England and Wales High Court (Administrative Court) Decisions

1. MR NADIM: May it please your Lordship, in this matter I appear on behalf of the Applicant, who seeks leave for judicial review, to challenge a decision made by His Honour Judge Henshell sitting at the Manchester Crown Court on 20th July of this year.

2. My Lord, as a matter of courtesy, the papers have been served upon the Crown Prosecution Service and they are aware of the application that is being made before your Lordship today. I must apologise for the fact that the Court has not been supplied with a transcript of the judgment made by

3. His Honour Judge Henshell on 20th July.

4. MR JUSTICE TUCKER: I see one has been placed before me now. I have not had the opportunity of reading it.

5. MR NADIM: It has just been faxed a few moments ago to this Court. Has your Lordship had an opportunity to consider the papers that have otherwise been lodged before the Court?

6. In essence, the case that is raised on behalf of the Applicant is that His Honour Judge Henshell proceeded to make an order on 20th July in absence of there being an application pursuant to Section 9 of the 1984 Act which he had no jurisdiction to do. Insofar as the learned judge was purporting to assist by reinterpreting the early order he had made on 12th June, then that reinterpretation, in my submission, is such that it bears no resemblance to the original order that was made by the learned judge.

7. In an effort to assist, I know your Lordship has not had the opportunity to read the papers, may I briefly take the Court through the transcripts.

8. MR JUSTICE TUCKER: That would be helpful.

9. MR NADIM: Firstly, I would invite your Lordship's consideration to the transcript of 12th June 1998, that concerns the first order that was made by the learned judge.

10. MR JUSTICE TUCKER: Do I have that? What I have is the transcript of 20th July.

11. MR NADIM: My Lord, I do apologise. I appear to be the victim of unhappy circumstances one after another. I arrived at Court having travelled from Manchester this morning to learn that the Court had not been supplied with any transcripts at all, I made arrangements for your Lordship to be supplied with transcripts, but it appears that my Lord does not have before him the transcript of 12th June.

12. In an effort to expedite matters, would your Lordship mind if I were to hand to the Court my own transcript, unfortunately it is marked.

13. MR JUSTICE TUCKER: I will ignore that, thank you very much (same handed).

14. MR NADIM: If you were to look at the marking which appears at page 3A, that relates to the evidence that was given by the police officer who was seeking a disclosure order, pursuant to section 9, and the essence of the evidence given by the police officer was that he wanted a confirmation that Rogers attended at the offices of the solicitors at a given time.

15. The application, prior to that, had been very widely drafted seeking disclosure of all papers concerning Wayne Rogers, I should say that as far as Rogers was concerned, he was, at the material time, a client of Kristina Harrison Solicitors in respect of a number of matters.

16. At page 6A, we have a record, I believe, of an intervention by the learned judge as to the nature of the information that was being sought, I am at a disadvantage in not being able to provide your Lordship without the reference in the transcript.

17. MR JUSTICE TUCKER: The judge says, "you deal, mainly, with the making of appointment...".

18. MR NADIM: That clearly is the wrong reference. My Lord, it appears to me that it may assist in the resolution of this matter if I were to be granted a short adjournment, so I can secure----

19. MR JUSTICE TUCKER: I think you had better have a short adjournment. I will hand both the transcripts back to you.

20. MR NADIM: The only transcript that will be needed by the Court -- I have borrowed the transcript of 1st June and I will get some copies made.

21. MR JUSTICE TUCKER: There is another case I can be dealing with.

22. MR NADIM: I am most grateful, my Lord.

23. MR JUSTICE TUCKER: Do you have all the copies you need now?

24. MR NADIM: I am most grateful for you affording me the time. If we may firstly look at the transcript of 12th June please. Page 3A sets out, in effect, the expectation of the police officer who gave evidence in support of the Section 9 application and the learned judge's power that provided, you receive information confirming the time of the attendance, "..you will be perfectly satisfied"? Response "I would, sir, yes". Then there are other matters dealt with in the course of the hearing.

25. If we may go to page 6H please.

26. MR NADIM: 6H please. The learned judge is now giving his judgment concerning the application made on behalf of the police. The learned judge confirms that there are reasonable grounds for believing that the material that should be specified, the record it is said of the log of the record of the time of the arrival on the premises of Kristina Harrison. Again, emphasis is with regard to the records of attendance by the man Rogers at the premises of Kristina Harrison.

27. At page 8A, my Lord, what the Crown seek there is not communications between the professional legal advisor or any person acting for them and their client, they seek a record of attendance by Wayne Rogers. Paragraph C, again I summarise:

28. The learned judge proceeds to give his understanding of the concept of legal and professional privilege as it may be applicable in this sort of situation, and he does that at paragraph D. The learned judge says:

29. Repeatedly, the learned judge is drawing a distinction between any communication that may have occurred between Rogers and his legal advisors with regard to the fact of making an appointment and the fact of attending at their offices. In light of the arguments that were heard, the learned judge proceeded to make an order in the terms set out at 9E that, the solicitors ought to release to the police:

30. Then the learned judge inquired whether that order was clear. In a response to that order, my instructing solicitors investigated their records and the information that they had held. I carried out a similar exercise as a result of which the Crown Prosecution Service were advised that Kristina Harrison Solicitors did not hold any information which was susceptible to disclosure pursuant to the order made by the learned judge. Thereafter, the Crown Prosecution Service required my instructing solicitors, in effect, to provide a schedule of material that they had considered in arriving at the conclusion that they had arrived at and my instructing solicitors, in my respectful submission, perfectly properly responded by saying, well, that was tantamount to releasing privileged information or would amount to disclosing the type of information that had been held. Thereafter, some considerable number of exchanges between my instructing solicitors and the police, the Crown Prosecution Service arranged for the matter to be relisted before His Honour Judge Henshell for the learned judge to clarify, in effect, the import of the order that he made.

31. In the course of that purported exercise of clarification, the learned judge proceeded to widen the ambit of the order requiring my instructing solicitors to disclose the time when Wayne Rogers attended at their offices, the records made concerning any appointments that may have been made in anticipation of his arrival at their offices and, thirdly, the duration for which he may have been present at their offices.

32. In relation to that, it may be helpful to consider the transcript of the hearing on 20th July. My Lord, on page 12, the learned judge gives his understanding of the order that he had earlier made, the phrase that has been discussed today----

33. MR JUSTICE TUCKER: Which letter are you looking at?

34. MR NADIM: A, my Lord, at the top of the page.

35. In my respectful submission, that is contrary to what the learned judge had previously said in his earlier decision of 12th June, as is apparent from paragraph A to D.

36. At page 12E, the learned judge proceeds to state that:

37. In my respectful submission, any ordinary interpretation of the earlier order made by the learned judge was specifically referable to the time of arrival and could not lead to the conclusion that it must include any attendance notes to show whether or not he did attend to keep any appointment. In any event, the satisfaction of that order would, in my submission, amount to release of privileged information and the order tends to act in the form of an interrogatory which is not the purpose of Section 9 of the 1984 Act.

38. Finally, the learned judge proceeds to state:

39. Again, in my submission, it is in direct conflict with what the learned judge had found in the course of the hearing on 12th June, as is apparent from paragraph 8D that I have earlier identified. In short, my submission on behalf of Wayne Rogers is to the effect, as I explained earlier, that the learned judge has proceeded to make various orders on 20th July when there was no formal application before him and the statute specifically requires there be an application from a police officer.

40. As far as the earlier application concerning the 12th June order is concerned, by making the order on 12th June the learned judge was functus officio , there being no live matters before him.

41. As far as the purported act of clarification is concerned, I am not at all clear whether the learned judge had the jurisdiction to engage in the exercise that he did before the present moment, accepting that he had such a jurisdiction, in my submission, the learned judge exceeded his jurisdiction by defining the order in the manner in which he did.

42. In all these circumstances, in my respectful submission, there is an arguable case warranting a review by this court.

43. MR JUSTICE TUCKER: Yes. I think you have an argument, Mr Nadim, but do not let your hopes be unduly raised. I am simply saying it is arguable.

44. MR NADIM: I try to be realistic in these matters. There is one matter on which I do pray your Lordship's guidance and that is the issue of privilege. Ultimately, that is an issue that will also have to be argued before this Court. I indicated at the outset of these proceedings that I had arranged for these papers to be submitted or sent to the Crown Prosecution Service so if they chose they could make representations before this Court. It may be that as a result of leave having been granted today, there would be declaratory relief that would be sought either by the Applicant or by the Respondent as to whether material that is being sought itself is privileged or not.

45. MR JUSTICE TUCKER: The other point that I think has been raised with you is the question of who is the proper Applicant, because at present the Applicant is Mr Rogers in person.

46. MR NADIM: My Lord, again the Crown Prosecution Service were aware of the fact that arguably Kristina Harrison ought to be the proper Applicant, but certainly the indications that I have received thus far are to the effect that they do not wish to challenge that as an issue, or it does not solve the issues that are germane to their application as to what they seek.

47. MR JUSTICE TUCKER: Does the firm of Kristina Harrison instruct you in the present application?

48. MR NADIM: They do. Your Lordship may be familiar with the case of Ex parte Taylor where the issue as to whether the defendant may be an Applicant or not was left undecided. There is, in my respectful submission, sufficient room for argument to say that Wayne Rogers is a proper Applicant or rather----

49. MR JUSTICE TUCKER: He is the one that is going to be prosecuted if things go wrong and convicted if things go very wrong.

50. MR NADIM: Indeed so. He clearly has an interest in these proceedings.

51. MR JUSTICE TUCKER: I have no doubt he has sufficient interest to warrant him bringing the application. Anyway, as long as the solicitors are in the picture and are instructing you, they clearly are.

52. MR JUSTICE TUCKER: They will be instructing you in the substantive application, no doubt.

53. MR JUSTICE TUCKER: What is your other difficulty, Mr Nadim?

54. MR NADIM: The other difficulty relates to the issue of privilege and how that is to be resolved. There is no mechanism of furnishing this Court with material that is held by my instructing solicitors with a view to obtaining an adjudication from this Court.

55. MR JUSTICE TUCKER: As if it were a PII investigation?

56. MR JUSTICE TUCKER: I direct that at the substantive hearing which will be before a two judge court, because it is a criminal matter, your solicitors should bring the material with them in case the Court should wish to see it.

57. MR JUSTICE TUCKER: There will no difficulty about that?

58. MR NADIM: I am sure there will not be but, of course, I am anxious to make sure that they are not in breach of the law.

59. MR JUSTICE TUCKER: If they have the material available, they need not release it meanwhile to anyone else, so if need be the judges who are hearing the substantive application can see it should it be at court.

60. MR NADIM: In my respectful submission, this is a matter that requires expedited resolution. The trial of Rogers is due to be heard in April of next year.

61. MR JUSTICE TUCKER: You want expedition?

62. MR JUSTICE TUCKER: Let me see what we can do for you. How long do you give for the substantive application?

63. MR JUSTICE TUCKER: Half a day at most to three quarters of a day. Let us see what we can do then (pause).

64. Mr Nadim, ensure that the transcripts are available for the Court.

65. MR NADIM: I will make sure.

66. MR JUSTICE TUCKER: Could you prepare a skeleton argument to be served, if possible, 14 days before the hearing date. What about affidavits?

67. MR NADIM: There is an affidavit filed by Jane Miller, Solicitor, who dealt with the application on behalf of Kristina Harrison Solicitors and there is an affidavit from the Applicant himself.

68. MR JUSTICE TUCKER: 8th December we can list you.

69. MR NADIM: I do not have my diary.

70. MR JUSTICE TUCKER: All right, all I am saying is, so far as the Court is concerned, the matter will be expedited. I will abridge time for service of Respondents' affidavits to 21 days.

71. MR JUSTICE TUCKER: Any further affidavit from you seven days thereafter. You may if you wish, and if it is convenient to the Respondents, have a hearing date 8th, 9th or 10th December.

72. MR NADIM: My Lord, I will confirm the date with the Court's Associate in a few moments, if I may.

73. MR JUSTICE TUCKER: I am just looking to see if I do have an affidavit. Anyway, can you check the papers when they are sent.

74. MR NADIM: I will make sure that the Court has all the appropriate papers in the appropriate form.

75. MR JUSTICE TUCKER: Thank you, Mr Nadim.

76. MR NADIM: Thank you, my Lord.