CII, R. v

Judicial continuity is the ordinary rule in the management of a complex criminal case. A judge who has conducted a preparatory hearing should normally conduct the trial. The rule may be departed from only for a compelling reason, assessed practically by the judge after hearing the parties. A direct and unavoidable clash between two long-standing judicial commitments may provide such a reason. Mere administrative convenience or general pressure of work will not.

A preparatory hearing should be directed cautiously. Its principal modern utility is to permit an interlocutory appeal on a discrete legal issue that can be resolved without evidence and may prevent substantial trial time being wasted under Criminal Procedure and Investigations Act 1996.

Five defendants faced connected allegations of money laundering and mortgage fraud on two indictments. Judge Rivlin QC had conducted a preparatory hearing and further case-management hearings. He had fixed separate trial dates for the indictments.

A clash then arose with another older complex case in which he had also conducted a preparatory hearing. Having heard the parties, Judge Rivlin ordered that he should not conduct these trials. The defendants supported that course. The Crown brought an interlocutory appeal, concerned that the order might be legally invalid and later undermine any convictions.

The central questions were whether the Court of Appeal had jurisdiction under section 35 of the Criminal Procedure and Investigations Act 1996, and whether the judge could lawfully cease to be the trial judge after conducting a preparatory hearing.

1. The Crown’s appeal was dismissed. The appeal raised a question of law concerning the judge’s power to make the order. It therefore fell within the interlocutory-appeal jurisdiction in section 35, read with section 31(3)(b), of the Criminal Procedure and Investigations Act 1996. Following R v H [2007] UKHL 7, the question did not have to concern one of the statutory purposes of a preparatory hearing.

2. Judicial continuity is an essential feature of effective case management. The normal rule is that the judge who has managed a complex case, whether through a preparatory hearing or otherwise, should conduct its trial. That rule is not absolute. A judge may depart from it where there is a sufficiently compelling cause, but not for mere administrative convenience or workload alone.

3. On the facts, Judge Rivlin faced a direct clash between two long-standing commitments in complex cases. It could be resolved only by withdrawing from one case or seriously disrupting one of the carefully planned timetables. That was a compelling reason. His prior ruling about foreign evidence concerned the procedure by which it reached the United Kingdom, not its content, and did not prevent another judge from determining a later abuse-of-process argument.

4. The statutory statement that a trial starts with a preparatory hearing under section 8 of the Criminal Justice Act 1987 and section 30 of the Criminal Procedure and Investigations Act 1996 does not equate the position with the position after a jury has been sworn. It does not make a change of trial judge legally impossible.

5. For future cases, the court directed that preparatory hearings should be ordered cautiously and ordinarily only where a genuinely suitable interlocutory appeal may avoid significant trial waste. A decision that the managing judge should not try the case must be made by that judge after hearing all parties and consulting appropriate senior judges. The appellate court will interfere only with a decision that no reasonable judge could make.

• Court of Appeal (Criminal Division): The Crown’s interlocutory appeal against Judge Rivlin QC’s order that he should not conduct the trials was dismissed: [2009] EWCA Crim 1793.
• Crown Court: Following a preparatory hearing and subsequent case-management hearings, Judge Rivlin QC ordered that another judge should conduct the trials because of an unavoidable clash with another long-standing complex case.