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These are the reasons why, on 19^th April 2007, we dismissed appeals against a ruling by the Recorder of London (His Honour Judge Peter Beaumont QC) made on 4^th April 2005 in the course of a preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996 (the 1996 Act).

The five appellants (one of whom was not represented at the hearing, but on whose behalf a written submission was received) face an indictment containing a total of twenty counts. The allegations are based on contraventions of section 57 and section 58 of the Terrorism Act 2000 (the 2000 Act). In due course the appellants will be tried by a jury. For present purposes none of the facts giving rise to the prosecution needs recital. The issue is whether the Crown should be permitted to continue to prosecute the allegations based on section 57 of the 2000 Act. The circumstances in which it arises are unusual.

On 1^st December 2006 the Recorder ordered a preparatory hearing. It is undisputed that the present case was of sufficient complexity and/or potential length for substantial benefits to accrue from a hearing.

On 9^th January 2007, in the course of the preparatory hearing, the Recorder concluded that electronically stored information was capable of being an “article” for the purposes of section 57 and that the Crown could proceed with the counts based on it. However he gave the defendants leave to appeal. The question for decision was whether “data electronically stored on compact discs or computer hard drives (are) capable of being an “article” for the purposes of section 57 of the Terrorism Act 2000?”

The appeal was heard on 6^th February. The effect of the judgment given on the following day can be briefly summarised. The Court decided that the Recorder had failed to deal with an important submission on behalf of the defendants that if the Crown’s interpretation of section 57, and its ambit, were correct, section 58 of the Act would be redundant. On analysis, the court concluded that the wording of the two sections, and their juxtaposition, led to the conclusion that Parliament had deliberately laid down a specific, and distinct, regime in relation to documents and records. In short, although the hard drives and discs referred to in the counts based on section 57 were “articles” in the general sense, they were not “articles” for the purposes of section 57 because express provision for these items was made by section 58. Accordingly the decision of the Recorder in relation to section 57 was wrong.

On 13^th February the Court certified that a point of general public importance was involved in the decision. This was whether the possession of literature or other information in electronic and/or printed form was caught by section 57 of the Terrorism Act 2000. Leave to appeal to the House of Lords was refused, but a petition for leave to appeal was lodged by the Crown. These proceedings in the Court of Appeal are described hereafter as the first appeal.

On 25^th March 2007, in R v Rowe [2007] EWCA Crim 635, the Court of Appeal, in a five judge constitution presided over by Lord Phillips CJ, examined a submission by the prosecution that the decision in the first appeal was reached per incuriam. The court was invited to apply the principle in R v Simpson [2003] CAR 36 and address and rectify the decision in the first appeal without delay.

The Court concluded that the decision in the first appeal was based on a number of important but erroneous assumptions. Although the overlap between section 57 and section 58 was clear, it was incorrect to conclude that section 58 would be rendered virtually superfluous if documents and records were held to constitute articles for the purposes of section 57. The two sections were concerned with different activities connected with terrorism. Section 57 dealt with the possession of articles for the purposes of terrorist acts. Section 58 dealt with the collection or holding of information of a kind likely to be useful to those involved in acts of terrorism. Section 57 required a specific intent, whereas section 58 did not. The differences represented rational features of a statute whose aims included the prohibition of different types of support for and involvement, both direct and indirect, in terrorism. Accordingly the conclusion that Parliament intended to have a separate regime for documents and records from that which applied to other articles was unsustainable.

The most significant features of the judgment for present purposes were summarised by Lord Phillips:

Following this decision the House of Lords requested the Crown to decide whether it wished to proceed with its petition for leave to appeal in the first appeal. The Crown decided not to do so on the basis that Rowe resolved the legal position, and thereafter notified the appellants that in view of the decision in Rowe, it intended to proceed with the section 57 counts.

The point was re-listed for decision by the Recorder of London on 4^th April, for him to consider whether to vary or discharge the ruling consequent on the decision in the first appeal. Neither side directly addressed the precise nature of the hearing before him. We were told that it was, in effect, a continuation of the preparatory hearing originally ordered on 1^st December. Alternatively it was an adjourned or further preparatory hearing. We have no transcript of the Recorder’s judgment. We were referred to a note of the ruling made by counsel, which was accepted on all sides accurately to record his judgment. He rejected the submission that, whatever the broad impact of the decision in Rowe, the decision in the first appeal continued to bind him. He found that he should apply the law of England and Wales “as it is today”, and that he was “bound” by the judgment of the Court of Appeal in Rowe. The Recorder added that he was fortified in his decision by the fact that if there were convictions, the issues arising from conflicting decisions of this court could be re-litigated. By this he meant that the appeal process would remain open, and in the event of convictions of any offences under section 57, it would be open to the appellants to seek to argue that the decision in the first appeal was right and that it was Rowe which was wrongly decided.

The argument before us was preceded by carefully drafted written submissions. The oral submissions were clear, and without disrespect to counsel, can be compendiously summarised. It was contended that the decision in the first appeal was binding on the Crown Court from which the successful appeal was brought. Section 35 of the 1996 Act gave the Court in the first appeal power to “confirm, reverse or vary the decision made by the judge at the Crown Court”. The decision of the Recorder had been reversed as a result of the first appeal, and subject to any decision of the House of Lords, that, so far as the present case was concerned, represented the end of the matter. Whatever effect Rowe might have in other cases, it had none in this. The Recorder could not overrule the decision in the first appeal. The only Court which could do so was the House of Lords. Moreover the decision in Rowe was, strictly speaking, obiter, and the correctness of the decision in the first appeal was not properly supported in argument, and further Rowe itself was subject to a number of errors and oversights.

Our attention was drawn to an article in the Criminal Law Week, Issue 13 April 2 2007, critical of the approach adopted in Rowe, culminating in the observation that the “principled solution to the precedent issue would have been to follow R v M (the first appeal) and quash the decision (in Rowe) to certify that there was a point of law of general public importance involved, to grant leave to appeal to the House of Lords …..”. In short, on this basis, the court in Rowe was itself bound by the decision in the first appeal. This confirmed the submission that Recorder was not entitled to elect to follow, or treat himself as bound by the decision in Rowe. He was bound by the decision in the first appeal, at which the appellants had been present and where submissions on their behalf were considered and addressed.

The starting point in our analysis, and ultimately the foundation for our decision, is to identify the powers exercised by the Recorder. Under section 31(11) of the 1996 Act a ruling made by the judge at a preparatory hearing on any question of law “shall have effect” for all the purposes of the trial, “unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it”. A similar but not identical power arises in the context of statutory pre-trial hearings under Part IV of the 1996 Act. In short, although rulings made in the course of preparatory hearings should normally continue throughout the trial, they are not immutable. For good reason, if the interests of justice as a whole so require, a ruling at a preparatory hearing may be changed. Although, plainly enough, a judge of the Crown Court cannot vary or reverse any ruling consequent on the decision of this court, merely because he personally disagrees or believes it to be wrong, the jurisdiction under section 31(11) does not expire simply because the ruling in question was made by this Court. Equally, however, and at the risk of stating the obvious, any rulings of law at preparatory hearings must correctly reflect the law which will govern the trial.

In accordance with section 35(3) of the 1996 Act, the effect of the first appeal was to replace the decision of the Recorder with that made by this Court, in the context and for the purposes of the preparatory hearing. The question of law arising under section 57 of the 2000 Act was, for the time being, resolved in favour of the appellants by the first appeal. Notwithstanding that it resulted from a decision of this Court, it remained capable of variation or modification if the interests of justice so required. Section 31 (11) continued to apply. If, for example, the Crown had successfully appealed to the House of Lords, the original ruling of the Recorder would have been restored. No variation or reversal would have been needed. And if, for example, the court in Rowe had found itself bound to follow the decision in the first appeal, and adopted the suggestion in Criminal Law Week that the House of Lords should decide the question, and the House of Lords had concluded that Rowe, by following the decision in the first appeal, was wrongly decided, the Recorder would have been faced with precisely the same issue which had to be addressed on 4^th April, that is, should the ruling of law be varied or reversed? Neither of these hypothetical possibilities actually occurred, but they serve to highlight that if they had, the Recorder would then, as now, have been considering whether to exercise the power of the court under section 31(11) to vary or discharge the ruling resulting from the first appeal.

The outcome in the first appeal, and the subsequent analysis of that decision by the court in Rowe, was to present the Recorder with a decision of the Court of Appeal which decided a question of law critical to the trial. Rowe concluded that the decision in the first appeal, and therefore the basis on which this complex trial was otherwise to proceed, was based on an incorrect legal analysis of vital statutory provisions. The Recorder had to face legal realities. Assuming that he was not strictly “bound” by the decision in Rowe, he nevertheless could not ignore it or brush it aside. At the very least, it was seriously arguable that he was in fact so bound, and equally arguable that Rowe had severely undermined the authority of the decision in the present appeal. Moreover, although the note of the judgment does not indicate that the Recorder directly addressed the point, any judge in his situation would have been conscious of the additional reality that further prosecutions involving section 57 of the 2000 Act are either in progress, or likely to arise, and that any inconsistency of approach to the construction of section 57 by different judges, some, if not all, following Rowe, and some seeking to uphold the decision in the first appeal, notwithstanding that it was said in Rowe to be a decision made per incuriam, would be productive of vast confusion, and inconsistent verdicts. On all these grounds alone he would have been entitled to vary the ruling made in the first appeal to enable the prosecution to proceed with the section 57 offences.

In fact, as we now emphasise, subject to any further ruling by this Court, or the House of Lords, whenever the construction and ambit of section 57 of the 2000 Act arise for consideration in the Crown Court, Rowe should be followed. It is not open to the Crown Court to follow the decision in the first appeal and disregard the judgment in Rowe that it was decided per incuriam.

The single question that the Recorder was required to address was whether in these circumstances the interests of justice required him to vary or discharge the ruling which, unless varied or discharged, would otherwise continue to govern the trial. That is what he did. In our judgment his decision cannot be impugned. Moreover, as he recognised, his decision will not deprive the appellants, if convicted, of any valid grounds for contending that their convictions of section 57 offences were unsafe, and if so, to seek leave to appeal.

We should add that in these circumstances the absence of the present appellants from the hearing in Rowe, whether in the Court of Appeal or, hypothetically, the House of Lords, and their inability to advance argument is neither here nor there. As a matter of virtually daily occurrence, legal principles are decided by this Court, and the House of Lords, without the attendance or presence of those involved in other cases which might, or indeed, undoubtedly would be affected by the decision. The appellants have not been treated unfairly in this process.