IN THE HIGH COURT OF JUSTICE	CO/0530/2003
QUEEN'S BENCH DIVISION
DIVISIONAL  COURT
Royal Courts of Justice
The Strand
London

Thursday  10  June  2003
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

and

MR  JUSTICE  GOLDRING

_______________

The Queen

on the application of Ellis
Claimant
and

The Chief Constable of Essex Police
Defendant
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
_______________

MR TIM OWEN QC and MR PAUL MYLVAGANAM (instructed by Messrs Sanders Witherspoon) appeared on behalf of THE CLAIMANT
MISS ANNE STUDD (instructed by Police Force Solicitor, Essex) appeared on behalf of THE DEFENDANT
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POST JUDGMENT PROCEEDINGS
(As Approved by the Court)
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	Thursday 12 June 2003
1.	THE LORD CHIEF JUSTICE: For the reasons given in the judgment of the court which has been handed down, we make no order on this application. For the assistance of the press, we have provided a summary. It bears the legend on the top “Note this summary has been prepared to assist the press in interpreting the judgment but should not be relied upon without reference to the full judgment”. I emphasise that.
2.	MR OWEN: My Lord, there are two issues. The first is the question of the way the claimant is described in the judgment. The draft that we have received has described him as The Queen on the application of E. My Lord, we on behalf of Mr Ellis have never sought to anonymise him.
3.	THE LORD CHIEF JUSTICE: My copy has his name. It is certainly not intended that his name should be anonymised.
4.	MR OWEN: My Lord, I thought that the press may be concerned. My Lord, the second issue is costs. I do make an application --
5.	THE LORD CHIEF JUSTICE: Can I help? It may not help at all, and it is not meant to inhibit you, but the order that my Lord and I consider would be appropriate, subject to your persuading us otherwise, is no order as to costs.
6.	MR OWEN: My Lord, would you hear me briefly on that?
7.	THE LORD CHIEF JUSTICE: Yes.
8.	MR OWEN: Insofar as one is analysing the outcome of the judgment for Mr Ellis, in my submission the outcome not only vindicates the bringing of the claim on his behalf, but has substantially achieved the outcome that he would wish because in my submission it is clear, not least for reference to inappropriateness of the use of any offender with children, that he could not be a suitable candidate for inclusion, even on a reappraisal. My Lord, that is the individual circumstance.
9.	The second is that what the judgment, in my submission, has demonstrate is that insofar as the Essex Police sought a green light for the existing scheme, they have not received that and the court has indicate that it would not be appropriate to proceed -- indeed it would not be lawful to proceed -- with the existing scheme which requires a good deal more work and research before it could be capable of being shown to be lawful.
10.	My Lord, I fully appreciate that in this type of case on one view it is one public authority paying another. But, my Lord, there are two reasons why I would ask that the order be made in this case.
11.	THE LORD CHIEF JUSTICE: You are not being financed by some charitable organisation?
12.	MR OWEN: My Lord, no. The position is this. It was a tremendous battle to get legal aid at all in this case. My instructing solicitor -- and the history is set out in his witness statement -- had to act without legal aid from December until 19 March. That included visiting Mr Ellis to obtain further information, letters to the Essex Police, who would not stop the campaign unless an order was obtained from the court. The Legal Services Commission refused it repeatedly.
13.	THE LORD CHIEF JUSTICE: That is not the fault of the Essex Police.
14.	MR OWEN: No, it is not the fault of the Essex Police, but it is a reason why there is a substantive difference in this case. I accept it could not alter the principle. If the principle was that no order should be made, of course that is the position. But it does explain at least why I am pursuing it. It was not until 19 March, after Lightman J had granted permission, that it was granted by the Special Cases Unit.
15.	THE LORD CHIEF JUSTICE: We have no power to back-date the legal aid?
16.	MR OWEN: No, that is right. No, there is no power. In a criminal appeal it can be back-dated and a defence costs order can be made, but not in civil.
17.	My Lord, the second point is the more general one of principle. The Legal Services budget is under pressure. They receive criticism -- indeed, it may be an apprehension of criticism of funding a convicted burglar to bring this type of case that led to nervousness. If indeed, as I submit, the substantive outcome of this case is to vindicate the bringing of the case --
18.	THE LORD CHIEF JUSTICE: Well, the court has already indicated that it was a proper case to bring.
19.	MR OWEN: And indeed the Essex Police themselves could have come to court to seek an advisory declaration. They did not. They wished to proceed with Mr Ellis. We brought the case. The effect is that it cannot be pursued against him and indeed any other proposed campaign requires further work. Therefore the outcome is substantively -- I do not mean to use that in a silly way -- but every time the Legal Services Commission brings or supports a case and does not obtain a costs order, the impact on the budget is obvious and therefore more generally -- and I am concerned to protect their interests rather than Mr Ellis' himself for whom it makes no difference at all -- I do submit that a fair outcome here would be an order for costs, or at the very least an order for costs up to the grant of permission, and thereafter when legal aid was granted possibly no order for costs.
20.	THE LORD CHIEF JUSTICE: I think we might be in difficulty then, Mr Owen, even though we are sympathetic to you, because what we would be doing would be making it absolutely apparent --
21.	MR OWEN: My Lord, perhaps I should withdraw then.
22.	THE LORD CHIEF JUSTICE: Yes.
23.	MR OWEN: My Lord, that is the application.
24.	THE LORD CHIEF JUSTICE: We do not need to trouble you, Miss Studd. There will be no order for costs. We do appreciate the force of the points that Mr Owen made. It is very important that even though a cause is unpopular, if it is an appropriate cause to be brought before the courts, where there is a genuine dispute which requires the objective assessment of the courts, despite the fact it is an unpopular cause, the Commission do in the appropriate cases provide legal aid. Having said that, I emphasise: no criticism is made of the decision in this particular case. Until all the facts are available, it is often very difficult to make an appropriate assessment and the picture changes as a consequence of the facts being produced. This court recognises the difficulties which that body, who has limited resources, has in deciding how those resources should be appropriately allocated. Thank you very much.
25.	MR OWEN: My Lord, I need a public funding assessment.
26.	THE LORD CHIEF JUSTICE: Yes.