Morris, R v [2005] EWCA Crim 1246

Case No 2002/4316/C2[2005] EWCA Crim 1246
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 3 May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
MR JUSTICE CURTIS
MR JUSTICE PITCHFORD
Between
R E G I N ACrown-v-
Between
DAVID GEORGE MORRIS
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 M MANSFIELD QC AND MR T MALONEY appeared for APPELLANTMR P HARRINGTON QC, MR T GLANVILLE JONES AND MR J DAVIS appeared for CROWN
J U D G M E N T

LORD JUSTICE PILL:

On

[1]28th June 2002, in the Crown Court at Swansea before Butterfield J and a jury, David George Morris was convicted of four offences of murder. He was sentenced to life imprisonment.[2]Morris appeals against conviction by leave of the full court. The submission made on his behalf is that he was deprived of a fair hearing because his solicitor had a conflict of interest and that influenced adversely the preparation and presentation of his case at the trial. It is also submitted that he was prejudiced by a failure by the prosecution to disclose documents, but that submission has been subsumed within the general submission. In written submissions, complaint was made about the lack of thoroughness in police inquiries into the murders, but that submission has not been central to the case presented at the hearing and the appeal does not turn on it. No criticism is made of the judge's conduct of the trial or of his detailed and comprehensive summing-up. The killings[3]In the early hours of 27th June 1999, Amanda Power, aged 34, her daughters Katie and Emily, aged 10 and 8, and her mother, Mrs Doris Dawson, aged 80, were killed by multiple blunt impact injuries mainly to the head at their home at 9 Kelvin Road, Clydach, West Glamorgan. The house was subsequently set on fire and there were several seats of fire. Emergency services were called at 4.27 am and the fire service arrived promptly. The fire in the kitchen was a substantial fire and was probably set after the fires upstairs failed to take hold. The burn time was up to two hours and there was evidence that all four women had died before the significant fire had begun. There was no sign of forced entry to the house. The evidence was of brutal and sustained attacks upon the women. It is not necessary, for present purposes, to describe them in any further detail. The murder weapon was a black fibreglass pole, 1.3 metres in length, which had been left at the premises by a previous tenant.[4]At the scene a pathologist recovered a vibrator from the body of the vagina of Amanda Power. There was no semen on it. Amanda Power was involved in a lesbian relationship with Alison Lewis, a former policewoman. Cellular material recovered from the vibrator and Amanda Power's thighs indicated her DNA and the possibility that the DNA of Alison Lewis was also present. Alison Lewis' husband, Stephen, was a police officer and his twin brother, Acting Inspector Ian Stuart Lewis, was amongst the first police officers to attend the scene. He was the most senior officer on duty in the area.[5]Very substantial police resources have been devoted to attempts to bring the killer to justice. The investigation was massive and far-reaching. Covert surveillance was practised. Alison and Stephen Lewis were suspects and suspicions also arose as a result of the conduct of Ian Stuart Lewis at the scene of the murders, where he stayed for only a few minutes, and later that day. He was subject to intensive police disciplinary inquiries. He had altered his notebook. In July 2000 Alison Lewis and Stephen Lewis were arrested on suspicion of the murders and Ian Stuart Lewis on suspicion of perverting the course of justice.[6]Stephen Lewis and Ian Stuart Lewis were represented by Mr David Hutchison, a solicitor of Goldstones, Swansea. He was assisted by Mr Gethin Humphries, an accredited police station representative employed by the firm. Ian Stuart Lewis was also represented by Mr Hutchison when interviewed for police disciplinary purposes. Mr Hutchison, formerly a Detective Inspector in the Metropolitan Police, was an experienced solicitor with a substantial practice in criminal cases in Swansea. The Lewis brothers were later told that no proceedings would be brought against them in relation to the murders. Before deciding in early 2001 not to prosecute, the Crown Prosecution Service ("CPS") had taken the advice of leading counsel.[7]The appellant was arrested on 20th March 2001. He had previously made a number of statements to the police. On arrest he asked to be represented by Mr Hutchison who had acted for him previously. Mr Hutchison was in Bristol and drove promptly to Swansea. On arrival at the police station a custody officer, on advice from the Crown Prosecution Service, properly given in our view, asked Mr Hutchison to consider the question of conflict of interest. Mr Hutchison explained to the appellant that he had previously advised and represented the Lewis brothers but the appellant signed a document stating that he wished Mr Hutchison to act for him. We accept that he was adamant that Mr Hutchison should act for him and he maintained that state of mind during preparation for trial and the trial itself. The present complaint has arisen over only after his conviction, indeed only after grounds of appeal settled by those who represented the appellant at the trial were rejected by the single judge. The case against the appellant[8]The evidence against the appellant at the trial was in our view strong, though when Mr Harrington QC, who appeared for the prosecution at the trial and on appeal, cross-examined Mr Hutchison with a view to establishing how strong it was, Mr Hutchison to his credit made several points in the appellant's favour. The central plank of the case was the finding in the bedroom of Mrs Dawson a 9-carat gold bevelled curb linked chain, hallmarked 1989, with its jump ring and fastener missing. Amanda Power's blood was on it. At the trial the appellant admitted that the chain was his. He said that he had visited the premises on 25th June and had had sexual intercourse with Amanda Power who had beckoned him upstairs. He had previously taken off the chain and had forgotten about it on departure from the house. Shortly before the trial, scientific evidence was served which showed a match between debris on the chain and the paint from kitchen units at the appellant's home. He said that he had worn another chain during the weekend of the killings.[9]The appellant had earlier persistently denied that the chain was his. He did so several times in interview before arrest, and following arrest in interview under caution. A defence statement dated 12th~November 2001 was formally served and in it the appellant denied that the chain was his.[10]Evidence was given by Mr Eric Williams who employed the appellant in the building trade at the time of the murders. He said that the appellant told him that he had had sexual intercourse with Amanda Power on 25th June 1999 and had given her his neck chain. That account was strenuously contested and Mr Williams heavily criticised by the appellant until shortly before the trial when the account was accepted by him and Mr Williams was not cross-examined. The appellant maintained that he had not told the truth to the police earlier in order to conceal from Mandy Jewell, the woman with whom he was living, his relationship with Amanda Power and because he was afraid that his truthful account would not be believed. The appellant had asked Williams for money to buy a similar chain. Other people stated that the appellant had told them that he had had a sexual affair with Amanda Power.[11]It is not necessary to analyse in detail other evidence against the appellant. There was conflicting evidence as to the appellant's conduct and demeanour at public houses late on the evening of 26th June. It included evidence that the appellant had made critical remarks about Amanda Power. The appellant was wearing a gold neck chain which much later witnesses claimed to be identical or very similar to the one found at the premises, though there were inconsistencies. There was evidence that the appellant had a scratch on his nose when seen on the morning of 27th June. There was conflicting expert evidence about handprints found at the premises. The experts were asked to consider whether the prints could have been those of the appellant or of Alison Lewis. The prosecution expert could not eliminate her hand from responsibility, but expressed the view that the fit was not as good as with the appellant's hand. The defence expert could not positively exclude the appellant from having made the marks but found the marks to be quite a good fit with the hand of Alison Lewis.[12]In evidence the appellant described his movements on the night of 26th/27th June. He had given differing accounts as to when he had reached his home which was within walking distance of Kelvin Road. He said that he had had sexual intercourse with Amanda Power about six or seven times, the first time being in about June 1998. He had lied for the reasons already stated. Mandy Jewell, who was a close friend of Amanda Power, gave evidence that the appellant had returned to the house in the early hours of 27th June and had no bloodstains on his clothes.[13]A martial arts expert called by the defence expressed the opinion that the injuries to the deceased were caused by someone skilled in martial arts. There was evidence that Alison Lewis had such skills. The defence case[14]The defence statement, signed by the appellant, included this paragraph:
"It will be asserted by the Defence that: a) The murders were probably carried out by Alison Lewis. b) Stephen Lewis (Alison Lewis' husband) possibly assisted Alison Lewis by trying to destroy the scene of the murders. c) Stuart Lewis (Stephen Lewis' twin brother) may possibly have thought that Alison Lewis was capable of carrying out the murders. This is evident from the evidence concerning his action at the scene and afterwards."
[15]In that context and to understand the appellant's submissions it is necessary to set out in outline some of the evidence which it is claimed links the Lewis brothers and Alison Lewis with the murders. The court underlines and emphasises that they are not on trial. The court is making no judgment upon the evidence and is referring to it to consider its impact on the grounds of appeal.[16]References to Alison Lewis have already been made. She and Stephen Lewis (her husband) gave evidence at the trial. The sexual relationship between Alison Lewis and Amanda Power was admitted. Alison Lewis said that she and the deceased had prolonged sexual activity on the night of 25th June when the deceased had come to the Lewis's house for a barbecue. She had stayed the night after Stephen Lewis had gone to bed and the two women had sex downstairs using a strap-on dildo the deceased had brought to the house.[17]In their evidence, both Alison and Stephen Lewis stated that he did not know of the affair between her and Amanda Power until the day after the murders. On being told of it, he was very upset and annoyed. One witness claimed that Stephen Lewis had known of the affair at an earlier time but other witnesses disputed that. There being no obvious motives for the killings, evidence that Stephen Lewis found out about the lesbian relationship before, and in particular shortly before, the killings was likely to assist the appellant's defence case that others were involved.[18]Louise Pugh stated that, days before the murders, she had witnessed Stephen Lewis shout at Amanda Power outside her home address "Leave my wife alone or I'll kill you". On interview, Stephen Lewis denied making that statement but on the following day stated that it was a joke as the two women had become very drunk the previous evening. Louise Pugh also stated that she had delivered a video tape of a film through the letterbox of Amanda Power's house on the evening of 25th June. The film was later recovered from the Lewis's home. There was conflicting evidence as to whether the film had been delivered to the premises of the deceased.[19]On the early morning of 27th June, Nicola Williams described driving along Gellionen Road, near Kelvin Road, at 2.30 am and seeing a man wearing a shiny bomber jacket, dark jeans or trousers, and carrying a bag under his arm. The jacket resembled a police jacket. She made an e-fit which, it is accepted, bore a remarkable likeness to Stephen Lewis. Fifteen months later she attended a video identification parade where she picked out Stephen Lewis as the man she saw. The prosecution pointed to the limitations of an identification by way of fleeting glance. The witness and Stephen Lewis regularly attended the same leisure centre and it was suggested that she had picked out a face she recognised.[20]A witness overheard Alison Lewis talking with her solicitor during a break between interviews at Morriston Police Station on 6th July 2000. He heard a male voice saying:
"You've got to come up with something" and a female voice replying: "
I didn't do it, I couldn't do it, he did it. I've got babies of my own."[21]In evidence both Alison Lewis and Stephen Lewis stated that he had not known of her sexual relationship with Amanda Power until after the night of the murders. They were both at home that night, Alison Lewis stating that she heard her husband get up twice and return to bed. In relation to Ian Stuart Lewis, whatever dispute there was about his later movements, there was clear evidence from other police officers that he was not in the vicinity of the premises at the time the murders were committed. However, during the police inquiries strong evidence emerged which, if true, demonstrated that Ian Stuart Lewis was not telling the truth about his movements after he had left the scene of the murders. It is submitted that there was further material implicating the Lewises which could have been produced at the trial and further inquiry should have been made by the defence which might have led to other incriminating material becoming available.

Representation and the issues at the trial

[22]Mr Hutchison instructed Mr Peter Rouch QC and Mr Francis Jones, of counsel, to represent the appellant at the trial. Both are very experienced advocates in criminal cases. Mr Rouch had received instructions from Mr Hutchison over a period of 20 years and stated that they had become friends as well as professional colleagues. Each spoke highly of the other's abilities and those assessments are not in question.[23]There were two limbs to the appellant's case at the trial. First, to cast doubt on the evidence against the appellant and put forward his innocent account of events, and secondly, to increase those doubts by introducing material suggesting that the Lewises, and especially Alison and Stephen Lewis, may have been involved in the murders. The other possibility that these were random killings by some other party or parties is a very unlikely one and was so treated by the judge in his summing-up.[24]The judge's summing-up identified the central issue in our view in an appropriate manner. It has not been criticised by either party to this appeal. We quote from the summing-up:
"Equally, as I understand Mr Rouch's submissions - though it is for you, not for me - he invites you to consider the possibility that the killer was Stephen Lewis. Again, that issue having been raised, it is for the prosecution to prove that he was not. If it remains a reasonable possibility that Stephen Lewis was the killer, you will find the defendant not guilty. Even if you are sure that Alison Lewis was not the killer and Stephen Lewis was not the killer, it does not follow that the defendant is guilty. You would have to be sure in addition that some unknown third party - a chance intruder, a prowler, another acquaintance - did not commit the murders. You might however find the nature of the killings (and particularly the subsequent activity in the house) such that you can safely reject that last possibility. If you do reject it, if you are sure that the killer was not a chance intruder, a prowler or some other acquaintance, then it follows, does it not, that you have seen the killer in the witness box. Alison Lewis, Stephen Lewis and the defendant have all given evidence. If you exclude the chance intruder or another acquaintance, one of those three is the killer."
That passage appeared in the judge's opening directions to the jury. He did put it differently when referring to the evidence. Legal submissions[25]The prosecution accept that if the trial was unfair the convictions were unsafe and should be quashed. In adopting this approach Mr Harrington has the support of the judgment of this court in R v Togher [2001] 1 Cr.App.R 33 at p457, the Lord Chief Justice presiding. It was endorsed in the House of Lords in R v Forbes [2001] 1 AC 473, paragraph 24. The decision of the European Court of Human Rights in Condron v United Kingdom [2001] 31 EHRR 1 was cited in Togher. Mr Harrington accepts that it would have been preferable if Mr Hutchison had not acted for the appellant. His submission is that whatever conflict of interest may have been present the trial was not unfair because it has not been established that as a result of conflict anything was not done which ought to have been done or anything was done which ought not have been done. The case was prepared and presented, it is submitted, with all proper diligence and the jury had every assistance in defence counsel's final speech and the judge's summing-up.[26]Subject to the dispute about disclosure, no criticism is made of the conduct of the prosecution. We have heard nothing to indicate anything less than a fair and appropriate conduct of the case by prosecuting counsel. Mr Hutchison's position and conduct[27]It is clear that Mr Hutchison had, for a substantial period before the appellant's arrest, represented Stephen Lewis in the conscientious way one would have expected of him. He took instructions from him and was present during many interviews by the police and on other occasions, including house visits, offering advice and support. He can have been expected to know a great deal about their case, including for example something of what had led Stephen Lewis to change between interviews his response to Louise Pugh's evidence from a denial of the threat to Amanda Power to a claim that words were used but were used jokingly. He was closely involved with the Lewises and knew, first, that there had been substantial material potentially incriminating them and, secondly, that if someone else was charged, a substantial part of the defence case was likely to be, as in fact stated in the defence statement of November 2001, that Stephen Lewis, and his wife Alison, were involved.[28]With that knowledge alone, Mr Hutchison should not have agreed to undertake the defence of the appellant. Quite apart from anything else, it should have been obvious to him that in the event of a conviction of the appellant what has occurred was liable to occur, that the appellant would attribute his conviction to the reluctance of Mr Hutchison and anyone he instructed to pursue material incriminating Mr Hutchison's former clients, the Lewises.[29]The situation is aggravated by other factors. First, Mr Hutchison took the necessary step of seeing whether Stephen and Ian Stuart Lewis had any objection to his acting for the appellant. His attendance note reads:
"Both men had confirmed to me that they had no objection to me representing David Morris in the case provided it was a situation that David Morris did not suggest that Stephen Lewis had committed the murders."
That proviso tied the hands of Mr Hutchison to a considerable degree. In the event, the defence statement asserted that Stephen Lewis was possibly an accessory after the fact and that the murders were probably carried out by Alison Lewis. Whether that, taken literally, is contrary to an undertaking not to suggest that Stephen Lewis had actually committed the murders may possibly be arguable, but we find it impossible to conclude other than that proviso would have coloured Mr Hutchison's entire approach to the case and, because of the close professional relationship properly present between members of the defence team, the other members of that team. Stephen Lewis was of course the husband of the woman claimed in the defence statement 'probably' to be the killer. He 'possibly' acted in concert with her after the event.[30]Asked about the proviso by Mr Maloney, on behalf of the appellant, when giving evidence to this court, Mr Hutchison stated:
"I was bound by a pre-condition that I would not say Stephen Lewis had committed the murders and as I keep telling you if I have breached that condition then that is a matter for Stephen Lewis because I did not feel that that put me in a conflict of interest and I disclosed everything to David Morris."
It was indeed a theme of Mr Hutchison's evidence that his problem, if there was one, was in relation to confidential information supplied to him by Stephen Lewis. In maintaining that stance, which he conveyed to Mr Rouch, who accepted it, he did not appear to have understood that the other aspect of conflict of interest, that his duty to the appellant may not be sufficiently performed, was a matter of real concern.[31]The extent of the alleged waiver given by Stephen and Ian Stuart Lewis has been disputed. It is not necessary for present purposes to resolve that dispute but solicitors later acting for Stephen Lewis and Ian Stuart Lewis wrote to Mr Hutchison on 19th March 2002 stating that both clients "have a great respect for the time you spent with them and their families offering advice and support between November 1999 and March 2001," and also stating:
"They remain concerned that you may use information obtained from them in the defence of Morris. We also understand that the defence statement contains the words 'Stephen Lewis possibly assisted Alison Lewis by trying to destroy the scene of the murders'. This information has been released to us by the Detective Chief Inspector Coutts. We would repeat our concerns to you expressed in our telephone conversation on 15th February, that we consider you to be in a most difficult position from a professional and ethical point of view. We appreciate that you have considered these matters, but our clients remain concerned as the trial approaches."
Thus the letter indicates the concern of the Lewises as well as the close relationship which had existed between Mr Hutchison and them as solicitor and clients for 16 months. Mr Hutchison suggested in evidence that the police had put the new solicitors up to making those representations. No evidence was produced to support that dramatic suggestion. The police did not want him to appear for the appellant, he said. When asked whether he had been known to be a scourge to the police and CPS, he agreed and said it was probably an understatement.[32]Mr Hutchison replied to the solicitors on 21st March 2002:
"Your clients have my assurance that I have kept completely confidential any instructions provided to me by them. I have not made any disclosures of confidential information to my client David George Morris. I shall not do so in the future."
Mr Hutchison regarded himself as uniquely well-placed to represent the appellant, but the letter demonstrates the untenable position in which he had placed himself. He was representing a client who in his defence intended to, and had to attempt to, discredit most seriously former clients of the solicitor, clients to whom he had given that assurance. The letter also referred to contact with the Professional Ethics Committee of the Law Society, a subject to which we shall return.[33]Moreover, Mr Hutchison continued to act in certain respects for the Lewises after he had accepted instructions from the appellant. He acted for them in making complaints against the police force. In his letter dated 18th April 2001, that is after the appellant's arrest, it is stated:
"As you are aware the above-mentioned officers, who are my clients, were arrested in relation to the Clydach murder enquiry on 4th July 2000." ... "
It is becoming perfectly evident that your force is showing a distinct lack of interest in any complaints against other officers in the force. These are serious complaints made against police officers and from any perspective, whether my clients' or the general public's, should be vigorously investigated by your force..."[34]A further complaint was made, and it was made both on behalf of the appellant and on behalf of the Lewis brothers, about the wrongful monitoring of conversations between Mr Hutchison and the appellant, and on other occasions Mr Hutchison and the Lewises at a police station. A complaint was made in relation to an alleged conversation between Mr Hutchison and the appellant on 20th March 2001. It was combined, to the knowledge of leading counsel, with a similar complaint by the Lewises referring to other occasions. Justification for putting forward the Lewis's complaint at the same time as the appellant's was that it would assist with the appellant's complaint and might lead to the exclusion of the disputed conversation from the evidence at the trial. In isolation that point may have force and we accept the importance of seeking to exclude evidence of it from the trial. But the action taken disregards the underlying undesirability of continuing to act for the Lewises while defending the appellant. In the event, the prosecution did not seek at the trial to adduce evidence of the alleged conversation of 20th March.[35]An indication of the extent of the Lewis's complaints emerges from an application by the prosecution on 11th April 2002 in relation to the disclosure of material in the appellant's case:
"On 29th August 2001, David Hutchison, solicitor, on behalf of Ian Stuart Lewis and William Stephen Lewis, made formal complaints resulting in the service of Regulation 9 notices on 18 police officers of all ranks from Constable to Detective Superintendent. A complaint was also made against the Chief Constable of South Wales. The complaints included allegations of perjury, attempting to pervert the course of justice, wrongful arrest, false imprisonment, failure to properly investigate a complaint, inappropriate disclosure of confidential information and inappropriate disclosure of sensitive information."
Mr Rouch said that he did not remember knowing of the complaints other than the one about monitoring. Mr Hutchison did not accept that by pursuing the other complaints he might well be working against the appellant's interests because, if established, they might weaken evidence of the Lewis's involvement.[36]Regrettably, Mr Hutchison's first statement to the court, upon alleged waiver of privilege, was not accurate when he stated:
"As I explained above I have ceased to act for both Lewis brothers prior to the arrest of David Morris. I have not acted for either of the Lewis brothers since David Morris was arrested."
The true position emerged only in stages. Mr Hutchison also acted for Stephen Lewis in a separate and unrelated theft allegation which arose after the appellant was arrested and on an allegation of a threat to kill. In neither case were proceedings commenced against Stephen Lewis. Counsel were not made aware of that representation. The hearing of 13th November 2001[37]That Mr Hutchison was aware of the complications resulting from the fact that proceedings were not taken against the Lewises but were subsequently taken against the appellant emerges from an application made to the trial judge on behalf of the appellant on 13th November 2001. Mr Hutchison, as solicitor advocate, appeared with Mr Francis Jones at a hearing in Liverpool. Concern was expressed to Butterfield J by Mr Jones that counsel instructed by the CPS in the prosecution of the appellant had previously been instructed to represent Alison Lewis after she had been interviewed by the police. In a detailed ruling the judge stated that the court had no power to direct the CPS not to instruct a particular member of the Bar. He went on to describe "a number of areas in which potential difficulties may arise" in relation to the position of Alison Lewis. Before directing that a transcript of the hearing be sent to the Chief Crown Prosecutor of South Wales, the judge added:
"All these potential problems are patently obvious on the papers before me. Any one of them might create a situation of serious embarrassment to the Crown, such that the integrity of the prosecution might be called into question by the defence. That, in turn, might lead to the trial itself being brought to a premature end without result, and in consequence, the needless expenditure of much public money. If that were to occur the court would obviously have to consider the making of a wasted costs order against the Crown Prosecution Service and against prosecuting counsel."
The potential problems were equally obvious in the conduct of the defence. The hearing on 10th April 2002[38]The question has also arisen whether Mr Rouch on instructions from Mr Hutchison had, prior to March 2001, advised Stephen Lewis. Shortly before the trial on 10th April 2002, Mr Harrington, who had replaced counsel previously instructed, requested a hearing in chambers to raise what he described as "a matter of some delicacy". He had previously told Mr Rouch of his intention and the reason for it. The court adjourned into chambers with Mr Rouch and Mr Francis Jones present. Mr Harrington told the judge that what he proposed to say fell into the "ought to know" category. He referred to the fact that he proposed to call Stephen Lewis for the prosecution and that when under arrest on suspicion of involvement in the murders Stephen Lewis was represented by Mr Hutchison. Mr Harrington continued:
"In the course of the trial we anticipate the possibility that Stephen Lewis may be questioned about why it was that he declined the particular form of identification procedure. I am not saying that it will happen but, with the reasonably alert mind, one would anticipate the possibility of it. Mr Lewis through his solicitor has indicated to the police that the reason why he did not attend that procedure was that he was advised not to do so by Mr Hutchison, who said he had consulted leading counsel Mr Rouch. My Lord, your Lordship ought to know that. That is all I say."
The identification procedure was that involving Nicola Williams and the man she had seen at 2.30 am on 27th June, an important piece of evidence.[39]The judge thanked Mr Harrington and turned to another subject. Mr Rouch said nothing. Giving evidence to this court Mr Rouch said:
"It really was dealt with in quite a dismissive way by the trial judge. Myself and Mr Jones commented on that when we left court."
Mr Rouch said that he spoke both to the appellant and Mr Hutchison about it. Neither he nor Mr Hutchison had any recollection of such advice having been given by Mr Rouch. The judge was not informed of that and the matter was not raised again.[40]Mr Harrington was correct to raise the matter with the judge and to raise it in the way he did. We now know that the information available to Mr Harrington came from Stephen Lewis and had very properly been passed on to prosecuting counsel by police officers. We are satisfied that Stephen Lewis, rightly or wrongly, was under the impression that Mr Rouch had been consulted on his behalf.[41]We are not prepared to hold that either Mr Hutchison or Mr Rouch could on 10th April 2002, or later, remember the advice given by Mr Rouch, if it was given. When giving evidence, Mr Rouch fairly made the point that, as a regular client, Mr Hutchison would sometimes ring him for guidance in cases in which he had not been instructed and that no note would be kept. We are however surprised that in a context in which complications were plainly foreseeable, as had been revealed at the hearing on 13th November 2001, the judge was not told the position in terms by counsel. That failure could not and did not, in itself, however, render the trial unfair.[42]Difficulty could well have materialised when Mr Rouch cross-examined Stephen Lewis about the identification parade. In the event, he asked:
"Q. But subject to your release you were then asked whether or not you would be prepared to attend an identity parade? A. Yes, I was. About three weeks later. Q. About three weeks later. And, to be fair to you, you were co-operative and said, yes, you would attend? A. I declined initially. Q. But then you said, yes, you would attend? A. Yes."
Mr Hutchison's and Mr Rouch's concerns[43]That both Mr Hutchison and Mr Rouch on occasions recognised the difficulty of the defence team's position emerges from attendance notes conscientiously kept by Mr Hutchison. There was, to adopt the language of Lord Millett in a different context, an "inescapable conflict of interest ... inherent in the situation" (Bolkiah v KPMG [1999] 2 AC 222 at 235A).[44]The point was raised in a consultation on 15th June 2001:
"There was then a discussion concerning my [Mr Hutchison's] position in the case and the potential for a conflict of interest. It was agreed at the outset that on the face of it there is no conflict of interest between David George Morris and Stephen and Stuart Lewis. This is upon the basis that I am not privy to any information concerning David George Morris from Stephen and Stuart Lewis' case which I would not otherwise be privy to had I not acted for Stephen and Stuart Lewis. However, initially, Mr Rouch expressed himself somewhat concerned when he realised that this firm was acting for the Lewis brothers in their civil case against the police. I told him that Rosemary Cookson [another member of the firm] was acting for him in that regard. He was concerned by the fact that there may be a potential for conflict in as much as the Lewises may think that we are not pursuing their case as hard as we may otherwise do and alternatively Morris may be left with the impression that we are not pursuing his case as hard as we might otherwise do to favour the Lewises."
[45]Following a consultation in Chambers on 22nd February 2002, it was recorded:
"Mr Rouch suggested that in order to protect ourselves completely it came to a position where instructions were taken from David Morris regarding the role played by Stephen and Stuart Lewis in the case it would be best if a Chinese wall was erected and Katherine Stewart dealt with these matters. Mr Rouch was particularly concerned that if Mr David Morris was convicted and transferred his instructions elsewhere there may be a suggestion that because of my [Mr Hutchison's] previous involvement with Stephen and Stuart Lewis we had not been as robust as we might otherwise have been in relation to their position in the case."
Ms Stewart was a conveyancer at Goldstones.[46]On 1st December 2001, it had been Mr Hutchison who had expressed concern:
"Mr Rouch confirmed to me that he took the view that at this moment in time there was no conflict of interest and there was no reason why I couldn't continue to act in the case. I did raise the issue that if Stephen Lewis was called as a prosecution witness my position would be somewhat different. Mr Rouch's view was that the position wouldn't change in this sense. He told me that it would be his intention to question Stephen Lewis and address the jury upon the basis not that he was certainly in Gellionen Road but rather the prosecution evidence was that he was in Gellionen Road and if that was correct what was he doing in Gellionen Road."
The reference is of course to Nicola Williams' observations in Gellionen Road in the early hours of 27th June 1999. We find the distinction difficult to understand, save that it might have lead to the material having a different impact upon the jury. The relevant evidence was that of Nicola Williams as obtained on questioning by Mr Rouch. It was the same evidence whether it was true or was said by a party to the proceedings to be true. In this context the distinction could not justify representation which would not otherwise be justified. Consequences of the conflict of interest[47]We go on to consider the impact, if any, of the conflict of interest upon the fairness of the trial and safety of the verdict. The many attendance notes reveal that a considerable amount of work was done in preparation for the trial. Potential expert witnesses were instructed and many witness statements taken. The appellant was kept informed of progress and the conduct of the trial was discussed with him. At the trial Mr Hutchison said that during discussions about how the case was to be conducted, the chairman at the end of the day was leading counsel:
"What leading counsel decided would be done. But on the other hand Mr Rouch is a democrat and he will always listen."
Considerable efforts were made to obtain the disclosure of documents. The wording of the defence statement allowed secondary disclosure to be sought and it was pursued diligently.[48]When giving evidence Mr Hutchison stated:
"Look, let me make this clear. I had a certain input into the tactics into the case but my primary job in this case is case preparation. How the case is presented to the jury is a matter for counsel."
Mr Rouch stated that once the case had started Mr Hutchison had very little part in its conduct. Counsel had never wanted an "either/or" situation to develop at the trial, that is whether it was the appellant or the Lewises who were responsible. Mr Rouch said that no constraints were placed by Mr Hutchison on how the case should be prepared and presented. He was not influenced in his presentation by the fact that Mr Hutchison had previously represented Stephen Lewis and Ian Stuart Lewis. (We add that we do not accept Mr Rouch's suggestion that the judge fell into a trap when he summed up in effect on the either/or basis already cited.)[49]Mr Rouch said that he could not remember the date on which the strategic view as to how the case should be conducted was formed. He did not think Mr Hutchison had shown him a letter of 25th June 2001 to the Law Society.[50]In paragraph 5 of that letter it was stated:
"David George Morris was eventually charged with the four murders and I continued to act for him. I have continued to monitor the situation and to discuss with David George Morris frequently my involvement with Stephen and Stuart Lewis. It has become apparent that as part of David George Morris's defence the evidence against Stuart and Stephen Lewis will have to be presented to the jury. However, it will not be said that either committed an offence merely the jury's attention drawn to the evidence and they asked to draw their own conclusions. The evidence which will be presented to the jury against the Lewises forms part of the disclosure given to me by the Crown Prosecution Service in the case of David George Morris. In other words, I am not privy to any information involving the Lewises which any other solicitor would not be made privy to as a question of disclosure in the case. I am of course conscious that an issue might arise where I would have been provided with instructions by the Lewises which would benefit David George Morris, but that information is not provided to me by the prosecution. Should that situation arise then I will reconsider the position in relation to a conflict of interest. I do not however, anticipate that as a problem given that Stephen Lewis was subject of 34 detailed interviews by the police and Stuart Lewis 22 interviews. There is nothing that I would anticipate at this moment in time which would cause me to be put into that position."
Two points arise from that paragraph. The first is the artificiality, as we see it, of the position taken by Mr Hutchison in the second part of the paragraph. As a trusted adviser during 16 months of intensive investigation by the police it is inconceivable that Mr Hutchison would not have come into possession of information about the Lewises and their conduct beyond that which had been provided by the prosecution. How much of that information was likely to be of benefit to the appellant in running his defence may be arguable but an intimate knowledge received firsthand from alternative candidates for prosecution for participation in the murders, must be relevant to the appellant's case.[51]Indeed Mr Harrington put to Mr Rouch that it was a singular advantage to the defence to know how Stephen Lewis had reacted to strenuous interviews. The suggestion is a sound one but it demonstrates the problem. For example, Stephen Lewis had altered his position overnight and between interviews from denying Louise Pugh's evidence about the threat to admitting and explaining it. He changed his mind. If Mr Hutchison was not disclosing to defence counsel what he knew of Stephen Lewis' reasoning and reactions to questioning, and how best to challenge him, he was doing less than he could for the appellant. If he did disclose, he was likely to be breaching his duty to Lewis.[52]Mr Rouch's reaction was that he did not think Mr Hutchison had any confidential information from the Lewises and that if he did it was not an advantage to the defence of the appellant. That may have been so, but only upon a defence strategy which involved a less than robust approach to Stephen Lewis as a witness. It is consistent with the approach to the Lewises which Mr Rouch and Mr Hutchison have persistently said was adopted. Mr Mansfield's description of the cross-examination as "studiously weak" is not unfair.[53]However, the other point in the letter of 25th June (the letter from Mr Hutchison to the Law Society) is also material for present purposes. The distinction is drawn, as it was drawn by Mr Rouch on 1st December 2001 and mentioned above, between putting it to the Lewises that they had committed an offence and merely drawing the jury's attention to the evidence and asking them to draw their own conclusions. In the context of the admitted proviso to the alleged waiver of privilege by the Lewises, the distinction does not remove a conflict of interest which otherwise exists. If the one course of action involved a breach of duty, then so did the other.[54]What is, in our view, established, however, is that at least from June 2001 the distinction was a real one in the minds of the defence team. The belief that the one course was permissible, but the other was not, pervaded defence thinking and influenced the way in which the case was presented at the trial. A feature of the defence case was to be to "point the finger elsewhere" but that counsel would not "say specifically that anybody had done anything" as stated by Mr Hutchison in evidence. Mr Hutchison added:
"at the point when I was told that that was how the case was to be presented I discussed with Mr Rouch my professional position. It did raise a concern with me."
The defence strategy at trial[55]In considering the evidence of Mr Hutchison and Mr Rouch we limit our comments to evidence relevant to the present issue and that is whether the convictions are safe. This is not a disciplinary hearing into Mr Hutchison's conduct, nor do we comment upon the reply of the Law Society's Ethics Adviser to Mr Hutchison's letter, save to say that the adviser was not told of the proviso to the Lewis's alleged waiver.[56]The case was indeed presented in the way agreed by the legal team, as Mr Rouch confirmed in evidence. Mr Rouch did not suggest that the strategy was determined in an attempt to keep out the appellant's convictions. By putting parts of his cross-examination of witnesses to Mr Rouch, and also parts of his closing speech to the jury, Mr Mansfield QC, for the appellant, has demonstrated that the agreed strategy was put into effect.[57]When cross-examined by Mr Harrington, Mr Rouch described the strategy adopted:
"Q. You have been cross-examined specifically about this point, that you may not have gone so far actually as to suggest that Alison Lewis or Stephen Lewis were involved in either the murders or the fire setting of Kelvin Road? A. Yes. Q. Was that a conscious and deliberate decision on your part? A. Yes, it was. Q. That was a strategic decision you took? A. Yes, I, myself, and Mr Francis Jones, in consultation with David Morris and the others, decided the way to approach the evidence and to approach the case. Q. In making that decision, were you in any way influenced by the fact that Stephen Lewis had previously been represented by David Hutchison? A. No. Q. So it is a stand alone decision? A. Yes. Well, stand alone. It was also the same decision we made concerning Alison Lewis."
Reliance is of course placed by the prosecution on the last two answers.[58]Attention was drawn to the material possibly implicating Alison Lewis and, said Mr Rouch, the "implication was that Alison Lewis could have been involved in the killings." What the police had put to her at interview was put to her in cross-examination when she gave evidence. When Mr Rouch indicated that he had no further questions the following exchange occurred:
"MR JUSTICE BUTTERFIELD: Mr Rouch, you have cross-examined the witness at some length about what the police put to her. Are you putting those allegations to this witness or not? MR ROUCH: My Lord, we cannot. MR JUSTICE BUTTERFIELD: You are not. Thank you. Yes, Mr Harrington? MR HARRINGTON: Precisely what I was going to ask, my Lord."
The same approach was adopted towards Stephen Lewis; no direct attack but a suggestion that the 'obvious inference' was that he was involved.[59]We have referred to Mr Rouch's evidence to this court. He accepted that, notwithstanding the material available, it was never suggested to Stephen Lewis that he was lying about anything. Ian Stuart Lewis was not called at the trial. No comment was made about the failure to call someone named in the defence statement to give evidence and nothing done to adduce material demonstrating the stark contrast between his account at interview of his movements after 4 am on 27th June and those of many other police officers as revealed in police reports available to Mr Hutchison. Ian Stuart Lewis's possible involvement was treated lightly in counsel's closing speech and, not surprisingly in those circumstances, in the judge's summing-up. The judge added, again not surprisingly in view of the material available in relation to Ian Stuart Lewis, and the judge's wish for balance:
"The suggestion must be, I think, that Inspector Lewis was, in fact, in some way involved in the killings or of the fires or knew something about it. That is the suggestion as I understand it to be."
That is the judge's summing-up to the jury.[60]In relation to that, Mr Rouch was asked in this court:
"In fact that was not the suggestion you were making, was it?"
He replied: "No".[61]Another illustration of the strategy arose when Mr Rouch said that the police report on the Lewis brothers' complaint against other officers had not been brought to their attention. The inquiry was conducted and report prepared by Mr Barry Thomas Taylor, then an Assistant Chief Constable in the Dyfed Powys Police Force. Mr Rouch added that even if it had been, he doubted "very much indeed" whether he would have conducted the case differently in relation to Ian Stuart Lewis. Consequences of adopting strategy[62]We refer to other areas which might have been or might be explored further if the defence strategy were different. We are not making judgment on the strength of the points, or suggesting that they all would or should have been developed. Indeed, having regard to possible future events it would be inappropriate to do so. We refer to them to indicate further the opportunity lost to the appellant by the strategy adopted: a) Exploring with Stephen Lewis his initial lack of frankness about his knowledge of 9 Kelvin Road, the reasons for it and pursuing the consequences of that evidence. Evidence emerged by way of fingerprint evidence, that he had been in several parts of the premises, including the shed where the murder weapon had been kept. There was evidence that he had lit a match at the premises. b) Exploring further Stephen Lewis's claim that he did not know of his wife's lesbian relationship until after the murders. He claimed that he received information from other police officers, including an officer called by the prosecution at the trial. They have denied giving it to him. c) Exploring further Stephen Lewis's claim in evidence at the trial that during police interviews he was a "broken man" who "would have told them where Lord Lucan was," in the light of material demonstrating his attitude following his release. d) Exploring in advance or with DSI Martin Lloyd- Evans, who was called by the prosecution but not questioned, his enquiries into the conduct of Ian Stuart Lewis. e) Exploring other matters arising from police reports including a very long report by Superintendent Alec Davies into the conduct of Ian Stuart Lewis. Counsel were not supplied with copies of the Taylor report, to which we have referred. f) Confronting Stephen Lewis directly about his lying in interviews and confronting him and his wife more directly throughout.[63]Mr Rouch has been firm and consistent in his recollection that the defence strategy was that no direct attack would be made upon the Lewis brothers. It must be added that, had the strategy been different, it does not follow that all the material to which Mr Mansfield has referred would have been or should have been introduced by the defence. Defence counsel, relying on his skill and experience, would legitimately have been selective in the material used to support the attack. This is not a case, however, where the minutiae of the questioning is the issue or the competence with which the strategy was carried out. It is very unlikely that leave to appeal would have been granted if it had been. The attack has become focused on the strategy adopted and the reasons why it was adopted.[64]In preparing for the appeal the appellant's advisers understandably concentrated upon the failure of the prosecution to disclose material, in particular in relation to the Lewises, which might have been relevant and of use to the trial. Equally understandably that complaint has fallen into the background as other issues have emerged and it has become clear that the defence strategy at the trial was not to make a direct attack on the Lewis brothers.[65]We do not doubt that the defence of the appellant was vigorously pursued in terms of taking instructions from the appellant, keeping him informed, strenuously pursuing disclosure of documents, carefully analysing the evidence and conscientiously preparing and presenting a lengthy address to the jury. The fatal flaw was in Mr Hutchison accepting instructions from the appellant in the circumstances he did. The former relationship with Stephen and Ian Stuart Lewis and the consequences of his continuing duties to them pervaded the entire conduct of the defence. We cannot of course be certain that the defence would otherwise have been conducted in a different way with a more vigorous attack upon the Lewises and their alleged involvement, but in the circumstances the strong probability is that it would have been. Conclusions[66]What effect a different strategy would have had is impossible to assess. Mr Harrington has drawn attention to the repulsion a jury may feel if a defendant blames someone else. It is often more effective to sow the seeds of suspicion without alleging another's guilt, he submits. That may be so, but this was a case in which, as the judge put it, it was likely that the jury had seen the murderer in court. There was substantial material which could have been but was not put to the Lewises and put in evidence, and serious and specific allegations which could have been put to them. That being so, we are not satisfied about the fairness of a trial in which that action was not taken and not taken, we reluctantly conclude, because the entire defence strategy and effort was pervaded by the conflict of interest which Mr Hutchison had allowed to arise. We have to conclude that decisions about the strategy to be employed were influenced by Mr Hutchison's conflict of interest, though we accept that counsel did not consciously reach the decision on that basis.[67]It may be that Mr Hutchison genuinely continued to believe that he could properly represent the appellant but, if so, it involved, in our view, a good deal of wishful thinking on his part. The appellant was deprived of the opportunity to present a defence which would be likely to have been given serious consideration by the jury. Strong though the case was against the appellant, the loss of that opportunity meant that he did not have a fair trial. The fact that the appellant was eager throughout to be represented by Mr Hutchison does not permit the court to reach a different conclusion upon a consideration of all the circumstances.[68]From the lack of a fair trial it follows in this case that the convictions are unsafe. The appeals against conviction are allowed and the convictions quashed.[69]MR HARRINGTON: My Lord, the prosecution have two applications and I think neither will come as a surprise to the court. The first is that there should be a retrial and we invite your Lordships so to order under section 7 of the Criminal Justice Act 1968. My Lord, whilst of course it is a matter for the court to make a determination as to whether there should be a retrial, my learned friend Mr Maloney has helpfully indicated that he would not oppose an application were one to be made.[70]MR MALONEY: Respectfully, my Lord, that is the case.

LORD JUSTICE PILL: So be it. We will confer in a moment, but we will hear your other application first.

[72]MR HARRINGTON: The other application is for a wasted costs order against Mr Hutchison. The public has been put to huge expense as the result of what your Lordship has described as the "fatal flaw" in his continuing to act as he did and we submit that he was alert to that point, if from no other time, from 13th November at the Liverpool hearing to which your Lordship has made extensive reference today. My Lord he is though entitled to be represented on that issue. I do not understand him to be present today and I apprehend that your Lordships would take the view that he should be both present and represented for such a costs application to be fully argued.

LORD JUSTICE PILL: Yes. What costs are you applying for?

[74]MR HARRINGTON: My Lord, the prosecution costs at trial and the costs of this appeal.

LORD JUSTICE PILL: Yes.

[76]MR HARRINGTON: Those are the two applications.

LORD JUSTICE PILL: Without giving any sort of indication before we confer, what is the position of the Legal Services Commission?

[78]MR HARRINGTON: My Lord, we have not taken instructions on that.

LORD JUSTICE PILL: Should they be notified of your application?

[80]MR HARRINGTON: I apprehend they will because of course this predates the existence of the Legal Services Commission, as I understand it, and I think they should be alerted.

LORD JUSTICE PILL: Whoever the appropriate authority is.

[82]MR HARRINGTON: They are the successors anyway.

LORD JUSTICE PILL: Who paid the defence costs.

[84]MR HARRINGTON: One apprehends that they should be made a party to proceedings if they wish to be, and I anticipate they would wish to be.

LORD JUSTICE PILL: Yes. Mr Maloney, do you have any representations on that?

[86]MR MALONEY: None, my Lord, thank you.

MR JUSTICE CURTIS: Do either of you want to say anything about venue?

[88]MR HARRINGTON: My Lord, what we were going to respectfully suggest is that the matter should be relisted once the prosecution have preferred a new indictment before the Senior Presiding Judge because questions such as venue are bound to arise. We are happy to deal with the matter today, but I do not know whether the court has in mind that the court should deal with it or whether it should be --

LORD JUSTICE PILL: Yes, we would expect to deal with the first of your applications.

[90]MR HARRINGTON: My Lord, we make an application for a retrial and if the court wishes to hear representations on the question of venue then we are in a position to make those representations today.

LORD JUSTICE PILL: Yes, we will hear them now.

[92]MR HARRINGTON: We would submit that there is no difficulty in the case being tried in the South Wales area, although possibly not in Swansea. We say that for this reason. If there is to be a retrial then matters relating to the representation at trial, we submit, will be bound to be ventilated because issues will arise as to who he was represented by at that time when what was said and we envisage that this is one of the relatively rare cases where the jury should be informed at the outset that there has been a previous trial, without necessarily they being told what the outcome was and being told why there is a retrial and if that is ventilated it will come as no greater surprise to the people of South Wales than people elsewhere. If your Lordship is against us on that, we would respectfully invite the court to consider three alternatives: one is that the case should be tried on circuit at the other end of the circuit, either at Chester or Mold; a possible alternative which we do not abandon is Newport, which is a very long way from Swansea, not just geographically but culturally as well; the second major alternative is that it should go to Bristol or --

LORD JUSTICE PILL: What about Cardiff?

[94]MR HARRINGTON: Cardiff would be our first choice, my Lord. I say "choice", I do not mean that as though we have a choice but our first submission would relate to Cardiff. Otherwise Bristol.

LORD JUSTICE PILL: That is your order of preference?

[96]MR HARRINGTON: Yes. Cardiff, elsewhere on circuit as a subtext of point number one; if not number one then to Bristol, and if not there then we submit the Central Criminal Court.

LORD JUSTICE PILL: Thank you. Mr Maloney?

[98]MR MALONEY: My Lord we had not anticipated addressing this issue before my Lords this morning. I spoke to Mr Mansfield about it and he rather took the same view as Mr Harrington.

LORD JUSTICE PILL: We are in the best position to judge prejudice, are we not? I do not see any merit in putting it off.

[100]MR MALONEY: No. My Lord the only disadvantage that I would encounter today is that there has clearly been an enormous amount of publicity in relation to this case, both before the trial proceedings and after the trial proceedings. Indeed the previous appeal proceedings in this city have received an enormous amount of publicity also and the publicity surrounding the appeal has been largely confined to this area my Lord and I would have wished --

LORD JUSTICE PILL: But has it been prejudicial coverage? This is not a case -- I will not give examples -- but where matters are ventilated on the appeal which if they are given wide publicity might prejudice a retrial? That has not been this appeal, provisionally as we see it.

[102]MR MALONEY: With respect, my Lord, I agree. What I would have hoped to have done, and I apologise for not marshalling this material before this morning, but there was considerable prejudicial material after the trial. Now that of course may have been brought back to memory of those who have seen that prejudicial material at a time which this appeal was heard. That is the danger, my Lord. Of course these appeal proceedings did not generate prejudicial material although of course they did in fact, some of the coverage did in fact show the all too memorable photograph of Mr Morris with his shirt off and tattoos displayed that people had complained about before. So of course I cannot say the appeal proceedings have been in any way prejudicial my Lord but it may have brought back to mind the prejudicial material that has been shown in the broadcast media since the trial.

LORD JUSTICE PILL: Yes. It may be that in the end we will leave it to a presiding judge of the circuit. Fortuitously the senior of the two presiding judges is a member of the court, but I think we ought to ventilate the points now so all three of us can consider them.

[104]MR MALONEY: My Lord, in those circumstances, without marshalling that material, then it is something we discussed before and our application would be that the case is not heard in South Wales, my Lord, and it should be heard in the Central Criminal Court.

LORD JUSTICE PILL: Yes. Anything in reply, Mr Harrington?

[106]MR HARRINGTON: My Lord, simply not to ignore Bristol because this is a case where two views were conducted at the original trial and we anticipate there would be other views and the convenience of being somewhere much closer so it could be done in a day rather than two days is a major factor, we would submit.

LORD JUSTICE PILL: Yes.

[108]MR HARRINGTON: Bristol has been accommodating to other cases from South Wales which for various reasons have had to be tried off circuit.

LORD JUSTICE PILL: Yes. We can make the formal parts of the order now. We will then retire to consider the venue question and your wasted costs application. Did you have anything to say about wasted costs, Mr Maloney?

[110]MR MALONEY: No, my Lord.

LORD JUSTICE PILL: We have allowed the appeal and quashed the convictions. We direct that a fresh indictment be preferred, that the appellant be rearraigned on the fresh indictment within two months (section 8(1) of the 1968 Act, as amended by section 43 of the Criminal Justice Act 1988). I take it there is no bail application, Mr Maloney?

[112]MR MALONEY: No, my Lord.

LORD JUSTICE PILL: Then the appellant will be held in custody. I expect there is an application for a representation order. What application do you make?

[114]MR MALONEY: For leading and junior counsel and solicitors.

LORD JUSTICE PILL: Yes, we grant that. A representation order for one leading counsel, plus one junior counsel and solicitors.

[116]Are there any other matters before we retire to consider those two points?[117]MR HARRINGTON: No, thank you, my Lord. (Short adjournment)

LORD JUSTICE PILL: Two points arise following the judgment and the directions given. The first is venue. Having heard submissions we see no reason why the case should go off circuit and the case will be heard on circuit. The Presiding Judge of the Circuit, who as we have indicated is a member of this court, will then determine the venue.

[119]MR MALONEY: Thank you, my Lord.

LORD JUSTICE PILL: There is an application on behalf of the prosecution for a wasted costs order. We are concerned today only with the procedure to be adopted. We would contemplate a hearing in London. First a directions hearing and before that clearly Mr Hutchison should be notified and supplied with a copy of the judgment, as should the appropriate legal aid authorities. Mr Harrington we have in mind that before the directions hearing you ought to have submitted both to the court and to Mr Hutchison a statement of case.

[121]MR HARRINGTON: Yes, my Lord.

LORD JUSTICE PILL: What do you propose in that regard?

[123]MR HARRINGTON: We would propose, I think, to highlight the number of occasions when the question of conflict was brought to the attention of Mr Hutchison. We would not do that in more than a short narrative form and then to identify the stages at which various costs were incurred, so that the aggregate figure is there, my Lord.

LORD JUSTICE PILL: This is pre-directions hearing. We would not propose to make any directions in relation to Mr Hutchison at all at this stage, but he will have the opportunity to appear or be represented at the directions hearing and he may seek directions too. So you agree the first stage is that you submit your case. What about the amounts involved? If an order was made -- and I am not giving an indication -- we would have to specify a sum?

[125]MR HARRINGTON: Yes. We would try to make a breakdown of what costs there were at various stages. Obviously the costs of the trial were far and away the greatest. Apart from that I think it would be of assistance to the court if the court were in a position to see what the various accumulations of costs were at the various times.

LORD JUSTICE PILL: Yes, and that will be supplied at an early stage. What time are you seeking to --

[127]MR HARRINGTON: We would need 28 days.

LORD JUSTICE PILL: It may be rather difficult for the court to reconvene and that is another point I will turn to in a moment. But you will make clear which parts of the costs, if any, which you are not claiming.

[129]MR HARRINGTON: Yes.

LORD JUSTICE PILL: We have in mind for example the attempts made to obtain the (inaudible) documents, well they are unlikely to be covered by your application.

[131]MR HARRINGTON: Of course, yes. We would only, I think, be applying for prosecution costs, but it may be that the Legal Services Commission as successors to the Legal Aid Board would wish to be represented and submit their own claim.

LORD JUSTICE PILL: Yes. Do we need to take any formal steps in relation to them or is the indication we have given to you sufficient?

[133]MR HARRINGTON: I think it is sufficient for the moment, my Lord. Perhaps we could have liberty to apply.

LORD JUSTICE PILL: Yes. If they intervene they too should submit a case in advance of the directions hearing. Twenty-eight days may be too short.

[135]MR HARRINGTON: Yes, thinking about it, I think it might, my Lord.

LORD JUSTICE PILL: We should want to have the directions hearing before the long vacation.

[137]MR HARRINGTON: Yes, my Lord.

LORD JUSTICE PILL: Forty-two days would permit that, would it not?

[139]MR HARRINGTON: Yes.

LORD JUSTICE PILL: Not with a lot to spare. If you can do it sooner so much the better, you will give the same indication to the Legal Aid Authority who will not know anything about the case so they will need time as well, but 42 days appears to us to be reasonable.

[141]MR HARRINGTON: Yes.

LORD JUSTICE PILL: We propose to have the hearing in Chambers and the question may arise if -- I see no reason why two members of the court should not deal with this, if to achieve an early hearing that is necessary because members of the court will have commitments elsewhere. Do you see any objection to a two-judge court?

[143]MR HARRINGTON: There is certainly no objection from the Crown, my Lord.

LORD JUSTICE PILL: It could be a two-judge court at the directions stage and we would hear any submissions then as to what constitution should hear the substantive hearing. You had a further point.

[145]MR HARRINGTON: Nothing to do with costs though, my Lord. It is the question of the reporting of this case. Because there is a retrial pending I do not know whether the court would have in mind to impose an embargo on the identification of the name of the defendant, but there are very important matters of principle which we submit perhaps ought to be in the public domain sooner rather than later, but perhaps with a degree of anonymity which makes it --

LORD JUSTICE PILL: No application to the contrary has been made, I think we would need persuading that in a case with the public interest properly involved that there should be any such restriction. You are acting as a friend of the court in saying this, but would you like to develop that?

[147]MR HARRINGTON: No, I would not, my Lord, frankly. I just thought I ought to alert the court.

LORD JUSTICE PILL: It is an "ought to know" point.

[149]MR HARRINGTON: Yes.

LORD JUSTICE PILL: Very well. One hopes, and I would confidently hope, that responsibility will be shown and that anyone reporting it will have in mind the fact that a retrial has been ordered.

[151]MR HARRINGTON: I was not thinking or urging it to the ordinary columns of the papers, my Lord, I was thinking of the law reports.

LORD JUSTICE PILL: We see no need. (42 days for Prosecution to provide particulars of their claim for a wasted costs application and for the Legal Servies Commission to consider their position)

Cited in 3 later judgments