London, WC2A 2LL
B e f o r e :
(LORD JUSTICE HUGHES)
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE KING
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|I, P, O, I & G|
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I) a judge in any complex trial is enjoined by the Lord Chief Justice's protocol on the management of heavy fraud and other complex criminal cases (22 March 2005; Archbold 2009 Appendix N) to adopt wherever appropriate what are substantially the procedures recognised by the 1987 Act;
Ii) the CPIA 1996, already 13 years old, but progressively amended since its enactment, requires of the defendant in every criminal case a statement of his position in relation to the evidence against him and provides by a combination of sections 5(5), 6A and 11(5) for the same sanction for non-compliance that originated in the 1987 Act and is now, for preparatory hearing cases, contained in sections 9(5) and 10 CJA 1987 and sections 31(7) and 34 CPIA;
Iii) most of all, the same CPIA provides by sections 39-43 statutory recognition of the power of a judge to make binding rulings of law in a hearing held in advance (and sometimes long in advance) of the swearing in of the jury;
Iv) the Criminal Procedure Rules lay down an overriding obligation on all parties to a criminal case actively to assist the court in its duty of active case management: See rules 3.2 and 3.3; and
V) in all cases a ruling stands unless varied or discharged for good reason: In the case of a preparatory hearing this is provided for by section 31(11) CPIA or s 9(10) CJA 1987, and in the case of a non-preparatory pre-trial hearing by CPIA section 40(4) and (5); although those provisions are somewhat differently expressed we have no doubt whatever that the same principles apply to both; in particular a judge, whether the same as before or a different judge, is not obliged to re-visit a ruling previously made unless there is good reason to do so; he is perfectly entitled to deal summarily with any request that he do so unless there appears to him to be some change of circumstance or other sufficient reason to re-open it.
"(a) In any complex case which is expected to last more than four weeks the trial judge will be assigned under the direction of the Presiding Judges at the earliest possible moment.
(b) Thereafter the assigned judge should manage that case 'from cradle to grave': It is essential that the same judge manages the case from the time of his assignment and that arrangements are made for him to be able to do so. It is recognised that in certain court centres with a large turnover of heavy case (eg Southwark) this objective is more difficult to achieve. But in those court centres there are teams of specialist judges who are more readily able to handle cases which the assigned judge cannot continue with because of unexpected events; even at such courts there must be no exception to the principle that one judge must handle all the pre-trial hearings until the case is assigned to another judge."
"At every hearing the court must, where relevant
(d) in giving directions ensure continuity in relation to the court and to the parties' representatives where that is appropriate and practicable." (emphasis supplied).
"If a judge orders a preparatory hearing -
(a) The trial shall start with that hearing and
(b) arraignment shall take place at the start of that hearing unless it has taken place before then."
Those are statutory provisions which while they stand of course override any general propositions contained in the Criminal Procedure Rules. Such a provision was a key feature of the regime for case management by preparatory hearing introduced by the CJA 1987 and since extended to other complex cases, because it was then assumed that the only way to enable the court to make binding rulings of law and to give the directions which are necessary to the management of difficult cases was to extend the trial backwards to hearings before the jury was sworn. But as subsequent experience has shown, this is not the only way to enable the necessary case management.
"in what now seems an age of innocence. Internal evidence shows that the committee were envisaging preparatory hearings only lasting a day or two. The 61 days of preparatory hearings in the applicant's first trial is typical of experience since…"
That observation is certainly not less true today. We are conscious that there are particular difficulties at Southwark Crown Court, which receives virtually every serious fraud case commenced. As it happens, the earlier hearings in this present case, including the one correctly designated as a preparatory hearing, had been listed before Judge Rivlin only because the judge before whom it had been intended to list this case had fallen ill.
i) Given the co-extensive powers of case management outside the preparatory hearing regime, courts ought to be very cautious about directing a preparatory hearing under section 29 CPIA or section 7 CJA 1987; in particular, the desire of one party to test a ruling by interlocutory appeal is not a good enough reason for doing so, unless the point is one of the few which is genuinely suitable for that procedure (see para 21 above) and there is a real prospect of such appeal being both capable of resolution in the absence of evidence and avoiding significant wastage of time at the trial.
ii) A decision that a judge who has conducted a preparatory hearing should not conduct the trial is one which must be made by the judge concerned. It must not be made administratively, for example by the listing officer.
iii) Such a decision must be made only after a hearing at which all parties have had the opportunity to make representations.
iv) The ordinary rule is that the judge who has had conduct of the preparatory hearing should also conduct the trial.
v) That rule may not be departed from without compelling reason.
vi) Before departing from it, the judge, if not himself the court's resident judge, ought to consult that judge, and all judges should consult one of the circuit's presiding judges; they will of course respect any directions or advice given.
vii) Active steps must be taken in the planning of court business and judicial commitments to avoid wherever possible the necessity for a judge to find himself having to consider leaving any complex case between case management/preparatory hearing and trial; if, unusually, that necessity should arise in a preparatory hearing case (as it did here) the question to be resolved is not a matter of law but of judgment for the judge; this court could interfere only if his decision were one which no reasonable judge could arrive at.