England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		27th January 2006

1. DY JUSTICE HALLETT: On 22nd September 2004, the complainant, SS, made allegations of rape, false imprisonment, sexual assault and threats to kill against the claimant. On 24th September 2004, the Greenwich Magistrates' Court sent the claimant forthwith to the Crown Court for trial on the charges pursuant to Section 51 of the Crime and Disorder Act 1998; ie with no consideration of the sufficiency of the evidence.
2. Under Schedule 3 2(1), of the Act, however, any person sent for trial under this procedure may, "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 charges to be dismissed." Regulation 2(2) provides, where relevant, that.

"The judge shall dismiss a charge (and accordingly quash any count relating to it) ... If it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him."

Provision is also made for the hearing of oral evidence at such a hearing in the following way. Regulation 2(4) reads:

"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."

Regulation 2(6) provides that, if any charge is dismissed, no further proceedings can be brought upon it, save by way of voluntary bill of indictment. The claimant's legal representatives at the time of transfer of the charges decided to seek the leave of the judge for oral evidence to be given by the complainant under Regulation 2(4) of Schedule 3 and to apply to dismiss the charges pursuant to Regulation 2(2) of Schedule 3 of the Act.

3. According to the witness statement from O's solicitor, Mr Dennis Clark, a solicitor very experienced in his field, the main reason for asking that the complainant give oral evidence was that the defence wished to test the accuracy and reliability of her recollection and her mental health. The complainant has admitted that she is a crack cocaine addict who has also abused alcohol. Mr Anelay QC conceded before us that, without the opportunity to explore the complainant's evidence in cross-examination, the application to dismiss was unlikely to succeed. The defence team in the Crown Court hoped to demonstrate by cross-examination that the complainant's account was so fundamentally undermined and her credibility was so poor, unsupported by other evidence, that it could not properly found verdicts of guilty and the charges should be dismissed. In accordance with the provisions of Regulation 6, the accused would then have been discharged immediately.
4. The applications for leave to call oral evidence and dismiss the charges were made to HHJ Hawkins QC, at the Central Criminal Court. He found against the claimant on both. He gave his reasons for refusing to allow the complainant to be called to give oral evidence on 1st April 2005 and on 11th May 2005 he gave his reasons for refusing to dismiss the charges. Although the matter was rightly described as urgent, the claim form was not issued, I note, until 5th July 2005. Davis J refused permission to bring Judicial Review on 7th July 2005. On a renewed application, this court gave permission on 14th October 2005. The claimant now with leave seeks Judicial Review of the decisions of HHJ Hawkins QC.
5. The central issue which arises for our decision is a simple one to state. It is as follows: Whether each of the rulings under review are "matters relating to trial on indictment" so that the provisions of Section 29(3) of the Supreme Court Act 1981 are engaged and this court is deprived of jurisdiction. Section 29(3) 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."

In this regard, we were referred to the decision of the Divisional Court in R (Snelgrove) v Woolwich Crown Court [2005] 1 CrAppR 18 DC. The claimant, Snelgrove, was similarly charged with an indictable only offence and was sent for trial by the Magistrates to the Crown Court under Section 51. Before an indictment was preferred, he sought the leave of the trial judge for oral evidence to be called as to the mental state of the complainant Reynolds. He too applied for the charge to be dismissed and this was on the basis that the only evidence against him came from Reynolds. The unused material revealed that he had made a number of inconsistent statements and had at one stage indicated an apparent willingness to allow the dropping of all charges. The trial judge refused both applications and Snelgrove claimed Judicial Review of those rulings.

6. Auld LJ, with whom Richards J, as he then was, agreed, undertook a comprehensive review of the authorities on the question of jurisdiction and the effect of Section 29(3). He considered in particular the decisions of the House of Lords in Re Smalley [1985] 80 Cr.App.R 205 and in Re Sampson [1987] 84 Cr.App.R 376. He also subjected the decision of this court in R v Central Criminal Court ex p Directors of the Serious Fraud Office [1993] 96 Cr.App.R 248 (Asil Nadir) to particularly careful analysis. This decision was relevant to the issue in Snelgrove because, in Asil Nadir, the court held that a decision to stay proceedings as an abuse of the process of the court was judicially reviewable prior to arraignment, on this occasion at the behest of the prosecution. Auld LJ noted, however, that in his judgment Woolf LJ, as he then was, emphasised that, having accepted the jurisdiction existed, he went on to hold that it should be exercised in exceptional cases.
7. However, Auld LJ's analysis of the authorities led him to the conclusion that the decision in Asil Nadir had been overtaken, as he put it, by decisions of the House of Lords in Ashton [1993] 97 Cr.App.R 203; [1994] 1 AC 9 and R v Manchester Crown Court ex p Director of Public Prosecutions [1994] 98 Cr.App.R 461. He adopted his own comments in R (Salubi and Ors) Bow Street Magistrates' Court [2002] 2 Cr.App.R 660, in which he expressed doubts that Parliament had intended, when attempting to provide a more streamlined procedure for serious offences, that a defendant could challenge by way of Judicial Review rulings as to dismissal or stay of proceedings, proceedings which themselves could be appealed elsewhere. At paragraphs 42 to 47, Auld LJ set out his conclusions and the reasons therefore. At paragraph 43, he said this:

"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."

8. Auld LJ went on to consider the anomalies that would arise were the Court to hold that decisions under the dismissal provisions of the 1998 Act are judicially reviewable. He observed that:

"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 out 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."

Auld LJ concluded that the claim failed on the issue of jurisdiction. The decision not to dismiss the charge under section 51 of and paragraph 2 of the schedule to the 1998 Act was "in a matter relating to trial on an indictment".

9. I do not need to rehearse for the purposes of this judgment other potential anomalies which were conceded before him because, on the face of it, Mr Anelay accepts that the decision in Snelgrove is against him and both the rulings to which he takes exception relate to trial on indictment. If so, this court, he concedes, would be bound to follow the reasoning in Snelgrove. However, Mr Anelay argued that the Divisional Court in Snelgrove was not faced with an argument as to whether or not Section 29(3) of the Supreme Court Act 1981 is compatible with Article 5(4) of the European Convention on Human Rights. Had the court had the benefit of such argument in Snelgrove, he submitted, the decision would have been different. He invited us to find that Snelgrove was wrongly decided and decided per incuriam.
10. Article 5.4 requires that:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

11. Counsel argued that there are a number of questions in considering the effect of Article 5(4): (1) Has there been an interference with Article 5(4)? (2) If so, is that interference in pursuit of a legitimate aim? (3) If so, is the working of Section 29(3) proportionate to that legitimate aim? (4) If Section 29(3) is not compatible with Article 5, is it capable of being interpreted or read down in a compatible manner pursuant to Section 3 of the Human Rights Act 1998?
12. Although not developed in oral submissions before us, it was further argued on the claimant's behalf that, if the court accepts jurisdiction, we should review the decision on the merits and on the basis that HHJ Hawkins took into account irrelevant matters or failed to take into account relevant matters in arriving at his decisions.
13. Counsel dealt at some length with the arguments rejected by this court in Snelgrove in written submissions. Without intending any discourtesy to counsel and given the time available for the preparation and delivery of this judgment, I will not rehearse those arguments in full, given the concessions made, but merely summarise them.
14. Mr Anelay emphasised the importance of pre-trial testing of the evidence on a criminal charge. He reminded the court that such a procedure is a fundamental safeguard in the criminal trial process. We were referred to the well-known decision in Brooks v Director of Public Prosecution [1994] 1 AC 568 and other decisions to similar effect.
15. Mr Anelay submitted that the application to dismiss hearing serves two purposes: first, to decide whether there should ever be an indictment upon which to arraign a defendant; and second, to determine whether there are sufficient grounds to detain an individual. Regardless of the bail risk a particular defendant may pose, he must be discharged and released from custody if the application to dismiss is successful on those charges for which he is detained; see schedule 3-paragraph 2(6)(b) of the Act. Consequently, he argued, there is a statutory mechanism by which the validity of an individual's detention on the evidence can be challenged, particularly where (as in O's case) there are statutory presumptions against granting him bail.
16. I cannot say more in this respect at this stage for fear of prejudicing the trial. Suffice it to say that Section 25 of the Criminal Justice and Public Order Act 1994 applies to O and the judge found that in this case there were no exceptional circumstances. In R (O) v Crown Court at Harrow [2003] 1 WLR 2756, the court held that Section 25 of the Civil Justice and Public Order Act 1994 can be read in such a way as to be compatible with Article 5. That decision is subject to an appeal or application for leave to appeal to the House of Lords. In the meantime we were not invited to depart from it.
17. Mr Anelay reminded the court that an accused charged with an offence triable either way may challenge the sufficiency of the evidence in the committal proceedings themselves and, if necessary, challenge the decision to commit by way of Judicial Review. Although he conceded that Articles 5 and 6 do not provide for appeal, he argued that an accused charged with a serious offence should have similar rights to argue for dismissal and to challenge any decision not to dismiss. Absent the right to challenge a refusal to dismiss serious charges where there has, for example, been a fundamental error, there is a breach of an accused's rights under the European Convention on Human Rights, in particular Article 5. Parliament he submitted cannot have intended to reduce the rights of an accused charged with serious offences, however laudable the aim to speed up the process.
18. He accepted that it is indeed a legitimate aim of the criminal justice system to bring cases on for trial as speedily as possible and he accepted that judicial review proceedings can lead to some delay. He argued, however, that the interests of justice dictate not only that an accused is tried within a reasonable time but also that poor cases are weeded out at the earliest possible opportunity and an accused discharged.
19. He submitted that in Snelgrove, the court placed considerable reliance on the delay factor and this ignored the fact that it is often the most serious matters that have significant delay in being listed for trial. We were reminded in written submissions of Parliament's decision to afford the prosecution a statutory right to appeal a judge's evidentiary ruling pursuant to Section 62 of the Criminal Justice Act 2003. This, it was said, will inevitably delay a criminal trial. Pausing there, it was pointed out in argument that such an appeal will not be to the Divisional Court, with possible applications to the House of Lords following, but it will be to the Court of Appeal Criminal Division. My Lord Jack J commented that he and I had dealt with an interlocutory appeal in a serious fraud case very recently. The ruling was given on 19th December 2005. We heard argument and gave judgment on Friday 13th January 2006 and the trial commenced on Monday 16th January. It was delayed by just one week by the appeal. The delay inherent in appeals to the Court of Appeal Criminal Division pre or during trial cannot therefore be equated with the delay inherent in judicial review proceedings.
20. In any event, counsel argued in written submissions that the timetable for the trial which is the subject of this application has not been affected in any significant way by the current application. Pausing there again, I beg to disagree. As I have already noted, the applications were made in the Spring of last year, 2005. These proceedings were not commenced until July 2005. Permission to bring them was initially refused but the application was renewed. Thus we are now dealing with applications made in the Crown Court many months ago. The accused is still waiting to be tried. The complainant is still waiting to give evidence. Counsel may seek certification to go to the House of Lords on a point of law. If successful he suggested that the trial could not proceed until the matter was disposed of finally by the House of Lords. On any view, a trial will not now take place until possibly May of this year, 2006. Unnecessary delays of that length are to be avoided, if at all possible, and the history of these proceedings is in my view a classic example of what the court in Snelgrove sought to avoid.
21. Further, in his attempt to demonstrate flaws in the court's reasoning in Snelgrove, Mr Anelay argued that an application to dismiss is in fact a test of whether there should ever be an indictment within the jurisdiction of the Crown Court. Until arraignment, the Crown Court is not seized of an indictment but simply a charge sheet; applications to dismiss must be made before arraignment. He argued that the fact that the prosecution are given a specific remedy in the event that charges are dismissed, namely proceeding by way of a voluntary bill, further emphasises that Parliament intended applications to dismiss to be subject to distinct rules from trials on indictment and to form a special class of their own. If the application to dismiss is successful, we were reminded, no verdict is entered in relation to charges, unlike a trial on indictment. Further he argued that the court in Snelgrove had interchanged the words "relating to trial on indictment" with "relating to the charges" when it concluded that Section 29(3) applies to applications to dismiss.
22. As I have already indicated, similar arguments were considered and rejected in Snelgrove, which binds this court, unless obviously wrong. So, without further ado, I turn to the argument upon which this application is based; namely the alleged incompatibility with Article 5, an issue not addressed directly in Snelgrove.
23. In written submissions, counsel criticised the court in Snelgrove for assuming, as it was put, that Section 29(3) is compatible with Article 6 the European Convention on Human Rights without expressing any real reasoning. Counsel conceded that in R v Canterbury Crown Court ex p Regentford Ltd [2001] HRLR 18, the Divisional Court concluded that Section 29(3) was compatible with Article 6 because Article 6 did not guarantee a right of appeal. But counsel argued that it did not follow that the same applies to the present situation. If a defendant applies to dismiss the charges against him (and hence to seek his mandatory release from custody) and that procedure is fundamentally flawed, it is submitted that he must have the right to challenge that procedure. We were reminded that Convention rights must be exercised in a manner that is practical and effective, not theoretical and illusory: Marckz v Belgium 2 EHRR 330.
24. If the hearing at which a challenge is made to the evidence which is being used to justify his continued detention is procedurally flawed to the obvious disadvantage of a defendant, counsel submitted that it is difficult to see how any prohibition of Judicial Review of that decision by the purported operation of Section 29 could be a practical and effective method of securing his Convention rights. Consequently, if Section 29 is potentially an obstacle to this application then it is argued that it is not compatible with Article 5 and should be interpreted in such a way that the High Court can review decisions that directly affect a defendant's liberty. This, it was said, would give O's right to liberty a practical and effective protection.
25. We were referred by Mr Anelay to the decision in Jecius v Lithuania App. No. 34578/97 in which the European Court of Human Rights considered the case of a Lithuanian accused of murder. The accused argued at every stage of proceedings that there was insufficient evidence against him and his detention was unlawful according to domestic criminal procedure and Article 5 of the European Convention. The domestic courts found that there was sufficient evidence at the early stage of the process but on a number of occasions they failed to deal with the question of the alleged unlawfulness of the detention. He appealed to the Lithuanian Court of Appeal and to an ombudsman. The Ombudsman found that his detention was unlawful but the Court of Appeal refused to intervene because it held that there was a statutory bar to an appeal against a "decision ordering, varying or extending a remand measure".
26. The European Court held, in paragraph 100 to 102 of its judgment that, although Article 5 does not in itself guarantee a right of appeal against decisions ordering or continuing detention, given the domestic court's failure to address the issue of lawfulness of the accused detention, which it was accepted was questionable, there had been a breach of Article 5. The accused had been denied the right to contest "the procedural and substantive conditions essential to the lawfulness of his detention on remand". The court referred to the decision in Brogan and Ors v United Kingdom, a judgment of 29th November 1988, series A no 145 B, but we have not been referred to it ourselves in the course of argument. I assume this is because, subject to any argument on Section 25 of the Criminal Justice and Public Order Act, no point is taken here as to the lawfulness of the arrest and detention. Further, we were referred to European jurisprudence to the effect that procedural limitations on the right of a detained person to challenge the lawfulness of his continued detention must "be subject to a particularly close scrutiny"; for example Shishkov v Bulgaria (App.No 38822/97.
27. Lawfulness in this sense, under Article 5 of the European Convention, does not simply mean, we were reminded, whether it is a detention in accordance with the law. The lawfulness also includes consideration of whether or not a detention is arbitrary. For that proposition, we were referred to Tsirlis and Kouloumpas v Greece [1997] 25 EHRR 198, paragraph 56. We were also referred to Van Droogenbroeck v Belgium [1982] 4 EHRR 443, paragraph 48 and R (Evans) v Governor of HMP Brockhill (No.2) [2001] 2 AC 19, 38. It is incumbent on the state to justify the lawfulness of the detention in the sense that it must establish it is not arbitrary. Arbitrary, counsel argued, must include those decisions which have been arrived at by taking into account irrelevant considerations or failing to take account of relevant considerations.
28. Article 5(4) itself requires a speedy determination of the lawfulness of detention. Clearly, therefore, Mr Anelay submitted to oblige the individual to remain in custody for any longer than strictly necessary falls foul of article 5(4). Again, we were reminded of the right to a court guaranteed by Article 5(4) and referred to in Shishkov v Bulgaria.
29. Further Section 29 itself was described in written submissions as an anachronism which did not pursue any legitimate aim in relation to matters that occur in the Crown Court prior to arraignment. It was said that there could be no legitimate aim, given the fact that an accused charged with offences triable either way has recourse to the High Court, but if Section 29 applies an accused charged with serious indictable only offences does not. If there was no legitimate aim, it was said there could be no question of proportionality.
30. If there did exist a legitimate aim, namely the speeding up of the criminal justice system, we were invited to consider the question of proportionality and the balancing exercise involved therein. We were reminded that Article 5(4) will aid those who are the victims of decisions arrived at in bad faith. Again, we were referred to Tsirlis and Kouloumpas v Greece. Counsel contended that there is no practical difference to a detained individual whether his detention was wilfully brought about in bad faith or achieved through arbitrariness. The fact remains that he has lost his liberty when, had the court taken account of the correct considerations, he may not have done. To prevent a speedy challenge to the decision-making process has resulted in lengthy continued detention which, on balance, is unjustifiable and therefore cannot be categorised as proportionate.
32. If we accepted jurisdiction, counsel sought in written submissions to argue the merits of the applications and relied particularly on the following matters: (1) SS had asserted in her police statement and her video interview that she could not see what had happened as rape; (2) that at one point she claimed she was "not sure what had happened"; (3) that she had lied about important evidence relating to her use of mobile phones; (4) that she had clearly had ample opportunity to leave the flat during her alleged false imprisonment and was even requested by O to do so in order to get some cigarettes from the upstairs neighbour, which request she refused; (5) that she had not reported the matter to the police in person, despite going to Catford police station nor had she reported the matter to the police on the telephone despite making about five calls to the police to report the fact that O had entered her flat; (6) most importantly, she accepted she was "out of her nut" on crack cocaine for large periods of time during the alleged offences.
33. Pausing there, I can accept, for my part, that all these matters may well prove fertile ground for exploration in cross-examination. They are, however, far from unique. It is my experience of cases of this kind that inconsistencies or contradictions of the kind alleged here are frequently apparent on the papers.
34. However, Mr Anelay argued that the fundamental unfairness in the approach adopted by the learned judge was to consider the defence submissions from the premise that, if he were to accede to the defence application to call her to test the matters to which I have just referred, then SS would have to give evidence twice. It was said the judge has both taken into account in considering the interests of justice irrelevant matters (that the witness would have to give evidence twice) and has wholly failed to take into account relevant matters, namely the application to dismiss could be successful if she were called. Furthermore, the judge, it was said, has ignored the fact that it is he who controls the cross-examination. If he feels that irrelevant matters are being put for the purpose of cross-examination or that the purpose of cross-examination is to intimidate the witness or that the cross-examination is going nowhere, he can put a stop to it as no longer being in the interests of justice.
35. In relation to the application to dismiss, counsel submitted in written argument that the learned judge made it clear in relation to this application that he was only considering pages 1 to 46 of the witness statements and the complainant's video interview with the police. None of the unused material, some of which comes from the complainant herself, was referred to by the learned judge in his ruling and counsel have argued that this substantially undermines the prosecution case.
36. In addition, the judge said at page 7F of the transcript of 11th May:

"In my view, it is important for me in considering a submission of this kind not to speculate as to how the complainant would survive cross-examination. That would be an unjust approach."

This, it was argued, lends weight to the defence application to call SS. Furthermore, it was submitted the learned judge was obliged to form a conclusion about this issue before deciding to reject the application to dismiss.

37. On behalf of the Crown Prosecution Service, Mrs May argued that there is indeed a statutory bar to the present proceedings as the rulings do relate to trial on indictment. She commended to us the observations of Auld LJ in Snelgrove, to which I have already referred. She submitted that the Divisional Court's interpretation of Section 29(3) in Snelgrove is compatible with Article 5(4) and, in simple terms, Article 5(4) has no relevance to the present ruling at all. She reminded us that in Snelgrove the court took the view that Section 29(3) is intended to prevent delay in serious criminal matters. The progress of such a case in the Crown Court should not be continually interrupted by applications to review a judge's decisions. This would seriously impinge upon the interests of justice. She argued that the new regime provides perfectly satisfactory remedies for those who have their cases transferred to the Crown Court. She submitted the remedies have not been reduced. Rather, she said, they have been realigned in pursuit of the laudable objective of providing a defendant facing serious charges with speedy access to the jurisdiction of the Crown Court and thence trial. This, she said, is a legitimate aim, one which is advantageous to a defendant and entirely proportionate.
38. She submitted that Section 29(3) and the dismissal procedure under Section 51 sit within a framework of statutory protection of a defendant's rights and interests, which includes not least the trial process itself. Beyond the trial process a defendant may appeal a conviction to the Criminal Division of the Court of Appeal. This may review decisions made during the trial . Far from being a defendant's one and only opportunity to test the charges and the evidence laid against him therefore, she argued, an application to dismiss is but the earliest opportunity to do so. She also rightly reminded the court of an accused's right to apply for bail.
39. She relied upon observations of Auld LJ in Snelgrove to this effect at paragraph 42:

"Nor do I consider that recourse to the advent of our law of Article 6 of the European Convention of Human Rights [right to a fair trial] 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."

She argued the position was the same in relation to Article 5(4) as there is considerable overlap between Article 6 and 5 in so far as the effect of Section 29(3) is concerned.

40. She conceded, as she must, that it is well established that Convention rights must be exercised in a manner that is practical and effective not theoretical and illusory. However, that in itself does not render the Snelgrove interpretation of Section 29(3) a violation of Article 5(4). She submitted the dismissal procedure provides the claimant with a right that is practical and effective. She also reminded us of the fact that there is no requirement or guarantee by Article 5 that there must be a right of appeal or review of each and every decision relating to an accused deprived of his liberty during the early stages of his detention prior to trial.
41. I turn to my conclusions. Without wishing to do any injustice to Mr Anelay's arguments, I can deal with his submissions relatively shortly. I can do so because his arguments were dealt with substantially in Snelgrove and rejected by this court. For my part, I see no reason to depart from that decision. I do not accept that the fact that the court in Snelgrove does not deal specifically with Article 5 means that the conclusions are flawed and should be ignored.
42. Article 5 requires a speedy determination by a court of the lawfulness of an accused's detention. The purpose of Article 5 is to ensure that no-one is deprived of their liberty in an arbitrary fashion. Counsel did not suggest that this claimant was deprived of his liberty in an arbitrary fashion. He does not argue that on the papers there is not a sufficient case to justify his detention and to justify the matter proceeding to trial. The applications before the learned judge were not applications designed to contest the lawfulness of the claimant's detention.
43. Mr Anelay's argument is based on the assertion that the refusal to hear oral evidence was an arbitrary decision. Without oral evidence, the accused was denied the opportunity to test the complainant's evidence and undermine it. The application to dismiss was accordingly doomed and the accused remains in custody. Therefore, he submitted, this court must retain the jurisdiction to review what might have been an arbitrary or fundamentally flawed decision because that decision has affected the claimant's continued detention. He is forced to advance the argument in this way because, without the aid of Article 5, Snelgrove closes the door on any application to review a refusal to dismiss. With the greatest of respect to Mr Anelay, who said all that could be said to advance the argument, this is in my view plain nonsense.
44. Section 29(3) and the dismissal procedure for matters sent to the Crown Court under Section 51 do not, as Mrs May argued, exist in a vacuum. They sit within a framework of statutory and common law protection of a defendant's rights and interests. First and foremost, there is the jurisdiction of this court to entertain applications to review the lawfulness of an accused's detention. The fact that Section 29(3) prohibits applications for Judicial Review in matters relating to trial on indictment does not mean that an accused unlawfully detained is without remedy. He has remedies at common law. The accused has no recourse to such remedies here because he simply has no grounds. As the law stands, he was lawfully arrested and lawfully detained.
45. Further, the detained person has the rights accorded to him by various statutes. Subject to the operation of Section 25 of the Criminal Justice and Public Order Act, there is a custody time limit regime which prescribes a strict timetable for the completion of each stage of the proceedings up to the start of a trial at the Crown Court. Those limits can only be extended by order of the court.
46. There is also the Bail Act 1976, which provides for most accused a general right to bail. An accused may apply to the court for bail at any stage of the process. Alleged insufficiency of evidence, in my experience, is often relied upon by advocates to support their application. It is not suggested that there is any unreasonable delay in listing and determining bail applications. The accused therefore has and had a specific right of speedy access to the courts if he wished or wishes to contest his detention. I accept that this accused has an additional hurdle in that he faces the statutory presumption in Section 25 of the Criminal Justice and Public Order Act but I note that the presumption is rebuttable in exceptional circumstances. In any event, we were not addressed upon the operation of Section 25 and the question of whether or not Section 25 itself offends Article 5 is not for this court. We must act on the basis that it does not.
47. Under the Section 51 procedure, cases are sent for trial extremely quickly; I note here within days of the allegations being made. Once it arrives at the Crown Court, a Crown Court judge becomes seized of the case and any matters of concern as to the continued detention of the accused can be brought to that judge's attention as they were here when the custody times limits expired or were about to expire. Any alleged malpractice on the part of the prosecution can be put before the court by way of an application to stay the proceedings as an abuse of process. All these mechanisms in my view provide an accused and detained person with the right to challenge the lawfulness of his detention and a speedy determination of that challenge in accordance with Article 5.
48. The fact that, according to Snelgrove, Section 29(3) prohibits review by this court of dismissal decisions under Section 51 has not, in my view, deprived the accused of the right to contest the procedural and substantive conditions essential for the lawfulness of his detention. This is the principle I derive from Jecius v Lithuania. This accused not only had that right but he exercised it. The fact that he was denied the opportunity of cross-examining the complainant and the fact that he cannot appeal that ruling at this stage of proceedings cannot in my judgment possibly amount to a breach of Article 5, concerned as it is with the lawfulness of the detention.
49. Nor can the fact that an accused sent for trial under Section 51 has different rights from an accused charged with an offence triable either way amount to a breach of Article 5. An accused facing serious charges may have lost one avenue of review open to others but he has available to him an early review by a Crown Court judge which is not open to an accused charged with an either way offence. Thus he has the benefit of a system of review by a judge authorised to sit in a superior court of record at a much earlier stage than the accused committed by a Magistrates' Court. Any decisions of that judge are of course reviewable by the Court of Appeal Criminal Division by way of an appeal against conviction, if necessary, in the usual way. I do not accept that it follows from the fact than an accused must wait until conviction, if there is one, before being in a position to challenge the judge's evidential ruling and rulings on a dismissal charge that this means there has been a breach of Article 5. For my part, I am satisfied that this was the normal trial process taking its course.
50. Neither Article 5 or 6, it should be remembered, provides for a review or appeal let alone an interlocutory appeal on evidential and dismissal rulings. Although initially Mr Anelay appeared to rely upon the Jecius v Lithuania decision to support his proposition that Article 5 does in fact require an early review by a higher court of a lower court's decision, I do not understand that to be the basis of the decision. The European court held that the Lithuanian domestic courts had at every stage failed to provide a proper remedy to the accused. Despite the fact there was good reason to believe he might be detained unlawfully, he was denied a speedy determination or indeed any determination of the lawfulness of his detention. In this country there should be systems in place to ensure that that situation does not arise. The court, in any event, specifically held that Article 5 does not guarantee a right of appeal.
51. I respectfully agree with the court in Snelgrove, therefore, that removing an unnecessary layer of Judicial Review by virtue of Section 29(3) is a totally legitimate and proportionate response by the state to prevent unnecessary delays to the trial process in serious cases; it in no way violates any of the provisions of the European Convention on Human Rights. In my judgment, Snelgrove remains good authority for the proposition that the rulings sought to be reviewed here did arise from matters relating to trial on indictment and are therefore outside the jurisdiction of this court.
52. For the avoidance of doubt, I should add that I have considered the application for leave to call oral evidence and to dismiss the charges on their merits. Firstly, I see considerable force in Mrs May's submission that the wording of Regulation 2(4) leads to a presumption against giving leave for oral evidence to be called unless the interests of justice require it. Unless judges apply the test appropriately, the legitimate intention of Parliament to prevent the repeated and often unnecessary calling of witnesses will be thwarted. Any accused in a similar case, where there is a vulnerable complainant, may apply for dismissal and insist on contesting a complainant's evidence through thorough cross-examination at that stage. In my view, not only would this cause undue delay to the trial process, it would importantly, in cases where the charges are not dismissed, expose a complainant to the stressful and unnecessary ordeal of being subjected to cross-examination on two occasions. I accept the force of Mrs May's argument that this practice may well discourage alleged victims of serious crimes, who are often very vulnerable individuals, from pursuing a legitimate complaint.
53. For my part, I would therefore reject the complaint that the judge took account of the fact that SS would have to endure cross-examination twice if the dismissal application failed but only once if it succeeded. This was a statement of the obvious and, in my view, a proper factor to take into account in deciding where the interests of justice lay, particularly given the very full account of the complainant here had given on tape.
54. Mrs May rightly, in my view, reminded the court that the complainant underwent a lengthy video interview. The questioning of her by the police covered many of the topics which the defence wished to explore in cross-examination. She had made no secret of her lifestyle. She herself had provided much of material upon which the cross-examination was to have been based. Given the availability of the video recording and the full transcript of the interview, the defence team was in an excellent position to present and argue their points to the extent necessary for a dismissal hearing. The judge decided, in my view, correctly that he was well able to perform the task before him on the basis of the written and video material. There was simply no need in the interests of justice to call SS at this stage. The fact that the complainant may have appeared inconsistent, hesitant or had even retracted an allegation does not mean that counsel should be allowed a free hand to cross-examine her on all aspects of her evidence at the dismissal stage, as counsel appears to have suggested here.
55. I do accept that it is significant that counsel made no attempt to limit the cross-examination proposed. It was to be wide-ranging and probing, no doubt of the kind usually conducted during a trial. Whatever the powers of a judge to control cross-examination (of which I am confident a very experienced judge like HHJ Hawkins was well aware) the fact is that such cross-examination could not be justified.
56. Indeed, I note, as invited to do by Mrs May, that specific points raised by the claimant about SS's background and reliability echo the complaints made in Snelgrove on the application to dismiss. There the prosecution case depended entirely upon the evidence of the complainant Reynolds, who too had made previous inconsistent statements and a withdrawal statement. He was, in fact, contradicted by the evidence of another witness. He appeared to suffer from mental illness yet this court found that the judge's decision in refusing leave for oral evidence relating to Reynolds and to turn down the application to dismiss was, in all the circumstances, properly within the exercise of the judge's discretion.
57. Thus, far from the judge's decision being arbitrary, for my part I am satisfied that, on the material before him, the judge's refusal to give leave to the complainant to be called was well within the legitimate bounds of his discretion. He took into account all the relevant matters and did not take into account irrelevant matters.
58. Given Mr Anelay's concessions, I can deal with the refusal to dismiss the charges very briefly. I agree with Mrs May's submission that the evidence served by the Crown clearly established a case to answer on all charges. The matters raised by the claimant will no doubt be fully explored at trial before the jury. It is far from uncommon, as I have indicated, that a complainant's account may vary from time to time. It is far from uncommon, sadly, that a complainant may be a drug addict. But where, as here, the evidence established a clear case to answer, these are matters for the trial process. Those matters relied upon by counsel, to which I have referred in summary, do not in my judgment so fundamentally undermine the prosecution case that it should have been stopped in its tracks before even reaching the jury.
59. I accept that the documents served as unused material by the Crown may well prove useful to defence counsel for the purposes of cross-examination and no doubt the complainant will be pressed upon them. However, that does not mean that the judge was obliged for the purposes of the dismissal hearing to embark upon a detailed critique of the unused material. He was obliged to take an overview of the case as presented to him and to decide whether the prosecution case, taken at its highest, would allow a properly directed jury properly to convict. This he did. I therefore again reject the assertion that the judge's decision was in any way arbitrary or took into account irrelevant matters or failed to take into account relevant ones.
60. If the two rulings were open to review, as suggested by Mr Anelay, he would have to satisfy us that the judge has exceeded the generous ambit of the discretion granted to him. This, in my judgment, he has failed to do and this is an attempt to relitigate his rulings in the wrong forum and at an inappropriate time. This is not an exceptional case by any means and, if I had the jurisdiction, I would not interfere with the judge's rulings. It would not be in the interests of justice to do so, interests which it has often been said include the interests of the prosecution and the interests of the public. These are serious charges and they should proceed to trial as soon as possible. Every attempt must be made, in the interests of all concerned, to list this case on the first available date.
61. For those reasons, in my judgment this application for Judicial Review must fail.
62. MR JUSTICE JACK: I agree. For the reasons that have been given, this application must fail and I am grateful to Lady Justice Hallett for setting out of the circumstances giving rise to the application and the submissions of the parties.
63. The application seeks to persuade this court that the decision in Snelgrove was wrongly decided because no account was there taken of the applicant's rights under Article 5(4) of the European Convention on Human Rights. The argument has to be that, if Section 29(3) of the Supreme Court Act 1981 bars this court from reviewing the decision of the judge not to permit the cross-examination of the complainant, then that is a breach of the applicant's rights under Article 5(4). I need not repeat the terms of the Article.
64. In my view, the argument is wholly misconceived. There are essentially two reasons. First, the inability of this court to review the judge's decision can in no way be described as preventing the applicant from taking "proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful" (the words of the Article). The judge was not concerned on the application to dismiss with the lawfulness of the applicant's detention. He was concerned with deciding whether the proceedings should be dismissed on the ground that it appeared that the evidence would not be sufficient for the jury properly to convict the applicant and, ancillary to that, he was concerned with whether the complainant should be required to give evidence for that purpose. He was not concerned with whether the applicant was lawfully detained.
65. In accordance with R v Crown Court at Harrow [2003] 1 WLR 2756, plainly he was lawfully detained. Neither would this court be concerned with whether the applicant was lawfully detained. It considered an appeal from the judge's decisions. The ambit of Article 5(4) is sufficiently demonstrated by the judgment of the European court in paragraph 100 of its decision in Jecius v Lithuania App.No 34578/97, a judgment delivered on 31st July 2000. It was there stated:

"The Court reiterates that Article 5(4) of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the 'lawfulness', in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention ..."

The case of Brogan and Others v the United Kingdom [1998] ECHR 24, a case concerning legislation in Northern Ireland enacted to deal with the terrorist threat, is then cited by the European Court. Brogan was a further example of the proper ambit of Article 5.4.

66. The second reason why this application is bound to fail is that, as had been stated, Article 5(4) does not guarantee a right of appeal against a judicial proceeding to decide the lawfulness of a person's detention. To continue to read from paragraph 100 of the Jecius decision:

"Article 5(4) guarantees no right, as such, to an appeal against decisions ordering or extending detention, as the provisions speaks of 'proceedings' and not of appeals. In principle, the intervention of one organ satisfies Article 5(4), on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question."

67. It is accepted that this court is bound by the decision in Snelgrove, subject to the Article 5(4) point. Nonetheless, Mr Anelay quite properly outlined his argument for suggesting that the decision was wrong. In my view, the position as to the application of Section 29(3) of the Supreme Court Act 1981 to the circumstances here can be stated in this way: when the Crown Court embarked on the application to dismiss, it was exercising the jurisdiction which it had because, and only because, if the case proceeded there would be a trial on indictment. It is thus right to say that the dismissal proceeding was a matter relating to trial on indictment. I further fully accept the reasoning and analysis of the authorities contained in the judgment of Auld LJ in Snelgrove.
68. I agree that this application for Judicial Review should fail.
69. LADY JUSTICE HALLETT: Mr Anelay, is here anything you wish to say today?
70. MR ANELAY: Well, I have overnight drafted points which obviously I probably need to consider further. My Lady, may I just hand up what I have provisionally drafted and I give a copy to my learned friend as well. (Handed)
71. My Lady, point 1 is obviously to deal with the position in Snelgrove. I drafted it in the way that I did because it seems to me that any question has to relate to the applications which were the subject of this application. I am conscious of the fact that in Snelgrove they talk in broad terms about the dismissal procedure but, of course, there is a specific provision under that procedure (for example, if the application to dismiss is successful) for the Crown to have a right to seek leave to prefer voluntary appeal of indictment. Therefore, as they have an alternative remedy, it may be said that Judicial Review, in any event, would not be available to the Crown, although it might be. Therefore, it may be that this point needs to be drafted rather more broadly, so that it covers any decision under this particular part of the legislation, rather than simply confining it, as I have done, in particular to dismissal decisions not to dismiss the charges and not to grant leave of all remedies.
72. LADY JUSTICE HALLETT: Reading it through, you seem to me to have admirably encapsulated the arguments advanced in this case. The only question is you are saying whether or not they --
73. MR ANELAY: Well, it is a question as to whether it is too narrow. This is the point of law and general public importance. But I have tried to hone it down as much as possible to the --
74. LADY JUSTICE HALLETT: So what are you asking? Would you like further time to consider whether you would wish to --
75. MR ANELAY: Well, my lady, I am conscious of the need to avoid delay. Your Ladyship, of course, has -- I think I got the quote from the White Book. There is no appeal, of course, to the House of Lords unless the court certifies a point of law of general public importance is involved in the decision of the lower court and it appears, to that court or to the House, that the point is one which ought to be considered by the House. I do recall a case where I was for the prosecution against Mr Turner, a case called Price, where I think my Lord Mr Justice Jack granted leave to appeal in that case. It was a Randall case, about the effect of evidence which had been adduced by one co-defendant against another as a result of bringing up incidents of bad character, as to whether it was then, once it was in the case, whether it could avail the Crown as well. As Lord Steyn said, in paragraph 35 of Randall, that, for the avoidance of doubt, in effect -- I paraphrase -- the essential purpose is for the Crown to rely upon it. I know that Mr Turner asked the court in that case, which was presided over by Hooper LJ, to certify £5.
76. LADY JUSTICE HALLETT: It sounds like Mr Turner.
77. MR ANELAY: Well, I supported him, probably for the wrong reason, but I supported the certification of points, although I do accept that that particular case has probably been overtaken by the provisions of the Criminal Justice Act 2003, although it has given rise to a number of cases and I noted with interest the running commentary in the Criminal Law Review, which seems to be swinging round to the fact that Crown Court might after all intervene in Price. But that is another story. The point that I was coming to was the fact that the court refused to certify the points in that case because they felt there was a broader issue that they did not need to be certified, that is it was not in the public interest for them to certify; it had been clearly determined in the case of Randall.
78. In this particular case, I am conscious of the fact that, if we were successful in an appeal to the House of Lords and the House held that Judicial Review was available in this particular case, it would then send the case back to the Divisional Court for the Divisional Court to exercise its power of jurisdiction in the light of that ruling. Your Ladyship and your Lordship have already indicated that, on the merits, you would not Judicially Review the case and therefore it could be argued that any appeal would be somewhat academic. I have to recognise that. On the other hand, it would be important for the profession and for the public to know for certain that the dismissal procedure was a matter related to trial on indictment as was found in Snelgrove, and as your Lordship and your Ladyship have also followed, to put the matter to rest. Indeed, I am not going to rehearse the arguments that we have put forward again but we do say, in a nutshell, that this procedure is not a matter which relates to trial on indictment akin to the committal proceedings, that it is before any arraignment, the indictment does not become irrelevant until this application has been determined. For that the reason, it should be declared to be a matter not relating to trial on indictment that is different from a stay or for abuse of process, as I argued yesterday. Those would be my reasons for submitting that the court should certify a point of law of public importance.
79. LADY JUSTICE HALLETT: As far as the profession is concerned, unless someone comes up with another ingenious argument in relation to another article of the European Convention, the matter would be laid to rest, would it not? It is stretching the point you are trying to argue on Article 5.
80. MR ANELAY: Well, we have frankly acknowledged -- as your Ladyship said yesterday, and I am sure there is an element of truth in it. There always is when your Ladyship says anything. But, leaving that aside --
81. LADY JUSTICE HALLETT: Just as element, Mr Anelay?
82. MR ANELAY: Well, substantial. Well, the point is that we are faced with Snelgrove being against us and the court, of course, Scott Baker LJ and Owen J, would not have granted leave to make this application if they had not felt that Article 5(4), albeit your Ladyship has it as nonsense, was nonetheless a legal argument.
83. LADY JUSTICE HALLETT: Yes, well, sometimes we all make decisions without having had the benefit of full argument. So, you are now happy to put in --
84. MR ANELAY: Well, I am happy to -- obviously I could make a written submission in support of it but I do not think that I could really add anything to those points which I made yesterday and which I have tried, perhaps helpfully, to summarise this morning.
85. LADY JUSTICE HALLETT: Well, for my part, it seems to me that what you have drafted (a) in fact not only encapsulates the arguments that you have here, but (b) is sufficiently broad to cover Snelgrove, which is really the task in hand.
86. MR ANELAY: Absolutely. You are right. I mean, the Article 5(4) point becomes, to some extent, subsidiary on any appeal to the House of Lords. I put that in for completeness but, I mean, the whole point of any appeal to the House of Lords, subject obviously to a certificate, would be to say that Snelgrove is wrong and that the dismissal procedure should be susceptible to Judicial Review. But they are not and that relates to trials on indictment. Is that the substance of --
87. LADY JUSTICE HALLETT: Thank you, Mr Anelay. We will retire to consider the application.
(A Short Break)
88. LADY JUSTICE HALLETT: I am sorry, Mr Anelay, we decline to certify the points of law you put before us. There are two grounds: firstly, to consider that Snelgrove has plainly decided that the Article 5(4) point was without merit; secondly, we have, as you have reminded us, expressed our view on the merits of the application. If there were jurisdiction, then the question of any appeal would be academic.
89. MR BARRY: I am much obliged, my Lady.
90. MR ANELAY: My Lady, may I ask for Legal Aid Taxation of the applicant's costs? I understand that is the correct order to ask.
91. LADY JUSTICE HALLETT: Well, we will make the order in whatever the correct terms --
92. MR ANELAY: My Lady, if this case was to be reported, it would be appropriate that it be reported under the letter O rather than [the actual name].
93. LADY JUSTICE HALLETT: Yes, I think that, because of Section 25, I suppose it is going to have to be for the time being. Is that right, Mr Barry? I tried not to say anything in the judgment.
94. When will the application in relation to this character be dealt with?
95. MR BARRY: It is due to be dealt with at the beginning of the next month.
96. MR ANELAY: As I understand, my Lady, the case is listed for mention on the Monday in the Central Criminal Court.
97. MR BARRY: That is correct, my Lady. Yes. The mention is listed for 6th February.
98. LADY JUSTICE HALLETT: I think it better be reported as O for the time being but, plainly, once the matter is resolved --
99. MR ANELAY: Oh, indeed. I just felt, for the time being, it would be appropriate.
100. MR JUSTICE JACK: If the reporters later check the position, it might emerged from O and become [the actual name].
101. LADY JUSTICE HALLETT: Well, both this one and the Harrow case might. Just as a point of interest, the Harrow case is different to -- is that the previous conviction for rape?
102. MR BARRY: One of.
103. LADY JUSTICE HALLETT: One of?
104. MR BARRY: And it is one of the matters which is the subject of the bad character applications in this case.
105. MR ANELAY: Happily, my Lady, I will not be privy to a lot of the history of O.
106. LADY JUSTICE HALLETT: The only matter, we would say -- or I certainly wish to say -- is that, when the matter is listed on Monday, Mr Anelay, you plainly will not be there.
107. MR ANELAY: Yes, I am not briefed on that aspect of case.
108. LADY JUSTICE HALLETT: Can we ensure, please, that strenuous efforts are made to get this matter tried as soon as possible? I do appreciate that obviously O would like to have Mr Turner representing him but there has to come a time when this matter comes on for trial and somebody has to put pressure on the court, at the Old Bailey, to get it on as quickly as possible. It will be HHJ Hawkins on Monday, will it?
109. MR BARRY: Yes.
110. LADY JUSTICE HALLETT: If somebody could inform him that we are exceedingly concerned that this matter is listed fo