root of the case", it is a fair inference that the Roskill Committee had, in the very forefront of its mind, challenges made at the outset of any trial to the proposed indictment, including applications to sever (cf paragraph 6.5) and submissions that the indictment was invalid as charging an offence not known to law (cf paragraph 6.97). The power given to the judge to order the prosecution under section 9(4)(a)(iv) to identify inter alia any proposition of law on which it proposes to rely and thereafter to order the defendant under section 9(5)(b)(iii) to inform the court and 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" would, where exercised, elicit any points of this nature. The power given by section 9(3)(c) would enable them to be determined.

Paragraph 4.34(5) of the Report provides further confirmation of the intended breadth of section 9(3)(c) in this regard. In relation to the transfer without committal procedure which it recommended, the Report said that:

prima facie

The 1987 Act gave effect to this in section 6(1) and 9(3)(a), which as originally enacted read as follows:

It follows that, although it was incumbent on a defendant to challenge the sufficiency of the evidence to support a charge transferred to the Crown Court before arraignment, the 1987 Act envisaged that the actual hearing of any such challenge would or could, as the Roskill Report had contemplated, take place during a preparatory hearing. It may be that the inter-relationship of sections 6 and 9 was not sufficiently thought through, and left unclear the position if the judge did not order a preparatory hearing. That may explain their subsequent amendment and replacement by the 1988 Act by a new section 6 simply enabling a defendant to apply before arraignment and to obtain the judge's ruling on any such challenge without more. But it remains true that, if the preparatory hearing was treated as the appropriate occasion to determine a challenge to the sufficiency of the evidence in respect of a transferred count, it can hardly have been regarded as an inappropriate occasion for a challenge to the sufficiency of the evidence to support charges which were before the court on a basis other than transfer (cf Hedworth), or for any other challenge going to the validity of the indictment or of the whole proceedings (cf Moore, W and Van Hoogstraaten).

I have concluded in paragraph 92 above, that, once a preparatory hearing has validly been ordered, the power to make rulings under section 9 is on any view exercisable whenever the judge reasonably considers that it would also serve a useful trial purpose within one of the heads in section 7(1) to make such a ruling. In the light of paragraphs 94 to 98 above, I would further hold that the power under section 9 enables the judge, if he so decides, to determine, as part of the preparatory hearing and to the extent that it involves the determination of "any question of law relating to the case" any other application, whether or not it might be aimed at precluding or terminating trial entirely or on any particular count, including therefore any challenge going to the validity of all or part of the proceedings or indictment as well as any application seeking to sever counts (covered in any event with effect from 4th April 2005 by the amendment made by the 2003 Act), or to put the prosecution to election between counts.

(c) Disclosure

In this appeal it is the area of disclosure that is critical and gives rise to difficulty. The 1987 Act makes no express reference to disclosure. The Roskill Report had barely mentioned the subject. At paragraph 6.43 the Report identified as part of the "large amount of work" to be done before the first preparatory hearing, the submission by the prosecution to the defence of "copies of any witness statements and documentary exhibits intended to be used at the trial, not already served on them" and in a footnote added "In accordance with the guidelines issued by the Attorney General (in December 1981) on the disclosure of certain categories of information to the defence ….". The Attorney General's Guidelines in fact went further and covered unused material as well as witness statements and exhibits, but the text and footnote in the Roskill Report indicate that disclosure was primarily a matter to be resolved prior to any preparatory hearing. Elsewhere, in paragraphs 6.55, 6.58 and 6.61, the Report referred to the prosecution statement which it recommended that the judge should be able to order as a "part of the process of disclosure of the evidence which the prosecution proposes to call" and as perfecting "the prosecution's obligation of disclosure of the evidence". The Report's summary of procedural steps in paragraph 6.104 included under the heading "Before the first preparatory hearing": "(4) Service by prosecution of any remaining witness statements and documentary exhibits on the court and the defence", and under the heading "At the first preparatory hearing": "(15) Judge to ensure that all the above steps have been carried out, where appropriate, and, in any case where they have not, to give the necessary orders and directions to the parties. (16) Points of law going to the root of the case or relating to the admissibility of evidence intended to be raised at the trial should be dealt with." Disclosure, to the very limited extent that the Report addressed it, thus appears to have been a process of disclosure of evidence and exhibits which the Report envisaged would be completed before the preparatory hearing or, if not, made the subject of a direction under a provision along the lines of section 9(4) of the 1987 Act.

The House has in reality now to consider whether and how far the language of the 1987 Act covers issues of disclosure which, largely it appears, did not exist and were not positively in mind at the time of its enactment. Lord Wilberforce stated the relevant principle in Royal College of Nursing v. D.H.S.S. [1981] AC 800, 822B-C:

In H (see paragraph 89 above) the House summarised the history of the law and practice relating to disclosure. This and earlier summaries by Steyn LJ in the Court of Appeal and the House in Brown (Winston) [1994] 1 WLR 1599; [1998] AC 367 show the climate change in the area since 1987. Prior to Ward in June 1992, Keane [1994] 1 WLR 746 and Brown (Winston), issues relating to disclosure were far less prominent and common than they have since become. The disclosure contemplated by the Attorney General's December 1981 Guidelines fell to be made at an early stage, before or at or as soon as possible after committal. In three cases in the 1980s and early 1990s, when it became apparent during or after trial that full disclosure had not been made, the failure was treated as a "material irregularity in the course of the trial" giving grounds for an appeal under the terms of section 2(1)(c) of the Criminal Appeal Act 1968 which at that time governed criminal appeals. This approach was affirmed in Maguire [1992] 1 QB 936, 956A to 957F. The rationale was that the duty to disclose was a continuous duty, arising pre-trial and continuing throughout the trial: see also Ward [1993] 1 WLR 619, 674B-C. However, there was limited scope for challenges to any disclosure made. Under the Attorney General's Guidelines decisions on disclosure were left to the judgment of the prosecution and prosecuting counsel. Ward marked in this respect a watershed: see Davis [1993] 1 WLR 613, per Lord Taylor LCJ at p.615G-H and Brown (Winston) per Steyn LJ at p.1605D-H, where he said inter alia:

R v. Ward

R v. Davis

R v. Keane

In Taylor v. SFO [1999] 2 AC 177, Lord Hoffmann observed that "the perception by prosecuting authorities of their disclosure obligations was substantially widened" by the decisions in Ward and Keane.

The procedure envisaged by Lord Taylor in Davis at p.618E-F recognised that any informal pre-trial ruling by the judge on disclosure was "not necessarily final", that the situation might change and that such rulings could be revisited at trial. Steyn LJ observed in Brown (Winston) at p.1609E-F that

Counsel on the present appeal informed the House that, under the procedure followed at that time, applications for disclosure were indeed commonly revisited at trial in order to obtain a ruling at trial on which an appeal could be based if the trial concluded in a conviction (see the potentially limited scope of the right of appeal under the language of section 2 of the Criminal Appeal Act 1968, noted by Henry LJ in Claydon). Disclosure issues could thus occupy time before the jury which would be spared if they could be resolved at a preparatory hearing. The position in this respect may thus be said to have presented some analogy to that relating to issues of admissibility of evidence prior to the amendment of the Criminal Appeal Act 1968 by the Criminal Appeal Act 1995 to introduce safety as the single test on an appeal after conviction. However, the position has changed.

In 1996, following Ward, Davis and Keane, the new procedure was introduced by sections 3 to 6 of the 1996 Act enabling a judge to make binding rulings on disclosure prior to trial. This is a procedure available in any criminal proceedings, irrespective of whether a preparatory hearing could be or is ordered. Sections 3 to 6 of the 1996 Act give criminal judges a general power to make binding rulings on disclosure at any time without introducing any general possibility of an immediate appeal. No amendment was made to sections 7 to 9 of the 1987 Act (and no provision was introduced in sections 29 to 31 and 35 of the 1996 Act) referring to rulings on disclosure in the context of preparatory hearings ordered under these special provisions applicable to serious fraud or other serious or complex cases.

Mr Rees submits that the determination of a question relating to disclosure, under the modern principles now enshrined in sections 7 to 9 of the 1996 Act, may constitute the determination of an "other question of law relating to the case", so as to fall within the ambit of a preparatory hearing under section 9(3) of the 1987 Act and to give rise potentially to a right of appeal under section 9(11). It is not, and could not sensibly be, suggested that the fact that the ruling is made under a power contained in another statute means that it cannot fall within section 9(3) (cf e.g. Claydon, where the ruling was under section 78). Mr Rees' submission does however face the difficulty that, while applications and rulings on disclosure under section 8 of the 1996 Act may turn on questions of law (relating e.g. to the scope of the charges or the issues), they often also involve questions of fact and judgment - for example, whether documents exist, and, in certain respects at least, whether they contain material that may assist the defence and whether the Crown has, or there is reasonable cause to believe that the Crown has, them in its possession.

Thus, section 8 of the 1996 Act enables a defendant to apply for disclosure and the court to determine whether there is reasonable cause to believe that the prosecution has unused material that might assist the defence and whether, if so, there is under section 8(5) a public interest justifying a refusal to order such disclosure. In ruling on any such application the court must apply the correct legal test under the 1996 Act to the facts found. That alone, in Mr Rees' submission, means that, at least once the facts are ascertained, the court's ultimate ruling is one of law, and is subject potentially to an appeal in all its aspects under section 9(11).

The proper construction of a statute is a question of law. But a ruling as to the application of a statute to particular facts belongs to a complex category. It has been said (in a case where the issue was whether a person was an employee) that "once the primary facts are found, then it is a pure question of law as to what is the reasonable inference based on the legal interpretation of the contract": Morren v. Swinton and Pendlebury B.C. [1965] 1 WLR 576, 583; and see Benmax v. Austin [1955] ACT 370. But in other authorities such as Edwards v. Bairstow [1956] AC 14, O'Kelly v. Trusthouse Forte plc [1984] QB 90 and Cozens v. Brutus [1973] AC 854, courts, in each case appellate courts with jurisdiction only in respect of questions of law, have stated that the question whether facts fall one side or the other of some notional conceptual line drawn by the law is a question of fact. In Moyna v. Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929, paragraphs 22-28, Lord Hoffmann said that this usage might seem "rather odd", and rationalised it on the basis that "there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment", and that this "causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question" (paragraphs 26-27). However, what is critical on this appeal is not whether a question may be regarded as a question of law in the abstract, but whether, without more, issues of disclosure fall generally within the intended meaning of the phrase "question of law relating to the case" used in section 9(3)(c).

It is also true that the use of the word "other" in section 9(3)(c) suggests that section 9 is approaching questions as to the admissibility of evidence as basically questions of law, and, as I have indicated in paragraph 86 above, I would not wish to throw any doubt on the sensible jurisprudence developed by the Court of Appeal in Claydon, whereby all aspects of evidential issues can be examined and determined under section 9(3)(b). Nor did the Crown in its submissions to the House seek to do so. But there is a contrast between the generality of section 9(3)(b) and the limited language of section 9(3)(c).

I have in these circumstances found the application of section 9(3)(c) in relation to rulings on disclosure difficult, and was for some time attracted by Mr Rees' wide approach. I remain unimpressed by suggestions that considerations relating to custody time limits (not in any event explored before the House) have any part to play in the resolution of the difficulty. The Roskill Report is silent about custody time limits. They had not at the date of the Report in 1986 been introduced under the Prosecution of Offences Act 1985, and were first introduced only shortly before the enactment of the 1987 Act by the Prosecution of Offences (Custody Time Limits) Regulations S.I. 1987/299. Far from concerning itself about over-early resort to a preparatory hearing or about any impact on any future custody limits, the Report urged that "the first preparatory hearing should take place as soon as possible after committal or the issue of a transfer certificate" and that "There should …. be such number of preparatory hearings as each case requires" (paragraphs 6.49 and 6.51 and recommendations 44 and 47 in paragraph 6.104). The impact on custody limits of a preparatory hearing does not therefore seem material. I am also unimpressed by fears that lawyers might defer applications for disclosure until after the commencement of a preparatory hearing simply in order to be able to seek permission to appeal, or might make last-minute applications which could delay trials. The primary duty is on the prosecution to make proper disclosure, but the lawyers on all sides have a duty not to engage in delaying tactics. Further, any appeal would not only be restricted to any question of law, but would also depend on obtaining leave.

I have however ultimately concluded for other reasons that section 9(3)(c) does not cover rulings on disclosure as such and without more:

(a) The Roskill Report appears by "points of law relating to the case" to have had at the forefront of its mind matters going to "the root of the case" (see paragraphs 95 and 100 above), by which I take it to have meant broadly matters which would identify the material issues before the jury (matching the idea behind section 7(1)(a)). Disclosure is an ancillary obligation in respect of issues which have been or are identified.

(b) The Roskill Report treats disclosure (so far as it envisages it in any sense) as a matter arising prior to any preparatory hearing or to be covered by case management directions during such a hearing under section 9(4) of the 1987 Act, rather than by a ruling of law (see paragraph 100 above).

(c) It is only by an unusually broad interpretation of "points of law relating to the case" that questions of disclosure could, as such and without more, be treated as questions of law, and even then only if one excluded any preliminary issues of fact that would require determination.

(d) The 1996 Act placing disclosure on a statutory basis made no reference at all in the context of disclosure to the preparatory hearing procedure (despite extending the availability of the preparatory hearing procedure to all cases of sufficient seriousness or length: see paragraph 80 above).

(e) There would seem to be some incongruity in a result which gave rise to a right of appeal in respect of disclosure rulings made after, but not before, the start of a preparatory hearing.

(f) Lord Bingham's dictum regarding disclosure in Shayler (paragraph 88 above) can be read consistently with the analysis in points (a) and (b) above.

The ruling on disclosure in this case required the judge to do no more than identify the facts and considerations and apply the proper statutory test in their light. In the light of what I have said, I consider that such a ruling lay outside the scope of the preparatory hearing under sections 7 to 9 of the 1987 Act and outside the scope of a possible appeal under section 9(11).

This result, which flows from the history and limits of statutory language developed originally before disclosure came to the fore as a major issue in modern criminal proceedings, may be regretted and in my view merits further consideration by the Law Commission and others. The more relaxed attitude in recent years to appeals in relation to disclosure does not appear to have led to any repetition of the concerns about over-loading of the appellate system (cf e.g. the cases of H [2004] 2 AC 134, G [2004] 1 WLR 2932 and Goldstone [[2005] EWCA Crim 2461). The present appeal in particular may be seen as highlighting the potential advantages of a right to seek leave to appeal - it is a case with a long trial in prospect, and a ruling which might affect the fairness of the whole trial, but which cannot be considered on any appeal until after the trial. It appears at least arguable that the judge may have erred in his determination - in the test he applied and in the considerations which he took into account as relevant.

For the reasons given I would answer the questions certified by the Court of Appeal in the present case (paragraph 78 above) as follows:

(a) In my view, once a preparatory hearing has validly been ordered for one or more of the purposes listed in section 7(1) of the Criminal Justice Act 1987, an order or ruling made during such a hearing within the scope of the powers conferred in section 9 need not itself be for any of such purposes, and may thus, if made within the scope of the powers conferred by section 9(3)(b) or (c), give rise, with leave, to an appeal under section 9(11). If this analysis is not, however, accepted, then an order or ruling made during such a hearing within the scope of the powers specified in section 9 will, at least in any case that can readily be envisaged, fall within one or more of such purposes listed in section 7(1), broadly interpreted as they should in this context be.

(b) In the light of my answer to question (a), the critical question is not whether any such order or ruling falls within one of the purposes set out in section 7(1), but whether it falls within section 9.

(c) An order or ruling, made under section 8 of the Criminal Procedure and Investigations Act 1996 during the course of a validly ordered preparatory hearing does not, as such and without more, constitute the determination of a question of law or fall within section 9(3)(c) of the 1987 Act, or enable leave to appeal to be sought or given under section 9(11) of the 1987 Act.

It follows from the above that the Court of Appeal was, albeit for reasons other than those given in previous authorities by which the Court of Appeal rightly felt itself bound, correct in its conclusion that it had no jurisdiction in the circumstances to hear an appeal against HHJ Hodson's ruling under section 8 of the 1996 Act; and that this appeal falls to be dismissed accordingly.

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> H, R v. [2007] UKHL 7 (28 February 2007) URL: http://www.bailii.org/uk/cases/UKHL/2007/7.html Cite as: [2007] 2 AC 270, [2007] 2 Cr App R 6, [2007] 2 Cr App Rep 6, [2007] UKHL 07, [2007] 3 All ER 269, [2007] UKHL 7, [2007] 2 WLR 364, [2007] Crim LR 731