H, R. v Re Interlocutory Application

An interlocutory appeal under section 9(11) of the Criminal Justice Act 1987 is available only for a ruling which forms part of a preparatory hearing held for a statutory purpose. The relevant inquiry is the purpose of the ruling, not an incidental consequence for trial management, identification of issues, or a fair trial.

A disclosure ruling determines whether material should be disclosed. It is not thereby transformed into a preparatory-hearing ruling. It therefore falls outside the statutory interlocutory appeal jurisdiction, despite modern case-management practice and the importance of disclosure.

H faced charges of fraud and corruption arising from alleged invoice frauds and corrupt payments. At a preparatory hearing, she sought disclosure under the Criminal Proceedings and Investigations Act 1996 concerning other suppliers to the alleged victim company. She contended that comparable discrepancies might demonstrate shortcomings in the company’s accounting systems.

The trial judge refused the request, holding that the defence had not shown reasonable cause to believe the material might assist the defence and that the application was a trawl. The judge refused leave to appeal and the Registrar referred the matter to the Court of Appeal. The central issue was whether a disclosure ruling made while a preparatory hearing was in progress could be appealed under section 9(11) of the Criminal Justice Act 1987.

1. Leave was granted, but the appeal was dismissed. The Court held that it had no jurisdiction to entertain an interlocutory appeal from the refusal of disclosure.

2. Section 7(1) of the Criminal Justice Act 1987 confines a preparatory hearing to specified purposes. Section 9(11) permits an appeal only from an order or ruling under section 9(3)(b) or (c). A ruling made while a preparatory hearing is in progress does not necessarily form part of that hearing for those statutory purposes.

3. The governing inquiry is the purpose of the ruling, rather than its possible consequences. The Court applied the strict approach in R v Gunarwardena [1990] 91 Cr App R 55 and R v Moore (unreported, 5th February 1991). A ruling cannot be brought within section 7(1) merely because it may assist case management, identify issues, assist comprehension, or contribute to a fair trial.

4. The direct disclosure authorities, particularly R v Maxwell (unreported, 9th February 1995) and R v Crown Prosecution Service [2005] EWCA Crim 2342, established that the purpose of a disclosure ruling is to determine whether and how material should be disclosed. That purpose is not one of the statutory purposes of a preparatory hearing.

5. The Court accepted that criminal procedure had undergone a cultural change towards active case management. That change did not alter the statutory classification of disclosure rulings. The refusal of disclosure was therefore outside the interlocutory appeal jurisdiction.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 1975, the Court granted leave to appeal but dismissed the appeal because the disclosure ruling did not form part of a preparatory hearing for the statutory interlocutory appeal route.
• Crown Court: At a preparatory hearing, the trial judge refused H’s application for disclosure and refused leave to appeal. No citation for that ruling is stated in the judgment.