Case No: 9800906X5 & 9801555X5
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE KING
SNARESBROOK CROWN COURT.

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 5 May 2000
B e f o r e :

LORD JUSTICE MANTELL
LORD JUSTICE KAY
and 
MR JUSTICE SACHS
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	REGINA
		
	-V-		
	THOMAS MULLEN
&
TURHAN MUSTAPHA		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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Mr G Pringle (instructed by  Hughmans for the Appellant, Mullen)
Mr C Baur (instructed by  Hodge, Jones & Allen for the Appellant, Mustapha)
Mr P Walsh (instructed for the Crown)
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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Mantell:

	Catherine Elizabeth Brooks is a known prostitute, an alcoholic and a drug addict.  In June 1996 she was living in a flat at 5A  Reginald Road London E7. On the evening of  Wednesday 12th June 1996 she booked a cab to take her to the City Airport. The police were watching her.  She was stopped enroute and arrested.  In her bag was found 2.65 grams of powder containing cocaine.  It would have been worth about £400 on the street.  She was taken to Plaistow Police Station where a further 948 grams of powder containing heroin was discovered in her vanity case.  That had a value of about £147,000.  She also had an Irish ten punt note and a business card for  bed-and-breakfast accommodation in Dun Laoghaire, Dublin.  She also had a Mercury one-to-one mobile telephone.  She was not fit to be interviewed.  

	Later that evening police officers searched her flat.  They found a sports bag in the loft which contained two plastic bags holding approximately four kilograms of heroin with a street value of nearly £600,000.  In the kitchen were two rolls of brown masking tape similar to masking tape which had been wrapped round the parcels containing the heroin.  Wrapping paper identical to that which been used to wrap the heroin inside Catherine Brooks’ vanity case was found in some rubbish sacks outside the flat.  

	At about 11.00 pm and while the search of Brooks’ flat was still going on, Turhan Mustapha arrived and tried to get in using some keys.  He was thwarted because the searching police officers had bolted the door from the inside.  When approached he denied having keys for the flat and gave a false name.  The keys in his possession did fit the locks of Brooks’ flat.  Mustapha was arrested and taken to Plaistow police station.  He, too, was relieved of his mobile telephone. 

	Next day Mustapha was interviewed.  He said that he knew Brooks as a prostitute and had become her friend.  His visit to the flat had nothing to do with drugs and was merely to discuss another flat which he had found for her.  The same day Brooks was charged with two counts of possessing heroin with intent to supply.  

	Mustapha was allowed to go but the prosecution of Brooks continued.  

	In the course of the continuing investigation it was discovered that Brooks had made a number of trips to Dublin in the months of January, February and March 1996.  Sometimes she used her own name and sometimes the names “Price” and “Jenkins”.  A booking for a flight to Dublin on 11th June returning 12th June had been made in the name of a Miss A Price.  

	There were a number of voicemail messages left on Mustapha’s mobile phone.  Several were in Turkish.  Some, however, were in English and from a man called ‘Thomas’.  It was also established that Brooks had phoned Mustapha from Dublin on at least two occasions.  

	All this led to Mustapha’s re-arrest on 15th October 1996.  He was at that time in custody awaiting deportation.  He was taken to Ilford police station and interviewed.  In the course of interview he said that he had heard of an Irishman called Tom who wanted someone to act as a courier for heroin.  He had met Tom at a cafe in Harringay.  He then introduced Tom to Brooks.  This was in January 1996.  Thereafter Tom had phoned him from Ireland and Spain and met up with him in London.  It was because Tom had phoned him to say that Brooks had not arrived in Dublin with heroin on the night of her arrest that he, Mustapha, had gone to Brooks’ flat.  He gave the phone number of the butcher’s shop where he worked and said that he had phoned Tom from that shop.  

	In consequence of what Mustapha had said he was joined in the same indictment with Brooks. 

	On 23rd October 1996 Brooks was re-interviewed.  She said that she had been Mustapha’s girlfriend and had made trips to Ireland to pay off debts amounting to £2000 which she owed Mustapha for heroin.  She admitted having made three trips using the names “Price” and “Jenkins”.  The heroin which she was taking to Ireland was given to her by Mustapha.

	On 6th December 1996 Brooks pleaded guilty to conspiring with Mustapha and others to supply heroin.  On 11th December she made a witness statement.  In that statement she described how she had been introduced to the man “Thomas” and how arrangements had been made for her to transport heroin to Dublin.  The first trip had been a test run in January 1996.  She had gone out by ferry but had flown back.  She described going out on the 3rd of March 1996 when a man and a woman with a young child came to the hotel and gave her a bag full of money which she later gave to Mustapha.  Importantly, as will appear, she described a third trip which had taken place towards the end of March.  On this occasion she said that the man Tom had arrived at her hotel with a bag full of cash.  She had been intending to go again on the 11th of June but had put off the trip until the 12th, the day she had been arrested.  Although she used the sports bag which had been found in the loft at  5A Reginald Road she claimed to know nothing about the four kilos of heroin.  She denied having wrapped them.

	On 13th June 1996 a man called Thomas Mullen had been stopped by the Irish police in Dublin.  Mustapha’s name “Turhan” and nickname “As” were found in Mullen’s personal organiser. 

	In March 1997 Thomas Mullen and a woman friend were seen to deposit a black holdall at a depository in Hampstead.  On 14th March Mullen collected the black holdall and was stopped by police.  The holdall contained over £100,000 in cash.  He was arrested for handling stolen goods and taken to Hampstead police station.  His safe deposit box was searched and found to contain a further £90,000 in cash.  Mullen declined to answer any questions when interviewed.  

	The next day, 15th March 1997, at an identification parade Brooks picked out Mullen as the man whom Mustapha had introduced to her as Thomas and whom she had seen in Dublin.  

	A number of mobile telephones were found in Mullen’s flat.  It emerged that he had made or had attempted to make one hundred and twelve calls to Mustapha between 18th March and 19th June 1996.  There was expert evidence that some of the messages left for Mustapha on his mobile phone had been from Mullen.  Further investigations tended to show that although Mullen did not work he nevertheless had a luxurious lifestyle.  More than £500,000 had passed through his accounts since 1992.

	He was charged and joined in the same indictment as Mustapha.

	In due course Brooks pleaded guilty to conspiracy to supply heroin and was sentenced to three years and nine months imprisonment.  A drug trafficking confiscation order of £204.55p was made.  She agreed to give evidence against Mustapha and Mullen.  

	The trial of Mustapha and Mullen was fixed for 25th September 1997 at Snaresbrook Crown Court.  The trial judge was His Honour Judge King.  An objection was taken on behalf of Mustapha to the admissibility of the interviews.  They were ruled admissible whereupon Mustapha pleaded guilty to conspiring fraudulently to evade the prohibition on the exportation of a controlled drug namely heroin.  Sentence was postponed to await the outcome of Mullen’s trial.  In the course of Mullen’s trial Brooks gave evidence.  Whereas in her witness statement Brooks had said that her meeting with the man “Tom” or “Thomas” in Dublin had been at the end of March her evidence was that it had been an earlier occasion in the same month.  The deviation was not unimportant because independent evidence showed that the only trip made by Brooks towards the end of the month was on the 24th and 25th.  On the night of 24th/ 25th March Mullen had been in Spain.  The jury failed to reach a verdict.  

	Although Mullen had little by way of criminal record he was, it seems, regarded as a major criminal by the Irish police.  He was considered to be a drugs baron and a dangerous man with dangerous accomplices.  Consequently there had been an application at the start of the trial for Mullen to be handcuffed in the dock and during the time when he was giving evidence.  In spite of Mr Pringle’s protestations the judge allowed the application and accordingly Mullen was handcuffed to a prison officer throughout his trial.  

	Mullen’s retrial took place between 5th and 15th January 1998.  Once again it was at Snaresbrook Crown Court and once again the trial judge was His Honour Judge King.  Mr Pringle who appeared for Mullen invited the judge to recuse himself in view of what was perceived to be the judge’s antipathy towards Mullen during the previous trial.  The application was refused.  No further protest was made with regard to the handcuffs as Mr Pringle considered that inevitably the judge would abide by his earlier ruling.  Consequently, during this trial also, Mullen was handcuffed to a prison officer.  In the course of the trial evidence was given in accord with the background and facts already recited and from Catherine Brooks to similar effect as in the earlier trial.  Once again there was the apparent discrepancy between what she had said in the witness statement and what she was to say on oath.  Her explanation was that she had been confused.  Mullen gave evidence himself presumably to the same effect as in the earlier trial.  He suggested that the Irish police held a grudge against him as a result of his evidence being instrumental in securing the acquittal of a friend charged with robbery.  He admitted having access to large sums of money but declined to say where it came from, the clear implication being that it resulted from some criminal offence other than drug dealing.  He explained his connection with Mustapha as being entirely to do with money changing.  He had indeed met Brooks in London but not, as she had claimed, with a view to engaging her as a courier.  He denied meeting her in Dublin and gave unchallenged evidence of alibi for the night of 24th/25th March 1996.   

	He was convicted and sentenced to eighteen years imprisonment.  

	On 11th February 1998 Mustapha was sentenced to sixteen years imprisonment.

	Following a hearing which took place on 21st December 1998 His Honour Judge King made a confiscation order against Mullen under the Drug Trafficking Act 1994.  He was ordered to pay £1,023,863.62p within twelve months or serve an additional six years imprisonment in default.  

	Mullen has appealed against conviction with leave of the full court.  He also appeals against his sentence of eighteen years imprisonment with leave of the single judge and against the confiscation order with leave, if necessary, of this court.  Mustapha has leave from the single judge to appeal against his sentence.  The hearing of both appeals took place on 10th March when the court indicated that Mullen’s appeal against conviction would be dismissed but reserved its reasons and took time to consider both appeals against sentence.  The delay in handing down judgment has been due to difficulties in reconstituting the court.  

	We first of all give our reasons for dismissing Mullen’s appeal against conviction.  Before turning to the grounds, however, we would like to pay tribute to Mr Pringle for the economy and brio with which they were presented.  

Handcuffs.
	This is the ground upon which the full court gave leave.  It is true that no objection to handcuffs was taken at the second trial.  However, we agree with Mr Pringle that there is no reason to suppose that the judge would have reversed his earlier ruling.  As to whether or how a defendant is to be restrained during his trial is a matter which falls within the judge’s discretion but the principle in general must be that unless there is danger of escape or violence the defendant ought not to be handcuffed or otherwise restrained in the dock or, it goes without saying, in the witness box.  (See R -v- Vratsides (1998) CLR 251)  Usually there are other means of protecting the public and preventing escape which involve less risk of prejudice to a defendant.  In an appropriate case and with proper authority it may be sufficient to have covertly armed police officers on duty in the court building itself though we hasten to say that that was not something which was ever suggested in the present case.  It is possible, in some instances, to hold the trial in a courtroom where there is a specially protected dock.  That was suggested in this case but would have involved transfer to another court centre and the postponement of the trial.  We would not criticise the Judge for rejecting that suggestion.  Nevertheless the question remains as to whether handcuffs were necessary on the information available to the Judge.  The judge had before him all the material contained in the trial documents and of course, although not admissible in the trial, he had the interview of Turhan Mustapha.  He was properly able to conclude, therefore, that Mullen  may have been a major trafficker in drugs.  He had the information from the Irish police, no doubt derived from informers, that Mullen was a high ranking Dublin criminal with powerful and dangerous connections.  As much  could be assumed from Mullen’s own evidence.  There was also an incident when Mullen’s brother had attempted to enter the court building carrying a bag with cutlery which the judge reasonably enough suspected to be an attempt to test out the security arrangements.  Against that Mr Pringle submits that the sources from which all this information came were themselves dubious and that there was nothing in Mullen’s criminal record to support the contentions which were being put forward. He produced a statement from the prison officer to whom Mullen had been shackled who thought that the precaution was unnecessary.  It may be that other judges, perhaps including members of this court, would have taken a different course but having regard to all the matters to which we have referred we find it impossible to say that the judge was wrong to exercise his discretion as he did.  That, of course, is not the end of the matter in such a situation everything possible must be done to minimise the risk of prejudice.  In the course of ruling His Honour Judge King said,

"I shall of course be at considerable pains to explain to the jury that they should infer nothing adverse to your client as a result of him being handcuffed and that is, in effect, routine.  So that hopefully will allay any disquiet that might otherwise exist in the minds of the jury."

True to his word, in summing up the judge said of the appellant,

"He has throughout stood his trial shackled to a prison officer by a handcuff and that of course included the time which may have been uncomfortable for him when he was in the witness box.  I am sure, as fair minded people, you would never dream of holding against him the fact that he has for security reasons but largely the routine nature been required to be handcuffed during his trial and as I said to you at the outset of the proceedings please do not infer anything adverse to him be reason of that fact.  Its a matter that you should and I am sure as fair minded people will ignore, it cannot assist you in coming to a decision one way or the other upon the issues in this case."

In saying that it seems to us that the judge did all that was possible by way of damage limitation.  We also bear in mind that on his own account  in the witness box the appellant was close to dangerous criminals which  might of itself provide a sufficient justification in the eyes of the jury for the use of handcuffs.  In our view, the use of handcuffs does not render the verdict unsafe.

Evidence of Catherine Brooks.
	This ground has two limbs.  The first limb relates to the quality of Catherine Brooks’ evidence.  It is said that she was an inherently unreliable witness because of her addiction to drugs and strong drink.  Moreover her evidence was inconsistent and confused and Mr Pringle points, in particular, to the discrepancy between what she had said in her witness statement and the evidence given at each of the two trials.  He says it is small wonder that she performed better on the second occasion having had notice of what was coming.  Although Mr Pringle made an unsuccessful submission of no case in the first trial he did not repeat that submission in the second.  It must be, therefore, that his complaint is that the judge should have stopped the trial of his own motion.  We cannot agree.  Mr Pringle accepts that the credibility of a witness is essentially a matter for the jury.  Although Catherine Brooks was vulnerable on the difference between her witness statement and her evidence in court her account was in all other respects coherent and plausible.  The appellant himself admitted having been introduced to Brooks by Mustapha.  To that extent her identification of the appellant was not challenged.  The question for the jury was simply; was she truthful and reliable when she said that she had met Mullen in Dublin on an occasion when he had given her money.  That would have to be considered in the light of the contents of her witness statement and the appellant’s alibi for 24th/25th March.  But it was, we consider, a matter entirely for the jury.  And the appellant did not have to contend only with the evidence of Catherine Brooks.  There was the evidence of the withdrawal from the safe deposit of something over a £100,000 in cash which coupled with the frequent telephone calls between the appellant and Mustapha lent strong support for Catherine Brooks’ assertion that the appellant was buying drugs on a substantial scale.  In our view it is quite impossible to support the contention that judge should have intervened to stop the trial.  

	The second limb of this ground is that given it was proper to leave the matter to the jury, the judge’s summing up of Catherine Brooks’ evidence did not sufficiently reflect its inconsistencies and weaknesses.  At p.21 of the transcript the judge drew attention to Miss Brooks’ “chequered past” and mentioned her numerous previous convictions and her involvement with drugs.  He reminded the jury of what had presumably been part of Mr Pringle’s submission that she might have motives of her own for telling lies.  In particular he mentioned the suggestion that she was giving evidence simply to achieve a lesser sentence for herself.  Then between pages. 38 and 54 the judge reviewed her evidence in chief and cross examination.  It appears to us to have been a fair and balanced account.  At p.53 he specifically drew attention to the differences between her written statement and evidence in the first and second trials.  In our judgment the complaint that the judge failed to deal properly or fairly with her evidence is simply not made out.  
Recusal.  

	It seems that the Appellant and, indeed, Mr Pringle also were not entirely satisfied with the manner in which His Honour Judge King had conducted the first trial.  Insofar as he had ruled as he did with regard to handcuffs and rejected the submission of no case that is hardly surprising.  His Honour Judge King did not  reserve the retrial to himself but it so happened that he found himself deputed to try it.  Mr Pringle asked him to transfer the case to someone else.  We look to the transcript.  Mr Pringle said,

"Yes, well I am formally asking, I hope without causing any offence at all, for you to disqualify."

The judge responded:

"It does not accord me any offence and I fully understand the nature of your submission.  I have, as you know, conferred with the senior resident judge of this court as well as the listing officer on earlier occasions concerning the listing of this matter and as I said once before during argument I am content it should be tried by another judge subject to another judge appropriately being available.  That would seem not to be so and so the matter finds itself before me once more."

Although Mr Pringle has mentioned some authorities which he suggests support the proposition that a retrial should always be conducted before a different judge we do not find that principle to be established either by the authorities mentioned or by what from our experience we know to be the usual practice.  There may be occasions when it is very desirable that a different judge should preside over a retrial.  There are other circumstances in which it is plainly desirable that the same judge should be engaged as where, for example, there is a great deal of pre-trial preparation to be done.  In our view it would be unhelpful to lay down any general principle.  Rather we think it is something which can left to the good sense of judges.  So far as the present case is concerned we recognise no valid criticism of His Honour Judge King’s refusal to stand down.  It is only fair to remark that Mr Pringle did not put this ground in the van of his submissions.  

	For those reasons the appellant Mullen’s appeal was and is dismissed.  

	We now consider Mullen’s and Mustapha’s appeals against sentence of  eighteen and sixteen years, respectively.  

Mullen.

	There is nothing of relevance in Mullen’s record.  He fell to be sentenced for being involved in a conspiracy to export heroin to Ireland.  The overt acts involved three transportation’s each of one kilogram of heroin of approximately 43% purity.  That represented a total street value in Ireland of upwards of £150,000 pounds.  The judge was entitled to regard Mullen as one of, if not, the principal organisers.  A substantial sentence was inevitable.  However, we consider that eighteen years was manifestly excessive.  In our view the proper sentence would have been one of fifteen years imprisonment and accordingly we quash the sentence of eighteen years and substitute one of fifteen years.  To that extent the appeal against the sentence of imprisonment is allowed.  

Mustapha.

	Mustapha had a previous conviction for importing heroin for which he had received a sentence of eleven years.  Although he was entitled to some credit for his plea of guilty it came late in the day and only after an adverse ruling.  However having regard to what we consider to have been the proper sentence for Mullen we quash the sentence of sixteen years and replace it with one thirteen years imprisonment.  To that extent Mustapha’s appeal against sentence is allowed.  

Confiscation.

	We have mentioned the fact that in the appellant Mullen’s case the judge made a confiscation order in excess of £1,000,000 and imposed a default term of imprisonment of six years.  Mr Pringle submits that in so doing the judge was acting unlawfully in that the amount of the confiscation order was far in excess of what the judge had found to be Mullen’s realisable assets.  We consider that Mr Pringle’s submission is based on a misunderstanding of what the judge had found and a misconception as to what the law is.  By Section 5(1) of the Drug Trafficking Act 1994 the court first has to assess the value of the defendant’s proceeds from drug trafficking.  The judge heard evidence which did not include any from the appellant save in so far as he had given evidence in his own behalf during the trial and found that the proceeds of drug trafficking were £9,100,000.  That finding is not attacked.  By Section 5(3) of the Act the court may make a confiscation order in a lesser sum than the value of the proceeds if it finds that the realisable assets are less than that figure.  It is for the defendant to satisfy the court that the amount realised was less than the amount of the proceeds, see R -v- Llsemann (1990) 12 CAR (S) 398.  In the event Mr Pringle did satisfy the judge that the realisable assets were less than the proceeds of drug trafficking.  It was found that the profit element to appellant was £2,210,000.  The judge then went on to find on the evidence that £1,023,863.62 had passed through the appellant’s hands during the five years prior to his arrest on the 14th March 1997.  He found that sum represented the appellant’s realisable assets and at one time, or so it appears from the transcript, Mr Pringle was not disputing that figure.  The judge did not find, as Mr Pringle seems to think, that the realisable assets were £175,000:  £175,000, being what was left of the cash recovered on the appellant’s arrest, was the amount of the known or traceable realisable assets.  The court is by no means limited to a confiscation order in the amount of traceable or known assets.  As Lord Lane Lord Chief Justice said in R -v- Dickens (1990) 91 CAR 164, at p.167.
"The provisions are intentionally draconian since the amount of those proceeds in the size of his realisable assets at the time of the conviction are likely to be peculiarly within the defendant’s knowledge, it is not surprising perhaps if evidential burdens are cast upon him of a kind which are, to say the least, unusual in the area of criminal law and this, despite the fact that the confiscation order and the penalties for failing to comply with it may be rigorous."

In this case the appellant had given evidence at trial that he had access to very considerable sums of money indeed.  The burden lay upon him to show that his realisable assets were less than the proceeds of drug trafficking.  He chose, for good reason or ill, not to give evidence.  We can find no error in the approach adopted by the judge or anything to condemn in his eventual finding.  The confiscation order will stand as will the term of imprisonment in default.  

MR PRINGLE: My Lord, two small matters.  First, may I ask you, with every expectation of refusal, to consider certifying a question as to whether or no a man with no proven record for escape or for violence can receive a fair trial if handcuffed?  I am expecting you to say you will not certify such a question.
LORD JUSTICE MANTELL: Well, I would have to ask the members of the court.
MR PRINGLE: I need to exhaust my remedies.
LORD JUSTICE MANTELL: Yes.  Is there any other question you wish us to certify?
MR PRINGLE: No, I think I have, I accept, spectacularly lost on the Drug Trafficking Act matter so it is on the handcuffs that I ask you to certify.
LORD JUSTICE MANTELL: We would not wish to disappoint you Mr Pringle.  We decline to certify.
MR PRINGLE: My Lord.  It is said that the definition of Chutzpah is the man who murders his parents and then claims mitigation as being an orphan.  My next application may surprise you.  It is an application‑‑‑‑
LORD JUSTICE MANTELL: I doubt it Mr Pringle.
MR PRINGLE: It is an application for costs.  Your Lordships will remember that when I last appeared before your Lordships I did not have the faintest idea who was instructing me.  I thought I was probably instructed by  the Registrar although I might have been instructed pro bono by a private solicitor and the problem that arose arose from the fact that I was privately instructed at trial and retrial although not properly paid on the retrial because the moment the retrial ended the police officer who sits behind me here, immediately, and I will not use the word purloined, immediately lawfully appropriated all the monies remaining from the briefcase and paid them into the Magistrates Court where they stayed.  That meant that there was a hiatus in as much as my solicitors and myself were not paid at all for the duration of the preparation of this appeal.
      Leave was originally granted by the single judge on the grounds of ‑‑ on the sentence matter.  Now it may be a Pyrrhic victory that my 24‑year‑old client's sentence has gone down from 24 years to 21 years, but I have won, to a limited extent, on the ground of appeal for which leave was given at a time when I was notionally privately represented.  Then matters proceeded until just before the hearing of the actual appeal when the Registrar took over saying that he could not help my solicitors break the Gordian knot as to where the money was and who was to be paid, but that in the interests of justice if Mr Mullen was to be represented then he (the Registrar) would instruct me  for the appeal.  That meant that all work done between the conviction and the granting of legal aid by the Registrar was effectively unpaid.  That was at the time when leave had been granted for an appeal against sentence which has now succeeded and so I ask for costs in relation to the appeal against sentence so that my instructing solicitors and myself might have some small pittance for that period.  If you were to ask me to quantify I would but I would like you to decide in principle as to whether or not you think it is appropriate when you win on part of the appeal that you get part of your costs?
LORD JUSTICE KAY: From where?
MR PRINGLE: From my own pocket as a taxpayer. From central funds.
LORD JUSTICE KAY: It is all very well us saying you can get costs but we have to say where you get costs from.
MR PRINGLE: From central funds, my Lord.
LORD JUSTICE MANTELL: It would be quite wrong that you should go unrewarded for your efforts, Mr Pringle.
MR PRINGLE: I will be rewarded to some extent from when the Registrar intervened.
LORD JUSTICE MANTELL: You are privately instructed but you say funds are not available to the your client from which‑‑‑‑ 
MR PRINGLE: The High Court sequestered the money that was in the safe deposit box saying that the defendant could not have the money but he could pay for his legal costs.  That is what happened in the first trial and it is what happened for half of the second trial.  After the conviction, despite the fact that His Honour Judge King said that he ‑‑ he did not disagree, he said that the High Court Order should be obeyed ‑‑ after the second trial although the Crown and the Crown Prosecution Service were on notice that there was an active appeal against conviction, the officer who had control of the bank account paid the money into the Magistrates Court with a view to settling the DTOA monies.
LORD JUSTICE MANTELL: The upshot is that your client, albeit that at one time he had money, is now without funds.
MR PRINGLE: He is absolutely without funds and that is why he is doing another six years.  He is without‑‑‑‑
LORD JUSTICE MANTELL: We will not get into that.
MR PRINGLE: He is without visible funds.  He is certainly without funds that he was going to give my solicitors or me and so‑‑‑‑
LORD JUSTICE MANTELL: That runs counter to the finding of the judge that he has realisable assets in a certain  amount in excess of those sums which have been sequestered.  That is the basis, I suppose, upon which this court must approach it.  I suppose the moral might be "get payment on account".
MR PRINGLE: Except, my Lord, with respect ‑ and I do not want to detain the court ‑ that does not meet head‑on the argument that he has won part of his appeal.  The last thing I want‑‑‑‑
LORD JUSTICE MANTELL: That is a separate question.  The question is should he have his costs in relation to that part of the appeal where he has succeeded?
MR PRINGLE: Well, he should, but I do not want it to be paid to him as it will go straight off to the Magistrates Court again.  I wanted it to be paid to my solicitor and me.  So he should have his costs to be paid to my solicitors on that part of the appeal.
LORD JUSTICE KAY: There is no power to make such an order, is there?
MR PRINGLE: Why not, with respect?
LORD JUSTICE KAY: The only costs that can be recovered are costs that he properly incurred.  He incurred. Unless he agreed to pay you some sum or agreed to pay you reasonable remuneration in advance, which as I understand it did not happen, he was not in a position‑‑‑‑ 
MR PRINGLE: He did agree to pay reasonable remuneration‑‑‑‑
LORD JUSTICE KAY: For this work?
MR PRINGLE: For this work.  Because the High Court had said that he could have his legal costs out of what was left in the safe deposit box.  Then when he could not get at that we entered into a lacuna.  So he agreed to pay from monies that the High Court said that he could have access to for his legal services, but then when he could not get access to it we then hit the log jam that the Registrar had to sort out later on.  So he agreed to pay but cannot pay from monies that he was‑‑‑‑
LORD JUSTICE MANTELL: Cannot or will not, I think we have to say.
MR PRINGLE: He cannot pay it from the money that has been paid into the Magistrates Court because he cannot get access to it.
LORD JUSTICE MANTELL: The judge has found and been upheld in his finding that he has money over and above the sums which were paid into the Magistrates Court and it is out of those sums that the court is likely to find that he has the ability to fulfil his obligations to you and your solicitors.
MR PRINGLE: With respect, my Lord, the argument is now becoming circular.  That does not meet the issue of  whether or not he is entitled to his costs on the bit of the appeal he has won on and I am applying for his costs as a privately instructing or notionally privately instructing defendant or appellant.  I am applying for his costs on that portion of the appeal that he has won on.
LORD JUSTICE MANTELL: Let us hear‑‑‑‑
MR PRINGLE: I have given up, with respect ‑‑ my Lord, I did not mean to interrupt you.  I have given up on the second half of the trial and most other aspects.  This is just been a veil of tears this case.  A small something seems to me to be within the power of the court.
LORD JUSTICE MANTELL: It is a very unusual situation Mr Pringle.  Speaking for myself I certainly have not come across it before.
MR PRINGLE: Nor I, and I pray never again.
LORD JUSTICE MANTELL: Mr Walsh, can you help on this at all?
MR WALSH: My Lord, I am afraid I did not know about this part of the application until my learned friend stood up and made it. I hope the Crown can be forgiven for taking a fairly cynical view of his assets and ability to pay. The learned judge found that he had benefited in excess of £9 million. 
LORD JUSTICE MANTELL: Let us go straight to the point upon which Mr Pringle chiefly relies and that is that he has won to the extent that sentence has been reduced from 18 years to 15 years.  Should he have some costs from somewhere on that?  Certainly not of course against you.
MR PRINGLE: That is not the application.
MR WALSH: I am grateful.  My Lord, in principle I would agree with that submission.  Quantifying it would be a much more complicated task.
LORD JUSTICE MANTELL: It occupied a very, very small part of the appeal.
MR WALSH: Yes.
LORD JUSTICE MANTELL: The application for costs is taking a substantial time.  We shall retire.
 
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LORD JUSTICE MANTELL: Mr Pringle, have you got legal aid now?
MR PRINGLE: I am assigned by the Registrar for the purposes of the last hearing and I take it for today.
LORD JUSTICE MANTELL: Yes.  We think the appellant should have a defendant's costs order in relation to the work connected with the appeal against the sentence of  imprisonment.
MR PRINGLE: Thank you, my Lord, and solicitors and counsel?
LORD JUSTICE MANTELL: Costs will be assessed.
LORD JUSTICE KAY: There would not be any solicitors, would there?
MR PRINGLE: There were.
MR JUSTICE SACHS: What did they do?
MR PRINGLE: They spoke to me on a weekly basis for about an hour and a half a week.
LORD JUSTICE KAY: About the sentence of imprisonment? Give us some flavour of what these conversations were.
MR PRINGLE: My Lords obviously the conversations were more about the application against conviction.  I accept that the appeal against sentence, as your Lordships have rightly pointed out, played a small part.  Can I leave it that we approach the taxation authorities?
LORD JUSTICE MANTELL: Yes.