R v H

The House dismissed the appeal. The central legal point was the scope of interlocutory appeal under section 9(11) of the Criminal Justice Act 1987 in respect of rulings made during a preparatory hearing ordered under section 7. The court held that an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 is made and decided under that Act and, as such, is not of itself a "question of law relating to the case" within section 9(3)(c) of the 1987 Act. Accordingly a refusal of disclosure does not, without more, attract the special right of interlocutory appeal in section 9(11).

The Lords emphasised that a preparatory hearing is part of the trial and that a trial judge may, in the course of a preparatory hearing, decide matters he could decide in the absence of the jury. But where a disclosure ruling depends upon no substantive question of law relating to the case (for example on the proper construction of the indictment or the admissibility of evidence), that ruling is not appealable under section 9(11). If a disclosure ruling necessarily involves the determination of a question of law within section 9(3)(c), that question (and that question only) may be the subject of an appeal under section 9(11).

The appellant was charged with conspiracy to defraud and applied under section 8 of the Criminal Procedure and Investigations Act 1996 for disclosure of certain IKEA trading records which she said would assist her defence. The application was heard by HHJ Hodson during a preparatory hearing ordered under section 7 of the Criminal Justice Act 1987 and was refused. The appellant sought leave to appeal under section 9(11) of the 1987 Act; the Court of Appeal held it had no jurisdiction but certified points of law under section 33(2) of the Criminal Appeal Act 1968. Leave to appeal to the House of Lords was granted.

The issues framed for decision were:

• whether an order or ruling made during a preparatory hearing must itself be for one of the purposes listed in section 7(1) to be appealable under section 9(11);
• whether an order on a disclosure application under section 8 of the 1996 Act can fall within those purposes; and
• whether, in any event, a disclosure ruling under section 8 can be the subject of an appeal under section 9(11).

The House analysed the nature and purpose of preparatory hearings and the powers conferred by section 9. The majority concluded that although the preparatory hearing is part of the trial and a judge may decide during it matters he could decide in the absence of the jury, the right of interlocutory appeal in section 9(11) is limited to rulings under section 9(3)(b) or (c). A section 8 disclosure application is a statutory vehicle under the 1996 Act and, in ordinary usage, is not itself a "question of law relating to the case" under section 9(3)(c). Therefore a ruling refusing disclosure does not, without a distinct question of law falling within section 9(3)(c), attract an appeal under section 9(11). The court noted that if determination of a disclosure application necessarily involves resolution of a pre-existing question of law relating to the case (for example the proper scope of the indictment or admissibility of specific evidence), that question — and that question only — could be appealed under section 9(11).

The House accordingly dismissed the appeal for want of jurisdiction under section 9(11), while indicating that Parliament could, if it wished, alter the position.

Appeal dismissed. The House held that a disclosure application under section 8 of the Criminal Procedure and Investigations Act 1996, although it may be decided during a preparatory hearing, does not of itself constitute a "question of law relating to the case" within section 9(3)(c) of the Criminal Justice Act 1987 and so a ruling refusing disclosure is not, without more, appealable under section 9(11). If a disclosure ruling necessarily involves determination of a question of law falling within section 9(3)(c) (for example on the scope of the indictment or admissibility), that question alone may be appealed under section 9(11).

At first instance HHJ Hodson heard and refused the appellant's section 8 disclosure application during a preparatory hearing under section 7 of the Criminal Justice Act 1987. The appellant sought leave to appeal under section 9(11). The Court of Appeal ([2006] EWCA Crim 1975) held it had no jurisdiction to entertain the appeal but granted certification under section 33(2) Criminal Appeal Act 1968. The House of Lords ([2007] UKHL 7) heard the appeal and dismissed it for want of jurisdiction under section 9(11).