Law Report: Court can review dismissal of fraud charges: Regina v Central Criminal Court and Nadir, ex parte Director of the Serious Fraud Office. Queen's Bench Divisional Court (Lord Justice Woolf and Mr Justice Pill). 30 July 1992

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The decision of a judge of the crown court, to which a serious fraud case had been transferred under section 4 of the Criminal Justice Act 1987, to dismiss some of the charges against the defendant, pursuant to an application under section 6 of that Act, was susceptible to judicial review.

The Queen's Bench Divisional Court ruled that it had jurisdiction to review the decision of Mr Justice Tucker, sitting in the Central Criminal Court on 8 June 1992, to accede to an application by the defendant, Asil Nadir, for 46 out of a total of 66 charges of theft against him to be dismissed.

Mr Nadir was alleged to have stolen at least pounds 151m from Polly Peck International plc (now in administration) while he was its chairman and chief executive.

The case was transferred to the Central Criminal Court, under section 4 of the 1987 Act, after the Director of the Serious Fraud Office had concluded that the evidence was sufficient to commit Mr Nadir for trial and revealed a case of fraud of such seriousness and complexity that the management of the case should without delay be taken over by the crown court.

Having ruled on the jurisdiction point, the Divisional Court adjourned its decision on the substantive issue, namely whether the judge erred in law in dismissing the charges because of the absence of 'appropriation' as defined in section 3(1) of the Theft Act 1968, pending the House of Lords' decision on a similar issue in another case.

Robert Owen QC and Stephen Richards (Treasury Solicitor) for the SFO; Anthony Scrivener QC and Anthony Shaw (Pannone March Pearson) for Mr Nadir.

LORD JUSTICE WOOLF said that under section 6(1) of the 1987 Act, the judge could dismiss one or more charges against the defendant, and quash the relevant counts in the indictment, if it appeared to him that the evidence was insufficient for a jury to convict the defendant.

Section 6(5) emphasised the close relationship between an application under section 6 of the 1987 Act, and an application under section 6 of the Magistrates' Courts Act 1980 that an accused should not be committed for trial, which required magistrates to consider whether there was sufficient evidence to put the accused on trial by jury for any indictable offence.

However, section 6(5) of the 1987 Act provided greater protection to the accused than section 6 of the 1980 Act, since if an accused was not committed by the magistrates on a particular charge, when an indictment was settled, the prosecution could reintroduce a count reflecting that charge in the indictment, whereas under section 6(5) of the 1987 Act, 'no further proceedings may be brought on a dismissed charge'.

By contrast, the role of the judge on an application under section 6 of the 1987 Act overlapped much less than had at first appeared with his role in hearing a motion to quash an indictment, where his powers were more circumscribed, particularly in relation to the sufficiency of evidence.

There was, unfortunately, no express right of appeal in respect of a decision on an application under section 6 of the 1987 Act. The question was whether it was susceptible to judicial review by the High Court.

The Supreme Court Act 1981 provided by section 29(3) that 'in relation to the jurisdiction of the crown court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition and certiorari as the High Court possesses in relation to the jurisdiction of an inferior court'.

In Re Smalley (1985) 1 AC 622 at 642, Lord Bridge defined 'matters relating to trial on indictment' as included 'any decision affecting the conduct of a trial on indictment whether given in the course of the trial or by way of pre-trial directions'.

An application under section 6 of the 1987 Act was clearly not part of the trial since it was before arraignment. Nor was it 'an integral part of the trial process'.

It anteceded that process. But was it a 'decision affecting the conduct of a trial on indictment'?

Some assistance was derived from the fact that a decision of a court to grant or refuse a stay of a trial on indictment as being an abuse of the process of the court, was susceptible to judicial review, since it did not affect the conduct of the trial, nor was it an integral part of it: see R v Central Criminal Court, ex p Randall (1991) 1 WLR 1087.

It was argued for Mr Nadir that the 1987 Act created a comprehensive statutory procedure to deal with serious fraud trials, and where a remedy or appeal was allowed to either side the Act expressly provided it.

Parliament could not have intended, when creating such a code for the more expeditious disposal of serious fraud trials, that delays should be caused by applications for judicial review.

A decision under section 6 was an integral part of trial on indictment which had an effect on the trial itself, and should not be reviewable.

His Lordship nevertheless concluded that the Divisional Court did have jurisdiction to review decisions under section 6. The critical test was still the language of section 29(3) as applied by the courts.

The decisive factor was the close relationship between the nature of the section 6 application and the committal proceedings by magistrates under the 1980 Act, which were subject to review.

However, the jurisdiction should only be exercised in extremely limited circumstances. Normally, the judge's assessment of the merits of the proceedings should be conclusive.

MR JUSTICE PILL gave a concurring judgment.

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