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 that Judge Anwyl-Davies should conduct the re-trial of another case.
Held: In a criminal trial there is no power to change the judge once the jury is sworn until the moment at which the jury returns to give its verdict (though another judge may take that verdict). They then applied that same principle by way of analogy to an unsevered trial of serious fraud. The judge who conducts the preparatory hearing must conduct the trial, save in exceptional circumstances: ‘Does the same principle apply to the trial of serious and complex fraud? Must the same judge hear the preparatory hearing and the process before the jury? The advantages of having the same judge throughout the trial of complex and serious fraud cases is set out in paragraph 6.31 of the Fraud Trials Committee Report (1986 HMSO) chaired by Lord Roskill. It is there stated at page 88: `Almost all the witnesses who discussed this agreed in their evidence that in principle the same judge should conduct the preparatory hearing and the trial itself.’ The 34th recommendation of that Committee reads (page 182): `The judge presiding at the preparatory hearings must be the judge who, save in exceptional circumstances, is to conduct the trial.’ In our judgment the correct principle is that stated in the 34th conclusion of the Committee, namely that the judge presiding at the preparatory hearings must be the judge who, save in exceptional circumstances, is 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 amounts to exceptional circumstances will have to be resolved in a case-by-case basis. Clearly the death or serious illness of the judge would qualify as an exceptional circumstance.’ The situation is different as between civil and criminal cases.
Citations:
[1993] 1 WLR 764
Jurisdiction:
England and Wales
Cited by:
Cited – 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 . .
Cited – In 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 . .
Cited – Andreas Kanaris v Governor of H M P Pentonville Admn 17-Jan-2002
The defendant sought a writ of habeas corpus, asserting that the custody time limits in his matter had expired before his trial began. An application to extend the limits had to be made before the limit, and had to show proper conduct of the case. . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 01 May 2022; Ref: scu.252537