VJA, R v

An interlocutory appeal under section 9(11) of the Criminal Justice Act 1987 is confined to an order or ruling within section 9(3). Section 9(3)(c) has a restricted scope. It requires a specific question of law relating to the substance of the case, rather than a complaint that the judge reached the wrong factual conclusion, misapplied settled principles, or acted unreasonably.

The right to an interlocutory appeal remains exceptional. Even where jurisdiction exists, leave should be granted only in an appropriate case.

The appellant was charged in 2008 with theft of US$4 million and inducing another to wait for payment by deception. The alleged conduct occurred in 1984 and 1985, following an erroneous credit to a company managed by the appellant.

At a preparatory hearing, HHJ Ainley refused to stay the indictment for abuse of process. The defence contended that documents seized in 1986 had later been lost or destroyed, preventing a fair trial. The judge found that relevant material remained, that there were gaps in the evidence, and that the appellant’s lengthy absence from the United Kingdom was the principal reason the documents were no longer available.

The appellant sought leave to appeal under section 9(11) of the Criminal Justice Act 1987. The central issue was whether the refusal of the abuse-of-process application determined a question of law within section 9(3)(c).

1. The application for leave to appeal was refused. Although no document formally recording the preparatory-hearing order had been produced as required by the Criminal Procedure Rules, the abuse-of-process hearing must have formed part of a preparatory hearing within section 7(2) of the Criminal Justice Act 1987.

2. Applying Regina v H [2007] 2 AC 270, the court held that its jurisdiction under section 9(11) was limited to rulings under section 9(3). The statutory purposes for a preparatory hearing are broad, but section 9(3)(c), concerning any other question of law relating to the case, is restricted. The question must be a sufficiently specific legal issue going to the substance of the case; an assertion that the judge erred in reaching his decision is insufficient.

3. HHJ Ainley’s refusal to stay the proceedings did not decide such a question of law. The proposed grounds challenged his factual findings and his overall conclusion on fairness. They identified neither an independent legal issue nor an alleged misapplication of the settled abuse-of-process principles. An implicit contention that the ruling was unreasonable could not, in this context, bring the matter within section 9(3)(c).

4. Alternatively, even if jurisdiction had existed, leave would have been refused. An interlocutory appeal in a Crown Court trial is exceptional and remains subject to a further exercise of judgment. The judge’s conclusion was plainly correct: material considered relevant to a prosecution had been retained, the appellant’s own departure and prolonged absence materially explained the loss of other records, and the trial process could adequately protect him from unfairness.

5. The court also endorsed the caution in R v I, P, O, I&G [2009] EWCA Crim 1793 that judges should be slow to direct preparatory hearings where ordinary case-management powers can address pre-trial issues.

• Court of Appeal (Criminal Division). Refused the appellant leave to appeal from the preparatory-hearing ruling: [2010] EWCA Crim 2742.

• Crown Court at Croydon. HHJ Ainley refused the appellant’s application to stay the indictment for abuse of process on 25 June 2010.