Customs & Excise, R (on the application of) v Nottingham Magistrates' Court [2004] EWHC 1922 (Admin)

Case No CO/482/2004[2004] EWHC 1922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 14th July 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE TREACY
Between
THE QUEEN ON THE APPLICATION OFClaimantHER MAJESTY'S COMMISSIONERS OF CUSTOMS & EXCISEClaimantNOTTINGHAM MAGISTRATES' COURTDefendantTIMOTHY THEOBALDInterested Party
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)
RICHARD SUTTON QC and TIMOTHY HANNAM appeared for CLAIMANT for The DEFENDANT was not representedJAMES LEWIS QC and SABA NAQSHBANDI appeared for INTERESTED PARTYJ U D G M E N TWednesday, 14th July 2004
[1]MR JUSTICE TREACY: This is an application for judicial review. The claimant is Her Majesty's Customs & Excise ("the Customs"). They challenge the decision of District Judge Zara, sitting at Nottingham Magistrates' Court, on 11th December 2003 to stay proceedings against Timothy Theobald, the interested party, as an abuse of process.[2]Mr Theobald faces a single charge of conspiracy to defraud the public revenue between 1st January 1998 and 13th November 1998. It is alleged that the Financial Director of European Cellular Trading plc, Mr Theobald, was party to fraudulent manipulation of the VAT regime so as to obtain mobile phones at a lower price than competitors and thus gain a market advantage. It is asserted that the loss to the Revenue is in the region of £14 million.[3]There is a tortuous history to this matter. Mr Theobald was initially committed to the Crown Court following an old-style committal before Nottingham Magistrates' Court in December 2001. Those committal proceedings were subsequently quashed by order of this court in July 2002 following an application for judicial review. Proceedings were recommenced in the Nottingham Magistrates' Court in September 2002. The claimant indicated it would be seeking a fresh committal.[4]In October 2002 Mr Theobald made application to the District Judge for disclosure by the Crown of material for which legal professional privilege was claimed by the Crown on the ground that such material might be relevant to defence submissions to exclude Mr Theobald's interview under section 76 and section 78 of the Police and Criminal Evidence Act. Further, it was said that such material might be relevant to an abuse of process argument. The District Judge refused that application. Mr Theobald sought judicial review of that decision. The matter came before this court in March 2003. This court adjourned the application for the District Judge to consider the disclosure issue, and also to consider the abuse of process argument. This court was persuaded that matters could be expedited if the District Judge assumed jurisdiction to deal with the point, including the abuse of process matter. In May 2003 the District Judge ruled that there was no abuse of process. He also ruled that the interview asserted to contain a confession was admissible.[5]The matter again returned to this court on 7th July 2003. Mr Theobald was granted permission for judicial review in relation to the judge's ruling on the interview. The judge's decision was quashed and this court directed that the committal proceedings be recommenced in mid-July 2003. This court indicated that the District Judge should reconsider the question of section 76 admissibility in relation to the interview in accordance with the decision in R v Barry [1992] 95 Cr App R 384. These resumed proceedings have given rise to the fresh applications which have come before this court. The resumed proceedings took place in Nottingham on various dates between mid-July 2003 and mid-December 2003.[6]In November 2003, having ruled on a number of preliminary issues, the District Judge heard an abuse of process argument on behalf of Mr Theobald. It was based on four grounds:(1) that the prosecution had deliberately obtained privileged material belonging to the defendant, and its conduct was such that the proceedings ought to be stayed;(2) the conduct of the Customs had rendered the issue of prejudice beyond the court's determination (the non-justiciability point);(3) that the existing prosecution team were, in effect, tainted by their knowledge of the privileged material and they should withdraw;(4) the prosecution had failed in its duty to preserve evidence in the case.[7]On 11th December 2003 the District Judge rejected submissions (1), (3) and (4) above, but it stayed proceedings as an abuse of process on ground (2), that is the non-justiciability point.[8]The facts in relation to this matter: In September 2003, whilst the resumed committal proceeding were still ongoing, Mr Theobald, or his solicitors, became aware that the Customs had been in possession of potentially legally privileged material of his. They learned that because they were invited to attend at Birmingham Crown Court as an interested party in a PII hearing in the case of Connor, a man facing trial in relation to the same allegations which Mr Theobald faces. The Customs were in possession of copies of a 19-page attendance note made by Mr Theobald's solicitor, a Mr Tammer, in connection with these criminal proceedings.[9]In the Birmingham proceedings in the case of Connor HHJ Griffith-Jones ruled that the attendance note was Mr Theobald's privileged material. It also transpired that the Customs held various notes, reports and other documents, referred to as "the derivative material", which had been compiled by the Customs and police as a result of investigations based on the attendance note. After the hearing the Customs handed over these documents to Mr Theobald's solicitors.[10]We should record that we have not seen the contents of the attendance note and are in no position to judge its significance.[11]It was in this way, having learned of the possession by the Customs of privileged material, that in November 2003 Mr Theobald applied to the District Judge to stay the proceedings as an abuse of process.[12]Before the abuse argument proper got underway the District Judge made some preliminary findings. He found, firstly, that the abuse hearing would be held in private because of the nature of the material which was likely to be referred to. In those circumstances, reference to the material would not amount to a waiver of privilege.[13]Next, he held that he had jurisdiction to deal with the question of abuse. Both sides accepted that, but had raised arguments as to why or why not he should assume jurisdiction. He decided to accept jurisdiction.[14]Further, he held that he was not bound by the findings of HHJ Griffith-Jones in relation to the existence of legal professional privilege in the Connor case. He found that he was free to make his own decisions in relation to the attendance note and the derivative material.[15]Further, he held that legal professional privilege attached to the whole of the attendance note. He held that it was Mr Theobald's privilege, but he also held that the Customs were free to adduce secondary evidence of the content of the note by means of the derivative material or by direct evidence, if such evidence was relevant to any issue in the proceedings. In the course of this ruling, he recorded that although he had only read a short, edited extract from the attendance note, he had seen all of the derivative material. In the course of that ruling, he observed at paragraph 12:
"In this case the documents are not yet in evidence."
[16]He further ruled that he would not entertain "a half-time submission" by the Customs in the abuse hearing, after which, if unsuccessful, they could then call evidence. He was referred in this context to observations of Lord Mustill in the case of Tan v Cameron [1992] 2 AC 205 at pages 225E and 225G. These were observations were made in the context of an abuse of process hearing which had been based on delay.[17]At page 225E of the report, Lord Mustill said:
"This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair."
[18]His Lordship continued at G:
"Their Lordships ... consider that the district judge was in fact correct to take into account all the factors together, without reference to any burden of proof other than the heavy burden which always rests on the defendant who seeks a stay on the grounds of delay."
[19]Having heard the argument, the District Judge ruled that it was for Mr Lewis QC for Mr Theobald - "to go first. This is your application, but I will not entertain a half time submission. I am not persuaded that I have the power to do that."[20]In other words, he was putting the parties on notice that he would decide the abuse issue on the totality of such evidence as was adduced before him in the course of the application. He would only rule when evidence was closed.[21]The hearing proper took a somewhat unexpected course. Neither party called evidence which in the course of the preliminaries to the hearing proper they had indicated would be available to them to call. Leading counsel for Theobald submitted that, having been in possession of privileged material, it was for the Customs to provide an explanation, and failure to provide such an explanation should enable the court to draw an adverse inference from their silence. Counsel then submitted no evidence other than an admission made by the Customs that, pursuant to the order of HHJ Griffith-Jones, copies of the attendance note had been provided to representatives of Mr Theobald. The admission should be read in full so that the extent to the evidence before the District Judge can be appreciated. The admission was in these terms:
"1. It is admitted that on the 29th September 2003 at the Birmingham Crown Court, the following documents were handed to Ayesha Bramwell, of Tarlo Lyons, by Tim Hannam (counsel instructed by HMC)" -- that is the Customs -- "and Peter Norcliffe (case officer) in pursuance of an order made by his Honour Judge Griffith-Jones on the 26th September 2003 and an agreement signed by both parties: (i) five copies of a five-page extract (pages 5-9) of the attendance note dated 24th May 2001 made by Marc Tammer ("the attendance note") (ii) a sealed envelope (signed by DM Cauldwell) containing a complete copy of the attendance note (iii) a sealed envelope (signed by M Aspinall) containing a complete copy of the attendance note, save for pages 5-9. 2. It is further admitted that on the 2nd October 2003 three copies of a five-page extract (pages 5-9) of the attendance note were handed to Mr Luke Ponte (counsel instructed on behalf of Mr Theobald) by Tim Hannam in the presence of Mr Norcliffe. 3. It is further admitted that by letter dated the 10th October 2003 signed by Christine McGregor, senior prosecuting lawyer for HMC, a copy of the five-page extract (pages 5-9) of the attendance note was returned to Tarlo Lyons, solicitors instructed by Mr Theobald."
[22]That written admission was dated 20th November 2003 and signed by leading counsel for Mr Theobald and Customs. That admission was the only evidence placed before the court on behalf of Mr Theobald. The Customs then called no evidence. In the light of that, the hearing was adjourned by the District Judge. Both sides submitted further skeletons to him, and on the resumed hearing there followed two-and-a-half days of legal argument. Eventually, on 11th December 2003 the District Judge ruled in the way that we have briefly indicated at the start of this judgment.[23]The Customs raise various grounds, five in all. They assert that the District Judge acted ultra vires, usurping the jurisdiction of the Crown Court. Secondly, they submit that the District Judge erred in law in ruling that the Customs had no right to call evidence in the event of an unsuccessful submission at the close of the evidence called on behalf of Mr Theobald. Thirdly, they assert that the District Judge erred in failing to take into account matters which were properly admissible and relevant to his decision. Fourthly, they say he took into account matters which were irrelevant to his decision. Finally, they assert that the decision was illogical and unreasonable and one which no court, properly directing itself, could have reached.[24]We will deal with each of those grounds in turn. The issue as to jurisdiction is plainly the one which needs to be considered first. The Customs' contention is that it is not for the committing court to anticipate the functions of the Crown Court or to seek to exercise the Crown Court's powers to secure a fair trial. They say that once the District Judge had rejected the allegation of impropriety by the Customs (as we shall see that he did), he was no longer in a position of considering whether it would be unfair to try Mr Theobald; he was considering whether Mr Theobald could obtain a fair trial. They say that that was beyond his powers. They submit that the District Judge's only remit was to ensure a fair committal, and in considering whether he could obtain a fair trial he was trespassing into the preserve of the Crown Court.[25]For Mr Theobald it is asserted that the District Judge did have jurisdiction to stay the proceedings on the basis that no fair trial is possible. In that context, counsel has referred to stays granted in other cases on the basis of delay or missing exhibits as an illustration of the jurisdiction of the Magistrates' Court.[26]In our judgment it is necessary to go to the words of Lord Griffiths in R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 98 Cr App R 114 at pages 126 and 127, where he said at page 126:
"Your Lordships have not previously had to consider whether Justices, and in particular committing Justices, have the power to refuse to try or commit a case upon the grounds that it would be an abuse of process to do so. Although doubts were expressed by Viscount Dilhorne as to the existence of such a power in DPP v Humphrys [1976] 63 Cr App R 95, there is a formidable body of authority that recognises this power in the Justices."
[27]Later on the same page, his Lordship continued:
"This power has most comprehensively been considered and affirmed by the Divisional Court in Telford Justices ex parte Badham [1991] 93 Cr App R 171. Provided it is appreciated by magistrates that this is a power to be most sparingly exercised, of which they have received more than sufficient judicial warning ... it appears to me to be a beneficial development and I am unpersuaded that there are any sufficient reasons to overrule a long line of authority developed by successive Lord Chief Justices and judges in the Divisional Court who are daily in much closer touch with the work in the Magistrates' Court than your Lordships."
[28]He continues a little later:
"I would accordingly affirm the power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial for the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures."
[29]It seems to us that there was jurisdiction in the District Judge acting in committal proceedings to deal with this matter, albeit that the authority cited shows that it is a jurisdiction to which careful scrutiny should be given before embarking on the exercise of hearing an abuse of justice application.[30]At an earlier stage of these proceedings this court had encouraged the District Judge to assume jurisdiction in the interests of expedition and justice. Accordingly, we do not think that this District Judge in this application was wrong to embark on the hearing. Indeed, as we have noted earlier, both counsel agreed before him that he had jurisdiction to do so if he chose to assume it.[31]We turn next to the ground that the District Judge was wrong in ruling that the Customs had no right to submit no case at the close of evidence called for Mr Theobald. It needs to be understood that the District Judge's ruling in no way prevented the Customs from calling evidence. His ruling was that he would not, in effect, give to the Customs the opportunity to submit no case to answer which the defendant in a criminal trial has at the end of the prosecution case. Once Mr Theobald had proffered the evidence upon which he was to rely, it would have been perfectly open to the Customs to call evidence to explain how it came into possession of the privileged material and what it had done with it, and other matters germane to the abuse application. The Customs chose not to call evidence, being fully aware that it was not being afforded the opportunity of a half-time submission. Its failure to adduce evidence in response to Mr Theobald was not caused by any ruling of the District Judge that it could not make a half-time submission. It was caused by its legal representative's own decision not to call evidence, having seen and heard what Mr Theobald had relied on and in the knowledge that the Customs had to make its decision without the benefit of a ruling on a half-time submission.[32]We therefore do not consider that the Customs have grounds for complaint against the District Judge. They chose not to call evidence, the District Judge did not debar them. Further, we do not consider that the hearing of an abuse of process argument can be equated to the hearing of a criminal trial, where a defendant has a right to submit at the close of the prosecution case.[33]As Lord Mustill observed in the passages cited in Tan v Cameron, it is a decision to be made in the round, bearing in mind the burden which lies on the defendant to make good his assertion of abuse. It involves a single appreciation of what is or is not unfair. The better analogy, we consider, is with a voir dire, where either side considers what material to place in front of the judge before his ruling is given. We conclude that the District Judge was entitled to rule as he did on the conduct of the proceedings.[34]The next ground is that the District Judge failed to take into account matters properly relevant and admissible. In essence, the Customs' complaint is that the District Judge did not have regard to what he had learnt about the nature of the privileged material, and the fact that the Customs had been advised that part of it was not privileged by reason of the rule in R v Cox and Railton in the course of the preliminary rulings. They submit that the District Judge wrongly limited himself by holding at paragraph 6 of his ruling on the abuse of application as follows:
"I am therefore in a slightly unusual position. I am required to make a ruling of this application without having heard any evidence as to the facts which, it is alleged, constitute the abuse of process. All I have is the admission and such inferences as I may properly draw from it. What inferences can properly be drawn has been the subject of considerable argument before me. I was also invited to make a ruling as to whether I could treat as evidence the fact that the relevant part of the attendance note related to an allegation of ..." (detail withheld by order of this Court). "
I declined to rule on this issue at that time but must now do so. I should make it clear that I have not read the attendance note, although I have seen what has been described by the prosecution as a heavily redacted copy of part of the first page of it. I have also see what has been described as 'derivative material', comprising documents which apparently came into existence following receipt of the attendance note by Customs. None of those documents has been exhibited by a witness or been made the subject of a section 10 admission. I have come to the view that I am limited to the evidence that was adduced before me, namely the section 10 admission. That establishes the existence of the attendance note and I have already ruled that the attendance note is the subject of legal professional privilege. Everything else must be a matter of inference. I must therefore put out of my mind anything I may have been told about the contents of the attendance note."[35]We begin by reminding ourselves that in one of the preliminary rulings to which we have been referred, the District

Judge had pointed out:

"The documents are not yet in evidence."
Further, he had only seen a redacted part of the attendance note in the relevant preliminary hearing in order that he could determine whether it was covered by legal professional privilege. Plainly, if it was not so covered, Mr Theobald's abuse argument would be seriously, if not fatally, compromised. Additionally, the District Judge had ruled that the Customs could, if relevant to an issue, adduce secondary evidence in relation to the attendance note. By deciding not to call evidence, they deprived themselves of the opportunity to do this.[36]We consider that in the circumstances where the abuse point had to be determined on the evidence before the District Judge, and where the parties had not made any admission or agreement that material seen for the purpose of the preliminary rulings could be treated as evidence for the purpose of the determination of the abuse argument, the District Judge was correct to take a strict view of what he could consider. Although both parties had earlier indicated an intention to put their cases forward with evidence, in the event it will have become very clear to all that the course in fact adopted by Mr Theobald was to deal with the matter in a very short and narrow evidential compass.[37]It was then for the Customs to decide how, if at all, to respond in terms of adducing evidence. They chose not to adduce any material, or to clarify what material the District Judge intended to consider.[38]In those circumstances, although evidence in relation to the attendance note and its contents could have been produced, none was. We do not consider that the District Judge was in error. He had not, in the words of the application, deprived himself of material which would have enabled him to assess any question of prejudice which might result from the prosecutor's possession of the attendance note. He had, in reality, been deprived of that material by the decision of the parties not to adduce more extensive evidence before him.[39]We turn, then, to the fourth ground which asserts that the District Judge wrongly took irrelevant matters into account. The Customs complain that the District Judge wrongly accepted Mr Theobald's argument that no inference should be drawn against him for not adducing the attendance note documents in evidence because to do so would be to offend the hearsay rule. This argument had been made on behalf of Mr Theobald in response to the Customs' assertion that the defence should have produced the material in order to provide a basis for a claim of prejudice and that, by reason of their failure to do so, an inference could be drawn against them. The Customs pointed out that the District Judge had permitted the hearing to be held in private and had ruled that a revelation of the documentation, or its nature, would not amount to a waiver of privilege.[40]The defence, in response to this point, rely strongly on the decision of Newman J in the case of R v Sutherland and Others, a case at Nottingham Crown Court, unreported, but in transcript dated 29th January 2002. It seems to us that this issue is best considered as part of the next ground of appeal. That further ground raises the question as to whether the decision made by the District Judge to stay these proceedings as an abuse was Wednesbury unreasonable.[41]In the course of argument before us both sides appear to accept that this issue crystallises as one of whether the combination of the section 10 admission, together with the failure of the Customs to adduce any evidence was sufficient for the District Judge reasonably to conclude that an issue of prejudice arose which was non-justiciable as a result of the Customs' conduct.[42]Mr Lewis QC, in supporting the District Judge's ruling, placed heavy reliance on the case of Sutherland. Accordingly, it is necessary to cite from the District Judge's ruling. At the end of paragraph 21 he made an important ruling which sets the context in which the rest of his decision has to be viewed. He said in relation to the obtaining of the attendance note by the Customs:
"I have already found that mere possession of the document is not per se unlawful and that the burden of proof does not shift from one party to another. The only evidence as to the conduct of Customs is the existence of a number of copies of the document. I know from the cases that there are many examples of circumstances where one side gains possession of privileged documents and that such possession does not amount in itself to grounds for staying the case as an abuse. Indeed, there are examples in the cases cited to me where the prosecution has been allowed to make use of such documents. I come to the conclusion that there is insufficient evidence before me to draw any evidence of impropriety. Accordingly, I draw no adverse inference from the prosecution's failure to call evidence."

The judge then turned to the non-justiciability point, and continued in this way at paragraph 22:

"I move on to Mr Lewis's second ground. This depends largely on the first instance decision of Newman J in the unreported case of Sutherland. This was a case where the police had, without authority, made covert recordings of conversations between defendants and their solicitors. Even though no use had been made of the relevant material (although that was not necessarily accepted), Newman J ruled that there could not be a fair trial and he accordingly stayed the indictment. In the course of a lengthy judgment in which he analysed many of the decisions which have been cited to me, Newman J ruled that the conduct of the police had effectively rendered the inquiry non-justiciable. The inquiry to which he was referring was to ascertain whether or not use had been made of the privileged material. This could not be done partly because it would involve hearing evidence from police officers whose credibility, as a result of their conduct in the case, was already in doubt and because it would involve the defendants waiving their privilege. 23. Mr Lewis pointed out that in this case the court does not know the contents of the attendance note, does not know who has read it, how it was obtained and, accordingly, cannot assess the extent of the prejudice potentially suffered by the defendant. It was, he asserted, the conduct of the prosecution that had made the issue non-justiciable. He also pointed out that in Sutherland there was sworn evidence from the officers, for what it was worth, that no use had been made of the material. Here there was nothing."
[44]The District Judge continued by reciting the submissions of counsel for the Customs, that it was for the defence to adduce evidence of prejudice and that their failure to do so meant that there could be no issue of non-justiciability. He observed that the Customs had sought to distinguish Sutherland on a number of grounds and, in particular, laying emphasis on the fact that Sutherland involved a case of intentional obtaining of privileged material arising out of covert interception.[45]At paragraph 27 the District

Judge said this:

"The real question for me to decide on this ground is whether I can distinguish Sutherland. Although arguably of lesser authority than Mid Sussex Justices, it is a much longer judgment with a more comprehensive analysis of the relevant law. The key issue is the significance, if any, of the fact that it involved a deliberate and flagrant breach of rules by the officers. I have already ruled that mere possession does not equate to wrongdoing, however here the issue is one of potential prejudice. Unlike the Divisional Court in Mid Sussex Justices, I am not in a position to assess the risk of prejudice and dismiss it. In that case the court had before it not only the privileged material but the prosecution's response to it. Here I have neither. Even if I assume no wrongdoing by the prosecution in their obtaining of the attendance note, I cannot exclude the possibility of prejudice and can see no obvious way in which the trial process can guard against it. Going back to Beckford, if I am not satisfied on the balance of probabilities that there can be a fair trial, I must stay the proceedings. I accordingly do so."
[46]In so ruling, the District Judge was plainly very heavily influenced by the decision in Sutherland, where, as we have seen, Newman J ruled that deliberate police misconduct created a situation in which, having referred to the defendant's absolute right not to waive legal professional privilege, he concluded in these terms at paragraph 85 of the judgment:
"It follows, therefore, that in my judgment the consequence of the police having deliberately obtained confidential information in the course of an inquiry has led to a position in which they have compromised the trial process. In my judgment, the non-justiciability of the consequences of the misconduct derive from the character of the principle in play, namely the fundamental principle that a person cannot be deprived of his right to private consultation with his solicitor in connection with threatened criminal proceedings. It cannot therefore lie in the mouth of the police to assert that even though they have acted with flagrant disregard of the fundamental right, no harm or prejudice has ensued. By their own conduct they have put that issue beyond the Court's determination."
[47]The Customs submit:(1) that the District Judge wrongly inferred prejudice in the absence of material to support that inference;(2) that the District Judge's ruling on abuse was inconsistent with his preliminary ruling, that the prosecution could adduce evidence of the content of the attendance note, subject to relevance;(3) that he wrongly reversed the burden of proof in the passage quoted at the end of paragraph 27 of the District Judge's judgment; and(4) that he had erred in placing too much reliance on Sutherland, which was distinguishable.[48]Counsel for Mr Theobald responded that the Customs had made the issue of prejudice non-justiciable by failing to provide any evidence to explain how it had come into the possession of the material, who had seen it, what had been done with it, and what steps had been taken to ensure that no prejudice had been caused.[49]He further submitted that Sutherland is relevant despite having been decided on a different factual basis, because it illustrates how an issue may become non-justiciable. Here, counsel said, the Customs had called no evidence and it had put the court in the position of having no material with which to assess prejudice. Reliance was also placed on paragraph 86 of Newman J's judgment, where he said:
"So that this ruling is not misunderstood, I should like to emphasise that nothing I have said is to be taken as covering the case of inadvertent and unintentional acquisition of privileged material in the course of properly authorised covert surveillance. The mischief in such a case, the wrong in such a case, if it occurs, will be cured by the adoption of conduct which is completely transparent."
[50]His Lordship then went on to suggest steps which might be taken to bring about transparent action which would obviate the difficulties.[51]In addition, we were referred to the observations of Lord Lowry in R v Inland Revenue Commissioners ex parte Coombs & Co [1991] 2 AC 283 at page 300F, where his Lordship said:
"Another fact is the sparseness of the evidence adduced by the Revenue. In our legal system generally the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case."
[52]Similar observations were made in the Privy Council decision of Gibbs v Rea [1998] AC 786. It is to be noted that each of those decisions is predicated upon evidence, tending to establish the plaintiff's claim, having been advanced in the first place. The section 10 admission of possession, copying and return of the copies of the attendance note is, to our mind, neutral evidence, which does not of itself show malpractice or abuse of Mr Theobald's position. Further, neither of the two authorities referred to says that a court must, as opposed to may, convert such evidence into proof of the plaintiff's case.[53]The case of Sutherland, it will be seen, is a very different situation from the case confronting the District Judge. The District Judge had found, as we conclude he was reasonably entitled to, that there was no impropriety on the part of the Customs in their possession of the attendance note. Given the paucity of evidence available to him, this was a reasonable conclusion for him to draw. Thus, the very platform which founded Newman J's decision that the issue before him was non-justiciable is absent here. It would be wrong, in our judgment, to make a leap from the facts of the specific decision in Sutherland to some more general principle that where a prosecutor comes into possession of legally privileged material by whatsoever means, the defendant can automatically rely on his privilege and assert without more that the trial should be stayed because the issue of prejudice has become non-justiciable. The criminal law is not so crude an instrument as that, and it should be borne in mind that in dealing with abuse of process the court's overriding objective is the securing of a fair trial.[54]We have been reminded of older authorities, such as R v Heston-Francois [1984] 78 Cr App R 209 and R v Mid Sussex Justices ex parte Adams, a decision of the Divisional Court, unreported, but dated 29th January 1992. Although allowance has to be made for developments in the law in this area since those decisions were made, they illustrate how the courts take a fact-sensitive approach to such issues.[55]In our judgment, the Customs' submission that the District Judge placed undue weight on the decision in Sutherland is well-founded. He failed to give sufficient weight to the neutral nature of the admission, and to his finding of lack of impropriety in the Customs' conduct. He found that their failure to adduce evidence should not lead to an adverse inference in that respect. We agree with the submission that it was therefore inconsistent of him to draw another conclusion adverse to the prosecution, namely the possibility of prejudice to the Defendant from the same failure to give evidence. When those matters are taken together with the way in which the District Judge put the matter on the burden of proof at the end of paragraph 27, notwithstanding having correctly stated the position earlier, we do not feel that the District Judge's decision can be sustained as rational.[56]We now have to consider the question of relief. We have to say that we do not consider that the District Judge was assisted by the way in which the abuse aspect of this attritional litigation was presented to him. We have the impression that tactical considerations prevailed over good sense. The observations of Newman J as to the benefits of transparency in the cases of inadvertent acquisition of privileged material are well-founded. In different circumstances we would have been minded to order a rehearing of the abuse issue before a different district judge. However, to do so would be wrong in the context of this case. As will be recalled from the start of this judgment, these allegations go back to 1998 and the committal proceedings go back to 2001. To remit the case will involve additional delay. We are told that the Crown has prepared papers for a voluntary bill of indictment. We order that they be served on the defendant within seven days, and those papers must include a clear exposition of how the case is put against Mr Theobald, identifying relevant parts of the papers. Mr Theobald may have 14 days thereafter to make written observations, if he sees fit, for the benefit of the judge considering the voluntary bill application. He may make representations as to why the evidence is insufficient to justify a committal for trial. Thereafter, if the bill is granted, the defendant will, if so advised, be able to raise any issue of abuse of process before the Crown Court. By this means we regard the interests of the defendant as being safeguarded while taking steps to bring about progress in this case. Although ultimately procedures on any future abuse of process application must be a matter for the parties and the trial judge, we would hope that problems of the sort which have arisen in this case could be avoided if:(1) the parties jointly set out what facts and matters can be agreed;(2) the Crown then calls evidence in relation to its acquisition and use of the privileged material;(3) the defence is thereafter at liberty, if so advised, to call evidence as to the issue of prejudice.[57]We therefore quash the order of the District Judge in staying these proceedings on the grounds of abuse of process, and grant relief in the way just described.[58]Finally, there is before the court a renewed application made on behalf of Mr Theobald for permission to seek judicial review of a decision by the District Judge to admit evidence of an allegation confession pursuant to section 76(2) of PACE. Mr Lewis QC concedes that in the light of our primary ruling, his renewed application is moot. We therefore make no order thereon.

LORD JUSTICE KENNEDY: I agree.

[60]If a prosecutor comes into possession of material in respect of which the defence can justifiably claim that it is subject to legal professional privilege (and that claim is either conceded or upheld), the defence may contend that the way in which the material came into the possession of the prosecutor needs to be investigated, and/or that the disclosure of that material has so prejudiced the conduct of the defence that the case should not proceed. If such a contention is raised, there is then a duty on the prosecutor explain to the court, so far as he is able to do so, either by calling evidence or by means of uncontested statements of fact, how he came into possession of the material, and what, if any, use he has made of it, failing which the court may infer -(a) that he has obtained it by improper means, and/or(b) that his use of it will unfairly prejudice the defendant in his conduct of the proceedings.[61]In the light of the explanation given by the prosecution, the defence may want to call evidence directed to -(a) the way in which the prosecutor obtained possession of the material;(b) the extent to which its contents have been disclosed; and/or(c) any resultant prejudice or potential prejudice to the conduct of the defence. The solicitor acting for the defendant may be able to help as to that.[62]The court will then be in a proper position to decide what has happened and what needs to be done to ensure that the defendant receives a fair trial. The nature of the inquiry, as set out above, is such that it will probably be convenient to start with the prosecution, but that is a matter for the judge. What he must never lose sight of is the overall object of the criminal proceedings, namely to investigate the alleged criminality of the defendant by means of a fair trial, without allowing the process to be derailed by technical problems which can be overcome. In most circumstances there would seem to be no obvious reason why he should not see the particular critical material, at least if it has been looked at by anyone acting for the prosecution.[63]By way of general observation, that is all I propose to say, but I hope that never again will a judge receive as little assistance as the judge received in this case.[64]Simply in relation to the renewed application to which my Lord referred, it seems to me that the appropriate order should be that that application is dismissed.[65]MR LEWIS: My Lords, there are one or two consequential matters, if I may canvass them with your Lordships.

LORD JUSTICE KENNEDY: Yes.

[67]MR LEWIS: The first is, may I confirm with your Lordships that Mr Theobald was discharged on 2nd February and the criminal proceedings were discharged and that discharge obviously remains because your Lordships have given no relief, as it were.

LORD JUSTICE KENNEDY: Yes, and of course pending the application for a voluntary bill, that is the position.

[69]MR LEWIS: Also, as a matter of timing, as we are approaching the end of term, do I understand my Lordships to have given us effectively 21 days from today?

LORD JUSTICE KENNEDY: 21 days from today, yes, 14 days from receipt, but we would not seek to curtail that if you want the 21 days. What we did say yesterday was that it would be 14 days from receipt of the material from the Crown. If they served it in four days, technically you would have slightly be less, but if you would like the 21 days, you can have them.

[71]MR LEWIS: Yes, my Lord, we would.

LORD JUSTICE KENNEDY: Then 21 days.

[73]MR LEWIS: Can I also confirm that there is an order which we understand to be extant by Goldring J, which is at tab 5 of the bundle, if your Lordships still have it.

LORD JUSTICE KENNEDY: I think I have got it loose.

[75]MR LEWIS: It deals with the fact that now we should be able to inspect a document in the court file. Our understanding is that that order remains extant and is not affected by your Lordship's judgment.

LORD JUSTICE KENNEDY: Yes.

[77]MR LEWIS: I am obliged. There is one other matter. I simply ask your Lordships' guidance in this, because I do not want to appear too sensitive. In Treacy J's judgment there was one sentence in the beginning where he outlined the content of what was said in the five-page extract, the allegations. Mr Theobald has never waived his privilege over any of those contents and both the Crown Court and the Magistrates' Court heard those allegations in private. In those circumstances, your Lordships may think it right, simply for that one sentence, that there should be an order that that not be published because those allegations are obviously unfounded.

LORD JUSTICE KENNEDY: I cannot do it off the top of my head. It is for my Lord rather than me, but it may be possible when the matter is corrected in the normal way for it to be rephrased in a way which is totally anodyne.

[79]MR LEWIS: We would be most obliged.

LORD JUSTICE KENNEDY: But one or the other.

[81]MR LEWIS: There is only one other matter that I can deal with, and that is costs. I understand this is difficult. I think it is right on behalf of Mr Theobald that I do apply for a proportion of our costs. In effect, I think it is either three or four of the grounds on behalf of Customs which have been rejected, and they had won on one ground. In addition, the relief has been refused. As the interested party, we would say in those circumstances that the Customs should pay a proportion of our costs. In fairness, I should tell your Lordships on the last occasion, notwithstanding, this court quashed the order of the judge in relating to the interview. Rose LJ took the view there should be no order as to costs.

LORD JUSTICE KENNEDY: I must say the same thought was running through my mind, without actually knowing that.

[83]MR LEWIS: I thought it right to mention it.

LORD JUSTICE KENNEDY: Yes, it is a perfectly proper application.

[85]MR LEWIS: Thank you very much, my Lords.[86]MR HANNAM: Can I deal with the issue as to costs first.

LORD JUSTICE KENNEDY: Yes. You might persuade Treacy J, if not me.

[88]MR HANNAM: I am instructed by those who apply on behalf of the claimant for its costs of this application from the interested party, for these reasons. Before today's judgment the interested party no longer faced criminal proceedings. In effect, the claimant is the winning party in this application. Ordinarily, I submit, costs follow the event. Whilst the relief granted is not entirely that which the claimant sought, the stay on proceedings has been lifted, which is perhaps the most important of the relief sought. Although the case has not been sent back to the District Judge or the Magistrates' Court to continue any consideration in relation to the criminal proceedings, the fact that the voluntary bill procedure has been ordered puts the Crown, effectively, in a better position than it would have been had the request for relief in fact been granted because the opportunity now for the defence to seek to make further interlocutory applications has been curtailed.[89]It is for those reasons that I say that the proper order in relation to the costs on the claimant's application is that the interested party should bear them.

LORD JUSTICE KENNEDY: Thank you. No order as to costs. Thank you both for your attendance.

[91]MR HANNAM: Before the court moves to deal with other matters, can I raise again the timetable in respect of the voluntary bill.

LORD JUSTICE KENNEDY: Yes.

[93]MR HANNAM: Yesterday, Mr Sutton, quite rightly, informed the court that the documents had been served on the High Court in relation to the --

LORD JUSTICE KENNEDY: Some documents were, but what he said was they were ready to go, certainly.

[95]MR HANNAM: I reviewed those documents yesterday afternoon and it does appear from that review that a number of amendments need to be made, first of all to the summary that accompanies those documents, and finally to the documents themselves because it would be quite wrong for more information to be before the High Court judge than is strictly necessary.

LORD JUSTICE KENNEDY: Indeed. Whoever is dealing with it needs a proper way through the documentation.

[97]MR HANNAM: They need pruning down. There are, frankly, some omissions and we think that in order to deal with that properly it will take us about two weeks in order to put the papers in proper order. What I hope to do today is to retrieve from the court the bundles that are here, so that there is no confusion as to what is before the High Court judge, and to alter the contents of that bundle and then the proper paperwork to be served on the court -- that may take longer than seven days.

LORD JUSTICE KENNEDY: We are rather anxious in the holiday period, or approaching it, that the matter should be, as it were, brought to a conclusion before everyone disappears, not least because obviously if there is a committal, and it depends on the content of the voluntary bill and the decision of the judge who deals with the matter, it is highly desirable that the whole matter be dealt with in November, as envisaged, together with the other defendant. For that reason, Mr Theobald's advisers would need to have a proper interval between the decision of the judge in relation to the voluntary bill and the actual hearing, so I do not want there to be any unnecessary slippage. Mr Lewis, if we were to give them a fortnight and you a fortnight after that, is that going to cause you personal problems?

[99]MR LEWIS: My Lord, it does seem to creep -- we would prefer the timetable envisaged by your Lordships.

LORD JUSTICE KENNEDY: I think we are going to stick to seven days. If there is an insuperable problem which arises, then you will have to come back to either my Lord or me at the end of the seven days.

[101]MR HANNAM: So be it.

LORD JUSTICE KENNEDY: Thank you very much.