B & G, R. v Re Interlocutory Application, [2004] EWCA Crim 1368

[2004] EWCA Crim 1368
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 27 May 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION
LORD JUSTICE ROSE
MR JUSTICE CRESSWELL
MR JUSTICE ANDREW SMITH
Between
R E G I N ACrown
INTERLOCUTORY APPLICATION UNDER SECTION 9(11)
CRIMINAL JUSTICE ACT 1987
-v-
Between
BG
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR C MISKIN QC, MR R PARDOE & MISS E LEES appeared for APPELLANT BMR A MITCHELL QC, MR P MARTIN & MR S ESPRIT appeared for APPELLANT GMR VB TEMPLE QC & MISS L DOBBS QC appeared for CROWNMR R RHODES QC & MR D AARONBERG appeared as interveners for other three defendantsMR O GLASGOW appeared for City of London Police
J U D G M E N T
[1]THE VICE PRESIDENT: This appeal comes before this court as a matter of urgency. The trial judge has, within the last ten days, made rulings which are in part the subject of challenge. On 7th June he is due to embark on a trial which may last up to a year. Speedy resolution of the important issues raised is essential. Other demands on this court's time mean that, unless judgment is given today, it will be several weeks before it can be given.[2]The two appellants G and B are jointly charged with three co-accused to whom we gave leave to intervene in this appeal. All five face an indictment containing counts of common law conspiracy to defraud and conspiracy to contravene various provisions of the Theft Act, by procuring investment in reliance on proof of funding which was worthless.[3]On 21st April 2004, having heard counsel for the prosecution on an ex parte PII hearing in chambers, the trial judge ruled that certain sensitive material should not be disclosed to the defence. That ruling in itself is not the subject of challenge nor could it be at this stage.[4]However, on Friday 14th May, after the jury had been sworn and the prosecution opening had begun, in breach of that ruling, "grossly negligently" as the judge said, the prosecution inadvertently disclosed, in an unredacted paragraph of a document, highly secret and sensitive material. Before the error was realised, the material was read by leading and junior counsel representing the two appellants and leading counsel for G informed his solicitors about that material. Later that day, the judge made an interim order that those to whom such disclosure had been made should not further disseminate the material to any third party, including their clients. It had, by this time, become apparent that, for unconnected reasons, one of the jury, and therefore probably the whole jury, would have to be discharged.[5]On Monday 17th May there was a further ex parte hearing before the judge which only the prosecution attended when the propriety of the order made on 21st April was revisited. Prosecution counsel had sought a hearing attended by counsel for the appellants but they thought it inappropriate to take part. Confidential written submissions were lodged by counsel to whom inadvertent disclosure had been made and to whom we shall refer for brevity as being "in the know" and written submissions were also made by leading counsel not in the know on behalf of R. The judge made a provisional ruling, in the light of those submissions, that the information inadvertently disclosed should not be disclosed to the defence and that no injustice would, in consequence, result to any of the defendants.[6]On 19th May the jury were discharged. The judge then heard further argument as to the principles surrounding a debarring order of the kind provisionally made on the 14th, as to whether this court would have jurisdiction to entertain an appeal and as to the merits of him granting leave to appeal. He distinguished Davis, Johnson and Rowe 97 Cr App R 110 and ruled that there would be a ban on dissemination by lawyers in the know to anyone, including their clients, that no use must be made by the lawyers of the information wrongly disclosed and that the order was being made at a preparatory hearing pursuant to sections 7 and 9 of the Criminal Justice Act 1987 and was therefore subject to interlocutory appeal. He gave the two appellants leave to appeal but refused leave to the other three defendants. All the wrongly disclosed documents were returned to the Crown pursuant to the order made by the judge, though junior counsel for B made a note, which he still has, of the sensitive material.[7]It is that ruling of 19th May that is the subject of present challenge by way of appeal. We have been greatly assisted by the written and oral submissions which we have received from Mr Mitchell QC on behalf of G, Mr Miskin QC on behalf of B, Mr Rhodes QC on behalf of the other three defendants, and Mr Temple QC on behalf of the Crown. We have also received and are grateful for submissions from Mr Spens QC on behalf of the Bar Council and Mr David Perry on behalf of the Law Society.[8]We intend no disrespect to counsel if, in the interests of brevity, we do not rehearse their arguments but proceed to our conclusions and the reasons for them.[9]The first question which arises is whether this court has jurisdiction to entertain an appeal. For the Crown, Mr Temple QC accepts that the judge's determination related to the admissibility of evidence and/or a question of law within section 9(3) of the Criminal Justice Act 1987. But he challenges the judge's conclusion that he was holding a preparatory hearing within section 7 of that Act. He relied on Gunawardena 91 Cr App R 55, Moore & others CACD transcript 4th February 1991, and Hedworth [1997] 1 Cr App R 421, and submitted that, notwithstanding Claydon [2001] EWCA Crim 1359 and Attorney-General's Reference No 1 of 2004 [2004] EWCA Crim 1025, the judge's order was not for the purpose of trial management.[10]We indicated our view, during submissions, that we do have jurisdiction. In our judgment, the judge was right to hold that, the jury having been discharged, what took place on 19th May was a preparatory hearing, in a case of serious and complex fraud, for the purpose of assisting him in the management of the trial within section 7(1)(d) of the 1987 Act. Nothing in Gunawardena, Moore or Hedworth is inconsistent with that view. The judge's order, made for the purposes of the trial when a new jury was empanelled, restricted communication between lawyers and clients and precluded the deployment in evidence or cross-examination of the disclosed sensitive material. Such an order, as it seems to us, self-evidently assisted the judge's management of the trial and the hearing on 19th May was held for that purpose.[11]The second question is whether the judge had jurisdiction to make the order on 19th May. There is no doubt, and it is not suggested to the contrary, that the judge was entitled, by virtue of section 3(6) and section 7(5) of the Criminal Procedure and Investigation Act 1996, to make the order for non-disclosure which he made on 21st April. By virtue of section 45(4) of the Supreme Court Act 1981 the Crown Court has High Court powers in relation to contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction. It is clear that the judge regarded his provisional orders on 14th and 17th May and his final order on 19th May as being ancillary to his order of 21st April. He was right so to do. He had jurisdiction to make appropriate orders ancillary, and giving effect to his order of 21st April. An order under section 3(6) is made at the behest of the prosecution and has the effect of exonerating them from the obligation otherwise to disclose the sensitive material. But once the court has concluded that disclosure is not in the public interest it is entitled to give effect to that conclusion by making appropriate, supportive, ancillary orders.[12]The third question is whether the order of 19th May was appropriate. It is to be noted that the judge's prohibition on use of the wrongly disclosed material was new. It is also to be noted that he concluded that no injustice would result from maintenance of the original order, that there was no impediment to the legal advisers properly continuing to act and that knowledge by the lay clients of the unauthorised material was unnecessary for just disposal of the trial.[13]It is apparent that, if the judge's order holds good, there will be a number of consequences in relation to the conduct of the trial. First, counsel in the know will be unable to discuss the sensitive material with their clients, obtain their instructions as to its accuracy, advise the client about his rights in relation to it (including as to a possible stay for abuse of process) or use it in cross-examination or otherwise. Secondly, it will be necessary during this very long trial for counsel and solicitors acting for G and for counsel acting for B to take care throughout not to let slip, however inadvertently, the sensitive material, to their clients or to anyone else not in the know, including counsel for the other three defendants, otherwise they will be in contempt of court. In D&J Constructions v Head [1987] 9 NSWLR 118 at 122, Bryson J, in a passage cited by Clarke LJ in Koch Shipping v Richards Butler [2002] EWCA Civ 1280 paragraph 31, said, in relation to information barriers in the civil sphere:
"... it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently and without explicit expression, by attitudes, facial expression or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control."
Thirdly, policing the behaviour of those restrained both outside as well as inside court will be virtually impossible: any communication to the client will be protected by legal privilege, to which the English and Strasbourg courts attach great importance (see per Lord Hoffmann, with whose speech the other members of the House agreed, in R (Morgan Grenfell) v Special Commissioners of Income Tax [2003] 1 AC 263 at paragraph 7). Fourthly, the relationship between a lawyer in the know and his client is bound to be damaged because, in addition to preventing frankness and fettering the free flow of information between lawyer and client, the order is likely to nurture in the client a belief that his lawyers are putting other interests, possibly including those of the prosecution, above his own. The client's reasonable perception of the relationship is, as it seems to us, a matter of importance. Fifthly, the judge has a continuing responsibility to keep his PII order under review in the light of developments in the case and the submissions made to him ex parte by the Crown and inter partes by the defence; defence submissions by those in the know will be entirely artificial if those advancing them are precluded from referring to the very material which is the subject of PII and the distinction between overt use and inward thoughts is not always easy to maintain - see per Sir Nicholas Browne-Wilkinson VC in English and American Insurance v Herbert Smith [1988] FSR 232 at 240. Finally, the creation of an asymmetrical Chinese wall between some but not all of the lawyers and their clients will make it impossible for the other defendants, whose lawyers are not in the know, to avoid a sense of unfairness if those representing their co-accused are in possession of information which is denied to their lawyers but which might be of benefit to the conduct of their defence. The point was graphically illustrated in the proceedings before this court, which included the submission of skeleton arguments by those in the know which could not be seen by co-defendants and their representatives not in the know, and the repeated exclusion from court of those not in the know during submissions for co-accused.[14]We turn to consider whether the authorities to which we have been referred suggest or permit such a surprising result. We deal first with the submissions made on behalf of the two professional bodies. The Law Society acknowledged that a solicitor's duty to disclose all relevant information to clients is not an absolute one, but observed that any departure from it is "a matter of profound concern" and should happen only where "circumstances compel such a conclusion". The public interest in the administration of justice must be the determining factor where principles of conduct are in conflict. The Law Society emphasised that the trial judge expressed the opinion that "the just determination of these criminal proceedings does not require that any person including the defendants should be informed of the contents of the unauthorised disclosure", commenting that he "appears well placed to make this assessment". They do not challenge the judge's conclusion that the legal advisers could continue to represent their clients properly and effectively. The Bar Council however submit that it is for counsel alone to decide whether they can continue to act (weighing professional embarrassment and any jeopardy to the lay client's interests) because the judge does not know all that counsel knows. We think it right, both in principle and pragmatically, that whether a solicitor or barrister can properly continue to act is a matter for him or her not the court, although of course the court can properly make observations on the matter. The Law Society also observes that, in publicly funded cases, the trial judge decides whether a change of representation is justified: see the Criminal Defence Service (General) (No 2) Regulations 2001, regulation 16. Absent exceptional circumstances, such as an obvious attempt by a defendant to abuse the system by repeated applications, we think it is unlikely that, if leading counsel tells a judge he is embarrassed to continue acting, the judge will not permit a change of representation.[15]In civil proceedings, the courts in some circumstances will not permit the use of a privileged document inadvertently disclosed: CPR 31.20. The circumstances in which its use will be permitted and when it will be restrained were considered by the Court of Appeal, Civil Division, in Al-Fayed v Commissioner of Police and the Metropolis [2001] EWCA 780. The essential question is what justice requires. In particular, use of a document might be prevented if inspection of it was procured by fraud, and will sometimes be prevented if disclosure was made by an obvious mistake. This is so whether the document was protected from disclosure by legal professional privilege or by public interest immunity which the party concerned was not bound to assert: see Al-Fayed, the judgment of Clarke LJ at paragraph 17. However, use will not be prevented unless it would be unjust or inequitable to use it, and this question may well involve considering whether it is too late to restore the status quo: see Guinness Peat Ltd v Fitzroy Robinson [1987] 1 WLR 1027 per Slade LJ at 1046.[16]There is no reason in principle why a Crown Court, exercising the jurisdiction to which we have earlier referred, should not similarly restrain the use of material inadvertently disclosed, although the particular circumstances of the case which dictate whether justice requires an order will, of course, be different. In a criminal case with more than one defendant, regard must be had to the position both between the prosecution and the defendants and between the defendants. However, the appellants submit, referring to Archbold paragraph 12-16, that no comparable remedy is ever available in the event of inadvertent disclosure in criminal proceedings, at least in the case of a public prosecution. The basis of this view in Archbold is that cases such as Kuruma [1955] AC 1978 establish that admissibility of evidence depends upon relevance and it is immaterial how the evidence was obtained. We do not accept that reasoning or its conclusion. The approach in Kuruma applies in civil cases: see Calcroft v Guest [1898] 1 QB 759. But a sharp distinction has been drawn between restraining a person from divulging or using confidential information which has come into his possession, including using it in litigation before trial, and preventing its use at trial: see Ashburton v Pape [1913] 2 Ch 469, particularly at page 476.[17]It is not necessary for the purposes of this appeal for us to define the circumstances in which the Crown Court might exercise similar powers to those established in a civil context and restrain use of documents inadvertently disclosed in criminal proceedings. Nor is it necessary to consider a submission by Mr Miskin that, even if such powers are available (in that there can be restraint of disclosure and use of confidential material inadvance of a criminal trial), here, by virtue of section 8 of the Criminal Justice Act 1987, the trial had started with the preparatory hearing. It suffices to say that disclosure and use should not, in our judgment, have been restrained in this case, not least because it was too late to restore the status quo having regard to all the matters set out above, and therefore it was not just or equitable to order restraint.[18]We have considerable sympathy with the trial judge who faced an extraordinary situation. On 14th May he was right to staunch by his interim order any further dissemination of the material. On 17th May he was right to revisit his 21st April ruling and to consider its continuing propriety. But on 19th May, albeit that he did not have the advantage, if such it be, of being referred to the large number of authorities before us, he fell into error in two other important respects.[19]First, Davis, Johnson and Rowe was not, in our judgment, distinguishable. It is true that in that case there was no inadvertent disclosure. But we can see no difference in principle between the court seeking an undertaking from a lawyer not to disclose material to his client which he has seen, and making an order to that effect. We regard the observations of Lord Taylor CJ in that case at page 113 as being equally apt in the present circumstances:
"It would wholly undermine counsel's relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client."
Secondly, the judge was wrong to conclude that counsel and solicitors, albeit restrained by his order, could properly continue to act. As we have indicated, it is for counsel and solicitors, not the court, to make that decision in the light of all the circumstances known to them, some of which may not, for reasons of legal privilege or otherwise, be known to the court. It is also to be noted that the House of Lords in H and C [2004] 2 WLR 335 have recently considered PII procedures and their compatibility with Article 6 of the European Convention on Human Rights. The appellate committee on that occasion included three present or former Lord Chief Justices of England or Northern Ireland, and a former Lord Justice General of Scotland. They did not, of course, address the sort of circumstances which have arisen in this case. But it seems unlikely that procedures for the appointment of special counsel, approved in paragraph 36(4) of the opinion delivered by Lord Bingham of Cornhill, would have been considered necessary had their Lordships thought that it might be possible, in a criminal case, to compel the silence of legal representatives by such an order as was made in the present case.[20]Accordingly, these appeals are allowed. The judge's order of 19th May will be quashed, but not immediately. First, we shall hear submissions from counsel on behalf of all parties as to what the position of those in the know should be when the judge's order is quashed.[21]MR TEMPLE: My Lord, may I turn now directly to the invitation of the court to deal with how the Crown view the position of those in the know? Before I come to deal with that question in terms, may I just indicate to your Lordships that the Crown would wish to preserve their position on appeal. Clearly we have anticipated much of what your Lordship has said in the judgment. We have already drafted a possible three questions to place before your Lordships for certification and leave, if we felt it appropriate after having further digested the terms of the judgment.[22]So, with that in mind, may I turn to your Lordship's direct question with regard to the question of the position of those in the know. We would submit that the solution is this. There should be an order from this court that those in the know will not use or disseminate the inadvertently disclosed material (originally forming a short paragraph on a submission paper to the Attorney General) until further order of this court. Phrased in that way, the Crown submit that the position with regard to the exhaustion of the appeal process will be covered.[23]MR MITCHELL: My Lord, until further order of the court is not, with respect, appropriate. My learned friend, I believe, has fourteen days to come back before your Lordships for certification and the issue of leave. We would respectfully submit that if you are to make such an order -- and if I may reflect on that for a moment as I am addressing you -- it should be time limited to that fourteenth day.[24]THE VICE PRESIDENT: There are difficulties in that regard, Mr Mitchell, I can tell you at once, because not only is it the vacation next week, but the week after that I shall be away, so certainly for the next fourteen days there is no possibility of any question - unless it is submitted in the course of the next fifteen hours or so - being considered.[25]MR MITCHELL: Can I address that? We have at each stage when there has been a question of an interlocutory appeal -- twice with leave and once not with leave -- moved extremely quickly and within very few days, not worrying about time limits at all, to get the papers in before this court so that hearings could take place. They have all been expedited and there has been assistance from the court staff to make sure that we can get on. It seems, respectfully, rather unfair for the Crown now to be saying, knowing that we are supposed to be back on 7th June and starting, that they would like to, in effect, have their fourteen days before they have to come to some final --[26]THE VICE PRESIDENT: Well they are entitled to them, Mr Mitchell.[27]MR MITCHELL: My Lord, so were we entitled.[28]THE VICE PRESIDENT: That may impress a jury; it does not impress me.[29]MR MITCHELL: My Lord, that is my first point. If your Lordship is away and the court is not sitting next week, my Lord, that adds weight to my respectful submission that really the Crown should go away and think about their position and come back either tomorrow morning or some time tomorrow with an answer. As to whether or not I --[30]THE VICE PRESIDENT: The Crown, at the moment, are coming back at just after 10 o'clock tomorrow morning.[31]MR MITCHELL: Are they? They have asked for fourteen days, my Lord.[32]THE VICE PRESIDENT: No, no, but they are coming back in relation to other matters at 10 o'clock tomorrow morning, as matters stand at the moment, because that was discussed yesterday.[33]MR MITCHELL: As far as I am concerned -- and since this is also an issue of orders made personally -- first of all, I would prefer to give my undertaking to your Lordship than be subject to an order, and secondly, I would be prepared to give you an undertaking until such time as the question of the appeal is resolved, and then, my Lord, that undertaking should lapse, unless of course your Lordships decide that there are issues to certify and leave is to be granted, in which case --[34]THE VICE PRESIDENT: If that route was followed it would obviously have to be an undertaking on behalf of junior counsel and your solicitors as well.[35]MR MITCHELL: It may be that they would each consider it is appropriate, either as counsel or, in the case of the solicitor, as an officer of the court, to give that undertaking individually and personally.[36]THE VICE PRESIDENT: If they hear you give such an undertaking in their presence maybe they would be bound by it.[37]MR MITCHELL: (Instructions taken.) One of the party in the know is taking a well-deserved Bank Holiday weekend and has already gone, and we will try to communicate with him. He is the member of the Bar who is a paralegal at those instructing me, but all present are content for me to give an undertaking on their behalfs, and myself, to the court. My Lord, that undertaking is plainly something which should be revisited as soon as the Crown have determined what it is they wish to do. Whether your Lordships grant leave or not to any application they make will impact upon whether that undertaking continues. But, my Lord, to permit the Crown to have breathing space, in the same way that we acceded, without demur, to the judge's original holding order that we would give such an undertaking. It is the only way to assist this matter being properly thought through and resolved.[38]THE VICE PRESIDENT: Thank you. Mr Miskin?[39]MR MISKIN: My Lord, I said to Field J that I would carefully consider the matter at that point. I would prefer an order, and so would my junior. I am, of course, happy to give an undertaking, but I would just prefer an order.[40]THE VICE PRESIDENT: Mr Temple, what, if anything, do you contemplate in the context of your perfectly proper application for fourteen days should happen tomorrow morning at 10 o'clock?[41]MR TEMPLE: Nothing, my Lord. In view of your Lordships' judgment, the matters your Lordship raised, I think, if my memory serves me best, for discussion tomorrow morning, have now been subsumed by the exchanges we have had today, namely how your Lordship should deal with the question of "those in the know".[42]THE VICE PRESIDENT: Do the questions which you are going to ask us to certify already exist?[43]MR TEMPLE: They do, my Lord, in draft form. May I please emphasise that clearly these are important matters. They need to be properly thought through and discussed with those who instruct us and we would like time to go through that exercise, and particularly we would wish to reflect upon the precise terms of your Lordships' judgment.[44]THE VICE PRESIDENT: Bearing in mind that this is an interlocutory appeal, I merely make the comment: I do not know to what extent you are likely to be able to excite the interest of the House of Lords, even if you persuade us to certify some questions, but ...[45]MR TEMPLE: We would hope their Lordships would be excited by the prospect of hearing these matters.[46]THE VICE PRESIDENT: Yes; there it is.[47]MR MITCHELL: My Lord, before your Lordships reflects a little further, may I respectfully make this suggestion? The trial cannot start until this appeal is resolved. It may be that your Lordships have indicated what it is that the final order of this court is going to be but the court does not perfect its order, and it is that that would lead to the original order being quashed, and it would be then that my learned friend, of course, would be in a position to determine where he wishes to go with his appeal. Provided he was prepared to put himself in a position as if you had quashed the order today but you do not quash it, and we return here on the first day when your Lordships resits for my learned friend to make his submissions, we are then all in a position(a) to continue to be bound by the order which you indicated you will eventually quash,(b) that the appeal is still extant, so the trial properly will not start before a jury until the Crown have made their minds up, and(c) it means that there is a finite date, a definite date, when we can come back before the court and my learned friend can be called upon to indicate what his position is. That occurred to me, whilst the exchanges were going on, as being a sensible way, if I may put it that way, of resolving the issue about whether it is an undertaking or an order, and giving my learned friend the breathing space that he wishes and ensuring that the court remains in control of the events until the Crown have made their minds up.[48]THE VICE PRESIDENT: The only possible complication so far as that is concerned is that until the court gives its judgment, or finalises its judgment, the Crown have fourteen days within which to consider the matter.[49]MR MITCHELL: One would imagine that, in the light of the way the exchanges are taking place, the Crown would be prepared to abridge the claim for an extra fourteen days because this is the purpose of them having the time from now, and it would need Mr Temple to agree to that. Then we could come back on the first date that my Lords were able to reassemble after the break which your Lordship has referred to.[50]THE VICE PRESIDENT: That may be some time ... (The Bench conferred.)[51]MR MITCHELL: My Lord, Monday the 14th, I think Mr Temple appears to find that appropriate -- and others will need to address you -- but I would certainly be happy for your Lordship to approach it on that basis.[52]THE VICE PRESIDENT: That, of course, presupposes that the court has nothing else to do on the 14th. I shall actually be sitting in the Divisional Court at that time.[53]MR MITCHELL: I was not for a moment suggesting that it was anything other than a proposal to my Lord as to what may be convenient to the Crown.[54]THE VICE PRESIDENT: Yes.[55]MR MISKIN: My Lord, this case has had a rather unhappy history. I think it was last October that the learned trial judge said that it would take a cataclysmic event to move the trial from a start date of January this year. A cataclysmic event did occur in December of this year, when the SFO served papers equivalent in size to a medium size SFO case upon the defence a few days before the start of the proposed trial. We objected to that adjournment being granted, which was done on the application of the Crown, and said that the material should simply be excluded or not included without leave. His Lordship reluctantly granted the application to adjourn, and the trial date was set for April the 19th. The jury have been hanging around now, I do not know how many weeks it has been, but they have already been sent away once for several weeks, and now come back and were sent away again, or eleven of them were, again until 7th June. His Lordship has repeatedly stated, and done his best to ensure, that any appellate process is quickly dealt with. There have been two appeals already, one of which went to the appellate committee and was refused, no leave granted. And that was done very quickly indeed.[56]In all the circumstances I submit, my Lord, that there is no reason why the Crown, who have drafted the points -- and the points must be obvious -- should not perfect those points within the next 24 hours and serve them for your Lordships' consideration tomorrow morning.[57]THE VICE PRESIDENT: Thank you. Mr Rhodes, the discussion has rather widened; it now embraces you.[58]MR RHODES: My Lord, yes. My learned friend Mr Miskin took out my mouth most of the words I was going to put before my Lords. What I would say is this. Let us assume, for the sake of argument, that in the week commencing 14th June this court was able to hear and determine the application to certify; let us assume that, in accordance with its usual practice, if it were to certify, it would not grant leave, but leave it to the House of Lords to decide whether they wished to hear this appeal. The prosecution would have fourteen days in which to serve their petition for leave to appeal, which would take us until the end of June. There is no way in which this actual appeal could come on, assuming their Lordships were to grant leave, in the course of next term; it would not come on until the Michaelmas term - that would be at the earliest. The effect of that would be that this trial, which has been hanging about for far too long already, would not start until next January at the earliest. My Lord, that is why I support my learned friend Mr Miskin in his request to your Lordship to put pressure on my learned friend for the Crown to make his application to certify tomorrow morning.[59]THE VICE PRESIDENT: Do you want to say anything else, Mr Temple?[60]MR TEMPLE: No, my Lord, other than to reiterate that we would wish to have proper time to reflect on these matters - proper time meaning more than tomorrow morning.[61]THE VICE PRESIDENT: We shall retire for a moment. (The court adjourned for a short time.)[62]THE VICE PRESIDENT: In the special circumstances of this case, we shall direct that draft questions for possible certification by this court for consideration by the House of Lords will be submitted by 10 o'clock tomorrow morning. Argument in relation to those will take place tomorrow morning not before 10 o'clock and after the handing down of the judgment in another case which I mentioned yesterday. In the meantime the order of the trial judge in relation to those in the know will remain in force.[63]MR MISKIN: My Lord, we have been asked by the reporters if they may report this. It is section 11(5) of the Criminal Justice Act 1987 which empowers your Lordship to permit the reporting of something which is otherwise unreportable. The judgment is entirely sanitised. I have consulted with my learned friend Mr Mitchell, and we are content that, if your Lordship is to permit reporting, that the case be called G and B.[64]THE VICE PRESIDENT: Have you any comment on that, Mr Temple?[65]MR TEMPLE: No, my Lord, none.[66]THE VICE PRESIDENT: I did take care, I think, to sanitise the judgment.[67]MR TEMPLE: No further submissions, my Lord.[68]THE VICE PRESIDENT: Thank you. Well then --[69]MR MITCHELL: Your Lordship will have the benefit of Mr Martin tomorrow morning.[70]THE VICE PRESIDENT: Well, it was of great excitement, Mr Mitchell, in view of your other commitments, to see you today.[71]MR MITCHELL: I had a very exciting day yesterday.[72]MR RHODES: Before your Lordships rise, would your Lordships formally grant legal aid for leading and junior counsel for the interveners?[73]THE VICE PRESIDENT: Oh yes, poor Mr Rhodes! We shall make --[74]MR RHODES: Otherwise I shall be troubling --[75]THE VICE PRESIDENT: I think we have nowadays to call it a representation order for leading and junior counsel. And have you got some solicitors as well?[76]MR RHODES: My Lord, yes.[77]THE VICE PRESIDENT: Yes, so be it.[78]MR MISKIN: I think, my Lord, that is his second application. Does he get twice as much, my Lord?[79]THE VICE PRESIDENT: Thank you, Mr Miskin.

Cited in 2 later judgments