Appeal from an order that an injunction put in place concerning contact,
direct or indirect, with Juror 125.
[2013]JCA145
Court of Appeal
26 July 2013
|
Before :
|
The Hon. Michael Beloff, Q.C., President;
Christopher Nugee, Q.C., and;
Robert Logan Martin, Q.C..
|
Curtis Warren
-v-
The Attorney General
Appeal from the order of Commissioner
Pitcher given on 26th July the injunction put in place concerning
contact, direct or indirect with Juror 125.
Advocate S. M. Baker for the Appellant.
HM Solicitor General for the Attorney
General.
JUDGMENT
THE president:
1.
This is an
appeal made on behalf of Curtis Warren against an order of Mr Commissioner
Pitchers dated 20th February 2013 in which he granted an injunction
that:-
"until further order of the
Royal Court, no person shall attempt to, or in fact speak to, or otherwise
contact Juror 125, either directly or indirectly, in respect of whether or not
he was the subject of any approach by any person during the criminal trial of
the defendant and others from 16th September, 2009, until 9th
October, 2009."
2.
The
background to this appeal is as follows.
Mr Warren, with the others was charged before the Royal Court with
conspiracy to import 180kg of cannabis, a Class B drug, into Jersey. On 7th October, 2009, he was
found guilty. He was later
sentenced to 13 years imprisonment.
On 5th May, 2010, his appeal to the Court of Appeal was
dismissed ([2010] JCA 084). On 28th
March, 2011, his further appeal to the Privy Council was also dismissed ([2011] UKPC 10). The issue before the
Privy Council was whether the prosecution should have been stayed on grounds of
abuse of process by reason of the deliberate planting of surveillance devices
in co-accused Mr Welsh's car when passing through Belgium, the
Netherlands and France without the required consent of the relevant authorities
in those jurisdictions. While
disapproving in strong terms of what was done by the police - they were
guilty of "grave prosecutorial misconduct" (Lord Dyson para 45)
their actions were "utterly wrong in principle" (Lord
Rodger para 70) - it was never suggested to or by the Privy Council that the
recordings, the fruit of that planting, were themselves inaccurate or that in
any other way the evidence which directly led to Mr Warren's conviction
was forged or falsified. Indeed it
was crucial to the prosecution case - (Lord Brown para 76) precisely
because it was accurate and inculpatory.
3.
The
present application relates, however, to a distinct matter. At the outset of what the Court of
Appeal described as a "high profile high security trial" (para
14) Sir Richard Tucker, Commissioner indicated to counsel that, on the material
provided to him he was persuaded that attempts had been made to influence the
jury and prophylactic steps were taken in consequence.
4.
On 5th
October 2009 shortly before the Commissioner was due to sum up, an ex parte application was made by the
prosecution to discharge a Juror No.125.
This was acceded to by the Commissioner.
5.
The events
thereafter are summarised in the decision of the Court of Appeal, paras 21-24,
26-30:-
"21. Following the ex parte
hearing, the Commissioner informed all advocates that, on the evidence placed
before him, he had grounds to believe that one member of the jury had been
contacted by outside sources, during the course of the trial. In addition, six silent calls had been
made to the wife of juror 137, on her mobile telephone. He advised advocates that he had
instructed that juror 125 should be discharged. He told them that he proposed to ask the
remaining members of the jury certain questions in court, to satisfy himself
that no further difficulties remained.
He indicated that he wanted to investigate with juror 137 whether he
felt able to continue to sit and remain uninfluenced and return a just verdict,
notwithstanding that his wife has received the silent calls. He proposed to tell the juror that there
was no evidence that the calls had anything to do with the case.
22. The Commissioner invited the
advocates' observations on the course which he proposed to take and stated that
he was considering giving the jury the following direction; "Members of
the jury, you will recall that I ordered police surveillance in this case. As a result of information which I have
received I have discharged one of your number, juror 125. You must not hold these events against
any of these defendants. I must
emphasise that you must not let this event influence or colour your approach to
the case. I must ask you two
questions. Can you confirm whether
or not juror 125, the one that I have discharged, has provided you with extra
information about the case that you have not heard in evidence in court? Do you still feel able to continue to
sit on the jury and return a just and true verdict in this case?"
23. He indicated that juror 125 was
being kept separate from the remaining members of the jury, that he had no
alternative but to discharge him, and that he intended if possible to continue
the case with eleven jurors, explaining that he would be very reluctant to
discharge the whole jury. That, he
said, would mean delay and a retrial "and no one wants that to
happen." The Commissioner
observed that he was not being asked to discharge the jury as a whole.
Advocates' observations were invited and they were offered time to
consider their position.
24. On return to court, Advocate
Baker was asked by the Commissioner whether defence advocates were content with
his proposals and he replied that they were. Specifically, the Commissioner was advised
that all defence advocates were content that the juror whose wife had been
telephoned should be questioned about that and asked if he felt able to
continue, and were in agreement with the proposal that the Commissioner should
have all the remaining jurors in Court, tell them that he had discharged juror
125 and ask them the questions he proposed.
...
26. The remaining jurors were
brought into court. The
Commissioner told them that what he had to say to them was being said in the
absence of the public and the press and would not be reported. He told them that, as a result of
information that he had received, juror 125 had been discharged, and that he
hoped that the trial would continue with a jury of eleven members. He continued:-
"You must not hold these
events against any of the defendants.
I must emphasise that you must not colour your approach to the
case. I am also aware of another
event which I have discussed with another member of the jury. What I want you all to think about,
please, now, and confirm is whether or not the juror I have discharged, number
125, has provided you with any extra information about this case that you have
not heard in evidence in court.
Insofar as that juror may have expressed a view, either in favour of the
Crown or the defence, you should disregard that view. The second question I want to ask, and
it is an important one, do each of you still feel able, as I hope you do, to
continue to sit on the jury and reach a just and true verdict in this
case? Now, if any of you feel
any doubts about the answers to those questions will you say so now? Do I take it that each of you feels able
to continue to sit on the jury and reach a true and impartial and just verdict? Thank you very much."
27. The Commissioner then summed up
the case to the jury who retired to consider their verdicts.
28. At 17.39 on 5th October
Advocate Baker, on behalf of all of the applicants, sent an email to the Crown
Advocate, in the following terms:-
"I have reflected on events
this morning whereby a juror was discharged following an ex parte application
by the Crown. I am uncomfortable at
this turn of events. I do not know
why an ex parte application would be made in such circumstances particularly
without notice. Why at the very
least would notice not be given of such an application?
"I am also concerned that a
juror was discharged without any opportunity for the defence to make
submissions or even to know any detail of what the problem was.
"I am troubled as to how the
Crown became involved at all. Did
the juror liaise with the Viscount?
If the juror did liaise with the Viscount I cannot understand how the
Crown would come to be involved.
The communication should be from the Viscount to the Commissioner who
would then raise the matter with the parties. Could you explain to me how the Crown
came to be involved?"
29. During the morning of 6th
October, Advocate Baker provided a copy of that email to the Judicial Greffe,
saying that he wished to make submissions to the Court on the matters which he
had raised with the Crown. He was
advised that the Commissioner had declined to come into court because he had
ruled on the matter the previous day and the jury had now retired.
30. Advocate Baker's request was
recorded in an email sent to the Greffe at 14.43 the same day. It reads:-
"For the avoidance of doubt I
thought it might be helpful to set out in writing what I told you orally this
morning namely that it had been my intention to make submissions to the Judge
on the correspondence which I handed you this morning.
The message you gave me was that
the Judge had declined to come into court because he had ruled on the matter
yesterday and the jury had now retired.""
6.
The making
of this order discharging Juror 125 provided one of the grounds of appeal to the
Court of Appeal. The Court
dismissed this ground as follows:-
"55. In our judgment, the
defence was not prejudiced by the ex parte hearing having taken place, nor were
defence advocates disadvantaged in deciding whether or not to apply for the
discharge of the jury following the ex parte hearing and the discharge of juror
125.
56. The defence was told that juror
125 had been contacted by an outside source; and that the event was
sufficiently troubling to justify his removal from the jury. Defence advocates
were aware that the removal of juror 125 in those circumstances was not of
itself a basis for an application to discharge the rest of the jury. Much depended on whether or not there
had been any inappropriate communication between him and the other jurors.
57. The Commissioner afforded time
and opportunity to all advocates to contribute to the form of the investigation
he proposed to undertake. If the
defence had reached the view that the questions and/or answers were
inappropriate or insufficient in terms of eliminating any possible risk of
contamination or bias, then, no doubt, defence advocates would have applied to
discharge the jury. They did not,
nor, so far as we can discern from the submissions made to us, would they have
had any sensible basis on which to do so.
58. We were advised by the
Solicitor General that the members of jury listened to the questions which were
put to them by the Commissioner with obvious care, and responded unequivocally
either by a nodding of the head or simply saying "yes", albeit at an
insufficient volume for transcription.
That was not challenged by the defence. The defence have accepted that the jury
appeared to have had a good relationship with the Commissioner throughout the
trial and had shown a readiness to ask questions and participate in the process
without pressure from him.
59. It was established that juror
125 had not sought to influence the remaining members of the jury. There was no risk of contamination and,
therefore, no basis on which to consider discharging the jury. That is, no doubt, why none of the six
defendants made any application for a discharge at that time.
...
62. The jury was given an
appropriate direction not to hold the events surrounding juror 125 against the
defendants. It is not credible that
they disregarded those words insofar as they knew about and were in any way
concerned about the telephone calls which the wife of juror 137 had
received. The Commissioner asked
the members of the jury if they had "any doubts" about whether they
could continue. The direction was
given and the question was asked on the day of the summing up. There was no opportunity for their
impact to wane.
63. We reject the applicants'
contention that the Commissioner should have counselled jury members to silence. It would have served no purpose in the
circumstances of this case and could have caused unnecessary distress to one or
more jurors.
64. There was no refusal by the
Commissioner to hear Advocate Baker on the question of the discharge of the
juror. To the contrary, the
Commissioner had explained - to the furthest extent that he considered
that he could - the circumstances which had given rise to his decision. As we have said, the defence could not
have challenged that decision. What
would have been immediately obvious to them - and, of course, they had
time to reflect on matters when considering the terms of the proposed
communication to the jury - was that an event had occurred which had the
potential to raise an issue as to the remaining jurors.
65. Of the six defendants, only
Warren desired to revisit the ex parte application of 5th October. Advocate Baker's purpose in wishing to
make submissions, however, as communicated to the Court, was:-
(i) to discover why the defence
were not given notice of the ex parte application;
(ii) to express concern that the
juror was discharged without an opportunity being given to the defence to make
submissions or to know what the problem was, and
(iii) to be told how the Crown came
to be involved.
In our judgment, the Commissioner
was entitled to refuse to entertain any such representations. He had ruled on the matter the previous
day and the jury had retired.
Defence advocates had been afforded a fair and proper opportunity to
make appropriate submissions at that time.
There was nothing in the request for a further hearing which was
communicated to the Commissioner on 6th October to suggest that an application
to discharge the remaining jurors may have been in contemplation."
Mr Warren did not seek to revive his
complaint about the discharge of Juror 125 or the process by which it was
reached before the Privy Council.
7.
Advocate
Baker submits, that it has, since the trial, come to the attention of Mr
Warren that a member of the jury had been approached in September 2009, i.e.
during the trial by a Jersey police officer at the Jersey Rugby Club, who allegedly
said words to the effect "you know
they are guilty" apparently referring to Mr Warren and his
co-accused. This was based on
information said to be provided to Mr Warren's English solicitor by Mr
Welsh and a witness statement dated 7th July, 2011, of a Mr Michel,
who had practised as a Jersey lawyer, and was then serving a sentence of
imprisonment for perverting the course of justice. An ability fully to investigate such
incident might, Advocate Baker submits, open up an avenue for Mr Warren to
revisit his conviction.
8.
Correspondence
ensued between Mr Warren's lawyers on the one hand and the Hampshire
Police and the Crown on the other between May and August 2011. The upshot of that correspondence was
that the Crown refused to disclose the name of Juror 125.
In correspondence, contentions, oral
submissions and dialogue with the Court the Solicitor-General drew attention to
the following matters:-
First, the coincidence of the raising of
this allegation only after (and shortly after) the dismissal of Mr
Warren's appeal in the Privy Council.
Second, the apparent discrepancies in terms
of the chronology between the version of events provided respectively by Mr
Welsh and by Mr Michel.
Third, the apparent inconsistencies and obscurities
in Mr Welsh's statement.
Fourth, Mr Michel's doubtful claims
to be a witness of truth.
Fifth, the fact that the statement
attributed to the unnamed officer while clearly (if made) unwise, was not
accompanied by any threat or bribe, and would not, as Advocate Baker candidly
accepted, have by itself been a ground for staying the trial as an abuse of
process.
Sixth, as Advocate Baker accepted, the
Commissioner's discharge of Juror 125 was obviously not on the basis of
an approach made to that juror by the police, but by outside sources.
Seventh, the unlikely coincidence of a
single juror have been approached by both police and outside sources in the
same trial.
Eighth that Juror 125 played no part in the
Jury's deliberations.
Ninth that the police misconduct which
incurred the disapproval of the Privy Council, as I have already noted, was
distinct in kind from the pressuring or corrupting of a juror.
All this, the Solicitor General suggested,
meant the prospect that further inquiry of Juror 125 was unlikely to produce
anything of utility to Mr Warren in terms of reopening his appeal. Advocate Baker's position by way
of rebuttal was that viewed not in isolation, but in the context of admitted
police impropriety, something might be discovered as a result of approach to
Juror 125 which would tilt the balance in favour of finding the prosecution to
have been abusive.
9.
On 13th
March, 2012, Advocate Baker wrote to the Crown indicating, "as a matter of courtesy", an intention to approach
Juror 125 to provide a witness statement in relation to matters outside the
jury room.
10. On 20th March, 2012, in reaction the
Prosecution made an application to the Court which invited the court for reasons
set out, to make an order preventing defence contact with Juror 125 or any
other juror. This application was
served on Advocate Baker shortly thereafter, even though, for various reasons,
the matter was not heard for almost a year. Among the assertions made in that notice
were that the allegation of police interference had been raised by Mr Warren
during the trial itself [7]; that there were suspicious features of
Welsh's [11] and Michel's [15] stories; that the defence had never
identified Welsh's source [12], and (specifically) that "one can properly infer that Welsh has
already had improper contact perhaps through a third party with Juror 125 and
this is why we will not be told the true source of these allegations"
(para 14).
11. Objection was taken by Mr Warren to myself as
President sitting in the appeal on the basis that in 2011 at an earlier hearing
on a connected matter I had had sight of the material relied on now by the
Attorney-General for obtaining the ex parte order before the Commissioner. Since the very objection to the order is
that it was obtained on the basis of undisclosed material, the appearance, if
not the actuality of justice, would be impaired by my participation.
12. It seemed to the Court in considering this
objection that there were two possibilities. Either the Court would find that in
principle no injunction could be granted on the basis of material undisclosed
to an object of the injunction. If so, it mattered not that any member
of the Court might have seen such material. Or the Court would find that whether or
not such injunction should be granted on the basis of undisclosed material
depended upon the circumstances. If
so, the Court would necessarily see such material de bene esse in order to decide whether it had been appropriate to
deploy it as a ground for obtaining the injunction and if so, whether taking it
into account, the injunction should be granted, and it mattered not at what
point of time they did so. On
neither basis applying the modern test would the reasonable and informed
observer detect a real possibility of bias in the participation of myself in
the hearing. That being the
unanimous view of the Court. I did
not recuse myself.
13. No issue is raised about the power of the
Commissioner to grant such an injunction in the form set out at paragraph 1
above. It is vouched for by the
seminal case of Gouriet v AG and others (1978) AC 435. Lord Wilberforce spoke of "a
right of comparatively modern use, of the Attorney-General to involve the
assistance of civil courts in aid of the criminal law (481C)" and
of "his
right to seek in the civil court anticipatory preventions of a breach of the
law, as part or aspect of his general power to enforce in the public interest
public rights (482B)."
It is true that Lord Wilberforce stated that "the jurisdiction ....
is one to be used with caution" (481F) but it was nowhere
suggested in the speeches in the House of Lords that the classic case for its
use i.e. where the sanctions of substantive criminal law are inadequate to
deter its repetitive breach by a defendant were the only type of case in which
it could be used: and Viscount Dilhorne expressly denied the existence of such
limitation "I do not wish to suggest that the cases to which I have referred
are the only types of case in which the civil laws can and should come to the
aid of the criminal law by granting injunctions at the instance of the
Attorney-General (491-H)." I
have no doubt that where the proper operation of adjectival criminal law is
threatened by some form of attempt to pervert the course of justice, the
jurisdiction is properly engaged.
The integrity of the legal system is a prime candidate for such
protection in the public interest.
14. The challenge made by Advocate Baker on Mr
Warren's behalf rather is based on the process by which the Commissioner
granted the injunction described.
It was contended that such an order should never be made on the basis of
material not disclosed to the person whose interests were potentially adversely
affected by it, alternatively, it should not be made without safeguards
designed to protect, as far as possible, that person's interests.
15. I start from the premise that open justice and
natural justice are as important in the Bailiwick of Jersey as in other
civilized jurisdictions. Together
they ensure that justice is not only done but seen to be done, to those
involved, in particular, in adversarial litigation. But they are not principles from which
no departure is ever permitted. On
occasions the elements of procedural justice have to yield to higher
imperatives of substantive justice.
Such occasions are exceptional: and the circumstances which engender
them must be exceptional too. The
question is whether the present is such an occasion engendered by such
circumstances. The Commissioner
held that it was. He said indeed "In
my judgment the present case is one such, it is hard to think that these sorts
of facts will recur, if ever. It is
essential in the public interest in preventing crime that no approach be made
to this former juror." (Para 16).
16. The two authorities on which Advocate Baker
relied, Al Rawi v Security Services [2012] 1 AC 531 and Bank Mellat v
Her Majesty's Treasury [2013] UKSC 38 concerned inter parties
litigation in which the Supreme Court sought to ensure as far as possible
equality of arms. In both it was
recognised that where third party interests were involved, the presumption of
full disclosure of material relied on by one party to the other might be
modified. In Al Rawi, Lord Neuberger
MR said in the Court of Appeal:-
"[33] Different
considerations may apply where the proceedings do not only concern the
interests of the parties to the litigation, but they also have a significant
effect on a vulnerable third party, or where a wider public interest is engaged. Thus, where the case directly impinges
on the interests of a child, it may be justifiable for the court to see a
document which is not seen by the parties to the proceedings. In In re K (Infants) [1965] AC 201,
240-241, Lord Devlin said:
"Where the judge sits purely
as an arbiter and relies on the parties for his information, the parties have a
correlative right that he should act only on information which they have had
the opportunity of testing. Where the
judge is not sitting purely, or even primarily, as an arbiter but is charged
with the paramount duty of protecting the interests of one outside the
conflict, a rule that is designed for a just arbitrament cannot in all
circumstances prevail."
[34] More recently the point was
expressed in these terms by Baroness Hale of Richmond in Secretary of State for
the Home Department v MB [2008] AC 440, para 58:
"If ... the whole object
of the proceedings is to protect and promote the best interests of a child,
there may be exceptional circumstances in which disclosure of some of the
evidence would be so detrimental to the child's welfare as to defeat the
object of the exercise ..."
[35] Similarly, in the Roberts case
[2005] 2 AC 738, para 48 Lord Woolf CJ referred to the Parole Board having:
"a triangulation of interests:
the board's obligations to the prisoner and its obligation to protect
society and, as part of the latter obligation, its obligation to protect third
parties so far as it is practical to do so...""
17. Lord Dyson said in the Supreme Court, in the
same case:-
[63] I agree that there are certain classes of case
where a departure from the normal rule may be justified for special reasons in
the interests of justice. Thus as Baroness Hale of Richmond said in
Secretary of State for the Home Department v MB [2008] AC 440, para
58:
"If ... the whole object
of the proceedings is to protect and promote the best interests of a child,
there may be exceptional circumstances in which disclosure of some of the
evidence would be so detrimental to the child's welfare as to defeat the
object of the exercise ..."
... Cases involving children raise different
considerations from those which arise in ordinary civil litigation. That is
because the interests of children are paramount. It follows that where the
interests of the child are served, so too are the interests of justice."
(See also Lord Clarke [177][181]).
18. In Bank Mellat, Lord Neuberger now
President of the Supreme Court, reciprocally adopted what Lord Dyson, now MR,
had said [4], "The open justice system may be abrogated if justice cannot
otherwise be achieved."
19. I see no reason why in principle a juror either
during or after trial would not fall into the category of those whose interests
might require protection, especially when the interests of justice are not (as
in the case of a child) merely coincident with his (or her) own, but indeed
more extensive since a wider public interest is engaged. The importance of preventing, as far as
possible, jury tampering has been stressed at the highest level. R v Twomey [2010] WLR 630 in a
passage cited by the Court of Appeal in Warren, Lord Judge CJ said:-
"25 ... ... Experience suggests that
the seriousness of jury-tampering problems is usually proportionate to the
seriousness of the alleged criminality. There will be cases where the evidence
to demonstrate the risk of jury-tampering will be so sensitive that it can only
be addressed under PIIprinciples. Mr Aspinall [on behalf of the
defendant] would argue that, important though these considerations may be, he
has nevertheless been unable to address the evidence of the alleged
danger. The application should therefore fail.
"26
The immediate attraction of the argument is plain. If correct however it
would produce a remarkable outcome. It would mean that the court's
ability to discharge a jury because of jury-tampering and order trial by judge
alone could never be exercised if the evidence of the real and present danger
were so sensitive that it could not be disclosed to the defendant. In
short, the process could not apply where the actual or potential interference
with the jury was of the most serious or sophisticated kind, and where, for
example, disclosure of the evidence might imperil life or health or involve the
disclosure of police operational evidence or methodology which if disclosed,
would be of considerable interest to the criminal world and damaging to the
public interest. In such cases, faced with an order for disclosure, the
Crown would be left with no alternative but to discontinue the
prosecution. If so, the objective of the jury-tampering would have
succeeded. In short, therefore, we reject the submission that the
evidence relied on by the Crown, or the bulk of it, must always be
disclosed. This would indeed represent what Lord Bingham of Cornhill CJ
in R-v-Comerford [1998] 1 WLR 191, 198 described as "the
ideal". It is, as he observed, "an ideal which cannot always
be achieved in practice". We agree that the evidence should be
disclosed to the fullest extent possible, but it would be contrary to the
legislative purpose to make an order for disclosure which would in effect,
bring the prosecution to an end, and enable those who had been involved in
jury-tampering to derail the trial and avoid the consequences prescribed by
statute, trial by judge alone.""
20. In principle the same must apply where a juror
is approached after the trial in an attempt to subvert the jury verdict. In order to ascertain whether the
present case fell into that category, it was necessary for the Court to
consider the material relied on by the Crown to obtain the order applied for
but withheld from Mr Warren.
21. There are as already noted various instances of
where a Court has to consider material de
bene esse in order to determine whether it is admissible evidence, or other
instances - PII is an obvious example - where the Court has to consider
it in order to determine whether it can be withheld from another party, so the
exercise upon which the Court embarked is therefore not unusual. As the Commissioner himself said:-
"...Of course, with PII material
and ex parte hearings there is inevitably circularity in the process. It is often only after reading the
material that one can judge whether it should have been the subject of ex parte
proceedings in the first place and whether it should be acted upon and whether
it should remain concealed from the other party. The risk run, of course, by the party
putting forward the material, is that a judge will conclude that it ought not
to have been shown ex parte and therefore will order it to be disclosed to the
defence." [8]
22. After review of the material the Commissioner
concluded:-
"In this case, having read
the material, I have come to certain clear conclusions:-
(i) Considering the ex parte
material was necessary to protect society and third parties.
(ii) I form the same conclusion
that Commissioner Tucker did at his stage of the proceedings and now I extend
it to post-trial attempts to influence ex-jurors.
(iii) Any interview with Juror 125,
even by as independent a body as the Hampshire Police, would further that
attempt to pervert the course of justice." [9]
23. After sight of the material and the critical
consideration demanded by the context of past police malpractice in connection
with Mr Warren's trial, I myself endorse each and every word of the Commissioner
set out in that paragraph. The
material manifestly justifies the order he made, and to disclose the material
sought would frustrate the very object which the order was designed to protect.
24. This is not, I emphasise, a case where Mr
Warren is entirely in the dark about the Crown's position. The notice of application itself
illuminates the Crown's concern is that any approach to Juror 125 is not to
elicit from him some truth damning to the prosecution but rather to procure
from him a falsehood of the same character. Mr Warren needs to know no more and I do
not consider that in all the exceptional circumstances of this case he ought to
be allowed to enhance his knowledge.
Disclosure to an independent third party, a course canvassed by Advocate
Baker, would be no more tolerable.
25. Nor in my judgment is this a case for
appointment of a special advocate to review the material and make submissions
about it, even assuming (in the absence of specific statutory provision) that
the Commissioner enjoyed power to appoint one. In Austin [2013] EWCA 1028 (another case where a not wholly dissimilar issue
arose as to disclosure vel non to an
accused of material in criminal
proceedings alleged to have the capacity to damage the prosecution case) said:-
"On the facts in this case,
it would have been open to the judge to accede to the application for Special
Counsel to assist with the review of disclosure, if he thought that was
proper. It is to be stressed that that
is a step to be taken only rarely.
It is emphatically not a step to be taken every time there is a claim of
abuse of process, in immunity." [100]
26. No application was made before the Commissioner
for such appointment and he can scarcely be criticised for his omission to do
so. For my part I cannot in any
event see how in the present circumstances appointment of a special advocate
would assist. When protection of a
court process is concerned it must be for a Court to determine the degree of
inquiry which is warranted.
27. For these reasons I would dismiss the appeal.
Nugee ja:
28. I agree and I would like in particular to
associate myself with what the President has said in paragraph 24 of his
judgment which was that, after sight of the material put before the Commissioner
and us, ex parte, and viewing those materials with the critical consideration
demanded by the serious, past malpractice of the police, nevertheless he
endorses every word of the Commissioner.
I too am satisfied that that material manifestly justified the order the
Commissioner made and to disclose the material sought would indeed frustrate
the very object which the order was designed to protect.
logan martin ja:
29. I also agree and likewise confirm that in
considering the materials I took fully into account the need to consider the
past conduct of this prosecution and the submissions which had been made by
Advocate Baker on that matter.
Authorities
Warren
v AG [2013] JRC 044A.
Warren
and Others v AG [2010] JCA 084.
Warren and Others v AG
[2011] UKPC 10.
Gouriet v AG and Others
[1978] AC 435.
Al
Rawi v Security Services [2012] 1 AC 531.
Bank Mellat v Her
Majesty's Treasury [2013] UKSC 38.
R v Twomey [2010] 1 WLR 630.
R v Austin [2013] EWCA 1028.
