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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nero & Anor v Director of Public Prosecutions [2012] EWHC 1238 (Admin) (29 March 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1238.html Cite as: [2012] EWHC 1238 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		29th March 2012

1. LORD JUSTICE LAWS: These are two appeals by way of Case Stated which are closely linked and have accordingly been listed together. For reasons which will become apparent, I will refer to the first appeal, in which the appellants are Matthew Richardson and Gwen Wilkinson, as the section 68 appeal and the second appeal, in which the appellants are Jessica Nero and Christopher Osmand, as the section 69 appeal. Both concern decisions made by District Judge Baker at Highbury Corner Magistrates' Court to convict the respective appellants of offences under the Criminal Justice and Public Order Act 1994 arising out of events which happened at the Ahava Shop in Covent Garden. Paragraphs 1 to 4 of the Stated Case in each appeal are identical and set out the background facts as follows:

"1. Ahava is a shop in Covent Garden were products extracted, processed and imported from the Dead Sea are sold. Health and beauty treatments are also carried out on the premises using such and other products. Not all the products sold or used on the premises originate in in the Dead Sea, but the vast majority do.

2. Ahava is owned by a UK registered limited company Ahava (UK) Limited, a subsidiary of Ahava Dead Sea Laboratories Limited, an Israeli company. There is evidence that the UK company is supported financially by its parent company, whose factory is situated in Mitzpe-Shalem, an Israeli settlement in the West Bank in the occupied Palestinian Territory (OPT).

3. The UK government subscribes to the international view that Israeli settlements in the OPT do not form part of the territory of Israel. This is also the view of the United Nations, the International Court of Justice, the European Union and other international organisations and bodies.

4. Ahava's products are labelled for consumers in the UK as 'made by Dead Sea Laboratories Limited, Dead Sea, Israel.'"

2. Mr Richardson and Miss Wilkinson were convicted of an offence of aggravated trespass under section 68 of the 1994 Act on 21 November 2011. Section 68 provides, as far as relevant:

"1. A person commits the offence of aggravated trespass if he trespasses on land... and in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land... does there anything which is intended by him to have the effect -

(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity.

(b) of obstructing that activity or -

(c) of disrupting that activity.

2. Activity on any occasion on the part of a person or persons on land is "lawful" for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land."

3. I turn to the undisputed primary facts of the section 68 appeal as recounted in the stated case:

"5. Mr Richardson and Miss Wilkinson enter the Ahava Shop on 2 October 2010 with a heavy item that they or others had made, essentially a concrete tube. They were helped by colleagues. They placed it on the floor and then positioned themselves with one arm each through the tube. They connected their arms through the tube with a padlocked chain. They later said they had no key to the padlock. They had no intention of buying anything in the shop or using its services, on the contrary they intended to prevent the shop trading in the way it otherwise would have done.

6. Mr Richardson and Miss Wilkinson considered that in doing so they were preventing the committing of a crime or crimes...

7. On 2 October 2010 the Ahava Shop was staffed by a Miss Monica Kania, an employee. She had worked there for 4 years. She had experience of earlier demonstrations and had an idea what to expect. As a result of what Mr Richardson and Miss Wilkinson began doing she approached them and tried to stop them and to expel them from the stop. Mr Richardson and Miss Wilkinson failed to leave after it was made clear to them by her words and actions that they should do so.

8. Miss Kania called the police and after some time closed the shop. She considered that it was not possible to continue trading in the circumstances that Mr Richardson and Miss Wilkinson had created.

9. There is no suggestion that Ahava or its employees were occupying the shop premises as trespassers.

10. Police officers, including Inspector Clive French, PS Stephen Jaques and others attended the Ahava store. They described Mr Richardson and Miss Wilkinson as "very polite", "very helpful" and "a pleasure to work with". Officers used a hammer and a screwdriver to break through the concrete and Mr Richardson and Miss Wilkinson assisted the officers in this task. When they had been released from the concrete tube Mr Richardson and Miss Wilkinson were arrested and charged with an offence under section 68 of the Criminal Justice and Public Order Act 1994."

4. Miss Nero and Mr Osmand were tried together with Mr Richardson and Miss Wilkinson, and on 21 April 2011 were convicted under section 69 of the 1994 Act of an offence of failing to leave the premises knowing that a direction to do so had been given by the senior officer present. Section 69 provides, as far as material:

"1. If the senior police officer present at the scene reasonably believes -

(a) that a person is committing, has committed or intends to commit the offence of aggravated trespass on land... or -

(b) that two or more persons are trespassing on land... and are present there with the common purpose of intimidating persons so as to deter them from engaging in a lawful activity or of obstructing or disrupting a lawful activity he may direct that person or, as the case may be, those persons or any of them to leave the land.

3. If a person knowing that a direction under (1) above has been given which applies to him -

(a) fails to leave the land as soon as practicable... he commits an offence.

4. In proceedings for an offence under (3) it is a defence for the accused to show -

(a) that he was not trespassing on the land or -

(b) that he had a reasonable excuse for failing to leave the land as soon as practicable or, as the case may be, for again entering the land as a trespasser.

6. In it section "lawful activity" and "land" have the same meaning as in section 68."

5. The facts of the section 69 appeal, as set out in the Stated Case, are these:

"5. Mr Osmand and Miss Nero entered the shop on 22 November 2010 with a heavy item that they or others had made, essentially a concrete tube. They were helped by colleagues. They placed it on the floor and then positioned themselves with one arm each through the tube. They connected their arms through the tube with a padlocked chain. They later said they had no key to the padlock. They had no intention of buying anything in the shop or using its services. On the contrary, they intended to prevent the shop trading in the way that it otherwise would have done.

6. Mr Osmand and Miss Nero considered that in doing so they were preventing the committing of a crime or crimes...

7. Mr Osmand and Miss Nero, along with their colleagues Mr Richardson and Miss Wilkinson, had conducted extensive research on the activities of Ahava. This has led them to conclude that the company and its employees at the shop had been acting unlawfully. This evidence... was compiled into lengthy documents which were handed out to police officers and members of the public at the scene.

8. When the police were called, PS Hayman, who had never dealt with aggravated trespass before, took advice from his Inspector about the procedure to be followed. He printed out and later read the necessary warnings to the defendants for the purposes of section 69. He satisfied himself that the premises were lawfully occupied and that the shop was meeting its obligations in that regard. He did not engage with the detailed allegations of unlawfulness made by Mr Osmand and Miss Nero.

9, a police team removed Mr Osmand and Miss Nero from the concrete block. This took several hours. Both defendants were compliant throughout this procedure. Once they were removed from the concrete block they left without incident, albeit under arrest."

6. On the section 68 appeal District Judge Baker concluded that in the circumstances the employee at the shop, Miss Kania, was the person "engaged in lawful activity", and section 68 was not directed at the company, Ahava (UK) Limited. The District Judge was satisfied that Miss Kania for her part was not committing any offence. The appellants had maintained, and maintain in this court, that the company was guilty of aiding and abetting war crimes contrary to section 52 of the International Criminal Court Act 2001; of misleading labelling contrary to the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer (Safety) Regulations 2008; of cheating the revenue contrary to common law and of the possession and use of criminal property contrary to section 329 of the Proceeds of Crime Act 2002.
7. District Judge Baker considered that if his primary view was wrong and section 68 was potentially directed at the company, as opposed to the individual only, he was not trying the company and had heard no argument on their behalf. In the circumstances, he "could do no more than accept that the shop was trading lawfully": see the Case Stated in the section 68 appeal paragraph 30. The District Judge rejected the allegations of misleading labelling and cheating the public revenue for reasons which he gave.
8. In the section 69 appeal the District Judge accepted that PS Hayman had reasonable grounds to believe that a lawful activity was being carried on at the shop and held that the appellants had failed without reasonable excuse to leave the premises as soon as practicable upon knowing that they had been directed to do so by the officer.
9. In the section 68 appeal, the questions stated for the consideration of this court are:

"1. Was I correct in ruling that "the persons engaged in a lawful activity" in this case meant the employee present whose activities were disrupted by the actions of the defendants rather than the company that owns the shop?

2. Was I correct in holding that only individuals who would be liable to be prosecuted personally could be considered to be "committing an offence" for the purposes of section 68(2)?

3. Was I correct in holding that until such time as Ahava (UK) Limited is prosecuted and the defence arguments are properly tested I could do no more than accept that its shop is trading lawfully?"

There was a fourth question upon an issue no longer pursued by the appellants.

10. In the section 69 appeal the questions are:

"1. Was I correct in finding that PS Hayman had a reasonable belief such as to entitle him to give a valid direction under section 69?

2. Was I correct in concluding that the defendants were not entitled to claim that they had left as soon as practicable after being given a direction to do so when they had created a state of affairs that made it impossible for them to leave as soon as they would otherwise have been able to in the absence of that state of affairs?"

11. It is to be noted, as the appellants emphasise, that Camden Trading Standards Officers have investigated Ahava (UK) Limited for possible breaches of consumer protection legislation, but no prosecutions have been brought nor any action taken by any public authority to prevent the company from importing its products into the United Kingdom or from carrying on its retail trade here.
12. The essential issue in the section 68 appeal in my judgment is not precisely captured by any of the questions posed by the District Judge for the consideration of this court. It is whether the prosecution have proved that a lawful activity was being carried on at the shop.
13. I should first indicate that I consider, with respect, the District Judge to have been wrong to conclude that on its true construction the term "lawful activity" in section 68 refers only to an activity or activities being carried on by a natural person or persons at the premises. The term "person" where it appears in statute includes a body corporate unless the contrary intention appears: section 5 of and paragraph 1 of schedule 1(2) to the Interpretation Act 1978. I do not consider that a contrary intention appears from the context in which the expression is used, namely the surrounding provisions of section 68. Though terms such as "obstruct" and "disrupt" apply naturally to the activities of individuals, there may be cases where an activity is properly categorised as that of a company.
14. I will therefore answer the first and second stated questions in the negative. The District Judge was in error in confining the term "persons engaged in lawful activity" to the person, Miss Kania, who was employed at the shop and also in holding that only natural persons liable to be prosecuted were within the purview of section 68(2). I should add that I do not consider this conclusion to be inconsistent with the view of Rafferty J as she then was in Tilly [2001] EWHC Admin 821 to the effect that section 68 contemplates the physical presence of a person on the land where the activity is carried on. Miss Morgan for the respondent relied on this case this morning, but it does not to my mind suggest that a company's activities could not be obstructed or disrupted within the meaning of section 68.
15. In effect, I consider that questions 1 and 2 in the Case Stated in the section 68 appeal are the same question: is the section directed only to the activities of natural persons? As a matter of construction, I would hold that it is not so confined.
16. I turn to the principal issue in the section 68 appeal, which is obliquely raised by question 3. It is: have the prosecution proved that a lawful activity was being carried on at the shop? The appellants say that it is clear that Ahava (UK) Limited are carrying on an activity at the shop, namely the retail sale of goods manufactured in and imported from the OPT. They say that it is no less clear that they, the appellants, had raised an issue or issues as to the legality of that activity. They assert that the activity was criminal in the four respects which I have already specified. In those circumstances their submission is that they could not be properly convicted of the section 68 offence unless the prosecution proved to the criminal standard that the company was not guilty of any of those offences. It was also submitted to the District Judge (see paragraph 18 of the stated case) that the prosecution had to prove that the employee or employees of the shop were not guilty of aiding and abetting any of the company's crimes and also not guilty of offences under The Proceeds of Crime Act 2002 on the footing that they "suspected" that the goods at the shop were being unlawfully sold. But it is plain from counsel's skeleton argument (see paragraph 44), and indeed from Mr Bunting's submissions this morning, that the primary focus is on the company.
17. At its simplest the appellant's case rests on a straightforward appeal to the words of the statute. The lawfulness of the activity being carried out on the land is an ingredient in the offence of aggravated trespass. Accordingly, where material is advanced to indicate that the activity is or might not be lawful then, in the ordinary way, the prosecution must negate that defence to the criminal standard. The District Judge stated that the appellants had "put forward a body of arguments and evidence that seems to have considerable weight". They had certainly amassed a substantial array of material. It may be summarised as follows:

- A witness statement from Merav Amir dated 22 March 2010 showing that the factory of the parent company was situated in the settlement of Mitzpe-Shalem within the OPT.

- Records showing that 37 per cent of the shares in Ahava are owned by the Kibbutz of Mitzpe-Shalem.

- Evidence from Odelia Haroush, a shop manager and employee of Ahava (UK) Limited, that the employees of the Mitzpe-Shalem factory were from Israel rather than from the OPT.

- Advertisements from the Jewish Agency of Israel suggesting that Mitzpe-Shalem was an attractive location for Israeli citizens to live.

- Article 49 of the fourth Geneva Convention, criminalising the transfer of a civilian population from an occupying state to a territory under belligerent occupation.

- Material relating to suggested labelled offences, including the labels used in Ahava's shop, technical guidance from the Department of Environment, Food and Rural Affairs suggesting that it would be misleading and almost certainly an offence to suggest that produce from the OPT was a product of Israel; the investigation of Ahava by Camden Trading Standards in relation to the labelling of products.

- The authority of Brita GmbH v Hauptzollamt Hamburg-Hafen (case C 386/08) in relation to the EC-Israel Association agreements; a BBC interview given by the suggested CEO of Ahava (UK) Limited, Yaacov Ellis, mentioning the EC-Israel Association agreements; and excerpts from Hansard suggesting that Ahava (UK) Limited had sought to gain import preference for its product by reliance on the EU Israel Association agreement.

18. Mr Bunting for the appellants has added a good deal of detail to this in a useful speaking note produced this morning. Amongst other things, that gives particulars of the appellant's allegations pursuant to section 52 of the International Criminal Court Act 2001 and the regulations relating to labelling. It covers all of the offences which the appellants allege are involved in the case.
19. Neither the police nor the prosecutor nor the District Judge came to grips with any of this material. As I have shown, the District Judge indicated "that he could do no more than accept that the shop was trading lawfully." Mr Bunting submits that this was a fundamentally misconceived approach. The District Judge was obliged to come to grips with the merits of the appellant's legal case. He invokes support not only from the language of section 68 but also from two general principles of the law. The first of these is the importance attached by the law to the right of peaceful protest; see paragraphs 20 to 23 of Mr Bunting's skeleton. That is what the appellants were doing on 2 October 2010. The charge of aggravated trespass constitutes an interference with the right, indeed an interference with this right of free expression guaranteed by article 10 of the European Convention on Human Rights. Accordingly, its purported legal justification (see section 68) ought at the least be strictly construed. This serves to emphasise, as I understand it, the need for the prosecution strictly to prove the legality of the activity.
20. The second general principle on which the appellants rely is that the law will not lend its aid to any legal or immoral act, articulated in the Latin expression ex turpi causa non oritur actio. Again, this is prayed in aid to emphasise the requirement that the prosecution must prove the legality of Ahava's trade.
21. The earlier decision of this court in Ayliffe and Others [2006] QB 227 (Waller LJ and Jack J) bears some affinity to the present case. The various appellants there had been convicted of offences under section 68. They had disrupted activities at military installations. They asserted, among other things, that there was "was a strong possibility" that the activities being carried on at the bases were unlawful, as constituting war crimes and/or aiding and abetting war crimes under sections 51 and 52 of the International Criminal Court Act 2001. The basis of this contention was that the activities amounted to preparations for the prosecution of the war in Iraq, against which the appellants mounted an energetic protest. They sought disclosure of documents relating to the activities, which the District Judge dealing with the cases at first instance refused. They were convicted of the offences with which they were charged. The Divisional Court dismissed their appeals. Waller LJ, with whom Jack J agreed, said this at paragraph 50, page 243 H:

"It is plain that a prosecutor does not have to rebut every possible illegality. It is enough that he shows that the activity is apparently lawful. It is then for the defendant to raise any issue to the contrary. It was accepted by Mr Mendleson on behalf of the defendants that in order to obtain disclosure in the context of the legality of activities and section 68, the defendants had to raise an issue as to whether or not an offence was being committed. That must mean a specific offence or specific offences by the persons who are engaged in the activities on the land in question. There was nothing put forward by the defendants to raise such an issue."

Then at paragraph 57, page 245 D:

"the District Judge was right to rule that the activity of port operations was lawful. He was not required to consider the legality of the operations because -

(a) insofar as the defendants sought to raise crimes of peace or crimes of aggression, they were not justiciable (R v Jones [2005] QB 259).

(b) insofar as the defendants sought to raise war crimes contrary to section 51 of the 2001 Act, the general allegations made by them did not raise any issue requiring disclosure by the prosecution or consideration by the District Judge in connection with the lawfulness of the activity at the port."

22. As it seems to me, if the appellants are right it means -- and Mr Bunting accepted this in terms -- that the issue of Ahava's complicity in war crimes committed, presumably, on behalf of the state of Israel, would fall to be adjudicated in summary proceedings to which neither Ahava nor any Israeli authority is a party and in which the burden of proof would be reversed. The prosecution would have to disprove guilt in order to establish that the shop's activity was lawful. Such a state of affairs would be so impractical and unjust as to undermine the rule of law; and, I think, it would do no service to the cause of civil disobedience, on which the appellants rightly set such store. I do not believe it was in the legislature's contemplation when section 68 was enacted.
23. Nor is this view, as I see it, in the least undermined by the decision of the European Court of Human Rights in Steel v United Kingdom (1999) 28 EHRR 603, to which Mr Bunting referred in the course of his oral submissions. That case is concerned with the concept of breach of the peace. Mr Bunting says that the right to freedom of expression relevant in Steel is also engaged here, and I have already indicated as much. I cannot accept that any interference with the appellant's Article 10 rights is disproportionate to section 68's legitimate aims. The true question in this case is as to the correct construction of the statute.
24. It is, with respect, little wonder that in Jones and Others [2007] 1 AC 136 Lord Hoffmann said this:

"78. In principle, therefore, the state entrusts the power to use force only to the armed forces, the police and other similarly trained and disciplined law enforcement officers. Ordinary citizens who apprehend breaches of the law, whether affecting themselves, third parties or the community as a whole, are normally expected to call in the police and not to take the law into their own hands. In Southwark London Borough Council v Williams [1971] Chancery 734735 Edmund-Davies LJ said 'the law regards with the deepest suspicion any remedies of self help and permits those remedies to be resorted to only in very special circumstances.'"

Then at paragraph 83:

"the right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own personal property, but simply wishes to see the law enforced in the interests of the community at large. The law will not tolerate vigilantes. If this citizen cannot get the courts to order the law enforcement authorities to act (compare R v the Commissioner of Police of the Metropolis ex parte Blackburn [1968] 2 QB 118) then he must use democratic methods to persuade the government or legislature to intervene."

25. I have not forgotten that, as Mr Bunting submitted, these observations were obiter nor that Lord Mance (paragraph 106) appears to have considered that Lord Hoffmann was addressing himself only to section 3 of the Criminal Law Act 1967. Nevertheless his observations are cast in general terms.
26. Those general observations do not of course tell us how these appellants' case should be dealt with under section 68. But they lend support for the view, which seems to me important and right, that the cause which the appellants wish to champion, if it is to be litigated, can only be litigated in proceedings properly constituted for the purpose. Of course it goes without saying that the appellants are perfectly entitled to demonstrate and protest. But I do not think that the law allows them to resist a prosecution for aggravated trespass under section 68 by requiring an adjudication of the occupation of the Palestinian territories and associated matters.
27. This is in my judgment the result of applying the correct construction of section 68. As Waller LJ said in Ayliffe, paragraph 50, it is enough for the prosecution to show that the activity in question is apparently lawful. If then the defendant seeks to raise an issue to the contrary within the section 68 proceedings he must, in my judgment, do so by reference to facts or events inherent in the activity itself. He cannot rely on the assertion of extraneous facts whose effective investigation would travel into contexts and controversies which are markedly remote from what is actually being done by way of the activities in question. For the purpose of the section, the activity's legality is constituted by the activity's own quality or qualities.
28. This approach is not on all fours with the way in which Miss Morgan put the case for the respondents, though in the course of argument she accepted it. It is an approach which is, as I see it, in harmony with, indeed I consider implicitly required by, the statutory language of section 68. The focus of section 68 is all on the activity being carried on. Section 1(2) ties the issue of lawfulness to a person's engagement in that activity. Broadly, the section provides a defence to aggravated trespass for the person who obstructs or disrupts an activity which is patently unlawful.
29. I have considered whether section 68 should be construed more narrowly so that an activity would only be unlawful if it were unlawful per se; that is, if there were no lawful way in which it might be carried on. But that would be inconsistent with Waller LJ's conclusions in Ayliffe at paragraphs 51 to 52 (which, with respect, I need not set out) and would, I think, draw the statute too tightly so as possibly to include in the offence of aggravated trespass some instances where a defence ought properly to be available.
30. I should add that the approach I favour does not categorically exclude guilt of a war crime (or indeed any of the offences canvassed in this case by the appellants) from constituting illegality for the purposes of section 68. Waller LJ in effect acknowledged that a war crime might qualify (see the last sentence of paragraph 57 in Ayliffe) but in order to do so the facts which go to establish guilt must, in my judgment, be inherent in the activity question.
31. In all these circumstances I would answer the third question in the section 68 appeal in the affirmative and would dismiss that appeal.
32. I acknowledge that this third question posed by the District Judge does not catch the issue as to the meaning of "lawful activity" as I have formulated it; is there a case of illegality based on the quality of the activity, the retail trade, itself? I make it clear that in my judgment there is on the facts here none. The appellant's case would require the investigation and proof of facts and events which are far distant from the quality or qualities of the retail activity at the shop. Thus, for example, the alleged labelling offences require proof that consumers would be misled, and that involves at least a judgment about the status of the West Bank; and there are other matters that arise under the relevant legislation also. The offence of cheating the revenue involves proof that the company dishonestly made false statements and so forth. And all this without hearing a word from the company itself.
33. I turn to the section 69 appeal. It follows from what I have so far said that the first question in that appeal must be answered in the affirmative. Police Sergeant Hayman reasonably believed that the retail activity at the shop was lawful.
34. The second question went to the District Judge's conclusion that the appellants had failed to leave the premises as soon as practicable upon knowing that they had been directed to do so. Their case is that they could not leave while tethered to each other by a concrete pipe. As soon as they were released, they left. In giving judgment in the Magistrates' Court the District Judge said this:

"24. I do not accept that leaving the shop as soon as they were physically able to necessarily means the same as soon as practicable when the defendants have themselves created the situation in which leaving becomes impossible and hence impracticable. To hold otherwise would be to create a situation in which trespassers who act as these trespassers did can succeed in defeating their prosecution more easily than trespassers who have to rely on the more difficult defence of reasonable excuse contained in section 69(4). I cannot believe that was the intention of Parliament when constructing the test of practicability in section 69(3). To accept the defence argument would be inimical to any notion of justice and could open the doors to trespassers taking ever more steps to frustrate the powers of the police under section 69. Given the purpose of section 69 the reading suggested by the defendants would go a long way to defeating its aims."

35. The appellants say that this approach places an unjustified gloss on the words of section 69. Moreover, the District Judge's comments about "ever more extreme steps" to frustrate the powers of the police under section 69 are misplaced. There was no question of any intention to frustrate section 69's operation, only to frustrate the retail trade in the shop; moreover, say the appellants, the "reasonable excuse" defence in section 69(4)(b) is nothing to the point when construing the practicability provision in section 69(3)(a).
36. Miss Morgan for the respondent submits that section 69(3)(a) should be construed so as to avoid a result by which the appellants are allowed to obtain an advantage by reason of a state of affairs caused by their own wrongdoing, namely tethering themselves in the concrete pipe. She submits that the District Judge arrived at the right result.
37. The respondent's argument and the District Judge's conclusion seem to me to confuse section 68 with section 69. The appellants tying themselves together in a concrete tube was punishable if at all as an offence pursuant to section 68, under which, for reasons that have not been explained to us, they do not seem to have been prosecuted. The act of so tying themselves together was obviously done before the Officer ever gave his section 69 direction. On the District Judge's approach, the appellants were inevitably guilty under section 69 as soon as the direction was given. Any amount of time spent tied up in the tube, however expeditious the efforts to release them, meant that they did not leave as soon as practicable. I do not think that can be right; it is unjust and unreasonable.
38. Accordingly, I would answer the second question in the section 69 appeal in the negative and in those circumstances allow the appeal.
39. If my Lord agrees, we will hear counsel as to whether any further relief is required.
40. MR JUSTICE OWEN: I agree and I too would dismiss the section 68 appeal and allow the section 69 appeal, in each case for the reasons given by my lord, Laws LJ.
41. LORD JUSTICE LAWS: On the section 69 appeal, is it enough to say we allow the appeal or do we also have to direct the conviction to be quashed, or what?
42. MR MELLIGAN: My understanding is that the you do have to direct the conviction be quashed and the decision of the lower court be reversed.
43. LORD JUSTICE LAWS: We will so direct.
44. MR MELLIGAN: May I ask for a detailed assessment of costs?
45. LORD JUSTICE LAWS: You are publicly funded, are you?
46. MR MELLIGAN: One client is, one is not.
47. LORD JUSTICE LAWS: One of your clients is?
48. MR MELLIGAN: Yes.
49. LORD JUSTICE LAWS: And you want a detailed assessment for the purposes of the Legal Services Commission for that client?
50. MR MELLIGAN: Yes.
51. LORD JUSTICE LAWS: Which client is it?
52. MR MELLIGAN: That is for Christopher Osmand.
53. LORD JUSTICE LAWS: Yes, it seems appropriate. Are there any other consequential matters?
54. MR MELLIGAN: No, your Lordship.
55. MR BUNTING: My Lord, in reference to the section 68 appeal, your Lordship has given detailed reasons which I will consider in full with both of my clients. I appreciate we have 28 days within which to ask your Lordships for leave to appeal and any further orders, and we will aim to do so as quickly as we can.
56. LORD JUSTICE LAWS: You will appreciate that any appeal goes to the Supreme Court; this is Criminal Court matter.
57. MR BUNTING: Indeed.
58. LORD JUSTICE LAWS: And therefore you will need to persuade us to certify a question before any issue as to leave to appeal could arise?
59. MR BUNTING: Yes, my Lord.
60. LORD JUSTICE LAWS: If you wish to pursue the matter, you will put something in writing copied to the other parties.
61. MR BUNTING: I am very grateful. If I could ask, also, for detailed assessment of both of my lay clients?
62. LORD JUSTICE LAWS: They are both publicly funded, are they?
63. MR BUNTING: They are indeed.
64. LORD JUSTICE LAWS: Yes.
65. MR BUNTING: And I don't know if my learned friend Mr Melligan wishes to seek his costs.
66. LORD JUSTICE LAWS: It is a matter for him not a matter for you.
67. MR MELLIGAN: I do wish to seek my costs out of central funds for Miss Nero, who is privately funded.
68. LORD JUSTICE LAWS: Out of central funds?
69. MR MELLIGAN: Yes.
70. LORD JUSTICE LAWS: You are not seeking an order inter partes against the prosecutor? I am not suggesting you should.
71. MR MELLIGAN: I am not proposing to do so, my Lord.
72. LORD JUSTICE LAWS: I don't imagine you have anything to say, Miss Morgan? Nobody is gunning at you.
73. MISS MORGAN: Nobody is gunning at me at the moment, so I will stick with the current position.
74. LORD JUSTICE LAWS: As we understand it, it is appropriate for the successful defendant, Miss Nero, to have an order for her costs. It is a defence costs order out of central funds, is that right? Do we have to say whether it should be subject to a detailed assessment or is all that wrapped up in the procedure somehow or another?
75. MR BUNTING: Normally that is dealt with separately by a central office.
76. LORD JUSTICE LAWS: We make the order out of central funds. Very well, we do so. Thank you very much. If those are all the matters with which we have to deal, it only remains for me to thank counsel for their illuminating submissions.