R, M & L, R v

A Crown Court may order a preparatory hearing only where the statutory threshold is truly met. Seriousness must be of the high degree required by section 29(1) of the Criminal Procedure and Investigations Act 1996; convenience or a wish to obtain an interlocutory appeal cannot supply jurisdiction.

At a Court of Appeal-ordered retrial, a witness who refuses to testify may be unavailable for section 131 of the Criminal Justice Act 2003. Refusal alone is insufficient. The trial court must carefully assess the reasons for it, the reasonable steps taken to obtain oral evidence, any party contribution to the refusal, and whether hearsay admission is in the interests of justice.

The appellants had been convicted of sexual offences after the complainant gave oral evidence at the first trial. Their convictions were later quashed for misdirections unrelated to her evidence, and a retrial was ordered.

Before the retrial, the complainant repeatedly declined to attend. The Crown obtained a witness summons but later assured her that it would not seek her arrest. The trial judge designated the hearing a preparatory hearing and ruled that her recorded Achieving Best Evidence interview and recorded cross-examination from the first trial could be admitted as hearsay under section 114(1)(d) of the Criminal Justice Act 2003.

The appeals raised whether the preparatory-hearing designation gave the court interlocutory jurisdiction and, if so, whether the hearsay ruling was correct.

1. The court held that it had no jurisdiction to entertain the interlocutory appeals. This was not a case of sufficient complexity or likely length. Nor was it one of such seriousness as section 29(1) of the Criminal Procedure and Investigations Act 1996 requires. The fact that an interlocutory appeal might conveniently resolve an evidential issue could not make the statutory jurisdiction available. The preparatory-hearing designation was therefore invalid.

2. The judge’s hearsay ruling consequently remained a pre-trial ruling under section 40 of the Criminal Procedure and Investigations Act 1996. It could be varied by the Crown Court in the interests of justice if there had been a material change of circumstances.

3. Although the hearsay issue was technically moot, the court gave guidance. Section 131 of the Criminal Justice Act 2003 permits a witness at a Court of Appeal-ordered retrial to be unavailable otherwise than through a section 116 ground. A witness who refuses to give evidence may therefore be unavailable, even if physically capable of attending. Mere refusal does not establish unavailability.

4. The judge must consider all the circumstances, including reasonable efforts to obtain oral evidence, the reasons for refusal, any party contribution to the situation, and the interests-of-justice factors in section 114(2). Here, the Crown’s accompanying assurance that no one would make the complainant give evidence neutralised the judge’s attempt to speak with her. All reasonable steps had not been taken, and the conclusion that she would refuse to testify could not stand.

5. Had the appeal been competent, the court would have allowed it and quashed the hearsay ruling. Any renewed decision on unavailability had to be made shortly before the complainant was due to give evidence, because availability may change over time. The matter was left to the Crown Court.

• Court of Appeal (Criminal Division) — held that the purported preparatory hearing was invalid and that it lacked jurisdiction to determine the interlocutory appeals.
• Crown Court — designated a hearing as a preparatory hearing and ruled that the complainant’s recorded evidence could be admitted under section 114(1)(d) of the Criminal Justice Act 2003.
• Court of Appeal (Criminal Division) — previously quashed the appellants’ convictions for misdirections in the summing-up and ordered a retrial.
• Crown Court — at the original trial, convicted the appellants of sexual offences after the complainant gave oral evidence.