R v Kawsor Miah

An interlocutory appeal under section 35 of the Criminal Procedure and Investigations Act 1996 lies only from a ruling made at a formally ordered preparatory hearing. The mandatory requirement for a preparatory hearing in a terrorism case does not convert every later interlocutory ruling into a ruling made at such a hearing.

The court must clearly announce a preparatory hearing at its outset, record that status, and formally identify any adjournment or further preparatory hearing. These formalities matter because a preparatory hearing starts the trial and creates a limited right of interlocutory appeal. A ruling made at an ordinary later hearing is not appealable under section 35.

The applicant awaited jury trial on charges of encouragement of terrorism and support for a proscribed organisation, contrary to section 1(2)(b) of the Terrorism Act 2006 and section 12(1A) of the Terrorism Act 2000.

A preparatory hearing was held on 22 December 2022. On 28 April 2023 the trial judge refused the applicant’s Convention-rights application and admitted bad-character evidence. The applicant sought leave to bring an interlocutory appeal against the evidential ruling. The respondent contended that the April hearing was not a preparatory hearing and that the Court of Appeal lacked jurisdiction.

The central issue was whether the April hearing was, or was a continuation of, a preparatory hearing for the purposes of the Criminal Procedure and Investigations Act 1996.

1. Appeal dismissed for want of jurisdiction. The ruling of 28 April 2023 was not made at a preparatory hearing and therefore was not a ruling appealable under section 35 of the Criminal Procedure and Investigations Act 1996.

2. Although section 29(1B) required a preparatory hearing because terrorism offences were charged, the statute requires a Crown Court judge to order such a hearing. It does not deem every interlocutory ruling in a terrorism case to have been made at one. Rule 3.26 of the Criminal Procedure Rules requires the court to announce the hearing’s status at its outset. That status, and any adjournment of it, must be formally identified and accurately recorded.

3. The formality is legally significant. Under section 30, the trial begins with a preparatory hearing and the defendant is arraigned then. Further procedural consequences follow, and a section 31(3) ruling carries the exceptional right of interlocutory appeal. A further preparatory hearing may be sought or ordered after an earlier one has ended, but it must also be clearly designated.

4. The December 2022 hearing had concluded and had not been formally adjourned. The applicant’s later written request sought a preparatory hearing only for the Convention-rights issue. The April hearing was neither announced nor ordered to be a preparatory hearing. Its evidential ruling was consequently not made under section 31(3).

5. The reporting restriction in section 37 did not apply to this appeal because the challenged ruling was not made at a preparatory hearing. The court also declined to postpone reporting under section 4(2) of the Contempt of Court Act 1981, as the judgment created no risk of prejudice to a fair trial.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 928, dismissed the interlocutory appeal for want of jurisdiction.
• Crown Court at Kingston upon Thames: On 28 April 2023, refused the applicant’s Convention-rights application and granted the prosecution’s application to adduce bad-character evidence. The ruling was not made at a preparatory hearing.