In re Kanaris (application for a writ of Habeas Corpus)

The House of Lords held that the Crown Court had properly ordered preparatory hearings under Part III of the Criminal Procedure and Investigations Act 1996 and that a preparatory hearing took place in respect of the respondent on 5 October 2001. The key legal conclusions were that (i) a judge may order a preparatory hearing in respect of some but not all defendants on the same indictment where justice and case management require it (sections 29–32, Criminal Procedure and Investigations Act 1996), (ii) where a preparatory hearing is ordered the trial is treated as starting with that hearing (section 30), so the statutory custody time limit provided by the Prosecution of Offences (Custody Time Limits) Regulations 1987 (regulation 5(6B)) ceases to protect the accused from that point, and (iii) while custody time limits are an important safeguard and the court must take Article 5.3 of the European Convention into account, the exercise of case management powers is not prohibited merely because it will lengthen pre-trial detention; bail remains available and the decision whether to grant bail must weigh the period of further detention likely to be incurred. The appeal was allowed and the question of continued release on bail was remitted to the High Court for further consideration.

The respondent, arrested on 10 April 2001 and committed to the Crown Court, was one of eleven defendants on a single indictment. The Prosecution of Offences (Custody Time Limits) Regulations 1987 gave a custody time limit that would expire on 21 October 2001. On 7 September 2001 at Kingston Crown Court the judge accepted the Crown's invitation to exercise powers under Part III of the Criminal Procedure and Investigations Act 1996 and conducted a preparatory hearing for nine defendants after postponing arraignment for two defendants (one because fitness to plead required assessment). On 5 October 2001 the respondent was arraigned at a further hearing at which the Crown and judge treated that hearing as a preparatory hearing in his case.

The respondent applied for a writ of habeas corpus in the Administrative Court (Andrew Smith J), which held that no preparatory hearing had actually begun in respect of the respondent and that the custody time limit had expired; the judge ordered release on bail. The Crown appealed to the House of Lords.

The issues before the House were: (i) the proper construction of the orders made on 7 September and 5 October 2001 and whether they amounted to preparatory hearings, (ii) whether a judge may lawfully order separate preparatory hearings in respect of some defendants joined on an indictment, and (iii) whether a preparatory hearing must be more than a formal or nominal act before it can have the effect of terminating statutory custody time limits.

The House analysed the relevant statutory provisions (sections 29–32 of the Criminal Procedure and Investigations Act 1996; section 22 and section 22(11) of the Prosecution of Offences Act 1985; regulation 5(6B) of the 1987 Regulations) and the transcript of the Crown Court hearings. It concluded that the judge had in fact ordered and conducted preparatory hearings: on 7 September in respect of nine defendants and on 5 October in respect of the respondent. The House further held there was no statutory or practice rule preventing a judge from ordering separate preparatory hearings as circumstances require. The court rejected the High Court's characterisation of the proceedings as a fiction designed to avoid custody time limits and emphasised that the custody time limit remains an important safeguard; where a preparatory hearing does remove the protection it does not preclude bail applications and the judge considering them must take into account the likely period of further detention. The House allowed the Crown's appeal and remitted the question of whether the respondent should continue to be released on bail to the High Court.

Appeal allowed. The House held that preparatory hearings under Part III of the Criminal Procedure and Investigations Act 1996 had properly been ordered and did occur (9 defendants on 7 September 2001 and the respondent on 5 October 2001). A judge may order separate preparatory hearings in respect of some defendants joined on an indictment where justice requires. The effect of a preparatory hearing is to start the trial for the purposes of custody time limits (section 30), thereby ending the statutory custody time limit protection; however, this does not remove the accused's entitlement to apply for bail and the court must take Article 5.3 considerations into account. The matter of continued bail for the respondent was remitted to the High Court.

Appeal from Administrative Court, Queen's Bench Division (Andrew Smith J) ([2002] EWHC 109 (Admin)), which had issued a writ of habeas corpus and ordered the respondent's release on bail. The House of Lords allowed the Crown's appeal and remitted the bail issue to the High Court.