Smith v Crown Prosecution Service

A decision of the Crown Court concerning compliance with the statutory mode-of-trial procedure for either-way offences is a decision relating to trial on indictment where it affects how the proposed trial will proceed. The High Court therefore has no jurisdiction to entertain an appeal by case stated under section 28(2)(a) of the Supreme Court Act 1981. The statutory safeguard in paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998 must be observed, but the court expressed no concluded view on the ultimate effect of a procedural failure because that issue was outside its jurisdiction.

The claimant was sent for trial in the Crown Court under section 51 of the Crime and Disorder Act 1998 after being charged with, among other matters, a firearms offence triable only on indictment. The prosecution later preferred three indictments. Two contained only either-way offences, but the Crown Court failed initially to give the claimant the opportunity required by paragraph 7 of Schedule 3 to make representations about mode of trial.

The Crown Court subsequently allowed that procedure to be followed and concluded that the two indictments should remain in the Crown Court. The claimant appealed by case stated, arguing that the earlier failure had terminated or invalidated the proceedings. The central question before the Divisional Court was whether the Crown Court’s decision concerning the procedural irregularity related to trial on indictment within section 28(2)(a) of the Supreme Court Act 1981.

1. Jurisdiction. The appeal was outside the High Court’s case-stated jurisdiction. The decision whether the failure to follow paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998 could be remedied by conducting the prescribed procedure 15 days later was plainly a matter affecting the conduct of the trial. It therefore related to trial on indictment within section 28(2)(a) of the Supreme Court Act 1981. Question 1 was answered, “Yes”.
2. Applicable approach. The court applied the guidance in Smalley v Warwick Crown Court [1985] 80 Cr.App.R 205 and R v Manchester Crown Court ex parte the Director of Public Prosecutions [1994] 98 Cr.App.R 461. The relevant question was whether the decision affected the conduct of the trial or arose in the issue between the Crown and the defendant formulated by the indictment. The restriction exists to prevent interlocutory challenges causing delay and expense, while leaving errors capable of challenge after conviction in the Court of Appeal (Criminal Division).
3. Question 2. The court declined to determine whether the procedural failure made the later proceedings void or whether the paragraph 7 procedure could validly be completed later. Openshaw J nevertheless indicated that the Crown Court’s practical solution appeared sensible. Gage LJ regarded it as unattractive to treat the proceedings as a nullity where the claimant had subsequently been given the opportunity to exercise all his paragraph 7 rights, but stressed that these observations could not bind the Court of Appeal Criminal Division.
4. Disposition. The High Court had no jurisdiction to entertain the appeal by case stated. Question 2 was not answered.

The claimant appealed by case stated from the decision of His Honour Judge Cripps sitting in the Crown Court at St Albans on 28 June 2005. The Divisional Court held that it lacked jurisdiction under section 28(2)(a) of the Supreme Court Act 1981 because the decision related to trial on indictment.