THE QUEEN ON THE APPLICATION OF MILLER GARDNER SOLICITORS v (CLAIMANT) [2002] EWHC 3077 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

[2002] EWHC 3077 (Admin)

Case No CO/5181/2002

Venue Royal Courts of Justice, Strand, London WC2

Between

THE QUEEN ON THE APPLICATION OF MILLER GARDNER SOLICITORS

(CLAIMANT)

MINSHULL STREET CROWN COURT

(DEFENDANT)

Before

Lord Justice Rose

Mr Justice Fulford

MR M SHARPE (instructed by Miller Gardner, Manchester) appeared on behalf of the CLAIMANT

MISS A STUDD (instructed by Force Assistant Solicitor's Office, Manchester) appeared on behalf of the INTERESTED PARTY, THE CHIEF CONSTABLE

Friday, 20th December 2002

Date 20 December 2002

[1]MR JUSTICE FULFORD: INTRODUCTION Miller Gardner, the claimant in this case, are a firm of solicitors practising in Manchester. They act for "NH", who has been a client for a number of years. NH currently faces an indictment charging him with possession of firearms with intent to endanger life, contrary to section 16 of the Firearms Act 1968. The trial of that matter is due to commence on 27th January 2003. "AH", NH's brother, is also a past client of Miller Gardner, and at present is a serving prisoner.

[2]On 17th October 2002 His Honour Judge Mort, sitting at Minshull Street Crown Court in Manchester, heard an application without notice that resulted in the grant by him of a search warrant pursuant to Schedule 1 of the Police and Criminal Evidence Act 1984 (Special Procedure Material) for constables to enter and search the claimant's premises for:

"material likely to be relevant evidence which is:- 1. Personal records in the name of [NS, and his date of birth is given] 2. Personal records in the name of [AH, and his date of birth is given] 3. Desk diaries of the solicitors and the solicitors' secretaries representing [NH] and [AH] covering the period 1 January 2001 to 30 June 2001"

[3]The learned judge had a very long case summary before him, which was appended to the information prepared by Detective Constable Nutten. The learned judge gave a decision at the conclusion of the hearing, which is included in a transcript of the proceedings, part of which has been disclosed to the parties before us in a redacted form. The court has read the entirety of the decision, and including the redacted passages.

[4]On 23rd October 2002 the warrant was executed and three police officers attended at the offices of the claimant. Detective Chief Inspector Preece showed the warrant and explained that they were empowered to seize all records and material held relating to NH and AH between January 2001 and July 2001. The officer said they wanted to locate the telephone numbers that were held as contact numbers for NH, and in so doing required access to all documents and material that might contain the telephone number sought.

[5]The claimant raised the issue of legal professional privilege and, as a result, the material thereafter selected has been placed in special procedure bags and remains unread pending the outcome of this application for judicial review of the decision to grant a warrant, permission having been granted by the single judge on 19th November 2002.

[6]The orders sought are as follows: firstly, an order quashing the decision of the learned judge; secondly, an order preventing the opening of the bags; and, thirdly, an order for the return of the bags.

[7]The material seized comprised seven files relating to NH and one file relating to AH, the criminal desk diary and a computer printout of information held for both clients.

[8]It is proposed by the Chief Constable of the Greater Manchester Police that if this court refuses this application the material will be examined by an independent lawyer to assess which parts of the material are privileged from disclosure by reason of legal professional privilege.

[9]Put shortly the claimant submits as follows: firstly, the personal details provided by the brothers were communications made in connection with the giving of legal advice to a client and are therefore covered by legal professional privilege and should not be subject to disclosure (Ground 1); secondly, the condition set out at paragraph 14(d) of Schedule 1 of the Police and Criminal Evidence Act 1984 is not made out in that the documentation did not refer explicitly to the reasons for the issue of the warrant (Ground 2); thirdly, it is submitted the warrant was, in any event, too widely drawn (Ground 3); fourthly, the application had to be on notice, because the firm of solicitors was not under investigation (Ground 4); and fifthly it is submitted the warrant was in breach of Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms (Ground 5).

[10]Against this, the Chief Constable, who is one of the interested parties in this case, argues: firstly, the contact details of NH and AH are not a communication subject to legal professional privilege; secondly, that the issue of the warrant by His Honour Judge Mort, on 17th October, was lawful and, in particular, all relevant information was provided and included in the documentation; thirdly, the warrant was not too widely drawn; fourthly, there is no requirement that unless the firm of solicitors are under investigation, the application must be on notice; and, fifthly, while the interested party concedes, for the purposes of this application, that Article 8 is engaged, the actions of the learned judge and the officer acting under the warrant, in accordance with law, were necessary in a democratic society for the prevention of disorder or crime and for the protection of the rights and freedoms of others. The interested party denies that Article 6 is engaged for the purposes of this application, albeit it is accepted Article 6 may become relevant at the trial of NH. BACKGROUND

[11]In order to assess the merits of those competing arguments it is necessary to look a little more closely at the facts leading to the grant of this warrant. On 1st July 2001 Detective Constable Nutten was appointed as officer in the case of R v NH and another. The single charge of possession of firearms with intent to endanger life relate to a Sten type machine gun and a sawn off pump action shotgun that together with compatible ammunition, were discovered in the boot of a BMW motor vehicle parked outside garage premises on Stamford Road, Longsight. The garage premises belonged to NH's co-defendant, "D M".

[12]Crucial to the case as advanced by the prosecution is the ownership of the BMW at the relevant time. The Crown have evidence that the previous owner of that car telephoned a mobile phone number, 07951 565328, to arrange the sale, and the person spoken to gave the name "ZH". Analysis of the telephone records has revealed that that telephone is registered to one ZH at an address which is the home address of NH and his brother, AH. On the basis of relevant records, no-one by the name of ZH appears to live at that address.

[13]In interview, NH denied owning or ever using that mobile telephone, and later he told the officers that the telephone in fact belonged to his brother. As already mentioned, his brother is a serving prisoner having been sentenced to six years' imprisonment for the supply of drugs.

[14]However, someone using that telephone contacted Miller Gardner during May of 2001. It was against that background on 17th October 2002 Detective Constable Nutten applied for a special procedure warrant to empower the police to search for and seize material such as the attendance notes that would have indicated which, if either, of the brothers had provided that mobile number as their contact number when contacting the claimant firm on the dates shown on the telephone billing schedule. Against that background I turn to the four grounds that support this application. GROUND 1: LEGAL PROFESSIONAL PRIVILEGE

[15]The applicant contends that legal professional privilege covers the contact details. In any event, it is submitted, if the defendant is correct, solicitors generally would be placed in an impossible position because they would always have to warn their clients that details of this kind were at risk of being disclosed if particular circumstances were said to apply. This, it is submitted, would constitute an interference with their clients' rights under

Article 6 of the Convention

. The applicant relies in particular in this regard on the case of R v Manchester Crown Court ex parte Rogers

[1999] 1 WLR 832

. That authority is considered in greater detail below. In a sentence, the claimant contends, on an analysis of Rogers , that contact details are sufficiently close to the giving of legal advice to afford them the cloak of legal professional privilege.

[16]The Chief Constable has expressly stated he does not seek to go behind the protection provided by legal professional privilege which protects the exchanges between the client and his adviser regarding his legal affairs.

[17]Section 10 of the Police and Criminal Evidence Act 1984 expresses, but does not amend or vary, the common law position with regard to legal professional privilege - see R. v. Central Criminal Court, ex p. Francis & Francis (a Firm) [1989] A.C. 346, HL (per Lord Goff at p. 396). Section 10 defines items subject to legal privilege as follows:(1) Subject to subsection (2) below, in this Act "items subject to legal privilege" means - (a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; (b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and (c) items enclosed with or referred to in such communications and made - (i) in connection with the giving of legal advice; or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they are in the possession of a person who is entitled to possession of them.

(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.

[18]The enduring principle set out in R v Cox and Railton

(1884) 14 QBD 153

, and repeated down the years, is that a client must be free to consult his legal advisers without fear of his communications being revealed. It is therefore critical for the court to look at the purpose behind the communication, because the limitations on the situations properly covered by this legal concept mean that not every communication will attract privilege solely on the ground that it is made to a solicitor. For instance, in the case of R v Crown Court ex parte Baines and Baines

[1988] QB 579

, a case which dealt with special procedure material arising out of the Brinks-Mat robbery, this court held that the records of the financing of a transaction for the purchase of a property were not to be subject to legal professional privilege under section 10 of the Police and Criminal Evidence Act as the conveyancing matter was wholly unconnected with litigation.

[19]In R v Manchester Crown Court ex parte Rogers , this court held that a record of an attendance at a solicitor's office by a client for an appointment, which I observe must involve giving the name of the client, was a communication between client and solicitor, but not one that attracted legal professional privilege. In his judgment at page 839, Lord Bingham CJ considered the function and nature of the document with which the court was concerned, and he concluded that:

"It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor's office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere..."

As Lord Bingham stated during the course of his judgment, it is necessary to consider the function and nature of the documents. As a result although documents may be located at a solicitor's office, they do not attract legal professional privilege for that reason alone.

[20]That decision provides strong support, for the proposition that the provision of an individual's name, address and contact number cannot, without more, be regarded as being made in connection with legal advice. It records nothing which passes between the solicitor and client in relation to the obtaining of or giving of legal advice. Taking down the name and telephone number is a formality that occurs before the legal advice is sought or given. As my Lord observed during argument, providing these details does no more than create the channel through which advice may later flow: see in this regard the case of Studdy v Sanders and others [1823] 2 D and R 347.

[21]It follows, in my judgment, that the identity of the person contacting the solicitor is not information subject to legal professional privilege and the telephone numbers of the brothers, equally, are not covered by this protection; neither are the dates when one or either of those men phoned the office. Moreover, the record of appointments in the office diary and attendance notes, insofar as they merely record who was speaking to the solicitor and the number they were calling from, fall within the same category. Other details contained within the attendance notes may well be covered by legal professional privilege depending on what, if anything was discussed. GROUNDS 2, 3 and 4: SPECIAL PROCEDURE WARRANTS AND THE ACCESS CONDITIONS

[22]As set out above, the three complaints made in relation to procedure under our domestic law are first (Ground 2) the condition set out at paragraph 14(d) of Schedule 1 of the Police and Criminal Evidence Act 1984 is not made out in that the documentation did not refer explicitly to the reasons for the issue of the warrant; secondly (Ground 3) the warrant was, in any event, too widely drawn; and thirdly (Ground 4) the application had to be on notice, because the firm of solicitors was not under investigation. The power of search and seizure are set out in the Police and Criminal Evidence Act 1984 Part 2. The access conditions and procedure for applying for a special procedure warrant are set out in the Police and Criminal Evidence Act 1984 at Schedule 1, as follows: Police and Criminal Evidence Act 1984, Sched. 1 Special Procedure 1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below. 2. The first set of access conditions is fulfilled if -(a) there are reasonable grounds for believing - (i) that a serious arrestable offence has been committed; (ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application; (iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and (iv) that the material is likely to be relevant evidence;

(b) other methods of obtaining the material - (i) have been tried without success; or (ii) have not been tried because it appeared that they were bound to fail; and

(c) it is in the public interest, having regard - (i) to the benefit likely to accrue to the investigation if the material is obtained; and (ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given. …….. Police and Criminal Evidence Act 1984 schedule 1 paragraph14 : The further conditions mentioned in paragraph 12(a)(ii) above are - (a) that it is not practicable to communicate with any person entitled to grant entry to the premises to which the application relates; (b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material; (c) that the material contains information which - (i) is subject to a restriction or obligation such as is mentioned in section 11(2)(b) above (relating to excluded material); and (ii) is likely to be disclosed in breach of it if a warrant is not issued;

(d) that service of notice of an application for an order under paragraph 4 (giving notice to produce the material to a constable) above may seriously prejudice the investigation. ……… Police and Criminal Evidence Act 1984 Section 14 provides the definition of special procedure material: (1) In this Act "special procedure material" means - (a) material to which subsection (2) below applies; and (b) journalistic material, other than excluded material. (2) Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who - (a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and (b) holds it subject - (i) to an express or implied undertaking to hold it in confidence; or ………

[23]Accordingly, before issuing a special procedure warrant, the judge had to be satisfied that either set of access conditions under Schedule 1 paragraph 2 or 3 (the latter is not relevant here) had been satisfied, and that any of the further conditions relevant in this case, set out at paragraph 14, had been fulfilled. The relevant access conditions are set out in Schedule 1, paragraph 2(a), the first set of access conditions. Taken shortly, they are, therefore, as follows.

[24]Firstly, there are reasonable grounds for believing that a serious arrestable offence has been committed. Section 16 of the Firearms Act 1968 is a serious arrestable offence specified in schedule 5 of the Act, and accordingly this requirement was satisfied.

[25]Secondly, there was material which consisted of or included special procedure material (see the definition above) and did not include excluded material within the meaning of section 11 of the Act on the premises specified in the application. In this case the material was acquired (or created) in the course of a business or profession and it was held subject to an express or implied undertaking to hold it in confidence. Subject to the issue of legal professional privilege dealt with above, this material was special procedure material under section 14 (2) (the issue of excluded material does not arise here).

[26]Thirdly, the material is likely to be of substantial value, whether by itself or together with other material, to the investigation in connection with which the application is made. In the light of the history set out earlier, there could have been no doubt in the mind of the judge as to the potential value of this material.

[27]Fourthly, the material is likely to be relevant evidence. Here, again bearing in mind the background set out above, I am satisfied that this was clearly established before the learned judge.

[28]As to the conditions at paragraph 2(b) of this part of the Schedule, other methods of obtaining the material would not have been tried because there was no prospect of securing a successful result by any other route. The solicitors would not have received instructions to release these details to the police voluntarily, and short of seizure this material would have remained unavailable. Under 2(c), the public interest concern, it has been established sufficiently, in my judgment, that the material will benefit the investigation, and, having regard to the circumstances in which the person in possession of the material was holding it, it was in the public interest for the material to be seized and produced.

[29]The learned judge read the application and concluded that the access conditions were made out on the papers. The issue that he raised was whether the claimant should be put on notice, and for this he considered the provisions of 14(d) of Schedule 1 as to whether service on the claimant may seriously prejudice the investigation. He decided, entirely correctly, that it would.

[30]We have had the advantage of reading the full unedited transcript and, for my part, I am satisfied that the learned judge's decision on all these issues is not to be faulted.

[31]The submission is advanced in support of Ground 2 that the learned Judge was provided with insufficient or no information to justify the grant of this application. As mentioned above, we have read the entirety of the materials provided for the learned Judge by Detective Constable Nutten, and we have considered the evidence he gave on the day of the application. The officer supplied a very full account of the case to the court below, and including all of the history set out earlier in this judgment. It was clear that the police wanted to establish a link between the telephone calls made on certain dates and NH. They set out three categories of material that fell within the ambit of the application, namely the personal records of NH and AH (categories 1 and 2), and the desk diaries of those in the firm representing NH and AH between 1 st January 2001 and 30 th June 2001 (category 3). In support of this argument the applicant has relied on R v Maidstone Crown Court ex parte Waitt [1988] Crim LR 384. In that case this court underlined the need for judges to be scrupulous in discharging their responsibilities so as to ensure that these procedures, that constitute a serious inroad upon the liberty of the subject, are not abused. In addition the court made clear that fulfilment of each part of the relevant conditions is a matter of substance. I echo those sentiments. In this case, full information has been provided both here and in the court below in the materials I have referred to, and I am wholly satisfied there was compliance with all of the necessary formalities. Undoubtedly, the preferred method of dealing with these applications is by way of an application on notice, but here there were circumstances which justified this fairly unusual course of action.

[32]An examination of the matters analysed in the preceding paragraph makes it plain, in my judgment, that Ground 3, the assertion that the application was too widely drawn, is unsustainable. To the contrary, proper and sensible particularity was provided so as to enable firstly the police to seize the correct files, and secondly an independent lawyer thereafter to look for the limited evidence that was the subject of the order.

[33]Ground 4 advances the proposition that unless the firm of solicitors is itself under investigation, applications of this kind relating to lawyers' offices should be made on notice. In support of this argument the case of R v Leeds Crown Court ex parte Switalski [1991] COD 119, is relied on. That authority does not support this sweeping submission, but rather confirms that it is preferable, in an ordinary case, for the application to be made on notice. A police investigation into a particular firm of solicitors is simply an example of one of the situations when a without notice application may be appropriate. In other respects that authority is of little assistance here, because that case concerned an application where reliance was placed on paragraph 14(a) (whether it was practicable to communicate with a person entitled to grant entry) rather than 14(d), and, in addition, since the firm itself was under investigation, this court upheld an order relating to all the files and documents of the practice.

[34]By way of conclusion, as regards the order made in this case, I have no doubt that the access conditions were fulfilled, and the procedure for applying for a special procedure warrant as set out in the Police and Criminal Evidence Act 1984 at Schedule 1 was fully complied with. GROUND 5: ARTICLES 6 AND 8 EUROPEAN CONVENTION

[35]It is submitted the warrant was in breach of Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms. Article 8 provides as follows:(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[36]The argument advanced by the applicant is that a search of a lawyer's offices requires particularly compelling justification, and we are reminded that European jurisprudence has established that such a search may constitute an unjustified breach of the right to respect for private live and correspondence, because a person's home and private life may, in some circumstances, extend to professional or business activities or premises: Niemietz v. Germany, 16 EHRR 97 ; Chappell v. U.K.,12 E.H.R.R. 1. I am prepared to accept the concession made by the interested party for the purposes of this case, that

article 8 the European Convention

is engaged, but Schedule 1 is of high relevance in these circumstances, and the court must assess what is necessary in a democratic society for the prevention of crime and the protection of the rights and freedoms of others. In my judgment the matters that a judge must find established under Schedule 1 will usually ensure that the rights of the subject under Article 8 are protected. For a case such as this, the material must relate to a serious arrestable offence; there must be a high degree of likelihood that it will be of substantial value to the investigation; the court must consider other methods of obtaining the material; the particular application must be in the public interest; and the court must be satisfied that notice of the application may seriously prejudice the investigation. Accordingly, so long as the court ensures that applications under Schedule 1 are properly made out, usually the provisions of Article 8 will be adequately safeguarded.

[37]In my judgment the grant of the application was necessary in this case in the interests of public safety and for the prevention of disorder or crime, and consequently there was no breach of Article 8.

[38]As to Article 6, the following is provided:(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

[39]A full rehearsal of the provisions of Article 6 demonstrates that these provisions will only have relevance at the time of trial, and they cannot assist the applicant at this stage. Therefore, in my judgment, it is simply premature to raise submissions under this Article.

[40]In developing arguments under the Convention, the applicant particularly relied on the case of Niemetz v Germany 16 EHRR 97 . Before leaving this subject, it should be stressed that the distinctions between Niemetz and the instant case are substantial. In Niemitz the offence was minor, the warrant was drawn in wide terms and referred to documents without limitation and was not accompanied by any procedural safeguards, such as the involvement of an independent lawyer. Here, the offence is serious, the information sought is precisely identified, and there is the protection of an independent lawyer. I do not consider that an analysis of the case of Niemetz provides the applicant with any real assistance. CONCLUSIONS

[41]There is no doubt that this special procedure is a serious inroad upon the liberty of the subject. As Lloyd LJ emphasised in R v Maidstone Crown Court ex parte Waitt , it is of cardinal importance that judges should be scrupulous in discharging their responsibilities when this procedure is used. In particular, the reasons for authorising the seizure must be made clear and applications without notice must be fully justified. In my judgment, all of these important requirements were met in this case.

[42]I observe that the information sought is not simply confined to a telephone number. It is necessary, in my judgment, for the police to be able to make the links between the telephone calls made on certain dates and NH. This may involve a consideration of part of the criminal diary, attendance notes and other such documents which are contained in the files as to names, dates and numbers. This work can and should be undertaken by an independent lawyer to ensure in the result that material covered by legal professional privilege is not incorrectly disclosed. It is only by applying that filtering system that the right information can be isolated and provided to the police. In my judgment, the learned judge plainly had sufficient material before him to justify the grant of this application. He did not misdirect himself in the sense of considering irrelevant matters or not considering relevant matters. He applied the law correctly and explained his decision clearly in the reasons he gave. In those circumstances, I consider his grant of the warrant cannot be faulted and I would dismiss this application.

LORD JUSTICE ROSE: I agree that, for the reasons given by my Lord, this application must be dismissed.

[44]I add this for the avoidance of doubt, something that I said at the beginning of these proceedings, there must be no report of this case which identifies either NH or AH until after the conclusion of the trial of NH, which is imminent, or until further order by this court.

[45]MISS STUDD: My Lord, the issue of costs arises. Unfortunately, a schedule has not been served in this case, but I wonder if your Lordship would make an order that the claimant pay the defendant's costs to be subject to detailed assessment if not agreed.

LORD JUSTICE ROSE: Well, you are the interested party, are you not?

[47]MISS STUDD: Yes, sorry, to pay the interested party's costs.

LORD JUSTICE ROSE: Mr Sharpe?

[49]MR SHARPE: Well, my Lord, we served notice on the interested party, they chose to attend. I suppose we had the choice not to have served notice on them --

LORD JUSTICE ROSE: I do not think you could, if you hoped to escape judicial sanction.

[51]MR SHARPE: I am sure. In that event we would have served notice. It is a matter of some public importance. Your Lordships felt the need to deliberate on it and provide certain guidance about what should be done in the event of these bags being opened. Without that guidance there might have been a vacuum of understanding, I suppose. That is as far as I can take it, my Lord.

LORD JUSTICE ROSE: Thank you. The applicant will pay the Chief Constable's costs to be taxed failing agreement.

LORD JUSTICE ROSE: Anything else?

[54]MR SHARPE: No. (The court adjourned)

[55]MR SHARPE: My Lord, I apologise for not raising this matter before your Lordships rose. The fault is totally mine and my lack of understanding of the correct procedure. The claimant would like time to consider the possibility of appealing this decision.

LORD JUSTICE ROSE: They would like time to consider the possibility of appealing?

[57]MR SHARPE: That is right, yes.

LORD JUSTICE ROSE: Are you asking us for leave to appeal?

[59]MR SHARPE: I am, yes.

LORD JUSTICE ROSE: That is rather different.

[61]MR SHARPE: I am being honest and straightforward in the process that is going to occur.

LORD JUSTICE ROSE: Where do you contemplate the appeal would go, as a matter of interest?

[63]MR SHARPE: My Lord, I would have thought the House of Lords.

LORD JUSTICE ROSE: A necessary prerequisite for that would be a certificate of a point of law of general public importance.

[65]MR SHARPE: My Lord, yes.

LORD JUSTICE ROSE: And as this is an appeal against the exercise of discretion in particular circumstances, there might be some difficulty in drafting such a point.

[67]MR SHARPE: If I could expand the point, my Lord, the point is this. The implications of this decision are going to have an effect potentially for all practising criminal solicitors in this country in the advice they give to clients about the reception of contact details from those clients.

LORD JUSTICE ROSE: Do you have a draft question?

[69]MR SHARPE: My Lord, I do not have a draft question, no.

LORD JUSTICE ROSE: The trial is due to start in January, is it not?

[71]MR SHARPE: The present start date is, I think, 28th January, 27th.

LORD JUSTICE ROSE: This is not a case in which any extension of time in relation to an application for a certificate would be appropriate.

[73]MR SHARPE: If your Lordships would give me a short period I would consider the drafting of a question.

LORD JUSTICE ROSE: We will give you ten minutes.

[75]MR SHARPE: I am grateful. (The court adjourned for a short time)

[76]MR SHARPE: My Lord, I am grateful for the time. We have two questions. The first question is this: "Whether it is appropriate that under specific circumstances the police should be allowed access to contact details held by solicitors. Those details --

LORD JUSTICE ROSE: Full stop then "Those details ...?

[78]MR SHARPE: Yes. "Those details having previously been provided by clients facing pending prosecutions".

[79]The second question: "Once those details are disclosed whether it is appropriate that the solicitor's client files can then be examined to match up contact traffic between solicitor and client on specific days".

LORD JUSTICE ROSE: Thank you.

[81]We decline to certify either of those questions. Neither of them raises a point of law of general public importance arising from this case. Thank you.