Interlocutory Appeal Pursuant To Section 9 Of Criminal Justice Act 1987 [2001] EWCA Crim 442

EWCA-Crim
Interlocutory Appeal Pursuant To Section 9 Of Criminal Justice Act 1987
[2001] EWCA Crim 442 · 2001-02-28
[1]This is the judgment of the Court. This is an application by the Crown for leave to bring an interlocutory appeal pursuant to section 9(11) of the Criminal Justice Act 1987. It arises from rulings made by His Honour Judge Zucker QC in the course of a preparatory hearing at the Wood Green Crown Court on 21 September 2000. Objection is taken on behalf of the defendants that the rulings in question are not subject to interlocutory appeal under the Act and so this Court has no jurisdiction in respect of them. This judgment deals only with that issue, which, with the agreement of the parties, was treated as a preliminary point.[2]The case is concerned with a bonded warehouse in Ipswich known as Fort Patrick. It operated between 1 June 1996 and 30 September 1997, and was the subject of surveillance by the Customs and Excise over a substantial part of that period. It is alleged that its business was carried on for the purpose of a diversion fraud, that is to say, that goods, predominantly spirits, should be and were taken from bond in the warehouse under the pretext of export but were sold within the United Kingdom without duty having been paid. It is alleged that with some very slight exception the whole of the goods passing through the warehouse were dealt with in this way at a massive loss to the Revenue.[3]A number of persons have been arrested and proceeded against in connection with the operation. This case is concerned only with some of them. Those connected with the operation have been divided into three categories. There are those who were concerned with the operation of the warehouse itself. They have been referred to as the "bondsmen", and consist of Christopher Grant, John Nash and Kevin Sweeney. Grant was in overall charge; Nash and Sweeney were in day to day control. They are the respondents to the present application. Then there are what have been called the "cells". There were nine cells. Each consisted of persons trading through a particular company or companies which used Fort Patrick to store bonded goods which were then, it is alleged, to be diverted without the payment of duty. Lastly there were the hauliers, that is, men who were concerned with transporting goods from Fort Patrick. A number of different proceedings have been brought arising out of all this activity. The members of individual cells have been prosecuted in several separate proceedings together with some hauliers. A number of convictions have been obtained.[4]The proceedings in which the application before us is made were brought against ten defendants. Narip Singh Bajwa and Michael Singh Boparan are described as members of the Bajwa/Boparan cell. Grant, Nash and Sweeney, the bondsmen, have already been mentioned. Malcolm Gell, Martin Challis, David Johnston, Alan Smith and Paul Jenkins fall into the category of hauliers.[5]The arrests took place on 30 September 1997. Most defendants were charged in early 1998. The defendants (save Boparan who had absconded and had to be extradited) were transferred to the Wood Green Crown Court on 6th April 1999. Boparan followed soon after. An indictment with a single count was preferred and signed in the following terms:
" STATEMENT OF OFFENCE "
CONSPIRACY TO CHEAT PARTICULARS OF OFFENCE MICHAEL SINGH BOPARAN, CHRISTOPHER KEITH NEIL GRANT, JOHN DAVID NASH, KEVIN CHARLES PATRICK SWEENEY, MALCOLM ADRIAN GELL, MARTIN WILLIAM CHALLIS, DAVID CLARK JOHNSTON, ALAN DOUGLAS SMITH and PAUL DAVID JENKINS between the 1st day of June 1996 and the 30th day of September 1997 conspired together and with Narip Singh Bajwa and with others to cheat Her Majesty the Queen and the public revenue of the duty and Value Added Tax chargeable on alcoholic beverages.[6]It will be seen that in the Particulars the "others" with whom the defendants are alleged to conspired are not identified by any general description or by name. Second, the conspiracy is described only in the most general terms - namely to cheat the revenue of duty and tax on alcoholic beverages. No attempt is made to describe further what the specific conspiracy or agreement entered into between the defendants and the unspecified others was. In the circumstances of this case where there were a large number of persons alleged to be involved in illegal activity in connection with Fort Patrick and therefore also a number of potential conspiracies, this was unfortunate. As will appear it has had serious consequences for the Crown.[7]In July 1999 Bajwa pleaded guilty to the charge and was sentenced. It is the Crown's case based on the documents setting out the basis of his plea that it is plain that he pleaded to what has been called "the global conspiracy" - to which we will come.[8]At some point in 1999 His Honour Judge Winstanley was appointed the trial judge and on 26 October 1999 he ordered a preparatory hearing under Part I of the Criminal Justice Act, 1987. On 10 January 2000 he delivered his ruling on an application by Grant pursuant to section 6(1) of that Act to dismiss the charge against him on the basis that the evidence would not be sufficient for a jury to convict him. As appears from the skeleton argument served on behalf of Grant the purpose of the application was to seek to establish the scope of the charge. Complaint was made that the "others" referred to in the indictment were not particularised. It was submitted that on its face the charge seemed limited to a conspiracy concerning the working of the Bajwa/Boparan cell. The Crown contended that the indictment entitled it to advance a case that there was a conspiracy going to the very function of Fort Patrick, namely to run it for the purpose of diversion fraud, and so covering the whole of its operation. That has been referred to as "the global conspiracy". It is to be contrasted with what we will call the "cell conspiracy", that is, a conspiracy relating and limited to the operation of the Bajwa/Boparan cell. Judge Winstanley dismissed Grant's application. He noted that it was accepted on behalf of Grant that there was a prima facie case of dishonest trading by all the other cells. He held that the indictment was not duplicitous and that the Crown were entitled within the terms of the indictment to advance its case as to a global conspiracy. We also note that he uttered certain caveats as to the future development of the case.[9]On 14th January 2000 the Crown served on the defendants a list of the persons who were the "others" referred to in the particulars to the indictment. The list contained seventeen names. As we understand it, none of them had a direct involvement with the Bajwa/Boparan cell. At least ten were members of other cells. The provision of their names as particulars of the indictment pointed to the global nature of the conspiracy being alleged. In our view it resolved the first problem which we have mentioned concerning the indictment. Following orders from Judge Winstanley the preparation of the case continued through the first half of last year.[10]An amended case statement was served on behalf of the Crown in July 2000. This included the following:
"10 The Prosecution submit that the Evidence in the case describes a global conspiracy. If the Prosecution is wrong about this, and this will depend on the view taken by the trial Judge of the Evidence in the Trial, then the Court has the power to amend the Indictment as appears appropriate. It is unarguably the case that Grant, Nash and Sweeney are at the centre of a global conspiracy because they conspired with each other and with persons in the various cells. The Prosecution submit that there is a clear case to show that they were involved in a conspiracy to cheat the Revenue through the fraudulent activity at Fort Patrick. 11 Should the Evidence fail to show that those in the Boparan cell are party to the greater conspiracy, then the Court is able to amend the Indictment so that Grant, Nash and Sweeney are charged alone in the global conspiracy as conspiring with each other and others, and in a further count with conspiring with Boparan and others in the Boparan cell. Both counts can and should be tried together and the prosecution will apply to amend should that eventuality arise."
[11]There was a final hearing on 21 July which all parties indicated their preparedness to commence the trial on 4 September. The estimate was 7 months.[12]Unfortunately Judge Winstanley then suffered an accident and a new judge was required. The case was assigned to His Honour Judge Zucker QC on 6 September. A first hearing before him was fixed for 15 September and he was able on 11 September to issue an agenda which raised a number of issues. It was clear that he was looking at the case with the object of simplifying and shortening the trial.[13]The date for the hearing was then moved to 21 September and he issued a further agenda. The first item was Mr. Boparan (who was to change his plea to guilty). The second item was `Conspiracy' and the third `Severance'. Then followed nine items under the heading of `Case Management'. At the hearing he first raised a number of matters with the Crown and in the afternoon he delivered a formal ruling on those matters. He introduced the ruling with these words:
"In view of the importance of this case and what is at stake, not only for the prosecution but for the defence and the future management of this case, I believe it is my duty to give a formal and detailed reason for the ruling I propose to make."
[14]As has become clear, the ruling was made by the judge of his own motion. There were no applications before him. The present case differs in this respect from the various authorities to which we will come.[15]We will summarise the ruling as follows. The judge began by referring to the defendants and to the indictment. He summarised the facts concerning Fort Patrick. He referred to extensive schedules which had been prepared by the prosecution and stated his view that they would be meaningless to the jury. We interpose in fairness to the Crown that there had been no opportunity to explain them to the judge nor the use which might be made of them. He concluded that the case against the remaining eight defendants would be an impossible burden for the jury. He said that in addition to the evidence concerning the defendants, the Crown wished to call evidence concerning the whole of the operation of Fort Patrick, including the eight other cells. He referred to eight convictions of members of other cells which the Crown wished to introduce to establish the wider ranging fraudulent trading. He then set out paragraphs 9E to 12 of the Crown's amended case statement including the paragraphs which we have quoted above. He then stated; "The first difficulty, in my judgment, in the way of the prosecution's submissions in the amended case statement in relating to the conspiracy as laid in that indictment, is that that conspiracy is laid only in relation to the Boparan/Bajwa cell. The only named conspirator, apart from the defendants, is Mr. Bajwa."[16]He referred to the principles concerning the naming of the conspirators in indictments then and now set out in Archbold at paragraph 33-42.[17]He concluded that the indictment only related to the Bajwa/Boparan cell and that only evidence which related to that conspiracy was admissible. He was told by the Crown that all parties had been provided with a list, not part of the indictment. The Crown made it clear that their case was the global conspiracy, with the list setting out the conspirators. The Crown indicated that if the indictment was deficient, an amendment would be sought.[18]The ruling continued that the Crown had been unable to point to any factual basis on which the jury could infer that the defendants save Grant, Nash and Sweeney were parties to a wider conspiracy. (We should mention that during the morning he had stated that there was little difficulty in the case of Grant, Nash and Sweeney.) He stated that both Mr. Bajwa and Mr. Boparan had pleaded to the conspiracy in the indictment, namely the cell conspiracy. He found it astonishing that the Crown contemplated the possibility of amending the indictment to allege the cell conspiracy during the trial.[19]He then turned to the management of the case. He referred to the mass of evidence and concluded that if his ruling as to the indictment was wrong in law he would exclude all evidence not relating to the Boparan/Bajwa cell on the ground that it would impose an impossible burden on the jury. He then came to an outline indictment which the Crown had prepared over the lunch time adjournment in an attempt to deal with the matters that had been raised with them in the morning. This had proposed separate counts against the bondsmen defendants and the haulier defendants and had raised four separate conspiracies, global and three named cells, against the bondsmen. He saw difficulties with it, stated that it was too late, and would in any event be severed. Leave to amend was refused. That concluded the ruling.[20]There was then a discussion as to severance, and Judge Zucker gave a preliminary view that severance would be appropriate to provide for one trial of the hauliers and one of the bondsmen. At a hearing some days later severance was indeed ordered. The trial of the haulier defendants began on 22 January and concluded on 17th February with the conviction of all five men. The trial of Grant, Sweeney and Nash is due to begin on 23 April of this year. With the order for severance such difficulties as might have arisen from a joint trial of the bondsmen and the hauliers disappeared.[21]The essential matters in respect of which the Crown seek leave to appeal is first the ruling that the indictment is limited to the alleged Bajwa/Boparan cell conspiracy and does not cover the global conspiracy. This ruling, we are told, renders 80% of the Crown's evidence inadmissible. This is important to the Crown because it is submitted that it is one thing to present a case against Grant, Nash and Sweeney on the basis that with their co-operation one company or group was using Fort Patrick to defraud the Revenue, and quite another in its effect to present a case that a large number or indeed all of the companies using Fort Patrick were using it to defraud the Revenue. Second, and equally important, is the judge's ruling that, if he had exceeded his powers in relation to the indictment, then he would exclude all the evidence not relating to the Bajwa/Boparan cell on the grounds that it would impose an impossible burden on the jury.[22]The Crown also seek leave to appeal from the following rulings:
"b) That the pleas of Guilty by Bajwa and Boparan are pleas to that narrow indictment; c) That the defendants in Operation Safe and Operation Zippy could not be parties to the global conspiracy in Operation Stockade; d) That leave to amend the indictment to deal with its perceived defects should not be granted; e) That all evidence other than that related to Bajwa/ Boparan cell is inadmissible; f) Alternatively that all evidence other than that related to the Bajwa/Boparan cell is excluded for reasons of case management."
[23]The relevant statutory provisions as to preparatory hearings and appeals are to be found in sections 7, 8 and 9 of the Criminal

Justice Act 1987 as amended ("the 1987 Act"). sections 7 and 8 provide:

"7.-(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from a hearing (in this Act referred to as a "preparatory hearing") before the jury are sworn, for the purpose 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 the proceedings before the jury; or (d) assisting the judge's management of the trial he may order that such a hearing shall be held. (2) A judge may make an order under subsection (1) above on the application either of the prosecution or of the person indicted or, if the indictment charges a number of persons, any of them, or of his own motion. ... 8.-(1) If a judge order a preparatory hearing, the trial shall begin with that hearing. (2) Arraignment shall accordingly take place at the start of the preparatory hearing."
[24]So far as material section 9 provides "9.-(1) At the preparatory hearing the judge may exercise any of the powers specified in this section. (3) He may determine- ... (aa) a question arising under section 6 of the Criminal Justice Act 1993 (relevance of external law of certain charges of conspiracy, attempt and incitement); (b) any question as to the admissibility of evidence; and (c) any other question of law relating to the case. ... (10) An order or ruling made under this section shall have effect during the trial, unless it appears to the judge, on application made to him during the trial, that the interests of justice require him to vary or discharge it. (11) An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c), but only with leave of the judge or the Court of Appeal. ... (14) On the termination of the hearing of an appeal, the Court of Appeal may confirm, reverse or vary the decision appealed against."[25]The regime provided by sections 7, 8 and 9 of the 1987 Act applies in cases of serious and complex fraud. A similar regime is provided by Part III of the Criminal Procedure and Investigations Act 1996 - `the 1996 Act', in relation to cases of such complexity or length that substantial benefits are likely to accrue from a preparatory hearing. Sections 7 and 9 of the 1987 Act have their equivalents in sections 29 and 31 of the 1996 Act. Again there is a right of interlocutory appeal with leave: section 35 of the 1996 Act.[26]Part IV of the 1996 Act (sections 39 to 43) makes provisions in respect of "pre-trial hearings". These are hearings in the Crown Court before the start of the trial - here when the jury is sworn or a plea accepted - section 39(3). section 40(1) empowers a judge to make rulings at a pre-trial hearing as to any question as to the admissibility of evidence and any other question of law relating to the case. There is no provision for an interlocutory appeal.[27]The 1987 and the 1996 Acts thus provide three regimes: preparatory hearings in cases of serious and complex fraud, preparatory hearings in complex or long cases, and pre-trial hearings without restriction to type of case. Each provides for decisions as to admissibility of evidence and as to questions of law. Only the first two provide a right of interlocutory appeal with leave. Thus, if the decision is made at a pre-trial hearing, an aggrieved defendant must wait until the end of the trial before he may appeal and the Crown has no appeal.[28]It is submitted on behalf of the defendants, Grant, Sweeney and Nash, that for a ruling as to a question of law or evidence to be subject to appeal as provided for in section 9(11) of the 1987 Act it must be a ruling which was made for one or more of the purposes set out in section 7 and that the rulings here were not for such a purpose. It is submitted that a ruling is otherwise not to be treated as an exercise of the powers given by section 9 which may be exercised at a preparatory hearing as provided for by section 7. It is submitted that it must be treated as an order made in the exercise of the power provided by section 40 of the 1996 Act, namely an order made at a pre-trial hearing, in relation to which no interlocutory appeal is available.[29]We turn now to the inter-relationship between section 7 and section 9 of the 1987 Act. The first authority to which we should refer on the 1987 Act is in re Gunarwardena [1990] 1 WLR 703. The applicants there sought leave to appeal from the judge's refusal to stay the indictment on the ground of abuse of process because of unjustifiable delay. It was held that there was no jurisdiction to grant leave. The primary issue for the court was whether, once a judge had decided to hold a preparatory hearing for one or more of the purposes set out in section 7(1) of the 1987 Act, he could exercise his powers under section 9(3) for any purpose or whether he could only exercise them for a section 7(1) purpose or purposes. The court held that the restrictive interpretation was the correct one, and that a decision which was not made for a section 7(1) purpose was outside the ambit of the preparatory hearing and so it was not subject to appeal under the Act. Among its reasons the court stated at page 707E:
"We have to concern ourselves with new legislation relating specifically to one type of crime, having many facets of course, namely, fraud. Finally we look at the words which are bracketed in section 7(1), `in this Act referred to as a "preparatory hearing"
' and then at the words which begin section 9(1), `At the preparatory hearing.' That is another indication we think that the material legislation means that the set purposes and no other may be served throughout the existence of the preparatory hearing, and in respect of every application which is made to the judge during the hearing. Care must be taken to avoid confusion between a preparatory hearing under the Act and the informal pre-trial review. If, looking squarely at the matter, the judge comes to the conclusion that the application before him does not relate to one of those purposes, then he cannot entertain that application within the ambit of the preparatory hearing." The reference at the end of the former paragraph to "... the informal pre-trial review ..." may now be read as a reference to a pre-trial hearing under Part IV of the 1996 Act.[30]Gunawardena was considered and approved by a court presided over by Lord Lane CJ in R -v- Moore (unreported, 5 February 1991). In relation to the sub-provisions of section 7(1) of the 1987 Act, Lord Lane said:
"The quashing of the count of theft which is alleged against the defendant Moore: it is perfectly true that indirectly, if the count was quashed, it might have resulted in an expedition of the proceedings before the jury, because there would be that much less material to go through. But that was not the purpose of the motion to quash. The object was to prevent Moore being faced with a charge of theft, or perhaps to put right an error in the procedure in that the count had been wrongly included when there was no evidence on the committal documents. However it seem to us that 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 Gunarwardena , by which we are bound, and with which respectfully we agree, in our judgment the prosecution's argument succeeds. There is no jurisdictional basis upon which this Court can entertain the appeal. The same considerations apply, in our judgment, to the refusal by the learned Judge to order the prosecution to elect between the conspiracy counts on the one hand, and the substantive counts on the other. The purpose of that submission was, at the very highest, to restrict the prosecution's ambit and so to ease the task of the defence, and also, perhaps technically, to conform, so it was alleged, with the 1977 Practice Direction which, in our judgment, does not strictly apply to the present circumstances."[31]These cases make it clear beyond argument that an interlocutory appeal under section 9(11) only lies when the section 9(3)(b) and (c) powers are exercised for section 7(1) purposes.[32]The governing purposes set out in section 7(1) relate to the trial judge's management of the trial, that is to say, on matters facilitating the trial. The purpose is the judge's purpose. This was made clear in Hedworth [1997] Cr App R 421 at 429, where Evans LJ relied on Maxwell (unreported, a decision of this Court on 9th February 1995) where Swinton Thomas LJ said:
"... it is not the purpose of the defence which governs the operation of section 7. The relevant purpose is that of the court or judge."
The purpose of the defence will often be different to that of the court or judge.[33]In Jennings [1994] Cr. App. R. 308 the application sought to be appealed under section 9(11) was to sever two counts from an indictment against three defendants on the ground that the admission of evidence on those counts would be prejudicial to the others. It was held that there was no jurisdiction under section 9 to entertain an appeal from the judge's decision refusing severance. Rose LJ stated at page 312:
"Whether there is evidence to support a count is a matter of law.

(d) "

[34]The general rule is there stated. The court was not in that case concerned with any question of case management: it could not sensibly be argued that the "purpose" of the severance application was any of the qualifying purposes listed in section 7(1).[35]But then the passage continues:
"It may be possible to argue, though we give no encouragement whatever to such an argument, that a submission seeking severance for the purpose of reducing complexity is capable of assisting the judge's management of the trial within section 7(1)(d) and is therefore capable of giving rise to an appeal under section 9. But, even if such an appeal were possible, in that, in any event, it would relate to the exercise of judicial discretion, it could only succeed if that exercise were shown to have been fundamentally flawed (see the case of Saunders ). But this is not the present case."
[36]This passage points to the possibility of another situation in which a question of severance may arise. Where severance is desirable to reduce complexity, and to achieve trial manageability, then in our judgment, the purpose of severance is plainly that of assisting the judge's management of the trial (see, eg R -v- Novac 65 Crim App R 107 at 188, as to the shortcomings of long trials). Severance is an important case management weapon. Where the judge uses it for that purpose, then an interlocutory appeal will, in appropriate cases, lie. It will then face the difficulty mentioned by Rose LJ of attacking the exercise of a discretion.[37]In his submissions on behalf of the Crown Mr. Lucas referred us to the cases of Radak (unreported, 10th July 1998) and Sawtell (unreported, 13 September 2000). He suggested that they showed a relaxation of the requirement that, for there to be a right of appeal under section 9, the ruling must have been made for a purpose specified in section 7. In Radak this court considered an appeal by leave of the judge. The decision appealed against was as to the admission of witness statements without the maker being called as a witness. The appeal was allowed. In Sawtell the issue was as to the admissibility of certain evidence which the prosecution wished to put before the jury. The judge had ruled it admissible. This court considered the appeal on its merits and refused leave to appeal. In neither case was any question raised as to this court's jurisdiction to hear an appeal or to grant leave. So we do not consider that they can be relied on to show a relaxation of the approach established by Gunarwardena and by Moore . The highest that it can be put is that in these cases (and, we add, in a number of others) the section 7(1) purpose has not been examined.[38]The question for us is: was the judge's ruling as to the scope of the indictment a decision which was made for a purpose identified in section 7(1)(a) to (d)? If it was, the judge was exercising his power under section 9(1)(c) to determine a matter of law relating to the case, and so his decision is subject to appeal. If it was not, he is not to be taken to have been exercising his power under the section and is not subject to appeal. In considering this question of purpose, we must not confuse "purpose" with "consequence" or "effect"[39]We have referred to the ruling as being as to the scope of the indictment. More precisely stated it is a ruling as to the construction of the indictment. The question was whether it was to be construed as relating to the global conspiracy or relating only to the cell conspiracy. It was therefore a ruling as to the issues in the case: what were they? We consider therefore that the purpose of that ruling fell within the words of section 7(1)(a) of the Act as "identifying issues which are likely to be material to the verdict of the jury". Was the jury going to have to determine whether there was a global conspiracy to which the defendants were party: or was the jury going to have to determine whether there was a cell conspiracy to which the defendants were party? Further, the judge's purpose was pro-active case management. He made that quite clear by his justification of all his rulings of 21st September 2000 on case management grounds, to ensure that the jury were not over-burdened.[40]We are therefore satisfied that an appeal lies on the issues we have referred to in paragraph 21, and we grant leave.[41]It will not be possible to re-assemble the Court with the present constitution. So it will fall to another constitution of the Court to examine the Crown Court's purpose in the remainder of the rulings, to determine whether an appeal lies, and further to decide the appeals as necessary. The earliest possible hearing date is desirable.

Cited in 1 later judgment