Kirkup v Director of Public Prosecutions [2003] EWHC 2354 (Admin)

Case No CO/3007/2003[2003] EWHC 2354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 3 October 2003
Strand
London WC2
B E F O R E:
MR JUSTICE JACKSON
MR JUSTICE SILBER
Between
JOHN MATHEW KIRKUPClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR IAN WISE (instructed by Bird & Co, Lincolnshire NG31 6SE) appeared for CLAIMANTMR ADAM PEARSON (instructed by CPS Lincolnshire LN1 3DF) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Judgment
[1]MR JUSTICE JACKSON: This judgment is in six parts, namely: Part 1: introduction. Part 2: the facts. Part 3: the appeal by way of case stated. Part 4: the relevant legal principles. Part 5: application of those principles to the present case. Part 6: conclusion. Part 1: Introduction[2]This is an appeal by way of case stated against a decision of Grantham Magistrates' Court convicting the appellant of failing to provide a specimen of breath, contrary to section 7 of the Road Traffic Act 1988.[3]The statutory provisions relevant to this appeal are as follows. Section 5 of the Road Traffic Act 1988:
"(1) If a person . . . (b) is in charge of a motor vehicle on a road or other public place after consuming so many alcohol that a proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence. Section 7 of the Road Traffic Act 1988: "(1) In the course of an investigation into whether a person has committed an offence under [section 3A, 4] or 5 of this Act, a constable may, subject to the following provisions of this section and section 9 of this Act, require him -- (a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or (b) to provide a specimen of blood or urine for a laboratory test . . . (6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence."
[4]Section 58 of the Police and Criminal Evidence Act 1984 provides:
"(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time . . . (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section."
[5]Section 78 of the Police and Criminal Evidence Act 1984 provides:
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
[6]Pursuant to section 66 of the Police and Criminal Evidence Act 1984, the Secretary of State issued Codes of Practice in connection with the conduct of police officers investigating suspected offences. Paragraph 6 of Code C provides:
"6.1. Unless Annex B applies, all detainees must be informed that they may, at any time, consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available from the duty solicitor . . . "6.5. The exercise of the right of access to legal advice may be delayed only as in Annex B. Whenever legal advice is requested, and unless Annex B applies, the custody officer must act without delay to secure the provision of such advice . . ."
[7]Paragraph 6.6 of Code C provides that, subject to specified exceptions, a detainee who wants legal advice may not be interviewed until he has received such advice.[8]Article 6 of the European Convention on Human Rights, set out in schedule 1 to the Human Rights Act 1998, provides:
"6.1. 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 . . . "6.3. 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; . . . "
[9]Having set out the various provisions which are relevant to the issues of law arising, I can now turn to the facts of the present case. Part 2: The Facts[10]At 10.10pm on 7 July 2002, a police officer, namely Section Officer Cox, saw the appellant in the driver's seat of a BMW car which was parked in a car park in Grantham. After a brief conversation, Section Officer Cox arrested the appellant for being in charge of a vehicle whilst unfit through drink. Section Officer Cox then escorted the appellant to Grantham Police Station, arriving at 10.30pm. The custody suite was busy that night. Section Officer Cox and the appellant had to wait in the holding area of the police station for about half an hour before seeing the Custody Sergeant. Whilst they were in the holding area the appellant told Section Officer Cox that he wished to have legal advice.[11]In due course, Sergeant Graham, the Custody Sergeant, became available to deal with the appellant's case. She was given the relevant details. At 11pm she authorised the appellant's detention. Sergeant Graham then read out the appellant's rights to him, including his right to consult a solicitor at no cost. In response to this information, at 11.03pm, the appellant asked to consult the duty solicitor. By 11.05pm all procedures for booking the appellant into police custody were complete. The intoxilyser room at the police station became vacant at 11.07pm, when another suspect motorist had been dealt with. At 11.10pm two different things happened. First, PC Love, the operator of the Lion Intoximeter, took the appellant into the intoxilyser room. Secondly, Sergeant Graham telephoned the Duty Solicitor Call Centre both about the appellant and about the other suspect motorist.[12]The procedures in the intoxilyser room took only a few minutes. PC Love explained the procedure to the appellant. She then required the appellant to provide two specimens of breath. The appellant refused to do so. When asked if he had any medical reason for failing to provide a specimen, he said "no". At 11.20pm the appellant's refusal to provide two breath specimens was recorded on the custody record.[13]In the meantime, Mr Allen, the duty solicitor, responded to Sergeant Graham's call. He telephoned the police station at 11.15pm. He spoke to the other suspected motorist at 11.17pm. At 11.29pm, Mr Allen spoke to the appellant.[14]In the early hours of 8 July 2002, the appellant was charged with failing to provide a specimen contrary to section 7 of the Road Traffic Act 1988.[15]The appellant contested the charge. The matter was tried at the Grantham Magistrates' Court on 13 March 2003. The magistrates heard evidence from the police officers involved and from the appellant. They made findings of fact, as summarised above. On the basis of those facts the magistrates concluded (as was conceded by the prosecution) that the police had been in breach of section 58 of the Police and Criminal Evidence Act 1984 and paragraph 6.5 of Code C, in that there had been a delay in securing legal advice for the appellant. The magistrates considered that that breach was neither significant nor substantial. Accordingly, in the exercise of their discretion, the magistrates declined to exclude PC Love's evidence concerning her request for specimens of breath.[16]The magistrates convicted the appellant of failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988. They imposed a fine of £400 and ordered that the appellant's driving licence be endorsed with 10 penalty points.[17]The appellant was aggrieved by his conviction and now appeals to this court by way of case stated. Part 3: The Appeal by Way of Case Stated[18]The appellant requested the magistrates to state a case and they duly did so on 19 June 2003. The findings of fact made by the magistrates, so far as material to the issues in this appeal, have been set out in part 2 of this judgment. The magistrates recorded that, during legal argument, they had been referred to the decision of the Divisional Court in Kennedy v Crown Prosecution Service [2002] EWHC Admin 2297; 167 JP 267.[19]In paragraph 7 of the stated case the magistrates set out their conclusions on the crucial issue as follows:
"We were of the opinion that there was a breach of Section 58 of the Police and Criminal Evidence Act 1984 and Code C:6.5 of the Codes of Practice in that a solicitor was not contacted by the police immediately. We did not however consider the breach to be either significant or substantial. Mr Kirkup had indicated a desire to speak to a duty solicitor but given the circumstances prevailing in the custody suite that night we considered that the custody officer telephoned the duty solicitor call centre at the first opportunity available to her -- ie at 23.10 hours. We were satisfied that it was a busy night, that there was another person waiting to see the duty solicitor before Mr Kirkup and that no solicitor, duty or otherwise, was on the premises. It would not have been possible for the custody officer to predict the availability, immediate or otherwise, of the duty solicitor and therefore the procedure should not have been delayed. We were satisfied that the appellant had understood the procedure and the reasons for it. "
We therefore exercised our discretion not to exclude the evidence of the request for specimens of breath and accordingly we convicted the appellant."[20]In paragraph 8 of the stated case the magistrates formulated the following two questions for the opinion of the High Court. "(i) If, having found there was a breach of Section 58 of the Police and Criminal Evidence Act 1984 and the Codes of Practice with regard to the appellant's request to see a solicitor at the police station, were we correct in refusing to exercise our discretion to exclude the evidence of the request for a specimen of breath for analysis? "(ii) Were we correct in convicting the appellant for failing to provide specimens of breath for analysis by means of an approved device when required to do so pursuant to Section 7 of the Road Traffic Act 1988?"[21]By a notice of appeal dated 27 June 2003, the appellant appealed against his conviction on the ground that the magistrates erred in law when refusing, pursuant to section 78 of the Police and Criminal Evidence Act 1984, to exclude the evidence of the request by the police for a specimen of breath.[22]The appeal came on for hearing yesterday. Mr Ian Wise appears for the appellant. Mr Adam Pearson appears for the Director of Public Prosecutions, who is respondent to the appeal. The court is grateful to both counsel for their helpful skeleton arguments and oral submissions.[23]At an early stage in the hearing there was debate between counsel and the court as to when the appellant had first told Section Officer Cox that he wanted to consult a solicitor. The stated case is not as clear as it might be on this point. However, it has been agreed by both parties that the correct inference from the stated case is that the appellant told Section Officer Cox that he wanted to see a solicitor at about 10.45pm. We shall proceed on this basis. Part 4: The Relevant Legal Principles[24]Motorists who have been reluctant to provide specimens before receiving legal advice have generated a discrete body of case law. Prior to 1985 it was established that a motorist was not entitled to insist upon receiving legal advice before complying with a police request to provide a specimen. Any such refusal would constitute a breach of Section 8(7) of the Road Traffic Act 1972 (the predecessor of Section 7(6) of the Road Traffic Act 1988).[25]In DPP v Billington [1998] 1 WLR 435 the Divisional Court, hearing a group of four appeals, reviewed the position in the light of Section 58 of the Police and Criminal Evidence Act 1984 and paragraph 6 of Code C which by then had come into force. At page 551, Lloyd LJ (with whom Mann J agreed) stated the following conclusion:
"Under the Code a person who has asked to consult a solicitor in order to obtain his advice may not be interviewed until he has received that advice, save in certain circumstances. But there is nothing in the Code, just as there is nothing in the Act, to prohibit the taking of a specimen under section 8. Indeed, note 6C of the Notes of Guidance makes it clear beyond a peradventure that the section 8 procedure is not to be regarded as an interview for the purposes of paragraph 6.3 of the Code. But since the Notes for Guidance are not to be regarded as part of the Code, I put that consideration on one side. It is quite obvious merely from looking at paragraph 6 of the Code that the section 8 procedure is not in any sense an interview within the meaning of the Code. Indeed I do not understand counsel to have argued the contrary. "
I would hold that there is nothing in the Act itself, nor in the Code, to change or affect in any way the section 8 procedure as considered in the line of cases to which I have referred. I am glad to have reached that conclusion for two reasons, both of which were put before us by counsel for the Crown. First, it is, for obvious reasons, important that the procedure under section 8 in the police station should be gone through as quickly as possible. . . . " It is not necessary for present purposes to read out the second reason why Lloyd LJ was glad to reach the particular conclusion in that case.[26]In Kennedy v DPP [2002] EWHC Admin 2297; 167 JP 267, the Divisional Court reconsidered this area of law in the light of the Human Rights Act 1998. The judgment of Kennedy LJ (with whom Pitchers J agreed) contains an extensive review of ECHR and Commonwealth authorities. In paragraph 31 Kennedy LJ sets out his conclusions as follows:
"I accept that the right to a fair trial enshrined in Article 6 of the Convention can be said to be in play from the outset of a police investigation, but that right does not spell out a right to legal advice at any particular stage. For that it is necessary to go to domestic legislation which, to my mind, fully satisfies the requirements of Article 6. Section 58(1) of the 1984 Act entitles a person arrested and held in custody at a police station to consult a solicitor if he asks to do so, and where a request is made (as it was in this case, albeit in response to an invitation) he must be permitted to consult a solicitor as soon as is practicable (section 58(4)). The custody officer, it is said in the Code at C:6.5 'must act without delay' to secure the provision of legal advice. For present purposes I can ignore the special circumstances provided for by section 58 when delay and access to a solicitor is permitted. In such circumstances it may be necessary to consider the terms of Article 6. Whether there is good cause to restrict the right and whether the restriction is proportionate. But in the ordinary case how are the statutory requirements to be interpreted in reality? Having asked the question on the charge sheet in relation to legal advice is the custody officer entitled to go on with the remaining questions, or must he at once, as soon as the suspect indicates that he would like to have legal advice, pick up the telephone and ring the call centre. Plainly, as it seems to me, it is a question of fact and degree in any given case whether the custody officer has acted without delay to secure the provision of legal advice, and whether the person held in custody has been permitted to consult a solicitor as soon as is practicable. Where the matter under investigation is a suspected offence contrary to section 5 of the Road Traffic Act 1988, it is really conceded by Mr Jennings, and in my view rightly conceded, that in this jurisdiction the public interest requires that the obtaining of breath specimens part of the investigation cannot be delayed to any significant extent in order to enable a suspect to take legal advice. That, to my mind, means this -- that if there happens to be a solicitor in the charge office whom the suspect says that he wants to consult for a couple of minutes before deciding whether or not to provide specimens of breath, he must be allowed to do so. Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor in question is immediately available. But where, as here, the suspect does no more than indicate a general desire to have legal advice, I see no reason why the custody officer should not simply continue to take details and alert the solicitors' call centre at the first convenient opportunity. That will probably mean that, as the justices in this case found, the call centre should be alerted before the next stage of the investigation, but in this case if a call had been made at 3.30am it is inconceivable that the appellant would have received any legal advice prior to committing the offence contrary to section 7(6) of the 1998 Act. The breach of the statutory requirement was, as the justices found, neither significant nor substantial, and could not properly lead to any exclusion of evidence pursuant to section 78 of the 1984 Act."
[27]This authoritative statement of the law sets out the present position. These are the principles which we must apply in determining the present appeal. Part: 5 Application of Those Principles to the Present Case[28]The first issue to consider is the length of delay in this case which constituted a breach of section 58 of the Police and Criminal Evidence Act 1954 and the Code. Mr Wise, for the appellant, contended that it was 25 minutes; namely from 10.45pm to 11.10pm. Mr Pearson, for the respondent, contended that the delay was 7 minutes; namely from 11.03pm to 11.10pm.[29]In Kerawalla (Court of Appeal transcript 7 December 1990) the appellant was detained and questioned by customs officers in a hotel room. The Court of Appeal concluded that section 58 of the Police and Criminal Evidence Act 1984 did not apply to the appellant whilst he was held at the hotel. Beldam LJ, giving the judgment of the court, said this at page 14 of the transcript:
"Thus we think that the provisions of section 56 and section 58 are intended to apply where a custody officer, or, in a police station which is not designated, the appropriate officer, has authorised the accused's detention in custody. Thereafter he would ordinarily be regarded as being 'held in custody', and it would practicable to comply with the requirements laid down."
[30]It follows from Kerawalla that, in the present case, the failure of Section Officer Cox to seek a solicitor for the appellant between 10.45pm and 11pm did not give rise to a breach of section 58 of the Police and Criminal Evidence Act 1984. This conclusion is supported by the commentary on section 58 which appears at paragraph 15-210 of the current addition of Archbold (2003). This conclusion is also consistent with paragraph 6.5 of Code C. The second sentence of paragraph 6.5 requires the Custody Officer to secure the provision of legal advice. Such an obligation can only sensibly arise after the custody officer has carried out the formalities of authorising detention.[31]Mr Wise relies on the decision of the Court of Appeal in Sanusi [1992] Crim LR 43. Unfortunately no transcript of that decision is available, despite the efforts of both counsel and of the Criminal Appeal Office to obtain one. The summary of the judgment in the Criminal Law Review is brief. This case concerned the admissibility of an interview with a foreigner at a room in Gatwick Airport which was tantamount to a police station. So far as we can tell from the summary in the Criminal Law Review, the issues in that case are very different from those with which this court is concerned.[32]We now return once more to the facts of the present case. It appears from paragraphs 4(i) and 7 of the stated case that the period of delay which the prosecution conceded, and the magistrates accepted, gave rise to a breach of the statute and the Code was the 7 minute delay by the Custody Sergeant between 11.03pm and 11.10pm. We see no reason to disturb this finding or to take a different view as to the length of delay.[33]In our view, a delay of 7 minutes is so short a period of delay that it only just constitutes a breach of section 58 of the Police and Criminal Evidence Act 1984 and paragraph 6 of the Code. We note that in Campbell v DPP [2002] EWHC 1314 Admin, Goldring J held that the delay of 7 minutes in that case was so brief that it constituted a sufficient compliance with the statutory obligation. In the present case the prosecution are, of course, bound by the concession which they made in the Magistrates' Court. Furthermore, we must accept, and we do accept, the magistrates' finding that the delay in this case constituted a breach of section 58 and the Code. Nevertheless, the brevity of that period of delay is highly material when one comes to consider its impact on the criminal proceedings.[34]How does the guidance formulated in paragraph 31 of Kennedy v DPP impact upon the period of delay in this case? As Kennedy LJ pointed out in that paragraph, the public interest requires that the obtaining of breath specimens cannot be delayed to any significant extent in order to enable a suspect to take legal advice. In the following sentence Kennedy LJ says:
"If there happens to be a solicitor in the charge office whom the suspect says that he wants to consult for a couple of minutes before deciding whether or not to provide specimens of breath, he must be allowed to do so."
That sentence does not apply in the present case. There was no solicitor present in the police station.[35]In the next sentence Kennedy LJ says:
"Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor in question is immediately available"
. There has been considerable debate during the hearing yesterday as to whether this sentence is applicable to the facts of the instant appeal. In support of his submissions that this sentence does apply, Mr Wise, with the consent of the respondent, has explained to this court, on instructions, how the duty solicitor scheme now works. He has also helpfully produced a copy of the agreement or arrangement made between participating solicitors and the Legal Services Commission. In outline the procedure is this. When a suspect requires the duty solicitor, a police officer rings the Duty Solicitor Call Centre. This is a national call centre set up by the Legal Services Commission. The call centre then telephones a duty solicitor in the relevant area and asks him or her to contact the police station where the suspect is held. If the first solicitor whom the call centre contacts is unavailable, then the call centre will approach other solicitors who hold themselves available. Participating solicitors are expected to contact the client within 45 minutes of receiving a call from the Duty Solicitor Call Centre. Solicitors are expected to meet this target in at least 80 per cent of cases.[36]The evidence given by Sergeant Graham as to her experience of the Duty Solicitor Scheme (recorded in paragraph 3(B)(viii) of the stated case) is consistent with the account of the Duty Solicitor Scheme which Mr Wise gave to this court on instructions.[37]Against this background it can be seen that Mr Allen did remarkably well to telephone Grantham Police Station at 11.15pm on 7 July. It was by no means inevitable that a duty solicitor would respond so promptly. Furthermore, because of the way the Scheme operates, it is impossible to tell how soon a duty solicitor would have responded if Sergeant Graham had contacted the call centre 7 minutes earlier.[38]The situation, therefore, which prevailed between 11.03pm and 11.10pm was this. The appellant had asked to see the duty solicitor, as had another motorist previously arrested. There was no way of knowing how long it would take to receive a response from the duty solicitor after the call centre had been contacted. Furthermore, when a response did come, another motorist was first in the queue for talking to the duty solicitor. The duty solicitor, in those circumstances, could not be described as immediately available or known to be immediately available.[39]Let me now draw the threads together. In the light of authority, in particular Kennedy v CPS, there was no duty on the police to delay taking a specimen of breath until the appellant had obtained legal advice. The police were fully entitled to commence that procedure at 11.10pm. Furthermore, Sergeant Graham's delay of 7 minutes in telephoning the Duty Solicitor Call Centre was neither a significant delay nor a substantial one.[40]I therefore come to the conclusion that the magistrates' exercise of discretion under section 78 of the Police and Criminal Evidence Act 1984 cannot be faulted. There was indeed a breach of section 58 of the Police and Criminal Evidence Act and of section 6.5 of the Code. However, that breach was of such a nature that it was not appropriate to exclude PC Love's evidence concerning her request for two specimens of breath. Part 6: Conclusion[41]For the reasons set out in Part 5, the answers to the questions formulated by the magistrates in the stated case are as follows: Question (i): yes. Question (ii): yes.[42]It follows that the relevant evidence was rightly admitted and that the appellant was rightly convicted of the offence charged. This appeal is dismissed.

MR JUSTICE SILBER: I agree.

[44]MR WISE: My Lords, a number of matters arise. We saw yesterday that it was controversial, or at least unclear, as to when the duty arises to provide legal advice. The Kerawalla judgment that your Lordship has referred to clearly indicated, as has been set out in the judgment, but the indication, at any rate, from the Criminal Law Review report of Sanusi and the commentary in Zander's text book indicates that there is some debate at the Court of Appeal level on this point. Accordingly, we would submit that this is an issue that would be appropriate to resolve at a higher court and so we would wish to appeal the point as to when the right to legal advice arises.[45]Clearly, an appeal from this court in a criminal causal matter is by way of the "leapfrog procedure". That is, as your Lordship may recall, found in section 1 of the Administration of Justice Act 1960. If the appellant is to proceed, he needs both a certificate from this court and permission to appeal either from this court or from the House of Lords themselves. Accordingly, I would seek a certificate to be granted in this case and that leave to appeal be also granted. The certificate would, in our submission, properly be worded along the lines similar to the following -- clearly we have not had time to properly formulate this matter given that we have only just received your Lordship's judgment. We would say that, in the light of the conflicting Court of Appeal authority, does the right to legal advice pursuant to section 58 of the Police and Criminal Evidence Act and the Code of Practice to that Act -- does the right to legal advice arise when the accused person is detained by the police, or when the Custody Sergeant, or Custody Officer, formally authorises the accused person's detention? Your Lordships at least have the gist of the point. It may not be as well formulated as needs be, but you will have the point in any event. That is clearly an important point, my Lords, and your Lordships saw during the course of argument yesterday that it is a moot point and clearly an important point that requires resolution, and given that there are the two, apparently, conflicting authorities in the Court of Appeal, it would be appropriate for the leapfrog procedures to be invoked to resolve this issue, my Lord.

MR JUSTICE JACKSON: Yes, Mr Pearson?

[47]MR PEARSON: My Lord, I accept it is an important issue. It would be my submission that it has been settled by the case of Kerawalla. It is not clear, as in Sanusi, that the matter was in issue in Sanusi. Sanusi, in any event, must have been given without knowledge of the earlier decision of Kerawalla, and, in my submission, the position is clear, or at least tolerably so, given that both the commentary in Archbold and the way that Codes of Practice are drafted.[48]MR JUSTICE JACKSON: Thank you very much. Do you wish to say anything in reply, Mr Wise?[49]MR WISE: Merely that it is a reasonable presumption from the footnote in Professor Zander's book that Sanusi is conflicting with Kerawalla. Accordingly, your Lordships are entitled to have regard to what Professor Zander said.[50]MR JUSTICE JACKSON: In our view the law is clear on this matter. It is not appropriate either to issue the certificate sought or to grant leave to appeal, and we refuse to do so.[51]MR WISE: Very well, my Lord. On the question of costs, we have a representation order -- I do not know if your Lordships have seen this --[52]MR JUSTICE SILBER: I notice that you were not legally aided at the date the application was made, is that right?[53]MR WISE: Yes, my Lord. It appears that there is a new procedure in criminal case stated applications. Formerly it had been Civil legal aid which had been a curious quirk of the system. That has been changed since the Criminal Defence Service was established. Now what happens is that the solicitor issues the proceedings and then subsequently a representation order is sought. A representation order was duly granted by Maurice Kay J on 8 September, and it was backdated and given effect from 27 June.

MR JUSTICE SILBER: So that covers all the proceedings, does it?

[55]MR WISE: Indeed so, my Lord. But it is unclear to me whether we need a detailed assessment pursuant to this order, but in the event that I need one, can I invite your Lordships to grant an assessment of the appellant's costs under the representations order -- I think is properly the way to phrase it, my Lord.

MR JUSTICE JACKSON: Certainly.

[57]MR WISE: Very Grateful.

Cited in 2 later judgments