R. v Crown Prosecution Service, Re Interlocutory Application

THE VICE PRESIDENT: This case comes before the Court during the vacation by way of a purported interlocutory appeal by the Crown, with leave of the trial judge, under section 35 of the Criminal Procedure and Investigations Act 1996. The four defendants, to whom we shall refer as A1, A2, B and M face a 32 count indictment.

The allegations include conspiracy to launder the proceeds of crime, tax evasion, mortgage fraud and fraudulent trading. It is not in dispute that the case is of a kind for which a preparatory hearing was appropriate within section 29(1) of the Act. The trial judge gave directions which included, initially, fixing the trial for September 2004.

The prosecution, in response to a defence request, disclosed the authorities for audio surveillance of premises where A1 and A2 lived, which, it was said, might have supported an application based on abuse of process.

The September 2004 date of trial was broken by the judge. Even now defence case statements have not been served by any defendant other than M.

At a pre-trial hearing in July 2004 the judge ruled that the prosecution must transcribe the whole product of a listening surveillance probe which consisted of 15,000 hours of recording. The only transcript, at that time available and served, was of some 20 hours on which the prosecution wished to rely.

In March 2005 the defendants, who had by then indicated that no abuse argument would be pursued, were arraigned. At a preparatory hearing in May 2005, the judge rejected the Crown's submission that the subsequent provision to the defence of searchable hard copies of the monitor's notes and the secret service summaries of 40 per cent of the surveillance and 9 non-searchable hard drives of the entire product gave rise to a material change of circumstances within section 40(5) of the Act, such as to justify revisiting an earlier ruling. Furthermore, he ordered that the Crown should transcribe a further 700 hours of other surveillance, under Operation Packwood, of the business premises of the late husband of the defendant, B, which the Crown had disclosed as unused material.

As a result of those orders, the position today is that all 700 hours and a little over half of the 15,000 hours have now been transcribed. The former, but not the latter, have been served on the defence pending the outcome of the present proceedings. These proceedings relate to the judge's orders for transcription which are sought to be challenged by the prosecution on the ground that they raise the following question of law on which this Court is invited to rule:

We say at once that we have no grasp of the detail of this case comparable to that of the trial judge. However, we have been provided with a substantial quantity of documentary material, with written submissions from all parties and with a considerable number of authorities. The oral submissions made to us have been based, in part, on the written submissions and, in part, have related to other matters raised by the Court in the course of argument. We intend no disrespect to counsel if, at this hour and in the context that we have identified, we focus on the resolution of the issues presented to us without either rehearsing counsels' arguments in detail or seeking to analyse all the authorities to which we have been referred.

There are essentially three questions for our determination: First: has this Court jurisdiction to hear an appeal in relation to an order of this kind? Secondly, if it has: was the judge's order in May 2005 such that we should quash it? Thirdly, even if we have no jurisdiction, ought we, as the prosecution invite us to, to express a view as to the order made in the Crown Court, as was done for example in Attorney-General's Reference No 1 of 2004 [2004] 2 Cr App R(S) 27 and R v L, G, Q and M [2005] EWCA Crim 1579.

As to the first question, in relation to this Court's jurisdiction, the relevant statutory provisions are to be found in section 29(1) and (2), section 31(1) and (3), section 35(1) and section 40(1) of the Act. The relevant parts of those subsections (omitting provisions not presently material) are in these terms:

Section 31 provides:

Section 40 provides:

It is common ground that the hearing culminating in the ruling on 26th May was a preparatory hearing within section 29 and that, by section 35, there is a right of appeal against a ruling given at such a hearing, if it is given for one or more of the purposes identified in section 29(2). It is also common ground that there is no such right of appeal in relation to a pre-trial ruling, whether under section 40 or under the court's inherent jurisdiction.

As a result of discussions with counsel, the judge said that that his ruling had been made for each of the purposes identified in section 29 subsection (2)(a), (b) and (c). Mr Mitchell QC, for the Crown, relies on this before us as affording this Court jurisdiction. For the respondents, Mr Lewis QC contended in his written submission that the ruling was for none of these purposes but was a discretionary exercise of case management powers to ensure a fair trial. It had consequences of the kind identified in section 29(2), but these were not its purpose and that distinction between consequence and purpose is fatal to this Court having jurisdiction (see per the late great master of the criminal law, Lord Lane CJ in R v Moore (unreported, Court of Appeal (Criminal Division) 4th February 1991). Furthermore, he submitted that an exercise of discretion could only give rise to a point of law founding an appeal, if it were fundamentally flawed, which this decision, he says, was not.

In our judgment the clear purpose of the ruling in July 2004, as expressed by the judge at the beginning of the ruling and later in its course, was to procure a fair trial by prescribing the manner in which disclosure should be made by the prosecution. This was an approach to which the judge in his May 2005 ruling expressly adhered, when rejecting the prosecution contention that there had been a material change of circumstances within section 40(5).

Such a purpose may have one or more of the consequences referred to in section 29(2). But it does not, in our judgment, give rise to any right of appeal under section 35. Rulings to procure a fair trial come in many guises and may be made under the court's inherent jurisdiction before or during a trial of any case, whether complex or not. But they do not give rise to a right of appeal before the end of the trial. If it had been Parliament's intention that they should, it could and no doubt would have said so; there would have been no need to specify the four particular purposes in section 29(2) to which reference has already been made; and it would not have been necessary to add to section 29(2), by subsequent amendment by the Criminal Justice Act 2003 section 310(4), the fifth purpose to which we have not previously referred in relation to questions of severance or joinder, because a ruling for such a purpose would clearly be within the ambit of a general purpose to achieve a fair trial. We conclude that we have no jurisdiction to entertain this appeal.

We make two further comments on this aspect. First, as Hooper LJ made clear when giving the Court's judgment in R v Singh [2005] EWCA Crim 90 the trial judge's wish to obtain the views of this Court is not a sound basis for ordering a preparatory hearing nor can such a wish of itself confer jurisdiction on this Court under section 35. Secondly, despite attempts by this Court to achieve clarification, it is not clear to us whether the material to which the judge's orders related is properly to be regarded as used or unused material. Mr Lewis submitted to us that it was exhibited by the prosecution as part of its case but, in his submissions to the trial judge, he referred to it as unused material. The trial judge did not enquire of Mr Mitchell whether the prosecution intended to rely on any part of the product apart from the 20 hours transcribed. In response to our enquiry he said that they did not, subject to the possibility of review if anything else of consequence were found. We refer to these matters because, if the overwhelming majority of the product was unused material, we think it extremely doubtful whether, in relation to it, the judge had the power to make the order which he did: under section 3 of the Act, to which the trial judge's attention was not drawn, the Crown had complied with their duty of disclosure and it was for them to decide on its form (see section 3(3)). This case was not governed by the 1996 Act because the investigations started before it came into force. But we know of no common law authority which gives any greater right of challenge by a defendant to a prosecution's decision as to the form in which unused recorded material is to be served. Mr Lewis submitted that section 3 needs to be read down under the Human Rights Act 1998, section 3, so as to give effect to the Article 6(3)(b) right to have adequate time and facilities for the preparation of the defence. We see no such need. Provided hard drives are served on the defence in adequate time for them to obtain transcripts, if these are necessary, the right is safeguarded without there being an obligation on the prosecution to provide transcripts.

Absent jurisdiction, the question of quashing the judge's order does not arise. But it is to be noted, without embarking on a detailed analysis of the trial judge's decision, that there were special features of this case which were relevant to the decision which he made. First, there was a change of strategy in relation to the police investigation which, initially, had been into a range of very serious criminal offences by the defendant, A1, including murder, but which, from the date on which the audio surveillance ended, focused instead on his financial dealings and the possibility of money laundering. This change may have had a bearing on what may have seemed relevant both to the monitors and when the secret service summaries were made. Secondly, the possibility of the monitors misunderstanding the meaning of what was said was expressly recognised in the prosecution's contemporaneous documents. Thirdly, there were, as the judge found, inaccuracies in the monitor's notes and in the summaries. Fourthly, in relation to the defendant, B, she was not present at some of the conversations involving her late husband, on which the prosecution rely, so transcripts of these conversations would be of particular value in relation to her defence.

We turn to the third question. Attorney-General's Reference No 1 of 2004 and L, G, Q and M on which Mr Mitchell invites us to rely, were different cases from the present. In both, this Court was dealing with a point of law - in the former case, the applicability of Article 6 to a reverse burden of proof and in the later case, the ingredients of the offence of transferring criminal property under section 327 of the Proceeds of Crime Act 2002. In each, had the trial judge's conclusions been followed, the trial would have proceeded on what this Court decided would have been a false legal basis. That is not the position here.

However, we recognise that, although this case has special features, it does raise matters, particularly of cost and proportionality, which may be relevant to other cases in which there has been extensive audio surveillance. Accordingly, we venture to draw attention to some of the matters which a trial judge should always have in mind when invited to order extensive transcripts.

First, his general approach should be guided by the Protocol for the control and management of complex cases issued by the Lord Chief Justice on 22nd March 2005, in particular, at page 1, the need to make proper use of limited public resources (see paragraphs 113 - 116 of the judgment of Judge LJ in R v Jisl and Others [2004] EWCA Crim 696) and, at pages 10 - 11, the danger that disclosure has the potential to disrupt the entire trial process, the undesirability of giving the defence the "warehouse key" and the need to ensure that disclosure is limited to what is likely to assist the defence or undermine the prosecution.

Secondly, the Evidential Procedure Manual of 24th January 1997 provides sensible and helpful guidance for monitoring an evidential operation and transcription of the product of such an operation.

Thirdly, the requirements of Article 6 do not, generally, require the prosecution to transcribe all the product of audio surveillance: whether transcription is necessary will depend on all the circumstances of the particular case, including whether and to what extent the product is relied on by the prosecution, or is unused material.

Fourthly, whether the product is so relied on or is unused material, must be clearly demonstrated to the trial judge.

Fifthly, it is highly unlikely that an order for transcripts will be appropriate before defence statements are served, because the issues will be insufficiently defined.

Sixthly, where a trial judge is satisfied that the investigating authorities have behaved honestly and properly in accordance with the Evidential Procedures Manual, to which we have referred, demonstrated minor inaccuracies in monitoring notes or secret service summaries will not, without more, justify the ordering of full transcripts.

Seventhly, prosecution counsel should be required by the trial judge to identify precisely the circumstances in which the prosecution might seek to rely on other disclosed material, on which, at the time of the judge's ruling, they do not intend to rely.

In drawing attention to these matters, we do not purport to present an exhaustive list of relevant considerations. But we hope that they afford some guidance for judges and lawyers for prosecution and defence, co-operation between all of whom, it has been common ground been before us, is essential if disclosure is to aid rather than impede the administration of justice.