H, Regina v (Interlocutory application: Disclosure): HL 28 Feb 2007

The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice at preparatory hearings has been the subject of dispute. Lord Nichols said: ‘the underlying object of a preparatory hearing is to conduct part of the trial before the jury is sworn because of the benefits this course is likely to have. The preparatory hearing procedure is not intended to be the means for deciding questions which can and should be decided in advance of the trial.’ Once the preparatory hearing has started, the trial itself has started, even though a jury may not yet be empanelled, and the ruling had been made as part of that hearing. The ruling itself was not a ruling of law, and no appeal lay against it.
Lord Roger said: ‘a judge does not have power to determine an application for disclosure within the scope of a preparatory hearing.’ However, he can determine such a question whenever iI is made.
Lord Mance said: ‘Once a preparatory hearing has validly been ordered, the power to make a ruling under section 9 is thus on any view exercisable – whatever the direct or dominant object of the application or ruling – whenever the judge reasonably considers that it would also serve a useful trial purpose within one of the heads in section 7(1) to make such a ruling. Courts do not and should not have to engage in minute and, as the authorities show, sometimes elusive arguments, about whether the direct or dominant purpose of the ruling would be one specified in section 7(1); I find it difficult to envisage any case, from now on, in which an appellate court should entertain an argument or refuse to hear an appeal from a ruling on a subject-matter falling within paragraph (b), (c) or (since the 2003 Act came into force) (d) of section 9(3) on the ground that the purpose of the ruling fell outside section 7(1). ‘


Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance


Times 02-Mar-2007, [2007] UKHL 7, [2007] 3 All ER 269, [2007] Crim LR 731, [2007] 2 Cr App Rep 6, [2007] 2 AC 270




Criminal Procedure and Investigations Act 1996 8, Criminal Justice Act 1987 7


England and Wales


CitedRegina v Southwark Crown Court, Ex parte Customs and Excise Commissioners QBD 1993
The court found that there was one preparatory hearing in existence, and that that had been conducted before Judge Anwyl-Davies QC. But the trial was listed for hearing before Judge Mota Singh QC, simply because of a direction by the presiding judge . .
CitedIn re Gunawardena, Harbutt and Banks CACD 1990
The defendant applied to stay the proceedings on the grounds that they were an abuse of process.
Held: The application for leave to appeal was rejected. The application to stay was not within the ambit of the preparatory hearing and therefore . .
CitedRegina v Hedworth CACD 20-Sep-1996
The court allowed amendment of the indictment to reflect the law as demonstrated in Preddy, and at a preparatory hearing application was made to quash the amended indictment on the basis that the charges were not supported by evidence in the . .
CitedIn re Kanaris (application for a writ of Habeas Corpus) HL 30-Jan-2003
The defendant faced charges with others on the same indictment. The judge called a preparatory hearing under the 1996 Act, against the others, but held a separate hearing for the defendant, at which he held a similar preparatory hearing for him . .
CitedRegina v Van Hoogstraten CACD 12-Dec-2003
The prosecution appealed against the refusal of the crown court to remit the case for retrial.
Held: The court had no jurisdiction to entertain an appeal against this ruling because it was not within the ambit of section 29(2) of the 1996 Act. . .
CitedRegina v Maxwell CACD 9-Feb-1995
. .
CitedRegina v Crown Prosecution Service, Re Interlocutory Application CACD 7-Sep-2005
The defendants in a forthcoming trial had applied for disclosure of surveillance tapes (some 15,000 hours) made during the investigations anticipating an application for a finding of abuse of process. Some had been served, but the prosecutor now . .
CitedRegina v G and B CACD 2004
Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’. . .
CitedRegina v Maguire CACD 1992
The defendant, convicted of murder, had died. It later came to light that materials with the prosecution forensic team had not been disclosed by the prosecution.
Held: The Home Secretary could make a reference to the Appeal court despite the . .
CitedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedRegina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
CitedRegina v Jennings, Regina v Johnson, Regina v Mullins CACD 6-Sep-1993
No appeal lies against a Crown Court decision not to sever an indictment at a preparatory hearing. As an interlocutory order no appeal lay. . .
CitedRegina v Claydon; Regina v Regina v Hall; Regina v Costall; Regina v French CACD 13-Jun-2001
The defendants faced substantial trials involving drugs offences. At a preparatory hearing the court made decisions about abuse of process and as to what evidence might be admitted. The prosecutor said there was no right of appeal.
Held: . .
CitedWest Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
CitedRoyal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
CitedRegina v Goldstone CACD 2005
The Court rejected a submission that the questions as to disclosure raised before it fell outside the ambit of a preparatory hearing. . .
CitedRegina v Clowes CCC 1992
. .
CitedRegina v McConnell CACD 21-May-2004
. .
CitedRegina v Maxwell CACD 9-Feb-1995
. .
CitedBenmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
CitedMoyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedRegina v Brown (Winston) HL 20-Feb-1997
The victim had been stabbed outside a nightclub. Two witnesses identified the defendant. The defendants complained that evidence had not been disclosed to them.
Held: There is no duty at common law on the prosecution to warn the defence of . .
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
CitedO’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
CitedMorren v Swinton and Pendlebury Borough Council 1965
The court was asked whether the plaintiff had been an employee.
Held: ‘once the primary facts are found, then it is a pure question of law as to what is the reasonable inference based on the legal interpretation of the contract.’ . .
CitedBrutus v Cozens HL 19-Jul-1972
The House was asked whether the conduct of the defendant at a tennis match at Wimbledon amounted to using ‘insulting words or behaviour’ whereby a breach of the peace was likely to be occasioned contrary to section 5. He went onto court 2, blew a . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 10 July 2022; Ref: scu.249334