In re Kanaris (Respondent)(application for a writ of Habeas Corpus)(on appeal from the Administrative Court of the Queen's Bench Division of Her Majesty's High Court of Justice)

A Crown Court judge may order separate preparatory hearings for defendants charged on the same indictment, including defendants charged jointly on the same count. Each defendant is charged personally with an offence, and neither statute nor practice requires one preparatory hearing for every defendant.

A preparatory hearing must occur in substance. An artificial arraignment cannot terminate a custody time limit. An express order commencing the hearing, followed by the exercise of statutory preparatory-hearing powers, constitutes an actual hearing and starts the trial.

Judges and prosecutors must protect defendants against unjustified prolonged pre-trial detention. A judge considering a preparatory hearing should preserve the custody time limit until its removal becomes necessary, while using available pre-hearing case-management powers where appropriate.

The respondent was one of eleven defendants charged on a single indictment with conspiracies concerning the laundering of criminal proceeds. He remained in custody and was subject to a statutory custody time limit expiring on 21 October 2001.

On 7 September 2001 the Crown Court began a preparatory hearing for nine defendants. The respondent was not arraigned because his fitness to plead required assessment. On 5 October 2001 he pleaded not guilty, and the judge directed that the preparatory hearing and the existing timetable should apply to him.

Andrew Smith J in the Administrative Court, [2002] EWHC 109 Admin, held that no preparatory hearing had begun. He ordered habeas corpus and the respondent's release on bail. The Crown appealed. The central issues were whether separate preparatory hearings could be held for defendants on the same indictment and whether an actual preparatory hearing began for the respondent on 5 October.

1. Appeal allowed unanimously. Lord Hutton delivered the leading speech. Lord Nicholls, Lord Slynn, Lord Steyn and Lord Hope agreed that the appeal should be allowed for his reasons. The issue whether the respondent should remain on bail was remitted to the High Court.

2. Per Lord Hutton, a judge may order separate preparatory hearings for defendants charged on the same indictment, including defendants jointly charged on one count. A joint charge remains a personal allegation that each defendant committed an offence. Neither statute nor practice prevents separate hearings where the interests of justice require them. Ordinarily one hearing for all defendants will be appropriate, but the respondent's unresolved fitness to plead justified proceeding first with the other nine defendants.

3. Per Lord Hutton, the transcript and orders showed that an actual preparatory hearing began for nine defendants on 7 September and for the respondent on 5 October. On each occasion the judge expressly treated the hearing as preparatory and exercised powers under the Criminal Procedure and Investigations Act 1996 concerning prosecution and defence statements. Later references to the next hearing concerned an adjourned or further preparatory hearing. The proceedings were therefore neither fictitious nor an artificial use of arraignment to defeat custody time limits.

4. Because section 30 of the Criminal Procedure and Investigations Act 1996 provides that the trial starts with the preparatory hearing, the respondent's trial began on 5 October 2001. His statutory custody-time-limit protection consequently ended before its proposed expiry on 21 October.

5. Lord Hope, with whose cautionary observations Lord Nicholls agreed and which Lord Steyn regarded as valuable for future cases, emphasised that custody time limits are an important safeguard. A judge contemplating a preparatory hearing in a long or complex case should avoid removing that protection before it becomes necessary. Orders available before the hearing under section 32(2)(a) may permit substantial preparation while preserving the time limit and respecting article 5.3 of the Convention.

6. Per Lord Hutton, no inflexible rule requires a judge to postpone a preparatory hearing until the substantive work can proceed expeditiously. Where the hearing ends the custody time limit, the defendant may seek bail. The judge must assess all the circumstances, including the likely duration of detention before trial.

1. House of Lords: The Crown's appeal was allowed unanimously. The House held that a preparatory hearing began for the respondent on 5 October 2001 and remitted the issue of his continued release on bail to the High Court: [2003] UKHL 2.

2. Administrative Court of the Queen's Bench Division: Andrew Smith J held that no preparatory hearing had begun, ordered that habeas corpus should issue and directed the respondent's release on bail: [2002] EWHC 109 Admin.

3. Crown Court: The judge began a preparatory hearing for nine defendants on 7 September 2001. After the respondent's fitness to plead was resolved, he was arraigned and a separate preparatory hearing began for him on 5 October 2001.