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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Rosenthal, R v [2001] EWCA Crim 2717 (4th December, 2001) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2001/2717.html Cite as: [2001] EWCA Crim 2717 |
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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE HUGHES
and
MR JUSTICE KEITH
____________________
R V ROSENTHAL
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr P Hackett QC & Mr Mandell (appeared for Carson)
Mr M. Caplan (Solicitor Advocate) & Miss C. Russell (appeared for Sweetbaum)
Mr C. Miskin QC, Mr P.Ozin & Miss S. Campbell (appeared for the Crown)
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
LORD JUSTICE KENNEDY :
Introduction
1. On a proper construction of section 2(8AA) of the Criminal Justice Act 1987 Mr Rosenthal’s interview statements (which were obtained pursuant to the section 2 powers of compulsion) could be put to him in his trial during cross-examination by the co-defendants in his case.
2. In the event that during his trial Mr Rosenthal’s co-defendants cross-examined him using his section 2 interview statements, Mr Rosenthal can receive a fair trial.
Mitting J refused leave to appeal.
Background Facts
“Mr Carson told him that the document (which Mr Rosenthal now accepts contained false statements to the auditors) had to be signed so that the accounts could be completed that day. Mr Carson, an accountant, either had already signed the letter or was going to sign it, so he (Mr Rosenthal) had no reason to question its contents, and signed it without reading it. Indeed, the only reason Mr Rosenthal was asked to sign the letter was because Mr Waterworth, the Managing Director of W B S, was on holiday at the time.”
Restrictions on use of answers given in section 2 interviews.
“A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him –
(a) on a prosecution for an offence under subsection (14) below; or
(b) on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.”
Subsection (14) provides –
“A person who, in purported compliance with the requirement under this section –
(a) makes a statement which he knows to be false or misleading in a material particular; or
(b) recklessly makes a statement which is false or misleading in a material particular,
shall be guilty of an offence.”
“However, the statement may not be used against that person by virtue of paragraph (b) of subsection (8) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.”
Preparatory Hearings and Interlocutory Appeals.
“(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 the proceedings before the jury; or
(d) assisting the judge’s management of the trial.”
It is common ground that in the present case, for the statutory purposes, the judge ordered that a preparatory hearing be held. Section 8(1) provides that where a preparatory hearing is ordered the trial “shall begin with that hearing”, and section 9 deals with the hearing itself. By subsection (3) the judge can determine, amongst other things –
“(b) any question as to the admissibility of evidence; and
(c) any other question of law relating to the case.”
Subsection (10) provides –
“An order or ruling made under this section shall have effect during the trial, unless it appears to the judge, on application made to him during the trial, that the interests of justice require him to vary or discharge it.”
Subsection 11 deals with appeals, and it provides –
“An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal.”
Jurisdiction
“We cannot bring ourselves to believe that Parliament can possibly, while using the clear words which they have used in section 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. We know from experience, and it hardly needs to be said, that outside the purposes referred to in section 7(1) are all kinds of issues which are likely to arise in a criminal trial and which at some time or another will have to be resolved. Whether application in respect of them can be made usefully and effectively before a trial, in a pre-trialreview
possibly, we do not, in this
judgement
, have to explore.”
At page 61 the judgment continues –
“Care must be taken to avoid confusion between a preparatory hearing under the Act and the informal pre-trialreview. If, looking squarely at the matter, the judge comes to the conclusion that the application before him does not relate to one of the purposes, then he cannot entertain that application within the ambit of the preparatory hearing.”
“The purpose of a severance application is to achieve severance, not any of the ends identified in section 7(1)(a) to (d). It may be possible to argue, though we give no encouragement whatever to such an argument, that a submission seeking severance for the purpose of reducing complexity is capable of assisting the judge’s management of the trial within section 7(1)(d), and is therefore capable of giving rise to an appeal under section 9.”
That, he said, was not the instant case.
“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 that 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 ...... It should be noted that in the present case the application is made with regard to an amended indictment – some charges were pleaded to, others were not. The fact that an application may be made to quash the original charges even after arraignment does not affect its nature or purpose. Conceptually it precedes the arraignment and therefore the preparatory hearing. As regards the amended counts, the objections which are the basis of the application to quash would normally be taken when leave to amend was applied for and either granted or not granted at that stage. This did not happen here for procedural reasons which have already been described. However in our view the same principle applies: conceptually the application to quash precedes the arraignment and therefore precedes the initiation of the preparatory hearing.”
The emphasis is ours. Mr Miskin submits that those authorities all emphasise the restrictive nature of the appellate jurisdiction granted by section 9(11), and he further submits that there is no meaningful distinction to be drawn between an application to sever or to quash an indictment, and an application by one defendant for a separate trial founded upon rulings made in the context of and as a necessary prelude to that application. That, Mr Miskin submits, is apparent from the skeleton arguments submitted by Mr Rhodes to Mitting J, and from the transcript of the proceedings before the judge.
“Mr Rosenthal asks that the issue of admissibility of his section 2 interview answers be determined at the preparatory hearing so that he (and other defendants) know whether they need to make any such severance application. Moreover, determining the issue at this stage will save a potentially enormous amount of time and costs. If the issue is raised for the first time during Mr Rosenthal’s evidence at trial it is possible that the jury would have to be discharged in respect of some at least of the defendants in order to ensure a fair trial. Issues of severance ought to be heard after the inadmissibility argument has been determined.”
That passage seems to us to illustrate Mr Miskin’s point as to the real focus of the submissions before the judge.
Conclusion