Criminal

Preparatory hearing judge construing indictment decision appealableR v G and others: CA (Lord Justice Dyson, Mr Justice Steel and Judge Dyer): 20 March 2001The defendants were charged with conspiring together and with others to cheat the public revenue by taking goods, predominantly spirits, from a bonded warehouse under the pretext of exporting them but actually selling them within the UK without duty having been paid.

The names of 17 others referred to in the indictment were provided later.

At a preparatory hearing the judge ruled that the indictment related only to the narrow conspiracy involving those actually named in it but that, if that construction were wrong in law, he would exclude all evidence not relating to the narrow conspiracy.

The Crown applied for leave to appeal under section 9(11) of the Criminal Justice Act 1987.

Despite defence contentions that those rulings were not subject to interlocutory appeal under the Act, the full court granted leave.

The defendants submitted that that decision had been reached per incuriam and should not be followed.Noel Lucas, Andrew Marshall and Jonathan Ashley-Norman for the Crown.

Charles Miskin QC and Daniel Friedman for the defendant G.

Richard Sutton QC for the defendants N and S.Held, allowing the appeal against both rulings, that the judges ruling as to the construction of the indictment was a decision identifying issues which are likely to be material to the verdict of the jury for the purposes of section 7(1)(a) of the 1987 Act and he had thus been exercising his power under section 9(3)(c) to determine a question of law relating to the case, so that his decision was subject to appeal under section 9(11); that the judge, by failing to give effect to the words and with others had misconstrued the indictment; and that his failure to allow the prosecution to make representations against the exclusion of evidence relating to the global conspiracy was a serious breach of natural justice which tainted his ruling.

(WLR)