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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> GB, R v [2001] EWCA Crim 1995 (19th September, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/1995.html Cite as: [2001] EWCA Crim 1995

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G.B., R v. [2001] EWCA Crim 1995 (19th September, 2001)

Case No: 2001/02989/S3
Neutral Citation Number: [2001] EWCA Crim 1995
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
(His Honour Judge Anthony)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Wednesday 19th September 2001

1. This is the judgment of the Court. This is an interlocutory appeal with the leave of the trial judge brought by the defendant appellant under section 35(1) of the Criminal Procedure and Investigations Act, 1996 (save where the context otherwise requires, all further references are to that Act). This procedure is available where it appears to a judge of the Crown Court that the indictment reveals a case of such complexity or length that substantial benefits are likely to accrue from a preparatory hearing under section 29(1). But the hearing is limited in scope and must be for one or more of the purposes listed in section 29(2), namely:

"(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge's management of the trial."

2. In such a case, where the hearing is for such a purpose, the court may make a ruling as to:

"(a) any question as to the admissibility of evidence;
(b) any other question of law relating to the case (section 31(3))."

There is doubt in our minds as to whether the appellant established either a section 29(2) purpose, or whether the judge was asked to rule on a section 31(3) issue, but as the Crown did not challenge the jurisdiction to make the order, we do not take that point.

3. The facts need only be sketched in their barest outline:
a) the defendant was a police informant; on his evidence he was one for a long time; on the Crown's case from 3rd August to 6th December 1998;
b) his defence at trial (duress) requires him to reveal the fact that he was asked to inform and that he was paid for his activities as an informant, particularly in relation to a criminal called Pugh;
c) his public exposure as an informant would leave him at real risk of sustaining serious injuries from those he has informed against and other who disapprove of such conduct (see for example the Sussex Police's Risk Assessment of 18th November 1999).

4. The defendant's application to the trial judge was that "... the whole or part of the trial should be heard in camera ...". On the outline of the case put before us it is possible - indeed probably likely - that the fact that the defendant was an informer will pervade not only certain parts of the evidence, but counsels' speeches, and indeed the summing-up itself might be the target of a request to hear some of it in private.

5. It is common ground between the judge (judgment page 2B), leading counsel for the defence and counsel for the Crown that exceptionally the totality of a trial may be heard in camera. We agree with that broad proposition. But such a course would be truly exceptional. The application in this case was made with a broad brush, when so exceptional an application would have to be properly supported by facts, and by a voir dire in which the exposure of the defendant as an informant was properly examined. The judge was plainly right on the evidence and information before him in not ordering that the whole trial be held in private.

6. And he was also plainly right in indicating that circumstances might arise when he might have to reconsider his ruling (and he gave as an example if the position was that the defendant would simply not give his evidence unless it was heard in private). It was prudent and right to recognise that litigation is full of surprises, and when circumstances require that the question of all or part of the case be reconsidered, that they should be. These matters are best dealt with by the trial judge: day-to-day case management cannot satisfactory be done by this Court, and the preparatory hearing powers are suitable for a once and for all time ruling on a point of law or admissibility of evidence, and are quite unsuitable for active trial management.

7. Accordingly, we agree with everything the trial judge said. There is no issue of law between the parties. The appellant agrees that the decision whether to order any part of the trial to be held in private is a matter for judicial discretion, and it certainly cannot be said that no judge properly directing himself could refuse the appellant's application for the whole trial to be heard in private. Accordingly, this appeal is dismissed.