England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 August 2009

1. THE VICE PRESIDENT: The question in this interlocutory appeal is whether on the facts of this case the judge could lawfully rule that although he had conducted a preparatory hearing he should not be the trial judge.
2. The concept of a preparatory hearing was devised in the late 1980s by the Roskill report on the trial of large frauds (1986). The Criminal Justice Act 1987 ("CJA 1987") created the Serious Fraud Office, permitted transfer of its cases directly to the Crown Court without committal proceedings, and made what were then ground-breaking provisions for the case management of large cases of fraud. The Act inaugurated, in sections 7-10, the novel concept of a preparatory hearing. If a judge directed a preparatory hearing he was given statutory authority by that Act to give a number of case management directions. They included requiring the prosecution to render its evidence into a jury-friendly form by way of schedules and the like and to provide a written statement of its case. They included also directing the defence to answer suggestions for admissions and to respond to the prosecution case statement by way of written indication of what it disputed and why - and a sanction was provided for non-compliance in the form of legitimating comment, with the leave of the judge, upon it. In addition, the Act recognised for the first time in statute the possibility that an issue of law, of the admissibility of evidence, or of severance, might be decided in advance of what was ordinarily the beginning of the trial with the swearing in of the jury. Later, by sections 29 and following of the Criminal Procedure and Investigations Act 1996 ("CPIA") it was provided that the same device of a preparatory hearing was extended to non-fraud cases of sufficient complexity or length.
3. The case management of criminal trials has come a long way in the meantime. Even at the time of the CJA 1987 there were of course instances of pre-trial rulings, for example as to severance of defendants or separate trials of charges, and there were certainly examples of directions to the parties designed to smooth the course of the trial. The Central Criminal Court had adopted a practice of pre-trial review as long ago as November 1977, which was gradually adopted over the next ten years or so by most other Crown Courts. This court had held in Thorne (1977) 66 Cr App R 6 that a pre-trial review should take place in any complicated case. But there remained considerable uncertainty about the stage at which it was proper to make rulings of law and about the extent of management directions which could properly be given. Furthermore, outside the serious fraud provisions of the CJA 1987 no sanction for non-compliance with directions existed. All that has greatly changed. Nowadays:

I) a judge in any complex trial is enjoined by the Lord Chief Justice's protocol on the management of heavy fraud and other complex criminal cases (22 March 2005; Archbold 2009 Appendix N) to adopt wherever appropriate what are substantially the procedures recognised by the 1987 Act;

Ii) the CPIA 1996, already 13 years old, but progressively amended since its enactment, requires of the defendant in every criminal case a statement of his position in relation to the evidence against him and provides by a combination of sections 5(5), 6A and 11(5) for the same sanction for non-compliance that originated in the 1987 Act and is now, for preparatory hearing cases, contained in sections 9(5) and 10 CJA 1987 and sections 31(7) and 34 CPIA;

Iii) most of all, the same CPIA provides by sections 39-43 statutory recognition of the power of a judge to make binding rulings of law in a hearing held in advance (and sometimes long in advance) of the swearing in of the jury;

Iv) the Criminal Procedure Rules lay down an overriding obligation on all parties to a criminal case actively to assist the court in its duty of active case management: See rules 3.2 and 3.3; and

V) in all cases a ruling stands unless varied or discharged for good reason: In the case of a preparatory hearing this is provided for by section 31(11) CPIA or s 9(10) CJA 1987, and in the case of a non-preparatory pre-trial hearing by CPIA section 40(4) and (5); although those provisions are somewhat differently expressed we have no doubt whatever that the same principles apply to both; in particular a judge, whether the same as before or a different judge, is not obliged to re-visit a ruling previously made unless there is good reason to do so; he is perfectly entitled to deal summarily with any request that he do so unless there appears to him to be some change of circumstance or other sufficient reason to re-open it.

4. For all practical purposes, the court now has exactly the same powers of management in a non-preparatory hearing case as it has in one where a direction for a preparatory hearing is given. We leave to one side the special rules where non-jury trial is under consideration (sections 43-45 Criminal Justice Act 2003). Otherwise, the sole practical difference which counsel or we have been able to identify is that in the case of the preparatory hearing a ruling of law or as to severance may be challenged by either side by interlocutory appeal: section 35(1) and 31(3) CPIA or sections 9(11) and 9(3) CJA 1987. In the case of a ruling given outside a preparatory hearing there is no general power of interlocutory appeal; the only avenue of such appeal which exists is that available to the Crown under section 58 Criminal Justice Act 2003 in the limited circumstances in which it is willing to give the undertaking stipulated for in section 58(8) that acquittal shall follow a failure of its appeal.
5. Judicial continuity is an essential feature of good case management. Case management is a continuous process and demands consistency of approach. Successive decisions are likely to impact one upon the other. In order to give case management of upcoming cases the close attention it needs, at the same time as coping with current trials, the judge needs to be committed to the case. It is a waste of resources for more than one judge to have to read properly into a large volume of papers; the heavier the case the more this is so.
6. These propositions are in no sense limited to cases of preparatory hearings. The Roskill report recommended that the judge who presided at its proposed preparatory hearing should, save in exceptional circumstances, conduct the trial. Similarly, the Lord Chief Justice's protocol of March 2005 (see paragraph 4 above) says this at paragraph 3:

"(a) In any complex case which is expected to last more than four weeks the trial judge will be assigned under the direction of the Presiding Judges at the earliest possible moment.

(b) Thereafter the assigned judge should manage that case 'from cradle to grave': It is essential that the same judge manages the case from the time of his assignment and that arrangements are made for him to be able to do so. It is recognised that in certain court centres with a large turnover of heavy case (eg Southwark) this objective is more difficult to achieve. But in those court centres there are teams of specialist judges who are more readily able to handle cases which the assigned judge cannot continue with because of unexpected events; even at such courts there must be no exception to the principle that one judge must handle all the pre-trial hearings until the case is assigned to another judge."

7. As that excerpt from the protocol recognises, the necessary objective of judicial continuity can bring with it complications. To an extent it is necessarily in tension with the flexibility which any court needs to cope with the unexpected. Judicial illness or onward appointment, the overrun of current cases, and the unexpected arrival of new defendants or evidence are but simple examples of events which, in the best-managed courts, can throw up the necessity for hard choices to be made between maintaining judicial continuity and dealing efficiently with other cases. The problem is by no means limited to criminal cases; it is felt also elsewhere, particularly in the management of care and other children cases in the family courts. The greater the number of cases that are actively managed, the greater the opportunity for this tension to arise. The Criminal Procedure Rules expressly recognise the need for flexibility. Rule 3.8(2) provides:

"At every hearing the court must, where relevant

...

(d) in giving directions ensure continuity in relation to the court and to the parties' representatives where that is appropriate and practicable." (emphasis supplied).

8. When there is a preparatory hearing, the trial begins with it. This has always been a feature of the concept. Both section 8 CJA 1987 and section 30 CPIA provide:

"If a judge orders a preparatory hearing -

(a) The trial shall start with that hearing and

(b) arraignment shall take place at the start of that hearing unless it has taken place before then."

Those are statutory provisions which while they stand of course override any general propositions contained in the Criminal Procedure Rules. Such a provision was a key feature of the regime for case management by preparatory hearing 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.

9. The statutes are silent as to what the sections mean if at some subsequent stage there is an order for separate trials of charges or severance of defendants. It may be that it is contemplated that both trials have begun and have run concurrently.
10. In R v Southwark Crown Court ex p Commissioners for Customs and Excise (1993) 97 Cr App R 266 the Divisional Court considered a situation in which after Judge A had conducted a preparatory hearing, the case was removed from him and allocated to Judge B by direction of the Presiding Judge of the Circuit, who appears not to have been told that a preparatory hearing had taken place. That direction had been given so that Judge A could be allocated a different case, but he was not committed to it and there was no clash between its timetable and that of the instant case (see p 274). The Divisional Court held, unsurprisingly to us, that Judge A must remain with the case.
11. In so holding, the Divisional Court relied in part upon the fact that the trial had begun with the preparatory hearing. It observed that in its opinion there was no power to change the judge once the jury is sworn, although it recognised an exception for the case in which the trial judge is for some reason such as illness unable to take the verdict, in which event another judge may do so. Whilst the general proposition is undoubtedly right, the exception is in fact somewhat wider, as the recent cases of El-Ghaidouni [2006] EWCA Crim 845 and R v SJ [2007] EWCA Crim 1313, demonstrate. Both were instances of complications arising from illness of the trial judge. In the first it was held perfectly proper for a different judge to answer questions raised by the jury in retirement, providing the answers were ascertainable and uncontroversial. In the second it was similarly proper for a different judge to discharge for good cause a single juror from amongst those in retirement, so that the trial could continue.
12. The position after a jury is sworn is clearly radically different from that where it has not been. With very few exceptions, once the jury is sworn a judge who has not been present at the proceedings simply cannot pick the case up. The Divisional Court in Southwark did not hold that where there has been a preparatory hearing there could never be a change of judge; it did say that mere administrative convenience could not justify such a change and it cited the recommendation of the Roskill report for the proposition that exceptional circumstances would be necessary.
13. That latter observation needs to be read together with what was said later in the case of R v Lord Chancellor, ex p Maxwell [1997] 1 WLR 104. There, there had been a preparatory hearing, in the course of which separate trials of certain counts had been ordered. During the first trial the judge was appointed to the Court of Appeal. The Lord Chancellor made a special direction under section 9 Supreme Court Act 1981 constituting him a judge of the Crown Court to continue that trial, but he declined because of the prior needs of the Court of Appeal to continue that direction for the second trial of the remaining counts. Those were in effect administrative considerations of a particularly pressing kind. The Divisional Court, which (unlike this court) was bound by R v Southwark Crown Court, expressed its doubt that a test of exceptional circumstances could apply to a severed indictment. We have earlier adverted to the difficulty of the concept of the trial starting in relation to two trials at once. We should add that there is similar difficulty in equating the position after a jury has been sworn with that of a preparatory hearing if, as is undoubtedly the case, the same pre-jury proceedings on the same day before the same judge may be at one and the same time both a preparatory hearing (ie part of the trial in the sense used by the sections) and also not a preparatory hearing but a pre-trial hearing: See R v H [2007] UKHL 7; [2007] 2 WLR 364 at paragraphs 24, 57, 66 & 111. It is plain that sections 8 and 30 of the two Acts use the expression "the trial shall start" in a sense different from the concept of the trial before the jury.
14. The history of this case demonstrates the difficulties which may occasionally arise in the modern era of active case management of all, rather than of a few special fraud, cases and how fluid and practical case management has to be.
15. The five defendants face connected charges of money laundering and mortgage fraud. Initially two of them were sent to the Crown Court in January 2008. The third and fourth were sent subsequently in May and September, and the fifth only in December, having been extradited from Paris. Originally there was a single indictment, but as other defendants were added the case was broken down, by agreement between the parties rather than following contested application for severance, to two indictments, with one defendant common to both. On 13/14 November 2008 both indictments were listed before the Recorder of Westminster, Judge Rivlin QC, for the hearing of applications to dismiss (Schedule 3, paragraph 2, Crime and Disorder Act 1998). It transpired that the cases both raised a logically prior question of the admissibility of evidence obtained from a foreign country under Letters of Request. Judge Rivlin dealt with the matter with admirable practicality, with, so far as we can see, a similarly realistic and constructive approach from all counsel. He postponed the dismissal hearings and treated the arraignment as provisional. He acceded to an application to direct a preparatory hearing under s 29 CPIA. The basis of that decision was that the admissibility point raised an issue suitable for interlocutory appeal. It was a novel point of pure law, certain to arise rather than hypothetical or contingent, it could not be affected by evidence yet to be given and its resolution would avoid the risk of a long trial proceeding on what might turn out to be a false footing, with consequent risk of the necessity of re-trial. An interlocutory appeal did indeed follow and was determined by this court on 18 December 2008. Since then the same judge has conducted a number of further hearings. On 12 January 2009 he fixed dates for the commencement of both trials and gave consequential timetabling directions for preparation. On 9 February 2009, the other two defendants having been added to the case, he heard the applications to dismiss. At the conclusion of that hearing, newly amended indictments were proffered by the Crown, the defendants were arraigned or re-arraigned as the case may be, and the judge gave further case management directions for the trial of both indictments. Those directions included orders for the service of prosecution case statements and defence responses to them. On 29 May 2009, two defendants having instructed fresh solicitors, there was a further hearing to review readiness for trial. The trial dates for the two indictments are currently these: the first indictment is to be tried commencing on 21 September 2009, with an estimated length of six weeks and the second indictment is to be tried commencing in February 2010, with a similar estimate of length.
16. By the last week of July 2009 it had become clear to Judge Rivlin that there was a clash between the second of the two trials scheduled in the present case and another long-standing case to which he was also committed by having conducted a preparatory hearing. That other preparatory hearing had pre-dated the hearing in the present case. It follows that this case has been in the Crown Court for eighteen months and has yet to be tried, and that the other case is even older. This case, when it was before us in December 2008, was dealt with as a matter of considerable urgency on the basis that the trial was anticipated to begin in January 2009. Eight months later, it is still in prospect. Such timetables, whilst undesirable, may occur despite all efforts in complex cases of multiple defendants. But such passage of time does illustrate the real practical difficulties which the desired aim of keeping a single judge with the case can present. The trial dates of this case have been changed at least twice and perhaps three times since the judge embarked upon the preparatory hearing and by the time of the trial that hearing will have been nearly a year earlier. There have also been very extensive changes of representation in the meanwhile. In Maxwell (supra) the Divisional Court referred to the Roskill report as having been written

"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.

17. Of his own initiative Judge Rivlin accordingly gave notice to the parties of his intention to consider directing that he should not conduct the trials, in order to enable another judge to take the case over. He heard submissions on the topic on 31 July 2009. The defendants were all content with his proposal, and with his jurisdiction to act as he contemplated. The Crown was concerned, not so much about any disadvantage to the trial inherent in his proposal, but about whether he had power in law to give effect to it. It was, understandably, anxious that if he had no power to do so, that should be known now rather than only after the end of the trial(s) when it might be relied upon by a convicted defendant as an argument for quashing the conviction. Judge Rivlin concluded that his earlier ruling on the foreign evidence had been concerned only with the procedure by which it had arrived in the UK and not with its content. Thus, his having dealt with it did not make it more difficult for another judge to hear the abuse of process argument connected with that evidence which was (and is) still to come. He concluded he had power to do as proposed and he ordered that he should not be the trial judge. For the same reasons which motivated its submissions before the Crown Court, the Crown appeals that decision to this court.
18. The first question correctly raised for us is whether we have jurisdiction to entertain the appeal under section 35 CPIA. If not, Judge Rivlin's decision would need to be challenged before us as a Divisional Court of Queen's Bench by way of application for judicial review. Sections 35 and 31(3)(b), read together, make an interlocutory appeal available in a preparatory hearing case in respect of any ruling of the judge upon "any [other] question of law relating to the case."
19. A case management decision would not ordinarily raise any question of law. Even if it might be said to do so, this court would ordinarily be most unlikely to give leave to any party to bring any interlocutory appeal against such decisions. However, in the present case, the issue raised does not relate to the merits of the judge's decision but to whether he had power in law to make it. That, as it seems to us, is clearly a question of law, and it is one which relates to this case. Since R v H (supra) it is clear that in order to fall within sections 31(3) and 35 a question of law need not relate to one of the statutory purposes of a preparatory hearing, as listed in section 29(2). Accordingly we are satisfied that this appeal properly comes to us in this court pursuant to section 35 CPIA.
20. Was Judge Rivlin entitled as a matter of law to arrive at the decision he did? On the facts of this case, we are satisfied that he was. The reasons for doing so might be described in one sense as administrative, in that they related to how to manage both this case and the other to which the judge was also committed. But they were not at all comparable to the mere operational convenience under consideration in R v Southwark Crown Court, which we entirely agree would not suffice. Nor, although the judge referred to pressure of work, was that all that was involved - such is not to be underestimated but would be unlikely by itself to justify departure from a case which a judge is managing. This judge was faced with a direct clash of commitments. It could be solved only by disengaging from one case or uprooting the carefully planned timetable of one or the other. A judge is in those circumstances entitled as a matter of law to act as this judge did. We do not think that it helps to apply the label 'exceptional' to the circumstances which will justify such a course, a label which was in any event unnecessary to the decision in Southwark, save that it is undoubtedly the case that a decision not to proceed to conduct the trial is the exception to the general rule. What matters is whether there is sufficiently compelling cause to depart from what must remain the norm, namely that a judge who has conducted the case management of a complex case, whether under the umbrella of a preparatory hearing or not, should conduct the trial. In this case, we are satisfied that there was.
21. We should add that this case illustrates the complications introduced where the preparatory hearing regime is invoked. It is emphatically not the case that most heavy fraud or similar cases will nowadays call for a preparatory hearing. Virtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal. Such rulings are few and far between and do not extend to most rulings of law. An interlocutory appeal can be a most beneficial process in a few, very limited, circumstances. If a discrete point of law arises, its resolution in this court can if necessary be accomplished within a very short time-frame and this can avoid the risk of many weeks of wasted trial time. On the other hand, many points of law decided in the Crown Court turn out to be fact sensitive and to appear differently, or for that matter to go away, by the time the evidence has been heard. Making a decision on one part of a case only and on necessarily hypothetical facts is normally very undesirable; whereas a ruling in the Crown Court can be varied from time to time if the case proceeds differently from what was expected, a ruling of this court cannot normally be treated similarly. An interlocutory appeal is apt to cause serious disruption to a carefully planned trial timetable, which may involve multiple defendants and their lawyers and large numbers of witnesses. If the timetable of one case is disrupted, it very often has a knock-on effect on the timetables of others. Moreover, if the tendency of an interlocutory appeal to have this consequence is to be minimised, it is essential for this court to give it priority over other waiting appeals. This is not only potentially unfair to those who are in custody following conviction; it is also impossible unless interlocutory appeals are very exceptional. The present case did, as we have indicated, present a good example of a justified interlocutory appeal. The point was discrete, novel, certain to arise rather than hypothetical or contingent, involved no factual dispute and needed authoritatively to be determined lest the trial proceed on what might turn out to be a false footing, with consequent risk of the necessity of re-trial. By contrast, rulings where the judge has applied well understood principles to the case will not be suitable for interlocutory appeal even if they may properly be described as questions of law; rulings upon severance are amongst those likely to fall into this category. Nor will those where the ruling is to any extent provisional or dependent upon the way the evidence emerges. It is important to remember that the decision to declare a preparatory hearing is for the Judge alone; it cannot be made by agreement between the parties. Nor is it a reason for making an order for a preparatory hearing that one or other party would like the opportunity of testing some ruling by way of interlocutory appeal, unless the point is one of the few which is genuinely suitable for such procedure.
22. We summarise what ought to be the practice in this kind of situation. Reference should henceforth be made to this practice rather than to any formula employed in R v Southwark Crown Court.

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.

23. For those reasons this appeal is dismissed.