R v James Lee [2015] EWCA Crim 851

[2015] EWCA Crim 851Case No 201301355Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2015
Before
SIR BRIAN LEVESONPRESIDENT OF THE QUEENS BENCH DIVISIONMRS JUSTICE THIRLWALL DBEMR JUSTICE GLOBE
Between
RCrownJAMES LEEDefendant
Matthew Farmer for CrownAndrew Frymann for AppellantHearing Hearing date: 6 MAY 2015
Judgment
[1]On 13th March 2007, at Inner London Crown Court, the applicant was convicted of an offence of conspiring with Neil Cribben and with others unknown on or before 26th January 2006 to supply 49.7 kilos of cocaine. On 19th March 2007, he was sentenced to 22 years imprisonment. Neil Cribben had earlier pleaded guilty to the conspiracy. He was sentenced to 10½ years imprisonment. Neil Cribben’s brother, Daniel Cribben, was tried with the applicant and was acquitted.[2]On 9th July 2007, the single judge refused the applicant leave to appeal against sentence.[3]On 4th June 2009, the applicant instructed his present solicitors and, on 16 January 2013, almost six years out of time, he sought leave to appeal against conviction upon various grounds of appeal that were drafted by Mr Andrew Trollope QC and Mr Andrew Frymann. The applicationwas refused by the single judge.[4]On 22 July 2014, the application was renewed before this court by Mr Trollope and Mr Frymann upon the same extensive grounds of appeal. In the course of Mr Trollope making submissions about one of the grounds of appeal, namely, the admissibility of intercept evidence, it became apparent that the basis of his submissions required further information and clarification. The application was adjourned. In response to directions that thereafter were given, additional written material was supplied to the court. Mr Bernard Richmond QC, leading counsel who represented the applicant at trial, provided a note dated 25 September 2014. Mr Trollope and Mr Frymann provided a written addendum dated 20 November 2014. Mr Matthew Farmer, counsel for the prosecution at trial, provided an additional Respondent’s notice and grounds of opposition to appeal dated 11 February 2015.[5]At the adjourned hearing of the renewal application, Mr Frymann appeared on behalf of the applicant alone. Mr Trollope was unavoidably absent although, as we made clear during the hearing, we had the benefit of his fully argued grounds. Mr Frymann made additional oral submissions focussing on the issue in relation to the intercept evidence that had necessitated the adjournment. At the invitation of the court, Mr Farmer was also in attendance and made concise oral submissions about the same issue. At the conclusion of the hearing, we announced that the application for leave to appeal would be refused and that our reasons in relation to all grounds that have been advanced would be given in writing.

THE FACTS

[6]Prior to 26 January 2006, the applicant and Neil Cribben were under police surveillance in this country. Two Dutch Nationals, Rosendhal and Huijsen, were under surveillance by the Dutch authorities in Holland. Telephone intercept evidence collected in Holland during the course of the Dutch investigation established that the applicant was in contact with Rosendhal and Huijsen. Sometimes, the calls were made by Rosendhal or Huijsen in Holland to the applicant in the United Kingdom. Sometimes, the calls were made the other way round by the applicant in the United Kingdom to Rosendhal or Huijsen in Holland. Whichever it was, the calls were all intercepted in Holland. Transcripts of the conversations were read to the jury. On the 26th January 2006, the police in England seized the cocaine referred to in the indictment. They arrested Neil Cribben and Daniel Cribben in a van containing the drugs; the applicant was arrested elsewhere.[7]The prosecution case was a circumstantial one. Particular reliance was placed on the following matters.[8]First, transcripts of intercepted calls referred to “50 bits” being brought into the United Kingdom on 26 January 2006, which were worth €29,750 per item and the applicant said he could turn them around straightaway. There was evidence that €29,750 was about the price of a kilo of cocaine in Holland.[9]Second, on 26th January 2006, Neil and Daniel Cribben travelled to Ipswich in a van. En route, the applicant and Neil Cribben were in telephone contact. The police detained the van with both Cribben brothers in a car park near to the port. The police recovered from the van almost 50 kilos of cocaine valued at about £5 million. Neil Cribben pleaded guilty to the conspiracy.[10]Third, Daniel Cribben gave evidence that the drugs were placed in the van when Neil Cribben was driving it alone in the vicinity of Ipswich. He said he knew nothing about the drugs[11]Fourth, the police also recovered a piece of paper containing a list of eight names and eight mobile telephone numbers from Daniel Cribben’s pocket. Next to each name was a figure and the sum of those figures was 50. Daniel Cribben gave evidence that Neil Cribben had written the list and given it to him to put in his pocket. The same names and numbers were found in the memories of one of the applicant’s phones and Neil Cribben’s phone. There was evidence that both phones had contacted numbers on the list. It was the prosecution case that the list was a distribution list for the 50 kilos of cocaine.[12]Fifth, at the same time as the two Cribbens were detained, the police forced entry into a hotel room in Bexleyheath where the applicant had spent the night with his girlfriend. Both were arrested and the applicant twice said “it’s got nothing to do with her”.[13]Sixth, the applicant had limited disclosed income that did not reflect his high living.[14]Seventh, adverse inferences were relied upon in relation to a failure to mention facts in the defence statement that were later relied upon as part of the applicant’s defence.[15]The applicant’s defence was that he was not involved in the conspiracy and had no knowledge of the cocaine. He gave evidence that he sold watches, jewellery, cars and football tickets to wealthy clients. He also arranged for Dutch prostitutes to come to this country for parties. He had not declared his full income to the authorities. The intercepted telephone conversations related to prostitutes, football tickets and watches. “50 bits” meant 50 packages of football tickets for the World Cup; €29,750 was the price of a Franck Muller watch. On 26 January 2006, he was expecting a valuable consignment of watches to arrive, which were collected from Dover by Mark Hartley. The alleged distribution list merely contained details provided to him by Neil Cribben of possible contacts who might be interested in buying watches and cars.[16]The applicant went on to say that when he was arrested, he did not understand what for and when he said “it’s got nothing to do with her” after his girlfriend was also arrested, he was referring to the watches that were arriving in Dover that day because VAT had not been paid on them. Finally, the defence statement did not explain that “50 bits” meant 50 packages of football tickets, nor did it mention the expected consignment of watches he was expecting on 26th January, because he thought he would explain all of that to the jury in due course. In addition to the applicant’s own evidence, Mark Hartley gave evidence to confirm the fact that he drove to Dover and collected five watches from an associate of the applicant on 26 January 2006.

THE GROUNDS OF APPEAL

[17]The written grounds of appeal cover a number of issues, but the real substance of the application surrounds the admissibility of the intercept evidence and the lack of disclosure of what happened in Holland to Rosendhal and Huijsen.

Admissibility of the intercept evidence

[18]It is submitted that the intercept evidence should not have been admitted because it was obtained in contravention of the requirements of the Regulation of Investigatory Powers Act 2000 (RIPA) and the admission of such evidence should thereby have been prohibited under the Act or by virtue of the judge’s discretion to exclude the evidence under Section 78 of the Police and Criminal Evidence Act 1984.[19]The judge addressed the issue of the legality of the intercepts in the summing-up (at Vol.1 p.11D-H). He said as follows:
“The telephone calls of which you have transcripts……were intercepted in Holland. I have to tell you, members of the jury; you probably know that, as a result of English law, had those telephone calls been intercepted in England, the law would have prevented their evidential use in court. That law is the subject of some controversy at the moment but they were not; they were intercepted in Holland, and so you have them in evidence and they are none the worse for that.”
[20]The judge was thereby directing the jury that the intercepts were admissible evidence because they had been intercepted abroad.[21]When the matter was last before this court, Mr Trollope submitted that the judge was under a misapprehension that the calls had been intercepted in Holland. He contended that the calls were, at least in part, intercepted in the United Kingdom. Additionally, he contended that, whether or not the calls were intercepted in Holland, there must have been an invasion of the telecommunication system in this country. No appropriate authority had been given pursuant to the provisions of RIPA. The intercepts were therefore inadmissible. When Mr Trollope made that submission there was no evidence before the court to justify the contentions underpinning it. It was in these circumstances that the hearing of the application was adjourned for the prosecution and the defence representatives at trial to be given notice of the contentions with a view to them commenting upon them.[22]Mr Richmond states the following in his letter to the court dated 25 September 2014:
“One of the essential questions which required my advice and consideration was whether we could and should challenge the admissibility of the Dutch intercept evidence. The material disclosed by the Crown to the defence on this subject demonstrated that there had been a lengthy investigation and the clear suggestion was that there was a very strong case indeed against the various Dutch individuals who, whilst not named in the indictment against Mr Lee, were said to be in a conspiracy with him. My rationale for not challenging the evidence was that there was, at the time I took the decision, no apparent flaw in the investigation, the case against the Dutch individuals appeared to be strong and I could see no way in which a judge would be persuaded, in those circumstances, to exclude the evidence. I was also aware that there would be little value (and potential positive detriment) to make an application which would be highly likely to fail and would involve my “showing our hand” with regard to the challenges to the intercept evidence and the Crown’s interpretation of it.”
[23]Mr Richmond therefore refers to seeing material disclosed by the prosecution to the defence and thereafter deciding he could not challenge the admissibility of the intercept evidence. He could see no way a judge would exclude the evidence. He could see tactical disadvantage in applying for it to be excluded.[24]Mr Farmer, in his note dated 11 February 2015, refers to the material that was disclosed by the prosecution to the defence to which Mr Richmond refers in his note.[25]The material included two letters of request sent by the Crown Prosecution Service to the Dutch authorities requesting legal assistance in accordance with the European Convention on Mutual Assistance in Criminal Matters in relation to the ongoing drugs investigation concerning the applicant, Neil and Daniel Cribben and others. The first letter was sent on 29 December 2005 and the second was sent after the seizure of the cocaine.[26]The material also included the statement made by Richard Hofland, a Brigadier in the National Investigation Service in Holland dated 27 July 2006, which statement was part of the evidence in the case. The statement sets out the chronology of actions by the Dutch authorities that led to them setting up an operation to investigate the activities of certain Dutch Nationals, including Rosendhal and Huijsen. Brigadier Hofland’s statement specifically refers to the December letter of request wherein the Dutch were made aware that there was intelligence in the United Kingdom that the applicant was awaiting the delivery of a substantial quantity of cocaine to the United Kingdom from Holland and there was surveillance in the United Kingdom that had revealed a meeting between the applicant and a number of named Dutch nationals who were believed to be involved in cocaine importation.[27]The request was for the Dutch authorities to make enquiries to establish the links between the criminals in Holland and the suspects in the United Kingdom and to confirm the origin of a specified Dutch telephone number ending with the numbers “475”. It was as a result of the December letter of request that the Dutch authorities set up an independent criminal investigation led by a public prosecutor. The methods used by the Dutch investigators included monitoring the “475” phone and conducting their own surveillance operation. The operations were authorised by a warrant issued by the public prosecutor under specific articles of the Dutch Code of Criminal Procedure. It was against this background that the tape recordings of the Dutch intercepted telephone calls of the “475” phone were made available to the defence and relied on in court as evidence in the trial. The transcripts all related to calls between the two users of the “475” phone in Holland, Rosendhal and Huijsen, and the applicant in the United Kingdom.[28]It was as a result of the cumulative nature of the disclosed material just summarised that Mr Richmond concluded that he was unable to challenge the admissibility of the intercept evidence and that any application to exclude the evidence would fail.[29]Mr Farmer further states that Brigadier Hofland gave evidence at the trial. That fact is confirmed by a study of the court log attached to the appeal papers. He was the first witness in the case. The log refers to the fact that, upon a request being made by Mr Richmond as what file of papers the witness was referring to, the judge responded that, “at the moment, the questions being asked are merely confirmations of the original request”.It is clear therefore that some or all of what appeared in Brigadier Hofland’s statement was being adduced in evidence. Mr Farmer confirms that Brigadier Hofland also gave evidence in relation to the transcripts. There was no challenge to their admissibility, only to the interpretation of what the words might have meant.[30]In the addendum dated 16 January 2015, Mr Trollope and Mr Frymann formally accept that the telephone calls were physically intercepted in Holland. Mr Frymann confirmed that fact in his oral submissions to us. However, various matters are still relied upon in relation to the admissibility of the intercepts.[31]First of all, in the addendum, it is submitted that it was for the prosecution to show the intercepts were appropriately authorised by the Dutch and there was no evidence of such authorisation. Since the addendum, Mr Farmer has referred to the evidence of Brigadier Hofland. We are satisfied from the contents of his statement that there was appropriate Dutch authorisation and that the transcripts were handed over for the purpose of the trial in accordance with the letters of request sent to the Dutch authorities. Whether or not those facts were adduced in evidence at the trial, they were certainly disclosed to the defence. The contents could have been challenged if Mr Richmond had considered it appropriate so to do, which it is clear he did not.[32]Second, in the addendum, it is submitted that at law there is no distinction or difference created by the location of the intercept when part of the conversations are an English party in England using a mobile phone bought in England and paying a mobile phone operator for use of their rights over British airspace for their part in any foreign call into England which is intercepted in Holland.[33]We have considered that submission. It is effectively the same submission that failed in the case of Aujla [1998] 2 Cr.App.R.16. Aujla was a case decided on almost identical facts to the present case when RIPA’s predecessor, the Interception of Communications Act 1985 (IOCA), was in force. In Aujla, part of the prosecution evidence consisted of taped telephone conversations between two Dutch offenders and the appellants. The calls were recorded by means of a telephone intercept being placed on the telephone of the Dutch offenders in Holland. Authorisation for the intercept had been granted by the appropriate judicial authority in Holland. The calls that were intercepted were all made by the Dutch offenders to the appellants in this country. To that extent, the facts were different to the facts in this case where some of the calls were made by the applicant to Holland. However, what was the same was the fact that all of the intercepts were made in Holland.[34]In giving the judgment of the court, Roche LJ stated that that IOCA did not bar the use of material obtained by foreign telephone tapping as evidence in proceedings in this country. The admission of the evidence was not contrary to Article 8 of the European Convention. Any interference with Article 8 rights was in accordance with Dutch law, which could be presumed to be necessary in a democratic society for the prevention of crime. Further, in relation to an application to exclude the evidence under Section 78, the trial judge did not err in exercising his discretion to admit the intercept evidence by finding in particular that the intercepts were lawfully obtained, the appellants were the persons who were telephoned by the Dutch offenders, there was no dispute that the transcripts accurately recorded what was said and the translations were accurate translations.[35]The case of Aujla was considered by the House of Lords in R v P & Others [2002] 1 AC 146. There were two certified questions. The first question related to whether evidence obtained as a result of a telephone intercept made in a European jurisdiction, in accordance with the law of that jurisdiction, in respect of a call in which one or both parties make or receive such call within the United Kingdom, was admissible in criminal proceedings in the United Kingdom. The answer was in the affirmative and that Aujla had been correctly decided: it was admissible. The second question related to whether the trial judge in the case, in the exercise of his discretion under Section 78 or the court’s general jurisdiction to achieve fairness, should have excluded the evidence of the contents of the telephone intercept. The answer was no. It should not have been excluded.[36]In both the addendum and in Mr Frymann’s oral submissions before us, it is submitted that R v P is a case where the intercept evidence was only made available in circumstances where the Dutch offender was going to give evidence in the trial. Mr Frymann referred to that either being a condition precedent to the admissibility of the evidence or a central facet of judge’s decision making process as to whether the evidence should be excluded under Section 78. In the course of the judgment in R v P, it was stated that the availability of the Dutch offender to give evidence at trial was “a cogent factor” in favour of admitting the intercept evidence. It was therefore not a condition precedent to the admissibility of the evidence. It was one of the factors to be taken into account. In R v P, the trial judge considered all of the surroundings circumstances as to the intercept evidence, many of which are similar to the facts of this appeal. His conclusion, which was approved (at p.154C-D of the judgment) was that:
“the telephone transcripts provide important relevant probative and admissible evidence which the jury could and should consider in coming to their conclusions and to deprive them of that material would almost certainly result in a miscarriage of justice”
. We observe that in Aujla, those who made the calls in Holland were not called to give evidence in that case.[37]Here, the evidence was lawfully obtained under Dutch warrant in the course of a Dutch criminal investigation. There were recorded telephone conversations that were taped by the Dutch police in Holland. The recordings were fully available to the defence, who accepted that they were conversations between the applicant and men in Holland. There was no issue about whether they had taken place. The sole issue in the trial related to what was the correct interpretation of what was agreed was said. Responsible and experienced defence counsel took a decision that no application could or should be made to exclude the evidence.[38]In our judgment, that decision was correct. There was no basis for contending the transcripts should have been excluded. If such an application had been made, it would have failed. The reasons given by the trial judges in both Aujlaand R v P in relation to refusing to exclude the evidence under S.78 could equally have applied to the facts of this case. In our judgment, the transcripts were admissible evidence in the case and should not have been excluded under Section 78.[39]Third, in the addendum, it is noted that the cases of Aujla and R v P predate RIPA and there is no Court of Appeal authority in relation to the admissibility of foreign intercept evidence since RIPA has come into effect. It is submitted that the provisions of RIPA either now preclude such intercept evidence from being admitted or make it more difficult for a judge to resist an application for exclusion of the evidence under Section 78. We disagree. Section 1 of RIPA states that what is unlawful is an interception “at any place in the United Kingdom”. What has now been admitted in the course of this appeal is that the interceptions were made in Holland. As such, the provisions of RIPA expressly did not apply to them and the Section 78 considerations thereby have not changed in relation to them.

Lack of disclosure of proceedings against Rosendhal and Huijsen

[40]The ground of appeal in relation to lack of disclosure has developed following receipt of the note from Mr Richmond. In addition to what has already been referred to by him in his note, he added the following:
“Had I known that the case against the Dutch individuals was not strong or that they were likely to be acquitted, I would have taken a very different course to that which I did.”
[41]Mr Richmond says the course he would have requested would have been an adjournment until the trial of the Dutch individuals was concluded because they were potentially vital witnesses for the defence and he would have challenged the reliability and admissibility of the intercept evidence, the interpretation of which was a very important part of the prosecution case against the applicant. He did not do either because he had had no disclosure of what had happened to the Dutch individuals. Mr Richmond added that efforts had been made prior to the applicant’s trial to obtain the co-operation of the Dutch individuals but they had refused to come to court.[42]As already stated, Mr Richmond was in possession of Brigadier Hofland’s statement. The statement included details of Huijsen’s arrest and the fact that it had not been possible to arrest Rosendhal, whose description had been circulated internationally. Notwithstanding knowledge of those facts, no adjournment was sought by Mr Richmond to await Huijsen’s trial. No criticism is made by Mr Trollope or Mr Frymann of that decision. However, they submit that it is now known that, prior to the applicant’s trial, Huijsen had been convicted of an involvement with the cocaine that had been seized and the conviction had been overturned on appeal on the basis that the allegation had not been sufficiently proved. It is also now known that a long time after the applicant’s trial, in 2012, Rosendhal was acquitted of his involvement with the cocaine on the same basis that the allegation against him had not been sufficiently proved.[43]It is therefore submitted that the information relating specifically to Huijsen was not disclosed to the defence prior to the trial in 2007, whereas it should have been. The information may have undermined any purported connection between the Dutch evidence and the applicant and could have formed the basis of a Section 78 application to exclude the intercept evidence. Alternatively, it is submitted that details of the acquittals of Huijsen and Rosendhal should be received as fresh additional evidence to the same effect. Without it, it is submitted that the admission of the intercept evidence was highly prejudicial. Mr Richmond’s trial decisions were in ignorance of the full facts and, if he had known the full facts, then in accordance with his note to the court, he would have made an application to adjourn the trial and/or to exclude the evidence under Section 78.[44]We have considered the effect of the lack of disclosure. The defence were aware of the fact that proceedings were pending against Huijsen and that Rosendhal had not been apprehended. Mr Richmond does not suggest he made any enquiries as to the state of the proceedings against Huijsen. He chose not to make the enquiry. Even if he had made the enquiry and had received the answers in relation to what had happened to Huijsen, Rosendhal was still at large. There was no prospect that any court would have adjourned the applicant’s trial to await Rosendhal’s apprehension.[45]So far as Huijsen was concerned, his acquittal may have been consequent upon issues in Holland that were different to the issues relied upon by the prosecution in prosecuting the applicant in this country. In any event, the indictment against the applicant alleged a conspiracy with two named conspirators Neil Cribben and Daniel Cribben and others unknown. The acquittal of Daniel Cribben did not mean the applicant could not be convicted of conspiring with Neil Cribben. In like manner, the acquittal of Huijsen in Holland did not mean that the applicant could not have been a co-conspirator with Neil Cribben. It was not an integral part of the prosecution case that Huijsen had to be convicted in Holland of his part in the same conspiracy.[46]In relation to the intercepts, the content of what was said in the calls was not in dispute. The applicant accepted in his defence statement and his evidence that he had many friends in Holland, that he went there socially and that he imported items from Holland. Notwithstanding the acquittal of Huijsen and Rosendhal remaining at large, it remained relevant that shortly before the 50 kilos of cocaine was found, the applicant was involved in a telephone conversation with Huijsen and Rosendhal about importing 50 items at €29,750 for each item and that evidence existed that one kilo of cocaine was worth about €29,750 in Holland. It was a matter for the jury to consider whether the timings in the conversation matched what was found.[47]Further, in relation to the indictment, the judge reminded the jury in the summing-up of Mr Richmond’s point in his speech that there was no evidence as to how, when or from where the drugs entered the country. He directed the jury that it was a matter for them to decide on the evidence as a whole as to whether it had been established that the drugs had come in from abroad as alleged. We observe that, although the prosecution case was that the cocaine had originated from Holland, it would not have been necessary for the jury to have been sure that that was its origin. The offence was one of conspiracy to supply the cocaine found in the van in Ipswich and Neil Cribben had pleaded guilty to the offence. As already stated, the issue was whether the applicant was a co-conspirator. The jury would have been entitled to come to the conclusion that the applicant was a co-conspirator irrespective of the origin of the drugs and the acquittal of Huijsen.[48]As a result of all of the above mentioned matters, we do not accept that there is any arguable ground of appeal arising from the lack of full disclosure about Rosendhal and Huijsen and/or it is necessary or expedient in the interests of justice to receive any evidence not adduced in the course of the trial in relation to them.[49]We turn to two other separate grounds of appeal.

The relevance of evidence of events on 7 December 2005

[50]It is submitted that there was no evidential link between events that occurred on 7th December and other evidence in the case. The evidence should not have been admitted because it was irrelevant. The evidence that was adduced related to the applicant being at a hotel where a group of Dutch people, including Huijsen, were staying. The prosecution case was that, according to one officer, a package was thrown to the applicant. The applicant’s case was that he never met Huijsen. He was drunk and asleep in his room.[51]In relation to this ground, although the prosecution relied on the evidence of 7th December as being supportive of a connection between the applicant and men from Holland, the judge directed the jury that the evidence had little or no probative value. In relation to the throwing of a package to the applicant, the judge directed the jury (at Vol 1 p.42D) that “it would be speculation of the wildest sort to suppose that there was anything sinister inside it”.In relation to meeting the Dutchmen, the judge directed the jury (at Vol 1 p.42E) that the applicant never met Huijsen on that day. In relation to the incident as a whole on 7th December, the judge concluded this passage of his summing-up (at Vol 1 p.42F) by questioning whether the events of 7th December “take you very much further in this case”. We agree with the way the judge dealt with the evidence in the summing-up.

The admissibility of the applicant’s lifestyle evidence

[52]It is submitted that the judge erred in admitting evidence of the applicant’s lifestyle and business dealings in relation to dealing in expensive watches and football tickets as evidence that was supportive of an involvement in drug dealing.[53]The applicant’s lifestyle and dealings were raised in the defence statement and developed in the course of the evidence. The judge was careful to direct the jury as to the significance of the evidence. A full direction was given over several pages of transcript. The judge directed the jury that a lack of disclosed income, a failure to pay tax or a failure to pay VAT were all irrelevant to the case, in the sense that they did not prove that the applicant was dealing in drugs. The judge directed the jury in clear terms that if the evidence showed the applicant was a tax dodger or a dealer in shady goods it “does not take you anywhere in this case, because he is not charged with either of those things”. The judge emphasised that it was only if his lifestyle was sustainable because he had been dealing in drugs that it would be evidence that could be taken into account in deciding if he was a conspirator in relation to the cocaine. In our judgment, that was an appropriate direction and the judge did not err in this regard.

Conclusion

[54]It follows therefore that, notwithstanding the written and oral submissions of both Mr Trollope and Mr Frymann and the amplification of the written grounds that were before the single judge, we are in agreement with the his conclusion that none of the grounds is arguable.[55]We add that, like the single judge, we, too, are concerned about what we regard as inordinate delay in making the application. There was unexplained lengthy delay for over two years before there was a change of representation and there was 3½ years delay after that change. Notwithstanding the lengthy statement from Paul Martin providing reasons for that lengthy period of 3½ years, we remain unconvinced that the totality of the delay is justifiable. That, in itself, would be a sufficient basis for refusing the application. However, in the end analysis, it perhaps matters not because we have concluded on the merits that none of the grounds are arguable. It is for all of these reasons that the applications for an extension of time and for leave to appeal are refused.