Small & Anor, R. v

Where the viability of a criminal appeal depends on a vital witness’s present account, the appellate court may give focused case-management directions to establish whether the appeal can proceed. It may require written questions to be put through appropriate intermediaries, require prompt reports from the parties, and preserve the existing hearing date pending that information. The directions should also ensure timely service of any further witness material and maintain any witness summons unless the court later discharges it. This procedural ruling did not determine the merits of the appeal.

This was a directions hearing in appeals brought by Steven George Small and Brian Lancaster. The appeals had been prompted by a statement made to a solicitor by Nicola Richardson, who had given evidence against the appellants at trial.

Her current position was uncertain. She had left a witness-protection programme, was difficult to contact, and had recently been served with a witness summons while in a drug-rehabilitation unit. The court was asked to decide how to establish whether she would provide evidence capable of supporting the appeals.

The central issue was whether the appeals should remain listed for a substantive hearing while the witness’s present account and willingness to participate were clarified.

1. The court gave case-management directions; it did not determine the merits of either appeal.

2. The potential evidence of Nicola Richardson was central to whether the appeals had any continuing basis. Her availability and present account were uncertain, and her condition was described as fragile. In those circumstances, the court considered that the sensible immediate course was for the appellants to formulate written questions, to be put to her through the appropriate police and witness-support arrangements.

3. Both appellants were directed to report by email, copied to the Crown, by 4 pm on Wednesday 14 June 2006. The report was to state unequivocally whether the appeal would proceed if that had become clear, or otherwise to explain developments. The presiding judge would then decide whether the substantive hearing listed for 19 June should remain listed, be stood down, or be otherwise managed.

4. While the substantive hearing remained listed, the appellants were required to serve any further Form Ws and related witness statements by 4 pm on the following Tuesday. The existing witness summons requiring Nicola Richardson’s attendance remained in force for the time being. If the appeal was not to be heard, steps would be required to discharge it.

• Court of Appeal (Criminal Division): At this interlocutory directions hearing, the court made arrangements to clarify whether the appeals could proceed. The ruling is reported at [2006] EWCA Crim 1623.
• Lower court: The judgment refers to the trial at which Nicola Richardson gave evidence, but gives no lower-court judgment, court name, or citation.