H, R v.

Factual and Procedural Background

The Defendant, together with several co-accused, was indicted for conspiracy to defraud and related corruption offences. The allegation was that the Defendant induced Company A to pay for goods it never received. During pre-trial proceedings the Defendant applied, under section 8 of the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”), for disclosure of trading records said to be in the possession of the Prosecution. By agreement of counsel, that application was argued while the trial judge was conducting a preparatory hearing ordered under section 7 of the Criminal Justice Act 1987 (“the 1987 Act”). Judge Hodson (hereafter “Judge Hodson”) refused disclosure. The Defendant sought to appeal, contending that section 9(11) of the 1987 Act conferred a right of appeal against the refusal. The Court of Appeal held that it lacked jurisdiction but granted a certificate of public importance. The present opinion—given by the Appellate Committee of the House of Lords—addresses whether Judge Hodson’s disclosure ruling was appealable.

Legal Issues Presented

1. Whether a disclosure ruling delivered during a preparatory hearing is made “at” that hearing for the purposes of section 9(11) of the 1987 Act.
2. If so, whether refusing disclosure constitutes a ruling on a “question of law relating to the case” within section 9(3)(c) so as to attract the statutory right of appeal.

Arguments of the Parties

Defendant’s Arguments

• The disclosure application formed part of the preparatory hearing; therefore any ruling upon it fell within section 9(11).
• Determining whether to order disclosure requires the judge to apply legal tests laid down by the 1996 Act; accordingly the ruling was a “question of law relating to the case.”
• Early appellate review of disclosure decisions promotes trial efficiency and fairness, aims aligned with preparatory-hearing objectives.

Prosecution’s Arguments

• Section 9(11) is engaged only when the judge rules on matters expressly covered by section 9(3)(b) or (c); disclosure is not such a matter.
• The preparatory-hearing framework was never intended to create an interlocutory appeal route for routine disclosure disputes; Parliament deliberately omitted any such provision when enacting the 1996 Act.
• Allowing appeals on disclosure at this stage would distort case-management by encouraging parties to postpone applications for tactical advantage.

Table of Precedents Cited

Court's Reasoning and Analysis

First Question – Was the ruling made “at” the preparatory hearing? The House held that once a preparatory hearing is ordered, the judge may exercise any power that a trial judge could exercise in the jury’s absence. Accordingly, Judge Hodson’s decision was indeed made during the preparatory hearing. However, that conclusion merely satisfied a pre-condition for considering the statutory right of appeal.

Second Question – Did the ruling determine a “question of law relating to the case” under section 9(3)(c)? The Justices drew a distinction between (a) rulings that resolve substantive legal issues—such as admissibility of evidence or construction of an indictment—and (b) case-management decisions applying discretionary disclosure tests. They concluded that a routine disclosure decision, even if it involves applying legal criteria, does not itself decide a discrete question of law relating to the case. Parliament’s omission of any express disclosure-appeal mechanism when it legislated comprehensively on disclosure in the 1996 Act was treated as deliberate. Therefore the refusal to order disclosure did not fall within section 9(3)(c), and no right of appeal lay under section 9(11).

Policy Considerations. Their Lordships acknowledged that immediate appellate review of disclosure might be desirable in lengthy fraud trials but regarded that as a matter for Parliament. Extending section 9(11) by interpretation would contravene the express statutory scheme.

Holding and Implications

Appeal dismissed.

Because the disclosure ruling was not a decision on a “question of law relating to the case,” the Court of Appeal lacked jurisdiction under section 9(11) of the 1987 Act. The Defendant must therefore proceed to trial without interlocutory appellate review of the disclosure issue. The judgment clarifies that routine disclosure disputes cannot be escalated via the preparatory-hearing appeal route; any reform permitting such appeals must come from legislation rather than judicial interpretation.