O' Grady Plant and Haulage Ltd & Ors v London Borough of Tower Hamlets [2011] EWCA Crim 1339

[2011] EWCA Crim 1339Case No 200904784/201004410B5
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT SNARESBROOK
Her Honour Judge Beech
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/05/2011
Before
LORD JUSTICE PITCHFORDMR JUSTICE TREACYTHE RECORDER OF BIRMINGHAM (HH JUDGE WILLIAM DAVIS QC)
Between
O’Grady Plant and Haulage LimitedAppellantsPaul O’GradyAppellantSarah O’GradyAppellantLondon Borough of Tower HamletsRespondent
R Harwood (instructed by Noble Solicitors and the Registrar of Criminal Appeals) for Appellant s/ApplicantR Birch (instructed by London Borough of Tower Hamlets) for RespondentHearing Hearing date: 12 April 2011
Judgment
[1]Each member of the court has contributed to this judgment. The proceedings[2]On 7 August 2009, at Snaresbrook Crown after a trial before Her Honour Judge Beech, the first appellant, O’Grady Plant and Haulage Limited (“the company”), was found guilty by the jury of counts 1 and 3 in the indictment; the second appellant, Paul O’Grady, was found guilty of counts 2 and 4. The first and second appellants were charged with offences contrary to section 33(1) Environmental Protection Act 1990. In summary, it was alleged that they, between 29 March 2007 and 7 March 2008:(1) deposited controlled waste on land without a waste management licence authorising the deposit, contrary to section 33(1)(a) of the Act;(2) treated, kept or disposed of controlled waste on land without a waste management licence authorising the treatment, keeping or disposal, contrary to section 33(1)(b) of the Act. The company was charged with the section 33(1)(a) offence in count 1; Mr O’Grady was charged with the same offence in count 2. The company was charged with the section 33(1)(b) offence in count 3; Mr O’Grady was charged with the same offence in count 4. Mr O’Grady was the sole director of the company. The third appellant, his wife, was the company secretary. Mr and Mrs O’Grady were the effective owners of the company.[3]The first and second appellants appeal against their convictions with the leave of the single judge.[4]On 21 September 2009 Mr O’Grady was sentenced to a fine of £6,000 upon each of counts 2 and 4. No additional penalty was imposed on the company. On 10 November 2009 the sentence upon Mr O’Grady was varied under section 155 of the Criminal Courts (Sentencing) Act 2000 to a conditional discharge for 2 years upon each count.[5]On 16 April 2010 the trial judge made an order that Mr O’Grady pay prosecution costs in the sum of £27,665. His application for an extension of time within which to seek leave to appeal against the costs order has been referred to the full court by the Registrar.[6]On 21 August 2009 the Crown Court, in anticipation of confiscation proceedings, granted restraining orders against both Mr and Mrs O’Grady. The confiscation proceedings were ineffective and eventually discontinued. Mr O’Grady had the benefit of publicly funded legal representation throughout. Mrs O’Grady’s legal representation in the restraint proceedings was privately funded. On 16th April 2010 the London Borough of Tower Hamlets was ordered to pay to Mrs O’Grady the sum of £1,573.38, said to be twenty per cent of her costs in the restraint proceedings. Mrs O’Grady seeks leave to appeal the costs order. Appeals against conviction The legislative framework[7]Section 33(1) of the Environmental Protection Act1990 Act provided at the relevant time:
“33. Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste. (1) Subject to subsections (2) and (3) below and, in relation to Scotland, to section 54 below, a person shall not— (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licenceauthorising the deposit is in force and the deposit is in accordance with the licence; (b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of — (i) in or on any land, or (ii) by means of any mobile plant, except under and in accordance with a waste management licence; (c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.” (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licenceauthorising the deposit is in force and the deposit is in accordance with the licence; (b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of — (i) in or on any land, or (ii) by means of any mobile plant, except under and in accordance with a waste management licence; (c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.”
[8]By section 75(1) “waste” means any substance or object in categories listed in schedule 2B, which include virtually any substance surplus to requirements and, by section 75(4), “controlled waste” means household, industrial and commercial waste or any such waste. At trial nothing turned on the definition of waste.[9]By subsection (3) of section 33, section 33(1)(a) and (b) did not apply:
“in cases prescribed in regulations made by the Secretary of State and the regulations may make difference exceptions for different areas.”
[10]The Waste Management Licensing Regulations 1994 were made under the power given to the Secretary of State by section 33(3) and (4) of the Act. Regulation 17(1) provided:
“(1) Subject to the following provisions of this regulation and to any conditions or limitations in Schedule 3, section 33(1)(a) and (b) of the 1990 Act shall not apply in relation to the carrying on of any exempt activity set out in that Schedule.”
The application of regulation 17(1) is subject to regulation 17(4) which provides: “(4) Paragraph (1) above only applies in relation to an exempt activity involving the disposal or recovery of waste by an establishment or undertaking if the type and quantity of waste submitted to the activity, and the method of disposal or recovery, are consistent with the need to attain the objectives mentioned in paragraph 4(1)(a) of Part 1 of Schedule 4.” [italics added][11]By regulation 18(2) it is the duty of the “appropriate registration authority” to establish and maintain a register of establishments and undertakings carrying on exempt activities involving the recovery or disposal of waste. By regulation 18(1) it is an offence for such an establishment or undertaking to carry on an exempt activity without being registered with the appropriate registration authority. At the relevant times the appellant company was registered with the London Borough of Enfield who granted a permit under paragraph 24 of schedule 3, namely for: “(1) Crushing, grinding or other size reduction of waste bricks, tiles or concrete, under an authorisation granted under Part 1 of the 1990 Act, to the extent that it is or forms part of a process within paragraph (c) of Part B of section 3.4 (other mineral processes) of Schedule 1 to the 1991 Regulations [or under a permit under the 2000 Regulations to the extent that it is or forms part of an activity within paragraph (a) of Part B of Section 3.5 (other mineral activities) of Part 1 of Schedule 1 to the 2000 Regulations]. (2) Where any such crushing, grinding or other size reduction is carried out otherwise than at the place where the waste is produced, the exemption conferred by sub-paragraph 1 above only applies if those activities are carried out with a view to recovery or reuse of the waste. (3) The storage, at the place where the process is carried on, of any such waste which is intended to be so crushed, ground or otherwise reduced in size, if the total quantity of such waste so stored at that place at any one time does not exceed 20,000 tonnes.[12]The prosecution agreed at trial that the defendant company was entitled to a further exemption under paragraph 13 of schedule 3:
“(1) The manufacture from – (a) waste which arises from demolition or construction work or tunnelling or other excavations; or (b) waste which consists of ash, slag, clinker, rock, wood, bark, paper, straw or gypsum, of timber products, straw board, plasterboard, bricks, blocks, roadstone or aggregate. (2) The manufacture of soil or soil substitutes from any of the wastes listed in sub-paragraph (1) above if – (a) the manufacture is carried out at the place where either the waste is produced or the manufactured product is to be applied to land; and (b) the total amount manufactured at that place on any day does not exceed 500 tonnes. (3) The treatment of waste soil or rock which, when treated, is to be spread on land... (4) The storage of waste which is to be submitted to any of the activities mentioned in sub-paragraphs (1) to (3) above if – (a) the waste is stored at the place where the activity is to be carried on; and (b) the total quantity of waste stored at that place does not exceed – (i) in the case of manufacture of roadstone from road planings, 50,000 tonnes; and (ii) in any other case, 20,000 tonnes.”
The prosecution did not seek to argue at trial that the appellants were in breach of any of the conditions of the paragraph 13 or 24 exemptions. (a) waste which arises from demolition or construction work or tunnelling or other excavations; or (b) waste which consists of ash, slag, clinker, rock, wood, bark, paper, straw or gypsum, of timber products, straw board, plasterboard, bricks, blocks, roadstone or aggregate. (a) the manufacture is carried out at the place where either the waste is produced or the manufactured product is to be applied to land; and (b) the total amount manufactured at that place on any day does not exceed 500 tonnes. (a) the waste is stored at the place where the activity is to be carried on; and (b) the total quantity of waste stored at that place does not exceed – (i) in the case of manufacture of roadstone from road planings, 50,000 tonnes; and (ii) in any other case, 20,000 tonnes.”[13]Paragraph 4(1)(a) of schedule 4 (referred to in regulation 17(4) above) provided:
“(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste – (a) Ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without – (i) risk to water, air, soil, plants or animals; or (ii) causing nuisance through noise or odours; or (iii) adversely affecting the countryside or places of special interest.”
The evidence (a) Ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without – (i) risk to water, air, soil, plants or animals; or (ii) causing nuisance through noise or odours; or (iii) adversely affecting the countryside or places of special interest.”[14]For the moment we need refer to the evidence only in summary. The company was tenant of a site, formerly a furniture factory, at 616 Wick Lane, London E3. In 2005, when the company acquired the site, it was on condition that when it relinquished possession the few buildings which remained would be demolished and cleared. Mr O’Grady used the site as his haulage depot for heavy open trucks and fashioned offices from the remaining buildings. Also stored on the site was some heavy earth moving machinery and a concrete crushing machine. Neighbouring residents complained to the environmental protection department of Tower Hamlets about dust and smoke emanating from activities on the site. The residents began to monitor activity and take photographs of those activities. Mr Okey Ngoka, environmental health technical officer was the residents’ point of reference. The principal residential witnesses for the prosecution were Peter Downie and his partner, Zoe Camper, Wendy Miller and Sam Armstrong. They lived in a work/living block of flats at 417 Wick Lane, overlooking the site. Supporting evidence was given by Mr Ngoka who visited the residents from time to time to receive their complaints and to view the alleged nuisance for himself. The oral evidence was supported by an album of some 165 contemporaneous photographs. Much of the evidence at trial concerned the proper interpretation of the photographs. The photographs were taken by the residents throughout the period April to August and November 2007.[15]The residents gave evidence that Mr O’Grady was bringing building or other rubble and soil to the site from outside. Broken up concrete would be crushed in the concrete crushing machine; wood and other material was burned; the waste would be gathered up in heaps. They complained of noxious and acrid smoke, dust and noise. They were unable to open their windows in warm weather. If they did, their flats would become contaminated with dust.[16]Wendy Miller gave evidence that she was an asthma sufferer. She had not suffered particular problems until Mr O’Grady’s business moved on to the site. She inhaled dust. The piles of waste material became higher and higher. She complained to Mr Ngoka on 3 March 2008 that during an intense period of 7 days trucks loaded with reinforced, broken concrete had dropped their loads within the site. Sam Armstrong had taken photographs on 21 June 2007 showing a lorry, belonging to a firm called Bedrock, depositing its load of concrete at the site and leaving.[17]Mr Ngoka gave evidence of observations made by him in July 2006 (before the indictment period), 18 May 2007, and several days in April and May 2007. Mr Ngoka estimated that he spoke to Mr Downie on one or two occasions per month throughout the indictment period. He carried out an inquiry into the delivery by the Bedrock lorry and recovered the consignment note.[18]Keith Sandland, a building control surveyor, gave evidence that he had visited the site on various occasions between 2001 and 2007. In his estimation, which he accepted was not a calculation but a “guestimate”, there was significantly greater quantity of heaped spoil on the site in July 2008 than there had been before Mr O’Grady took occupation in 2005.[19]Mr O’Grady gave evidence that he used the concrete crusher (for which he had a permit) only occasionally. It was fitted with dust suppression equipment. He employed water jets on the site. He said the complaints were either untrue or grossly exaggerated. He denied that he tipped waste on the site. Any waste seen there was generated by demolition of buildings on the site itself. Sometimes lorries returning to the site to undergo MOT checks needed to drop their loads. That was why some photographs showed trucks in the tipping position. He asserted that the Bedrock delivery had nothing to do with him. Bedrock had not sought permission to tip the load. In his opinion there was a conspiracy between Mr Ngoka and the owner of Bedrock, Mr Gannon, to make the delivery in order that Mr Armstrong could take his photographs. In other words, Mr O’Grady was accusing Mr Ngoka of manufacturing the evidence against the appellants. One of Mr O’Grady’s drivers, Danny Reardon, gave evidence about a load of crushed concrete which he delivered to the site on 21 April 2007. It emanated, he said, from the site itself, was to be delivered to a customer, but was returned as surplus to requirements. Shafiq Malik was the property developer who had arranged Mr O’Grady’s tenancy. He gave limited evidence in support of the defendants. Mrs Sarah O’Grady gave evidence that the company did not accept waste. She described the dust suppressing equipment available on site and produced photographs the following day to support her evidence.[20]The judge commenced and completed her summing up on Friday 7 August 2009 and the jury returned unanimous guilty verdicts on the same day.

Ground 1 – Application of the regulation 17 exemption

[21]As we have said, the appellants’ principal case at trial was that no waste was brought to the site from outside; if that was so, no offence was committed under section 33(1)(a) of the Act. Secondly, the terms of Mr O’Grady’s concrete crusher exemption enabled him to process waste generated on the site itself; accordingly, he was, under regulation 17(1) exempt from the requirement for a waste management licence for the purposes of section 33(1)(a) and (b).[22]It was submitted by Mr Harwood, who also represented both appellants at their trial, that even if waste was brought to the site it was, on the prosecution case, for the purpose of processing waste for the production of aggregates. That was an exempt activity under the paragraph 13, schedule 3 exemption; it followed that both the section 33(1)(a) and the section 33(1)(b) activities were exempt from the requirement for a waste management licence.[23]The learned judge accepted that the exemption from holding a waste management licence applied unless the regulation 17(1)/schedule 3 exemptions were disapplied by regulation 17(4). The judge ruled to this effect at the close of the prosecution case. She directed the jury as follows as to counts 1 and 3:
“So what are the ingredients of count 1 about which you must be sure before you can convict the company? Firstly, you must be satisfied that the piles of material you can see in the photographs is controlled waste. You shouldn’t have too much difficulty with that because it has been agreed… Secondly, you must be satisfied that controlled waste was deposited on the site… Thirdly, if you are satisfied that waste was deposited on the site from outside within the indictment dates, rather than it having been created by demolition work on the site, you must then go on to consider whether the company knowingly…permitted the controlled waste to be deposited on the site… [Fourthly], you must go on to consider whether the type of waste deposited, the way in which it was deposited and in the volume or amount that was deposited were consistent with the need to retain the objectives of ensuring that human health was not endangered and without using processes or methods which could have harmed the environment and, in particular, that it posed a risk to air by the creation of dust and could have caused a nuisance through noise…”
The judge gave a similar direction as to the application of the exemption to the charge of depositing waste (count 2) against Mr O’Grady, and to the charges of keeping, disposing of or treating the same waste (counts 3 and 4) against the company and Mr Mr O’Grady.

Secondly, you must be satisfied that controlled waste was deposited on the site…

[24]Mr Harwood’s argument is that Her Honour Judge Beech did not appreciate that an offence would not be committed under section 33(1)(a) or (b) provided the terms of the schedule 3, paragraphs 13 and/or 24 exemptions were met, whether or not on any particular occasion the operation might be harmful to the environment or human health. Mr Harwood submitted to the judge and to this court that the test of harm to the environment or human health was confined to the offence created by section 33(1)(c) which applied whether or not the operator had a waste management licence. The prosecutor could have charged the defendants under that subsection but had chosen not to do so. Mr Harwood submitted that reg 17 (4) removed the exemption only if the process and methods as envisaged by the schedule 3 exemption failed to meet the objectives mentioned in paragraph 4 (1) (a) of schedule 4. So, if the process and method of treating waste (for example operations of an approved concrete crusher) were capable of being operated in accordance with the paragraph 4 (1) (a) exemption, the fact that on any particular occasion the process or method was being misused or inappropriately used so as to fail those objectives did not have the effect of removing the exemption. The prosecutor would be driven Mr Harwood submits, to prosecute under section 33 (1) (c). If Mr Harwood’s argument is right it would mean that the licensing authority should have applied the paragraph 4(1)(a) test to the operator and the equipment before registering the exemption. We see no such requirement in the regulations and none was drawn to our attention. Furthermore, it would require the authority to anticipate all the circumstances in which the operation would be carried on.[25]The judge ruled that the obligations created by schedule 3 and paragraph 4(1)(a) of schedule 4 were cumulative. Not only must the operator abide by the terms of the permit but the exemption granted was disapplied if “the type and quantity of waste submitted to the activity and the method of disposal or recovery” (paragraph 17(4)) were not consistent with the need to ensure “that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment...” (paragraph 4(1)(a), schedule 4).[26]This is a matter of construction. Section 33(3) of the Act disapplies section 33(1) in cases which the regulations may prescribe. Those cases were defined in regulation 17(1) of the Regulations. Subject to the further provisions of the regulation, the activities (subject to their conditions) listed in schedule 3 were exempt. However, by regulation 17(4) those exemptions would only apply to an activity “involving the disposal or recovery of waste...if the type and quantity of waste submitted to the activity, and the method of disposal or recovery are consistent with the need to attain the objective” of “ensuring that waste is recovered or disposed of without endangering human health” etc. If Mr Harwood’s construction is to be preferred it is necessary to imply into regulation 17(1) and (4) words which are not present to the effect that an exemption under schedule 3 is deemed to comply with the objectives identified in paragraph 4 (1) (a) of schedule 4. In our view, no such implication is necessary or appropriate. The plain words of regulation 17(1) and (4) require that in order to attract exemption from the requirement of section 33(1)(a) and (b) of the Act, (not without a waste management licence to deposit or treat, keep or dispose of controlled waste), the operator must: (1) obtain an exemption under one of the paragraphs of schedule 3;(2) comply with the conditions attached to the schedule 3 exemption; and(3) ensure that the activity when it takes place is consistent with the objective of the human health and the health of the environment. It was, in our judgment, a matter for the jury to decide whether in the circumstances of the activity as they found them to be the appellants met these requirements.[27]In argument, we posed to Mr Harwood the question how, upon his construction of the legislation, the public and the environment would be protected from an activity which, while permitted, was carried on in an inappropriate location causing damage to health or the environment. Mr Harwood repeated his argument that section 33(1)(c) would be the appropriate charge. However, it seems to this court that there is at least a respectable argument that the prohibition upon treating, keeping or disposing of controlled waste “in a manner likely to cause pollution” etc. is not wide enough to embrace performance of the permitted activity in a completely inappropriate location rather than the method used to perform it. Whether or not this is the correct analysis, it seems to us plain that the primary purpose of section 33(1)(c) is to catch the offender who is abusing his waste management licence by causing pollution or harm to health. A person who possesses a waste management licence is not subject to the regulation 17(4) requirement to carry out the activity consistently with the objective. Section 33(1)(c) is the provision which imposes obligations on the holder of a licence similar to those which are imposed upon the operator with an exemption under section 33(3) and regulation 17. Mr Harwood’s argument requires, in our view, a strained interpretation of regulation 17(4) which its language does not reasonably bear. We accept Mr Birch’s argument that the judge was right to rule as she did and to direct the jury upon the requirements of regulation 17(4).[28]The appellants argue that the judge should have directed the jury that as a matter of law they should judge whether the activity in which they were engaged was consistent with the scale and type of operations which were exempted. Since, Mr Harwood argues, the operations exempted would be bound to have some impact on health or the environment the judge should have directed the jury not to make the mistake of thinking that the operation had to be sanitised. We do not accept this criticism. First, we have not accepted that paragraph 17(1) was satisfied solely by the grant of an exemption. These were cumulative requirements. Secondly, the test was risk of endangerment of health or harm to the environment which were common terms requiring no additional explanation. During the course of Mr Harwood’s cross examination, Mr Ngoka expressed his personal opinion that the appellants did not qualify for the paragraph 13 and paragraph 24 exemptions because the site was within an air quality management zone and for that reason he thought that an exemption would not be registered. It was also his understanding that if an exemption was sought a waste assessment would be required and, to his knowledge, none had ever been carried out. He had been informed by the Environment Agency, he said, that the site was unlikely to qualify. Mr Harwood argues that all this information was irrelevant because the prosecution accepted that the exemptions did apply to the processes used on site. We agree. We wonder why Mr Harwood did not object to this evidence when it was given. Mr Harwood appears to have encouraged Mr Ngoka’s answers by challenging his opinion (Vol III transcript, page 96 B). However, we are not persuaded that the evidence had any meaningful effect upon the fairness of the proceedings. The judge gave the jury explicit directions of law which required them to be sure that the operation in which the appellants were engaged breached the requirements of paragraph 4(1)(a), schedule 4. In other words the judge’s directions were framed upon the assumption that the exemptions applied. Her oral directions were repeated in writing and handed to the jury just before they retired. There is no danger that the jury was misled into substituting Mr Ngoka’s opinion for the judge’s directions of law. Ground 2 – The indictment period[29]It was submitted that it was unfair to permit the indictment to plead a course of conduct when, as originally framed, it relied upon 32 offences committed on 8 separate days. At a plea and case management hearing conducted on 11 August 2008, a year before the trial, HH Judge Bing permitted the indictment to be amended in accordance with rule 14.2(2) Criminal Procedure Rules. The prosecution proceeded to serve additional evidence to support its case relying upon 21 separate dates during the indictment period. Complaint is made that additional days were being added up to the month before the trial.[30]Mr Harwood argues that it would have been difficult for the jury to assimilate all the information they received. We do not see why that might be so. The trial took just over a week. The defence case was that no disposal of waste took place at the site. The overwhelming evidence was that it did. We agree that not all the photographs were of sufficient quality to support the oral evidence given by the residents as to the deposit of waste, and the burning and crushing of waste, but their evidence was emphatic as to the use being made of the site over a period of time and the effect which its operations had upon their health and comfort. The defence case was that those witnesses were lying or grossly mistaken. The jury decided that they were telling the truth. No particular prejudice is relied upon by Mr Harwood and we do not consider that there was any. Ground 3 – Submission of no case to answer[31]There was, it is argued, no evidence at the close of the prosecution case or at the close of all the evidence to support the prosecution assertion that the nature of the operations at the site deprived the appellants of the benefit of the exemptions. It was accepted that the crusher was used on site but it was the appellants’ case that it was used to crush material produced by demolition of buildings already on the site. One could not tell, as Mr Ngoka conceded, from the mere fact that the crusher was producing dust, and fire was producing smoke, that the material being processed had been imported to the site. Mr Harwood submitted that the prosecution adduced no evidence to the effect that material was being imported to the site from elsewhere (save by Bedrock) or that it was imported material which when processed caused nuisance. There was no evidence which could have contradicted the defence case. We disagree. The jury was entitled to apply common sense when deciding upon those inferences of which they could be sure. There was evidence, photographic and oral, that the volume of material was substantially greater at the end of the indictment period than it was when the buildings were originally demolished. Secondly, the witnesses were clear that they saw lorries, sometimes several a day, arriving at the site with waste products which were unloaded on the site, that they saw large mechanical diggers moving waste material around the site, and that the concrete crusher was at times used for intensive periods. It was for the jury to decide whether they were sure of the answers to the third question posed for them by the learned judge (see paragraph 23 above). Ground 4 – Contamination of evidence[32]Before trial the prosecution provided the witnesses, Mr Downie and Ms Miller with a copy of the summary of the prosecution case. That had been done in a spirit of openness towards the complainants but the prosecution accepted at trial that it should not have happened. The decision we have to make is whether their foreknowledge had such an effect upon the fairness of the proceedings that the verdicts should be treated as unsafe.[33]The live residential witnesses were Mr Downie and his partner, Ms Camper, Ms Miller and Mr Armstrong. The position appears to be that in May 2007 the Council emailed Mr Downie and Ms Miller informing them of their plans to mount a prosecution and the evidence which it was hoped to obtain. That document was sent after each of them had made their first witness statements but before they provided their second witness statements. The judge mistakenly informed the jury that only Ms Miller’s witness statement was outstanding. These were witnesses who had made complaints to the Council. We see no objection to the prosecuting authority informing complainants what steps they are taking in the investigation and the prosecution provided that in so doing no attempt is made to influence the evidence those witnesses are able to provide. There is no evidence that this was the intention or the effect of the email a copy of which was provided to the defence.[34]At the commencement of proceedings in the magistrates court the Council produced a copy of the case summary. It had been shown to Mr Downie in April 2008 and he had corrected some minor errors in it. At some time after seeing the case summary Mr Downie and Ms Camper made further witness statements in which they referred to additional dates upon which relevant incidents had occurred. Mr Harwood objects that the case summary referred to the material being deposited at the site as waste. But it had, as we understand it, always been the evidence of the residents that material was being brought to the site and treated. The case summary was prepared from the evidence which the residents were providing. These matters were raised in cross examination by Mr Harwood. The judge in her summing up referred to the impropriety of showing the case summary to the witnesses and reminded them of Mr Harwood’s suggestion that the credibility of the evidence of these witnesses was affected. The judge told the jury that it was for them to assess whether the evidence was undermined and, if so, to what extent. Mr Harwood submits that the judge should have gone further and explained how the risk of contamination may have materialised. The difficulty with that submission was that Mr Harwood was hard-pressed to suggest in what respects a document based on the witness’ evidence may have contaminated that evidence. These two people lived together and they kept a significant photographic record of the complaints they were making. It seems to this court that the danger of significant contamination from sight of the case summary was negligible. Ground 5 – Excessive and improper intervention by the trial judge[35]Mr. Harwood argues that the trial judge intervened during the cross-examination of prosecution witnesses so as to support their evidence and questioned Mr. O’Grady and his wife (who was called as a defence witness) in a way that amounted to cross-examination of them. His submission is that in consequence Mr. O’Grady did not have a fair trial.[36]There is a growing body of case law in relation to judicial intervention and its possible effect on the fairness of the trial. The approach to appeals raising this issue is set out in the judgment of Lord Justice Lawton in Hulusi and Purvis (1974) 58 Cr.App.R. 378at p.382 where (quoting the words of Lord Parker CJ in the unreported case of Hamilton) he said:
“Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified. But the interventions which give rise to a quashing of a conviction are really threefold; those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, the members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.”
[37]The recent authorities on this topic are helpfully discussed and analysed in Zarazadeh [2011] EWCA Crim 271. For the purposes of this judgment it is not necessary to rehearse and repeat that discussion and analysis. As is properly identified by Mr. Harwood the essential issue is whether the judge acted in such a way as to prevent the appellant having a fair trial. It should be observed that it is the duty of a trial judge in a criminal case to ensure that the jury receive proper elucidation of evidence that is called before them. That will involve from time to time the judge identifying some lacuna in the evidence and inviting a witness to supply the missing information or the parties in the case to make appropriate enquiries. If a trial judge does no more than take an accurate note of the evidence adduced irrespective of obvious issues arising from the evidence, he or she in many cases will not be fulfilling his or her duty to the jury. It is the experience of most trial judges that, where the parties fail to deal with an issue raised in the evidence, the jury often will ask a question or questions seeking to elucidate that issue. Where the jury’s questions come in the course of the evidence, they can be addressed. Not infrequently they will raise matters that have to be investigated by the parties and which lead to the calling of further evidence. Where the jury’s questions come after the close of the evidence and/or during their retirement, the judge is left in the unfortunate position of telling the jury that their questions cannot be answered – however relevant or significant they may be. A judge who anticipates such questions and raises them for himself or herself is not descending into the arena so as to affect the fairness of the trial. Rather, he or she is undertaking the proper task of assisting the jury to reach a proper verdict.[38]In this case there was a particular example of the trial judge taking proper steps to ensure that the jury had the materials available to them to reach a verdict on the basis of sound evidence. The primary issue in the case was the extent to which steps had been taken at the site occupied by the appellant to avoid environmental pollution from his activities at the site. His case was that various steps had been taken, those steps involving different types of equipment. The jury had a large bundle of photographs of the site taken on various dates in the indictment period. Most if not all of the photographs had been taken by witnesses who lived near to the site on various dates during 2007. They were taken in order to show the activities of lorries at or near the site but inevitably they depicted the area of the site in general. They also had photographs taken at some later date (but prior to the trial) by the appellant’s solicitors for use in the proceedings. Until the judge intervened (in a manner now complained of by the appellant – see below for the detail of the complaint) neither side had addressed the question of whether the equipment referred to by the appellant could be seen on the photographs and, if not, why not. Had the judge not done so, the jury may have asked the relevant questions – but too late for any proper answer to be given. Alternatively, the jury may have simply looked at the photographs themselves, decided (rightly or wrongly) that no equipment was visible and concluded that the appellant was telling lies about a vital issue. Had the jury done that, the appellant would be entitled to question the fairness of the process. The judge’s intervention in fact served to ensure that the issue was dealt with properly and fairly. Whether it was to the appellant’s eventual factual advantage is another matter but that is not the relevant question.[39]Mr. Harwood’s submissions in relation to intervention by the trial judge in this case fall into two categories. First, he submits that the judge intervened in the course of the evidence of prosecution witnesses so as to support those witnesses and thereby to support the prosecution case over that of the appellant. Second, he argues that both the appellant and the appellant’s wife (who was called as part of his case) were cross-examined by the judge in such a way as to leave the jury with the clear impression that she did not accept the evidence of the appellant and his witness.[40]In relation to his submission in respect of the prosecution witnesses Mr. Harwood provided the Court with a detailed schedule headed “Substantive interruptions and questions by the Judge”. This schedule identified each and every time that the judge said anything at all including those occasions where she simply asked the witness to repeat something because she had not heard it. A total of 56 comments were identified over the course of more than two and half days of evidence. On a pre-reading of the transcripts of the evidence we were able to categorise very many of the “interruptions and questions” set out in the schedule as being no more than legitimate attempts to clarify the evidence or to curtail repetitive cross-examination. Therefore, we invited Mr. Harwood to identify those interruptions about which he made particular complaint and which he said rendered the trial unfair. Mr. Harwood chose to point to two specific examples. We are able to proceed on the basis that, if those examples do not demonstrate the unfairness on which he relies, none of the other interruptions and questions can give rise to any proper criticism.[41]Both examples relied on by Mr. Harwood came during the evidence of Mr. Ngoka. Mr. Ngoka gave evidence over the course of two days. He was cross-examined for at least a day. There came a point at which he was cross-examined about a lorry that had been seen on a particular day entering the appellant’s site, the lorry apparently being operated by a company named Bedrock. One of the documents in the case was a conveyance note relating to that lorry’s load on that day. The prosecution case was that the lorry delivered waste to the site. The appellant’s case was that it did not do so albeit that he did not appear to have a positive case to put as to the nature of the load. The conveyance note gave no proper detail of the nature of the load. The only entry on the note said that the load was “H/A”. Mr. Ngoka was cross-examined at some length as to the possible meaning of this abbreviation. It is apparent from a comment made by Mr. Harwood in the course of his cross-examination that he did not anticipate the attendance of any witness from Bedrock, namely a person who could explain the entry. Eventually (at p.113D) Mr. Harwood concluded this part of his cross-examination by putting to the witness (not for the first time) that the document did not identify what had been carried by the relevant lorry. Mr. Ngoka agreed that it did not but observed that there were photographs of the lorry concerned. At this point the judge made the intervention of which complaint is made. She asked if the court had the photographs. The witness confirmed that the photographs were within the jury’s bundle and he identified the page numbers in the bundle. The judge and the jury turned up the relevant photograph. As everyone in court looked at the photograph, the judge observed “I am no expert but that looks like construction waste to me”, followed immediately by the observation that she was not giving evidence. Taken in isolation it plainly is arguable that a judge should not offer an opinion on an issue of fact which is to be part of the jury’s decision making process. However, the observation made has to be put into context. It came as the judge sensibly and helpfully elucidated the evidence that had emerged from a protracted cross-examination by reference to the most useful source of evidence in the case i.e. the photographs. As she made the observation the jury were looking at the photographs. They were well able to determine whether the judge’s impression was accurate and the judge made it plain as soon as she had said what she did that she was not giving evidence. Having looked at the photograph ourselves it is difficult to see that the material in the lorry was anything but waste. Insofar as the judge said something she should not have done, any prejudice to the appellant was vanishingly small.[42]The second example relied on occurred shortly after the first. On this occasion Mr. Harwood had directed the witness’s attention to another photograph in order to make a point about a concrete crusher on the site. That led to questions about a lorry shown in the photograph, the witness saying that the lorry was carrying waste. The judge asked Mr. Harwood if he had a positive case to put about the load on that lorry. Mr. Harwood said that he did not but suggested (apparently from simply looking himself at the photograph) that the load “looks like some sort of soil”. The witness initially appeared to agree with that proposition. Rather than leaving the point, Mr. Harwood asked further questions about the possibility of the load being soil. The result was that the witness, having looked more closely at the photograph, said that the load was waste. A brief and somewhat fruitless exchange between the witness and Mr. Harwood about whether anyone could be sure that the load was waste was interrupted by the judge who observed “it doesn’t look just like pure soil does it? It’s obviously got bits and pieces in there.” The witness responded by saying that the load had “huge lumps in it” (which the photograph showed quite plainly) and based on that he could not say that the load was pure soil. As with the previous intervention complained of, it has to be put into context. The judge was talking about a photograph that the jury had and which quite clearly showed the features to which she referred. Her intervention served to curtail cross-examination that was becoming repetitive and which had largely ignored the material the jury had available to them. It could be argued that the judge could have made the same point in a different way without offering any personal view as to the nature of the load. That she did it in the way she did does not begin to make her intervention unfair.[43]Mr. Harwood’s complaints in relation to the conduct of the judge during the defence case do not relate to the examination in chief or the cross examination of the appellant. Rather, he argues that the judge intervened during re-examination and then asked questions of the appellant herself which he described in the course of argument before us as “raising doubts and fishing around in a challenging manner”. He submits that the judge’s conduct during the closing stages of the appellant’s evidence fell foul of the principles set out in Hulusi.[44]In relation to the appellant’s re-examination the only matter relied on in the course of argument was a question by the judge as to whether a PG9 notice (some kind of notice about a defect in a lorry) about which the appellant gave some evidence was immediate or delayed. This was said to be irrelevant – which it may have been but it arose from evidence the appellant had chosen to give – and prejudicial – which plainly it was not. The evidence as to the type of notice was of no consequence at all. We were told that the judge has some expertise in transport licensing law which doubtless explains why she sought clarification. The clarification probably was unnecessary but it did not harm the appellant’s case and it did not prevent him from being able to present his case properly.[45]At the conclusion of Mr. Harwood’s re-examination the judge then asked a number of questions. She spent about 15 minutes doing so. The first topic she dealt with related to how the appellant was able to park the vehicles he operated under his haulage licence at the site in question. The available space at the site was of relevance since the prosecution case was that over a period of time there was a diminishing amount of space available at the site due to increasing amounts of waste being delivered whereas the appellant was saying that no waste was delivered to the site. These were legitimate questions and she presumably was able to raise them in the context of the appellant’s licence conditions because of the expertise to which we already have made reference. The appellant answered the questions (which were put in a neutral fashion) without any adverse comment from the judge. The second issue with which the judge dealt was the refusal of the appellant to answer a particular question in the course of his interview. It does not appear that this issue had been raised before. It was essential that the judge did so in order to deal with any possible adverse inference point that might be raised. Again the judge posed the questions in a neutral fashion and noted the replies. The third matter the judge raised was a delivery of tarmac about which the appellant had been cross-examined briefly by the prosecution. The judge sought clarification and elucidation of the evidence he had given in cross-examination by reference to the photographs. She was quite entitled to do so in order to ensure that the jury were provided with the full picture. The final issue raised by the judge was that about which Mr. Harwood makes most complaint. She referred to the evidence the appellant had given about the equipment he had at the site in order to deal with any environmental side effects of his activities. This went to the heart of the case the jury had to consider. She asked whether any of this equipment appeared in any photograph within the jury bundle. This had not been raised by counsel but it was a matter which the jury was bound to consider. The course taken by the judge not only was not open to any proper objection but also was prudent. The manner in which the questions were put was said to be objectionable. We do not consider that it was. The judge initially asked whether there were any photographs of particular types of equipment to which the appellant replied there were not. In relation to a tractor equipped with a sprinkler, she observed “there is no evidence of that before us at the moment”. That was an entirely accurate observation with which the appellant agreed. It was argued before us that this passage of questioning was carried out in such a manner as to lead the jury to disbelieve the appellant’s case. We see nothing wrong in the manner of the questioning. It did not begin to meet the test identified in Hulusi.[46]Further matters were canvassed with the appellant by Mr. Harwood and the prosecution. The appellant referred to the use of sheets on his lorries. Again this was not apparent on any photograph so the judge asked the appellant about that briefly, together with some questions about whether the water supply apparently needed for suppressing dust was visible on the photographs. These were in effect a continuation of the questions posed earlier and were wholly justified for the reasons given above.[47]The outcome of the judge’s questions was that the appellant overnight caused further photographs to be taken. He was not recalled to give evidence to deal with them. Rather, his wife, who was to give evidence about other matters, produced the photographs. They showed various pieces of equipment which it was said had been used on the site at the time of the alleged offences. Mr. Harwood submits that his examination in chief was effectively taken over by the judge. We find that it was not. The judge asked questions to assist with the production of the photographs. She did not prevent the flow of Mr. Harwood’s examination. The appellant’s case as being presented via his wife was put perfectly adequately.[48]At the conclusion of the evidence of Mrs. O’Grady, the judge asked questions about two matters. She did so in the context of the evidence given by the witness, namely that Mrs. O’Grady was responsible for the company’s accounts and had produced the photographs. In relation to the witness’s financial responsibilities the judge asked about the economics of the site occupied by the appellant i.e. it was rented at a cost of £3,000 per month when it was full of rubble which had to be disposed of at some significant cost. These were matters about which the jury probably were or certainly would have been concerned after argument in final speeches. Given the stage at which this witness gave evidence i.e. at the very conclusion of the evidence in the case, it was incumbent on the judge to deal with them. In relation to the photographs produced by the witness, it now was possible to see in pictorial form the equipment said to have been used at the site. The judge asked the witness to clarify that the equipment in the recent photographs was the equipment used over the indictment period. She then said “We have lots and lots of photographs …. Not one of them has a picture of that piece of equipment in it”. That observation was agreed by the witness to be wholly accurate. Mr. Harwood argues that this intervention by the judge was impermissible cross-examination. We agree that the question is interrogatory in nature and it would have been better if it had not been. If, however, the judge had asked the question “is that piece of equipment in any of our photographs”, Mr. Harwood presumably would have taken no point. The answer to the question would have been that the equipment was not in the photographs. The effect, therefore, would have been identical. We not consider that the fairness of the trial was affected.[49]At the conclusion of Mrs. O’Grady’s evidence, Mr. Harwood argued that the issue of the environmental effects of the appellant’s activity had arisen late in the day which is why the photographs of the equipment only had been produced at that point. The judge said this: …I am not criticising (the late production of photographs). The point I am making is that there are (photographs) that show the site exhaustively and (the pieces of equipment) do not appear to be in there. That is the point I was making. It is for the jury to decide. They can look at the photographs.” That made it perfectly plain to the jury (insofar as it needed to be made plain) that the issue of what could be seen on the photographs was a matter for them as was any inference to be drawn from their findings about the photographs.[50]Mr. Harwood concluded his argument to us on this ground of appeal by submitting that the various interventions upon which he relied amounted to a “continuum” such that the overall effect was to render the appellant’s trial unfair. Since none of the matters upon which he relies gave rise to any unfairness, the fact that there was a number of them adds nothing. We dismiss this ground of appeal. Application to add an additional ground - fresh evidence[51]The appellants sought leave to call the evidence of Mr Seamus Gannon in the following circumstances. As we have said, on 21 June 2007, a resident, Mr Sam Armstrong, took photographs of a lorry owned by a company called Bedrock which delivered a full load of concrete to the O’Grady site and tipped it. These were photographs 101-103 in the jury bundle. The photographs were later handed to Mr Ngoka. Mr Ngoka contacted the company and was provided with a copy of the conveyance note for the load. Among the witness statements gathered to support the prosecution was one purporting to be the statement of Sean Gannon, the proprietor of Bedrock. The statement which is dated 14 September 2007 was, according to Mr Ngoka written on statement paper left with Mr Gannon and later delivered to Tower Hamlets. It reads:
“On the morning of 21 June 2007 we had a phone call from a company called East London haulage asking us if we would do a haulage job for them as there vehicles where otherwise engaged [sic]. We do not know much about East London Haulage, only that they are near our own location. We explained to them we only do our own work and do not involve ourselves with haulage for other people as we recycle all our materials and it’s not really viable for our company to engage in haulage alone. A gentleman who I think his name is Paul came on the line and said as a one-off would we help him out as we are neighbours. We where [sic] talked into helping out and was asked to pick up a load of concrete from a job of theres [sic] in Haggerston, and took it back to there [sic] yard in Wick Lane. When Mr Ngoka visited our company and told us ELH was trading illegally and had no licence for there [sic] activities we where [sic] furious as we had been drawn into a situation we are totally against. As Bedrock prides itself with the way it conducts its affairs and runs its business and complies with all legal obligations. We have since spoken to the representative of ELH and told him our thoughts regarding companies like this that give everyone in this industry a bad name. We do not want any further discussion with this company as our legal representatives are pursuing a claim against company (ELH). Since this incident we have moved to a new location in Canning Town.”
The statement is signed “S. Gannon”.[52]On 1 August 2009 the Crown Court received a letter in response to a witness summons issued for Mr Gannon’s attendance. It read:
“I have received this summons on Sat 1st August. It is too short notice for me to attend court as I am on holiday. I have no knowledge whatsoever of this incident and I did not sign the statement you enclose. Therefore I can be of no assistance to you. Our company ceased trading 12 months ago and I am now retired.”
The letter was signed “S Gannon”. The handwriting of the signature was different from that used to write the signature in the statement. Mr Gannon did not attend the Crown Court and the prosecution did not seek to adduce his evidence.[53]Notwithstanding Mr Gannon’s absence from Court the prosecution continued to rely upon the photographic record of the delivery, Mr Armstrong’s evidence, and Mr Ngoka’s enquiries with the company which produced the copy conveyance note. Mr O’Grady was asked about photographs 101-103 in evidence. He said he had known Mr Gannon for 10-15 years. He was asked to look at the conveyance note at exhibit page 10. He had never heard of Haggerstone, the collection point. In cross examination Mr O’Grady asserted that was a conspiracy between Mr Ngoka and Mr Gannon from Bedrock to arrange this delivery for the purpose of producing false evidence that loads of waste were being delivered to his site.[54]On 6 May 2011 the appellants submitted Form W to the Court seeking to rely on the fresh evidence of Seamus Gannon set out in a witness statement dated 14 April 2011. That witness statement asserts that when Mr Ngoka visited him making inquiries he could not answer the question whether his lorry had supplied concrete on the occasion in question. He asserts that Mr Ngoka was aggressive and threatened to put Mr O’Grady out of business. He says he did not make a witness statement or sign any document. He received a document in the post purporting to be his statement and was very confused by it. He had never heard of East London Haulage.[55]Mr Gannon’s April 2011 version of his conversation is denied by both Mr Ngoka and by Deshni Nadar who accompanied him during the visit. In a letter dated 3 July 2007 to Mr Ngoka at Tower Hamlets Mr Gannon enclosed a copy of the conveyance note dated 21 June 2007. In the typewritten letter the author, who signed himself “S Gannon”, wrote: “With reference to your enquiry regarding vehicle LX54 DYD on the 21st June 2007. The above vehicle is owned by this company and on the day your enquiry relates to and the photographic details you have provided this vehicle was on haulage work for E.L.H. We picked up rubble from one there jobs and delivered it to there yard in Wick Lane. I have enclosed a copy of our waste transfer note for your inspection. I have mentioned your enquiry to the site office in Wick Lane but they are not being very co-operative...” [italics added] We have observed that the curious spelling mistake for “their” is common to both the letter and the disputed witness statement of 14 September 2007. We note that in his witness statement of 14 April 2011 Mr Gannon makes no reference to the copy conveyance note which his firm sent to Tower Hamlets in July 2007.[56]Our suspicions were aroused by the fresh evidence which the appellants now seek to adduce. Mr Harwood seeks to argue that Mr Gannon’s evidence would serve to support Mr O’Grady’s assertion at trial to the effect that Mr Ngoka sought to pervert the course of justice; that he did so not by suborning Mr Gannon but by forging his witness statement. We rejected the appellants’ application to admit this evidence under section 23 Criminal Appeal Act 1968. The Notes for Guidance accompanying Form W make clear the applicant’s obligation to support the application with witness statements “from all involved in the obtaining of new evidence to provide the Court with the circumstances surrounding the obtaining of the new evidence which are potentially highly relevant to its credibility (see R v Gogana, The Times July 12, 1999, CA)”. We should have thought that the fact, as Mr O’Grady asserted in evidence at his trial, that he had known Mr Gannon for many years would have demonstrated the need for the clearest possible explanation of the circumstances in which this evidence came to light and the reason why it became available only on 14 April 2011. Not only have no such circumstances been established by the production of any Gogana statements but it was quite clear that Mr Harwood had no instructions on the subject. We were not satisfied that the evidence submitted was capable of belief.[57]There was disclosed to the appellants by Tower Hamlets an internal email written by Deshni Nadar in which she supported Mr Ngoka’s recollection of their visit to Mr Gannon’s office. She added that she did not agree with certain of Mr Ngoka’s replies in evidence dealing with disclosure. Mr Harwood sought to raise this difference of opinion in an attempt to support his argument that Mr Ngoka had some dishonest motive of his own for pursuing the appellants. Had the email been disclosed at trial he would have been able to cross examine Mr Ngoka to effect. It seems to this court that the subject of disagreement between Ms Nadar and Mr Ngoka was of peripheral relevance to the issues before the jury and, in any event, their difference of opinion fails to raise a germ of a case that Mr Ngoka was corrupt. We rejected the application to raise a new ground of appeal.[58]In the opinion of each member of the Court these convictions were safe and the appeals against conviction are dismissed. The costs application of Mr O’Grady[59]On 16 April 2010 Mr O’Grady was ordered to pay the costs of the prosecution in the sum of £27,665.00. He subsequently lodged an application for an extension of time of about four months and for leave to appeal against the costs order. Those applications have been referred to the full court by the Registrar.[60]On 21 September 2009 Mr O’Grady was fined a total of £12,000.00. No separate penalty was imposed in relation to the company O’Grady, Plant and Haulage Limited. Prior to passing sentence the judge had been informed of the means of the company and Mr O’Grady. The company’s situation was described as “tenuous”. The outgoings of Mr O’Grady and his wife were put at a sum in excess of their income, but it was accepted before the judge that Mr O’Grady had personal investments valued at about £50,000.00 which were unencumbered and which would be available to him. Having considered the circumstances of the offences together with Mr O’Grady’s financial position the judge imposed fines in the total sum of £12,000.00.[61]It was anticipated at that stage that confiscation proceedings would take place in February 2010. In October 2009 the prosecutor drew the attention of Mr O’Grady and the judge to the provisions of section 13(2) of the Proceeds of Crime Act 2002. This requires the court to take account of the confiscation order before imposing a fine. On 10 November 2009 the case was listed before the trial judge. She stated that had she been referred to the relevant sections of the Proceeds of Crime Act she would not have sentenced the applicant to a fine. She accordingly rescinded the fines imposed on Mr O’Grady and substituted a conditional discharge.[62]It was still contemplated that confiscation proceedings would take place in February 2010. However, Mr O’Grady then appealed to the Court of Appeal Criminal Division for leave to appeal against the conditional discharge. The Registrar subsequently informed him that in the light of R v Clarke [2009] EWCA Crim 1074 the Crown was precluded from proceeding with the confiscation proceedings and he withdrew his appeal. There was a further hearing before the judge on 5 February 2010 before as a result of which the confiscation proceedings were discontinued. On the same occasion restraint orders which had been obtained against Mr O’Grady and his wife on 21 August 2009 were discharged. On this occasion the Crown indicated that it was seeking costs against Mr O’Grady and the hearing was adjourned. Thus, the matter came back before the court on 16 April 2010 when the court made an order for costs against Mr O’Grady in the sum of £27,665.00.[63]The grounds of appeal do not challenge the quantification or reasonableness of the sum of costs sought. The submission is that the order made was excessive in the light of the fact that the judge had considered the applicant’s ability to pay for the purposes of a fine and had wrongly gone behind that assessment in fixing a higher figure in relation to the costs order. In effect it was being argued that the £12,000.00 imposed by way of fine should define and circumscribe the costs figure.[64]We do not consider that there is merit in this argument. It is clear from the transcript of the August hearing that the judge identified that there was £50,000.00 in free assets available to Mr O’Grady to pay a fine and costs. The availability of that sum was not disputed. It is also clear from the judge’s sentencing remarks that she contemplated making an order in relation to costs in addition to the fine at the conclusion of the confiscation proceedings. Because of the way in which events proceeded, Mr O’Grady received an un-covenanted windfall in that the £12,000.00 fine imposed was subsequently withdrawn in favour of a conditional discharge. So the position was that when the judge came to deal with the Crown’s application for costs in April 2010, the £50,000.00 available to Mr O’Grady had not been depleted by any payment of the £12,000.00 fine.[65]At the hearing in April 2010 Mr Harwood sought to persuade the judge that she was bound by the assessment she had made in relation to the fine. The judge rejected that submission which has in effect been renewed before us today. The judge indicated that she had fixed the level of the fine, not only by reference to a consideration of Mr O’Grady’s finances, but also by reference to authorities on the appropriate level of financial penalty in this class of case. The judge made clear in terms that the amount of the fine had not been reduced because she thought Mr O’Grady did not have the means to pay; she had been satisfied that he had investments available to him which could satisfy both fines and costs.[66]The essential question for us is whether the judge fell into error and had bound herself in any future assessment of costs by the way in which she dealt with the imposition of the fine. We are entirely satisfied that that is not the case. The arguments which Mr Harwood unsuccessfully raised before the judge are not in our judgment enhanced by their repetition before us. It is clear to us that the judge was not binding herself in any way by reason of the fines assessment exercise as to how she would deal with the question of costs. It is clear to us that there were sufficient assets available for the costs order to be met. The order which the judge made was entirely within the exercise of the discretion granted to her. In those circumstances there is no tenable argument available to the applicant. Accordingly we refuse the application.[67]As far as the application for an extension of time is concerned, we refuse that too since there is no merit in the application. The application of Mrs O’Grady[68]On 5 February 2010, after the confiscation proceedings had been discontinued against Mr O’Grady, the restraint order which had been made in August 2009 on the application of the London Borough of Tower Hamlets against Mr and Mrs O’Grady was discharged. On 16 April 2010 the London Borough of Tower Hamlets was ordered to pay to Mrs O’Grady the sum of £1,573.38. This represented twenty percent of what was said to be her costs in the restraint order proceedings. Mrs O’Grady is dissatisfied and seeks the full costs.[69]Mrs O’Grady was company secretary of O’Grady, Plant and Haulage Limited but had not been a Defendant in the trial which involved her husband and that company. The restraint order was properly made shortly after the conclusion of the trial in contemplation of the confiscation proceedings which were to involve Mr O’Grady. The property restrained comprised the assets of Mr O’Grady, whether solely or jointly owned, in particular a dwelling house in Hertfordshire and a joint bank account with Lloyds TSB Bank Plc. Both the bank account and the dwelling house were property jointly owned by Mr and Mrs O’Grady, so she was made a party to the order. There was no separate restraint on any asset in which Mrs O’Grady had an interest.[70]Mrs O’Grady was represented by Mr Harwood, who also represented Mr O’Grady at five hearings when the restraint order was dealt with. All those hearings would have been necessary whether or not Mrs O’Grady was involved.[71]The hearings involved the following matters. On 2 September 2009 an application to amend the restraint order was agreed. The hearing lasted a few minutes. There were sentencing hearings on 11 and 21 September 2009. On the latter date a further minor amendment to the restraint order was agreed. On 5 February 2010 the restraint order was discharged upon the discontinuation of the confiscation order. On 16 April 2010 the judge dealt with costs matters including Mrs O’Grady’s application for costs.[72]Mr O’Grady had the benefit of legal aid. Mrs O’Grady privately instructed the solicitors who were acting for her husband. Mrs O’Grady claimed over £7,500.00. She argued that since the restraint order was made jointly against herself and her husband, the solicitors were entitled to divide the time they had spent on the case on a 50/50 basis as between the two. So, if the application against Tower Hamlets was successful, they would be liable to Mrs O’Grady for half the work done by her and her husband’s legal advisors payable at private rates.[73]It was argued that the court could not limit the costs recoverable by one party to the extra work attributable to that party on the basis that all other costs would have been incurred by the other jointly represented party. The Crown resisted this application on the basis that in reality the work had been primarily done on behalf of Mr O’Grady and that any work required to be undertaken on behalf of Mrs O’Grady was de minimis.[74]After hearing rival submissions, the judge, without making a ruling, indicated that counsel should be discussing costs matters between themselves, both in relation to Mr O’Grady and Mrs O’Grady and sorting the matter out. The judge then adjourned for lunch having observed that she would be minded to make some allowance for Mrs O’Grady’s restraint order costs, but not to a great extent. She was minded to allow twenty percent of her costs, taking the view that since the parties were married and had joint living arrangements, the costs of Mr O’Grady’s restraint proceedings alone would have been virtually identical. All the work would have been done in any event in relation to Mr O’Grady. She said however that she was minded to allow some additional concession in relation to any extra work that might have been for Mrs O’Grady. She then indicated that the parties should discuss the matter.[75]The parties returned after the midday adjournment and Mr Harwood said “we have had discussions over lunch and there is a settled position”. He said “This is expressed on the basis of your honour’s indications and the views which your honour has expressed on the question…In the light of those indications I am not going to continue to argue the case all the way to the end of the judgment to the end of the day, but for the purposes of the matter going any further, the position is, Your Honour, on the basis of these indications. On that basis Your Honour…the council will pay to Mrs O’Grady a figure in respect of the costs of the restraint order proceedings £1,573.38.”[76]It appears to this court that what then took place was the award of an order for costs by consent without the matter having proceeded to a full ruling before the judge at all. Mr Harwood submits that the words he used preserved his position for the purposes of any appeal. If that was his intention he used the most opaque language in which to do so. We are, however, prepared to give him the benefit of the doubt.[77]In due course an application for leave to appeal was submitted by Mrs O’Grady, but the correct papers were not received in the Criminal Appeal Office until December 2010. Thus an application for an extension of time of approximately eight months is required. The Registrar has referred the application for leave to the full court.[78]It is clear to us that the restraint order was perfectly properly made on 21 August 2009 when the confiscation proceedings were contemplated. Thereafter, no step was taken by the O’Gradys’ advisors to discharge the confiscation and restraint orders notwithstanding the fact that, firstly, a fine and, then, a conditional discharge had been imposed on Mr O’Grady. It was the Crown, and then the Criminal Appeal Office respectively who drew the O’Gradys’ advisors attention to the issues, which meant that the confiscation order could not be proceeded with, and thus that the restraint order would also fall.[79]On this basis there would, it seems to us, have been a strong argument open to Tower Hamlets for greatly limiting, if not expunging, their liability to an order for costs in relation to the restraint order. However, that approach was not taken before the judge, nor indeed before us.[80]Under section 42(3) of the Proceeds of Crime Act 2002 an application to discharge a restraint order may be made to the Crown Court by any person affected by the order. Section 43(2) of the Act provides:
“If an application is made under section 42(3) in relation to a restraint order…the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application: (a) The person who applied for the order; (b) any person affected by the order.”
[81]There is a potential difficulty about the jurisdiction of this court. It hinges on what is meant by “the Crown Court’s decision on the application” in section 43(2). If that phrase encompasses consequential orders resulting from an application to discharge, such as costs, this court has jurisdiction. If on the other hand the phrase “decision on the application” is to be construed as relating solely to the application to discharge the restraint order, then it might be argued that there is no jurisdiction because the question of costs arises from a separate application which is not itself an application to discharge the restraint order.[82]Although we have not heard argument on this point, we tend to the view that the absence of confining language in section 43(2) means that the word “decision” should be interpreted on the broader basis. If so, there would be no question of lack of jurisdiction.[83]It is clear, however, that if there is merit in Mrs O’Grady’s complaint, then she should not be denied a remedy before the courts. If this court did not have jurisdiction we would have been prepared to reconstitute ourselves as a Divisional Court of the Queen’s Bench Division (having regard to the provisions of section 29(3) of the Senior Courts Act 1981), dispensed with necessary formalities and abridged time in order to hear this matter as a claim for Judicial Review.[84]Were it necessary definitively to decide the point of jurisdiction we would do so. However, it seems to us that whichever jurisdiction is the correct one, the test to be applied is essentially the same. We must consider whether the judge exercised her discretion in the matter wrongly or took into account irrelevant considerations or otherwise proceeded on an improper basis.[85]Criminal Practice Rule 61.19 shows that, inter alia, the court has a discretion as to whether costs are payable by one party to another and also as to the amount of those costs. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but that the court may make a different order. In deciding what order to make about costs (if any), the court must have regard to all of the circumstances.[86]It is clear therefore that the judge had a wide discretion in deciding what the appropriate order should be. In our judgment there was no reason why the judge should have felt bound by the approach which was adopted by Mrs O’Grady in making her claim for costs. The judge was entitled to look to the realities of the position, which was that her husband was the primary focus, both of the confiscation proceedings and the restraint order, that the parties shared the same legal representative, that no significant identifiable additional work was done by reason of Mrs O’Grady being included as a party to the restraint order which covered jointly owned assets.[87]Assuming for the purposes of this application(a) that Mr Harwood had not unconditionally invited the judge to make the order and(b) that this court has jurisdiction, we do not consider that it has been demonstrated to us that there is any arguable case that the judge was in error in the exercise of her discretion. We do not think that there is an arguable case of the sort which should attract the grant of leave. In the absence of merit we therefore refuse to grant an extension of time and refuse the application for leave to appeal against the costs order made in favour of Mrs O’Grady. Accordingly, the order made by Her Honour Judge Beech will stand. Conclusion[88]For these reasons the appeals against conviction of the first and second appellants are dismissed. The second appellant’s application for leave to appeal against the order to make a contribution towards prosecution costs is refused. The application by Mrs O’Grady for an extension of time within which to seek leave to appeal against the costs order in her favour is refused.

Cited in 1 later judgment