Law Report: Judge cannot limit SFO inquiry: Regina v Nadir and another - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Ognall and Mr Justice Sedley), 1 July 1993

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A trial judge has no power, in a preparatory hearing, to control the conduct of a Serious Fraud Office investigation by supervising or limiting access to witnesses.

The Court of Appeal allowed an appeal by the Serious Fraud Office against a ruling made by Mr Justice Tucker on 9 March 1993 in a preparatory hearing in the trial of the defendants, Asil Nadir and John Turner.

The defendants were charged with theft and false accounting in relation to Polly Peck International plc. The charges were transferred to the Crown Court on 7 February 1992. The prosecution served a case statement on 31 July 1992. The defendants served their statements on 5 November 1992 and 21 February 1993 respectively. In 1992 the judge ruled that the prosecution should not serve more notices of further evidence without leave.

On 9 March 1993 at a hearing for leave to serve a substantial quantity of further evidence, it became apparent that a number of witnesses whose statements were already served had been re-interviewed following delivery of the defence case statement. Counsel for the first defendant objected to the prosecution approaching existing witnesses for further statements on matters arising from the defence case statement.

The judge ruled that the prosecution were not entitled to make use of a defence case statement by re-interviewing prosecution witnesses and asking further questions arising out of the case statement unless the prosecution had drawn up a list of questions and obtained leave from the court to ask those questions. He ruled that the prosecution were entitled to interview new witnesses on matters arising out of the defence case statement without leave of the court.

The Serious Fraud Office appealed, submitting that the judge had no powers to curtail or circumscribe the powers of the Director of the SFO.

Robert Owen QC, David Calvert- Smith and Simon Browne-Wilkinson (SFO) for the SFO; Michael Hopmeier and Michelle Stevens-Hoare (Hunt & Hunt & Houghton, Romford) for Mr Turner; Mr Nadir was not present or represented.

LORD TAYLOR, Lord Chief Justice, giving the court's judgment, said that the court had jurisdiction to hear the SFO's appeal under section 9(11) of the Criminal Justice Act 1987 since the issue raised fell within section 9(3)(c).

It was common ground that the Act itself gave no power to the judge to limit or supervise the Director's access to witnesses, but it was submitted that the judge's power derived from his inherent power to control the trial.

In the court's judgment the judge had no power to take the course he took. The judge had a duty to determine what evidence might go before the jury.

He could exclude evidence he considered would have an adverse effect on the fairness of the trial or which he considered more prejudicial than probative. But his powers related to the admission of evidence and conduct of the trial, not to the investigation process.

The court knew of no judicial power to forbid the prosecution to re- interview witnesses or to re-interview them only under a procedure such as that imposed here.

The Director of the Serious Fraud Office was responsible to the Attorney General. If he were to err in his conduct of an investigation, the Attorney General would be answerable to Parliament for such error and the trial judge would have power to exclude evidence as indicated.

There was no logic in keeping existing witnesses in the dark about the defendant's contentions but allowing fresh witnesses to be forewarned. The consideration that, if the defence statement could be put to prosecution witnesses, it might be less full and helpful was outweighed by the clear purpose of the Act to facilitate preparation for trial, to avoid suprise and to expedite proceedings.

It was also conceivable that disclosure might lead to the withdrawal of a prosecution which the defence case statement had shaken; but for that to happen the prosecution might well need first to re-interview material witnesses.

The judge's order created difficulty and protracted the proceedings. For reasons of principle and practice, the order should not have been made and was quashed.