R v R

This is an application by the Crown for leave to appeal against a ruling made by HHJ Tanzer sitting at Croydon Crown Court on 3 Dec 07 whereby pursuant to rule 24.3 of the Criminal Procedure Rules, he refused to grant the Crown leave to adduce the expert evidence of a Dr Martin Harris. The application is made under section 58 of the Criminal Justice Act 2003 (“the 2003 Act”). On 22 February 2008, we dismissed the application. We now give our reasons for doing so.

Two issues arise on this application. The first is whether this court has jurisdiction to entertain the application at all (“the jurisdiction issue”). The second is whether, if the court does have jurisdiction, we should reverse the judge’s ruling under rule 24.3 on the grounds that it was a ruling “that it was not reasonable for the judge to have made”: see section 67(c) of the 2003 Act (“the reasonableness issue”). The jurisdiction issue turns on a question as to the true interpretation of section 58(8) which, so far as we are aware, has not been the subject of previous authority.

So far as material, the 2003 Act provides:

“58 General right of appeal in respect of rulings

(1)

This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2)

The prosecution may appeal in respect of the ruling in accordance with this section.

….

(4)

The prosecution may not appeal in respect of the ruling unless—

(a)

following the making of the ruling, it—

(i)

informs the court that it intends to appeal, or

(ii)

requests an adjournment to consider whether to appeal, and

(b)

if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

…

(8)

The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9)

Those conditions are—

(a)

that leave to appeal to the Court of Appeal is not obtained, and

(b)

that the appeal is abandoned before it is determined by the Court of Appeal.

…

(13)

In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the start of the judge’s summing-up to the jury.

…

62 Right of appeal in respect of evidentiary rulings

(1)

The prosecution may, in accordance with this section and section 63, appeal in respect of—

(a)

a single qualifying evidentiary ruling, or

(b)

two or more qualifying evidentiary rulings.

(2)

A “qualifying evidentiary ruling” is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.

…

(9)

In this section—

“evidentiary ruling” means a ruling which relates to the admissibility or exclusion of any prosecution evidence,

…

(11)

Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 58.

…

63 Condition that evidentiary ruling significantly weakens prosecution case

(1)

Leave to appeal may not be given in relation to an appeal under section 62 unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled.

(2)

In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution’s case in relation to the offence or offences which are the subject of the appeal.

…

67 Reversal of rulings

The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—

(a)

that the ruling was wrong in law,

(b)

that the ruling involved an error of law or principle, or

(c)

that the ruling was a ruling that it was not reasonable for the judge to have made.”

So far as material, the Criminal Procedure Rules provide:

“24.1

(1) Following…. (b) the committal for trial of any person… if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done so or the evidence is the subject of an application for leave to adduce such evidence in accordance with section 41 of the Youth Justice and Criminal Evidence Act 1999-

i)

furnish the other party or parties and the court with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence and notify the expert of this disclosure, and

…

24.3.

A party who seeks to adduce expert evidence in any proceedings and who fails to comply with rule 24.1 shall not adduce that evidence in those proceedings without the leave of the court.”

The defendant is a medical practitioner. He faces an indictment which contains 4 counts that he indecently assaulted 3 women contrary to section 13(1) of the Sexual Offences Act 1956. The offences are alleged to have been committed at various times between 1990 and 2000. The women were all patients of his and the assaults are alleged to have occurred during what purported to be medical examinations of them by the defendant. He was committed for trial on 9 August 2006 and 10 January 2007. Neither committal bundle contained any expert evidence. On 9 March, the trial was fixed to start on Monday 3 December with an estimate of 3 weeks. On 15 August 2007, the defendant’s solicitors informed the CPS that they were intending to adduce expert evidence on his behalf and asked whether the Crown was also intending to rely on expert evidence. Further letters were sent to the CPS asking them what they intended in relation to expert evidence, but no response was forthcoming.

It seems that the Crown did not consider the possibility of adducing expert evidence until about October 2007. The defence were not notified that the Crown were intending to rely on expert evidence until 23 October 2007 when the CPS wrote saying that they were in the process of instructing an expert.

On 14 November, HHJ Stow made an order that the Crown serve any evidence on which they intended to rely by 1 pm on Friday 23 November. On 23 November, they applied to HHJ MacKinnon for the trial date to be vacated on the grounds that their expert evidence was not ready. The application was refused. Dr Harris’s report was served during the afternoon of Friday 30 November. In summary, it stated that, on the basis of the symptoms described by the 3 women, the medical examinations which they said the defendant had conducted were unnecessary and inappropriate in a number of respects.

The case then took an unexpected turn. Miss Lambert, counsel representing the defendant, first saw the report on Saturday 1 December. She immediately noticed that the expert was Dr Harris. This caused her professional embarrassment because he is a client of hers in some wholly unrelated civil proceedings. Understandably, she did not feel able to continue to represent the defendant in the criminal proceedings if Dr Harris was to be an expert witness called to give evidence on behalf of the Crown.

On the morning of Monday 3 December, in the presence of counsel for the Crown, she informed the judge of the position in his chambers. During the discussion, the judge indicated that he would not be willing to adjourn the case for 1 week to enable the Crown to find another expert. An adjournment of 1 week would run the risk that the trial could not be completed before Christmas. It was elicited from the list office that, if the trial were to be adjourned, it could not be heard until September 2008. When the matter was raised in open court, Miss Lambert submitted that the problem had arisen because Dr Harris’s report had been served out of time and she argued that the Crown should be debarred from relying on his evidence. The judge pointed out that, if the Crown wished to rely on it, they would have to make an application for leave to adduce the evidence out of time.

Mr Fitzgerald proceeded to make that application. He did not tell the judge that, if the application was dismissed, the defendant would have to be acquitted on the grounds that without the evidence of Dr Harris, the Crown case would be fatally damaged. Rather, he submitted that the real reason why the trial could not proceed then and there was that, unforeseeably, Miss Lambert was professionally embarrassed. The problem was, as he put it, caused by something outside the Crown’s control. It would not be in the interests of justice to prevent the Crown from relying on the evidence of Dr Harris. The case would have to be adjourned, so that the defendant could find a replacement for Miss Lambert, but that was preferable to denying the Crown the evidence of Dr Harris.

Miss Lambert submitted that the real reason for the difficulty was the late service of the report. She rehearsed the procedural history of the case which we have summarised and submitted that, against that background, it was wholly unacceptable that the expert’s report should be served on the afternoon of 30 November. It would be unfair to the defendant to adjourn the case.

The judge gave a detailed ruling. He referred to rule 24.1 of the CPR and said that “it would be risible to say that the Crown has even begun to comply with that requirement of the rules”. He then turned to rule 24.3 and said:

“Now clearly 24.3 grants me a general discretion. That discretion is to be exercised having regard to not only the overriding objective, giving a balance between the parties so that criminal cases be dealt with justly, but also having regard to rule 1.2, which is the duties of the participants in a criminal case, which is to prepare and conduct the case in accordance with the overriding objective, and (b) comply with these rules, practice directions and directions made by the court. And, importantly, 1.3, that I must further the overriding objective, in particular when exercising any power due to it by legislation, including these rules, applying any practice direction or interpreting any rule or practice direction.”

He continued:

“In applying the provision, one of the overriding objectives is that cases be dealt with efficiently and expeditiously. I have, of course, to take into account the gravity of the offences alleged, the complexity, the consequences for the defendant, and the needs of other cases.

This case cannot be more grave for the defendant. If I grant leave, then in reality the defendant is looking at not having a trial until some time in the middle of next year, some two years and more after he was first questioned about part of the indictment. That, for a man whose whole life and professional career hangs in the balance, appears to me to be wholly undesirable. But it would be the only choice.

It would have a second implication, namely that having lived in the expectation of counsel, as I said, familiar with his case, conducting his defence, he would have to find new counsel. Again, of itself not determinative, but an indicator of the impact on the defendant of granting leave.

As far as the Crown is concerned, I have to ask myself whether it is right that a party who fails to comply with the rules should then be able to act to the detriment of the defendant, placing an argument as to the public interest as a reason. Now the public interest may well override any detriment. But here, it is not submitted that the Crown would not be able to continue its case in the absence of this evidence. It is not submitted that this would operate in any way as a terminating ruling. It is a request that I balance the competing interests of the parties.

In my judgment, this is a case where the history and, on its somewhat exceptional facts, the interests of the defendant to have his trial, and have his trial when he expects to, must take precedence over the Crown’s interest in the late production and adducing of evidence. For those reasons, I decline to grant leave under rule 24.3. ”

After the judge had so ruled, Mr Fitzgerald told the judge that he accepted that he had not submitted that this was a “terminating ruling”. By that, he meant a ruling whose effect was that in the opinion of the Crown the defendant should be acquitted. But he said that he needed to speak to those instructing him before he could say what the effect of the ruling would be on the case. During the exchange that followed, the judge said that whether his ruling was a terminating ruling or not would have made no difference to his decision.

There was further discussion the following day, when Mr Fitzgerald told the judge that he needed more time to consider the implications of the ruling with those instructing him. The judge granted an adjournment until the morning of 5 December when Mr Fitzgerald told the judge that the Crown were intending to appeal the ruling under section 58 of the 2003 Act. In addition to giving notice pursuant to section 58(4)(a)(i) of the Crown’s intention to appeal, Mr Fitzgerald informed the judge of the Crown’s agreement, in respect of each of the offences with which the defendant was charged, that he should be acquitted if leave to appeal to the Court of Appeal was not obtained or if the appeal was abandoned before being determined by the Court of Appeal.

Mr Fitzgerald explained to the judge that, without expert evidence as to the necessity for and propriety of the medical examinations allegedly conducted by the defendant on the 3 women, the Crown would not have a realistic prospect of securing convictions in this case.

The judge refused permission to appeal in a written ruling. He expressed his conclusion in these terms:

“5.1

This is a case where the Crown can be said to be entirely the author of its own misfortune as a result of failing to comply with the CPR and thereby precipitating the embarrassment of counsel which is a matter which could have been cured had the breach not occurred. The interests of the prosecution have to be balanced against those of the defendant within the context of the overriding objective.

5.2

Having reviewed the background, I can discern no reason to revise my views as to where the balance lies and in the circumstances decline to grant leave.”

This issue raises the question whether the ruling can be appealed under section 58 at all. It is an evidentiary ruling within the meaning of section 62(9), since it is a ruling which relates to the exclusion of prosecution evidence. But section 62 has not yet been brought into force. It is also, however, a ruling “in relation to a trial on indictment at an applicable time” within the meaning of section 58(1). A ruling can be both an evidentiary ruling within the meaning of section 62(9) and a ruling within the meaning of section 58. That is confirmed by section 62(11) and was decided by this court in R v Y [2008] EWCA Crim 10.

The scheme of section 58 is clear. The Crown may not appeal a section 58 ruling unless inter alia it informs the court that it intends to appeal (subsection (4)(a)(i)). The Crown may not inform the court that it intends to appeal unless at or before that time, it informs the court that it agrees that the defendant should be acquitted if either of the conditions in subsection (9) is fulfilled (subsection (8)). We shall refer to such an agreement as an “acquittal agreement”. If the Crown informs the court in accordance with subsection (4) that it intends to appeal, the ruling continues to have no effect whilst the appeal is pursued (subsection (10)). Where the Crown has informed the court under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order the defendant to be acquitted (subsection (12)). It will be seen, therefore, that an acquittal agreement is fundamental to an appeal under section 58. Without an acquittal agreement, there can be no appeal under section 58.

At first sight, there was an acquittal agreement in this case and the jurisdiction of this court was engaged. In her skeleton argument, however, Miss Lambert submitted that:

“It is accepted that no definition of a terminating (as opposed to evidentiary) ruling is supplied in the Act. However, it can not reasonably be argued that any ruling which might retrospectively be categorised by the Crown as a terminating ruling falls within the scope of section 58. It is submitted that, for a ruling to be a terminating ruling it must be one which, viewed objectively, is capable of being considered in good faith by a reasonable and fair-minded prosecutor as so damaging to the Crown’s case that there remains no reasonable prospect of conviction.”

In her oral submissions, she modified this somewhat and submitted that the Crown cannot invoke section 58 unless it is obvious that the ruling fatally undermines or at least seriously weakens its case in a way which can be demonstrated without any investigation of the facts.

Miss Lambert submits that it is by no means obvious that the Crown case would be fatally undermined or even seriously weakened without the evidence of Dr Harris. The 3 women could give their evidence and describe the examinations they say were conducted on them by the defendant. No doubt the evidence of Dr Harris would strengthen the Crown case, but it would have reasonable prospects of success even without his evidence. This is well demonstrated by the fact that the CPS did not even consider obtaining expert evidence until long after the defendant was committed for trial.

We accept that it is necessarily implicit in section 58(8) that an acquittal agreement must be made by the Crown in good faith and not for some improper purpose. It must be based on an assessment made in good faith. In some cases, it will be obvious that a ruling will bring the prosecution to an end: for example, a ruling that there is no case to answer. In such cases, an acquittal agreement does not call for an exercise of judgment on the part of the Crown. But in other cases, the effect of a ruling is less clear-cut. Evidentiary rulings which seriously weaken the Crown case are an example of cases in this category. Here, an acquittal agreement is far from being a mere formality. It requires an exercise of judgment on the part of the Crown to decide whether a ruling so damages the prosecution case that, unless it is overturned on appeal, there is no real prospect of a conviction. In our view, provided that an acquittal agreement is made in good faith, the Crown is the sole judge of whether the consequence of a ruling which it wishes to appeal should be that a defendant should be acquitted.

The language of subsection (8) is clear and unqualified. If the requirement of good faith is left out of account, there is no basis for reading into the subsection words that are not there. Parliament must be taken to have decided that the Crown is to be trusted to act conscientiously and competently in the public interest in determining whether to make an acquittal agreement. An acquittal agreement is the price that the Crown must pay for exercising its right of appeal under section 58. The court has no role to play and in particular has no power to decide whether an acquittal agreement is objectively justified on the facts of the case. This conclusion is consistent with what this court said at para 20 in R v Y:

“For s 58 the critical condition which must be met before any appeal can be launched is that contained in s 58(8). In effect the Crown is bound to accept, as the price of bringing an interlocutory appeal under s 58, the consequence that if it fails the Defendant must be acquitted (as well as the possibility that this Court may order such acquittal on the grounds that it is necessary in the interests of justice to do so). It is no doubt this s 58(8) condition which led to the use of the expression "terminating ruling" during the consultation process preceding this part of the Act and its passage through Parliament. It is no doubt true that the Crown will not ordinarily embark on an appeal against a ruling which requires the giving of the s 58(8) undertaking, unless the ruling, if effective, will bring the case to an end. But whilst the expression "terminating ruling" may have, and have had, its convenience as shorthand, its use is best avoided when considering how the Act must be construed, for it appears nowhere in the statute. For that reason, we do not think that it is helpful to try to answer the jurisdictional question by asking whether or not the ruling presently in question would bring the prosecution to an end. As a matter of law, it would not; in practice, unless the Crown altered its position, it would. It would not in law because the Crown could continue with the trial and seek to persuade the Judge that other evidence establishes a prima facie case against the Defendant Y. That in this case the Crown told the Judge that it did not feel able to argue that there is a prima facie case unless the hearsay evidence goes in does not alter that legal position. However, no doubt if that is the Crown's view the effect of the ruling, in practice if not in law, would be to bring the case to an end.”

The contrast between the language of section 58(8) and that of section 63(2) is striking. In section 58(8), the relevant condition is an acquittal agreement. In section 63(2), the relevant condition is that the ruling significantly weakens the prosecution case. Unlike section 58(8), section 63(2) imports an objective test as to the actual effect on the prosecution case. For the purposes of a section 58 appeal, the only relevant condition which must be fulfilled to the satisfaction of the court is that there is an acquittal agreement. For the purposes of a section 62 appeal, the relevant condition which must be fulfilled to the satisfaction of the court is that the ruling significantly weakens the prosecution case.

If Miss Lambert were right, the court would be required in a section 58 appeal to undertake an investigation similar to that required in a section 62 appeal (the fact that section 62 has not been brought into force is immaterial to the construction of section 58). If Parliament had intended that the court should undertake such an investigation in a section 58 appeal, it would surely have introduced into section 58 language similar to that found in section 63. The fact that there is no such language in section 58(8) is a strong indication that Parliament had no such intention.

For these reasons, we are satisfied that the jurisdiction issue must be decided in favour of the Crown. The acquittal agreement made in this case was sufficient to give this court jurisdiction to entertain the application for leave to appeal in this case. It is to the merits of that application that we now turn.

Mr Fitzgerald submits that the judge was unreasonable to make the ruling because he gave too much weight to the importance of maintaining the trial date and insufficient weight to the public interest in the prosecution of the defendant for these serious offences. The real reason for the need for an adjournment was Miss Lambert’s unforeseeable professional embarrassment, which was an unforeseeable incident of litigation.

In our view, this application for leave to appeal has no merit. Mr Fitzgerald has not begun to show that the ruling was one which it was not reasonable for the judge to have made. The alleged offences were committed between 1990 and 2000. The defendant was committed for trial in August 2006 and January 2007. The trial date was fixed on 9 March 2007. The Crown did not consider whether to obtain expert evidence until October 2007. It was treated generously when on 14 November, the court allowed it until 23 November to serve an expert’s report. That was no more than 1 working week before the start of the trial. In these circumstances, it was deplorable that the Crown did not serve the report until the afternoon of 30 November. As the judge said, there was a serious failure by the Crown to comply with the overriding objective of dealing with cases justly, which includes dealing with cases “efficiently and expeditiously”: CPR 1.(2)(e).

Once it became clear that, if Dr Harris were to be allowed to give evidence, the trial would have to be adjourned until September 2008, the judge was fully entitled to decide not to give the Crown leave to adduce the evidence of Dr Harris. The decision involved an exercise of discretion. It has not been suggested that the judge failed to take into account a material factor or took into account an immaterial factor. The sole complaint is that he gave too much weight to one consideration and insufficient weight to another. It is trite law that the weight to be given to relevant factors is for the decision-maker and the court will not interfere unless the decision is perverse. Mr Fitzgerald submits, albeit somewhat faintly, that this was a perverse decision. In our judgment, that is a submission that is as extravagant as it is hopeless.

The decision was entirely reasonable in the light of the delays that had already occurred and the judge’s correct assessment of where the blame for the need for an adjournment lay.

For these reasons, we refused leave to appeal against the judge’s ruling.