England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 September 2004

Lord Justice Auld :

Introduction

1. The claimant, Lee Snelgrove, is currently awaiting trial in the Crown Court at Woolwich charged on a single count indictment with an offence of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 ("the 1861 Act"). The prosecution case is that on 21^st March 2002 the claimant, acting together with his co-accused, Mark Williams, assaulted Darren Reynolds. He claims judicial review of decisions of His Hon Judge Norris on 30^th October and 5^th November 2003 to refuse: 1) to direct disclosure of material to the claimant; 2) to adjourn the application to enable him to call oral evidence; 3) to consider any material outside the copy witness statements relied upon by the prosecution; and 4) to dismiss the charge against him pursuant to paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 ("the 1998 Act").
2. An offence contrary to section 18 of the 1861 Act is an indictable-only offence. Section 51 of the 1998 Act provides that an adult defendant who appears before a magistrates' court charged with an offence which is triable only on indictment shall be "sent forthwith to the Crown Court for trial". On 2^nd September 2003 the claimant appeared in a magistrates' court and was sent to the Crown Court for trial. The prosecution case against him depends entirely upon the evidence to be given by Reynolds identifying him as one of his assailants. In unused material disclosed by the police, namely crime reports, there were previous inconsistent statements of Reynolds, a note signed by him "dropping all charges", contradiction of part of his account by a person named by him as a witness, and information to suggest that he suffered from mental illness.
3. The claimant sought to bring the prosecution against him to an early end by an application to dismiss under the 1998 Act on grounds of the paucity and/or unreliability of the prosecution evidence against him. In October 2003 he notified in writing his intention to apply for the charge to be dismissed pursuant to paragraph 2 of Schedule 3 to the 1998 Act and of the Crime and Disorder Act 1998 (Dismissal of Charges Sent) Rules 1998 (SI 1998 No. 3048) ("the Dismissal of Charges Sent Rules"). His notice detailed the limits of the prosecution evidence available against him and of the unused material disclosed by the police relied on by the claimant in support of his case that the evidence of Reynolds was likely to be so unreliable that no jury could properly convict him. His counsel, Miss Antoinette Mackeson-Sandbach, also lodged skeleton arguments in support of his application, which included reference to the well known tests in R v Galbraith (1981) 73 Cr App R 124 and R v Shippey [1988] Crim LR 767.
4. On 30^th October 2003, the day fixed for the application, the claimant, through Miss Mackeson-Sandbach, sought disclosure of Reynolds' psychiatric records and an adjournment to enable him to obtain an opinion of, and, if so advised to call, a psychiatrist as to the mental state of Reynolds and for Reynolds to be made available for cross-examination. The Judge, His Hon. Judge Norris, refused to grant an adjournment for those purposes, indicating that he could only consider the case against the claimant on the basis of the witness statements served by the prosecution, adding that he could not take account of matters in the crime reports because they were hearsay, on which the claimant was not entitled to rely. He adjourned consideration of the application to dismiss to 5^th November, inviting Miss Mackeson-Sandbach to make submissions to him at that adjourned hearing also as to abuse of process.
5. On 5^th November, Miss Mackeson-Sandbach made applications for dismissal and/ or for a stay of the prosecution as an abuse of process. The Judge refused both applications. Before doing so, he had clearly looked at the crime reports and other un-used material disclosed by the prosecution. He held, however that there was sufficient evidence in the form of the prosecution witness statements of a case to answer. He added that that the claimant's concerns as to the quality of the proposed evidence of Reynolds could be examined as part of the normal trial process. This is how, after referring briefly to the provisions of section 51 of, and Schedule 3 to, the 1998 Act and to the Dismissal of Charges Sent Rules, he expressed his ruling:

"… The Judge decides the point on the papers, unless it appears with regard to [any matters stated in the application for leave] that the interests of justice require him to hear any evidence orally – paragraph 2(4).

The first question which arose – which I raised – was what papers the Judge is entitled to look at. My preliminary view was that it was only the statements on which the prosecution rely, and that it should be determined on the basis of those statements whether there is a prima facie case.

Miss Mackeson submitted that I can and must look at documents – for example the Crime Report – which the prosecution have served as part of primary disclosure, and that I should look at those to determine whether Darren Reynolds' evidence relating to Lee Snellgrove, especially his identification evidence, is likely to be such that a reasonable jury could ever rely upon, because this is the only evidence relating to Lee Snellgrove.

It is largely a question of the complainant's mental state and what the police officers have noted in the Crime Report about him. Mr Slack for the prosecution maintains that all of these are matters that the defence can probe at trial and are not properly determined on an application to dismiss.

I have had regard to all the authorities cited.

The view I finally take is that, even going behind the scenes beyond the prosecution bundle to the Crime Report (and I have doubts still as to whether I should do so), I am not persuaded that this application is properly grounded. The complainant will be available at trial to give evidence to the jury and the defence will have every opportunity then to probe. [my emphasis]

I am not persuaded either that a reasonable Crown Prosecutor, because of the complainant's mental health, couldn't be satisfied that there is a case to put forward.

The issues that Miss Mackeson raises at this stage are trial issues; they are normal incidents of a trial. There is a prima facie case against this defendant to go to trial. I do not need to hear any oral evidence to be satisfied of that.

I also invited arguments on the grounds of abuse. I have concluded that there is no unfairness to the defendant, or any question that he cannot have a fair trial for the reasons I have already given. I am satisfied that the abuse argument must fail."

6. The claimant now claims judicial review of the Judge's rulings culminating in and including his decision not to dismiss the charge, but not of his refusal to stay the proceedings as an abuse of process. All of his complaints are directed to the unreliability of Reynolds's proposed evidence, largely on account of his inconsistencies and psychiatric state and because of the absence or weakness of any supporting evidence. He challenges the Judge's refusal to dismiss the charge, having regard to: 1) his decision to confine his consideration to the witness statements served by the prosecution; 3) his alleged failure to consider, on the issue of an adjournment for further investigation, the material in the crime reports relevant to Reynolds' mental state; and 3) his decision not to permit the claimant to call oral evidence from a psychiatrist.
7. The Crown Prosecution Service, as interested party, seek to uphold the Judge's decisions, primarily on the jurisdictional rule in section 29(3) of the Supreme Court Act 1981 ("the 1981 Act" ) that judicial review is not available "in matters relating to trial on indictment", alternatively on the basis that the Judge's decisions on the merits were, in any event, correct.
8. Following the hearing on 5^th November 2003, the prosecution preferred a bill of indictment charging the section 18 offence, and the trial stands adjourned pending the outcome of the claim for judicial review.

The Issues

9. The primary issue for consideration is thus whether the decisions under challenge are matters relating to trial on indictment for the purposes of section 29(3) of 1981 Act ('the jurisdiction issue'). The secondary and alternative issue is whether the Judge was entitled to reach the decisions he did on the written prosecution evidence before him, or whether he should have considered or given more weight to the material in the Crime Reports as to Reynolds's mental state, and/or heard or otherwise received psychiatric evidence on the issue.
10. The jurisdiction issue
11. Before I consider this issue, I should summarise the legal framework in which it is set.
12. The 1998 Act contains a miscellany of provisions dealing with a wide range of matters, including the important one on avoidance of delay in the criminal justice process. Section 51 of, and Schedule 3 to, the Act developed and implemented recommendations of the Royal Commission on Criminal Procedure (Cmnd. 8092) in 1981, the Royal Commission on Criminal Justice (Cm. 2263) in 1993 and the Narey Report: "Review of Delay in the Criminal Justice System" in 1997. In the case of adult offenders charged with offences triable on indictment only, it substituted for committal proceedings by magistrates a new system by which they simply "sen[d] the accused "forthwith to the Crown Court for trial". Amendments to the Magistrates' Courts Rules^[1] provide that the clerk of the sending magistrates' court shall send certain documents to the Crown Court: "… as soon as practicable after any person is sent for trial … and in any event within 4 days from the date on which he is sent …". Amendments to the Crown Court Rules^[2] provide that the appropriate officer of the Crown Court shall list the first Crown Court appearance of the defendant no later than 28 days after the date on which the notice of sending is received by the Crown Court, a period reduced to 8 days where the accused is in custody. And Regulations made under the 1998 Act, the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2000 ("the Service of Prosecution Evidence Regulations") provide that, once the accused is sent to the Crown Court, copies of the documents containing the evidence on which the charge or charges are based shall be served by the prosecution on him and the Crown Court normally within 42 days from the date of the first hearing in the Crown Court.
13. The purpose of these new provisions is to speed the progress of serious cases (which also includes serious or complex frauds under section 4 of the Criminal Justice Act 1987 ("the 1987 Act") and violent or sexual offences against children under section 53 of the Criminal Justice Act 1991 ("the 1991 Act")^[3]). Their effect is the early transfer of jurisdiction for management of such cases from magistrates to the Crown Court. The plea and directions hearing should take place much earlier in the life of the case and Crown Court Judges are responsible for the review and management of the progress and readiness of the case for trial.
14. Regulation 2 of the Service of Prosecution Evidence Regulations 2000 provides for the service of documents containing the evidence on which the charge or charges are based:

"Where a person is sent for trial under section 51 of the 1998 Act on any charge or charges, copies of the documents containing the evidence on which the charge or charges are based shall, within 42 days from the date of the first hearing in the Crown Court, be:

(a) served on that person; and

(b) given to the Crown Court …"

15. Once that evidence has been served, the accused has the right to apply for the charge, or charges, to be dismissed. Applications for dismissal are governed by paragraph 2 of Schedule 3 to the 1998 Act and the Dismissal of Charges Sent Rules.

Paragraphs 2(1) of Schedule 3 to the 1998 Act provides:

"A person who is sent for trial under section 51 of this Act on any charge or charges may, at any time

(a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and

(b) before he is arraigned (and whether or not an indictment has been preferred against him),

apply orally or in writing to the Crown Court … for the charge, or any of the charges, in the case to be dismissed."

Paragraph 2(2) provides:

"The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him."

Paragraph 2(4) deals with the calling of oral evidence:

"Oral evidence may be given on such an application only with the leave of the judge or by his order; and the judge shall give leave or make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so."

Paragraph 2(5) supplements paragraphs 2(4) and governs the situation where a person required to give oral evidence does not attend court for that purpose:

"If the judge gives leave permitting, or makes an order requiring, a person to give oral evidence, but that person does not do so, the judge may disregard any document indicating the evidence that he might have given."

The effect of a successful application to dismiss is governed by paragraph 2(6):

"If the charge, or any of the charges against the applicant is dismissed

(a) no further proceedings may be brought on the dismissed charge or charges except by means of the preferment of a voluntary bill of indictment; and

(b) unless the applicant is in custody otherwise than on the dismissed charge or charges, he shall be discharged."

The significance or paragraph 2(6)(a) is that, even where a charge is dismissed, the prosecutor, if aggrieved by the decision, may seek to re-instate the proceedings by means of the preferment of a voluntary bill of indictment.

16. The Dismissal of Charges Sent Rules provide for the procedure to be followed in applications for dismissal. Rule 2(1) provides that where an accused person sent for trial has been served with "copies of the documents containing the evidence on which the charge or charges are based", he must, if he wishes to apply orally for dismissal, give written notice of his intention. Rule 2(6) requires such notice to be accompanied by a copy of "any material" on which the applicant relies. Rule 3 provides that a written application for dismissal must be sent to the Crown Court and must be "accompanied by a copy of any statement or other document, and identify any article, on which the applicant relies". Rule 4(5) enables the prosecution to respond to any "material" served on it by the applicant pursuant to Rule 2(6) to adduce in reply "any written comments, or any further evidence" in the form of "comments, copies of the statements or other documents outlining the evidence of any proposed witness and copies of any further documents". Rule 5(1) empowers a Judge to grant leave for a witness to give oral evidence notwithstanding that notice of intention to do so has not been given.
17. Mr David Perry, on behalf of the Crown Prosecution Service, submitted that the Rules thus distinguish between "documents containing evidence" on which the prosecution relies, for which Rule 2(1) provides, and "material" on which the applicant relies, for which Rule 2(6) provides. He suggested that the distinction may be explained on the basis that the applicant may rely on material such as a skeleton argument, or agreed facts, in support of the application to dismiss, but that Rule 2(6), in its use of the word "material", does not permit the Court to rely on inadmissible material, as evidence for that purpose. In my view, his conclusion is right, but not his route to it. Rule 2(6), which relates to notice of an intention to make an oral application to dismiss, must be read with Rule 3, which relates to a written application to dismiss, and so read, indicates that the word "material" in Rule 2(6) is a form of shorthand for anything, whether in the form of admissible evidence or otherwise, just as is the more specific terminology in Rule 3, applying to a written application itself, namely "a copy of any statement or other document … and … [identification of] any article … on which the applicant relies". What the Judge hearing the dismissal application in either form will do with any such material is another matter. For example, he could admit into evidence written statements under sections 23 or 24 of the Criminal Justice Act 1988 if they satisfy the relevant conditions and meet the criteria in sections 25 and/or 26 of the Act. Or he could take them into account as aids to argument, notes or comments, just as he would skeleton arguments or speaking notes of counsel.
18. It is relevant in this connection that Rule 4(5), after referring to receipt by the court of "material specified in Rule 2(6)" or 3(2), specifically enables the prosecution to produce in reply "any written comments, or any further evidence … or other documents outlining the evidence of any proposed witnesses". So, the distinction to which Mr Perry refers may, but does not necessarily denote a distinction between admissible evidence and other material determinative to his decision as to dismissal. The Judge could, for example, on the strength of some inadmissible material that has a potential for being turned into relevant and otherwise admissible evidence or for testing admissible prosecution evidence on which the prosecution relies, adjourn the application to enable the accused's representatives to do whatever is necessary to that end. Or perhaps, on the strength of such material, he could direct certain enquiries if he considers that the interests of justice require it. He has a discretion - one that he should exercise one way or the other in the light of the prosecution evidence and other material put before him, having regard always to the statutory test whether the prosecution evidence before him considered in its context is sufficient for a jury properly to convict the accused.

Section 29 of the Supreme Court Act 1981

19. Section 29(3) of the 1981 Act provides:

"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."

20. Section 29(3) has been considered by the House of Lords on four occasions: in re Smalley [1985] A.C. 622; in re Sampson [1987] 1 WLR 194; in re Ashton [1994] 1 A.C.9 and in R. v Manchester Crown Court, Ex Parte Director of Public Prosecutions [1993] 1 WLR 1524.
21. In the first of these cases, Smalley, decided in 1985, the House of Lords held that challenge by a surety to an estreatment of his recognizance was not a matter relating to a trial on indictment for the purpose of section 29(3) because it did not affect the conduct of the trial. Lord Bridge of Harwich, with whom the other Law Lords agreed, stated at pages 642-644:

"It is, of course, obvious that the phrase 'relating to trial on indictment' in section 28(2)(a) and section 29(3) is apt to exclude appeal or judicial review in relation to the verdict given or sentence passed at the conclusion of a trial on indictment, both of which are subject to appeal as provided by the Criminal Appeal Act 1968. I accept Mr Laws' submission that in the context, as in sections 76 and 77 of the Act of 1981, the words 'trial on indictment' must include the 'trial' of a defendant who pleads guilty on arraignment. Beyond this it is not difficult to discern a sensible legislative purpose in excluding appeal or judicial review of any decision affecting the conduct of a trial on indictment, whether given in the course of the trial or by way of pre-trial directions. In any such case to allow an appellate or review process might, as Shaw LJ pointed out in Brownlow's case [1980] QB 530, 544, 545, seriously delay the trial. If it is the prosecutor who is aggrieved by such a decision, it is in no way surprising that he has no remedy, since prosecutors have never enjoyed rights of appeal or review when unsuccessful in trials in indictment. If, on the other hand, the defendant is so aggrieved, he will have his remedy by way of appeal against conviction under the Criminal Appeal Act 1968 if he has suffered an injustice in consequence of a material irregularity in the course of the trial, which, I apprehend, may well result not only from a decision given during the trial, but equally from a decision given in advance of the trial which affects the conduct of the trial, e.g. a wrongful refusal to grant him legal aid. [my emphasis]

…

It must not be thought that in using the phrase 'any decision affecting the conduct of a trial on indictment' I am offering a definition of a phrase which Parliament has chosen not to define. If the statutory language is, as here, imprecise, it may well be impossible to prescribe in the abstract a precise test to determine on which side of the line any case should fall and, therefore, necessary to proceed, as Mr Henderson for the appellant submitted that we should, on a case by case basis. But it is obviously desirable that your Lordships' House should give as clear guidance as the statutory language permits, and I hope the criterion I have suggested may provide a helpful pointer to the right answer in most cases."

22. In re Sampson, decided in 1987, the House held that an acquitted accused's challenge to a legal aid contribution order was a matter relating to trial on indictment for the purpose of section 29(3) because it was "an integral part of the trial process". Lord Bridge, with whom the other Law Lords agreed, stated, at 196:

"It is in any event clear, I apprehend that certain orders made at the conclusion of a trial on indictment are excluded from judicial review as 'relating to trial on indictment' not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process. This is obviously true of the verdict and sentence."

23. Before I turn to the third and fourth of the House of Lords cases, I should note that, thus far their Lordships had not had to consider the question whether challenges to the prosecution, whether by way of application for stay for abuse of process or of application for dismissal under special provisions, such as for serious or complex frauds under section 6 of the 1987 Act, were judicially reviewable. However, there had been a number of cases in the Divisional Court, culminating in 1992 in R v Central Criminal Court, ex p Director of Serious Fraud Office [1993] 1 WLR 949, ("Azil Nadir"), in which challenges of that nature had been considered.
24. In Asil Nadir the Court, consisting of Woolf LJ, as he then was, and Pill J, as he then was, allowed an application by the prosecution to review a decision of Tucker J. at the Central Criminal Court, who had dismissed, under section 6 of the 1987 Act, charges of dishonesty against Azil Nadir. In the course of his judgment, Woolf LJ relied on two decisions of the Divisional Court that appeared to him to establish the principle that the High Court had power to review the decision of the Crown Court on an application to stay a trial on indictment as an abuse of the process of the Court, and on a third on an application to quash an indictment. The first two were R v. Central Criminal Court, ex p Randle [1991] 1 WLR 1087, and R v. Norwich Crown Court, ex p Belsham [1992] 1 WLR 54 (both of which were later over-ruled by the House of Lords in Ashton (see paragraph 26 below) in which the Court had held judicially reviewable a decision on an application for such a stay made prior to arraignment). The third was R v. Manchester Crown Court, ex p Director of Public Prosecutions [1993] 96 Cr.App.R.210 (later reversed by the House of Lords, see paragraph 29 below), in which the Court had held judicially reviewable a decision of the Crown Court on an application to quash the indictment for want of jurisdiction to try it.
25. Woolf LJ considered that the section 6 exercise was akin to that of committing magistrates. He held that it did not, therefore, fall within the Smalley pointer of affecting the conduct of a Crown Court trial, or within the Sampson pointer of being an integral part of such a trial. As to the Smalley pointer, and notwithstanding Lord Bridge's recognition in that case that a pre-trial decision affecting the trial would be caught by section 29(3), he relied in part on Randle and Belsham, soon to be over-ruled in Ashton. And as to the Sampson pointer, he relied on the Manchester Crown Court case, soon to be reversed. He also noted that section 6 gave greater protection to an accused than did committal procedures before magistrates in that a dismissal under section 6, by virtue of section 6(5) brought an end to the prosecution, whereas the prosecution could meet a refusal by magistrates to commit by seeking a voluntary bill of indictment (as is also possible in the case of a dismissal under the 1998 Act; see Schedule 3, paragraph 2(6)). Against the flawed legal backcloth left by those authorities, Woolf LJ held that a decision under section 6 is judicially reviewable, but added that he did not expect the Court to exercise such jurisdiction save in an "exceptional case". This is how he expressed his conclusion at 958B-E:

"… in my judgment, this court does have jurisdiction to review a decision on a section 6 application. The critical test still depends on the language of section 29(3) of the Act of 1981 as applied by the courts. I do not consider that the Act gives any clear indication that it is the intention of Parliament that if there were otherwise jurisdiction, this jurisdiction is to be taken away. The ability to make an application for judicial review need not unnecessarily delay the trial, as this case demonstrates. However, what I regard as being the decisive factor is the close relationship between the nature of the section 6 application and the committal proceedings by magistrates. The only real distinguishing feature is the fact that the adjudicating body is the judge and will frequently be the trial judge on the section 6 application rather than the justices. It is to be noted that on a section 6 application the judge may have to conduct mini-committal proceedings with the assistance of oral evidence before deciding an application. In addition I believe that it would be anomalous if it were not possible judicially to review the exceptional decision of the sort which was given in this case. For there to be no method of correction of a section 6 decision would be unsatisfactory. [my emphasis]

I would however emphasise that I do not anticipate the courts being prepared as a matter of discretion to give leave to make an application for judicial review of such a decision except in the exceptional case. The jurisdiction should clearly only be exercised in extremely limited circumstances. …"

In a separate judgment, Pill J agreed with the reasoning of Woolf LJ.

26. Coming closer to the nature of the application in this case, in 1993 the House of Lords in Ashton, following Lord Bridge's "pointers" in Smalley and Sampson, held that an order at the beginning of a trial to stay proceedings in the Crown Court for abuse of process was a decision relating to trial on indictment within the meaning of section 29(3) because it affected the conduct of the trial. Lord Slynn's speech, with which the other Law Lords agreed, contained four themes: 1) the reasoning in Randle and Belsham, on which the Court partly relied in Asil Nadir, was wrong; 2) the importance of the underlying purpose of the provision as identified by Lord Bridge in Smalley and Sampson, namely the avoidance of delay in the criminal justice process; 3), for that reason, little turned on the procedural form of the challenge to the prosecution; and 4) the importance of not losing sight of the broad formulation of the exclusionary words in section 29(3), "in matters relating to trial on indictment". He dealt with the first two of those themes in the following passages at 20A-F:

"In my view it is not necessary to reconsider or to depart from the guidance given in re Smalley [1985] A.C. 622, and in re Sampson [1987] 1 WLR 194. Lord Bridge made it plain in both cases that he was not seeking to substitute a new phrase for the phrase in the statute but was seeking to give 'a helpful pointer' as to the way the exclusion should be applied. His expression 'affecting the conduct of a trial' is apposite to deal with the situation where an order is made before trial and during the trial; the expression 'an integral part of the trial process' includes an order made at the very end of the trial, though it may equally apply to an order made during the trial and even before the trial. In neither case did Lord Bridge draw a distinction between an order as to how and when a trial is to be held and an order which decides whether there shall or shall not be a trial.

In my opinion an order made on an application to stay proceedings for abuse of process is clearly 'an order affecting the conduct of the trial' whether the order is that the proceedings shall or shall not be stayed. For that reason it is an order in a matter 'relating to trial on indictment' within the meaning of section 29(3). It does not in my opinion make any difference for this purpose whether the order is made, as here, on the day the trial is due to start, or at the beginning of the trial, or at an earlier date on a special hearing. [my emphases]

In the present case where the order was made at the very beginning of the trial, or even if strictly just before the trial was due to begin, it is no less an order made as ' as integral part of the trial process' and therefore within the exclusion provided for in section 29(3).

Even if these two helpful pointers are left on one side I have no doubt that the order in question was in a matter 'relating to trial on indictment.' The legislative purpose in excluding judicial review of such matters is fully analysed by Lord Bridge and I accept his analysis. He stressed the risk of delay to the trial if applications for judicial review are to be entertained and the extent to which remedies are otherwise available to the parties in criminal proceedings. The defendant, if convicted, can appeal, even if this may not, for a successful appellant, be as speedy or efficacious a remedy as judicial review before trial. That the prosecution would have no right to appeal, save as provided by statute, is consistent with the general policy of the law." [my emphases]

27. As to Lord Slynn's third and fourth themes, he dismissed as immaterial for this purpose the distinction drawn by the Court in Randle and in Belsham, considering a ruling by the Court in R v Central Criminal Court, ex p Raymond [1986] 1 WLR 710, that an order that an indictment should lie on the file related to a matter triable on indictment, between such an order, which the Court had accepted in those cases was not judicially reviewable, and a stay on grounds of abuse of process, which the Court had (wrongly) ruled was judicially reviewable. He said, at 21 A-B:

"There are differences between the two situations but in my opinion they are not material for present purposes and I find the distinction drawn in … Randle and followed in … Belsham to be artificial. Both types of order are matters relating to a trial on indictment; both affect the conduct of the trial. It would, in my view, be very curious if the order for a stay as an abuse of process should be treated differently from the order that the counts concerned should lie on the file … In my view they are to be treated alike. It follows that despite the differences between the two forms of order which were relied on in … Randle and … Belsham, those two cases were wrongly decided" [my emphasis]

28. Lord Slynn said nothing as to the correctness or otherwise of the decision in Asil Nadir, save to observe, at 21G, that it was not based on Randle, and that since the issues were different from those in Ashton "it … [was] undesirable to say anything about them".
29. Again close to the issue in this case, in the fourth case, the Manchester Crown Court case, decided later in 1993, the House of Lords, reversing the Divisional Court decision referred to in paragraphs 24 and 25 above, decided that a Judge's decision to quash an indictment for want of jurisdiction, was a matter relating to trial on indictment and not amenable to judicial review. Lord Browne-Wilkinson, with whom the other Law Lords agreed, followed the reasoning of the House's earlier decisions, stressing, as they had done, the rationale of section 29(3) of the avoidance of delay of trials in the Crown Court and the ordinary and wide meaning of the exclusionary words in section 29(3) "in matters relating to trial on indictment". As to the latter, it is helpful to see Lord Browne-Wilkinson's reasoning for rejecting the distinction drawn in Randle, Belsham and in the Court below between a court's "primary" jurisdiction to try proceedings on indictment and that of its "separate, collateral" jurisdiction to determine whether the case before it falls within that primary jurisdiction. Such reasoning, it seems to me, is equally applicable to the function of the Crown Court under section 52 of the 1998 Act in determining whether the evidence would be sufficient for a jury properly to convict him. He said, at 1529D-E:

" … Whether or not the distinction between the two types of jurisdiction is valid, the argument does not touch this case. The exclusionary words of in section 29(3) exclude, not simply decisions made under its jurisdiction to try on indictment, but also 'its jurisdiction in matters relating to trial on indictment.' On any ordinary meaning of the words, the question whether or not there is jurisdiction to try on indictment must 'relate to" trial on indictment."

By parity of reasoning, it could be said that, on any ordinary meaning of those statutory words, the question whether, in a case "sent" to the Crown Court "for trial" under section 51 of the 1998 Act, there is evidence sufficient for a jury properly to convict him, must "relate to" trial on indictment.

30. Nevertheless, Lord Browne-Wilkinson suggested a further, third pointer to the meaning of the exclusionary words under section 29(3), namely whether the order challenged arises on an issue between the prosecution and the accused formulated by the indictment, or concerns some third party. He said, at 1529-1539:

"The earlier decisions of this House established the reasons why judicial review of decisions taken in relation to trials on indictment are forbidden: to avoid delay. If it were possible to challenge decisions taken in the course of a criminal prosecutions, not only the prosecution but also the accused would be able to put off the conclusion of the trial by taking technical points and then seeking to have the judge's decision reviewed in the Divisional Court. Experience in other jurisdictions shows that those on trial are only too willing to put off the evil day by taking 'interlocutory' points to appeal. English law has set its face against this (save in cases of serious fraud).

…

Although the inability of the defendant to challenge the Crown Court's decision by judicial review means that he has to endure a full trial, he is usually not otherwise prejudiced. If convicted, he can appeal to the Court of Appeal and challenge the erroneous decision on the appeal. If acquitted he is not prejudiced. Nor will the prosecution normally be prevented from testing the validity of the judge's decision. Provided that the defendant has been acquitted, the Attorney General can refer the point of law to the Court of Appeal under section 36(1) of the Criminal Justice Act 1972. It is only where the decision of the Crown Court to stay or quash the proceedings prevents a verdict being given that the matter cannot be tested by the prosecution. If the inability of the prosecution to challenge erroneous decisions in such cases is found to be contrary to the public interest, the necessary jurisdiction could be conferred by Parliament by making a very slight amendment to section 36 of the Criminal Justice Act 1972.

In my judgment, the case method of elucidating the meaning of section 29(3) has now gone far enough to make it possible to detect a further 'helpful pointer.' With one possible exception (to which I will return) the only decision of the Crown Court which have been held to be reviewable are those in which either the order was made under a wholly different jurisdiction e.g. binding over an acquitted defendant (Reg. v. Inner London Crown Court, Ex Parte Benjamin [1986] 85 Cr.App.R. 267) or the order sought to be reviewed has been made against someone other than the defendant. … It may therefore be a helpful further pointer to the true construction of the section to ask the question, 'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' If the answer is 'Yes,' then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is 'No,' the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial; therefore it may well not be excluded by the section.

I must emphasise that, again, this is not an attempt to give a comprehensive definition of the meaning of the statutory words: it is merely a third helpful pointer."

31. I should not leave the Manchester case in the House of Lords without noting that Lord Browne-Wilkinson, after proffering that third pointer, commented that there may be cases where it points in the wrong direction, and added, at 1530G-H:

"In particular I express no view on the correctness of the decision in … [Asil Nadir]. Although the Divisional Court in that case attached much weight to the erroneous decisions of the Divisional Court in Randle, Belsham and Ashton [i.e. at first instance], the case concerned the special procedure laid down by the Criminal Justice Act 1987 in serious fraud cases. The court attached importance to the wording of the Act of 1987 and the case may raise special considerations."

32. In R v. Director of Public Prosecutions, Ex Parte Kebilene [2000] 2 AC 326, the House of Lords, relying on the 'analogical force' of section 29(3) held that a decision to prosecute is not amenable to judicial review. Their Lordships considered that the policy underlying the statute, of avoidance delay in criminal proceedings, would be severely undermined if it could be outflanked by challenging a prosecutor's decision to enforce the law.
33. The most recent authority, and the one most closely in point on the facts of this case, is R (Salubi and others) v. Bow Street Magistrates' Court [2002] 2 Cr.App.R. 40, in which the Divisional Court (Auld LJ and Gage J) dismissed a claim for judicial review of a judge's decision refusing to stay proceedings sent to the Crown Court under section 51, holding that the decision was caught by the exclusionary words of section 29(3). In the course of my judgment, with which Gage J agreed, I considered the authorities summarised in this judgment and concluded that the Asil Nadir decision and the earlier Divisional Court decisions on which it was partly based and been overtaken by the broader reasoning of the House of Lords decisions in Ashton and the Manchester Crown Court case. I said, at paragraphs 48 and 49:

"48. In R v. Central Criminal Court, Ex Parte, Director of Public Prosecutions [1993] 96 Cr.App.R. 248, the Divisional Court held that a dismissal in the comparable procedure for transfer of serious fraud cases under the Criminal Justice Act 1987 was amenable to judicial review. As the editors of the current edition of Archbold observed at paragraph 7 – 9, the House of Lords in re Ashton expressed no view as to the correctness of that decision, though Lord Browne-Wilkinson in R v. Manchester Crown Court, Ex Parte, Director of Public Prosecutions [1994] 98 Cr.App.R. 461 at 467, said that the transfer provisions in the 1987 Act may be a possible exception to the general rule in re Smalley. With respect, I cannot see why that should be so, or in the closely analogous case of the sending provisions of section 51 of the 1998 Act.

49. I adopt and adapt the reasoning of the editors of Archbold 2002 at paragraph 7 – 9, in relation to transfer cases under the 1987 Act, that it is unlikely that Parliament intended, when it enacted such a streamlined procedure for the more speedy prosecution of indictable-only cases, that a defendant should be able to challenge rulings as to dismissal or stay by way of application for judicial review, with the possibility of a further appeal to the House of Lords, in addition to an appeal to the Court of Appeal in the event of conviction. And, in complex and lengthy indictable-only cases justifying a preparatory hearing under the Criminal Procedure and Investigations Act 1996, there is also a right of appeal against rulings made at such a hearing. In my view, the general rule in re Ashton is applicable to an application for dismissal or stay in sent cases."

The submissions

34. Miss Antoinette Mackeson-Sandbach, on behalf of the claimant, submitted that the decision of a Crown Court Judge, when considering an application to dismiss a charge "sent" to the Crown Court under the 1998 Act is analogous to a decision of magistrates when exercising their jurisdiction as examining justices, and that, therefore, a Judge's decision whether or not to dismiss is not an order in a matter relating to trial on indictment. She maintained that the "sending" by way of case management of cases to the Crown Court pursuant to section 51 of the 1998 Act could not have been envisaged when the 1981 Act, containing section 29(3) was enacted, and pointed out that Smalley and Sampson were decided before the enactment of the Criminal Procedure and Investigations Act 1996, section 51 of the 1998 Act and the Human Rights Act 1998. She maintained that both authorities were concerned with abuse of process applications, neither anticipating the section 51 procedure casting, she submitted, the Crown Court in the role of committing magistrates in indictable-only charges against adults. She noted the apparent readiness of the House of Lords in Ashton and Manchester Crown Court to concede the possibility that there might be special reasons for distinguishing the treatment for this purpose of dismissal applications under section 6 of the 1987 Act from abuse of process applications, and suggested that the same reasoning should apply to the closely similar provisions for dismissal applications under section 51 of the 1998 Act.
35. Miss Mackeson-Sandbach relied for the purpose on the Asil Nadir decision that dismissal of a serious fraud prosecution under the 1987 Act was judicially reviewable, which, she submitted, remained untouched by the House of Lords decisions in Ashton and the Manchester Crown Court case. She relied, in particular, upon the analogy drawn by Woolf LJ in Asil Nadir, at 952F-953D, between the proceedings under that provision and those of committing magistrates. She also drew attention to the requirement in paragraph 7(7) of Schedule 3 to the 1998 Act, where there is no indictable-only offence on an indictment (or it has been dismissed) and the proposed indictment contains an either-way offence, for the Crown Court to conduct the "mode of trial" procedure, a decision in such a procedure being judicially reviewable; see R v Haye [2003] Crim LR 287, CA.].
36. She submitted that, regardless of the now different position for abuse of process applications, section 51 requires a Crown Court Judge to assess the weight of the evidence prior to arraignment and that failure to conduct that assessment cannot be cured by the trial process, since it does not provide an early enough or otherwise sufficient remedy for an accused wrongly denied dismissal. She contrasted that disadvantage with the ability of the prosecution to apply for a voluntary bill of indictment where it is dissatisfied with a decision to dismiss.
37. Mr Perry prefaced his submissions on behalf of the Crown Prosecution Service by emphasising the importance of the underlying purpose of section 29(3) of avoidance of delay in the criminal justice process, as identified by the House of Lords. Put in its proper context, he said that paragraph 2 of Schedule 3 to the 1998 Act was concerned only with sufficiency of evidence for conviction on a trial on indictment, not with investing the Crown Court with the role of examining justices. In support of that proposition, he relied on the following characteristics of the sending for trial procedure: 1) section 51 of the 1998 Act provides that in the case of an indictable offence the accused shall be sent "forthwith to the Crown Court for trial"; 2) following the sending of a case to the Crown Court, the Crown Court is seized of the matter and of all decisions concerning the issue between the accused and the Crown, namely the decisions "relating to … [his] trial on indictment; and 3) the decision whether to dismiss the charge satisfies all three House of Lords "pointers" to resolution of such an issue, namely: i) it affects the conduct of the trial in the sense indicated by Lord Slynn in Ashton; ii) it is, as Lords Bridge and Slynn in Sampson and Ashton respectively indicated, an integral part of the trial process; and iii) it is an issue between the Crown and the accused arising out of an issue formulated by the charge. All of this, he submitted, is of a piece with the underlying policy of both section 29(3) and the new "sent" procedure, namely to reduce delay in the conduct of criminal proceedings in the Crown Court.
38. Mr Perry submitted that Miss Mackeson-Sandbach's argument to the contrary, could not logically stand with the non-reviewability of a decision whether to stay the proceedings as an abuse of process, as the House of Lords held in Ashton, or whether to quash an indictment, as held by the House in the Manchester Crown Court case. In so submitting, he noted that where, as here, an application to dismiss is coupled with an application to stay, it would curious for the former, but not the latter, to be judicially reviewable.
39. As to Miss Mackeson-Sandbach's argument based on the possibility under paragraph 7(7) of Schedule 3 to the 1998 Act of the Crown Court, on a dismissal application, finding itself, for one reason or another with no indictable-only offence remaining, and undertaking an either-way exercise, Mr Perry submitted that the argument does not, on analysis, bear scrutiny. Both the magistrates and the Crown Court have jurisdiction to try either-way offences. There is nothing anomalous about the fact that the High Court exercises a supervisory jurisdiction over a magistrates' court as a trial court but not over the Crown Court as a trial court. A magistrates' court is an inferior court and the Crown Court is a superior court. In Neill v North Antrim Magistrates' Court [1992 1 WLR 1220, the House of Lords held that committal proceedings were susceptible to judicial review, but relief should only be granted where there had been a material irregularity as a result of which the applicant had suffered real prejudice. In R v. Bedwellty Justices, Ex Parte Williams [1997] AC 225, the House of Lords held that a committal for trial by jury at the Crown Court was liable to be quashed in judicial review proceedings where there had been no admissible evidence before the justices of the defendant's guilt, or where the committal had been so influenced by inadmissible evidence as to amount to an irregularity having substantial adverse consequences for the defendant. Lord Cooke of Thorndon, with whom the other Law Lords agreed, made it clear, at 337D-E, that a complaint that evidence had been admissible but insufficient would be more appropriately dealt with at trial and that where a deficiency in committal proceedings may be cured in the trial process, for example, by cross-examining witness or making a submission of no case to answer, judicial review is not ordinarily available as a remedy.
40. Mr Perry submitted, therefore, that the rationale of the decisions in North Antrim and Bedwellty does not apply to an unsuccessful application to dismiss under the 1998 Act. The accused's remedy lies in the trial process by way of challenge of the prosecution case and submission of no case to answer. He said that it would be surprising if Parliament had also intended an accused to have a remedy by way of judicial review. Such a remedy would also be unsatisfactory. A claimant might succeed in having his case remitted to the Crown Court, it would then be for the Crown Court to embark again on the dismissal proceedings, by which time the evidence against the accused might well be different, for example, because a previously unavailable witness was now available. It is also necessary to consider the interests of any co-accused. It would be undesirable and contrary to the interests of justice, in a case involving several accused, for proceedings to be delayed pending a claim for judicial review.
41. Mr Perry also submitted that the second step in Miss Mackeson-Sandbach's argument is a non sequitur. The fact that the Crown Court is deciding whether "the evidence against the applicant would not be sufficient for a jury properly to convict him" does not mean that the Crown Court is performing the function of examining justices. The Crown Court is manifestly making a decision in a matter relating to trial on indictment.
42. In relation to the Asil Nadir decision as to the reviewability of a decision under section 6 of the 1987 Act, Mr Perry submitted that it had been wrong decided and could not survive the reasoning, in particular, the emphasis on avoidance of delay in criminal prosecutions, of their Lordships in Ashton, the Manchester Crown Court case and Kebilene. Finally, he relied on the decision of this Court in Salubi as a decision on the statutory regime in issue in this case.

Conclusions

43. In my view and with respect, the decision of this Court in Asil Nadir was already open to question when it was given, having regard to the "pointers" of the House of Lords in Smalley and Sampson respectively as to whether the decision affects the conduct of the trial and whether it is an integral part of the trial. Given the undoubted similarity of the procedures under section 6 of the 1987 Act and paragraph 2 of Schedule 3 to the 1998 Act, I am less diffident than I might otherwise have been in expressing the further view that the decision has been overtaken, and cannot stand with, the collective reasoning of their Lordships in Ashton and Manchester Crown Court. That conclusion underlay but was articulated only softly in Salubi. I do not consider that there is any materiality in the fact that, unlike in section 51 of, and Schedule 3 to, the 1998 Act, there is specific provision for an accused's interlocutory appeal under section 9(11) of the 1987 Act and section 35 of the 1996 Act. Nor do I consider that recourse to the advent to our law of Article 6 of the European Convention of Human Rights subsequent to the enactment of section 29(3) of the 1981 Act affects the present interpretation of that provision and the House of Lords' repeatedly expressed views that the trial process itself provides a sufficient protection to an accused under that Article. It is trite law that Article 6 is concerned with the trial process as a whole.
44. The reasons for my conclusion are much broader and more fundamental. They are as follows.

i) The clear underlying purpose of section 51 of, and Schedule 3 to the 1998 Act (and for that matter section 6 of the 1987 Act and section 53 of, and Schedule 6, to the 1991 Act) are to speed the criminal justice process, a purpose that Mr Perry rightly emphasised. As the Court said in Salubi, at para 16, the intention of Parliament in introducing the new 1998 Act procedure was to simplify and speed the procedure of transmission of all indictable-only cases against adults to the Crown Court to enable it to deal with preliminary challenges to charges of this seriousness, requiring it to dismiss the charge where, in the words of paragraph 2(2) of Schedule 3 to the 1998 Act, "the evidence against the applicant would not be sufficient for a jury properly to convict him". Thus, the argument advanced by Mr Perry, on behalf of the Crown Prosecution Service is consistent with that policy. The availability of judicial review would inject delay and uncertainty into proceedings in the Crown Court, which cannot have been the intention of Parliament. A claimant's remedies, in the event of failure of his application to dismiss, lies in the trial process, or, if he is convicted, on appeal to the Court of Appeal (Criminal Division).

ii) The exclusionary words of section 29(3), namely "in matters relating to trial on indictment" are themselves sufficiently broad, with or without the three "pointers" given by the House of Lords, to cover the 1998 Act dismissal procedure.

iii) Pace the ratio of the Court in Asil Nadir, the effect in law and fact of the 1998 Act (as also in the cases of the 1987 and 1991 Acts) is that, following the sending of a case to the Crown Court, it is seized of the matter and all decisions concerning the issue between the accused and the Crown, decisions that necessarily "relat[e] to … [his] trial on indictment".

iv) The decision whether to dismiss the charge also satisfies all three House of Lords "pointers" to resolution of such an issue, namely: i) it affects the conduct of the trial, that is, whether or not it proceeds, as Lord Slynn observed in Ashton, at 520C-D in relation to a decision on an application to stay for abuse of process; ii) it is, as Lord Slynn in Ashton, at 520D, also indicated, an integral part of the trial process; and iii) it is clearly an issue between the Crown and the accused arising out of an issue formulated by the charge.

45. Then there are the anomalies if the Court were to hold that decisions under the dismissal provisions of the 1998 Act are judicially reviewable. They are to be found whether or not I am right in concluding that the Asil Nadir case has been overtaken by the House of Lords' decisions in Ashton and the Manchester Crown Court case. If Asil Nadir were correctly decided, and, because of the similarity of the dismissal procedures under the 1987 and 1998 Acts, dismissal under the latter were also judicially reviewable, it would sit ill with the respective consequences of Ashton and the Manchester Crown Court case that decisions on applications for a stay for abuse of process or to quash an indictment are not judicially reviewable. As in this case, an application to dismiss may often be coupled with an application to stay the proceedings as an abuse of process arising our of the same or closely connected facts. On Miss Mackeson-Sandbach's argument, the High Court would have jurisdiction to review the Judge's decision in relation to dismissal but not in relation to abuse of process. That would be a curious result. If, on the other hand, Asil Nadir is now to be regarded as wrongly decided, it would be anomalous that, though applications to dismiss under section 6 of the 1987 Act would no longer be judicially reviewable, those under section 51 of, and Schedule 3 to, the 1998 Act would be.
46. There are other anomalies in Miss Mackeson-Sandbach's argument on this issue, to some of which she had no ready, reasoned answer in argument, and one at least of which she acknowledged. They are to be found in the provisions of paragraph 2 of Schedule 3 to the 1998 Act. Paragraph 2(2) contains the power in a Crown Court Judge to dismiss a charge and quash any corresponding count in any indictment preferred if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him. As I have said, Miss Mackeson-Sanbach's starting point was that that is analogous to examining magistrates' function and, therefore, is not a matter relating to trial on indictment. But what about paragraph 2(4) making the giving of oral evidence on an application to dismiss dependent on the judge's view that the interests of justice require him to do so? Miss Mackeson-Sandbach suggested that it was judicially reviewable even if the primary decision under paragraph 2(2) was not. And, as to paragraph 2(5) enabling a Judge to disregard any written evidence of a witness whom he has permitted or required to give oral evidence where that person has not done so, she volunteered, rightly in my view, that she could not argue that a judge's decision under it was judicially reviewable. Thus, within the dismissal provision of the 1998 Act there is the potential, even on the claimant's case, for some of the procedural decisions attending it to be judicially reviewable, and some not.
47. Finally, there is the legacy of the Asil Nadir case, if it were still good law, that a judge, in the exercise of his discretion in the grant of, or of leave to claim, judicial review, should only do so under the 1987 Act, and by necessary parity of reasoning under the 1998 Act, in an "exceptional" case. The effect of such legacy would be to subject the issue of the jurisdictional reach of section 29(3) to a judicial discretion reviewable only on Wednesbury grounds, albeit now more elastic than they were. On such an approach most 1991 and 1998 Act dismissal decisions would not be judicially reviewable, but some would be, according to where the line of exceptionability is drawn on a case by case basis. In my view, this question of jurisdiction cannot or should not depend on an exercise of discretion, even if sparingly exercised. It would also inevitably lead to applications straining to extend the bounds of exceptionability, generating much uncertainty and delay and appellate litigation in border-line cases, thus defeating the very object of the provision.
48. In my view, therefore, the claim should fail on the issue of jurisdiction; the Judge's decision under section 51 of, and paragraph 2 of Schedule 3 to, the 1998 Act not to dismiss the charge was an order "in [a] matter.. relating to trial on indictment".

The Merits

49. If I am correct on the issue of jurisdiction, the merits of the Judge's order do not arise for consideration, even on the limited basis suggested by Miss Mackeson-Sanbach that it is an exceptional case justifying the relief sought by way of judicial review. Nevertheless, lest the matter goes further, I shall deal with the issues that she has raised, though more shortly than I would have done otherwise.
50. I have referred briefly in paragraph 2 of this judgment to the nature and limits of the evidence on which the prosecution relied, essentially only that of Reynolds. From the unused material disclosed by the prosecution he was likely to be vulnerable to serious challenge as to his reliability if the matter reached trial. Miss Mackeson-Sandbach submitted to the Judge – and to this Court - that no jury could properly convict on his evidence, once its weaknesses, evident from the disclosed unused material, were deployed before them. She complained of the Judge's reluctance to consider the contents of the crime reports on the basis that they were not admissible evidence. And she complained of his refusal of an adjournment to enable consideration to be given to: 1) whether Reynolds should be called to give oral evidence; 2) requiring disclosure of material regarding his psychiatric state; and 3) calling psychiatric evidence as to his condition. Such refusals, she submitted, collectively amounted to a breach of natural justice on the particular facts of the case, and violated the principle of "equality of arms" enshrined in Article 6 ECHR.
51. In support of her submissions, Miss Mackeson-Sandbach referred to the available machinery provided by paragraph 2 of Schedule 3 to the 1998 Act and the Dismissal of Charges Sent Rules for seeking dismissal of charges where the evidence against an accused would not be sufficient for a jury properly to convict him. It includes the specific provision in paragraph 2(4) of Schedule 3 for a judge to permit an accused to adduce oral evidence "where it is in the interests of justice to do so". She also referred to the provisions in Rules 2(1)(a) and 2(6) requiring an accused, after service of copies of the prosecution evidence, to serve "any material" on which he relies and to state whether he will seek leave to adduce oral evidence, and to the provision in Rule 3 permitting him to serve with any written submissions "any statement, or other document and identify any other article on which … [he] relies". She maintained that the Rules, therefore, permit the defence to rely upon "material" and "other documents or articles" in support of its application which may not normally be regarded as admissible evidence. She also referred, in this connection, to Rule 4(5), enabling the prosecution to counter any application to dismiss with "written comments" or "further evidence" consisting of "copies of the statements or other documents outlining the evidence of any proposed witnesses", supporting, she maintained, her contention that the strict rules of evidence do not apply to the form of material relied upon in an application to dismiss. She suggested that such "material", where relevant, should be considered as part of the context, relying for this purpose on some observations of Stanley Burnton J in R (IRC) v Kingston Crown Court [2001] 4 All ER 721, at 728g to 729a, dismissing an application by the prosecution for judicial review of a Crown Court Judge's dismissal, pursuant to section 6 of the 1987 Act. But those observations did not go beyond saying that a judge considering a dismissal application should consider the evidence in its context and with the other evidence and give it what weight and draw such inferences as he considered right in determining whether it was sufficient for a jury properly to convict. He did not say that the context could be provided by other material not admissible as evidence.
52. Miss Mackeson-Sandbach maintained that, in any event, the crime reports from which all or most of the "material" upon which the claimant sought to rely in this case were a contemporaneous record compiled by officers in the course of their duties as to the steps taken in the investigation and, as such could have been admissible under section 24 of the Criminal Justice Act 1988. She added that, even if the entries in the crime report going to the mental state of Reynolds would not have been admissible under section 24, the entries could be relied upon, not for the truth of their content, but as to what Reynolds had said, namely as to his consistency or inconsistency.
53. In making these submissions, Miss Mackeson-Sandbach acknowledged that an important purpose of section 51 of, and Schedule 3 to, the 1998 Act was to reduce delay in the trial of serious cases in the criminal justice system. She said, however, that the provision for early prosecution disclosure in the new procedure, as part of the reduction of delay, was of importance to the defence in enabling it to investigate and to challenge by the dismissal process a prosecution where it is so weak that a jury could not properly convict on the evidence served in support of it. She maintained that the provisions do not permit a judge to ask a jury to perform the function he is required to undertake and that, "in exceptional circumstances" the court should intervene by way of judicial review to correct an irrational or otherwise unlawful decision.
54. Mr Perry, in response to those submissions, contended that the Judge's decisions on 30^th October 2003 and 5^th November 2003 were correct for the following reasons:

(i) the evidence served by the prosecution clearly established a case to answer;

(ii) the matters raised by the claimant are clearly matters to be dealt with in the course of the trial, in which both the claimant and his co-accused, Mark Williams will appear as Defendants;

(iii) the claimant has suffered no "demonstrable injustice" since the prosecution case may be tested at the trial and, if appropriate, a submission of no case to answer may be made at the close of the prosecution evidence.

55. As to Miss Mackeson-Sandbach's argument that the Judge should have taken into account "material" contained in the crime reports, although not in admissible form, when deciding whether the evidence against the claimant would be sufficient for a jury properly to convict him, Mr Perry made two points. First, as a matter of fact, the Judge, at the request of the defence, appears to have considered them, albeit with some unease as to the propriety of doing so, as his remarks in the course of his ruling indicate (see paragraph 4 above). Second, an application to dismiss is subject to the ordinary rules of evidence; any other conclusion would deprive such applications of their character as hearings to determine whether "the evidence against the applicant would be sufficient for a jury properly to convict him". This exercise can only sensibly be undertaken by considering what the jury might properly have adduced before them in due course.

Conclusions

56. In my view, there was no procedural irregularity or other illegality in the Judge's refusal to dismiss the charge on the prosecution evidence put before him, and certainly no violation of Article 6 in his decision to leave to the trial the signs in the admissible evidence and the other material before him (which he clearly considered) of potential weaknesses in Reynolds' evidence. It was conceded by Miss Mackeson-Sandbach that it could not be said that the Judge's refusal to dismiss in reliance on Reynold's section 9 witness statement, standing on its own, was unreasonable. Her essential complaints were twofold. The first was that he did not take steps in the light of the other material before him - admissible evidence or no - to equip himself better to undertake the task of predicting whether a jury could properly convict on that evidence once it had been tested in one way or another. The second was that he should have granted an adjournment with a view to him looking at whatever further admissible material it would yield. However, it was essentially a matter for his judgment whether to regard that exercise as one for the trial process itself. That process might require determination of questions of admissibility under section 24, or admission under section 25, of the 1988 Act of the contents of the crime reports. There was also the interest of the claimant's co-accused to consider, who might wish at trial to rely on Reynolds' evidence to support his case.
57. As I have indicated in paragraphs 16 and 17 of this judgment, those and other matters, as well as the manner of testing the reliability of Reynolds' identification of the claimant as one of his assailants, were all issues within the discretion of the Judge when ruling on the application of Miss Mackeson-Sandbach for an adjournment to enable her to consider further investigation of the matter. As I have also indicated, he clearly took into account for this purpose the contents of the crime reports. Accordingly, I could not say that, in acting as he did, he acted irrationally or otherwise unlawfully or, indeed, that this was so exceptional a case in Asil Nadir terms as to warrant judicial review if it had been available as a remedy. On the contrary, I consider that there is force in Mr Perry's comment that Miss Mackeson-Sandbach, whilst characterising the Judge as a committing magistrate for the purpose of the jurisdiction issue, appears to have sought to confer on him the role of judge and jury for the purpose of considering the issue of identification on its merits.
58. Accordingly, if I had to rule on the merits of the application, I would have dismissed the claim for judicial review.
59. However, as I have said, I would in the first place dismiss the claim for want of jurisdiction.

Mr Justice Richards

60. I agree.

Note 1   The Magistrates’ Courts (Amendment) Rules 2000    [Back]

Note 2   The Crown Court (Amendment) (No 3) Rules 2000    [Back]

Note 3   1998 Act, Sch 8, paras 65 and 93    [Back]