CO-957-96
BAILII Citation Number: [1996] EWHC 383 (QB)

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

Royal Courts of Justice
The Strand

Wednesday 19th June 1996

B e f o r e:

LORD JUSTICE HENRY

and

MR JUSTICE SACHS

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R E G I N A

-v-

THE LORD CHANCELLOR
EX PARTE MAXWELL

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Handed down judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

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MR A JONES QC & MISS L SAFFIAN (Instructed by Messrs Peters & Peters, London W1R) appeared on behalf of the Applicant.

MR S RICHARDS (Instructed by the Treasury Solicitor) appeared on behalf of the First Respondent (The Lord Chancellor).

MR N PLEMING QC & MR M LUCRAFT (Instructed by the Treasury Solicitor) appeared on behalf of the Second Respondent (The Serious Fraud Office).

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J U D G M E N T
Wednesday 19th June 1996

LORD JUSTICE HENRY:	 This is the judgment of the Court.  The applicant, Mr Kevin Maxwell, challenges the decision of the Lord Chancellor not to request (under Section 9 of the Supreme Court Act, 1981) Lord Justice Phillips to act as a judge of the Crown Court for the purpose of presiding over the disposal of the remaining stages of the criminal case against Mr Maxwell and others (Indictment No T 930798).  It seems to have come as some surprise to the profession that an administrative discretion relating to the deployment of judicial manpower could be the subject of such a challenge, and to that point we will return.  But the first point to make clear is that no comparison or evaluation of the judicial qualities of the two judges is involved in this challenge and its resolution.

	The matter arises in this way.  In June 1992, the applicant Mr Maxwell was arrested and charged with fraud.  In July 1993, the ten charges that had been preferred against him and his co-accused were transferred to the Central Criminal Court for trial under the serious fraud regime established by the Criminal Justice Act, 1987.  Mr Justice Phillips (as he then was) was appointed the trial judge.  On 19th January 1994 Indictment No T930798 was preferred and signed, containing ten counts against Kevin Maxwell and five co-defendants.  The trial judge ordered a preparatory hearing in relation to those counts under Section 7(1) of the 1987 Act.  On the 31st January 1994 the accused were arraigned, and all pleaded not guilty to all offences.  The significance of arraignment under the serious fraud regime is that it marks the start of the trial (see Section 8 of the 1987 Act).

	The judge's first act in the preparatory hearing was to order severance of the counts in the indictment.  To achieve manageability of the case before a jury, he restricted the first jury trial to Counts 4 and 10 of the indictment.  In so doing, he commented that even trial on those two counts alone went close to the limits of manageability.  In the event 61 days were spent on the preparatory hearing before the trial.  That preparatory hearing was directed to the trial on Counts 4 and 10.  There were then 131 days of trial before the jury.  That trial ended on 19th January 1996 with the acquittal of all defendants (including the applicant) on both counts.

	During the trial, an unusual event had occurred.  On 2nd October 1995, Her Majesty The Queen, pursuant to Section 10(2) of the Supreme Court Act, 1981 by Letters Patent appointed Mr Justice Phillips to be a Lord Justice of Appeal.  That appointment meant that he was no longer qualified under Section 8 of the Supreme Court Act, 1981 to sit as a judge of the Crown Court (as he had been doing to conduct this trial).  He would only have such powers if the Lord Chancellor invited him to continue under Section 9(1) of the Supreme Court Act.  As the balance of public interest clearly pointed to Lord Justice Phillips concluding the trial of Mr Kevin Maxwell and others on the Counts 4 and 10, the Lord Chancellor requested him to sit as a judge of the Crown Court to conclude that trial, and he accepted.  But for that request, he would not have had jurisdiction to continue.

	That trial was concluded on 26th January 1996.  On that date the prosecution indicated that they intended to proceed with the trial of Counts 1, 2 and 9 against Mr Kevin Maxwell, Mr Trachtenberg and Mr Fuller, and a separate trial in relation to Counts 7 and 8 against Mr Stoney.  At that hearing, Lord Justice Phillips made it clear that his jurisdiction to sit as a judge of the Crown Court did not extend to trying the suggested second and third jury trials under the indictment.  Counsel for Mr Maxwell then invited the judge to proceed on the basis that "your Lordship is seised of this trial, which opened when the preparatory hearing began in January of 1994, and there is no power in your Lordship to transfer any further disposal of any part of this trial to another judge."  Lord Justice Phillips made the point that he could hardly be required to deal with the remaining counts as a matter of law if he had no jurisdiction to do so, and that unless the Lord Chancellor requested him to do so he had no such jurisdiction.  Counsel for Mr Maxwell and Mr Trachtenberg made submissions to the Court both as to why he must conduct those trials, and second why he should.  Mr Maxwell's solicitors that evening wrote to the Lord Chancellor, asking him to exercise his powers, stating:
"We contend that it is clearly in the interests of justice and in accordance with the law that Lord Justice Phillips should preside over the second trial.  The reasons for this contention are summarised in the submission of Alun Jones QC which are contained in the attached transcript.  In the circumstances we invite you to issue a further direction to Lord Justice Phillips to sit as a Crown Court judge and to hear any further proceedings against Mr Kevin Maxwell."

They followed that up with a letter of 29th January suggesting that it would be arguably unlawful to appoint a new judge.

	However, on 9th February, The Court Service wrote saying that the forthcoming trial of Mr Kevin Maxwell and others would be listed before Mr Justice Buckley.

	That appointment prompted a judicial review challenge to the Lord Chancellor's failure to request Phillips LJ to sit as a judge of the Crown Court for the remaining stages of the trial, dealing with the remaining counts in the indictment.  That challenge asserted that the Lord Chancellor was bound in law to issue such a request to Lord Justice Phillips, submitting that the case was "part heard" under Section 7(1) of the Criminal Justice Act, 1987, and that having ordered a preparatory hearing in relation to the trial of the indictment, the judge was thereafter bound to preside over the trial or trials of all counts on that indictment in the absence of exceptional circumstances such as ill-health.  We would guess that that submission was a determinative factor in the single judge granting the applicant leave to bring the judicial review challenge now before us.

	We examine the submission that it would be unlawful for Lord Justice Phillips not to try the remaining counts on the indictment.  As a High Court judge, Mr Justice Phillips had jurisdiction to sit in the Crown Court by virtue of Section 8 of the Supreme Court Act, 1981 and High Court judges routinely do so, whenever trying crime.  But that section does not empower Lord Justices of Appeal to sit in the Crown Court.  In our judgment, after his appointment, Lord Justice Phillips would only be empowered to conduct the trial of all the outstanding counts on the indictment if the Lord Chancellor requested him to do so under Section 9(1) or (4), and no such request has been made.  But it is contended that Section 9(7) empowers him so to sit.  That section reads:
"(7)Notwithstanding the expiry of any period for which a person is authorised by virtue of sub-section (1) or (4) to act as a judge of a particular court:

(a)he may attend at that court for the purpose of continuing to deal with, giving judgment in,or dealing with any ancillary matter relating to, any case begun before him while acting as a judge of that court;  and

(b)for that purpose, and for the purpose of any proceedings arising out of any such case or matter, he shall be treated as being or, as the case may be, having been a judge of that court."

	The authority given to him as a result of his acceptances of the Lord Chancellor's mid-trial request under sub-section (1) was to conclude the trial of Counts 4 and 10.  He has concluded that trial.  The trial of the remaining counts are not an ancillary matter relating to that trial, nor are they proceedings arising out of that trial.  It follows that in our judgment the Lord Chief Justice was quite right to say in the letter of 1st February 1996 that the conclusion of the trial on Counts 4 and 10 terminated his powers pursuant to the request under Section 9(1), which entitled him to sit in the Crown Court despite his elevation.  Therefore, unless the Lord Chancellor specially requested Lord Justice Phillips to try the remaining counts on the indictment under Section 9(1), the judge had no power to do so.  The omission of Lord Justices of Appeal from those whom Parliament has automatically empowered to act as Crown Court judges in Section 8 clearly shows that the Lord Chancellor (as the "appropriate authority") has been entrusted with discretion as to whether or not to issue such a request under Section 9(1).  There are no statutory limits placed on the exercise of that discretion:  it is a "strong discretion".  The policy is clear:  that in matters of judicial deployment, Parliament does not seek to lay down how the Lord Chancellor should exercise his discretion.

	Recognising that the Lord Chancellor has such a discretion, Mr Alun Jones QC for Mr Maxwell mounts an irrationality challenge to the Lord Chancellor's decision not to invite Lord Justice Phillips to try the remaining counts on the indictment.  In making such a challenge, the applicant has a mountain to climb.  In his decision not to make this request, the Lord Chancellor was exercising a broad administrative discretion.  That discretion involved a balance between competing facets of the interests of justice.  On the one hand, there was the best disposal of the remaining counts in a single trial, albeit an important one.  On the other, the broader interests of justice in having at the present time a Court of Appeal up to strength and manned as Her Majesty, on advice, had considered that it should be manned.  Parliament has entrusted that decision to the Lord Chancellor:  he is answerable to Parliament for it.

	These courts are not concerned with the merits of such decisions, but only with the legality of them.  The test in irrationality challenges of this kind was set out by Sir Thomas Bingham MR in R -v- Ministry of Defence ex parte Smith [1996] 2 WLR 305 at 336D:
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.  But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important.  The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

	Decisions so unreasonable as to warrant interference jump off the page at you.  For instance, when the Lord Chancellor requested Lord Justice Phillips, on his appointment to the Court of Appeal, to conclude the trial of Counts 4 and 10, that trial was at about the half-way stage.  There had been 61 days of preparatory hearing, and the judge had been seised of the case for more than two years.  If Lord Justice Phillips had not been invited to sit to finish, all that time and expenditure would have been wasted, when (we cannot say "only") another four months would complete the trial.  The Lord Chancellor would never have contemplated not asking Lord Justice Phillips to complete that trial, but had he so decided it seems to us that such a decision might be vulnerable to challenge as irrational.  So the matter is justiciable, but the occasions when such a decision is struck down will, realistically, be rare indeed.

	We start the irrationality enquiry by examining the power to order separate trials of counts in an indictment.

	Section 5(3) of the Indictments Act, 1915 provides:
"Where, before trial, or at any stage of a trial, the court is of the opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."

That is the source of the power of severance.  The "separate trial" normally begins when the jury is sworn and the defendant or defendants are put in charge of the jury:  R -v- Tonner [1985] 1 WLR 344;  thus (absent the serious fraud complication) there is no difficulty in a fresh judge trying the severed count.  But it is axiomatic that you cannot change the trial judge in mid-trial, ie from the time that the jury has been empanelled, until the time that they return to the court room with their verdict.

	The difficulty in relation to the serious fraud regime is that Section 8 of the 1987 Act fixes an artificially early date for the commencement of the trial, namely at the commencement of the preparatory hearing, which will be before any questions of severance have been decided.  That Section reads:
"8Commencement of trial and arraignment

(1)If a judge orders a preparatory hearing, the trial shall begin with that hearing.

(2)Arraignment shall accordingly take place at the start of the preparatory hearing."

	The legislative source of that provision can be traced back to the Fraud Trials Committee Report, chaired by Lord Roskill.  That Committee found that pre-trial hearings were often ineffective and inefficient.  They attached particular importance to them to achieve a just and efficient resolution of fraud trials, and therefore recommended that (at Recommendation 34):
"The judge presiding at the preparatory hearings must be the judge who, save in exceptional circumstances, is to conduct the trial."

The object of such hearings was to identify the issues, to expedite the proceedings, to assist the judge's management of the trial, and to deal with questions as to admissibility of evidence and other questions of law.

	Though that Report was published only ten years ago, in 1986, experience since shows it have been written in what now seems an age of innocence.  Internal evidence shows that the Committee were envisaging preparatory hearings only lasting a day or two.  The 61 days of preparatory hearings in Mr Maxwell's first trial is typical of experience since (and was a preparatory hearing limited to Counts 4 and 10 - though we are told there is a significant area of overlap with the Berlitz counts).  Curiously too, the Roskill Report only refers to the question of severance in a single sentence.  Nor is the question of severance addressed either expressly or by necessary implication in the 1987 Act.

	The commencement of the trial (and its consequences) in serious fraud cases was considered (albeit in a case uncomplicated by questions of severance) by the Divisional Court in R -v- Southwark Crown Court ex parte Customs & Excise Commissioners [1993] 1 WLR 764.  That was a trial under the serious fraud regime.  The court found that there was one preparatory hearing in existence, and that that had been conducted before Judge Anwyl-Davies QC.  But the trial was listed for hearing before Judge Mota Singh QC, simply because of a direction by the presiding judge that Judge Anwyl-Davies should conduct the re-trial of another case.  The court made the basic point that in a criminal trial there is no power to change the judge once the jury is sworn until the moment at which the jury returns to give its verdict (though another judge may take that verdict).  They then applied that same principle by way of analogy to an unsevered trial of serious fraud:
"Does the same principle apply to the trial of serious and complex fraud?  Must the same judge hear the preparatory hearing and the process before the jury?  The advantages of having the same judge throughout the trial of complex and serious fraud cases is set out in paragraph 6.31 of the Fraud Trials Committee Report (1986 HMSO) chaired by Lord Roskill.  It is there stated at page 88:  `Almost all the witnesses who discussed this agreed in their evidence that in principle the same judge should conduct the preparatory hearing and the trial itself.'  The 34th recommendation of that Committee reads (page 182):  `The judge presiding at the preparatory hearings must be the judge who, save in exceptional circumstances, is to conduct the trial.'  In our judgment the correct principle is that stated in the 34th conclusion of the Committee, namely that the judge presiding at the preparatory hearings must be the judge who, save in exceptional circumstances, is to conduct the trial.  Administrative convenience would not be a sufficient reason for changing the judge in a complex and serious fraud case between the preparatory hearings and the proceedings in front of the jury.  What amounts to exceptional circumstances will have to be resolved in a case-by-case basis.  Clearly the death or serious illness of the judge would qualify as an exceptional circumstance."

That decision of another constitution of this Court binds us unless we conclude that the earlier decision is clearly wrong.  We do not think that it is.  But what was said, both by the Roskill Committee and also by the Court, contemplated a whole, (ie non-severed) trial of the indictment.  We would not accept that "exceptional circumstances" are necessarily the test where the trial has been severed.  But if that is the test in such trials, then the level of the threshold required for exceptional circumstances must sensibly be lower in a severed trial where there has been no preparatory hearing specifically related to the severed counts (though there will usually be, as there is here, some degree of overlap) than in an unsevered trial where the preparatory hearing was focused on that trial.  And in any event we have no hesitation in concluding that the legal incapacity to continue to act as the trial judge for the remaining counts which occurred when Lord Justice Phillips' remit under Section 9(1) expired with the conclusion of the trial of Counts 4 and 10 must be capable of constituting exceptional circumstances.  We reject entirely the suggestion that the reason for not requesting Lord Justice Phillips was "administrative convenience".  It quite plainly was not.  The Lord Chancellor was deciding on the best deployment of judicial manpower in the proper administration of justice.  That was the right criterion.

	We come then to the critical question of judgment for the Lord Chancellor.

	The factual framework for that question is quite clear without going into detail.

	Lord Justice Phillips undoubtedly is "uniquely well placed" to try the remaining counts on this indictment.  The Crown put the indictment forward as "one fraud", and though there have been no preparatory hearings (nor orders other than severance) in relation to the remaining counts and though there will be a new jury or juries sworn in relation to them, the overlapping background knowledge he has of the case and the practical and legal problems thrown up by it, all justify the description "uniquely well placed".  While the Serious Fraud Office do not support the application (because they do not see how the Lord Chancellor's decision can be called "irrational"), they acknowledge that it would assist the future conduct of the case if it were conducted by Lord Justice Phillips.  Because of his familiarity with the subject-matter, he would have to do less reading or re-reading and would require less help from the parties.  So the trials would start and so finish sooner, and be cheaper.  As Mr Pleming QC put it "Life will be more difficult with a new judge.  It will be harder work for everyone, but especially for the new judge."  All these disadvantages the Lord Chancellor recognised.  While "uniquely well placed", Lord Justice Phillips is not irreplaceable.  No judge in these circumstances ever would be, dealing as he will be with a new jury, and having to decide all rulings on the material before him.  It will take longer for the new judge to master that material, but it is only a question of time before he does.  This reflects the Lord Chief Justice's view expressed in opinion given to the Lord Chancellor that the remaining trials did not require to be tried by a Lord Justice.

	The other side of the balance comprises the public interest in the Court of Appeal  (effectively the final court in the country for all save the handful of cases which go to the House of Lords) being at full strength for a period of a year or more.  That court is, in words of Sir Thomas Bingham MR, at the pivot of our legal system.  Because it has been under-manned and under-resourced, it has not been able to keep up with the increased number of appeals.  The Master of the Rolls in his most recent report concluded:
"There is an urgent need for an increase in the judicial strength of the Court.  The alternative is delay of a length inconsistent with the due administration of justice."

The Lord Chancellor accepts that there is a "severe backlog".  Three additional appointments have recently been made, but the crisis continues.  And it is not restricted to civil justice.  there are similar pressures in crime, in the Court of Appeal Criminal Division, and the Divisional Court.

	The Lord Chancellor had to decide on the best disposal of judicial manpower for the proper administration of justice.  He had to balance the narrow, but more closely focused, contribution Lord Justice Phillips could make in the trial of the remaining counts, against his broader contribution in the Court of Appeal and the wider interests of justice in having a Court of Appeal up to full strength at a critical time.  This balance, and the weight to be given to various aspects of the process, are all matters for the Lord Chancellor, and not for the reviewing Court.  The greater the element of policy in a decision, the greater the judicial reticence in reviewing it should be.  Here there is a high degree of policy.  The Lord Chancellor approached the matter correctly, informed himself properly, consulted appropriately, and reached a decision well within the discretion accorded to him.  This application accordingly must fail.  In our judgment, irrationality on these facts is unsustainable.

	A final word.  We started by saying that there had been some surprise that a discretion relating to the deployment of judicial manpower could be the subject of attack by judicial review.  The Southwark Crown Court case (supra) and the illustration we have given of circumstances where such a question might well be reviewable shows that there is no universal prohibition.  But we wish to do all we can to discourage any comparable application relating to the deployment of judicial manpower.  Experience shows that an unusual application of this kind spawns imitations, even if the imitated application fails.  We wish to discourage such applications.  Given the ground rules of the review and the discretion entrusted to the decision-maker, the realistic assumption must be that the vast preponderance of such applications are doomed to failure and so should be critically examined at the leave stage.  If the exceptional case comes along, it will be clearly just that, and that will be so clear that these words will not deter either the applicant's advisors or the single judge.

LORD JUSTICE HENRY:  As indicated on the previous occasion, Sachs J cannot be here today because he is sitting in Preston.  The judgment handed down is the judgment of the Court and approved in its final form by him.  For reasons set out there, this application for judicial review is dismissed.
 
MR RICHARDS:  My Lord, I also have an application for costs.  I am not sure to what extent your Lordship is in a position to deal with that application in the absence of Sachs J.
 
LORD JUSTICE HENRY:  Yes, I have been giving this matter some thought.  In relation to leave to appeal we had addressed our minds to that question and had reached a provisional view with some confidence that there would be nothing surprising in the submissions made to us because there is not too much that one really can say on leave to appeal.  The question of costs is quite separate.  I think we both assumed that Mr Maxwell had been legally aided in his application and so had not addressed our minds to the question of costs.
 
MR RICHARDS:  Yes.
 
LORD JUSTICE HENRY:  I do not know whether the parties can invest me with jurisdiction, nor whether they would want to invest me with jurisdiction.  One way of dealing with it might be to make the application on paper, for the Court to respond on paper.  If that was what the parties wished to do, then the parties should consider whether they wanted the same process gone through in relation to leave to appeal, if leave to appeal is being sought.
 
MR RICHARDS:  My Lord.
 
LORD JUSTICE HENRY:  Should I rise while the parties discuss that?
 
MR RICHARDS:  It may be possible to deal with this matter without your Lordship rising.  I understand that leave to appeal is being sought and is being opposed by me.  That is a matter that I would welcome the Court dealing with today if nothing novel arises in the arguments and as a result your Lordship feels in a position to deal with it today, because obviously it is of great importance that this matter be dealt with and the trial can carry on as quickly as possible.
 
LORD JUSTICE HENRY:  An alternative would be for me to hear the submissions and to discuss matters with Sachs J in the light of those submissions after he has risen for lunch and reconvene at two to give the Court's decision on that.  I am in the parties' hands.
 
MISS SAFFIAN:  May it please your Lordship, before I deal with this matter may I express Mr Jones' apologies for not appearing.
 
LORD JUSTICE HENRY:  No apologies are necessary.
 
MISS SAFFIAN:  Thank you, my Lord.  My understanding and position is that Mr Jones has taken your Lordships' ruling away with him; he has not had the opportunity to advise nor has he had the opportunity to take instructions on the matter of appeal.
 
LORD JUSTICE HENRY:  So you are not applying today?
 
MISS SAFFIAN:  We had considered it, in that, of course, we would prefer to avoid the necessity of returning solely for the purpose to apply for leave.
 
LORD JUSTICE HENRY:  It can be done on paper because there would be no chance of getting‑‑‑
 
MISS SAFFIAN:  Yes, so that would be a better solution in light of Mr Jones' absence abroad that we would be in favour of the application on paper.  I know Mr Jones did state that he will do everything to deal with the matter expeditiously even though he is out of the jurisdiction.  It is not something he would take a great deal of time to advise and take instructions.
 
LORD JUSTICE HENRY:  Yes, I think that, if there is to be an application for leave to appeal, it should be made very promptly in the circumstances.
 
MISS SAFFIAN:  Yes, my Lord.
 
LORD JUSTICE HENRY:  And with fax machines a lot of things are possible.
 
MISS SAFFIAN:  Yes.  My Lord, that is what Mr Jones contemplated.
 
LORD JUSTICE HENRY:  So what are you saying?
 
 MISS SAFFIAN:  That in relation to the question of leave that we would prefer that the matter be addressed to the Court on paper and that the response be as such.  I do know what would be an appropriate period of time ‑ perhaps three days.
 
LORD JUSTICE HENRY:  But in relation to leave, I mean there is not really very much that can be said.  The draft judgment really speaks for itself in relation to that.  All of our reasons in relation to leave are really there in the judgment.
 
MISS SAFFIAN:  My Lord, we have no interest really in delaying this.  The position in fact with legal aid and withdrawing the application was because our instructions have been from the very beginning not to do anything to delay the expeditious resolution of this matter, so, in light of your Lordship's observations, in order to expedite matters it would perhaps be best to deal with the issue of leave today.
 
LORD JUSTICE HENRY:  As to leave, yes.  Leave will therefore be refused for reasons that are internal in the judgment really and may be taken from the judgment.
 
      So far as costs go, that would not delay matters. You, of course, can seek your leave elsewhere.  So far as costs go that would not delay matters and would you like us to deal with that in writing?
 
MISS SAFFIAN:  Yes, I think that would be preferable. Although we have handed out the brief note, there are in fact some other points that have occurred during its hasty drafting, so I think under those circumstances we would be in support of dealing with the matter in writing.
 
LORD JUSTICE HENRY:  So could you get your written reasons to the other parties by 4.30 today?  And if they could formulate their response and the whole package be forwarded to the Court and Sachs J tomorrow.
 
MISS SAFFIAN:  Yes.
 
LORD JUSTICE HENRY:  Then we will give our reasons in writing in relation to that.
 
MR RICHARDS:  I am very grateful, my Lord.  Yes, I can certainly deal with the matter in that way and respond in writing to any submissions. 
 
LORD JUSTICE HENRY:  I gather that all parties are agreed that this is not a criminal causal matter.
 
MR RICHARDS:  We have given careful consideration and all three leading counsel have agreed that it is civil rather than criminal.
 
LORD JUSTICE HENRY:  And that is consistent with the fact that the review lay at all ‑‑ I mean the section 29(3) point was never taken.
 
MR RICHARDS:  It is certainly consistent with that. Though of course the section 29(3) point is directed towards orders of the Crown Court, the reviewability of the Crown Court itself.  The fact that we are dealing with a separate executive decision does not automatically take it out of the scope of criminal causal matter.  Indeed there has been a case in the context of the Home Secretary's powers to refer a case back to the Court of Appeal where the Court of Appeal has taken the view that it was criminal, but that was on the basis that it was an extension of the rights of appeal of a convicted person.  Therefore one can see how naturally it fits into the category of typical criminal causal matter.  But we have considered the nature of the power being exercised in this case and the authorities on criminal causal matter and we have all satisfied ourselves that it is properly to be regarded as civil rather than criminal.
 
LORD JUSTICE HENRY:  The second point, therefore, that I would think that Miss Saffian would need to know before she could sensibly draft her application is, are two lots of costs being asked for?
 
MR RICHARDS:  I leave that to my learned friend. Certainly the Lord Chancellor does seek costs.
 
MR LUCRAFT:  My Lords, so far as the Serious Fraud Office are concerned, we do not make any application for costs, and so we would say the appropriate order is no order so far as we are concerned.
 
LORD JUSTICE HENRY:  Yes.
 
MR LUCRAFT:  My Lord, might I just mention, while I am on my feet, the question of timing.  If this matter is to go further and leave sought elsewhere, we are anxious to have this matter listed before Buckley J in light of the judgment.  I was simply going to indicate that we will seek to have that listed at a time convenient to all parties as soon as it is possible.
 
LORD JUSTICE HENRY:  Yes.
 
MR RICHARDS:  I am grateful, my Lord.  I think there are no further applications.
 
LORD JUSTICE HENRY:  So you are faced with a single application for costs, which simplifies the task.
 
MISS SAFFIAN:  Yes, my Lord.
 
LORD JUSTICE HENRY:  If you could get your written submissions to the Treasury Solicitor by 4.30 and then if the Treasury Solicitor could, first thing tomorrow, get them to me, I will fax them out to Sachs J and we will let you know in writing what our decision is.  Thank you all very much for your help.