Law Report: Crown Court listing of judge reviewed: Regina v Southwark Crown Court, Ex parte Commissioners for Customs and Excise - Queen's Bench Divisional Court (Lord Justice Watkins and Mr Justice Roch), 16 November 1992

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The judge who presided at the preparatory hearings of a complex and serious fraud case must be, save in exceptional circumstances, the judge who conducts the trial before the jury. The Divisional Court has jurisdiction to review a listing direction made in the Crown Court where that direction might affect the validity of the trial.

The Divisional Court ordered that the trial of R v Ben and others must commence before Judge Anwyl-Davies QC.

Judge Anwyl-Davies heard several applications and presided at a preparatory hearing of an indictment alleging value added tax frauds involving serious and complex fraud within the Criminal Justice Act 1987. The trial of the indictment was then listed before Judge Mota Singh QC. The prosecution submitted that Judge Mota Singh had no power to hear the case but he decided he could and would conduct the trial. The prosecution applied for judicial review of the decision.

Nigel Pleming QC, Richard P Sutton, Nigel Peters and Janine Sheff (Customs and Excise Solicitors) for the prosecution; Charles Flint (Treasury Solicitor) for the Crown Court.

LORD JUSTICE WATKINS, giving the judgment of the court, said that the prosecution's concern was that were the trial to take place before Judge Mota Singh, the defendants, in the event of being convicted, might then go to the Court of Appeal (Criminal Division) and maintain that the trial was a nullity.

The preparatory hearing formed part of the trial but took place before the jury was sworn. There could be appeals to the Court of Appeal (Criminal Division) from decisions of the judge at the preparatory hearing.

Under section 29(3) of the Supreme Court Act 1981 the Divisional Court had no jurisdiction over matters relating to trial on indictment. The Crown Court decision here was not merely an order affecting the conduct of the trial of the defendants.

It was an order, which if followed, might affect the validity of a hearing before the jury; the result of implementing the decision might be that there would be no trial at all.

This was a matter of whether what followed would be a trial or a nullity. The court had jurisdiction to review the decision.

A trial normally began when the jury was sworn and the defendants were put in the charge of the jury. In a criminal trial there was no power to change the judge once the jury was sworn until the moment at which the jury returned to give its verdict. It was permissible, if there was a sufficient reason such as death or illness of the trial judge, for another judge to take the jury's verdict.

The advantages of having the same judge through the trial of a complex and serious fraud case were set out in the Fraud Trials Committee Report. The correct principle was that the judge presiding at the preparatory hearings must be the judge who, save in exceptional circumstances, was to conduct the trial. Administrative convenience would not be a sufficient reason for changing the judge in a complex and serious fraud case between the preparatory hearings and the proceedings in front of the jury.

What amounted to exceptional circumstances would have to be resolved on a case-by-case basis. The death or serious illness of the judge would qualify as exceptional circumstances. In the present case there were no exceptional circumstances which would justify the changing of the judge.

Ying Hui Tan, Barrister