60 Canal Street
B e f o r e :
|- and -
|R. SUTHERLAND AND OTHERS
Suite 410, Crown House
Bull Ring, Kidderminster DY10 2DH
(Official Court Reporters to the Court)
MR. N. RUMFITT QC appeared on behalf of the Defendant SUTHERLAND
MR. LATHAM QC appeared on behalf of the Defendant SELF
MR. SWIFT QC appeared on behalf of the Defendant GRAY
MR. JOYCE QC appeared on behalf of the Defendant SMITH
MISS R. PAULET QC appeared on behalf of the Defendant TOSELAND
Crown Copyright ©
Mr Justice Newman :
1. 30 lever arch files, containing about 500 pages each, were disclosed in a piecemeal way up to Christmas last year. Thus, 15,000 documents came in, in that way.
2. 12 lever arch files were disclosed at the beginning of this year, containing officers' rough box and other documents, which disclosure had in fact been requested in November, last year, but declined.
3. On or about 7th January, lever arch files of the transcripts of the domestic intrusion were delivered, as I have said, the equivalent or the representation in transcripts of some 700 hours on tapes.
4. In the week beginning 26th November 2001, an open day was held at Sleaford police station, when solicitors for the defendants were invited to attend in order to view the documents which had not yet then been disclosed, but which were there available for disclosure. Nobody has given me a figure as to the number of documents then at the police station on this open day, but the description I have is that there was a room with many thousands of documents there. In any event, it took three people, working for two weeks, not all day but on each day for some part, to go through these thousands of documents.
This exercise produced four, as I understand it, of the defence, or at least one of them, two further lever arch files.
"The Crown Prosecution Service Inspectorate, in its Thematic Review of the Disclosure of Unused Material found that the 1996 Act was not working as Parliament intended and that its operation did not command the confidence of criminal practitioners. It highlighted: the failure of police disclosure officers to prepare full and reliable schedules of unused material; undue reliance by the prosecutors on disclosure officers' schedules and assessment of what should be disclosed; and "the awkward split of responsibilities, in particular between the police and the Crown Prosecution Service", in the task of determining what should be disclosed. The Inspectorate's principal recommendations were for greater involvement of prosecutors in the collation and examination of unused material and, from the start, in deciding on what should be disclosed; more involvement of counsel in the prosecution's duty of continuing review of unused material; and firmer reaction by prosecutors to no or inadequate defence statements."
"Reform is needed, but it is clear that there is no consensus as to what form it should take. One suggestion is for a reversion to the common law position immediately before the 1996 Act of more extensive prosecution disclosure. Another, and more widely supported, suggestion is for automatic disclosure by prosecutors of all non-sensitive unused material held by the prosecution or to which it has access."
1. Whenever a disclosure officer has made an assessment that privilege should be claimed in relation to any material, the claim must be subjected at some stage to critical scrutiny by the Crown Prosecution Service and if it is not considered upon such initial scrutiny as then occurs to be a straightforward matter then, as a matter of course, the Crown Prosecution should submit the difficulty to counsel. The exercise by way of scrutiny must take place at the earliest possible stage, namely as soon as the material is received from the police disclosure officer. Somebody must (within a reasonable period of time) have the task, not then, as I anticipate, of reading every single document, but at least being alerted to the categories and reasons why any documents have been placed in a category in which the officer has assessed they should be not disclosed.
2. A critical scrutiny of the claim for non-disclosure will not require simply a consideration of the legitimacy of the circumstances which are asserted as giving rise to privilege, but it will require a consideration of the content of the documents said to be falling within that category. Again, if that gives rise to difficulties, counsel should be instructed. As this very case demonstrates, a category such as simply "sensitive material" raises more questions that it in any way seeks to reveal. It reveals many questions for critical scrutiny. Again, by reference to this case, the technique and methodology of covert surveillance may well, and perhaps normally would, attract protection from disclosure but, as here, such a ground for protection provides no basis for not disclosing the fact that surveillance has taken place and the content. In the normal course I can see no reason why the fact of surveillance and the content of that which is being surveyed in relation to a particular defendant's conversations should not be revealed to that defendant and his lawyers.
In this case, as I shall eventually have to come to it, it is a matter of some surprise and deep regret that material annotated by those responsible for preparing the disclosure and documents in the police, who annotated material as containing privileged material, should have survived non-disclosure for as long as it did. A mere perusal of the documents which disclose such a claim and such a basis of claim, in my judgment, should have been seen by somebody at an earlier stage.
On the evidence, the material came into the hands of the Crown Prosecution Service in April 2001. It survived disclosure right up to 14th and 15th January of this year. It was made subject of an application to the Court for non-disclosure at that date.
3. As a general rule, as I have said, I can see no sound basis for withholding the fact of, and content of, covert surveillance of a defendant's activities and conversation. Why they should be withheld from a defendant or his advisors puzzles me.
The failure of the surveillance, if it be the case, to yield anything of significance to the prosecution does not affect its relevance as a fact to the defence. The very fact that there has been extensive surveillance, which has not resulted in anything incriminating, is in itself a matter which the defence are entitled to be informed about.
Further, it seems to me to be highly desirable, if not essential, that, for a solicitor for the defendant to be properly instructed in connection with his client's case, he should be aware of what his client has said to others when he, the solicitor, has not been present. Without being fanciful, it could be lines of defence, or matters upon which advice is needed, which may not have come into the possession of the solicitor in the course of his interviews and time with the defendant, but which would be thrown up by such material.
"On instructions of the SIO this tape is not considered appropriate for transcription. No secondary listening and/or transcription has been completed on this tape, as it would appear that it may contain inadvertent recording of matter subject to legal privilege."
The principal issue
"To facilitate cell area covert recording: Sleaford and Grantham police stations during anticipated detention periods for Corley murder suspects: week commencing 20th November 2000: Reason - primary suspects will be re-arrested or arrested for interview at Grantham and Sleaford in two phases: I intend to capture out of interview conversations, as I believe the Corley murder will be discussed".
"The offence under investigation is one of murder. This application is for the use of covert audio surveillance in the communal area of the cell area situated at Sleaford police station."
"This application is for the use of covert audio surveillance in a communal cell area of Grantham police station."
"This audio surveillance equipment will only listen to conversations which take place between persons in separate cells via the communal passageway. It will not pick up conversations of persons in the same cell and does not therefore constitute intrusive surveillance. This action is highly unlikely to result in the acquisition of confidential material."
"Covert technical surveillance, namely listening devices, are authorised and will be in use in the cell passages at both Grantham and Sleaford police stations. In order to eliminate collateral intrusion, visits to detainees must only take place in private interview rooms and not individual cells, or the cell passage. Those officers employed to monitor such equipment are shown on appendix D."
"I feel the time is right to clarify our policy in relation to solicitors attending Grantham to provide legal representation. The first point taken is that too often solicitors arrive unannounced at the rear entrance, despite the sign saying, 'No admittance to the public'".
"Grantham police station is a no-smoking building and smoking is only permitted in the interview room during consultation and by consent of the parties involved. Smoking within other areas is not permitted".
1. From the outset Messrs. White, Bannister and Thom intended to intercept communications in the exercise yards and that White and Thom deliberately failed to make reference to the exercise yards in the applications for authority.
2. Mr. Bannister deliberately failed to make any reference to the exercise yards in paragraph 4 of the operational order.
3. Since at least the beginning of 2000 the exercise yards had been used on a regular basis as a place where detained persons and solicitors consulted, and this practice was well known to each of them.
1. The prisoner was in the exercise yard with a police officer to exercise or to have a smoke.
2. He wished to communicate with a fellow prisoner in a cell and, rather than doing that by shouting in the passageway or from his cell, he chose to do it from outside.
3. That circumstances existed which were seen by him at the time to be sufficiently favourable to him shouting to someone so that it could be heard in a cell, and his assessment that for the prisoner in the cell to whom it was directed of being able of shouting back in a way that could be heard by the prisoner in the exercise yard in order to give rise to the anticipated dialogue that this exercise was envisaging taking place.
4. That, unless he chose to do this at a time when the door or doors to the exercise yard were open, the chances of it being of any use and conversations ensuing were significantly decreased.
5. That there was an absence of extraneous noise at any one time when this might have occurred which would have limited the purpose of the exercise.
1. No steps were taken to ensure that the surveillance of the exercise yard did not give rise to the interception of privileged material.
2. No action was taken when privileged material was obtained other than to continue recording on further occasions as they arose.
3. No procedures existed for a review or re-assessment to be made of the risks attendant on privileged material being obtained.
4. No directions were given to personnel involved as to what to do in the event that privileged material was obtained. As to the documentary evidence:(i) The policy note referred to cell area.(ii) The applications referred to communal area of the cell area.(iii) The operational order only related to cell areas.
MR. JUSTICE NEWMAN:
"Having reviewed the principles underlying the existence of unjustification for legal professional privilege, so that those listening to this ruling have some understanding of the impact that the rule can have, this case involved the murder of a 16-year-old girl. The applicant in that case had been arrested and made a statement to the police admitting being solely responsible for the murder, but shortly before his trial he retracted that statement and alleged that although he had been at the scene his stepfather had killed the girl. He was acquitted.
Subsequently, the stepfather was charged with the girl's murder and proceedings were commenced before a magistrate. The applicant gave evidence for the prosecution and repeated his allegation that his stepfather had murdered the girl. In cross-examining the applicant, counsel for the stepfather cross-examined him about instructions he had initially given to his solicitors, when it was said admitting to her murder. The applicant declined to answer on the grounds of legal professional privilege.
The magistrate then had to consider whether the privilege should prevail, and he concluded that the public interest in protecting solicitor and client communications was against the public interest in securing that all relevant evidence was available to the defence and issued the summons. It was that issue."
"The principle which runs through all these cases and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.
Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests."
"Nobody doubts that legal professional privilege could be modified or even aggregated by statute, subject always to the objection that legal professional privilege is a fundamental human right, protected by the European Convention for the protection of human rights and fundamental freedoms, as to which we did not hear any argument."
"The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality. The Court has accepted that, although the doctrine is based on the requirements of the public interest, its application in particular cases does not depend upon balancing it against other rights that are grounded in the public interest. Not even the public interest in courts having all relevant evidence before them has been considered sufficient to override the public interest in maintaining the unqualified operation of the privilege."
"The argument that any document that might assist a person to defend a criminal charge should be available to that person might seem instinctively to be unanswerable. But to uphold it would be inconsistent with the rationale of the doctrine of legal professional privilege and that privilege has been recognised since the reign of Elizabeth I."
"The nature and basis of legal professional privilege have been often and authoritatively expounded, most recently in R v Derby Magistrates' Court ex parte B  AC 487. At its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives It, whether expressly or impliedly."
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"Everyone charged with a criminal offence has the following minimum rights ...(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
"The Court has noted above that Article 6.3 normally requires that an accused be allowed to benefit from the assistance of a lawyer in the initial stages of an interrogation.
Furthermore, an accused's right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6.3(c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, p. 16, § 48). The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of hearing of third persons, is illustrated by the international provisions cited above… However, the Court's case law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary for the applicant to prove, assuming such were possible, that the restriction had a prejudicial effect on the course of the trial, the applicant must be able to be claim to have been directly affected by the restriction in the exercise of the rights of the defence."
"Nonetheless, the Court cannot but conclude that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him."
"It is important …that criminal courts are not used to discipline the police. Victims of crime and the public at large have an interest in prosecutions going on. Here, there was a proper committal. The right to silence, which [counsel for the prosecution] agrees is an important fundamental right, … is properly to be preserved by the discretion of a judge to exclude evidence. Evidence including a confession improperly obtained may be and sometimes is declared to be admissible, the weight to be given to it being left to the jury. A pre-trial inquiry, such as the appellant contends the judge in this case was under a duty to embark upon, would itself be open to abuse by unscrupulous and dishonest accused persons. The criminal trial system would be placed in jeopardy. The facts of the present case demonstrated the importance of, among other things, discovering during the trial whether alleged misconduct by the police had had any effect upon the evidence and any likely bearing on the result. It had had none."
"A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time."
"Subject to the provisos in annexe B, all people in police detention must be informed that they may at any time consult and communicate privately, whether in person, in writing or by telephone with a solicitor."
"In relation to any act of a public authority, which the Court finds is unlawful, it may grant such relief or remedy or make such order within its powers as it would consider just and appropriate."
"The Human Rights Act 1998 emphasised the desirability of taking a broader rather than a narrower approach as to what constituted an unsafe conviction, and if a defendant has been denied a fair trial for the purposes of Article 6 of the Convention it would be almost inevitable that the conviction would be regarded as unsafe. If a prosecution should have been stopped on the basis that it was an abuse of process, but despite that a conviction followed, it was most unlikely that it would not be set aside.
However, where failures on the part of the prosecution prior to trial did not amount to the category of misconduct, which had to exist before it was right to stay a prosecution, there was no justification for interfering with freely entered pleas of guilty."
"Now that the convention is part of our domestic law, it would be most unfortunate if the approach identified by the European Court and the approach of this court continued to differ unless this is inevitable because of provisions contained in this country's legislation or the state of our case law."
"For this reason we endorse the approach of Rose LJ in R v Mullen and prefer the broader approach to the narrower approach supported by Auld LJ. Certainly, if it would be right to stop a prosecution on the basis that it was an abuse of process, this court would be most unlikely to conclude that if there was a conviction despite this fact, the conviction should not be set aside."
"that where a defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognisance of those circumstances and refuse to try the defendant; and that, accordingly, the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant."
"The power to stop a prosecution arises only when it is an abuse of a process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable . . . The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution."
"There have, however, also been cases in which although the fairness of the trial itself was not in question the courts have regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process. In Chu Piu-wing v. Attorney-General  H.K.L.R. 411 the Hong Kong Court of Appeal allowed an appeal against a conviction for contempt of court for refusing to obey a subpoena ad testificandum on the ground that the witness had been assured by the Independent Commission Against Corruption that he would not be required to give evidence, McMullin V.-P. said, at pp. 417-418:
"there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain."
"Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it."
"In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party."
"It is, of course, axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all. But it is also axiomatic that there is a strong public interest in the prosecution and punishment of crime. Absent any suggestion of unfairness or oppression in the trial process, an application to the court charged with the trial of a criminal offence (to which it may be convenient to refer by the shorthand expression "a criminal court"), whether that application be made at the trial or at earlier committal proceedings, to order the discontinuance of the prosecution and the discharge of the accused on the ground of some anterior executive activity in which the court is in no way implicated requires to be justified by some very cogent reason.
Making, as I do, every assumption in favour of the appellant as regards the veracity of the evidence which he has adduced and the implications sought to be drawn from it, I discern no such cogent reason in the instant case."
"There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance."
"We turn first to consideration of the facts and the balancing exercise identified by Lord Steyn in Latif. Having regard to the fact that the appellant, as he now concedes, was properly convicted, this Court must approach the exercise of its discretion on a rather different basis from that which would have been appropriate if an application had been made to the trial judge. In particular, there is before this Court no question of consideration of the strength of the evidence of the defendant's guilt of the offence charged. However, as appears from the passage already cited from the speech of Lord Lowry in Bennett at page 76G, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.
As a primary consideration, it is necessary for the Court to take into account the gravity of the offence in question. In the present case, the substance of the offence was the facilitating of a bombing campaign in the United Kingdom…".
"therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the appellant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of Public International Law.
Finally, the events leading to the deportation as now revealed in the Summary for Disclosure were concealed from the appellant until last year.
In all these circumstances, can it now be said that the conduct of the British authorities in causing the appellant to be deported in the manner in which he was, and in prosecuting him to conviction was - to use the words of Lord Steyn in Latif at page 113:
"so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to succeed?""
"At first instance and in the Court of Appeal counsel for Shahzad made much of the undoubted fact that customs officers by deception arranged for Honi to lure Shahzad to this country. Counsel for Shahzad drew your Lordships' attention to observations of Lord Griffiths in Liangsiriprasert v US Government  2 All ER 866 at 872.
"… counsel for Shahzad concentrated his argument on two other features of this case. First, he submitted that the customs officers encouraged Shahzad to commit the offence. Secondly, he argued that the customs officer who brought the drugs to England himself committed the offence of which Shahzad was convicted. It is necessary to examine these arguments."
He did so and then went on to consider whether there had been a breach of the law. At 360, he said:
"It is now necessary to consider the legal framework in which the issue of abuse of process must be considered. The starting point is that entrapment is not a defence under English law. That is, however, not the end of the matter. Given that Shahzad would probably not have committed the particular offence of which he was convicted, but for the conduct of Honi and the customs officers, which included criminal conduct, how should the matter be approached? This poses the perennial dilemma…"
And he then refers to various learned writings:
"If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime. The weaknesses of both extreme positions leaves only one principled solution. The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such a trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed (see Bennett v Horseferry Road Magistrates' Court  3 All ER 138, sub nom R v Horseferry Road Magistrates' Court, ex p Bennett  1 AC 42). Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.
"The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour of the customs officer was venial compared to that of Shahzad."
1. In the scale of assessment of the gravity of a crime the facts of this case are at the top end. A young man has been executed by a brutal shooting. If the prosecution are correct this happened for reasons of petty differences, in some way connected with the fact that one of the defendants had been assaulted at an earlier date, and it was felt that the Courts had failed to provide justice in those circumstances. Another of the defendants, it appears, might have objected to his girlfriend continuing to associate with the deceased. On any basis, if such conduct was established, it would establish conduct which places these defendants way outside our civilised society.
2. But, in turn, society, which must adjudge such conduct, whether or not, and will adjudge it if found proved as unacceptable, also, as part of its civilisation, upholds the fundamental principle and right, which, as I have found, the police in this case deliberately contravened.
1. Unless there is an inquiry into the course of the police investigation, whether or not use was made of the material, cannot be ascertained. It cannot be right that this is a matter which falls to be resolved upon the assertions of the police involved in these operations. More particularly, that must be the case if the Court, having heard their evidence, has concluded that they have not given truthful evidence.
2. Unless the content of the captured material is known, no meaningful inquiry can be carried out to see what consequences have occurred. Thus, whilst the privilege prevails, the suggested inquiry is non-justiciable. This, in my judgment, flows from that which was said by Lord Bingham, namely, the rule is an absolute rule.
3. The defendants, having an absolute right not to waive the privilege, it cannot be right that the Court can force them to do so in order to prove the case for a stay, for to do so would be to effectively take away the very fundamental right which the law has conferred.
4. If the trial is to proceed, in my judgment, the Court has to be satisfied that there can be a fair trial. It cannot be right to permit a trial to proceed so that the trial itself constitutes the inquiry as to whether or not there can be a fair trial.
5. In my concern for the outcome invited by the defence, I have considered whether the Court should examine the privileged material, on its own, in order to assess the quality of it and to form a view as to the likelihood that it might have had an effect, or to form a view as to the gravity of the consequences of what had occurred by looking at the product of what was obtained but, in the absence of waiver by a defendant, even if the Court was arrogate to itself the right to take such a course, in my judgment, it would not assist.