Smith v Crown Prosecution Service [2005] EWHC 3506 (Admin)

Case No CO/8054/2005[2005] EWHC 3506 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 15th November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE OPENSHAW
Between
SMITHClaimant-v-
Between
CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M MCCARTHY (instructed by Farringdon Solicitors) appeared for CLAIMANTMR P FIELD (instructed by CPS Hertfordshire) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE OPENSHAW: Henry Lee Smith appeals by way of case stated from a decision of His Honour Judge Seddon Cripps sitting in the Crown Court at St Albans on 28th June of this year.[2]Before dealing with this decision, perhaps it is helpful to set out the background which is this. On 28th February of this year Smith was charged with a series of offences arising out of serious domestic conflicts with his partner. One of the offences with which he was charged was possessing a sawn-off shotgun which was a prohibited weapon contrary to section 5(1)(a) of the Firearms Act 1968 (as amended). That offence being triable on indictment only, it was necessary for the magistrates to send him for trial to the Crown Court, pursuant to section 51 of the Crime and Disorder Act 1998, which they did on 16th May. The prosecution preferred first a single bill of indictment containing 22 counts. On 24th May the preliminary hearing took place before His Honour Judge Catterson who helpfully suggested that the case might be more manageable if the indictment was to be recast into three separate parts.[3]On 13th June the matter again came before Judge Catterson for the plea and case management hearing. By this time, the prosecution had accepted the judge's suggestion and had preferred three separate bills of indictment. By leave of the court, and without objection, those indictments were signed. By indictment 1, the prosecution alleged an assault occasioning actual bodily harm and a common assault, none of which charges were triable on indictment only. By indictment 2, the prosecution alleged theft and a charge of assault occasioning actual bodily harm, and an alternative charge of common assault; again, none of those charges were triable on indictment only. By indictment 3, the prosecution alleged a variety of firearms offences and common assault by spitting upon a police officer, of which only the charge for possessing a sawn-off shotgun was triable on indictment only. Again, without objection, the appellant was arraigned on each indictment and to each count of these three indictments the defendant entered a plea of not guilty. No problem was presented by indictment 3 which did charge an offence triable on indictment only and which accordingly the court did then have jurisdiction to try. The trial for that matter was and is fixed for 9th January next year. Indictments 1 and 2 were listed, and indeed remain listed, for mention to follow the conclusion of the trial on indictment 3.[4]Unfortunately, counsel, and indeed the judge, overlooked the provisions of Schedule 3, paragraph 7 of the Crime and Disorder Act 1998 which requires the court to allow the defendant to make representations as to the mode of trial in respect of charges laid in indictments which, following the sending of the case under section 51 of the Crime and Disorder Act, are in fact drafted to allege only either way offences. This procedure provides an important safeguard for protection to a defendant who would otherwise be deprived of making representations upon the appropriate venue for his trial. Had he originally only been charged with offences triable either way, that is to say by either the Magistrates or by the Crown Court, he may have sought to persuade the Magistrates' Court that the case was suitable for summary trial. These procedures should, therefore, have been followed in respect of indictments 1 and 2 and the failure to do so was an irregularity.[5]Very shortly after that hearing, counsel realised belatedly that the court had not followed the procedures set out in Schedule 3. Accordingly, the matter was listed before His Honour Judge Cripps QC on 28th June for mention. Counsel for the appellant, apparently relying on the case of Haye [2003] Crim.L.R 287, argued that the failure to follow the procedures as laid down by Schedule 3, and in particular by the purported act of arraignment, the proceedings had in some way been terminated. He submitted that if the prosecution intended to proceed against the appellant in respect of those charges, they had either to commence proceedings all over again by recharging him or by proceeding against him by way of voluntary bill of indictment, all at considerable public expense and inconvenience.[6]Judge Cripps, understandably, was not impressed by that argument. He saw nothing in the case of Haye that compelled such an unattractive conclusion. He ruled that the case of Haye decided only that there could be no valid conviction based upon a trial which, following a failure to follow the provisions of Schedule 3, was a nullity. Accordingly, Judge Cripps held that the appellant had been validly sent for trial and that the three new indictments were validly preferred and validly signed. Furthermore, he held that the indictments 1 and 2 remained valid notwithstanding that the procedure of Schedule 3 had not thereafter been followed. He considered whether there was any prejudice or disadvantage to the appellant in proceeding and, of course, found none. None was alleged then or now. He therefore ruled that the irregularity could, and indeed should, be cured by allowing the procedure required by paragraph 7 to be followed there and then. In fact, both the appellant and the judge thought that the case was suitable for trial at the Crown Court, so everyone ended up in the position in which they thought they were in the first place 15 days before. Mr McCarthy on behalf of the appellant now seeks to challenge that decision by an appeal to this court by way of case stated.[7]One might observe that perhaps if challenge was to be made, it might more properly have been made by way of judicial review, but that point is not taken here and I pass over it. However, the first hurdle that he has to cross is set by section 28(2)(a) of the Supreme Court Act 1981 by which the High Court does not have jurisdiction by way of case stated to question "a judgment or other decision of the Crown Court relating to trial on indictment". This exclusion is intended to ensure that, except in those complex cases dealt with by way of designated preparatory hearings, appeals relating to trials on indictment do not fall for determination unless and until conviction is recorded and then only to the Court of Appeal (Criminal Divison). Any other procedure is likely to add delay and expense and may, in the event of an acquittal, prove to be unnecessary.[8]The question whether an issue does or does not relate to a trial on indictment has been the subject of much litigation. Guidance is first to be found in the speech of Lord Bridge of Harwich in the leading case of Smalley v Warwick Crown Court [1985] 80 Cr.App.R 205. Lord Bridge suggested that a useful test might be whether the decision appealed against was "an order affecting the conduct of a trial". He said that it was not necessary that the decision arose during the course of the trial and gave, at page 217, this general guidance:
"It must not be thought that in using the phrase 'any decision affecting the conduct of a trial on indictment' I am offering a definition of a phrase which Parliament has chosen not to define if the statutory language is, as here, imprecise. It may well be impossible to prescribe in the abstract the precise test on which side of the line any case should fall and therefore necessary to proceed, as counsel has submitted that we should, on a case by case basis. But it is obviously desirable that we should give clear guidance, or as clear guidance as the statutory language permits, and I hope the criterion I have suggested may prove a helpful pointer to the right answer in most cases."
[9]That test was further refined by Lord Browne Wilkinson in R v Manchester Crown Court ex parte the Director of Public Prosecutions [1994] 98 Cr.App.R 461, at page 466:
"The earlier decisions of this house establish the reasons why judicial review of decisions taken in relation to trials on indictment are forbidden to avoid delay. If it were possible to challenge decisions taken in the course of a criminal prosecution, not only the prosecution but also the accused would be able to put off the conclusions of the trial by taking technical points and then seeking to have the judge's decision reviewed in the Divisional Court. Experience in other jurisdictions shows that those on trial are only too willing to put off the evil date by taking interlocutory points to appeal. English law has set its face against this."
Later on the same page:
"Although the inability of the accused to challenge the Crown Court's decision by judicial review means that he has to endure a full trial, he is usually not otherwise prejudiced. If convicted he can appeal to the Court of Appeal and challenge the erroneous decision on the appeal. If acquitted, he is not prejudiced."
Yet further on that page:
"In my judgment, the case by case method of elucidating the meaning of section 25(3), it of course being a judicial review application in that case, has now gone far enough to make it possible to detect a further helpful pointer with one possible exception. The only decisions of the Crown Court which have been held to be reviewable are those in which either the order was made under a wholly different jurisdiction (for example, binding over an acquitted defendant) or an order sought to be reviewed as being made against someone other than the accused. Thus the Divisional Court has been held to have jurisdiction to review decisions as treating a reconnaissance given by a third party ordering solicitors to pay costs thrown away for an order forfeiting a motorcar belonging to someone else other than the defendant which had been used by the defendant in the course of drug dealing. It may therefore be a helpful further pointer for the true construction of the section to ask the questions: 'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?'. If the answer is "
Yes" then to permit the decision to be challenged by judicial review may lead to delay in the trial. The matter is therefore probably excluded for review by the section. If the answer is "No", the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial. Therefore, it may well not be excluded by the section."[10]In our judgment, the decision as to whether the procedural irregularities in not following paragraph 7 of Schedule 3 of the Crime and Disorder Act 1998 to the draft bills of indictment 1 and 2 could be remedied by going through the prescribed procedures 15 days later was plainly a matter affecting the conduct of the trial and is therefore not amenable to review by case stated.[11]Turning therefore, to the actual questions posed. Question 1 reads as follows:
"Was my decision a decision relating to trial on indictment within the meaning of those words in section 28(2)(a) of the Supreme Court Act 1981?" permits only one answer, namely "
Yes". In the light of my decision that we do not have jurisdiction to hear this appeal, it is perhaps strictly unnecessary for me to go on and answer question 2 which is in these terms:
"Where an indictment does not contain a count alleging an indictable offence of a failure to comply with Schedule 3, paragraph 7 of the Crime and Disorder Act 1998 (a) bring those proceedings to an end, or (b) mean that the proceedings post to the failure are void and of no effect with the result that Schedule 3, paragraph 7 procedure can be followed at some time thereafter?"
. However, one would not want to encourage the appellant to think that he was likely to have any more success in challenging that part of the ruling by Judge Cripps which seems to me to have been a sensible and practical solution to the problem with which he was presented. However, I do not come to any concluded view on that.

LORD JUSTICE GAGE: I agree. I desire to add a few words on question 2 raised on this appeal. Strictly, having decided, for reasons given by my Lord Openshaw J, that this court has no jurisdiction to entertain a review, it is unnecessary for me to express any view. However, Mr McCarthy submits that it is an important point and has asked this court to make some comment on it if it can.

[13]What has happened in this case is that the judge has given the appellant the opportunity to exercise all of his rights under paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998. After giving him such an opportunity, we have been told that the judge has decided that the allegations should remain in the Crown Court and be tried in due course. The procedure has therefore now been followed.[14]Mr McCarthy submits that it is too late and the whole procedure is a nullity by reason of the failure to follow the procedure when the appellant first was arraigned in the Crown Court. I find this an unattractive argument and one to which the court should only accede if persuaded that it was the only course it could adopt. Anything I say cannot, of course, bind the Court of Appeal Criminal Division if ultimately it has to deal with this argument if and when the appellant is convicted. For my part, I regard the judge's solution to the problem as both sensible and practical. It had the effect of giving back to the appellant the right to persuade the court that summary trial would be more suitable or to consent to summary trial if the court considered that that was the suitable course to adopt.[15]The facts of this case are readily distinguishable from the R v Haye [2002] EWCA Crim 2746, and the R v Gale [2004] EWCA Crim 2937. The fact that this court cannot determinatively decide this issue should not, in my judgment, be taken by the appellant as in any way encouraging him to think that on a subsequent appeal this argument may succeed. I agree that the first question should be answered in the way my Lord has proposed. Thank you both very much.[16]MR FIELD: Thank you, my Lords.