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Under the Criminal Procedure and Investigations Act 1996, a preparatory-hearing ruling normally governs the trial, but the trial judge may vary or discharge it where the interests of justice require. That power remains available after an appellate ruling has replaced the original ruling. The trial must proceed under the law which currently governs it. Accordingly, where a later Court of Appeal authority determines the applicable construction of the Terrorism Act 2000, the Crown Court must follow it rather than retain a conflicting earlier ruling.

Five defendants faced an indictment alleging, among other matters, offences under sections 57 and 58 of the Terrorism Act 2000. At a preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996, the Recorder initially held that electronically stored data could be an article for section 57 purposes. An earlier appeal produced the opposite ruling, but R v Rowe [2007] EWCA Crim 635 subsequently held that ruling to have been reached per incuriam. The Recorder then varied the ruling and permitted the section 57 prosecution to continue. The issue was whether the earlier appellate ruling nevertheless bound the Recorder in this prosecution.

1. The appeals were dismissed. The Recorder was entitled to vary the ruling made at the preparatory hearing and to permit the prosecution to continue on the section 57 counts.
2. Under section 31(11) of the Criminal Procedure and Investigations Act 1996, a ruling at a preparatory hearing normally has effect throughout the trial. It is not immutable. The judge may vary or discharge it if the interests of justice require that course.
3. Section 35(3) meant that the decision on the earlier appeal had replaced the Recorder’s original decision for the purposes of the preparatory hearing. It did not remove the continuing section 31(11) jurisdiction to vary or discharge that substituted ruling. A Crown Court judge could not alter such a ruling merely because of personal disagreement, but had to ensure that the trial proceeded under the law that governed it.
4. R v Rowe [2007] EWCA Crim 635 had decided that the earlier appellate ruling rested on an incorrect analysis of sections 57 and 58 of the Terrorism Act 2000, and was reached per incuriam. That decision critically undermined the legal basis of the existing ruling. It also made inconsistent treatment of section 57 prosecutions a serious practical risk. Those matters justified variation in the interests of justice.
5. Subject to a further ruling of the Court of Appeal or the House of Lords, Crown Courts considering the construction and ambit of section 57 had to follow R v Rowe, and could not follow the earlier ruling while disregarding Rowe. The defendants retained any valid argument, following a conviction, that a section 57 conviction was unsafe.
6. The defendants’ absence from the Rowe proceedings did not make the process unfair. Appellate courts routinely decide legal principles which affect persons involved in other proceedings without their participation.

• Court of Appeal (Criminal Division): Dismissed the defendants’ appeals against the Recorder’s decision to vary the preparatory-hearing ruling and allow the section 57 prosecution to proceed.
• Crown Court (Recorder of London): On the continuation of the preparatory hearing, the Recorder held that he should follow R v Rowe [2007] EWCA Crim 635 and varied the earlier ruling. The earlier Court of Appeal ruling in the same proceedings had been treated in Rowe as per incuriam.