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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Togher v Customs & Excise [2001] EWCA Civ 474 (5 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/474.html Cite as: [2001] EWCA Civ 474

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (HIDDEN J)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 5th April 2001

LORD JUSTICE ROBERT WALKER:

Introduction

1. This is an application by Mr Kenneth Togher (who has appeared in person) for an extension of time for appealing, with the appeal to follow if the extension is granted, from an order of Hidden J made in the Queens Bench Division, Crown Office List, on 15 November 1995. By that order Mr Togher was committed to prison for 15 months for contempt of court.
2. When the committal order was made Mr Togher was already in prison, having been remanded in custody earlier that year charged with drug trafficking offences. I shall have to say something about the extraordinary history of that prosecution. At this stage it is sufficient to note that Mr Togher, while on remand, served the term of imprisonment to which he had been sentenced (it has not been suggested that Hidden J intended, or had any power, to sentence him for a term consecutive to his custody on remand); and that Mr Togher has been in prison continuously since then, except for some months during 1999 when he was released on bail after a reference to the Criminal Division of this court made by the Criminal Cases Review Commission.

The committal proceedings

3. The contempt which Hidden J found proved, and for which he sentenced Mr Togher to imprisonment, was disobedience to an order of Hidden J was made on 22 February 1995 requiring Mr Togher within 14 days to swear and serve on the Solicitor for HM Customs and Excise an affidavit giving particulars of all his assets inside or outside the jurisdiction, as set out in detail in the order. That order was made as part of a restraint and disclosure order made under sections 8 and 9 of the Drug Trafficking Offences Act 1986 . Those sections authorise a disclosure order so long as it contains (as Hidden J's order did contain) a prohibition on any disclosed material being used for a prosecution (see Re Thomas (disclosure order) [1992] 4 AER 814).
4. On 12 January 1995 Mr Togher was charged with an offence under section 170(2) of the Customs and Excise Management Act 1979 in relation to the importation of over 300 kg of cocaine into Pevensey Bay, Sussex. The drugs were stated (in an affidavit of Miss Juliet Hartridge, a barrister employed in the office of the Solicitor of Customs and Excise) to have a street value of about £50m. He was also charged with an offence under section 20 of the Misuse of Drugs Act 1971 in relation to 33kg of cocaine seized by the Spanish police at an hotel in Madrid. These offences were originally charged in a single indictment but the counts were ordered to be tried separately. The Pevensey Bay charge was referred to as the 'Frugal' charge (after the name of the vessel) and the other was referred to as the Madrid charge. There were several defendants to each charge.
5. It is clear from the restraint provisions of the restraint and disclosure order that the Customs and Excise already had a great deal of information about Mr Togher's assets. Paragraph (1) of the order contains sixteen separate subparagraphs specifying particular assets, some in Mr Togher's name and some in the name Mullin. Much of this information seems to have come from documents seized when Mr Togher was arrested, or from safe deposit boxes which were subsequently opened. Other information came from court orders made against banks and building societies. In particular an order for production of records was made in Scotland on 19 April 1995 against the Clydesdale Bank.
6. At the time of his arrest Mr Togher (who was born in 1963) had two residences in Great Britain: a house in south-west London, 43 Brompton Park Crescent SW6, and a small house in Scotland, Northfield Cottage, Bonhill, Alexandria. His wife Madeleine (who was born in 1972) had very recently given birth to a daughter. Mrs Togher was also arrested and charged with drug trafficking offences. The circumstances of her arrest and remand in custody were the subject of a complaint to the European Commission of Human Rights, one part of which the Commission found admissible. Some documents relating to that complaint are included in one of the bundles but it is no more than part of the background.
7. The restraint and disclosure order allowed Mr Togher £500 for the legal costs of complying with the order. Having been made without notice to him, it authorised him to apply to discharge or vary it on two days' notice. It was served on him in HM Prison Belmarsh on 23 February 1995.
8. Mr Togher did not comply with the disclosure order either within the time limit or during the following months, despite reminders sent to his solicitors. On 16 May 1995 Customs and Excise issued a notice of motion to commit him for contempt of court. This was served on him by the Governor of HMP Belmarsh on 24 May. The hearing was fixed for 22 June but had to be adjourned, apparently because Mr Togher was not produced from custody. However he had made some written representations to Hidden J to the effect that he could not make an affidavit unless he had copies of documents which had been seized from him. That is how Hidden J put it in his judgment but the written representations (if extant) have not been identified.
9. The adjourned hearing was on 19 July before Owen J. At that hearing Mr Togher again raised the subject of his lack of documents, and on his application Owen J accepted an undertaking offered by Customs and Excise for the return of documents to Mr Togher. Hidden J quoted the word "returned" in his judgment but this court has not seen a copy of the order containing the undertaking. In committing Mr Togher for contempt Hidden J said that this order was complied with within the time specified, that is on 29 July 1995. Mr Togher does not accept that. He says that he was also expecting to get other documents which were obtained in Scotland, but which were then passed to Customs and Excise officers in London. Mr Togher relies particularly on evidence given by a Scottish customs officer, Mr O'Donnell, on Day 39 of his second trial, and by Mrs Margaret Titmuss (formerly Miss Turner) on Day 44 of the trial.
10. Mr Andrew Mitchell QC (who appeared on this application with Mr Kennedy Talbot for Customs and Excise, having appeared on his own as a junior before Owen J and Hidden J) accepted that Mr Togher did raise the subject of Scottish documents before Owen J. But he contended that Owen J rejected that request and deliberately limited the undertaking to the return of documents seized in England. That is supported by a passage from Mr Mitchell's cross-examination of Mr Togher (the respondent) on 15 November 1995.

"The Respondent: You took advice from the people that you were counselling at the time and you did say you had four boxes of photocopy documents and you also said that the Commissioners had obtained documents from financial institutes but you did not wish to disclose them to me.

Mr Mitchell: I entirely accept that.

The Respondent: These are the documents I am trying to obtain.

Mr Mitchell: I entirely accept that ...

The Respondent: Do you ...

Mr Mitchell: Would you listen, Mr Togher? I accept, for your benefit, that the learned judge [Owen J] was told that there was documentation received following Production Orders from financial institutions, and we indicated that we were not prepared to disclose those to you, and if you remember the learned judge agreed that that was appropriate. He ordered that you be given your material. Do you agree with that?

The Respondent: He ordered that you gave the four boxes that you told me you had.

Mr Mitchell: The position is that you have had all the material, have you not?

The Respondent: No."

11. On 17 August 1995 a hearing date was vacated because of lack of court time. On 10 October Mr Togher (who was still on remand as a category A prisoner at HMP Belmarsh) wrote to Miss Hartridge about a hearing which he then expected to take place on 13 November 1995. He asked for a large number of further documents, including copies of all documents removed from the Scottish house, Northfield Cottage, and also including bank statements and cheques relating to an account at Clydesdale Bank, Dumbarton. He also asked for a customs officer, Mr Alan McLellan, to be present at the hearing to answer some questions on oath.
12. This letter was answered on 31 October by Mr Khan, writing on behalf of Mr Biker, who had taken over the matter from Miss Hartridge. Mr Khan wrote:

"Your letter was passed on to the Investigation Division to act on but I have now been informed by them that all the relevant documents that were ordered by the judge at the last hearing to be made available to you have been; the box of documents delivered to you on the 29th July 1995 I am given to understand contained all the relevant documents which were uplifted at the time of the searches. The officers have therefore complied with the directions of the learned judge and it is not intended to supply you with any further material as it is our view that you now have sufficient material with which to furnish a proper Affidavit of Disclosure.

In due course you will receive a list of unused material which will be made available for inspection eventually.

It is not our intention to have Mr McLellan present at the forthcoming hearing as he has no knowledge of the financial enquiries but Mr Piper of the financial investigation branch and who is concerned in the financial enquiries will be present."

13. Down to that time the evidence in support of the committal motion consisted of the affidavit of Miss Hartridge and two affidavits of service. Then on 9 November 1995 short affidavits were sworn by two customs officers, Mr Graham Latta and Mrs Titmuss. Mr Latta deposed:

"On 20th July 1995 I was requested by Mr A McClellan and Mrs M Titmuss, Officers, to photocopy all documentation belonging to K Togher uplifted during searches of premises after his arrest. During week commencing 24th July I gave a box containing all the documents to Mrs Titmuss, Officer of Customs and Excise for delivery to Mr Togher."

Mrs Titmuss deposed:

"On 19th July 1995 I attended the High Court before Mr Justice Owen in the matter re Kenneth TOGHER. On behalf of Customs and Excise our Counsel gave an undertaking to provide to Mr Togher within 14 days of the hearing, copies of all documentation uplifted during the search of premises following his arrest. I spoke with the case officer Mr McClellan who I believe arranged to have the documentation copied. I subsequently received a box containing documents which I did not examine. On 27 July 1995 I delivered the box containing all the documents I had received from Mr Latta, Officer of Customs and Excise, to HMP Belmarsh. I now understand that Mr Togher received these documents on 29 July 1995.

I verily believe that HM Customs & Excise have complied with the directions of Mr Justice Owen."

It will be apparent that neither of these affidavits identified which premises had been searched, or otherwise addressed Mr Togher's concerns about documents emanating from Scotland.

14. I turn to Hidden J's own account of the hearing on 15 November 1995, and I must read quite a long extract:

" ... once the respondent had possession of the documents which had been returned to him, the nature of the written excuses, as I find them to be, from the respondent for not complying with the Order changed in that in October the respondent claimed that he needed all documentation which had been taken from searches of an address in Scotland - Northfield Cottage, Bonhill, Alexandria, G13 9LA - and further sought other information in relation to a record of all break-ins at that property from 1990 until towards the end of 1993.

In correspondence from that time onward the respondent was maintaining that his inability to file his affidavit resulted from his not being given the documents which he was seeking.

The matter was originally listed to return to this Court on Monday of this week, but it could not be heard on that date and came before me this morning. When the matter was called on Mr Mitchell, for the applicant, sought to establish the grounds for committal and I referred him to passages in the affidavit of Mr Latta which were, at that stage, perhaps not quite in proper form, though there was room for the possibility of drawing an inference from what was said. I indicated to him that I did not think that would be sufficient where I had to apply the standard of proof of beyond reasonable doubt which is akin to a standard consistent with the gravity of the charge.

Equally, I pointed out to him that the address at Alexandria, which was now being said to be the site of searches by the applicant from which searches documents had been taken which the respondent was saying made the filing of an affidavit impossible, needed to be dealt with.

Mr Mitchell then told me, on instructions (but could not put it in evidence in any form at that stage) that that property had never been searched by Customs and Excise. I therefore gave leave for him to have some time to swear an affidavit to that effect and adjourned the matter from about 11.30am till 2 o'clock.

At that time I indicated to the respondent that the voluminous correspondence that I had seen indicated throughout his awareness of his own bank accounts at the Clydesdale Bank in Dunbarton, at the Bank of Scotland in Dunbarton, and the Abbey National and Halifax Visa among others, and I indicated to him that I would want, at 2 o'clock, to know why he had not made his own efforts at communication with his own banks and building societies to provide the information which he had hitherto suggested he could not provide because of the fault of the applicant. The matter was then adjourned till 2 o'clock.

At 2 o'clock further affidavits of Thomas John Campbell and Allan McLellan were put before me with the consent of the respondent and the Notice of Motion was amended to include the names of all the affidavit swearers including those last two.

Mr Campbell made it clear in his affidavit that there had been no search of Northfield Cottage, Bonhill, Alexandria, by Customs and Excise and therefore no seizure of property by them. He said

"I am the senior officer having responsibility overseeing the investigation into the drug trafficking activities of the defendant. At the time of his arrest I did not give authority for the search of property at Northfield Cottage, Bonhill, Alexandria. I have never previously given instructions for these premises to be entered and searched and to my knowledge no search of these premises has been conducted by Customs Officers."

The affidavit of Allan McLellan made it clear that all the property that the respondent was saying he did not possess and therefore could not use to swear his affidavit, which the Customs and Excise had at any time had, had been returned to him. Mr McLellan's affidavit makes it clear that he has possession of the property sheets and the property, and it fell into four different categories:

"(a) Material that forms part of the prosecution case and which has been copied and served on the defence.

(b) Documentary material that does not form part of the prosecution case and which has been copied by Graham Latta and subsequently served on the defendant and is referred to in his affidavit on 9th November [that being the property that was handed back on 29th July, ten days after the Order of Owen J] ..."

Mr McLellan's affidavit went on to say:

"All of this material came from one or other of the following sources:

(a) The person of the defendant following his arrest.

(b) The person of his wife and co-defendant following her arrest.

(c) Gloucester Business Services, 75 Gloucester Road.

(d) 43 Brompton Park Crescent

(e) Safe deposit C19 at Harrods Knightsbridge.""

15. Mr Togher was in a cell at the Royal Courts of Justice from 11.30am until 2pm. He was then handed copies of the new affidavits and given 15 minutes to study them. He says that he spent the time studying the detail of the property registers exhibited to Mr McLellan's affidavit. He accepts that he did not object to this late evidence, and did not ask for an adjournment.
16. Hidden J then heard evidence from Mr Togher, who was cross-examined by Mr Mitchell. Hidden J stated his conclusion as follows:

"It is quite clear to me, and I am so satisfied beyond reasonable doubt, that the respondent has pursued a totally deliberate policy of putting in the way any excuse, any argument, any statement which may assist him not to comply with the Order of the Court because he is fully aware of what the Order of the Court, when obeyed, will reveal.

I am satisfied that that conduct is utterly wilful and deliberate as well as being contumacious, which I say by way of explanation means deliberate disobedience to the Court's Order.

In those circumstances, this respondent is in about as clear a contempt as the Court can see. The contempt has not been of a short duration but has been persistently indulged in and has brought about the effect that now, almost nine months to the day since the making of the Order, the respondent is still in default."

He sentenced Mr Togher to 15 months' imprisonment.

The subsequent history of the prosecution

17. It will be best to continue the narrative before considering Mr Togher's grounds of appeal. The trial of the Frugal charge (in which there were several defendants apart from Mr Togher) began before HH Judge Foley on 1 May 1996. It was aborted after about three weeks as a result of events which are reflected in a joint note dated 31 May 1996 prepared by the three counsel who were prosecuting in the case, Mr Michael Corkery QC, Mr Andrew Munday QC and Mr Jonathan Ashley-Norman.
18. I need not go into the detail of the note. It related to the evidence of one of the customs officers whom I have already mentioned, Mr McLellan. He had played an important part in the investigation of the matter and the preparation of the prosecution, under the direction first of Miss Beer and then of Mr Dick. Prosecuting counsel concluded that in the light of numerous errors in Mr McLellan's evidence they should not rely upon any of it. The note stated:

"The effect of this decision is that no reliance will be placed on the evidence of Mr McLellan as set out in the statements at pages 303, 589, 651, 842 and 979 of the main statements bundles, and pages 587 and 1484 of the supplementary statements bundles. Furthermore, as indicated in court, the Crown will not seek to rely on the identification of Mr Doebbels by Miss Beer or Mr McLellan."

(Mr Doebbels was not a defendant but was a Belgian criminal well known to the authorities.)

19. The second trial began on 18 November 1996. The judge had to make four rulings on public interest immunity certificates connected with covert surveillance operations conducted on hotel premises by Customs and Excise. The judge was assured by prosecuting counsel (a new team) that the surveillance operations had all been properly authorised and consented to by the hotel proprietors.
20. Those assurances were false. The conduct of the prosecution as a whole was the subject of a devastating critique by Turner J when on 6 July 1999 he ruled that it would be an abuse of process for the defendants to be tried a third time. He did so not on grounds of delay but on the grounds of the conduct of the prosecution at the second trial.
21. Turner J referred to a submission of Mr Togher's counsel, Mr Marshall, that part of the Crown's closing submissions:

"was only explicable on the footing that it was recognised as being essential to the case for the Crown that the integrity of Beer, McLellan and Dick was held intact. He submitted that the defence had been denied the opportunity effectively to deploy their challenge to the credibility of those three officers in particular. I observe that this is the "equality of arms" argument.

As already indicated, the prosecution decision not to lead evidence from Beer in relation to the Tate Gallery incident, gives rise to further problems. The defence rightly perceive the evidential difficulties which arose in relation to it as one of the points which they could properly exploit. The prosecution decision not to lead evidence in relation to it now places the defence in an even worse position than before. Either they are denied the opportunity to exploit the prosecution weakness in any way at all; alternatively they may seek to exploit it at their peril. In my judgment, this tactic by the prosecution is as clear an example of manipulation of the court's processes as could be found. It seeks to avoid its evidential problems to the disadvantage of the defence."

22. Turner J set out his conclusion as follows:

"Here, in my judgment, by abuse of executive authority, the prosecution, viewed as a single entity, have, by means which are at least arguably unlawful, deprived the defence of its strategic ability to mount the challenge to the integrity of the prosecution case when looked at in the round.

The defence has been and is still inhibited from mounting its challenge to the authorisation and permissions which is the prerequisite to the evidential challenge to witnesses of authority within Operation Steeler; those named as Beer, McLellan and Dick. The conduct which I have already discussed in some detail, cannot fairly be dismissed as "venial" (per Lord Lowry) or as mere "regrettable error" as the prosecution have invited me to accept."

The reference to Lord Lowry is to his speech in R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, 77. So at or after both trials Mr McLellan's evidence was regarded as unreliable.

23. On 19 March 1997 the defendants at the second trial of the Frugal charge were convicted and sentenced to long terms of imprisonment. Mr Togher was sentenced to 25 years. On 30 April 1997 Mr Togher pleaded guilty to the Madrid charge, and was sentenced to nine years' imprisonment concurrent with the sentence on the Frugal charge. He was also made the subject of a confiscation order of about £2.41m, payable within five years, with a sentence of ten years consecutive in default.
24. On 2 November 1998 the Criminal Division of this court overturned the convictions on the Frugal charge, not on the grounds considered by Turner J in his later ruling, but because of deficiencies in the summing-up. A new trial was ordered and at the beginning of 1999 the venue for the new trial was fixed as Bristol Crown Court. Then prosecuting counsel fell ill and there was an application to break the fixture. Then came Turner J's ruling that a new trial would be an abuse of process. Some of the defendants were released from custody but others, including Mr Togher, remained in prison to serve their sentences for the Madrid charge to which they had pleaded guilty.
25. Turner J's ruling received wide publicity and it has had various consequences. The Attorney General appointed His Honour Judge Gerald Butler QC to inquire into the course of the prosecution. Two of the defendants who had pleaded guilty to the Madrid charge were given permission to appeal, and Mr Togher appealed following a reference to the Criminal Division of this court by the Criminal Cases Review Commission. Mr Togher was released on bail.
26. On 13 October 2000 the Criminal Division of this court (Lord Woolf CJ, Steele J and Butterfield J) dismissed those appeals, giving their reasons in a judgment of the court handed down on 9 November 2000. Much of the judgment is concerned with the significance of the amendment of section 2 of the Criminal Appeal Act 1968 made by the Criminal Appeal Act 1995, and with the extent to which a defendant can appeal after an unequivocal plea of guilty made after receiving legal advice. Those issues are not directly relevant but this court did make some important observations about the ruling of Turner J.
27. In the conclusions at the end of the judgment the court stated:

"The present appeals are not appeals of the decision of Turner J and we do not suggest that he was not entitled to come to the conclusions which he did. However, in order to decide the present proceedings, it is necessary to form our own judgment as to what should have been the result of the application before Turner J. Having examined very carefully the reasoning of this very experienced judge, it is the view of this Court that failures on the part of the prosecution did not amount to the category of misconduct which has to exist before it is right to stay a prosecution."

After further discussion of the circumstances the court concluded that the shortcomings on the part of the prosecution, although not to be condoned, were not misconduct sufficient to justify interfering with the defendants' freely entered pleas of guilty.

28. On 9 April 1997 (shortly after Mr Togher's conviction on the Frugal charge and shortly before his plea on the Madrid charge) Customs and Excise again called on Mr Togher to swear and file an affidavit under the original disclosure order. On 25 November 1997 Lightman J made a new order in terms almost identical to those of the disclosure provisions in the original order of Hidden J. There was no appeal against that order, nor any committal motion arising out of it, so that there has been no difficulty about Lightman J sitting on this appeal.
29. In response to Lightman J's order Mr Togher prepared an affidavit running to over 50 pages, with a further 240 pages of exhibits. The copy with the appeal papers is not sworn, but Mr Togher says that it was sworn on 11 December 1997 and that has not been challenged. The affidavit is a mixture of factual material, comment and submission but it seems to have been accepted as complying with the orders of Hidden J and Lightman J.
30. Mr Togher applied on 28 February 1998 for an extension of time for appealing from the committal order made on 15 November 1995. Had he appealed in time he would have had an unrestricted right to appeal to this court, under s.13 of the Administration of Justice Act 1960. He has produced a copy of a letter dated 30 November 1995 from his then solicitors to counsel instructed on his behalf in the criminal proceedings (but not, it seems, in the confiscation proceedings) containing the obviously incorrect statement that he had no right to appeal. He was in custody and had no ready access to reliable legal advice. Mr Mitchell has not opposed the grant of an extension of time for appealing and I would grant it.

The grounds of appeal

31. Mr Togher has put in a long notice of appeal in the form of a letter dated 1 December 1997 forming exhibit "K2" to an affidavit which he swore on 20 February 1998. It contains twelve main headings (A) to (L), each of which is subdivided into up to sixteen subparagraphs, with frequent references to Articles 6, 8 and 13 of the European Convention on Human Rights.
32. Mr Mitchell has not unfairly described the grounds as repetitious and in many cases unarguable. He has in para 5 of his skeleton argument identified six grounds as possibly justifying this court's intervention. These are:

"(1) No proper notice was given of the hearing which resulted in the Appellant's committal on the 15^th November 1995.

(2) The Respondents failed to comply with the High Court order of the 19^th July 1995 to serve information on the Appellant.

(3) The Respondents themselves are in contempt by procuring the sale of an asset with which the Appellant was restrained from dealing.

(4) The restraint order over the Appellant's assets resulted in him not being able to put lawyers in funds to properly defend himself.

(5) The Appellant should have been given an opportunity to have legal representation.

(6) The judge should have informed the Appellant of the right to cross-examine the witnesses against him."

33. To these I would add the reliance by Customs and Excise at the committal hearing on the evidence of Mr McLellan, whose evidence was discredited at the first trial and received further adverse comment from Turner J at the abuse of process hearing. Mr McLennan receives only a brief mention in Mr Mitchell's skeleton in connection with his sixth point, on cross-examination. But his evidence in the committal proceedings is complained of in Mr Togher's notice of appeal, especially in various subparagraphs of section (C).
34. Mr Togher has also included in his grounds of appeal a complaint against the length of his sentence for contempt. He told the court that one of his co-defendants who failed to comply with a disclosure order was sentenced to 28 days' imprisonment, and that another co-defendant was not proceeded against although his affidavit contained no information at all, consisting almost entirely of the repeated phrase "not applicable". Mr Mitchell candidly accepted that the 15 months' sentence was surprisingly long.

Conclusions

35. I can dispose fairly quickly of two of the grounds of appeal. There must be personal service of notice of a committal motion. Service must be proved and all formal requirements must be strictly complied with. Except for the late evidence of Mr McLellan and Mr Campbell (to which I shall return) the formalities were complied with. It is not necessary for there to be separate service of notice of any adjourned hearing. Of course, if for any reason a defendant did not appear at an adjourned hearing (as happened in this case on 22 June 1995) a judge would be very unlikely to proceed in his absence (and Hidden J did not proceed in Mr Togher's absence). The repeated adjournments were unfortunate (and certainly not of Mr Togher's making) but it cannot be said that Mr Togher did not have time to prepare for the hearing on 15 November 1995.
36. Mr Togher complains of 'double standards' and non-compliance by Customs and Excise with orders of the court. So far as his complaints relate to the sale in Guernsey (under an order of the Royal Court of Guernsey) of a cabin cruiser called 'The Sweet Caroline of Alloway' the complaints have already been considered by the High Court on a committal motion launched by Mr Togher himself. That motion was dismissed and the matter cannot be raised again on this appeal.
37. I consider next the criticisms which Mr Togher makes of the procedure followed at the committal hearing, including the absence of any legal representation for Mr Togher in a matter in which his personal liberty was at stake. Mr Mitchell has pointed out, correctly, that the restraint order gave Mr Togher the opportunity of applying for a variation of the restraints on his bank accounts so as to enable him to pay for legal representation, but that he did not make such an application; nor did he ask for an order for cross-examination of the Customs and Excise witnesses on their affidavits. (He had however written to Miss Hartridge asking for Mr McLellan's attendance.)
38. Those observations are no doubt correct but they seem to me rather to miss the point. Legal representation is important for defendants because lawyers understand the need for applications of that sort and defendants who are not lawyers may not do so, even assuming them to be hardened criminals. It is easy for anyone who is not a lawyer, especially if under stress, to overlook the need to interrupt counsel (which is what Mr Togher would have had to do) in order to raise this sort of preliminary point. This court has said this in matters of civil contempt, as soon as it appears that there is an appreciable risk of imprisonment, an unrepresented defendant should be asked by the judge whether he or she wishes to be represented: see Newman v Modern Bookbinders [2000] 2 AER 814, 822. It does not appear that Mr Togher was asked that question at the hearing on 15 November 1995.
39. Mr Mitchell suggested that it was inconceivable that he was not asked the question, and drew attention to Hidden J's adjournment of the application on 22 June 1995 (at which Mr Togher was not present) "to enable the respondent to be represented". But as Mr Togher was not present it is not clear how (or indeed whether) this direction reached Mr Togher. He said in the course of the appeal hearing that he had never turned down any opportunity of legal aid. The fact that he seems to have accepted obviously erroneous advice about having no right of appeal suggests that he was not then well informed about the justice system (although plainly he has learned a lot about it in the last six years).
40. Mr Mitchell also suggested in his written submissions (but did not press in his oral submissions) that there was nothing much that an advocate could usefully have said or done. But an advocate could at least have considered whether to apply to cross-examine Mr McLellan on his late affidavit, or to seek an adjournment. He might also have said a good deal by way of mitigation. He might have pointed out that the 14-day period was very short; that it was clear, from the terms of the restraint order, that Customs and Excise already had a great deal of information about Mr Togher's financial affairs; that Mr Togher had himself provided more (albeit not in the form of an affidavit) in his letters to Miss Hartridge and Mr Biker; and that Owen J had by his order given Mr Togher some slight encouragement to suppose that he could reasonably ask for full documentation before making his affidavit.
41. During the appeal hearing Mr Togher gave a vivid description of the time which he spent on remand in HMP Belmarsh during 1995. He was, he said, in the 'prison within a prison' to which access was difficult even for visiting lawyers; he received occasional visits of a maximum duration of one hour from a legal executive (not a qualified solicitor); he was expecting his trial on very serious charges to begin in January 1996, and there was a mass of witness statements and other documentary evidence for him to study and give instructions on. He had a strong belief that he needed documents from Scotland before he could make his affidavit. There was some evidence (although it was only confirmed later) that Clydesdale Bank had been told by Customs and Excise not to supply documents to him. All these matters might have been put as part of a defence against a finding of deliberate contempt, or at least in mitigation of sentence.
42. The matters mentioned in the last three paragraphs raise a practical point to which I can see no easy answer. When a question arises, as often happens in court, as to what occurred at some earlier court hearing, the court is naturally inclined to accept and rely on counsel's recollection of what occurred, trusting counsel to say if he or she cannot remember. The court cannot always take the same attitude towards the recollections of a litigant in person. At the appeal hearing Mr Mitchell gave us his recollection on some points, said candidly that he had no recollection on other points, and on at least one point was able to show (by reference to the transcript) that Mr Togher's recollection must have been mistaken. This does not imply any criticism whatsoever of Mr Mitchell, who was conspicuously fair in the assistance which he gave to the court. Nevertheless I am left a little uneasy about an apparent inequality of arms.
43. That brings me to the evidence of Mr McLellan, and the associated issue of whether the order of Owen J had been fully complied with. Mr Togher had written to Customs and Excise saying that he wished to ask Mr McLellan some questions to be answered on oath; the response was (as Mr Mitchell puts it in his skeleton) that Customs and Excise did not think that Mr McLellan's evidence would be relevant to the issues. Had Mr Togher been represented his solicitors might have replied that it was for the court, and not for Customs and Excise, to decide what evidence was relevant to the issues. But there the matter rested until the hearing on 15 November 1995.
44. In the event Mr McLellan did give evidence on affidavit, because (as appears from the extract of the judgment of Hidden J which I have already set out) the very brief affidavit of Mr Latta was (as Hidden J put it) "perhaps not quite in proper form". So the judge adjourned at 11.30am until 2pm to enable two new affidavits to be sworn. I have already considered what Mr Togher's counsel might have done in response to those affidavits. As it is the judgment records simply that the affidavits were put in with Mr Togher's consent. But it is clear from what he said in his own evidence (which then followed) that he was still contending that relevant documents, obtained from Scotland, had not been supplied to him.
45. Mr McLellan's affidavit stated that all the material uplifted during searches had come either from the persons of Mr Togher and his wife or from premises in London. It was crucial to the judge's conclusion that the order of Owen J had been fully complied with within ten days of its being made on 19 July 1995. It confirmed the judge in his finding that Mr Togher had been relying on a succession of false excuses and pretexts and was contumaciously in contempt of court.
46. The judge may have been correct in that view. But this court has to consider whether Hidden J would have been bound to take that view, had he known what has since been said about Mr McLellan. We have to consider whether he would still have reached the conclusion that contumacious contempt had been proved to him, to the requisite standard of proof, in proceedings conducted with the fairness which should characterise any proceedings in which the liberty of the subject is at stake.
47. It is very difficult to know what to conclude about Mr McLellan's evidence. Mr Mitchell submitted that it was not central to the committal motion, and was merely disposing of an objection raised by Mr Togher. Nevertheless, it seems clear that the judge would not have committed Mr Togher without it. Mr Mitchell also said that prosecuting counsel at the first trial had subsequently changed their view about Mr McLellan, and that the Criminal Division of this court have (as I have mentioned) taken a different view from Turner J in his ruling on abuse of process. Mr Mitchell offered to show us the report made by Judge Gerald Butler QC, but Mr Togher objected on the ground that its findings are not evidence, and that Judge Butler had not taken evidence from himself or any other of the defendants at the second trial.
48. There remains at least some disquiet about Mr McLellan's evidence. I doubt whether that is by itself a sufficient ground to conclude that the judge's finding of contempt was unsafe. But it does not stand alone. In combination with the absence of legal representation for Mr Togher and its consequences (that is the absence of any challenge to the late evidence, the absence of any cross-examination of Mr McLellan and the absence of any mitigation) the doubt about Mr McLellan's veracity leads me to the conclusion that the finding was unsafe. Even if the judge thought that Mr Togher had turned down the chance of legal representation, he should have raised it again once he saw a sentence of many months' imprisonment as a probability.
49. For my part therefore I would allow this appeal and discharge the order committing Mr Togher to prison for contempt of court. I would ask junior counsel for the Customs and Excise to be in a position to tell the court what will be the practical effect of this order on the duration of Mr Togher's present term of imprisonment.

LORD JUSTICE KEENE:

50. I agree.

MR JUSTICE LIGHTMAN:

51. I gratefully adopt the account of the history of these proceedings and the statement of the relevant facts set out in the judgment of Walker LJ.
52. I do not consider that a confident decision on the challenge to the fairness of the conduct of the proceedings before Hidden J can be reached on the meagre evidence before this court. In particular the evidence is unsatisfactory on the issue how far the judge brought it to Mr Togher's attention that legal aid was available and that legal representation would be an advantage to him. This lacuna in the evidence is no doubt in large part attributable to the lapse of two years between the decision of Hidden J and the initiation of this appeal. I am not satisfied that there was a failure in this regard by the judge. Likewise the evidential position is unsatisfactory as regards the credibility of Mr McLellan. It is not satisfactory for counsel to give to the court an oral account of what happened at an earlier hearing where this is in issue. The opposing party should be supplied with an account in writing well before the hearing and asked to agree it. If the account is agreed, it may stand as evidence. If it is not agreed, counsel's account can only be relied on if he signs a witness statement and (because of the incompatibility of his role as witness and counsel) stands down as counsel at the hearing. I do not think however that there are any sufficient doubts about the evidence of McLellan to justify disturbing the judge's decision.
53. But I do feel grave concern about the form of order in respect of which the breach was alleged and committal ordered. The order required Mr Togher to swear and serve within 14 days of the date of service of the order (the 23rd February 1995) an affidavit giving full particulars of all his assets inside and outside the jurisdiction. This form of order is susceptible of two constructions. The first is that Mr Togher must serve nothing less than the full affidavit required, and that a failure to set out the full particulars (e.g. because of the temporary non-availability of the material required to extract this information) constituted non-compliance. The second is that implicitly the order required Mr Togher within the 14 day period to do what he could and set out the best particulars which were known to him on the information presently available. The order is to a degree ambiguous. It may be noted the modern form of order is specifically to require the deponent to give the best particulars which he can within a limited period and to supplement these particulars after full inquiries at a later date.
54. Mr Togher clearly interpreted the order in the first of the two ways which I have indicated, and thereafter both the Commissioners and the court appear to have proceeded on this basis. Mr Togher requested time and access to further information to enable him to comply and both the Commissioners and the court allowed these to him. As a result the 14 day time limit became a matter of no consequence for all concerned: what became of overriding consequence to the parties was whether Mr Togher would later provide the required full affidavit. But the order provided no sanction in case such affidavit was not later provided.
55. Where the parties have proceeded in this way, I do not think that it is open to the Commissioners in effect retrospectively to invoke the long expired 14 day time limit for swearing the affidavit and treat the order as contumaciously breached by a failure to swear an affidavit within that time period. In effect the time limit has been "waived". This must a fortiori be the case where the court has likewise proceeded in this way. The appropriate course for the Commissioners, if they wished to reserve the right to proceed for contempt, was from the beginning to make clear in the order they obtained that Mr Togher was bound to swear an affidavit doing his best within the 14 day period and throughout this period to insist on compliance; or, if they allowed time beyond the 14 day period for compliance, to seek a supplemental order for disclosure imposing a fresh time limit and in any contempt proceedings rely on breach of that supplementary order.
56. In my view, the order of the 22nd February 1995 was ambiguous; the construction adopted by Mr Togher required (or at least entitled) him to defer swearing an affidavit until after the 14 day period had expired when the required information was available; the Commissioners (at the least) acquiesced in this construction and waived compliance with the order in the 14 day period; but the Commissioners did not obtain, and accordingly do not rely on, any supplementary order. This (albeit perhaps unmeritorious) point was in my view the answer to the proceedings for contempt before Hidden J. It is not surprising that Mr Togher, (for whatever reason a litigant in person), did not take this point. It is a point that cries out to be taken, and is the ground on which I would allow this appeal.
ORDER: Appeal allowed. The costs to be agreed; if not agreed, to be dealt with summarily by written submissions. Judgment to be supplied to Governor of H.M Prison Bristol at public expense. (Order does not form part of approved Judgment)