Calland, R. v [2017] EWCA Crim 2308

[2017] EWCA 2308 (Crim)Case No 201705120/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 1 December 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOLROYDE
MR JUSTICE SWEENEY
Venue THE RECORDER OF LEEDS
HIS HONOUR JUDGE COLLIER QC
SITTING AS A JUDGE OF THE CACD
Between
R E G I N ACrownv
Between
SEAN THOMAS CALLAND
Computer Aided Transcript of the Stenograph Notes ofWordWave International Ltd trading as DTI,165 Street London EC4A 2DY,Tel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Barr appeared for Applicant CrownMr O Cook and Miss C Wilde appeared for Respondent Defendant
J U D G M E N T (Approved)

LORD JUSTICE HOLROYDE:

The

[1]provisions of section 71 of the Criminal Justice Act 2003 apply to this hearing. Accordingly no publication shall include a report of this application or this hearing unless this court otherwise orders. At the conclusion of this judgment the court will hear submissions as to whether it should make any other order in relation to reporting.[2]This is an application by the prosecution pursuant to section 58 of the Criminal Justice Act 2003 for leave to appeal against a ruling given by Her Honour Judge Lunt in the Crown Court at Preston on 16th November 2017 by which the learned judge excluded evidence which the prosecution wished to adduce as to the location of the mobile phone masts through which certain mobile phone calls were routed.[3]The defendant, Sean Thomas Calland was one of a number of persons charged on indictment with two counts of conspiracy to supply a controlled drug to another, contrary to section 1(1) of the Criminal Law Act 1977. Count 1 related to the supply of diamorphine, count 2 to the supply of cocaine. In each count the period of the alleged conspiracy was between 1st November 2016 and 2nd May 2017.[4]At a plea and trial preparation hearing on 2nd June 2017 the trial was fixed for a date in November 2017. The court directed that any cell site analysis evidence should be served by the prosecution by 3rd August. No such evidence was served. The prosecution did however serve statements by Police Constable Gorrill, who had collated information supplied by mobile phone service providers, and by Miss Chambers, who had incorporated that information into a detailed sequence of events chart.[5]The admissibility of the evidence of those two witnesses was explicitly challenged by Mr Cook, counsel for Calland, at a case management hearing on 21st July. Her Honour Judge Lunt directed that the defence must file a skeleton argument on this issue by 13th October and that the prosecution must respond by 27th October. Mr Cook duly filed his skeleton argument. The prosecution did not respond.[6]At the next hearing on 3rd November 2017 the judge noted that she had received from the prosecution neither a skeleton argument nor any statement as to the relevant experience and expertise of PC Gorrill and Miss Chambers. A statement dated 8th November was subsequently served from each officer. PC Gorrill described his role as collating evidence provided by qualified professionals, an area in which he was very experienced. Miss Chambers' role as an analyst was, in the end, uncontroversial.[7]A skeleton argument was belatedly served by the prosecution in which it was submitted that PC Gorrill had "particular expertise in the more technical aspects of evidence presentation, explanation and comprehension in these complex cases."[8]We now summarise the facts of the case to the limited extent that it is necessary to do so for the purposes of this appeal.[9]The conspirators were alleged to have been involved in the supply of controlled drugs from Liverpool to Barrow in Furness. A number of the accused pleaded guilty before the date of trial. Calland and two others were to stand trial. The guilty pleas of other accused were to be relied upon by the prosecution to prove the existence of the two conspiracies. Thus the issues in the trial were likely to focus on whether all or any of the remaining three defendants were parties to the conspiracies.[10]The prosecution were able to adduce evidence which could satisfy the jury that a particular mobile phone with a number ending 8950 was being used to arrange drug supplies and to contact co-conspirators. The prosecution had not however been able to recover the phone itself. As against Calland, the prosecution relied on two broad strands of evidence. First, they relied on observation evidence of police officers who had kept surveillance on the alleged conspirators. Calland had been seen both in Liverpool and in Barrow and the prosecution wished to rely on 11 specific occasions when he was seen and was using a mobile phone. For convenience we shall refer to these as occasions when Calland was making phone calls, without going into detail as to whether a particular call was outgoing or incoming. Secondly, the prosecution sought to establish that it was Calland who was using the 8950 phone for the purposes of the drugs conspiracies. As the learned judge pointed out in her ruling, this was an unusual case of the prosecution seeking to "work backwards" from proving the use of the phone to attributing it to the accused Calland, in contrast to the more familiar position in which the prosecution attribute a particular phone to a particular defendant and then adduce evidence as to the use of the phone from which it could be inferred that the defendant was engaged in drug dealing.[11]The sequence of events chart set out the observations on which the prosecution relied, and information as to the use of mobile phones which had been supplied by the relevant mobile phone service provider. That information included the location of the mobile phone mast through which a particular call was made. In relation to the 11 specific occasions, the prosecution wished that location to be identified by reference to the name of the city or town, ie Liverpool or Barrow, and the postcode area. The prosecution wished to adduce evidence that on those 11 occasions Calland was observed using a mobile phone in the vicinity of the relevant mast at or about the time when 8950 made or received a call. As it is put in the grounds of appeal, "The prosecution wished to invite the jury to conclude that the irresistible inference to be drawn when taking the observation evidence along with the mobile phone mast location evidence was that Calland was indeed using the 8950 number at that time at that place."[12]On behalf of Calland, it was submitted to the judge that the evidence of PC Gorrill was inadmissible because it was non-expert evidence of opinion, or alternatively that it should be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984 on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it should be excluded. The application was opposed by the prosecution. The judge helpfully gave the parties the opportunity to consider whether they might reach agreement as to what information should be included in the sequence of events document, but no such agreement was possible. The prosecution did however seek and were granted a short adjournment to enable them to adduce some expert evidence relating to cell citing. In granting that adjournment, the judge directed that counsel should in the meantime prepare on a contingent basis an alternative version of the sequence of events chart which excluded the eleven specific occasions to which we have referred. It does not appear that anything was done in compliance with that direction, and in due course the learned judge understandably expressed her concern "about the way the prosecution have approached and prepared for this case, including their ignoring of several of my court orders."[13]Further evidence was served by the prosecution before the hearing of the application was resumed, in the form of a "radio frequency propagation report" by an officer who worked or had worked as a technician in that field, but had also been involved in the observation and arrest of the defendants. In the event, that statement has been relied upon by the defence as supporting their position rather than that of the prosecution.[14]The judge in her ruling of 16th November 2017 expressed her surprise that the prosecution had not taken any steps before trial to obtain expert evidence as to cell siting. She observed, correctly, that the defence had from an early stage made it clear that they would challenge the mobile phone and cell siting evidence.[15]At page 7A of her ruling, she said:
"The areas where lack of such an expert is a potential problem, in my judgment, is where the prosecution seek to rely on the proximity of a signal from a very particular mast to the proximity of a defendant as observed by the police."
She referred to the specific occasions, saying that the only point of the evidence about those occasions was that the prosecution wished the jury to reach the conclusion that it was Calland who was using the 8950 phone when he was observed at or around the time of the relevant calls. She held that the defence application went too far in seeking to exclude all of the mobile phone evidence. However, at page 11D she continued as follows:
"But without an expert to assist, as is often the case, to show the jury where a particular mast is, its direction, its next closest mast, its expected range and various other variables, I am satisfied that it would be unfair to include the evidence of the eleven very specific incidents that the prosecution rely on ... without there being evidence from an expert with particular, sufficient expertise because the jury would need assistance in such matters, and there would be reasonable questions to be asked by the defence."
The judge went on to indicate that for a number of reasons, into which we need not go, she was not prepared to admit the evidence which had belatedly been served by the prosecution.[16]The effect of the judge's ruling was that in relation to the 11 specific occasions the prosecution would be permitted to adduce evidence that the phone call had been routed through a mast in either Barrow or in Liverpool, and to adduce evidence that the defendant was seen in either Barrow or Liverpool at the relevant times. They were not however permitted to adduce evidence that the relevant mast was located in a particular postcode area.[17]The prosecution, complying with all the necessary procedural requirements, applied to the judge for leave to appeal against that ruling pursuant to section 58 of the 2003 Act. The judge refused, for reasons which she explained. So it is that the application for leave comes before this court.[18]Part 9 of the Criminal Justice Act 2003 established two new forms of prosecution appeal. Sections 58 to 61 provide for an appeal by the prosecution against what are sometimes referred to as "terminating rulings". Sections 62 to 67 establish an appeal against evidential rulings. A ruling relating to the exclusion of evidence may come within the ambit of both sets of provisions. However, only sections 58 to 61 have been brought into force and it is on those that the prosecution rely in this application.[19]Section 58 applies where a judge makes a ruling relating to one or more offences included in an indictment. By section 58(8) the prosecution is not able to appeal unless "it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence" if leave to appeal to the Court of Appeal is not obtained or if the appeal is abandoned. The prosecution in this case gave such an agreement.[20]If leave to appeal is granted, either by the judge or by this court, the powers of this court on hearing the appeal are to confirm, reverse or vary any ruling to which the appeal relates. However, by section 67 this court may only reverse a ruling if satisfied that it was wrong in law, involved an error of law or principle, or was a ruling that it was not reasonable for the judge to have made. If this court confirms the ruling of the judge, it must by section 61(3) order that the defendant be acquitted of the offence or offences concerned.[21]The effect of these provisions was summarised as follows by Hughes LJ (as he then was) in R v Y [2008] 1 Cr.App.R 34 at paragraph 20:
"In effect the Crown is bound to accept, as the price of bringing an interlocutory appeal under s 58, the consequence that if it fails the Defendant must be acquitted ..."
In R v R [2008] EWCA Crim. 370, this court indicated that an appeal pursuant to section 58 may be brought even though it is not obvious that the judge's ruling would bring a prosecution to an end, for example, in a case in which an evidential ruling seriously weakened the prosecution case. In such circumstances, it was for the prosecution to decide whether it wished to appeal having regard to the consequences if the appeal were unsuccessful. Dyson LJ (as he then was) said:
"An acquittal agreement is the price that the Crown must pay for exercising its right of appeal under section 58. The court has no role to play and in particular has no power to decide whether an acquittal agreement is objectively justified on the facts of the case."
[22]This court in R v R also considered the position where an appeal is brought against a discretionary decision of a judge. At paragraph 30, Dyson LJ said:
"The decision involved an exercise of discretion. It has not been suggested that the judge failed to take into account a material factor or took into account an immaterial factor. The sole complaint is that he gave too much weight to one consideration and insufficient weight to another. It is trite law that the weight to be given to relevant factors is for the decision-maker and the court will not interfere unless the decision is perverse."
[23]To similar effect, Sir Igor Judge, President of the Queen's Bench Division (as he then was) said at paragraph 19 of the judgment of the court in R v B [2008] EWCA Crim. 1144:
"When the judge has exercised his discretion or made his judgment for the purposes of and in the course of a criminal trial, the very fact that he has had carefully to balance conflicting considerations will almost inevitably mean that he might reasonably have reached a different, or the opposite conclusion to the one he did reach. Leave to appeal under section 67 of the 2003 Act will not be given by this court unless it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was. No trial judge should exercise his discretion in a way which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments which might have caused him to do so, does not begin to provide a basis for a successful appeal, whether, as in the circumstances here, by the prosecution or, when it arises, by the defendant."
[24]In the present case, the judge's ruling did not affect the prosecution's case against the other two defendants. Nor, as the judge rightly said, did it prevent the prosecution from pursuing their case against Calland. It merely limited one aspect of the evidence which they wished to adduce against Calland. The prosecution have however chosen to appeal against it, accepting that in order to do so they must enter into the acquittal agreement.[25]We have had the benefit of helpful submissions from the advocates who appeared below. On behalf of the prosecution, Mr Barr puts forward two grounds of appeal. First, he submits that the judge was wrong to divide the information provided by the mobile phone service providers into information such as date and time of a call, which could be understood by the jury without further expert explanation, and information as to the location of a mobile phone mast which, it is said, the judge "concluded cannot be understood by the jury and required expert interpretation to assist them."[26]Secondly, Mr Barr submits that the judge was wrong to invite the prosecution to substitute the name of the town or city, Barrow or Liverpool, for the specific postcode in which the relevant mobile phone mast was located, because that would involve the prosecution misleading the jury by deleting factual evidence provided by the service provider and replacing it with what Mr Barr refers to as "their own interpretation of the town in which that post code was located." Mr Barr submits that all parties agreed that the observation evidence of the police officers and the evidence provided by the mobile phone service providers as to the location of particular phone masts was in itself admissible evidence. He submits that the judge was wrong to exercise her power under section 78 of the 1984 Act to exclude that evidence.[27]On behalf of Calland, Mr Cook and Miss Wilde submit that both of the prosecution's grounds of appeal are misconceived. As to the first, Mr Cook argues that it is not the learned judge who fell into error but rather the prosecution who "have unhelpfully conflated the location of a particular mast with the question of what safe inferences can be drawn about the location of a telephone using it". He submits that the second ground is unarguable and that the judge's ruling, "found the balance between the danger that, unassisted, the jury would be unable to assess what reliance to place on the location of a mast used by the 8950 phone and depriving the prosecution of what they considered to be an important element of their case." Referring by way of example to one of the 11 specific occasions, Mr Cook points out that in accordance with the judge's ruling the prosecution would no longer be permitted to identify the postcode in which the relevant phone mast was located, but would still be able to show that the 8950 phone travelled from Barrow to Liverpool, that at about the same time Calland was observed travelling by car on part of the route between Barrow and Liverpool, that Calland was observed using a phone in Liverpool on a number of occasions which broadly matched calls made by the 8950 phone and routed through a mast in Liverpool and that Calland was observed to remain in Liverpool during the period in which the 8950 phone continued to make calls routed through masts in Liverpool.[28]By way of further illustration of his arguments, Mr Cook tells us that when further evidence was belatedly received from the prosecution, it contained a list of the phone cell sites which served particular locations in which Calland had been observed. Mr Cook cautiously suggests that upon a quick consideration of this evidence it did not appear to provide any support for the prosecution's case because none of the listed cell sites matched those which had been used by the 8950 phone during the relevant calls. Mr Cook readily acknowledges that caution is necessary because, for example, the identification numbers of particular cell sites may have altered in the intervening months or there may have been other changes in the service provision.[29]Evidence relating to calls made or received by mobile phones and evidence relating to cell siting, that is the location of mobile phone masts through which calls have been routed, are of course common features in many criminal trials. Evidence drawn from the computerised records of the mobile phone service providers as to the date, time and duration of calls made or received by a particular mobile phone, and as to the location of the cell site through which a call was routed, will generally be uncontroversial. Evidence of this uncontroversial nature may in itself form an important part of a prosecution case. For example, if there is evidence capable of proving that a defendant was using a particular mobile phone on a particular date when he claimed to be in Newcastle upon Tyne, evidence that the phone was making calls in the London area may be highly significant. Similarly, the fact that the phone made calls through a series of masts, the location of which would be consistent with a train journey from Newcastle to London, may also be significant. The mere fact that calls were being made by a particular phone on a particular day, or that a phone which had previously been used intensively suddenly fell silent at about the time of an important event, may be significant.[30]However, depending on the issues in the trial, evidence of this nature may be more controversial if it is relied upon by the prosecution as supporting an inference that a defendant was in a particular location rather than in a general area at a time when a phone was used to make a particular call. Cell siting evidence can be powerful evidence. But it is not capable of locating a phone with pinpoint accuracy and it has other limitations. Those limitations are familiar to all who conduct and try criminal cases in which such evidence is commonly adduced. The limitations are not however necessarily familiar to the members of a jury.[31]It is therefore common place for the prosecution to adduce expert evidence as to whether, and if so to what extent, the fact that a mobile phone call was routed through a particular cell site is consistent with the phone and therefore its user being at a particular location at the time of the call. Such expert evidence often explains that mobile phones masts may be angled in one direction but not another and that the range and extent of coverage varies from cell site to cell site and may be affected by topographical features such as hills or tall buildings. Expert evidence often also explains that a mobile phone making a call in a particular location may be served by more than one cell site and the question may therefore arise as to which of the relevant sites provided the strongest signal and was most likely to have transmitted a call from that location. Where expert evidence is given on this topic, it generally involves the witness having conducted a survey at the relevant location, using specialist equipment capable of showing the comparative signal strengths of the cell sites concerned.[32]The extent to which such evidence is necessary and relevant will of course depend upon the facts and the real issues in a particular case. The court's case management powers, and the duty of the participants in a criminal case to prepare and conduct the case in accordance with the overriding objective in Rule 1.1 of the Criminal Procedure Rules, enable the court to ensure that time is not wasted in the jury hearing detailed technical evidence which is neither relevant nor necessary and which would serve only to divert their attention from the real issues. But where an issue does arise as to whether the use made of a mobile phone is consistent with the defendants having been at a particular location at the relevant time, the prosecution would usually address that issue by appropriate expert evidence and the defence might respond with expert evidence of their own.[33]With those very general observations in mind we turn to consider the issues in this case. As we have indicated, the prosecution were able to adduce evidence from which a jury could be sure that the 8950 phone was on the relevant dates being used by someone engaged in the drugs conspiracies. They sought through a combination of the mobile phone and observation evidence to invite the jury to infer that it was Calland who was using the phone at these times. To that end, the prosecution wanted to point to the coincidence that there were times when Calland was in Barrow and the phone made calls routed through masts in Barrow, and times when Calland was in Liverpool and the phone made calls routed through masts in Liverpool. The judge's ruling enabled the prosecution to do so. The prosecution wanted however to go further and to point to an additional coincidence that the phone was being used in a particular postcode area at times when Calland was observed in the relevant postcode areas. The prosecution wished to invite the jury to conclude that those coincidences could not be explained by chance and that they could safely infer that it was Calland who was using the phone. In other words, the prosecution did not want merely to invite an inference that Calland was in an area near to the mast when the relevant calls were made. They wanted the jury to draw the inference that Calland was actually making the relevant calls at times when he was observed by the police.[34]The inference sought by the prosecution might safely be drawn if there was evidence from which the jury could be sure that, if Calland had made the relevant call from the location at which he was observed, the call would have been routed through the particular mast which in fact transmitted the call. But in the absence of agreement between prosecution and defence, evidence that a cell site was located in a particular place is not evidence that it served the nearby location in which Calland was observed, still less that it provided the best coverage of that location and would therefore be likely to have transmitted the relevant call.[35]We agree with Mr Cook that the first ground of appeal misses the point. The judge did not suggest that expert evidence was needed in order to explain to the jury where a particular postcode area is situated. Her concern was that the prosecution were, as Mr Cook aptly puts it, wrongly conflating the position of the mast with the inferences which can properly be drawn about the location of a phone making a relevant call.[36]The prosecution argue that they are not seeking to rely on the technical capabilities of the mobile phone coverage provided by a particular cell site, but simply on the striking coincidence of geographical proximity of Calland and relevant phone masts. But in the circumstances of this case, that argument is with respect disingenuous. It is in our view clear that the prosecution in fact wished the jury to make the assumption that because the 8950 phone made a call routed through a particular mast, and because Calland was at the relevant time in proximity to that mast and had a phone, he must therefore have been using the 8950 phone when he was observed. If the prosecution wished to follow that line, they could and should have obtained appropriate expert evidence so that the jury might permissibly have drawn a proper inference. The judge, in our view rightly, foresaw the danger that if the case were presented as the prosecution would wish it to be, the jury would be drawn into making a speculative assumption for which there was no evidential foundation.[37]The second ground of appeal is in our view also misconceived. If the evidence had been presented in accordance with the judge's decision, the jury would not have been misled. They would have been informed, correctly, which town or city the phone was in at the time of the particular call. They would not have had additional information which the prosecution wanted them to have, but they would have had accurate information, and the prosecution would have been able to point to the coincidence of both the 8950 phone and Calland moving between Barrow in Furness and Merseyside.[38]As we have indicated, when questions of this nature arise it is vital to focus upon the actual issues in the case and on the extent to which particular features of the prosecution case are challenged. We certainly do not say that expert evidence will be needed in every case in which the prosecution wish to rely on cell siting evidence. Here, however, the defence had made it clear from an early stage that Calland denied using the 8950 phone and objected to the prosecution relying on non-expert evidence to invite the jury to be sure that a call made by a mobile phone in a particular location must be routed through a specific phone mast located nearby. It may be as Mr Cook suggests that the dangers of the approach are illustrated by the proposed additional evidence relating to a specific occasion of observations. If nothing else that proposed additional evidence starkly illustrates the scope for issues to arise which could only properly be resolved in a case such as this by expert evidence.[39]In those circumstances, it is in our judgment impossible to argue that the decision to which the learned judge came was one which she could not reasonably make. Perhaps she could have been invited to refuse the defence application on the basis that it would suffice for her to give the jury a firm direction as to the limited use which could be made of PC Gorrill's evidence, though we are bound to say that the formulation of an appropriate direction would have been far from straight forward and would have posed a difficult challenge. Perhaps also there may have been scope for the prosecution to make admissions of fact in order to reach an agreement with the defence as to relevant limitations of cell siting evidence and so to have removed or at any rate greatly reduced the risk of unfairness. But neither of these approaches was suggested to the learned judge, who necessarily decided the issue on the basis of the submissions made to her.[40]In our judgment, it is not possible to argue that she acted unreasonably in rejecting the prosecution's submissions which were made to her. On the contrary, it seems to this court that her decision was a correct one in the particular circumstances of this case.[41]For those reasons, we are satisfied that neither ground of appeal is properly arguable. Leave to appeal is accordingly refused.[42]As a result, and in accordance with the agreement entered into by the prosecution, the defendant Calland must be acquitted of the two counts alleging conspiracy to supply controlled drugs. The order of the judge is accordingly affirmed with that consequence.[43]Mr Barr, Mr Cook, where does that leave us in relation to any continuing need for reporting restrictions? As we understand it, the jury were discharged. The trial of the remaining two defendants is months away. Does either of you foresee a risk that reporting of this decision will prejudice the interests of the prosecution, the remaining defendants or of this defendant now to be acquitted?[44]MR BARR: My Lord, may I say out of an abundance of caution I would ask that they remain until the conclusion of the outstanding trial?

LORD JUSTICE HOLROYDE: Mr Cook?

[46]MR COOK: The court will always obviously be reluctant to impose reporting restrictions and will only do so when absolutely necessary. It seems to me that the jury are going to have to know something of what has happened to Mr Calland because he is an important feature of the case.

LORD JUSTICE HOLROYDE: From our necessarily limited knowledge of the case, if there is to be evidence that two or three or four suspects were seen together then plainly the jury will be hearing some reference to this defendant. What, if anything, is said to the jury about why he is not before them will be a matter for debate and if need be a ruling by the future trial judge. The question really is whether the risk of prejudice to anyone involved in the proceedings outweighs the public interest in open justice and reporting of these matters.

[48]MR COOK: It is not a ball in our court in light of the direction that has to be given. We do not see any potential prejudice now, but of course it is a matter for your Lordship.

LORD JUSTICE HOLROYDE: Mr Barr, you are treading cautiously because who knows precisely how matters may work out at the next trial?

[50]MR BARR: My Lord, yes.

LORD JUSTICE HOLROYDE: We will just retire and consider this. (Short adjournment)

LORD JUSTICE HOLROYDE: Thank you both. We have reflected on those submissions. Having regard to the likely timescale before any further trial takes place and to the strong likelihood that the jury will be having to hear about persons other than the two actually on trial, we are not persuaded that there is here such a risk of prejudice to either the prosecution or defence as outweighs the strong public interest in open justice and reporting of proceedings.

[53]We therefore direct that the section 71 restrictions shall not apply to this appeal, with the result that it can be reported.[54]The effect of our decision is that the judge's ruling is confirmed, with the result that Mr Calland must be acquitted of these two offences. Do you know, Mr Cook, whether those are the only reasons he is in custody?[55]MR COOK: I believe so.

LORD JUSTICE HOLROYDE: In any event the effect of our ruling is that so far as these two matters are concerned he will be discharged from custody. If there be any other reason why he is detained, then that will of course remain in force.

[57]MR COOK: The discussion at the Bar was the practical mechanism by which that is put into effect. We understand that that does not then require this matter to go back before the Crown Court at Preston for no evidence to be offered.

LORD JUSTICE HOLROYDE: No, we believe that to be correct. Of course, the Crown Court judge will be informed of our decision. She will see the order made. The matter is before this court on the basis of the acquittal agreement, properly entered into Mr Barr, and the effect of that is that if leave is refused then he must be acquitted. So it seems to us not necessary for any further hearing to take place.

[59]MR BARR: Thank you my Lord.

MR JUSTICE HOLROYDE: Thank you both.

[61]MR COOK: There is one ancillary application. Section 16(4)(a) of the Prosecution of Offences Act permits in the circumstances of this type of application costs to be awarded from central funds.[62]My learned junior in fact has provided me with the provisions, which was amended by the Criminal Justice Act 2003 to include findings in favour of the accused on appeal under Part 9 of the Criminal Justice Act 2003, which is the part under which of course this application for leave to appeal was brought before this court. We would ask then in those circumstances for an order to be made that the costs of the appeal, those are the costs incurred between the point at which the application for leave was made and today's date be met out of central funds in a sum to be assessed.

LORD JUSTICE HOLROYDE: They are in fact paid by the public purse in any event, are they not?

[64]MR COOK: They are. I do not think and this is purely as a result of a conversation with a fees clerk. The representation order for the trial was the fact that we are here today but not the preparation involved in the case potentially or the costs of us arriving here and detaining the court this morning. So in the circumstances, leave having been refused, we do seek an order that that be assessed.

LORD JUSTICE HOLROYDE: Mr Barr, is there anything you want to say about that?

[66]MR BARR: I simply do not know the answer. I am sorry.

LORD JUSTICE HOLROYDE: No, there is nothing you wish to say about the merits of the application I do not imagine?

[68]MR BARR: No, we made an application for leave, we were unsuccessful.

LORD JUSTICE HOLROYDE: Yes. Very good Mr Cook, Mr Calland's costs of resisting this application should be paid out of central funds in a sum to be taxed. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

Cited in 1 later judgment