R. v Crown Prosecution Service, Re Interlocutory Application

An interlocutory appeal under section 35 of the Criminal Procedure and Investigations Act 1996 lies only from a preparatory-hearing ruling made for a specified purpose in section 29(2). A ruling intended to secure a fair trial by regulating disclosure is not appealable merely because it may assist issue identification, comprehension, expedition or trial management.

In non-exhaustive guidance, the court stated that Article 6 does not generally require full transcription of extensive audio-surveillance material. The need for transcription is fact-sensitive. It depends, among other matters, on whether material is used or unused, defined defence issues, proportionality, the reliability of monitoring records, and timely access to material from which the defence can obtain necessary transcripts.

The Crown purported to appeal, with the trial judge’s leave, from orders made during preparatory hearings in a complex fraud and money-laundering prosecution. The orders required extensive transcription of audio-surveillance material, including the whole product of one listening probe and 700 hours from a separate operation.

The Crown contended that disclosure of the recordings, searchable monitoring material, summaries and hard drives was sufficient. It asked whether Article 6 required the prosecution to prepare and disclose full transcripts of surveillance product on which it did not rely evidentially.

The central issue was whether the order was an appealable ruling under section 35 of the Criminal Procedure and Investigations Act 1996, read with sections 29 and 31.

1. Disposition. The court held that it had no jurisdiction to entertain the Crown’s purported interlocutory appeal. The trial judge’s order was made to secure a fair trial by prescribing the form of prosecution disclosure. That was not one of the specified purposes of a preparatory hearing in section 29(2) of the Criminal Procedure and Investigations Act 1996.
2. Section 35(1) permits an appeal from a ruling under section 31(3), but a ruling made at a preparatory hearing is appealable only where it was made for a statutory purpose in section 29(2). The statutory purposes must be the ruling’s purpose, rather than a possible consequence. A fair-trial disclosure ruling may assist the management or expedition of a trial, but that does not bring it within section 35.
3. The court added that a trial judge’s wish to obtain the Court of Appeal’s views cannot found a preparatory hearing or confer jurisdiction. This was consistent with R v Singh [2005] EWCA Crim 90.
4. Obiter, the court said that if the overwhelming majority of the surveillance product was unused material, it was very doubtful that the judge had power to require its transcription. Although the 1996 Act did not govern this prosecution, timely service of hard drives would ordinarily safeguard Article 6(3)(b) by enabling the defence to obtain transcripts if needed. Article 6 does not generally oblige the prosecution to transcribe all surveillance product.
5. Obiter, the court gave non-exhaustive guidance for future cases. Orders for extensive transcription require attention to proportionality and public resources, compliance with the Evidential Procedure Manual, whether material is used or unused, clearly defined issues, service of defence statements, the significance of any inaccuracies, and a clear account of possible future prosecution reliance on disclosed material. Minor inaccuracies alone will not usually justify full transcription where the investigation was honestly and properly conducted.

• Court of Appeal (Criminal Division): The Crown’s purported interlocutory appeal was held to be outside the jurisdiction conferred by section 35 of the Criminal Procedure and Investigations Act 1996. The court therefore did not quash the transcription orders.
• Crown Court: At a May 2005 preparatory hearing, the trial judge declined to revisit an earlier transcription ruling and ordered further transcription of audio-surveillance material.