England and Wales High Court (Administrative Court) Decisions

1. MR T KING QC and MR A NADIM (instructed by Kristina Harrison Solicitors, Manchester M3) appeared on behalf of THE APPLICANT

2. MR L C GOLDSTONE QC and MR A J FARROW (instructed by The Crown

3. Prosecution Service, North West Area, Manchester M60) appeared on

4. THE LORD CHIEF JUSTICE: This is an application by leave of the court for an order of certiorari to quash a decision made by His Honour Judge Henshall sitting in the Crown Court at Manchester on 20 July 1998 and for an ancillary declaration.

5. The proceedings arise out of a written application dated 27 May 1998 under section 9 of and Schedule 1 to the Police and Criminal Evidence Act 1984. The application was authorised by Detective Superintendent Brown of the Greater Manchester Police and was made by Detective Sergeant Beddows, an officer of that force, who in a written information explained the basis upon which the application was made.

6. The brief facts placed before the judge when the application first came before him on 12 June 1998 were these. On 22 December 1997 the mortally injured body of a man named David Heath was found on the first-floor landing of a block of flats called McLaren House on an estate near Salford. Mr Heath had severe head injuries. A police investigatory team was established which made inquiries and which was led to believe that on the afternoon of the killing Mr Heath had been in the flat of the applicant Wayne Rogers. The evidence suggested that there had been an argument between the two men which had caused a witness to run out of the premises in fear. On her return she found Mr Heath lying in a pool of blood on the landing. The applicant was nowhere to be seen.

7. The police were led to believe that the applicant had left the scene in a taxi at about quarter past three that afternoon. The driver of the taxi was traced. He made a statement in which he said that he had picked up a man outside McLaren House at about the relevant time. This passenger asked the driver to take him to a firm of solicitors named Kristina Harrison in Chapel Street, Salford. According to the driver, he had noticed that the passenger on entering his taxi had blood on his hands. Again according to the driver, the passenger offered him £200 to say if he was asked that he had picked up the passenger at 2.30pm and not at 3.15pm. The driver said that he had refused and asked the passenger why he wanted the time changed, to which the passenger replied that he had assaulted somebody and that his hands had become bloodstained as a result. The driver said that he took the passenger to Chapel Street and dropped him off at the solicitors.

8. The application was made on the basis of the belief entertained by the police (whether rightly or wrongly, and I emphasise that at this stage the facts are merely allegations) that the passenger whom the driver took to the solicitors was the applicant. They further believed that he had committed the assault and that he was trying to bribe the driver in order to support a false alibi. However, when the driver attended an identification parade some five months after this incident he failed to identify the applicant. It was said that the applicant's appearance had changed in the meantime. But be that as it may, the driver failed to pick him out.

9. The injured man Mr Heath remained unconscious for a number of months following this assault, but died on 29 March 1998. A post- mortem examination showed that he had suffered serious injuries. The police tried to trace and interview the applicant after the incident but failed to do so until 8 May 1998 when he was eventually traced and arrested. There was no scientific evidence to link him with the assault at McLaren House.

10. At interview the applicant was represented by Kristina Harrison Solicitors. He refused to answer any questions.

11. The matter was put to the judge on the basis that it was of obvious relevance to the police to establish whether the applicant was or was not the passenger whom the driver took from McLaren House to the solicitors and it was therefore relevant to establish whether he did attend the solicitors on 22 December 1997, and if so at what time. In support of the application made to the judge the officer made a statement in which he deposed to the matters listed in paragraph 2 of Schedule 1 to the Police and Criminal Evidence Act 1984, there described as the first set of access conditions.

12. Originally the Crown sought an order for production of:

13. The order was directed to the solicitors.

14. By the time that the matter came before the judge on 12 June, however, the effect of the order sought had been amended. The rest of the application was unaltered, but the Crown now sought production of:

15. We have a transcript of the hearing before the judge on that date. It is apparent that at the outset counsel for the present applicant drew attention to the fact that the draft order by that stage before the court was in a very different format from the order originally drafted. It was on that basis that counsel went on to say that the only issue upon which the court was invited to rule was the issue of privilege. When the detective sergeant was examined in-chief he was asked whether he would be satisfied to receive information confirming the time of the attendance at the solicitors by the applicant and he said that he would. As the hearing developed, Mr Nadim representing the applicant said to the judge:

16. He also suggested that the order being sought in its amended form was radically different from that originally sought.

17. The judge granted the order in the terms already recited. In the course of his ruling he set out his reasons. He said:

18. He went on to observe:

19. That, however, was pointed out to him to be an error. He corrected it to read:

20. Following that hearing, a request was duly made of the solicitors who wrote on 19 June 1998 to acknowledge receipt of the order. In their letter they confirmed that they did not have any records or logs recording the time of arrival by the applicant on the relevant date at their premises. The Crown Prosecution Service endeavoured by letter to investigate the documents which the solicitors had reviewed for purposes of giving that answer, but the solicitors replied on 7 July, pointing out that they owed a duty of confidentiality to their client and, while they were willing to act in accordance with an order of the court, they were bound to observe that duty of confidence, save insofar as they were required to do otherwise.

21. It was against that background that the parties returned to the judge on 20 July when the order now under challenge was made. There was on that occasion considerable discussion of the meaning and effect of the existing order. Mr Nadim, in answer to the judge, made plain that he had no objection to clarification of the order so long as it was restricted to the time of the applicant's arrival. He did, however, object to an extension of the order to cover the time of any appointment. He said in the course of the transcript:

22. When the judge put it to counsel for the applicant that he was really suggesting that a fresh application should be made, counsel accepted that that was precisely what he was submitting.

23. The judge however gave a ruling in which he set out to clarify the effect of his earlier order. In the course of that ruling he said:

24. The background to the present application is to be found in section 9 of the 1984 Act and in Schedule 1 to that Act. In paragraph 2 of Schedule 1 the first set of access conditions is set out. Reference has already been made to them. In section 10 of the Act there is a definition of items subject to legal professional privilege which are defined to mean:

25. In section 14 of the Act there is a definition of "special procedure material", which is what is admittedly in issue here, but it is of crucial importance to note that subsection (2) is stipulated to apply "to material other than items subject to legal privilege and excluded material". If therefore items are subject to legal privilege, they are excluded from the operation of these provisions. The first submission made on behalf of the applicant, combining various submissions made by Mr King QC separately, is in summary to this effect. He submits that the order as clarified by the judge on 20 July was in substance a different order from that made on 12 June because it was wider and covered material not covered by the earlier order. He submits that, in truth, it was not a clarification or a minor amendment, but a new and wider order. He submits that the judge was not entitled to make a different and wider order without satisfying himself that the first set of access conditions were fulfilled in relation to that new and wider order and in relation to the material which it covered, as opposed to the material covered by the earlier and more limited order. He submits that the judge never went through the process which paragraph 1 of Schedule 1 imposes upon him, of satisfying himself that one or other set of access conditions is fulfilled in relation to the material which is the subject of the second order because he conceived himself to be clarifying the earlier order and not making a new one. That had the result, counsel submits, that the applicant lost the opportunity which he should have had to put arguments to the court in relation to the new and wider order, and in particular to address any arguments that might have been open to the solicitors in relation to whether the material sought by the later order was likely to be relevant evidence and whether it was likely to be of substantial value to the investigation. Accordingly Mr King submits that the judge's order made on 20 July was ultra vires and outside the limits of the earlier order and should therefore be quashed.

26. In reply the Crown submit that essentially there are four possible categories of document in issue in this case. The first is the sort of record often compiled at a reception desk in an office when a person calling at the office is invited to write their name, the time of arrival, the date and the name of the person whom they are consulting. That type of document, Mr Goldstone QC submits, is shown not to exist by the negative answer given by the solicitors to the judge's first order. However, he submits that, in the circumstances of this case, it is overwhelmingly probably that there was somewhere within the firm of solicitors an appointments diary since he suggests that the applicant was visiting the solicitors by appointment. He submits that there must in all probability be a record of the applicant's attendance at the solicitors recording the approximate time of such attendance, and he submits that there must in all probability be fee earners' charge sheets or charging schedules which would reveal what time was devoted by any fee earner in the solicitors to the business of the applicant and when. He submits that it is plain that the judge was fully entitled to be satisfied that the first set of access conditions were fulfilled not only in relation to material of the first type already mentioned but of the other kinds as well. Subject to the argument on legal professional privilege, to which I shall come, he submits that there was no room for serious argument but that an order should be made in relation to that material properly identified. He submits that it would be a futile waste of time and money to oblige the Crown to return to the judge to seek an order which the judge is virtually bound to make. Reminding us that the grant of an order of certiorari is discretionary, Mr Goldstone urges that in that situation we should refuse relief.

27. Despite the force and attractiveness of Mr Goldstone's argument, I for my part would reject it. It appears to me that Mr King's criticisms of the train of events are well founded. It may very well be that the order would have been made even if it had been originally presented on the present basis. The judge might well have been satisfied that the material was likely to be of substantial value. He might well have been satisfied that it was likely to be relevant evidence in the sense identified in R v Derby Magistrates' Court, ex parte B [1996] AC 487. Nonetheless, it does appear to me that, in conformity with the statute, it was incumbent upon the judge to apply his mind specifically to the fulfilment of the first set of access conditions in direct relation to the material to which it was sought to obtain access and, whether or not any argument on the merits could plausibly have been advanced, the applicant was, as it seems to me, entitled to that opportunity. On that basis I would accordingly accede to Mr King's submission on the first major ground of argument. There is however another, and in one sense even more crucial, ground of contention between the parties. It concerns the applicability of legal professional privilege. For the applicant Mr King submits that the three categories of document to which I have made reference (excluding the first) are protected from production by legal professional privilege. He lays particular stress on the definition of items subject to legal professional privilege in section 10 of the 1984 Act and points out that it covers communications between a professional legal adviser and his client made in connection with the giving of legal advice. He refers us to authority in support of his submissions that this is an expression to be given a broad and generous meaning and that the court should not restrict the ambit of a privilege described as fundamental to the administration of justice. It is in my judgment important to remind oneself of the well established purpose of legal professional privilege, which is to enable a client to make full disclosure to his legal adviser for the purposes of seeking legal advice without apprehension that anything said by him in seeking advice or to him in giving it may thereafter be subject to disclosure against his will. It is certainly true that in cases such as Balabel v Air India [1988] Ch 317, the court has discountenanced a narrow or nit-picking approach to documents and has ruled out an approach which takes a record of a communication sentence by sentence and extends the cloak of privilege to one and withholds it from another. It is nonetheless true that legal professional privilege applies, and applies only, to communications made for the purpose of seeking and receiving legal advice.

28. In this case we must consider the function and nature of the documents with which we are concerned. The record of time on an attendance note, on a time sheet or fee record is not in my judgment in any sense a communication. It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor's office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere, in my view. It is submitted on behalf of the applicant that the doctrine is to be applied on an all or nothing basis, that either a document is wholly entitled to legal professional privilege or none of it. That in my judgment is not so. The proposition is not in my view made good by Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529. That case concerned a continuous memorandum. It was held that a party could not waive privilege in relation to one part of it without waiving privilege in relation to the whole. The good sense of that ruling is, I think, obvious since to permit such a course would raise an obvious risk of misleading the reader. It therefore was held, and properly held in my view, that a party cannot pick and choose. But that is not the position here. Production is sought of nothing relating to legal advice or the subject matter of legal advice. Any such reference in, for example, an attendance note can be covered up, blacked out or obliterated. The Crown have made it as clear as can be from the outset that they have no wish to go behind the veil which protects the exchanges between the applicant and his professional adviser with regard to his personal affairs. That is something to which the Crown are not entitled and it is something which they do not seek. In my judgment, subject to any necessary obliteration, blacking out or covering-up, there is nothing in the documents to which the Crown seek access to which legal professional privilege can apply.

29. For those reasons I would for my part make an order quashing the judge's order of 20 July 1998. I would refuse the declaration which the applicant seeks. I would indicate, as should be apparent from this judgment, that it is open to the Crown to return to the judge to seek a further order to the effect which they have already indicated. On that occasion it will be open to the applicant to advance any grounds that he judges he can for resisting an order.

30. THE LORD CHIEF JUSTICE: I do not know if we ought to quash the order of 12 June as well.

31. MR KING: I would invite you to quash it also.

32. THE LORD CHIEF JUSTICE: Perhaps we do not need to. It is spent.

33. MR GOLDSTONE: My Lord, it has been overtaken by events.

34. MR KING: My Lord, in the circumstances we have succeeded on our application for certiorari. I would seek my costs of the application.

35. MR KING: Can I pause a moment? My Lord, my learned junior sounds generous to the respondents: out of central funds.

36. MR GOLDSTONE: My Lord, I have nothing to say.

37. THE LORD CHIEF JUSTICE: Very well. We shall make that order.

38. MR NADIM: My Lord, out of an abundance of caution may we have legal aid taxation?

39. THE LORD CHIEF JUSTICE: Yes, there will be an order for legal aid taxation.