Judgments - In re Kanaris (Respondent)(application for a writ of Habeas Corpus)(on appeal from the Administrative Court of the Queen's Bench Division of Her Majesty's High Court of Justice)

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    24. Mr Caldwell, counsel for Mr Kanaris, then stated that because of his mental state there was considerable doubt as to whether he was fit to stand trial at that time. At page 22 counsel stated:

    "Of course, this is a case which requires a preparatory hearing but not today and in my submission it can't take place today in respect of Mr Kanaris because it could not take place in advance of arraignment which in my submission must be postponed."

At pages 24 and 25 Crown counsel observed:

    "Plainly the court must be satisfied that Mr Kanaris is a person who is fit to plead. No arraignment should take place in his case in our submission until the court is so satisfied.

    JUDGE MCGREGOR-JOHNSON: I think that must be right.

    MR BLACK: As far as Mr Correya is concerned that speaks for itself in the directions your Honour has already indicated. As far as the remainder of the defendants are concerned ostensibly there is no reason not to arraign but it is a matter for the court."

Immediately following these observations the judge stated at page 25:

    "Yes. Thank you very much. In my view it is right to start the preparatory hearing to this extent: To have arraignment today of those defendants apart from Mr Correya and Mr Kanaris for the reasons that have already been set out."

The defendants with the exception of Mr Kanaris and Mr Correya were then arraigned and pleaded not guilty to the counts against them.

    25. The judge then discussed with Crown counsel the starting date for a trial and at page 35 he said:

    "As far as further orders are concerned I propose to adopt the suggested timetable in your agenda so that the prosecution case statement is to be served by the 30th October together with the other matters that you set out which is schedules, draft admissions and any notices to omit documents.

    I propose to adopt the timetable in paragraph five of your agenda for service by the defence of documents in reply by the 14th December."

At page 38 Crown counsel said:

    "There is one, of course, issue that remains in relation to Mr Kanaris because of the custody time limit and it seems respectfully, either we have a hearing before they expire as they are at the moment or with the consent of the defence we extend them to a convenient date to give the court an opportunity to consider the ramifications of the material that has been suggested to you.

    JUDGE MCGREGOR-JOHNSON: I would rather if we can have a hearing before the expiry date."

At page 40 counsel for the defendant Kyriacou asked:

    "Is your Honour going to set a date for a preparatory hearing in the New Year?

    JUDGE MCGREGOR-JOHNSON: I will when reminded to do so, yes. I think that ought to be right at the beginning of January.

    MR BLACK: We respectfully agree because there is clearly a lot of matters that are going to flow from that and that first directions hearing is important."

After the luncheon adjournment Crown counsel said at page 43

    "Your Honour, can I deal with Mr Kanaris first as one of the remaining outstanding matters from this morning in relation to fitness to plead. Could we, having discussed the matter, invite the court to list the case for mention in 28 days from today?

    JUDGE MCGREGOR-JOHNSON: Yes.

    MR BLACK: So that the court - the idea being the court would have by then reports before it.

    JUDGE MCGREGOR-JOHNSON: And then we can either set a timetable or decide what to do.

    MR BLACK: Allowing time for the reports to be prepared and allows the court to make directions and at an early stage."

There was then discussion about obtaining a medical report in respect of Mr Kanaris and the judge said at page 45:

    "The date that has been suggested is four weeks today, would be 5th October. As I say the only difficulty is by then I will be at Wood Green and not here.

    But I would have thought since it is purely going to be effectively a directions matter there won't be a huge amount of paper... I can deal with it at Wood Green."

The judge then discussed other matters with counsel and the hearing concluded.

    26. On 5 October 2001 Mr Kanaris, now represented by Mrs Radford QC, appeared at Wood Green Crown Court before His Honour Judge McGregor-Johnson. No other defendants appeared at the hearing. Miss Bewsey appeared for the Crown. No issue was raised as to the fitness of Mr Kanaris to plead and Mrs Radford informed the judge that the indictment could be put. Mr Kanaris was arraigned and pleaded not guilty to the four counts against him. A full transcript of this hearing was also before the Administrative Court and before the House.

    27. At page 5 Crown counsel stated:

    "Your Honour, of course, the hearing that we had on the 7th of September was a preparatory hearing.

    JUDGE MCGREGOR-JOHNSON: Yes.

    MISS BEWSEY: And, as such, therefore, the arraignment of the defendants was the start of the trial for the purposes of custody time limits.

    JUDGE MCGREGOR-JOHNSON: That's right.

    MISS BEWSEY: Your Honour, of course, Mr Kanaris falls outside that hearing, but could I invite your Honour, on the same basis, to say that this, therefore, is the start of Mr Kanaris's trial?

    JUDGE MCGREGOR-JOHNSON: Yes, I ordered on the last occasion, that the preparatory hearing should start on that occasion.

    MISS BEWSEY: Your Honour, yes.

    JUDGE MCGREGOR-JOHNSON: And, of course, all save two defendants were arraigned. So, yes, unless Mrs Radford wants to say anything about that, I'll make the same order, as far as this is concerned.

    MISS BEWSEY: I'm very grateful.

    MRS RADFORD: Your Honour, my only concern is this. As your Honour is aware, Mr Kanaris is one of - I don't know whether it's one of two or one of three - who now remain in custody?

    JUDGE MCGREGOR-JOHNSON: Three.

    MRS RADFORD: It's three, I understand. I'm only concerned, and I bring this point to your Honour's attention, that, obviously, the deprivation of somebody's liberty, particularly for a period of time that is going to extend until May of next year, is a very grave concern; and the concern, obviously - in the drafting of the legislation there is a concern obviously, that by simply saying it's a preparatory hearing, it means that the custody time limits can no longer, in effect, be argued; and I am concerned about that because, through no fault of his own, he, at the moment, stands in a position in which he will be in custody for at least seven more months?

    JUDGE MCGREGOR-JOHNSON: Well, that's true, but the thing is I dealt with the question of the fixing of the trial on the last occasion. The submission that was then made by counsel who appeared for Mr Kanaris was that the defence would not be ready before Easter next year.

    MRS RADFORD: Yes.

    JUDGE MCGREGOR-JOHNSON: So, in other words, if there had been any suggestion of custody time limit problems, I would certainly have addressed that before fixing the trial. I was told, as I say, that defence would not be ready before then; which, of course, is well outside the custody time limit.

    MRS RADFORD: I appreciate that, your Honour. I simply bring that to your Honour's attention because it may be a matter that would be ventilated elsewhere. I know not. It's something that has to be looked at, but I simply bring that to your Honour's attention."

    28. Mrs Radford then referred to the fact that Mr Kanaris had been refused bail. The judge said at page 7:

    "I had intended - and there were no submissions made on behalf of any defendant on the last occasions that I should not treat the matter as a preparatory hearing and, indeed, I ordered that I should.

    It seems to me that it follows from that - in fact, I've already made that order, even though the defendant listed then was not arraigned on that occasion for good reason, because the question of fitness to plead had to be looked at.

    So it seems to me the same should apply to him, obviously in terms of any bail application that follows subsequently. The matter of the date of the trial is a matter that one would be entitled to take into account."

I observe that it would probably be more accurate if the transcript of the last part of these comments by the judge read:

    "So it seems to me the same should apply to him. Obviously in terms of any bail application that follows subsequently the matter of the date of the trial is a matter that one would be entitled to take into account."

Crown counsel then said at page 8:

    "MISS BEWSEY: Your Honour, if it's necessary for your

    Honour to do so, could I invite your Honour to simply say that the orders that your Honour made in respect of all other defendants on the 7th of September, obviously apply to Mr Kanaris; and he will be receiving his copy of the prosecution case statement at the end of this month, as ordered.

    JUDGE MCGREGOR-JOHNSON: Yes, I see no reason to depart from that timetable."

There was then a brief discussion between the judge and Crown counsel as to the documents to be served and the judge said at page 8:

    "And then the next preparatory hearing will be the 11th of January."

There was then some discussion between the judge and Crown counsel and Mrs Radford about certain days when the Court would not sit during the course of the trial and the hearing concluded.

    29. In his judgment Andrew Smith J set out the Crown Court judge's words at the hearing on 7 September when he said at page 25 of the transcript: "it is right to start the preparatory hearing to this extent: to have arraignment today of those defendants apart from Mr Correya and Mr Kanaris". The High Court judge then said:

    "By this, did he mean (i) that the nine defendants should be arraigned and the preparatory hearing begin against all eleven defendants; (ii) that the nine defendants should be arraigned and the preparatory hearing begin against those nine only; or (iii) that the nine defendants should be arraigned, something which could be done at a preparatory hearing but could be done before it?"

    30. The Judge rightly rejected the first of these meanings. But he also rejected the second meaning and gave the Crown Court judge's words the third meaning. He said:

    "42.  I also find it difficult to believe that he intended the second meaning, even if he did have power, or believed that he had power, to start a preparatory hearing against some defendants. It would, on any view, be an unusual order, and he does not say that he is making it. He does not differentiate between different defendants with regard to whether the preparatory hearing was beginning or with regard to whether he was making an order for a preparatory hearing to begin.

    43.  I am driven to give the Judge's words the third meaning. Although this departs from their literal meaning, it is in closer accord with other remarks which were made during the hearing on 7 September to which I have referred. Given that in the course of exchanges between the Judge and Counsel there was (perhaps understandably) a certain amount of loose language, this seems to me the most probable import of his words.

    44.  What then happened on 5 October 2001, when Mr Black says the Judge ordered the preparatory hearing begin against the applicant? The Judge was, it seems, initially proceeding on the basis (as I have held on the mistaken basis) that on 7 September 2001 he had ordered the start of the preparatory hearing against nine defendants; and it appears from the exchanges with Miss Bewsey which I have set out, that he was prepared to make an order to put the applicant in the same position as the nine "unless Miss Radford wants to say anything about that". However, after Mrs Radford had addressed him, he did not make such an order, apparently because he had come to the view that the applicant was already covered by what was ordered on 7 September 2001. He ordered that the same timetabling orders should apply to the applicants as to the nine, but I do not interpret that as amounting to an order (which the Judge, it seems, would have regarded as otiose) that the preparatory hearing against the applicant begin. Certainly, he did not, in my view, say anything sufficiently clear and specific to amount to an order having the effect of depriving the applicant of his liberty for the months before his trial is heard."

    31. I am unable to agree with the view taken by the High Court judge. Whilst, when analysed in hindsight, the statements of counsel and of the Crown Court judge may have lacked some degree of precision, and whilst some of the observations of the judge on 7 September could be read to mean that a preparatory hearing would not take place until January, I think that it is reasonably clear both from the transcript of the hearing on 7 September read as a whole and from the orders made by the judge, that he ordered at the hearing on 7 September that the nine defendants should be arraigned and that the preparatory hearing in respect of them should begin, because the judge said: "In my view it is right to start the preparatory hearing to this extent: To have arraignment today of those defendants apart from Mr Correya and Mr Kanaris for the reasons that have already been set out."

    32. Moreover after the nine defendants had been arraigned the judge at page 35 made the very orders which a Crown Court judge is empowered to make at a preparatory hearing by section 31(4) and (6) of the 1996 Act, viz. an order for the service of the prosecution case statement by 30 October and the service of a defence statement by 14 December. The fact that section 32 of the 1996 Act empowers the Crown Court judge to make orders under section 31(4) to (7) before the preparatory hearing does not assist the respondent because the Crown Court judge made it clear at page 25 that he was holding a preparatory hearing on that day. Having regard to the words used by the judge and to the orders which he made pursuant to section 31(4) and (6) I consider that there is no substance in the suggestion that he mistakenly thought that the mere fact of arraigning the nine defendants was sufficient in itself to constitute a preparatory hearing in respect of them. Nor does it materially assist the respondent that at the hearing on 7 September the judge referred to a preparatory hearing in January; under section 31(2) the judge may adjourn a preparatory hearing from time to time, and I consider that the references to a preparatory hearing in the New Year related to a further preparatory hearing in January. This is confirmed by the judge's statement at the hearing on 5 October at page 8 that "the next preparatory hearing will be the 11th January".

    33. I further consider that the observations of Crown counsel and of the judge at the hearing on 5 October confirm that there was a preparatory hearing in respect of the nine defendants on 7 September and that there was a preparatory hearing in respect of the respondent on 5 October. On 5 October the judge said expressly at page 5 that he had ordered on the last occasion that "the preparatory hearing should start on that occasion" and that "unless Miss Radford wants to say anything about that, I'll make the same order, as far as this is concerned." At that point, although she expressed concern that Mr Kanaris would be in custody until May, Mrs Radford did not dispute the statements by Crown counsel and the judge that the hearing on 7 September had been a preparatory hearing. I am unable to agree with the view of Andrew Smith J in paragraph 44 of his judgment that after Mrs Radford had addressed him the judge did not make an order that a preparatory hearing would start against the respondent. I consider that the words of Crown counsel and of the Crown Court judge at page 8 make it clear that the judge was ordering a preparatory hearing against the respondent on that date and that the same timetable for the delivery of documents pursuant to section 31(4) and (6) would apply to him. As I have already observed in relation to the nine defendants, the fact that a preparatory hearing in respect of the respondent took place on 5 October is confirmed by the judge's words at page 8 that "And then the next preparatory hearing will be the 11th January."

Separate preparatory hearings

    34. A further and separate ground on which Andrew Smith J held that no preparatory hearing had begun in respect of the respondent was that when there was an indictment against a number of defendants, and particularly where a number of defendants were charged on the same count, there could not be a separate preparatory hearing in respect of one or some defendants. The judge said at paragraph 34 of his judgment:

    "[The statute] does not contemplate a number of separate preparatory hearings. If the case as a whole is such as to warrant [a] preparatory hearing, at that single hearing the charges against all the parties should be considered. And the corollary is that the arraignment which is to take place at the start of the preparatory hearing (if it has not taken place earlier) is the arraignment of all the defendants. I therefore take the view that a preparatory hearing cannot take place against only some defendants on an indictment, a fortiori against only some of the defendants charged on the same count."

    35. In my opinion the judge erred in making this ruling. The law is clear that where a number of defendants are charged in the same indictment or in the same count, each defendant is charged with having himself committed an offence. In Director of Public Prosecutions v Merriman [1973] AC 584 the respondent and his brother were jointly charged with the offence of wounding another man with intent to do him grievous bodily harm. Lord Morris of Borth-y-Gest stated at page 591H:

    "it is important to consider what is meant by a 'joint charge'. In my view, it only means that more than one person is being charged and that within certain rules of practice or convenience it is permissible for the two persons to be named in one count. Each person is, however, being charged with having himself committed an offence. All crime is personal and individual though there may be some crimes (of which conspiracy is an example) which can only be committed in co-operation with others. The offences charged in the present case were individual charges against each of the brothers."

    36. In R v Fenwick (1953) 54 SR (NSW) 147 (approved by the House in Merriman) Street CJ stated at page 152:

    "Indictments are to be read jointly and severally, and this indictment, as is the common practice in indictments in cases of murder, although it is framed against two accused, is to be regarded as a joint and several indictment of those accused."

In R v Gibbins and Proctor [1918] 13 Cr App R 134, 136 Darling J stated: "The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately but the judge must exercise his discretion judicially." Moreover, it was stated in R v Assim [1966] 2 QB 249, 258F:

    "The first point that becomes quite clear upon an examination of the authorities is that questions of joinder, be they of offences or of offenders, are matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice."

    37. Therefore I consider that there is no rule of statute or practice which prevents a judge from ordering a separate preparatory hearing in respect of one defendant jointly charged with other defendants in the same indictment if he considers that it is in the interests of justice to do so. In most cases it will be appropriate for a preparatory hearing to take place in respect of all those who are charged in the same indictment, but I consider that a judge has power to order a separate preparatory hearing in respect of one defendant where the circumstances require it. In my opinion the present case was one where the judge was fully entitled to take the view that it was desirable to make such an order. Eleven defendants represented by separate counsel, who had each received a proposed agenda headed "PREPARATORY HEARING — 7 September 2001", had appeared before him in the Crown Court, the Crown submitted that the case was a proper one for a preparatory hearing, and the judge accepted this submission. However a question was raised as to the fitness of one defendant, the respondent, to stand trial, and therefore there could not be a preparatory hearing in respect of him on that date. In addition counsel for another defendant informed the judge that he intended to apply for dismissal. In those circumstances rather than adjourn the entire case to a future date for the first preparatory hearing, I think that it was sensible for the judge to proceed with the preparatory hearing in respect of the other nine defendants and to make orders pursuant to section 31(4) and (6) in respect of them, and to adjourn to another day the preparatory hearing in respect of the respondent.

An actual preparatory hearing

    38. Andrew Smith J also accepted a further submission by Mrs Radford that even if the Crown Court judge had ordered that a preparatory hearing should begin in respect of the respondent on 5 October, in reality no such hearing did begin. Counsel submitted that to take away a defendant's right to bail it was not enough for a judge merely to direct that a preparatory hearing should begin or to state that a preparatory hearing was taking place, but that a preparatory hearing actually had to take place. In support of this submission counsel relied on the decisions of the Divisional Court in R v Maidstone Crown Court Ex parte Hollstein [1995] 3 All ER 503 and R v Maidstone Crown Court Ex parte Clarke [1995] 1 WLR 831 (when the custody time limit ran until arraignment) that arraignment should not take place artificially and should not be used as a mechanism for terminating the right to bail. In accepting this submission the Judge relied on his ruling that there could not be separate preparatory hearings, but he also stated:

    "47.  I need hardly say that no-one suggests (and from what I have seen, no-one could properly suggest) that the prosecution was intending to act deviously or improperly, or was in any way behaving trickily. To avoid that connotation, I do not describe what happened as a "sham". Nevertheless, it was a fiction, and in my view an impermissible fiction, to say that the preparatory hearing was beginning against anyone on 7 September 2001 or on 5 October 2001. The truth is that the partial arraignment of the defendants was a device, and I do not think that the time limits can be so circumvented.

    48. I therefore conclude that no preparatory hearing has begun against the applicant and the custody time limit is spent.

    49.  It might be said that the applicant is exploiting a technical argument when it is clear that those involved in the proceedings regarded the preparatory hearing as begun against him, and the custody time limit protected. And it might well be that in this case the prosecution could have justified an application to extend the time limit: indeed, although I have not heard argument on the point, there is every indication that, if the Crown had sought an extension of the custody time limits the defendants would have had difficulty in resisting it. However the fact remains that, although Mrs Radford fired a warning shot on 5 October 2001 when the prosecution could still have applied for an extension of the limit, no application was made. The custody time limits rules are an important safeguard for accused persons and demand that prosecutors and the Court consider with care whether prolonged detention before trial is properly justified. This is witnessed by the narrow view the courts have taken of what constitutes "good and sufficient cause" to extend custody time limits. It is not an answer to an accused entitled to his liberty after the limit has expired that his argument is a technical one."

    39. I am again unable to agree with the view of the High Court judge that it was a fiction to say that preparatory hearings began on 7 September and 5 October and that the arraignment of the defendants was a device to circumvent the time limits. On 7 September the Crown Court judge ordered pursuant to section 29 of the 1996 Act that there would be a preparatory hearing in respect of the nine defendants, and in the course of that preparatory hearing he made orders pursuant to section 31(4) and (6). Therefore there was not a fictitious preparatory hearing but an actual preparatory hearing. The arraignment of the nine defendants was not an artificial device to circumvent the time limits but took place because section 30(b) provides that arraignment shall take place at the start of the preparatory hearing unless it has taken place before that. The same procedure for the same reasons took place in respect of the respondent on 5 October.

    40. It is also relevant to observe that at the hearing on 5 October when Mrs Radford made the point that the respondent would be in custody until the trial began in May the Crown Court judge observed in reply (in the passage of the transcript set out in paragraph 10 above) that at the hearing on 7 September it was counsel for Mr Kanaris who submitted that the defence would not be ready before Easter, and that if any suggestion had been made at the hearing on 7 September that there was a problem in respect of the custody time limit he would have addressed that problem before fixing the date for the trial.

Custody time limits

    41. Although I am unable to agree with Andrew Smith J that no preparatory hearings had begun against the respondent and against the other nine defendants, I am in agreement with him that the custody time limits are an important safeguard for accused persons and that prosecutors and judges should consider with care whether prolonged detention before trial is properly justified. This is a matter to which particular reference is made in the speech of my noble and learned friend Lord Hope of Craighead which I have had the advantage of reading in draft. On this aspect of the case I would wish to make two observations. The first observation is that where a preparatory hearing takes place before the custody time limit expires so that a defendant loses the right to bail which he would have enjoyed if the time limit had expired before there had been a preparatory hearing, he is still entitled to apply for bail to the Crown Court, and the period which would elapse before the case came to trial is a factor which the judge hearing the application would have to take into account. This is a point to which the Crown Court judge referred in his comments at page 7 of the transcript of the hearing on 5 October 2001 which is set out in paragraph 11 of this opinion. But it appears that in this case no application for bail on behalf of the respondent was made to the Crown Court after the preparatory hearing on 5 October 2001.

 
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