Van Hoogstraten, R. v

An appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996 lies only from a ruling made within the proper ambit of a preparatory hearing. It is insufficient that the ruling concerns a question of law and is made during such a hearing.

The statutory purpose is assessed objectively. An application whose substance is to prevent arraignment or trial, including an application akin to quashing an indictment, is outside the purposes in section 29(2). The Court of Appeal therefore has no jurisdiction to entertain a prosecution appeal from a ruling on such an application.

The respondent had been acquitted of murder but convicted of manslaughter arising from the killing of Mohammed Raja. A previous appeal against the manslaughter conviction succeeded because of a misdirection, and the Court of Appeal ordered a retrial.

At a preparatory hearing before the nominated trial judge, the respondent submitted that, even on the Crown's agreed factual case, he could not in law be convicted of manslaughter as a secondary party. The judge accepted that submission, holding that there was no evidential basis on which a jury could find that he foresaw the act causing death.

The Crown sought leave to appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996. The central issue was whether that ruling was a ruling within the statutory purposes and ambit of the preparatory hearing.

1. The prosecution's application for leave to appeal was refused. The court had no jurisdiction because the trial judge's ruling was not made within the ambit of a preparatory hearing for the purposes of section 29(2) of the Criminal Procedure and Investigations Act 1996.
2. Section 35(1) permits an appeal only from a ruling under section 31(3). That requires more than a ruling on a question of law made during a preparatory hearing. The ruling must also fall within the statutory scope of that hearing.
3. Following Gunawardena [1990] 91 Cr App R 55, Moore, Hedworth [1997] 1 Cr App R 421 and R v W [1998] STC 550, the court held that the statutory purpose is objective. A preparatory hearing facilitates the trial of a valid indictment; it is not a vehicle for an application whose purpose is to stop the trial.
4. The respondent's application was, in substance, an attempt to prevent the retrial. It was therefore akin to an application to quash the indictment. Its possible effect on the efficient conduct of a trial could not bring it within section 29(2).
5. The court recognised that this prevented appellate examination of a ruling which frustrated the ordered retrial. Any broader prosecution right to challenge such rulings, or to seek a murder conviction after a retrial is ordered following a manslaughter conviction, was a matter for Parliament.

• Court of Appeal (Criminal Division) — The prosecution's application for leave to appeal from the preparatory-hearing ruling was refused for want of jurisdiction: [2003] EWCA Crim 3642.
• Crown Court — At a preparatory hearing, Sir Stephen Mitchell held that the agreed Crown case could not in law support a conviction for manslaughter and declined to grant the prosecution leave to appeal.
• Court of Appeal (Criminal Division) — On 23 July 2003, the respondent's appeal against his manslaughter conviction was allowed for misdirection; the conviction was quashed and a retrial was ordered.