| JUDICIAL PRECEDENT — Court of Appeal —How far binding — Ruling made at preparatory hearing overturned on appeal — Subsequent Court of Appeal decision holding earlier case decided per incuriam — Whether judge in first case bound to follow later decision — Criminal Procedure and Investigations Act 1996, s 31(11)
Regina v M and others (No 2)
CA: Sir Igor Judge P, Goldring and Swift JJ: 27 April 2007
Where a ruling made at a preparatory hearing was overturned on appeal and the Court of Appeal differently constituted in a subsequent case held that the earlier case had been decided per incuriam the judge was bound to follow the later decision in the interests of justice as a whole and on the basis that any rulings of law made at preparatory hearings had correctly to reflect the law which would govern the trial
The Court of Appeal, Criminal Division, so held when giving reasons for dismissing an interlocutory appeal by M, Z, I, R and B against a ruling made by Judge Beaumont QC at the Central Criminal Court on 4 April 2007 in the course of a preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996 holding that he was bound by the decision in R v Rowe [2007] EWCA Crim 635 (15 March 2007) rather than the Court of Appeal’s decision in the first appeal of R v M [2007] EWCA Crim 218 (7 February 2007). The five appellants faced an indictment containing counts alleging contraventions of ss 57 and 58 of the Terrorism Act 2000. The issue on the appeal was whether the Crown should be permitted to continue to prosecute the allegations based on s 57 of the 2000 Act.
SIR IGOR JUDGE P said that on 9 January 2007 in the course of a preparatory hearing the judge concluded that electronically stored information was capable of being an “article” for the purposes of s 57 and that the Crown could proceed with the counts based on it. An interlocutory appeal against that ruling was heard on 6 February 2007 and on 7 February the Court of Appeal held that although the hard drives and disks referred to in the counts based on s 57 were “articles” in the general sense, they were not “articles” for the purposes of s 57 because express provision for these items was made in s 58, which section would otherwise be redundant. On 15 March 2007 in R v Rowe [2007] EWCA Crim 635 the Court of Appeal, in a five judge constitution presided over by Lord Phillips CJ, decided that the decision in R v M was reached per incuriam, having been based on a number of important but erroneous assumptions. The point was relisted for decision by the trial judge for him to consider whether to vary or discharge the ruling consequent on the decision in the first appeal. He rejected the submission that, whatever the broad impact of the decision in R v Rowe, the decision in the first appeal continued to bind him. He held that he was bound by R v Rowe. The argument on the second appeal was that the decision in the first appeal was binding on the Crown Court from which the successful appeal was brought. Whatever effect R v Rowe might have in other cases, it had none in this. The judge could not overrule the decision in the first appeal; that was for the House of Lords to do. Their lordships concluded that under s 31(11) of the 1996 Act a ruling made by the judge at a preparatory hearing on any question of law “shall have effect” for all the purposes of the trial, “unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it”. Equally, any rulings of law at preparatory hearings had correctly to reflect the law which would govern the trial. The effect of the first appeal was, for the time being, to have resolved the question of law in favour of the appellants. Notwithstanding that it resulted from a decision of the Court of Appeal, it remained capable of variation or modification if the interests of justice so required. The trial judge had to face legal realities. Even assuming that he was not strictly “bound” by the decision in R v Rowe, he nevertheless could not ignore it or brush it aside. His decision could not be impugned.
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