England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		24 July 2007

LORD JUSTICE LATHAM:

1. This is an appeal against conviction by these six appellants: Jathies Santharatnam (Jathies), Nimalan Nadarajah (Big Nimal), Mayuran Seevaratnam (Mayuran), Prabu Santharatnam (Prabu), Nimalrajah Thambithurai (Little Nimal) and Mukundan Kumarasritharan (Mukundan). They were all charged by count 1 on an indictment with the murder of Sellathurai Balasingham (Bala). They were charged together with two others, Uthayathas Balasubramanian (Uthayathas) and, importantly, Selvakumar Shandrogopal (Selva). In the alternative, by count 2 Little Nimal, Mukundan, Uthayathas and Selva were charged with conspiracy to assault Bala so that he would be caused actual bodily harm. By count 3, Jathies, Big Nimal and Prabu were charged with doing certain acts tending and intended to pervert the course of justice. By count 4, Jathies was charged with doing yet further acts tending and intended to pervert the course of justice.
2. The trial came on ultimately before His Honour Judge Morris QC and a jury in April 2004. On 19 July 2004, Jathies, Big Nimal, Mayuran and Prabu were convicted of murder and on 6 September were sentenced to life imprisonment, with certain minimum terms which are not material for the purposes of this appeal. Little Nimal, Uthayathas and Mukundan were acquitted of murder, but were found guilty of conspiracy to assault. On 6 September they were each sentenced to 30 months' imprisonment on that count. Selva, in circumstances which are central to this appeal, pleaded guilty to count 2 (conspiracy to assault) in September 2003. No evidence was offered against him on count 1 (murder). On 30 September 2004, he was sentenced to fourteen months' imprisonment. Jathies, Big Nimal and Prabu were also convicted of doing acts tending and intended to pervert the course of justice, for which they were sentenced to a term of three years' imprisonment, to be served concurrently with the sentences on the murder count, and Jathies was convicted on a further count (count 4) of doing acts tending and intended to pervert the course of justice, for which he was sentenced to a further concurrent term of three years' imprisonment.
3. The critical matter with which this appeal is concerned is the way in which the prosecution sought to establish the case against these appellants. Its case was that at 11pm on 6 November 2001 in Mitcham, Bala, who had left work and was going home, was followed and eventually stopped, dragged from his car, chased and beaten about the head and body with boots by at least two of the appellants. Death was caused by a fractured skull, with severe injuries to his head and brain. He also suffered a fractured shoulder blade, five broken ribs, bruising and defensive injuries. The prosecution case was that this attack had been orchestrated by Jathies because Bala had insulted an uncle of Jathies and Prabu (who are brothers). The appellants, who were in three separate vehicles, eventually met at the estate where Bala lived. The attack was witnessed by occupants of the flats in the locality, but they were unable to identify any of the assailants. A Suzuki Swift vehicle was however identified. That was found burnt out on 7 November in Kingston-on-Thames. That car contained a fingerprint of Selva. It was the prosecution's case that the Suzuki was Selva's car, that he had been the driver of it on the evening in question and had driven three of the appellants to the scene, where they had taken the bats out of the boot. After the attack they returned to the car and Selva drove them back to an address where all the appellants met up.
4. All that evidence was given by Selva. The prosecution were able to place further evidence before the jury, but it was by way of corroboration of Selva's account. It consisted of cell phone analyses which placed the relevant appellants in positions which were consistent with the account given by Selva. There was also evidence from other witnesses who spoke of the admissions of various appellants to having been involved in the murder. Those witnesses were known as "Eric", "Andy", "Benji" and "Charlie".
5. The evidence of Selva was not given orally. It was given via a written statement which the judge admitted pursuant to the provisions of sections 23 and 26 of the Criminal Justice Act 1988. It is to the correctness of the ruling which resulted in that evidence being read that argument in this appeal has been critically directed. In order to understand the argument, it is necessary to go through the extra-ordinary procedural history of this case, which has been helpfully set out by those acting for the appellants in the detailed written arguments with which they have provided the court.
6. The indictment upon which the appellants were convicted was not the original indictment which was faced by any of the appellants. The original indictment charged only Jathies, Uthayathas, Selva and Little Nimal. It was based on the cell phone evidence and the evidence of the four witnesses to whom it was said that confessions had been made. The position was that each of those defendants had provided at appropriate times defence statements in which they denied presence at the scene, apart from Selva. As matters approached trial, which was fixed for 15 September 2003, there was still no defence statement from Selva, although there had been an indication that he, too, would deny having been at the scene.
7. At the end of August 2003, Selva's counsel, Mr Wolkind QC, indicated to prosecuting counsel that Selva was prepared to plead guilty to a count of conspiracy to assault and to give evidence for the prosecution. At all relevant times Selva's solicitor was a Mr Sagar.
8. On 8 and 9 September 2003 the police interviewed Selva. As a result a statement was prepared and signed by him on 9 September. On 10 September Selva appeared before the Recorder of London and pleaded guilty to conspiracy to assault occasioning actual bodily harm. The prosecution offered no evidence against him on the count of murder.
9. It was as a result of the statement which Selva made that Prabu, Big Nimal, Mayuran and Mukundan were charged. The prosecution case against Jathies had also radically changed. The original case against him (based on the alleged confessions) was that he had been at the scene of the murder. But Selva's statement indicated that he had been the organiser of the attack.
10. Although he was not placed on a formal witness protection programme, Selva was granted bail following his guilty plea. That was on the basis (as we understand it) that the likely sentence would not have to be served in practical terms because of the period that he had spent on remand. However, the police provided assistance to Selva to find accommodation away from his home and provided him with some financial assistance to enable him to survive for at least some period of time. He was subjected to stringent bail conditions, which included conditions of residence and a curfew. It became apparent that he did not abide by those bail conditions, but instead reguarly went to see his girlfriend, Miss A, and a friend, Romesh, in Guildford.
11. The trial on the amended indictment was fixed for 19 April 2004. The prosecution indicated that they did not intend to call Selva until towards the end of their case. The trial commenced on 19 April, but by 27 April doubts began to arise as to the whereabouts of Selva. Those doubts crystallized when it became apparent that he had disappeared. The prosecution was unable to find him, despite the best efforts of all those concerned.
12. The prosecution sought to place before the jury Selva's statement pursuant to the provisions of sections 23 and 26 of the Criminal Justice Act 1988. Section 23, so far as material, provides:

"(1) Subject --

(a) to subsection (4) below; and

(b) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1968 ....

....

a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if --

(i) the requirements of one of the paragraphs of subsection (2) below are satisfied; or

(ii) the requirements of subsection (3) below are satisfied.

(2) The requirements mentioned in subsection (1)(i) above are --

....

(c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.

(3) The requirements mentioned in subsection (1)(ii) above are --

(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and

(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way."

Section 26, so far as relevant, provides:

"Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, otherwise than in accordance with section 29 below or an order under paragraph 6 of Schedule 13 to this Act or under section 30 or 31 below, for the purposes --

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation,

the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard --

(i) to the contents of the statement;

(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and

(iii) to any other circumstances that appear to the court to be relevant."

13. When considering the application that was made by the prosecution to admit Selva's statement, the trial judge was referred to R v M(KJ) [2003] 2 Cr App R 322. The headnote, so far as relevant, reads:

"(2) There was no invariable rule that a conviction might not be based solely, or to a decisive degree, on the statement of a witness that the accused had had no opportunity to examine either during the investigation or the trial and a conviction so based did not necessarily violate the right to a fair trial under Article 6 of the European Convention on Human Rights and Fundamental Freedoms (1953) (Cmd 8969). Otherwise, sections 23 and 26 of the Criminal Justice Act 1988 could never apply in a case where the essential, or only, witness was kept away by fear which would be an encouragement to criminals to indulge in the very kind of intimidation which the sections were designed to defeat. Where a witness gave evidence on a voir dire that he was unwilling to give evidence as a result of a threat made to him and the judge drew the inference that it was made, if not at the instigation of the defendant, at least with his approval, this would normally be conclusive as to how the discretion under section 27 should be exercised. In considering the likelihood of a defendant being able to controvert the statement of an absent witness, the court should not limit itself to the question of whether the defendant could give effective evidence but should also consider the reality of his opportunity to cross-examine or call other witnesses as to the relevant events, or to put the statement maker's credibility in issue by other means."

It should be noted in passing that that decision was approved after extensive consideration of the jurisprudence of the European Court of Human Rights in R v Sellick and Sellick [2005] 2 Cr App R 211, [2005] EWCA Crim 651, which post-dated the ruling in the present case. Be that as it may, no one in this court has suggested that the trial judge did not approach the application other than in accordance with the law as set out in sections 23 and 26 of the Criminal Justice Act 1988 and as set out in the decision of this court in M. Amongst the grounds of appeal, there is a challenge to whether he applied it correctly on the facts, but as to the principles there is no suggestion that he directed himself wrongly.

14. In order to determine the application the judge heard evidence in the first instance of Romesh, the girlfriend, and Selva's brother, as well as evidence from the police as to their attempts to find Selva and as to the circumstances surrounding his disappearance. There was also evidence from Mr Sagar, who indicated that he had not seen his client at any relevant time. The evidence from Romesh, the girlfriend and the brother was to the effect that Selva had been seen by them over the weekend ending 19 April. He had stayed one night in Guildford and he had been with his girlfriend, but they had not seen or heard from him since then. The police gave evidence that, despite the fact that Selva had a phone with which they had provided him ("991"), they had heard nothing from him and had been unable to contact him. Those who went to his flat said that there were indications that he intended to return: for example, there were items in the washing machine and two phone-chargers were plugged in.
15. Having heard all of that material, the judge drafted a ruling which he provided to all counsel in which he considered that the provisions of section 23 had been met in that all reasonable steps had been taken to find Selva, and he concluded on the evidence that he had been kept away by or on behalf of one or more of the defendants.
16. Having received that draft ruling, Mr Birmbaum QC on behalf of Little Nimal, brought to the judge's attention the fact that he had in his possession certain draft proofs which had been left by Selva in his cell at a time when he had been in custody together with Prabu. Those draft proofs suggested that Selva intended to run a defence of alibi and that the witnesses in support of that alibi were the girlfriend and the brother. The judge was invited to reconsider his ruling in the light of that material in the context that that would indicate that Selva's account showed that he had made previous inconsistent statements and should be approached on that basis, and that it could be inferred that the girlfriend and Romesh had been prepared to support that alibi.
17. Having heard further argument and further evidence, the judge made a final ruling in terms which repeated the original ruling but which also dealt in detail with the new evidence. His conclusions remained the same. It is to be noted that it was a carefully drafted ruling comprising 81 paragraphs. It is clear as we have said that he directed himself impeccably as to the provisions of the two sections and as to the law to be applied. In relation to his conclusions as to whether or not the provisions of section 23 had been met, he repeated that he was satisfied that all reasonable steps had been taken to find Selva, but that he could not be found. In relation to section 23(3) he said:

"62. Mr Turner QC on behalf of Jathies makes a discrete submission that Selva might have been kept out of the way by one or more of the prosecution witnesses, who have used pseudonyms. I accept that if that were or might be the case, I could not be satisfied under this subsection.

63. I reject the defence submissions. I am satisfied that Selva has been kept out of the way by or on behalf of one or more of the defendants. I cannot identify which of the defendants is responsible, but I am satisfied that no one else would have a motive for keeping him out of the way."

Whether, strictly speaking, that is a conclusion that is relevant to section 23(3) or section 26 is not material for the purposes of this judgment. It is plain, it seems to us, that the judge only came to the conclusion that he did because he was of the view on the evidence that Selva had been kept out of the way or prevented from giving evidence (in whatever way) by or on behalf of the defendants. If he had thought otherwise, he would not have ruled as he did.

18. It is against that background that we turn to look at what happened thereafter because the story is in many ways extraordinary. After the end of counsel's closing speeches a fax was received by the Central Criminal Court. It was dated 21 June 2004 and related the case number. It apparently came from an address in Chennai, India, and was apparently signed by Selva. It stated:

"I was supposed to attend the courts on 19th April 2004. But the statement that I gave was false. I was advised by the police to give a false statement. I left the country safely and now living in India. I don't want to be involved in this case any more. I apologise for any inconvenience caused."

19. Having heard both evidence and argument, the judge concluded that the fax was not from Selva; it was an attempt on someone's part to derail the trial. Accordingly the trial proceeded and the appellants were convicted.
20. The next relevant event is that the police were contacted on 28 September 2004 by Mr Sagar. He said that Selva had visited his office and intended to hand himself over to the police the following day. In fact, he did not do that. He did not surrender for another week, namely 28 September 2004. He arrived with Mr Sagar and he was arrested. He was later interviewed in the presence of his solicitor, but declined to answer any questions. Mr Sagar read out a prepared statement in the following terms:

"In September 2003 I pleaded guilty to the offence of conspiracy to cause actual bodily harm. I was granted conditional bail from the Central Criminal Court and was awaiting sentence. I also was a prosecution witness and provided a witness statement implicating my co-defendants who were due to stand trial in relation to an allegation of murder. It had been my intention to attend court and provide evidence for the prosecution. Prior to the start of the trial, I was contacted by a number of Tamil males. I do not wish to name the males concerned. The males threatened me and told me that if I attended court to give evidence, I would be killed, together with members of my family. I genuinely believed these people would carry out their threats. It is for this reason I breached my bail, and I went into hiding. I do not wish to state where I went. I have been asked about a letter dated 21 June 2004 that was faxed to the Central Criminal Court from India. I have seen a copy of this letter. I have never seen this letter prior to today. I did not write this letter. Prior to today I had no knowledge this letter existed. I certainly did not sign the letter. I do not wish to say any more at this stage because I feel that if I do I may say things that put my life in danger."

Having surrendered himself to the police, Selva thereafter appeared before the court for sentencing and was sentenced to fourteen months' imprisonment.

21. The mitigation on Selva's behalf was delphic in its explanation as to why he had not attended the trial, but he was sentenced on the basis of his statement that he had stayed away because of threats. The judge indicated during argument that, although he had concluded that Selva had disappeared because of threats, that would not have made any difference to his original ruling. It was implicit in the judge's ruling that the threats were by or on behalf of one or more of the defendants.
22. After he had been sentenced, Selva was questioned on a number of occasions by the police about the threats and about what he had done during his period of absence. The explanations that he gave were unsatisfactory. There were contradictions and implausibilities, and on occasions he declined to give answers. The consequence of that, it is submitted on behalf of all the appellants, is that there must therefore be real doubt about the correctness of the judge's conclusion that Selva had failed to attend the trial by reason of things said or done by or on behalf of the defendants. Had he known of Selva's explanation, the judge could not on that material have been satisfied to the appropriate standard for the purposes of granting the prosecution's application.
23. The appellants further submit that there is before the court now material which adds even more doubt as to the soundness of the conclusions to which the trial judge came. It is now known that Mr Sagar was a thoroughly dishonest solicitor. He has pleaded guilty to three offences of conspiracy to pervert the course of justice, to one offence of contempt of court, and on another indictment to an offence of conspiracy to obtain money transfers by deception and of falsifying a letter to the Inland Revenue.
24. There is also before the court a statement by Miss Lotay, who was a possible witness in a trial in which Mr Sagar was acting on behalf of a defendant, in which she states that he (Mr Sagar) had advised her to give evidence that would support the client's account (whatever the truth may have been) and that if the police pressurised her "I should go somewhere I couldn't be found". That at the moment remains a statement. Although that has not featured as a count in any indictment or been admitted by Mr Sagar, it raises the distinct possibility that Mr Sagar in a similar way may have been prepared to manipulate the process in this case by seeking to obtain the benefit that Selva undoubtedly gained from his admission and indication that he was prepared to give evidence, and then suggesting that Selva disappear for the period of the trial so that he did not have to go through the inconvenience or difficulty of giving evidence.
25. Whilst that might be pure speculation, when added to the unsatisfactory nature of the explanations given by Selva to the police as to why he had disappeared, it seems to us that the factual foundation which the trial judge used as the basis for his ruling cannot now be considered reliable.
26. There are additional factors which cause concern. Although it was thought that the 991 telephone had disappeared with Selva, it now transpires that it had been left in the flat. Further, during the course of his interviews Selva admitted that he had been offered £5,000 by his girlfriend's family not to give evidence.
27. All that material causes us to have sufficient concern about the judge's conclusion that we consider that these appeals must be allowed. We have listened with care to Mr Brown's arguments for the respondent. They are based upon the proposition that Selva's statement was a document upon which the jury could properly rely. It was a convincing statement, both internally convincing and corroborated in significant particulars by the other evidence. That may be so, but the primary function of a trial is to enable all parties to have placed before the court the best evidence; that will almost invariably require witnesses who are to give an account which is disputed, to give it in court in circumstances where their account can be the subject of cross-examination. Where an application, therefore, is made under sections 23 and 26, for the reasons given by this court in R v M(KJ) and R v Sellick, the circumstances in which it would be appropriate for an essential witness (as Selva was in this case) to give evidence by his/her statement being read must be truly exceptional and where the court can be satisfied of the fact that the "problem" (if that is the right description) has been caused by the defendants or people acting on their behalf.
28. The trial judge clearly thought that that was what he had to be satisfied about; we have no doubt that on the material before him he was entitled to be so satisfied. But now that the material that we have has come to light, we do not think that the foundation for his conclusions can be said to be secure. Accordingly, these convictions cannot be safe. We therefore quash them.
29. There is an application for a retrial, Mr Brown?

MR BROWN: Yes. I can outline the reasons why, I would submit, that it is in the interests of justice. My Lord will be aware of section 7 of the Criminal Appeal Act 1968: "Where the Court of Appeal allows an appeal against conviction and it appears to the court that the interests of justice so require, they may order the appellant to be retried." There is some commentary --

LORD JUSTICE LATHAM: I am reasonably familiar with it, Mr Brown.

MR BROWN: The respondents submit in this case that it is overwhelmingly in the interests of justice to order a retrial -- not just against those who were convicted of murder, but also those who were convicted of conspiracy to assault, albeit that they have served the sentence that they have.

The appeal, now allowed, came about as a result of subsequent events that left a question mark over the trial process.

LORD JUSTICE LATHAM: Yes, and you say the appropriate way of putting that right is to have a new trial?

MR BROWN: Indeed. I can go into details --

LORD JUSTICE LATHAM: No, Mr Brown. I think we need to hear what is said on behalf of the appellants. Who wants to go first?

MR TURNER: On behalf of Jathies Santharatnam, we could not argue that a retrial is inappropriate if an assurance is given to the court that the witnesses will be available for trial. That has not been given as yet to the court. If that assurance is given, we would ask the court, if they decide that a retrial is in the interests of justice, to say that such retrial is only being ordered because there is a prospect -- and a realistic prospect -- of the witnesses being produced at court -- in particular Selva. The reason I say that is that if, by way of example, it was the Crown's intention to proceed at the retrial without Selva, that would not, in our submission, be in the interests of justice. Indeed, it would be an abuse of process, we would submit, because in those circumstances the Crown would revert to a case which they no longer believe to be true against Jathies Santharatnam, namely based on Andy, Benji, Charlie and Eric --

LORD JUSTICE LATHAM: Ought we not to leave these questions to be decided once arraignment takes place?

MR TURNER: Save for this. If we are right in submitting that there are circumstances in which this court would not be minded to order a retrial -- that being one of them; the second, we suggest, is if the Crown were intending, without more, to seek to apply to read Selva as part of the retrial. If we are right in relation to those submissions, all we ask the court to do, assuming they order a retrial, is to say in doing so: "We do so because we have been given an assurance that these witnesses will be live at trial".

LORD JUSTICE LATHAM: Yes, we understand the submission, Mr Turner.

MR TURNER: That is my submission.

LORD JUSTICE LATHAM: Thank you. Mr Birmbaum?

MR BIRMBAUM: My Lord, can I address the quite separate submission to you in relation to Little Nimal and Mukundan, whose position is different?

LORD JUSTICE LATHAM: Because they are the two who have been convicted only of the conspiracy to assault?

MR BIRMBAUM: Yes. Can I put it this way -- I am sure your Lordship has the point in mind. They have served their sentence.

LORD JUSTICE LATHAM: Yes.

MR BIRMBAUM: They had done I think fifteen months or so by the end of the trial, and so the judge gave them 30 months. In relation to Mukundan (but not in relation to Little Nimal) there is, of course, cell site evidence that is important to the prosecution case, which could be adduced against other defendants whether or not he is in the dock. It seems to me that what we would be looking at would be a lengthy trial -- probably in the region of six weeks -- and one asks rhetorically: why should the defendants have to endure the hardship, and the public have to incur the expense of their sitting in the dock to be convicted of a relatively minor offence (if they are) and then go free because they have served their sentence? There is no public interest served in that. Their position is entirely different from that of the men convicted of murder.

LORD JUSTICE LATHAM: Yes. Yes, Mrs Smullen?

MRS SMULLEN: My Lord, in respect of Prabu Santharatnam, I would argue that it would not be in the interests of justice that there be a retrial. The reason I submit that is that the only evidence against Prabu is cell phones.

LORD JUSTICE LATHAM: Yes.

MRS SMULLEN: Now, if Sagar had concocted that statement with Selva, that is patently tainted. Now, I know that to a certain extent that may involve a degree of speculation, but given Miss Lotay's statement and the charges that are brought in respect of that, and the charges that he pleaded guilty to, in my submission it would not be wrong to submit that Sagar had totally tainted any prospect of a fair trial for Prabu Santharatnam. My Lord, those are my submissions.

LORD JUSTICE LATHAM: Thank you. Mr Haynes?

MR HAYNES: My Lord, the same would apply to Big Nimal in that the only evidence against him was cell phone.

LORD JUSTICE LATHAM: Very different considerations will apply. As to Mukundan and Little Nimal, Mr Brown, what do you say?

MR BROWN: There is always a strong public interest in a jury deciding whether or not those accused of crime are guilty. The court is entitled to look, when looking at the wider interests of justice, at the interests of the deceased's family because it is partly in their interest, and therefore the public interest, that all those accused of their father and husband's killing -- brutal killing as it was -- face a criminal trial. Those whose convictions today, by way of Little Nimal and Mukundan, have been quashed and who have served their sentence in these types of case, of course it is highly important to the defence, but in the interests of justice it is perhaps a secondary consideration. There is bound to be a trial of some length of course, and they will be asked to serve no further sentence if they are convicted, but there is a strong public interest nevertheless in their case, bearing in mind that both Little Nimal and Mukundan play a part -- an important part -- in the story as a whole, and to leave them out of the equation because they have served their sentence, in my respectful submission, is not in the interests of justice.

LORD JUSTICE LATHAM: Thank you. We will retire to consider the position.

(The court retired for a short time)

LORD JUSTICE LATHAM: We have no doubt that the interests of justice require a retrial and that that retrial requires a retrial of Mukundan and Little Nimal. They form part of the story and it seems to us that it would be inappropriate for the trial to take place without them.

So we allow the appeal and we quash the convictions. We direct that a fresh indictment be preferred and we direct that the defendants be re-arraigned on the fresh indictment within two months.

As far as venue is concerned, that will be decided by the presiding judge.

The question then is: first, custody or bail; and secondly, what representation orders ought to be made for the purpose of the retrial?

MR BROWN: Can I deal, first, with bail?

LORD JUSTICE LATHAM: Yes.

MR BROWN: In our submission, there are strong grounds that those originally convicted of murder would attempt to interfere with justice, bearing in mind the delicate nature of the investigation that as of today -- indeed, as of last night -- will take place, and there is a grave danger that they will abscond as well. There were similar concerns at the lower court leading up to trial and bail was refused in respect of those, and indeed the others.

LORD JUSTICE LATHAM: What do you say about Mukundan and Little Nimal?

MR BROWN: We would ask for conditions to be imposed of residence, not to contact any of the witnesses who were part of the Crown's case -- not only those who were served as part of the Crown's case, but my Lord will understand in a sense the identity of those relevant to the case has widened -- so any person who was part of the Crown's case who could now possibly be a witness --

LORD JUSTICE LATHAM: That is a bit difficult to identify, is it not?

MR BROWN: I was going to say I can identify those --

LORD JUSTICE LATHAM: Would it be a good idea for you to put into the court a list of names?

MR BROWN: I can do that.

LORD JUSTICE LATHAM: That would be the right way of dealing with it.

MR BROWN: I will not be able to do it within an hour or so, but within 24 hours, if that is acceptable to the court?

LORD JUSTICE LATHAM: Yes. What I would suggest, however, is that you do that and we will make the order, but that that is to be on the basis that representations can be made on behalf of Mukundan and Little Nimal to the Crown Court to which the matter goes if there are, amongst those names, those whom they consider to be an unnecessary requirement to keep away.

MR BROWN: And finally to surrender any passport or travel document.

LORD JUSTICE LATHAM: Yes.

MR BROWN: In my submission, those conditions are appropriate.

LORD JUSTICE LATHAM: Yes. Mr Turner?

MR TURNER: So far as Jathies Santharatnam is concerned, there would be potentially, in our submission, very good grounds for a bail application because of his medical position. He is virtually a cripple and he has received very little supportive medical treatment whilst in prison. But, having said that, for specific reasons I am instructed not to apply for bail today.

LORD JUSTICE LATHAM: I think that is probably wise because if we were to refuse it, that might cause problems.

MR TURNER: Yes.

LORD JUSTICE LATHAM: But you can make an application, if it is considered appropriate, at a later stage.

MR TURNER: Yes, I can. Those are the reasons why I do not today.

LORD JUSTICE LATHAM: Yes.

MR TURNER: So far as representation is concerned, we would ask -- he was represented by myself and a junior at trial -- and we would ask for that to continue.

LORD JUSTICE LATHAM: And I suggest a solicitor, too.

MR TURNER: I am coming to that. The solicitor, who in fact is the solicitor for all for the purposes of the appeal, is the gentleman who sits behind me and we ask that the legal aid certificate be amended to show Berwin & Co --

LORD JUSTICE LATHAM: I do not think that we need to identify the solicitor. That is not a necessary part of the order.

MR TURNER: If the court would be kind enough then to say solicitor, Queen's Counsel and junior counsel?

LORD JUSTICE LATHAM: Yes, certainly.

MRS SMULLEN: My Lord, on behalf of Prabu Santharatnam, I make no application for bail. He is a serving prisoner --

LORD JUSTICE LATHAM: In any event?

MRS SMULLEN: In any event. I make no application for bail. With regard to representation, there were two junior counsel -- myself and Mr Fuad, who appears here without a representation order but who has an interest in the case. I would ask that that continue, and also the solicitor who instructed at the trial.

LORD JUSTICE LATHAM: At the moment, whatever view we might have about those sort of representation orders -- perhaps we can cut through it -- I would not think it appropriate to make any different order as to representation than had been made below for the purposes of the original trial.

MRS SMULLEN: I am grateful.

MR HAYNES: My Lord, I have no application for bail today. Again I would invite you to make the same order in relation to representation.

LORD JUSTICE LATHAM: Yes. Perhaps you can make sure that the associate has a note from you all as to what the representation orders were below, so that they can be put in the order. As far as bail is concerned therefore, we do not make any order for bail -- all those other than Mukundan and Little Nimal. As far as they are concerned, they shall have bail. Is there anything you wish to say about the conditions, Mr Birmbaum?

MR BIRMBAUM: Yes, may I say two things? First of all, I do not really know very much about Mukundan's position because I never represented him. I simply hold the brief.

LORD JUSTICE LATHAM: Absolutely.

MR BIRMBAUM: Little Nimal, as far as the passport is concerned, I believe that there are ongoing concerns about his asylum application. For all I know, his passport is already surrendered to another authority. I am not sure about that, but I thought I ought to mention that possibility because I spoke to him the other day on the telephone and I know that there is some kind of proceeding in train where there has been an asylum application which so far has been unsuccessful.

LORD JUSTICE LATHAM: Yes.

MR BIRMBAUM: It is a matter for your Lordships whether you think it is necessary for the travel documents to be --

LORD JUSTICE LATHAM: I think probably the best thing for us to do is to order that any passport or travel document that he holds be surrendered, but that if no such documents are surrendered, then a full explanation is given to the prosecution, who can consider that explanation, and if they think that that does not meet the requirements, then they can take appropriate steps.

MR BIRMBAUM: Can I suggest: any passport or travel document not already held by any British authority? Something like that.

LORD JUSTICE LATHAM: Yes.

MR JUSTICE GRIFFITH WILLIAMS: He should not have any other travel document. If a travel document has been surrendered to the authorities, he should not have another one.

MR BIRMBAUM: Yes, that is what I mean, but he has to surrender it if it has not already been surrendered.

LORD JUSTICE LATHAM: Yes.

MR BIRMBAUM: The other point I should mention in regard to the prosecution witnesses, one of the people called was Little Nimal's girlfriend, with whom I believe he is now living.

LORD JUSTICE LATHAM: That is precisely why I was suggesting the mechanism that I indicated.

MR BIRMBAUM: Exactly. I am sure it will resolve itself into a list of the essential witnesses.

LORD JUSTICE LATHAM: Yes. Does anybody else want to say anything more about conditions of bail? No. There will be bail; condition of residence for both of them; not to contact any of the witnesses on a list to be provided by the prosecution, that to be subject to any application that Mukundan and Little Nimal would wish to make; both of them to surrender any passport or travel documents that they hold, unless they are already in the possession of any of the authorities. As far as residence is concerned, there is unlikely to be any difficulty, is there, about Little Nimal? You know where he is, Mr Birmbaum?

MR BIRMBAUM: I do not have the address, but I can readily find it out by a telephone call. I have not been in contact at all with Mukundan, but I think the best thing to do is to speak to his counsel.

LORD JUSTICE LATHAM: Yes. The answer as far as both Mukundan and Little Nimal are concerned, therefore, is that they must reside at an address which they must provide to the court and to the prosecution within seven days. Would that be all right, Mr Brown?

MR BROWN: I would have hoped slightly earlier, bearing in mind this is a critical part of the case.

LORD JUSTICE LATHAM: What would you prefer? Obviously with Little Nimal, we can do it within 24 hours. What do you say about Mukundan?

MR BIRMBAUM: I will try and speak to Little Nimal, who I know has various jobs throughout most of the 24 hours. Would your Lordship say 48 hours -- it just makes it a bit easier?

LORD JUSTICE LATHAM: 48 hours. I will say 48 hours for both.

MR BIRMBAUM: Thank you.

LORD JUSTICE LATHAM: It must be made plain to Mukundan that if in fact he does not provide the address within the 48 hours, he is at risk of being arrested immediately. That might encourage him a bit.

What orders, if any, do counsel want the court to make by way of restriction of publicity? I do not encourage any.

MR TURNER: Well, I think for my part there should be one because one can imagine in this case -- if a journalist decides to take up the story with any vigour -- what might be published and that would be of prejudice to the trial -- not only to the defence potentially, but also to the prosecution. So we would suggest that it would be in the interests of both sides if there were to be restrictions in terms of reporting until after the trial has taken place.

LORD JUSTICE LATHAM: What sort of restrictions? Do you mean no reporting?

MR TURNER: There should be no reporting of these proceedings, other than the outcome.

LORD JUSTICE LATHAM: Mr Birmbaum?

MR BIRMBAUM: My Lord, I do, with respect, see the sense in that. The risks are fairly small, but they are significant in relation to this very important case.

LORD JUSTICE LATHAM: Anyone else from the defendants' side?

MRS SMULLEN: I would endorse those proposals.

MR BROWN: I do see that the position of Sagar is uncertain in respect of what part he may or may not play in the subsequent trial of these defendants. That is the only matter that causes me to pause. It is just uncertainty. A very important part in my Lords' reasoning has had as its origin Sagar's dishonesty.

LORD JUSTICE LATHAM: Yes, it was only part of it.

MR BROWN: Part, yes, but without it the convictions may or may not have survived. We just do not know what part it will play in the subsequent trial.

LORD JUSTICE LATHAM: I wonder whether the best course to take -- because I do not like making orders in relation to restrictions on publication, particularly in the absence of any representations from the press; I have no idea whether anybody wants to report anything about this case at all. It may be that there is no interest in it whatsoever -- I do not mean that rudely to everybody here. What I suggest is that we make an order under 4(2) of the Contempt of Court Act 1981 postponing the publication of any report of the proceedings until after the retrial, except that the convictions of the appellant have been quashed and a retrial ordered, in order to avoid a substantial risk of prejudice to the administration of justice in these proceedings. That is on the basis that the press have liberty to apply within 24 hours for some other form of order, or for discharge of the order.

Thank you all very much indeed.