R v. H (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

A ruling on an application for prosecution disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 is not, without more, a determination of a question of law relating to the case under section 9(3)(c) of the Criminal Justice Act 1987. It therefore attracts no interlocutory appeal under section 9(11), even when made during a preparatory hearing.

An appeal may lie where deciding the disclosure application requires the judge separately to determine a qualifying question of law, such as the legal scope of an indictment. The appeal then concerns that question of law alone, not the disclosure ruling itself. The statutory right of appeal is carefully limited and cannot be enlarged merely because legal error is alleged in the judge’s exercise of judgment.

The appellant and others were charged with conspiracy to defraud and associated corruption offences arising from allegedly false invoices submitted to IKEA. She sought disclosure of IKEA’s records concerning other suppliers, contending that those records might demonstrate defects in IKEA’s accounting system and weaken the prosecution accountant’s conclusions.

HHJ Hodson heard the application under section 8 of the Criminal Procedure and Investigations Act 1996 during a preparatory hearing under section 7 of the Criminal Justice Act 1987. He refused disclosure. The Court of Appeal held in [2006] EWCA Crim 1975 that it lacked jurisdiction to hear an appeal under section 9(11), but certified questions of general public importance and granted leave so that the jurisdictional issue could reach the House.

The central question was whether a disclosure ruling made during a preparatory hearing was a ruling on a question of law relating to the case and was therefore immediately appealable.

1. Appeal dismissed. The House unanimously held that the Court of Appeal had no jurisdiction under section 9(11) of the Criminal Justice Act 1987 to entertain an appeal from the disclosure ruling. The ruling did not determine a question of law relating to the case within section 9(3)(c).

2. Per Lord Nicholls, Lord Hope, Lord Scott, Lord Rodger and Lord Mance, the nature of the issue determined is decisive. A disclosure application ordinarily requires the judge to find relevant facts, exercise judgment and apply the statutory disclosure test. An allegation that the judge misdirected himself may raise a question of law about the validity of his decision, but it does not convert the underlying disclosure issue into a question of law within section 9(3)(c).

3. Per Lord Hope and Lord Rodger, with Lord Mance reaching the same practical conclusion, the powers specified in section 9 govern the business forming part of a preparatory hearing. A judge may nevertheless determine a disclosure application under section 8 of the Criminal Procedure and Investigations Act 1996 on the same occasion, because that statutory power is available whenever the application is properly made. Such a determination is not thereby brought within section 9. Lord Nicholls and Lord Scott considered that the judge’s powers during the preparatory-hearing part of the trial were wider, but agreed that this difference did not affect appealability.

4. The purposes in section 7(1) are to receive a broad and practical interpretation. Preparatory hearings permit suitable trial issues, including questions capable of terminating all or part of the proceedings, to be resolved before the jury is sworn where substantial trial-management benefits are likely. Earlier Court of Appeal authority imposing a narrow distinction between rulings facilitating a trial and rulings terminating or restricting it was displaced to the extent inconsistent with that approach.

5. A disclosure dispute may depend upon a distinct question concerning admissibility or another question of law relating to the case, such as the legal scope of a count in the indictment. That question may be determined under section 9(3) and appealed under section 9(11). The appeal is confined to the qualifying legal question; the consequential disclosure determination is not independently appealable.

6. The limited appellate jurisdiction could not be enlarged by strained construction. Any wider right of interlocutory appeal from disclosure rulings required legislation.

1. House of Lords: The appeal in [2007] UKHL 7 was dismissed unanimously. The Court of Appeal correctly held that it lacked jurisdiction to review the disclosure ruling under section 9(11) of the Criminal Justice Act 1987.

2. Court of Appeal (Criminal Division): In [2006] EWCA Crim 1975, the court held that it had no jurisdiction to hear the proposed appeal. It granted leave to appeal and certified questions of law of general public importance so that the jurisdictional issue could be considered by the House.

3. Crown Court: During a preparatory hearing, HHJ Hodson refused the appellant’s application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 and refused leave to appeal.