Van Hoogstraten, R. v

On Monday 8^th December 2003 we had before us an application by the prosecution for leave to appeal pursuant to section 35(1) of the Criminal Procedure and Investigations Act 1996. On behalf of the respondent/defendant Mr Geoffrey Cox QC submitted that the section does not apply to the decision of Sir Stephen Mitchell which the prosecution want to bring before this court. After hearing oral submissions we accepted that submission on behalf of the respondent for reasons to be given later, and we now give those reasons.

On 2^nd July 1999 Mohammed Raja was murdered in his home at Sutton, by two men who stabbed him five times and shot him with a sawn-off single barrel shot gun. The two men were Robert Knapp and David Terence Croke. They were convicted of murder at the Central Criminal Court on 19^th July 2002. They were jointly charged with the present respondent who, the prosecution contended, had ordered the killing of Raja or that he suffer really serious bodily harm. He was acquitted of murder, but convicted of manslaughter. He appealed against his conviction and on 23^rd July 2003, before another division of this court, that appeal was allowed, and the conviction was quashed. The reason why the appeal was allowed was that the trial judge had misdirected the jury as to what had to be established before they could convict of the offence of manslaughter. The direction he gave was said to be too wide, but the court directed that there be a re-trial in relation to that offence. It was not at the time suggested by anyone that there should not be a re-trial, so a fresh indictment was preferred on 8^th August 2003, and on 26^th August 2003, when the respondent was re-arraigned, the Common Serjeant ordered that there be a preparatory hearing before Sir Stephen Mitchell, sitting as a deputy high court judge, who was the nominated trial judge.

Thus the case came before Sir Stephen last month, and, as he put it in the judgment which he delivered on 2^nd December 2003, Mr Cox endeavoured to persuade him that this case should not proceed to trial. Because of the way that the case had come before the trial judge there was no possibility of an application to dismiss under the provisions of the Crime and Disorder Act 1988, so Mr Cox raised what he described as a more fundamental objection, namely that even if the prosecution was able to prove the facts it set out to prove, and which were conveniently encapsulated in a written “agreed basis of the Crown’s Case for the purposes of legal argument”, the jury would not in law be entitled to conclude that the defendant was guilty of manslaughter. The application made by Mr Cox was not technically a motion to quash the indictment, because there was no defect on the face of the indictment and the circumstances in which it might be possible to examine the evidence relied upon in support of the indictment in order to consider whether to quash it did not apply, but it was an application, Mr Cox submits, which, once made, had to be considered – not least because of the requirements of Article 7 of the European Convention on Human Rights and section 6 of the Human Rights Act 1998. It cannot be right to keep a man in custody and subject him to a long trial when even if the prosecution proves all the facts it sets out to prove he cannot properly be convicted of the offence with which he is charged.

Mr David Waters QC, for the Crown, did not seek to persuade the trial judge not to hear the application made by Mr Cox. Indeed he agreed that the issue raised should be decided, the position of the Crown being that it fell to be decided as part of the preparatory hearing ordered by the Common Serjeant.

Sir Stephen therefore heard submissions from both sides as to the effect of the decision of the House of Lords in Powell and English [1999] 1 AC 1 and a number of other authorities dealing with the liability of a secondary party for a criminal act which caused death. As Sir Stephen put it at page 4E of the transcript of his judgment, the liability of such a party –

“Depends now on whether he was a party with the primary offender to some initial joint venture and if he was, whether the relevant act of the primary offender was of a type foreseen but nor necessarily intended by the secondary party as a possible incident of the common unlawful enterprise. In other words foresight defines the scope of the joint enterprise. The criminal culpability lies in participating in the venture with that foresight.”

Mr Cox submitted that even if the prosecution could prove what they set out to prove Mr van Hoogstraten could not be liable in law for the act which caused death because it is not alleged that he contemplated that act. The submission is set out in the judgment at 26B –

“The act which caused death, so the argument runs, is an act of fundamentally different character from the act contemplated by Mr van Hoogstraten. The act which caused death was the deliberate discharge of a firearm deliberately aimed at Mr Raja. The act contemplated by Mr van Hoogstraten was the deliberate discharge of a firearm in circumstances which excluded the deliberate causing, by the use of the firearm, of any physical injury, let alone the deliberate causing of death.”

The prosecution relied on some authorities which, the court held, do not survive the reasoning of the House of Lords in Powell and English and at 42C Sir Stephen said –

“I have come to the conclusion that the application of the foresight test to the agreed facts of this case reveals that there is no basis upon which a jury could conclude that Mr van Hoogstraten contemplated the act which in this case caused death.”

For present purposes it is unnecessary to examine further in any detail the process of reasoning of the trial judge. After he delivered his judgment the prosecution sought leave to appeal. The judge had power to grant leave pursuant to section 35(1) of the 1996 Act if the ruling could properly be described as a ruling under section 31(3), that is to say a ruling made at the preparatory hearing as to a question of law relating to the case. He declined to grant leave or to quash the indictment, but on the basis that Mr Waters might be able to persuade this court that the ruling did fall within section 31(3) and that leave to appeal should be granted the trial judge gave the prosecution an opportunity to make the application which we heard.

In order to decide whether we have jurisdiction to hear the appeal which Mr Waters wanted to develop before us we have to look first at the relevant sections of the 1996 Act. We begin with section 29 which obtains the power to order a preparatory hearing. That section begins –

“(1)

Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing –

(a)

before the jury are sworn, and

(b)

for any of the purposes mentioned in subsection (2),

he may order that such a hearing (in this part referred to as a preparatory hearing) shall be held.

(2)

The purposes are those of –

(a)

identifying issues which are likely to be material to the verdict of the jury;

(b)

assisting their comprehension of any such issues;

(c)

expediting proceedings before the jury;

(d)

assisting the judge’s management of the trial.”

Section 30 states that –

“If a judge orders a preparatory hearing –

(a)

the trial shall start with that hearing, and

(b)

arraignment shall take place at the start of that hearing, unless it has taken place before then.”

Section 31, so far as relevant, provides –

“(1)

At the preparatory hearing the judge may exercise any of the powers specified in this section.

(3)

He may make a ruling as to –

(a)

any question as to the admissibility of evidence;

(b)

any other question of law relating to the case.”

Section 35 deals with appeals to this court, and so far as relevant it provides –

“An appeal shall lie to the Court of Appeal from any ruling of the judge under section 31(3), but only with the leave of the judge or of the Court of Appeal.”

If the statutory wording were new and we had no assistance from authorities we might find it difficult to resist the submission of Mr Waters which, in the context of this case, can be summarised as follows – a preparatory hearing was ordered, at that hearing Mr Cox asked for a ruling on what was plainly a question of law related to the case, the judge made a ruling, and therefore if we grant leave section 35(1) gives a right of appeal.

However, the statutory wording is not new. It derives from the Criminal Justice Act 1987 which made it possible to have preparatory hearings in cases involving serious and complex frauds, and over the years since 1987 this court has considered on a number of occasions the extent of the statutory right of appeal. It was common ground before us that there have been no significant changes in the statutory wording. In Gunawardena [1990] 91 Cr App R 55 at the preparatory hearing the defendants sought an order that the trial be stayed as an abuse of process on the grounds of unjustifiable delay. That was refused, as was their application for leave to appeal, both at first instance and in this court. Watkins LJ said at page 60 –

“In our judgment the words of sections 7, 8 and 9 themselves plainly demonstrate the object of Parliament in creating the preparatory hearing. It must have been, according to the language used, we think, the intention of parliament in introducing this novel procedure – novel in that it has not been introduced in respect of any other kind of criminal trial – to ensure that it be used for a specific purpose or purposes. It deliberately so enacted, in our view, the provisions of subsection (1) of section 7 in order to make it clear that it was creating this new and very valuable procedure for the specified purposes and no other.

We cannot bring ourselves to believe that Parliament can possibly, by using the clear words which they have used in sections 7 and 9, to allow a preparatory hearing to commence for a certain specified purpose have intended to permit, once a preparatory hearing for that purpose is in being, argument to range around all manner of issues which cannot be said to relate to any of the specified purposes.”

Gunawardena was followed in Moore, 5^th February 1991 unreported, where one of the matters considered at the time of the preparatory hearing was whether to quash a count of theft. At page 5 of the transcript Lord Lane CJ said –

“The fact that a possible incidental effect of the purposes of the application does find itself within those sub-provisions (a) to (d) is not one of the purposes of those provisions. It is the word “purpose” by which the situation is governed. In our judgment it is improper and misconstruction to redraft the wording so as to substitute some such word as “consequences” for the word “purpose”. So far as the motion to quash is concerned, it does not, in our judgment, come within those four sub-provisions. Basing ourselves on Gunawardena by which we are bound, and with which we respectively agree, in our judgment the prosecution’s argument succeeds. There is no jurisdictional basis upon which this Court can entertain the appeal.”

In Hedworth [1997] 1 Cr App R 421 the indictment was amended to take into account the decision of the House of Lords in Preddy [1996] AC 85, and at a preparatory hearing application was made to quash the amended indictment on the basis that the charges were not supported by evidence in the depositions or Notices of Further Evidence which had been served. That was refused, and in this Court counsel for the applicant submitted that once a preparatory hearing begins then all applications to the trial judge form part of it, and any order which he makes involving a question of law can be appealed. Alternatively, if it was necessary to identify a purpose within section 7(1) (for present purposes section 29(2)) then it was possible to do so. The court looked at the earlier cases to which we have referred, and also at Jennings [1994] 98 Cr App R 308 and Maxwell 9^th February 1995 unreported, and concluded that counsel’s first submission was wrong. At 430 E Evans LJ said –

“Two conditions must be satisfied before the Court of Appeal can have jurisdiction: first, there must be a issue of law, or evidence, within section 9(3); secondly, the order appealed from must have been made within the ambit of the preparatory hearing, that is to say within the scope of section 7(1).”

The alternative submission was rejected by reference to Moore and Maxwell and Evans LJ dealt with the need to show that the ruling said to be appealable was made for one of the purposes of a preparatory hearing as defined in section 7(1) of the 1987 Act (now section 29(2) of the 1996 Act). He said at 432B –

“We would hold, first, that the reference to ‘purpose’ comes from section 7(1) itself. It is not fruitful, in our view to consider whose purposes: meaning what subjective purposes the applicant or the court or any other person may have had. Section 7(1) is concerned with an application and a hearing and an order made on that application after that hearing. The purpose of the application or the hearing or the order is clear, or it can be derived, in our view from those facts alone; maybe this is saying it is an objective rather than a subjective test. No one can doubt what the purpose of an application or an order to quash one or more counts in an indictment is: it is to obviate the need for arraignment of the defendant on that count or counts and his trial thereafter.

Section 7(1), in our judgment, presupposes a valid indictment, the preparatory hearing is concerned with the applications and orders which will facilitate the trial of those charges. That we would call the scope or the ambit of the preparatory hearing. The purpose of an application to quash is diametrically opposed to that: it is to prevent the arraignment or the trial from taking place.”

The only other authority to which we need refer at this stage is R v W [1998] STC 550 where at a preparatory hearing it was submitted that the Crown Prosecution Service should be prevented from prosecuting where the Inland Revenue had enforced penalties against a tax payer. At 554C Rose LJ said that there was no jurisdiction to entertain an appeal. The defence application was “akin to an application to quash the indictment”. It had not been made at the time of the arraignment because at that stage no settlement had been reached with the Revenue. In the present case an application to quash might have been made prior to arraignment if Mr Cox had been instructed at that stage, and had obtained as particulars of the indictment the information set out in the Agreed Basis of the Crown’s Case. At 554e Rose LJ continued –

“As Moore shows, an application to quash is not within section 7(1): the fact that such an application may indirectly have one of the results identified in section 7(1)(a), (b), (c) or (d), does not mean that it is ‘the purpose’ of the application. We respectfully agree with Evans LJ in Hedworth that, as the reference to ‘purpose’ comes from section 7(1) itself, the matter has to be looked at objectively and the subjective purpose of the judge, the defendant or any one else is irrelevant.”

The court then cited the passage from the judgment in Hedworth at 432 which is set out above, and continued –

“Such was the purpose of the application in the present case. The judge’s ruling, although given in the course of a preparatory hearing, was not a ruling for any of the purposes identified in section 7(1) and accordingly there is no jurisdiction to entertain an appeal at this stage under section 9(11). We therefore refuse leave to appeal.”

Mr Walters submitted that the issue which the judge was called upon to decide was a matter of law within the scope of the preparatory hearing. He accepted that an application to quash the indictment would be outside its scope, but this, as Mr Cox conceded and the judge accepted, is not an application to quash. Manslaughter had not even been charged in the original indictment, but it had been left to the jury as an alternative, and as a result of their verdict it was the only alternative now available to the Crown.

Mr Waters further submitted that when considering the purposes of a preparatory hearing identified in section 29(2) of the 1996 Act this court should have in mind the overall purpose served by the application, not the subjective purposes of the defendant, or of the prosecution. The overall purpose in this case, he submitted, was to formulate the law as it applied to the facts of the case. That would greatly assist in preparing for and conducting the trial. That could be contrasted with the situation in R v W where the application made was really more like an application for a stay on the grounds of abuse of process, and should have been so regarded by this court. Such an application, Mr Waters conceded, would be outside the ambit of a preparatory hearing, but in this case the application, properly categorised, was within its ambit because of the effect that the ruling would have upon the conduct of the trial. That was not the case in R v W. The respondent, Mr Walters submitted, was wrongly categorising this application by reference to its result, whereas the right approach is to consider whether, before the result is known, the question of law being canvassed is or is not within the scope of the preparatory hearing. Otherwise there can be a distorted result, because if the decision goes against the Crown there will be no right of appeal, whereas if it goes against the defendant he may be able to take advantage of section 35(1).

Mr Waters also drew our attention to the decision of the House of Lords in the case of Shayler [2003] 1 AC 247 as to the availability of a defence upon which the defendant wanted to rely. The advantages of that issue being resolved at an early stage are spelt out by Lord Bingham at paragraphs 16 and 17 and Mr Walters submitted that the application in the present case was no more than the reverse side of the same coin. Ruling that a particular defence is not available may in reality bring a case to an end. That may also happen if an alleged confession is ruled admissible yet such a ruling is plainly within the scope of a preparatory hearing, which must aim to extract sufficient information as to the nature of the prosecution case to enable the court to identify issues of fact and of law. It must also identify objections, and issues of law which may be raised by the defence. The trial can then be focussed for the benefit of the jury. In order to preserve the integrity of the trial it is plainly desirable that all rulings made at a preparatory hearing should be capable of being tested on appeal, and the fact that a particular ruling is adverse to the Crown should not lead to a different result.

For the respondent Mr Cox submitted that a ruling in relation to the availability of a defence is different because it does not as a matter of law bring the trial to an end. It is still open to the defendant to put the Crown to proof of its case. The principle, he submitted, is that identified in Hedworth and R v W, namely that where, as here, the object of the application is to prevent the trial occurring then it is outside the scope of the preparatory hearing, and whichever way the ruling goes it cannot be appealed pursuant to section 35(1). In his skeleton argument before the trial judge Mr Cox made his position clear. He was not seeking guidance for the conduct of the trial. He was asking the court “to stay or quash the indictment”. If his application succeeded the proceedings had to be brought to an end. To prolong them would contravene Article 7, and that was in truth the purpose of the application, a purpose which on the authorities lies outside the scope of section 29(2). As Evans LJ said in Hedworth the subsection “presupposes a valid indictment”. It is, Mr Cox submits, of some note that there is no record of any case in which this court has entertained an appeal from a decision to bring a trial to an end. Referring again to what was said by Evans LJ in Hedworth Mr Cox submitted that section 29(2) is concerned with an application and a hearing and an order made on that application after that hearing, from which the purpose of the exercise will be clear or can be determined by means of an objective test. In the present case the purpose was clear. It was as the trial judge recognised at page 3e of the transcript, to persuade him that the case should not proceed to trial.

In our judgment the weight of authority is overwhelmingly in favour of the respondent’s submission that we have no jurisdiction to entertain an appeal against the ruling made by the trial judge because that ruling was not within the ambit of section 29(2) of the 1996 Act. In some ways that is a satisfactory conclusion because it seems to be common ground that if an attempt had been made to quash the indictment at arraignment (by means of a request for particulars followed by an application to quash), or if such an attempt had been made after the jury was empanelled, in neither instance would the Crown have any right of appeal. It would be, to say the least, odd if the right of appeal were to depend on when the application was made rather than on its substance. That may be an argument for saying that such rulings whenever made should always be reviewable on appeal by the prosecution as well as by the defendant, who at the present can appeal an adverse ruling at the end of the case. But the conclusion we have reached is plainly unsatisfactory in other ways. First and foremost the ruling which the trial judge felt compelled to make at the end of a careful and compelling judgment is a ruling which thwarts the interests of justice as identified by this court at the end of the appeal last July. Those interests require that Mr van Hoogstraten be re-tried for his alleged part in causing the death of Mr Raja. Because he has been acquitted of murder he cannot as the law now stands be re-tried for that offence. It is therefore of some importance for an appellate court to be able to consider whether the trial judge is right in his conclusion, because if he is then, as it seems to us, it is necessary to consider how justice is to be done in similar cases in the future. It may be that when a re-trial is ordered in the case of an appellant who has been convicted of manslaughter on a charge of murder the prosecution should be entitled, if they choose, to seek again a conviction for murder. Otherwise, as this case and other cases have shown, the prosecution is likely to be neutered by the partial acquittal, but that is a matter for Parliament and not for this court.

For the reasons we have given we are satisfied that we have no jurisdiction to entertain an appeal from the ruling made by the trial judge.