![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Criminal Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Van Hoogstraten, R. v [2003] EWCA Crim 3642 (12 December 2003) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2003/3642.html Cite as: [2003] EWCA Crim 3642 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE CURTIS
and
MR JUSTICE FORBES
____________________
R |
||
- and - |
||
Nicholas Van Hoogstraten |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Geoffrey Cox QC and Matthew Sherratt for Mr van Hoogstraten
____________________
Crown Copyright ©
Lord Justice Kennedy:
Background.
Before the trial judge.
"Depends now on whether he was a party with the primary offender to some initial joint venture and if he was, whether the relevant act of the primary offender was of a type foreseen but nor necessarily intended by the secondary party as a possible incident of the common unlawful enterprise. In other words foresight defines the scope of the joint enterprise. The criminal culpability lies in participating in the venture with that foresight."
Mr Cox submitted that even if the prosecution could prove what they set out to prove Mr van Hoogstraten could not be liable in law for the act which caused death because it is not alleged that he contemplated that act. The submission is set out in the judgment at 26B –
"The act which caused death, so the argument runs, is an act of fundamentally different character from the act contemplated by Mr van Hoogstraten. The act which caused death was the deliberate discharge of a firearm deliberately aimed at Mr Raja. The act contemplated by Mr van Hoogstraten was the deliberate discharge of a firearm in circumstances which excluded the deliberate causing, by the use of the firearm, of any physical injury, let alone the deliberate causing of death."
The prosecution relied on some authorities which, the court held, do not survive the reasoning of the House of Lords in Powell and English and at 42C Sir Stephen said –
"I have come to the conclusion that the application of the foresight test to the agreed facts of this case reveals that there is no basis upon which a jury could conclude that Mr van Hoogstraten contemplated the act which in this case caused death."
For present purposes it is unnecessary to examine further in any detail the process of reasoning of the trial judge. After he delivered his judgment the prosecution sought leave to appeal. The judge had power to grant leave pursuant to section 35(1) of the 1996 Act if the ruling could properly be described as a ruling under section 31(3), that is to say a ruling made at the preparatory hearing as to a question of law relating to the case. He declined to grant leave or to quash the indictment, but on the basis that Mr Waters might be able to persuade this court that the ruling did fall within section 31(3) and that leave to appeal should be granted the trial judge gave the prosecution an opportunity to make the application which we heard.
Statutory provisions.
"(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing –
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2),
he may order that such a hearing (in this part referred to as a preparatory hearing) shall be held.
(2) The purposes are those of –
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting proceedings before the jury;
(d) assisting the judge's management of the trial."
"If a judge orders a preparatory hearing –
(a) the trial shall start with that hearing, and
(b) arraignment shall take place at the start of that hearing, unless it has taken place before then."
"(1) At the preparatory hearing the judge may exercise any of the powers specified in this section.
(3) He may make a ruling as to –
(a) any question as to the admissibility of evidence;
(b) any other question of law relating to the case."
"An appeal shall lie to the Court of Appeal from any ruling of the judge under section 31(3), but only with the leave of the judge or of the Court of Appeal."
If the statutory wording were new and we had no assistance from authorities we might find it difficult to resist the submission of Mr Waters which, in the context of this case, can be summarised as follows – a preparatory hearing was ordered, at that hearing Mr Cox asked for a ruling on what was plainly a question of law related to the case, the judge made a ruling, and therefore if we grant leave section 35(1) gives a right of appeal.
Other legislation and authorities.
"In our judgment the words of sections 7, 8 and 9 themselves plainly demonstrate the object of Parliament in creating the preparatory hearing. It must have been, according to the language used, we think, the intention of parliament in introducing this novel procedure – novel in that it has not been introduced in respect of any other kind of criminal trial – to ensure that it be used for a specific purpose or purposes. It deliberately so enacted, in our view, the provisions of subsection (1) of section 7 in order to make it clear that it was creating this new and very valuable procedure for the specified purposes and no other.
We cannot bring ourselves to believe that Parliament can possibly, by using the clear words which they have used in sections 7 and 9, to allow a preparatory hearing to commence for a certain specified purpose have intended to permit, once a preparatory hearing for that purpose is in being, argument to range around all manner of issues which cannot be said to relate to any of the specified purposes."
Gunawardena was followed in Moore, 5th February 1991 unreported, where one of the matters considered at the time of the preparatory hearing was whether to quash a count of theft. At page 5 of the transcript Lord Lane CJ said –
"The fact that a possible incidental effect of the purposes of the application does find itself within those sub-provisions (a) to (d) is not one of the purposes of those provisions. It is the word "purpose" by which the situation is governed. In our judgment it is improper and misconstruction to redraft the wording so as to substitute some such word as "consequences" for the word "purpose". So far as the motion to quash is concerned, it does not, in our judgment, come within those four sub-provisions. Basing ourselves on Gunawardena by which we are bound, and with which we respectively agree, in our judgment the prosecution's argument succeeds. There is no jurisdictional basis upon which this Court can entertain the appeal."
"Two conditions must be satisfied before the Court of Appeal can have jurisdiction: first, there must be a issue of law, or evidence, within section 9(3); secondly, the order appealed from must have been made within the ambit of the preparatory hearing, that is to say within the scope of section 7(1)."
The alternative submission was rejected by reference to Moore and Maxwell and Evans LJ dealt with the need to show that the ruling said to be appealable was made for one of the purposes of a preparatory hearing as defined in section 7(1) of the 1987 Act (now section 29(2) of the 1996 Act). He said at 432B –
"We would hold, first, that the reference to 'purpose' comes from section 7(1) itself. It is not fruitful, in our view to consider whose purposes: meaning what subjective purposes the applicant or the court or any other person may have had. Section 7(1) is concerned with an application and a hearing and an order made on that application after that hearing. The purpose of the application or the hearing or the order is clear, or it can be derived, in our view from those facts alone; maybe this is saying it is an objective rather than a subjective test. No one can doubt what the purpose of an application or an order to quash one or more counts in an indictment is: it is to obviate the need for arraignment of the defendant on that count or counts and his trial thereafter.
Section 7(1), in our judgment, presupposes a valid indictment, the preparatory hearing is concerned with the applications and orders which will facilitate the trial of those charges. That we would call the scope or the ambit of the preparatory hearing. The purpose of an application to quash is diametrically opposed to that: it is to prevent the arraignment or the trial from taking place."
"As Moore shows, an application to quash is not within section 7(1): the fact that such an application may indirectly have one of the results identified in section 7(1)(a), (b), (c) or (d), does not mean that it is 'the purpose' of the application. We respectfully agree with Evans LJ in Hedworth that, as the reference to 'purpose' comes from section 7(1) itself, the matter has to be looked at objectively and the subjective purpose of the judge, the defendant or any one else is irrelevant."
The court then cited the passage from the judgment in Hedworth at 432 which is set out above, and continued –
"Such was the purpose of the application in the present case. The judge's ruling, although given in the course of a preparatory hearing, was not a ruling for any of the purposes identified in section 7(1) and accordingly there is no jurisdiction to entertain an appeal at this stage under section 9(11). We therefore refuse leave to appeal."
Submissions.
Conclusion.