[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Haase, R v [2001] EWCA Crim 1424 (12th June, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/1424.html Cite as: [2001] EWCA Crim 1424

[New search] [Printable RTF version] [Help]

R. v. HAASE [2001] EWCA Crim 1424 (12th June, 2001)

Case No: 1999/5299/S2

Neutral Citation Number: [2001] EWCA Crim 1424

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday 12^th June 2001

LORD JUSTICE KAY:

1. On 22 March 1993, the appellant, John Henry Haase, was convicted of an offence of conspiracy to supply a class A drug, heroin, in the Crown Court at Liverpool before His Honour Judge Lynch and a jury. He was subsequently sentenced to 10 years imprisonment.

2. The appellant appealed against his conviction but that appeal was dismissed by the Court of Appeal (Henry LJ, Owen and Gage JJ) on 6 December 1996.

3. The case has been referred back to this court by the Criminal Cases Review Commission pursuant to section 9 of the Criminal Appeal Act 1995 and falls to be dealt with as a fresh appeal against conviction by the appellant in accordance with subsection 2 of section 9.

4. It is convenient to describe at the outset the general nature of the conspiracy alleged and to refer to some but not all of the co-accused and then to outline the case against the appellant.

5. The prosecution case was that a number of people were involved in a conspiracy to supply heroin in the Merseyside area. A mobile phone was obtained and its number was circulated amongst potential purchasers. A customer would ring the number and ask for Steve. Steve was the false name being used by a man called David Graham. Graham was charged in the same indictment with the conspiracy and changed his plea to guilty before the trial commenced. He was sentenced to 7 years imprisonment.

6. Deliveries of the drugs were then made to customers. Two of those involved in the deliveries were Lisa Marie Haase, the appellant's wife, and John Paul Haase, the appellant's son. Lisa Marie Haase was convicted of conspiracy by the jury and sentenced to 18 months imprisonment. John Paul Haase had absconded at the time of trial. He subsequently pleaded guilty to the conspiracy.

7. The core evidence of the operation of the conspiracy came from two undercover police officers known as Jimmy and Ian. They had posed as drug buyers. They would ring the mobile telephone and arrange for drugs to be brought to them. They made nine such purchases using bank notes, the serial numbers of which had been recorded. Large-scale surveillance operations monitored those suspected of involvement on 25 different days and movements were then correlated with drug supplies.

8. The prosecution contended that three vehicles were significant in the case, a white Fiat and a grey Renault Fuego, both of which were used by the appellant and Graham, and a bronze Rover, used exclusively by the appellant.

9. It was also alleged that two addresses in Liverpool were central to the organisation. The first was flat 10, 20 Croxteth Road ("flat 10"), a flat which belonged to Lisa Marie Haase before her marriage and which the prosecution suggested was used by the family after the marriage and the second was 132 Bowler Street, which was Graham's home.

10. The prosecution alleged that the appellant was the organiser of the conspiracy. It was contended that the evidence demonstrated a very close connection between him and Graham, who was said to be the other major figure in the conspiracy and who was in regular contact with the purchasers.

11. The appellant was observed on a number of occasions entering and leaving flat 10 and on many more occasions his Rover car was seen outside those premises. The car was seen outside the flat first thing in the morning and last thing at night. Although observations were not kept on every day, the appellant could be linked to the flat on 12 days between 12 January 1992 and his arrest on 28 February 1992.

12. Graham's home was used for the preparation of the drugs immediately prior to delivery and in the majority of deliveries; it was from his address that the conspirators set out. The appellant was observed travelling to this address on a number of occasions on foot, in his Rover car and in the Fiat motor car.

13. A significant part of the evidence related to the mobile telephone used in the conspiracy. This was registered in the name of Graham. In the appellant's Rover car at the time of his arrest was a piece of paper with the number of this telephone written on it.

14. In the appellant's possession at the time of his arrest and recovered from his property on arrival at the police station was a written reminder for payment of the sum of £79.59 in relation to the account for the mobile telephone dated 22 February 1992 (i.e. 6 days before his arrest). A number of documents relating to the same telephone were found in the drawers of a cabinet at flat no. 10. No such documentation was found at Graham's home.

15. The computerised records of the use of the mobile telephone showed the making of a total of 369 calls. Of these 80 were placed to the home of the appellant's mother-in-law, 128 to Graham's home and two to a woman with whom the appellant had associated. The prosecution suggested that the only inference to be drawn from this evidence was that the appellant was responsible for payment of the bills for the telephone and also that he personally used it.

16. One of the drug transactions took place on 16 January 1992. The purchaser was the officer "Jimmy". Having placed his call he was informed that "Steve" was not available but he was told by the person who answered the call that "Steve" would be there in a few minutes and if not, the person on the telephone would "come out myself". A short time later a car arrived and it was the officer's evidence that it was the appellant's Rover car that came. The rear seat passenger was recognised as John Paul Haase. The driver was male but was not recognised. It was not "Steve". There was also an unidentified female as a front seat passenger.

17. The officer said that he only got a brief glimpse of the driver because he was concentrating on the man in the back. He gave a description that did not fit either the appellant or any of the other alleged conspirators. The prosecution suggested that the jury could infer that the driver was the appellant and that the description was wrong. Having reviewed the evidence about this occasion the Judge directed the jury it would be dangerous to place the appellant at the scene of this transaction.

18. On 25 February 1992, there were observations of a transaction that the prosecution suggested was a further drugs supply. At 7.05 pm the Rover was seen leaving Graham's home. The appellant was the driver and his wife the front seat passenger. The vehicle was followed to White Rock Street. There it stopped with its lights off but with its engine still running and an exchange took place between the appellant and one of three youths who walked to the Rover from a group of fifteen around a mobile shop. The sighting of the appellant and the exchange of a packet was accepted but it was contended in cross-examination of the witnesses that the youths or one of them had gone to the mobile shop for cigarettes and it was these cigarettes being handed by the youth to the appellant. The witnesses did not accept this suggestion.

19. The appellant was arrested on 28 February 1992. In his possession at the time was £700. His wife who was arrested with him had £5,500.

20. Flat 10 was searched and amongst the items recovered was a brown leather jacket found hanging in a wardrobe. The appellant had been at flat 10 earlier that day. This jacket was to take on a considerable significance in the case and is very much at the heart of the first ground of appeal. Found in the pocket was a white plastic bag containing 25.7 grams of heroin. The profile of the drug matched that of heroin which had been supplied to "Ian" on the same day and heroin in three wraps found on a co-accused.

21. Also said by the police to have been in the jacket was a piece of paper connected with the mobile telephone. That document was not found at the time when the jacket was recovered and the heroin was found but was discovered during the course of an interview with the appellant.

22. The appellant was interviewed twice on 29 February 1992. To many of the questions he elected to make no comment. In the first interview he revealed that he was himself a heroin user who used 2 grams a day. He was asked about Graham and it will be necessary to look in some detail at what he said when dealing with the second ground of appeal. He denied that he was in any way involved in drug dealing.

23. During the second interview, he was asked about the leather jacket found at flat 10. He was asked whose jacket it was and he made no comment. He was asked if it was his and he again made no comment. At the request of the police, he put it on. The police contended that it was a good fit. On behalf of the appellant it was suggested that it was too small. The merits of these different views were able to be assessed by the jury because during the trial, at the request of his counsel, the appellant put the jacket on and the jury were able to decide for themselves.

24. The appellant was told of the finding of the heroin and again asked whose jacket it was. He made no reply. It was at that point that the officers took from the jacket the document connected with the mobile telephone, which had not been found on the initial search.

25. As a result of the appellant not commenting on the ownership of the jacket, one of the officers, DC Simpson, said that on instructions from a DS Price, he had sought to find out whether any of the observing officers had seen him wearing the jacket. This led to two officers, WDC Mullin and PC Downey giving evidence that they had seen him wearing the jacket in a public house, the Lutine Bell, on 27 February 1992, the day before his arrest. This evidence was fiercely contested and a number of criticisms, particularly that no contemporaneous recording of the facts relied upon was made, were placed before the jury about this evidence. It also featured prominently in the first appeal. Its importance was emphasised to the jury in a passage in the summing-up the relevant parts of which read:

"The crucial question that you have to put your mind to on this day is this: was John wearing the brown leather jacket which was found in Flat 10 with two ounces of heroin in it .... And if you accept the police evidence, with a piece of paper - the slip receipt - which would tie the wearer of that jacket with the Graham vodaphone. So you will have grasped the significance of this evidence - it is given by two officers Mullin and Downey .... Are they telling the truth or are they fabricating evidence? .... It does not need Mr Farrer (defence counsel) to tell you that that is a very significant piece of evidence, is it not? Here they are identifying a jacket, or something identical to it, and that jacket has got a largish amount of heroin in the pocket. Why did it not go in the pocket book? You may think that it should have done ..... It was not until 8 April that they made statements saying that they identified the jacket .... In fact, Simpson only makes a statement about it during the course of this trial, after the trial started, so those are all, you may think, legitimate criticisms that Mr Farrer makes about this case. Again, I put the same question to you: is this just sloppy incompetent police work, or is it something far more sinister?"

26. At trial the appellant did not give evidence. It was suggested that his connection with Graham was not as a fellow conspirator but as a purchaser to provide for his own heroin taking. It was argued, as is apparent from the passage in the summing-up to which we have referred, that the various deficiencies in the prosecution case said to be the result of poor paperwork by the police were in reality the result of false evidence and fabrication on the part of the police. These issues were clearly left to the jury by the Judge in his summing-up. The jury must, however, have accepted the bulk of the prosecution evidence and convicted the appellant.

27. The appellant at the hearing of this appeal pursued two grounds. They are distinct and can be considered quite separately. The first is in the following terms:

"The trial was unfair. Late service and, in the case of (b) below, failure to serve some material on the Defence in particular:

(a) Statement of DC Simpson dated 11.03.93

(b) Observations logs

(c) Transcripts of telephone calls received by, inter alia, DCs Downey and Simpson on 29.02.92 on (the mobile telephone)

effectively prejudiced a proper attack by the Defence on the Prosecution allegation that the brown leather jacket had been worn by the Appellant on 27.02.92."

28. Mr Topolski QC on behalf of the Appellant identifies the issue to be determined by the Court in the following terms: was the defence in any significant way hampered or impeded in putting the defence of fabrication regarding this central part of the case so that the jury were, or may have been, deprived of the opportunity of considering all relevant and admissible evidence? It is his contention that the Court must answer that question in the affirmative and that the inevitable conclusion must be that the resulting conviction is unsafe.

29. The Crown's position in essence is that all relevant material was provided, with one exception; that experienced leading and junior counsel had an opportunity to consider it and mounted a forceful attack on the available material; and that in so far as questions were not asked at trial, this resulted from conscious tactical decisions as to the best approach to adopt.

30. It is necessary, therefore, to examine the position in relation to each of the matters of evidence referred to in the ground. The first can readily be disposed of because Mr Topolski has acknowledged that he cannot found an appeal on the service of the statement of DC Simpson during the course of the trial. The circumstances in which that happened were before the jury and it is clear that they were in a position to decide whether any adverse inference should be drawn from the fact that the officer made no statement until this very late stage. Accordingly Mr Topolski has not pursued this aspect further.

31. It is necessary to look next at the observation logs. At the time of trial, the observation logs had gone missing. However, photocopies were available. This was unsatisfactory and rightly led to criticism. However, the originals have since been found and have been made available for inspection and it is not suggested to us that there is any discrepancy revealed. Hence no injustice can have resulted from the absence of the originals and none is suggested. The complaint that is made is that the logs were provided at a very late stage. They revealed greater detail than was apparent from the police officers' witness statements. It is said that this additional information would, if the defence had been afforded a proper opportunity to evaluate it, inevitably have led to cross-examination on aspects of the evidence which never took place. It is submitted that the conclusion to which one is driven is that counsel at trial must have been handicapped by their having the material so late and that that explains why experienced and competent counsel failed to embark upon obviously helpful lines of cross-examination.

32. Mr Farrer QC, leading counsel at trial for the appellant, was asked as to his recollections concerning the service of the observation logs. He pointed out that he was having to recall events a long time before and that not surprisingly his recollection was vague but he said: "I seem to recall that the observation logs were served on or about the first day of the trial and that complaint was made about this." It is clear that no application was made to delay the trial or for further time to consider the material. If experienced counsel had felt himself handicapped in conducting the appellant's defence by not having a full opportunity to consider this material, the Court would certainly have expected some such application. The absence of such an application would tend to suggest that counsel felt that he had had or would have as the trial progressed a sufficient opportunity to assimilate the material and make such use of it as he considered would be to the best advantage of the appellant's case.

33. Mr Topolski has helpfully sought to explain the significant matters that could have been drawn from the observation logs, which could and he submits would have been used if counsel had had a fairer opportunity to consider the material.

34. The first matter to which he pointed related to the visit to the Lutine Bell by the appellant on 27 February 1992, the occasion when he was alleged to have been wearing the leather jacket. He submits that from the observation logs it is possible to discover that apart from Mullin and Downey, who had identified the leather coat, four other officers were in a position to give evidence as to the clothing worn by the appellant at the material time. They were officers, Ward, Simpson, Bourne and Puzzar. There was no cross-examination of these officers on this topic and hence it is suggested that counsel cannot have appreciated the potential significance of evidence that they might be able to give contradicting that of the two crucial officers, Mullin and Downey.

35. Ward and Simpson had a joint log. It describes events before, during and after the appellant's being in the Lutine Bell. It is suggested that it is possible to infer that these two officers were inside the public house. We are far from sure that that is a correct inference. It seems clear that there was radio communication between the observing officers. In one log there is a reference to information coming from another officer. The events recorded inside the public house may well result from radio messages rather than personal observations. Certainly the officers in witness statements do not suggest that they were inside the public house. However, it seems to us that all of this is academic in any event. From the witness statements that had been in the possession of the defence for a considerable time before trial, counsel knew that the witnesses were saying that they had seen the appellant on that day both before he went into the Lutine Bell and after. On any view they were, therefore, if they had any recollection of the matter, in a position to say what the appellant was wearing. That was so whether or not they themselves had entered the public house. With that knowledge, whether or not he appreciated the possibility that they might have entered the public house, Mr Farrer chose not to cross-examine the officers about the appellant's clothing on that occasion. We find it impossible to see that any belief that they had been in the public house might have caused him to adopt a different approach. Either it was tactically sound to ask the officers, who did not suggest that they could identify the jacket, about the matter on the basis of their statement or it was not and nothing in the observation log could be sensibly thought to result in a different decision.

36. Bourne and Puzzar shared a different observation log. The wording of the log suggests that they too observed the appellant prior to his entering the Lutine Bell. There was, as was the case in all the observation logs no record of the appellant's clothing and this was a point made to the jury by Mr Farrer, no record of the appellant's clothing. Bourne had not made a statement but Puzzar did make one. The statement made it clear that he had observed the appellant. No questions were asked of Puzzar about this matter nor were any asked of Bourne. So far as Puzzar is concerned this must have been a conscious decision of counsel taken for tactical reasons. There is nothing in the contents of the log to suggest that if counsel had had a greater opportunity to consider this log, he would have been remotely likely to have adopted a different approach.

37. Having considered with care the relevant logs and compared them with the statements that were available to counsel in good time, we think it most unlikely, in the absence of any request for further time to consider the logs, that experienced leading counsel had not fully considered their contents when he cross-examined the relevant witnesses. Even if we were wrong in that assessment, we are quite sure that there is no such significant additional information contained in the logs as might have caused counsel to alter his approach.

38. In fairness to Mr Farrer, we should make it clear that each member of the Court can see the good sense in Mr Farrer's approach. None of the other officers provided support for Mullin and Downey. It was highly unlikely that they would give evidence that contradicted the evidence of Mullin and Downey and there was a risk that something might be said that might lend at least limited support for their evidence. Tactically not delving into an area where the officers did not damage the defence case, in the context of the other criticisms to be made of the police evidence, seems to us a sound approach to this aspect of the case.

39. We are satisfied that this part of the first ground is without merit.

40. It is necessary to turn next to the failure to serve transcripts of telephone calls received by officers including DCs Downey and Simpson on 29 February 1992 on the mobile telephone. After the arrest of the appellant and other conspirators and the seizure of the mobile telephone the police decided to leave the telephone on and monitor incoming calls, answering them in a way to suggest that there had been no police action. That fact was known at trial. However, it was not known that there were in existence transcripts of these calls. Not only were the defence unaware that that was the case but prosecuting counsel were equally unaware of that fact.

41. There can be no doubt that this material should have been disclosed and if it contained matters that might have had a bearing on the outcome of the case, this failure would have to be considered as rendering the resulting convictions unsafe.

42. On behalf of the appellant it is contended that the transcripts did indeed contain useful material. One of the important issues in relation to the leather jacket was when Simpson had shown Downey the coat.

43. Downey in evidence in chief said that on 29 February 1992 he was informed by Sgt. Price that the jacket played a significant part in the enquiry and he was asked to go to Wavertree Road Police Station to have a look at the jacket. He went and saw the jacket and was convinced that it was the same as the one he had seen the appellant wearing in the Lutine Bell. He was cross-examined about this identification of the jacket and he indicated that he was based at Kirkby Police Station on 29 February. Sgt Price had directed him to Wavertree Road Police Station by telephone. He had no note in his notebook of when he went there but as far as he could recall it was some time in the afternoon. He was further cross-examined having been given an opportunity to locate his notebook and his diary. The diary entries recorded that he was at Kirkby Police Station on 29 February until 5.35 pm. He then took a large amount of cash that had been seized to St Anne Street Police Station. The Property Register at Wavertree Road Police Station recorded that the cash had been lodged there prior to being transferred to St Anne Street Police Station. It followed that Downey must have gone from Kirkby to Wavertree Road Police Station collected the cash and taken it to St Anne Street. The cash was handed to an inspector at 6.20 pm and Downey returned to Kirkby arriving back at the police station at 7.10 pm. He went off duty at 8.05 pm. Neither his diary nor his notebook recorded the visit to Wavertree Road that must have taken place for the transfer of the cash to have been effected.

44. Simpson was cross-examined about this matter. He said that he had shown the jacket first to Mullin and then to Downey. There had been a debriefing following the conclusion of the interviews and it was after the debriefing that he had shown it to Mullin. Later, probably that afternoon, he had shown it to Downey.

45. Simpson's pocket book and diary contained no entry relating to the showing of the jacket to Mullin and Downey and there was no other record. Simpson's pocket book did record that he had finished his interviews with the appellant at 3.40 pm and that he had gone off duty at 9 pm.

46. At trial and at the original appeal the prosecution conceded that the absence of proper police records amounted to shoddy police work. The defence suggested it was an indication of the falsity of this evidence. Those matters were left to the jury and inevitably they considered them. If they had concluded that this part of the evidence was fabricated, inevitably they would have acquitted. They must, it is argued, have accepted that the showing did take place that afternoon and on the evidence that was either when Downey called to collect the money from Wavertree Road Police Station or, just possibly, on a further visit to Wavertree Road as he returned from St Anne Street to Kirkby after handing over the money.

47. The relevance of the transcripts of the telephone calls to this aspect of the case is that both Downey and Simpson could be shown to have been receiving telephone calls at Kirkby on 29 February, the day in question. If, therefore, the evidence from that source cast the slightest doubt upon the officers' evidence on this point, then it was an important piece of evidence for the jury to consider and one can never know whether it might have been sufficient to tip the balance of their deliberations on this point.

48. If the initial premise is right, i.e the evidence from the transcripts could reasonably be said to cast doubt on the officers evidence on this important issue, we would accept the arguments advanced on behalf of the appellant and find that the resulting conviction was unsafe. However Mr Steer QC on behalf of the prosecution submits that the evidence cannot be thought to be inconsistent with the officers' account.

49. Detailed examination of the transcripts reveals the following relevant information. Downey was involved during the afternoon in monitoring the calls. The last call that he took was timed at 4.15 pm. He next took a relatively short call which is timed as ending at 8.12 pm. There is, therefore no material that could remotely be thought to bring any light to bear upon his movements between 4.15 pm and approximately 8.10 pm that day. There is nothing inconsistent in that evidence with his having been to Wavertree Road, his then taking the money to St Anne Street Police station at the time established in evidence and his return to Kirkby. The only timing at all called into doubt was his record of when he actually finished duty since his diary recorded that as being 8.05 pm. However, in no sense was that time material to the showing of the jacket. Taken at its highest it was a further example of the sloppy recording of events conceded by the prosecution at trial. The jury, if it had heard of this discrepancy, could not reasonably have considered that it altered their view of the truthfulness of the officers' evidence.

50. So far as Simpson was concerned, the transcripts revealed that at some stage that day between 4.15 pm and 7.40 pm, Simpson monitored 6 calls all of relatively short duration on the mobile telephone whilst he was at Kirkby. The records did not reveal at what time within that bracket those calls took place. Only one of those calls contains any material that might permit any inference as to time. That is the second of the six calls in which the caller talks of being at a particular location at 7.30 pm. The only inference that can be drawn from this is that the call took place before 7.30.

51. Thus it is clear that this evidence does not in any way cast doubt upon Simpson showing Downey the jacket between 5.35 and 6.20 pm or in the period shortly after 6.20 pm as Downey returned to Kirkby.

52. Accordingly we can see no possibility either that an effective additional cross-examination of the officers could have been mounted based on this evidence or that, if the evidence had been placed before the jury, it could reasonably have led to any different conclusion about the honesty of this evidence.

53. For these reasons we are satisfied that the first ground of appeal fails.

54. The second ground can be taken much more shortly. It relates to the summing-up. The ground reads:

"The Learned Judge erred in directing the jury on the subject of lies told by the Appellant in interview in answer to the Question posed in interview of whether he knew David Graham. There was in fact no evidence of lies the Appellant having answered, "No Comment", to all questions on this matter. The Appellant did not give evidence".

55. The point which was one said to have been discovered initially by the Criminal Cases Review Commission in the course of its investigation, was clearly an important point if it was soundly based. It immediately seemed surprising, first because the trial judge had summed the case up with considerable care and a fundamental mistake of this kind would have been out of keeping with his otherwise careful approach and secondly because it would have been astonishing if at trial all four counsel for the prosecution and the appellant had failed to spot the error. A close examination of the interview reveals the point to be built on a false premise.

56. In his first interview the following exchange took place between the appellant and the police:

"Do you know a fella called David Graham?

No Comment.

In your car yesterday there was a voda number for Mr. D Graham of 132 Boaler Street, who's he, you must know him you have his vodaphone. Do you know him?

No Comment.

You had his voda number in your car, in the ashtray, so you know him?

No Comment.

In your house/flat in Croxteth Road, your wife's flat, there was a bill from Martin Dawes, look at me, for Mr D. Graham of 132 Boaler Street, who is he?

I don't know."

57. That it was this denial of knowledge to which the judge was referring when he gave a direction about lies is quite clear from a detailed scrutiny of the summing up. Clearly the appellant had said that he did not know who Graham was, something which on the unchallenged evidence was manifestly untrue. Clearly this did call for just the direction given by the Judge and the suggestion that the appellant had merely made no comment is wrong. It is no wonder in such circumstances that no protest came from counsel about this direction because it was both factually accurate and legally necessary.

58. There is, therefore, nothing in this point at all and it demonstrates the danger in those who were not a party to a trial thinking that they have discovered some point wholly overlooked by all those who were present at the time.

59. For these reasons despite the helpful and cogent way in which Mr Topolski has advanced the points before us, we have concluded that each ground is without merit and that there is nothing to cause us to believe that this conviction was unsafe.

60. For completeness, we record that during the time when we were considering this matter following the conclusion of oral argument, we received a written request from the appellant personally that different counsel should be permitted to argue a third ground not contained in the grounds of appeal and not so far as we can determine a matter upon which the referral by the Criminal Cases Review Commission was made. The appellant forwarded a mass of further documentation and although the precise ground was not drafted it is clear that he wanted to demonstrate that there was further evidence of police corruption as yet unconsidered by the court. It would require some remarkable circumstance before this court would permit the re-opening of argument and the raising of some wholly new matter after the conclusion of oral argument. We found no such exceptional circumstance. In so far as it is possible to judge from the documentation forwarded to the Court, we have no reason to believe that there is a point of any merit. If our view was otherwise, we might have allowed the exceptional course. We also note that in a letter from the appellant's solicitors to him, forwarded with the additional papers, there is a clear reference to the fact that the appellant had understood in advance that just the two grounds pleaded would be argued. The solicitors say in terms: "Your case therefore proceeded on the two grounds that you had previously agreed to (Our emphasis added)." The appellant had the opportunity to raise any matter he wished. On the accepted advice of his lawyers he limited that argument to the two grounds and we can see no justification to allow the wholly exceptional course suggested. Accordingly we declined this application.

61. For these reasons this appeal must fail and we dismiss it.