England and Wales High Court (Administrative Court) Decisions

QUEEN on the application of TERENCE LESLIE SHIELDS v. CROWN COURT AT LIVERPOOL and THE LORD CHANCELLOR [2001] EWHC Admin 90 (26th January, 2001)

Case No: CO/3749/2000

Neutral Citation Number: [2001] EWHC Admin 90

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 26^th January 2001

LORD JUSTICE BROOKE :

1. This is the judgment of the court.

2. This is an application by the claimant Terence Leslie Shields for judicial review of a decision made by Judge Crompton in the Liverpool Crown Court on 5th October 2000 whereby he refused to amend the claimant's legal aid order so as to provide for representation by Queen's Counsel and junior counsel at his forthcoming trial at that court on serious charges relating to the importation of heroin.

3. His application to this court included an application for a declaration that regulation 48 of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 ("the 1989 Regulations"), as amended by the Legal Aid in Criminal and Care Proceedings (General) (Amendment No 2) Regulations 2000 ("the Amendment Regulations"), were ultra vires if they could not be interpreted in a way that gave effect to the claimant's asserted rights under Article 6(1) of the European Convention on Human Rights ("ECHR"). For this reason, when granting permission for this application to proceed on 16th October 2000, Turner J required the applicant's solicitors to notify the Lord Chancellor's Department in addition to the prosecution. In the meantime he stayed the criminal proceedings pending the outcome of this application. He abridged to 14 days the time for service of any evidence in answer (with liberty to apply) and directed expedition on the basis that the case should be listed for hearing on the first open date 21 days after notification to the additional prospective defendants.

4. In the event the prosecution has played no part in these proceedings. The Lord Chancellor's Department has, however, elected to take a full part, and a nine-page witness statement, accompanied by over 40 pages of exhibits, was served on its behalf on 2nd November 2000. For all practical purposes it has assumed the role of effective defendant to the claim. The application was listed for a two-day hearing on 17th and 18th January 2001, together with another heavy application which raised similar issues. In the event the second application did not proceed, and we announced at the end of the first day of the hearing that we had decided that we had no jurisdiction to entertain the application, so that we did not proceed to consider its merits. We said we would give our reasons for this decision in due course.

5. We mention these matters to draw attention to the fact that even with time limits being severely abridged, the making of this application in relation to the legal representation of one out of six defendants has delayed the trial at Liverpool for three and a half months. Three of the defendants have pleaded guilty, but three (including the claimant) are contesting the charges. We understand that all these defendants are now on bail. We will revert to the relevance of these matters in paragraphs 24 below.

6. So far as the facts of the case are concerned, six men, including the claimant and a man called Munro, are charged with being knowingly concerned in the fraudulent evasion of the prohibition on importation of heroin, a Class A drug. The prosecution case is concerned with the importation of just under five kilograms of heroin, with an estimated street value of about £440,000, from the Netherlands to this country by sea. As we have said, three defendants have pleaded guilty, while the claimant and Munro, who are said to be two of the organisers, and one other man have pleaded not guilty. The prosecution case appears to be based on a mixture of observations and records of telephone calls which were made to a great extent on mobile telephones.

7. It is the Crown's case that the defendant Munro probably provided the finance and some of the transportation for this importation. It is the essence of the claimant's complaint that it will be unfair, and contrary to his ECHR Convention right to a fair trial (of which "equality of arms" is an essential feature), that Munro, who has not had his assets frozen, will be represented at the trial by leading and junior counsel engaged at his own expense, whereas if Judge Crompton's order is not set aside, his own representation, arranged at public expense, will be limited to junior counsel only. There are other features of the alleged unfairness of which complaint is made on which it is not necessary to dwell, since we decided that we did not have jurisdiction to consider the merits of the complaint. The claimant's concern about this asserted unfairness is that it is already evident that Munro will be mounting a "cut-throat" defence, so that the claimant will be facing attack at the trial from a co-defendant who is more powerfully represented.

8. The Amendment Regulations effected changes to the 1989 Regulations with effect from 1st September 2000 so that Judge Crompton's jurisdiction to grant legal aid for two counsel was governed by the amended regulation 48. He also made his order three days after the Human Rights Act 1998 came into effect. The amended regulation 48 provides, so far as is material, that:

"(1) A legal aid order may provide for the services of a Queen's Counsel ... in respect of the whole or any specified part of any proceedings only in the cases specified and in the manner provided for by the following paragraphs of this regulation; ...

(2) Subject to paragraphs (3) to (9), a legal aid order may provide for the services of a Queen's Counsel or of more than one advocate in any of the following terms:

(a) ...

(b) where two advocates are required-

(i) a Queen's Counsel with a junior counsel;

...

(5) A legal aid order relating to proceedings in the Crown Court may be made in the terms of paragraph 2(b)(i) ... if and only if -

(a) in the opinion of the competent authority the case for the legally assisted person involves substantial novel or complex issues of law of fact which could not be adequately presented except by a Queen's Counsel assisted by junior counsel; and

(b) either

(i) the case for the legally assisted person is exceptional compared with the generality of cases involving similar offences, or

(ii) a Queen's Counsel or senior Treasury counsel has been instructed on behalf of the prosecution and any of the conditions in paragraph (4)(b)(i), (iii) or (iv) is satisfied."

9. On 5th October 2000 Judge Crompton was conducting a preliminary hearing on the basis that he had been designated as the trial judge, and the claimant's application for extended representation was one of a number of matters he had to consider. A similar application had already been made by the claimant and refused on three previous occasions, twice on paper by the Recorder of Liverpool and once in court by Judge Maddison, but it is Judge Crompton's ruling which is the subject of this application. He had had the opportunity of reading a skeleton argument lodged in advance of the hearing, which set out the facts relied upon, and placed reliance on the "equality of arms" contention, and this written argument was supported by brief oral representations at the hearing in court. The judge's ruling was equally brief. He said:

"Dealing first with the application for leading counsel, it seems to me quite clear that under the provisions of the new regulations this does not constitute a case which involves such novel or complex issues of law as to justify such an order being made or, indeed, that the facts are such that they could not be adequately presented except by a Queen's Counsel."

10. Those, then, are the background facts and a summary of the nature of the claimant's complaint. We will now give our reasons for deciding that we had no jurisdiction to entertain the complaint. As is well known the Crown Court forms part of the Supreme Court (Supreme Court Act 1981 ("the 1981 Act") s 1(1)) and is a superior court of record (s 45 (1)). As such, it would not normally be amenable to the supervisory jurisdiction of this court (which is another superior court of record), by way of judicial review.

11. Because, however, the Crown Court was the lineal successor of quarter sessions as well as being the lineal successor of the assize courts, special provisions were made for access to this court in relation to decisions of the Crown Court so long as they did not relate to trial on indictment. Those special provisions were first introduced by Section 10 of the Courts Act 1971 (which created the Crown Court), and have been perpetuated by sections 28-29 of the 1981 Act. Thus section 28 of that Act provides for the case stated procedure, which is expressed not to apply to "a judgment or other decision of the Crown Court relating to trial on indictment" (s 28(2)), and section 29, which perpetuates in statute the High Court's powers to make the prerogative orders of mandamus, prohibition and certiorari (which have recently been renamed), provides by section 29(3) that:

"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make order of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court." (Emphasis added).

12. It was common ground that prior to the coming into force of the Human Rights Act 1998 it was settled law that a decision of the Crown Court to refuse legal aid for trial on indictment was not amenable to judicial review, by virtue of the provisions of Section 29(3) of the 1981 Act. The position is stated by Lord Bridge in In re Sampson [1987] 1 WLR 194 in these terms at p 199E-F:

"A legal aid order granting legal aid for the purposes of trial on indictment may be made either by the magistrates' court before which the committal proceedings are conducted or by the Crown Court to which the defendant is committed: section 28 of the Act of 1974, as amended by section 2 of the Act of 1982. It is established by Chichester Crown Court Ex parte Abodunrin (1984) 79 Cr App R 293, which the House affirmed in Smalley v Warwick Crown Court [1985] AC 622, that a decision of the Crown Court to refuse legal aid for trial on indictment is within the statutory exclusion from judicial review since it clearly affects the conduct of the trial."

13. This principle was applied by this court in R v Isleworth Crown Court ex p Willington [1993] 1 WLR 713 when McCowan LJ said at p 715E that if the court was of the opinion that it had no jurisdiction (as, in the event, it was), it would not only be pointless for it to consider whether, if it had jurisdiction, it would hold that the judge had no jurisdiction to do what he did in relation to the defendant's legal aid certificate. It would also be wrong

"because if the defendant were to be convicted, it is a point which the Court of Appeal (Criminal Division) might, on appeal, have to decide."

14. It was this line of authority which persuaded us that we should decide first whether we had jurisdiction to entertain Mr Shields's application, on the grounds that if we decided we did not, it would not be appropriate for us to go on to consider his application on the merits.

15. It follows that on the face of it we were bound by clear House of Lords authority. Mr Nicol QC therefore acknowledged that he had to persuade us that we should give a different interpretation to section 29(3) of the 1981 Act now that the Human Rights Act 1998 is in force. The enabling mechanism, would be found in section 3(1) of that Act which provides:

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

16. The phrase "Convention rights" is defined in section 1(1) of the Act, and they include, in Schedule 1 of the Act (see s 1(3)), ECHR Article 6. This article provides, so far as is material, that:

"(1) In the determination 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 ...

...

(3) 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:"

17. It was common ground that the jurisprudence of the European Court of Human Rights ("ECtHR") in relation to Article 6 recognises the principle of equality of arms. This means that a party is entitled to be in a position to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent. See the judgment of the ECtHR in De Haes and Gijsels v Belgium 25 EHRR 1, 56, at para 53, where the court describes the concept in these terms as a component of the broader concept of a fair trial.

18. Mr Nicol argued that either Judge Crompton's order or the amended regulation 48 (if the judge had no other option than to make the order he did on the proper construction of that regulation) involved a violation of his client's Convention right to be equipped with arms equal to those of his co-defendant Munro in the particular circumstances of this case. His written argument on the merits developed a proposition that was stated in paragraph 13 of the Grounds of Claim for Judicial Review in the following terms:

"The standard of fairness required by Article 6(1) varies according to what is at stake for the party concerned. In proceedings for a serious criminal offence where conviction would result in a severe penalty, the highest standards of fairness and equality of arms must be observed: Article 6(1) requires that there be equality of arms in relation to the specific guarantees provided by Article 6(3)(b) (facilities) and (c) (representation)."

19. If we had permitted him to proceed to the second part of his argument, Mr Nicol would have relied on such authorities as De Haes and Gijsels v Belgium 25 EHRR 1, 56-58 at paras 50-59; Bönisch v Austria 9 EHRR 191, 199-201 at paras 28-35; Benham v United Kingdom 22 EHRR 293, 324-5 at paras 60-64; Artico v Italy 3 EHRR 1, 12-15 at paras 32-37; and Granger v United Kingdom 12 EHRR 469, 479-482 at paras 42-48. Because the argument did not proceed that far, it is not necessary to mention the additional cases on which Mr Nicol would have relied in support of his contention that the equality principle is not confined to case where the "opponent" of the accused is the prosecution, or which would have illustrated the proposition that the standard of fairness or equality set by the ECtHR in criminal cases is a high one.

20. This argument on jurisdiction is merely an argument about access to a remedy. Is English law entitled to require a litigant in a trial on indictment in the Crown Court to pursue any complaint of breach of his Convention rights before the appeal court after the trial has taken place, or is the law obliged to provide a remedy by way of judicial review at an earlier stage? Any such obligation can arise only through the Convention itself; it must be required by some Convention principle. Mr Hoskins submits that there is no such requirement and that the European jurisprudence does not concern itself with questions of court management by dictating to signatory states which courts must be used to remedy alleged breaches of Convention law.

21. Mr Nicol submits that on the contrary, there is clear authority which shows that it is a breach of the Convention jurisprudence to leave Article 6 breaches at the trial to be remedied on appeal. He further contends that in any event the limitation on the powers of the Court of Appeal, which can only upset a verdict if it is unsafe, does not necessarily enable it to remedy Article 6 breaches. Hence, he submits, unless this court exercises jurisdiction before the trial, the claimant may be left without any effective remedy for the breach. We will consider these arguments in turn.

22. Mr Nicol recognised that in general the English courts are antipathetic to what might be loosely described as appeals or challenges to interlocutory decisions made by judge of the Crown Court, or to other types of pre-trial challenge (for example, to a decision by the Director of Public Prosecutions to consent to a prosecution: see R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326). In the Kebilene case Lord Steyn discussed the dangers of an outflanking attack aimed at avoiding the barrier imposed by Section 29(3) of the 1981 Act in these terms at p 370B-C:

"Given that reverse legal burden provisions appear in other legislation, the entertaining of such challenges outside the trial and appeal process might seriously disrupt the criminal justice system. Moreover, when article 6 of the Convention becomes part of our law, it will be the prism through which other aspects of our criminal law may have to be re-examined. If the Divisional Court's present ruling is correct, it will be possible in other cases, which do not involve reverse legal burden provisions, to challenge decisions to prosecute in judicial review proceedings. The potential for undermining the proper and fair management of our criminal justice system may be considerable."

23. After mentioning the ways in which the defendants might be able to mount their challenge to the exercise of the DPP's power of consent within the trial or the appeal process, either on an application to stay the prosecution for abuse of process or, if they were convicted, on an appeal, Lord Steyn said at p 371F-H:

"My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review. And I would further rule that the present case falls on the wrong side of that line. While the passing of the Human Rights Act 1998 marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts are concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal. The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system. In my view the Divisional Court should have dismissed the applicants' application."

24. It was Lord Steyn's emphasis on "the proper and fair management of our criminal justice system" and on the need for any reliance on the Human Rights Act 1998 to "take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal" which led us to consider the disruption which has in fact affected these criminal proceedings by reason of this interlocutory High Court challenge. Even with the benefit of Turner J's order, which must have led to the disruption of the orderly conduct of work at a high level in the policy division of the Lord Chancellor's Department, the proceedings at Liverpool have now been delayed for three and a half months. On more routine occasions the delay and disruption would both be likely to be greater if the coming into force of the Human Rights Act 1998 really does have the effect on the previous interpretation of section 29(3) of the 1981 Act for which Mr Nicol contended.

25. He argued, however, that if we did not intervene now, the violation of his client's Article 6 rights, if proved, would be irremediable. He contended that the ECtHR had made it clear that whereas in civil cases compliance with Article 6 may arise either at first instance or on appeal to a court or tribunal with the requisite jurisdiction, in criminal cases the State must ensure compliance at first instance. This cannot be achieved by simply permitting the Court of Appeal to interfere on appeal. He relied on two cases in support of this proposition: Findlay v United Kingdom 24 EHRR 221 and Riepan v Austria, Application No 35115/57, ECtHR judgment of 14th November 2000 unreported.

26. In Findlay the applicant complained that a single officer, known as the convening officer, was responsible for the convening of his court-martial, the appointment of all the participants in the court-martial, and the confirmation of his sentence. Because the applicant pleaded guilty, he had no right of appeal to the Courts Martial Appeal Court, although once he had been sentenced and his sentence had been confirmed, he had the right to make successive petitions to two "reviewing authorities" within the military hierarchy.

27. It was common ground at the hearing in Strasbourg that the applicant was not given a fair hearing by an independent and impartial tribunal. Indeed, the UK Government had no observations to make on the conclusion made by the European Commission on Human Rights that there had been a violation of Article 6(1) of the Convention by reason of the width of the role of the convening officer (who was the General Officer Commanding London district), and his command links with the members of the tribunal who heard the applicant's case (see the report at 24 EHRR 221, 243-244 at paras 68-72). In paragraph 72 the court reported the Commission's view that

"it considered that the applicant's fears about the independence of the court-martial could be regarded as objectively justified, particularly in view of the nature and extent of the convening officer's roles, the composition of the court-martial and its ad hoc nature. This defect was not, moreover, remedied by any subsequent review by a judicial body affording all the guarantees required by Article 6(1) since the confirming officer was the same person as the convening officer, and the reviewing authorities were army officers, the second of whom was superior in rank to the first. The ineffectiveness of the post-hearing reviews was further underlined by the secrecy surrounding them and the lack of opportunity for Mr Findlay to participate in a meaningful way."

28. This was the background against which the ECtHR expressed the opinion on which Mr Nicol relied, after it had made its own findings about the inherent defects in the trial process which we have described.

29. The court said at para 79:

"Nor could the defects referred to above be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as `criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)."

30. In the other case on which Mr Nicol relied, Riepan v Austria, a criminal trial was held in a small room in the closed area of a prison. The applicant was convicted. He appealed to the local court of appeal which held a public hearing at a court building close to the prison. Although it heard the applicant on various issues, it did not rehear the witnesses, and the defence made no request that it should. (It appears from paragraph 41 of the ECtHR judgment that the appeal court would only have been able to accede to such a request, if it had been made, if it considered the trial court's taking of the evidence had been incomplete or defective). The appeal court concluded that it had no doubts regarding the lower court's evaluation of the facts.

31. Mr Nicol relied on paragraph 40 of the judgment in which, after considering the lower standards required of administrative disciplinary proceedings, the court said:

"The present case, however, concerns proceedings before courts of a classic kind which are classified as `criminal' both under domestic and Convention law. In this field, the court has, in the context of the requirement of a tribunal's `independence and impartiality', rejected the possibility that a defect at first instance could be remedied at a later stage, finding that the accused was entitled to a first instance tribunal that fully met the requirements of Article 6(1) (see the above-mentioned De Cubber v Belgium judgment, pp 18-19, at paragraphs 32-33, and the Findlay v United Kingdom judgment of 25th February 1997, Reports 1997-I, p 282, at 79."

32. Mr Nicol says that these two cases show that the defects at first instance cannot be remedied on appeal. Therefore, he submits, in the light of these authorities it cannot be an answer to his application to say that the Court of Appeal can put the defect right later; there must be a duty on this court to exercise its jurisdiction and determine the merits of his application now.

33. In our view this submission is entirely misconceived and misunderstands the effect of these cases. When the ECtHR refers to remedying the defects at first instance in those cases it plainly has in mind the ability of the appeal court to give a ruling against the appellant on the substance of the case which will be effective in law notwithstanding the defects at first instance. Generally in criminal cases there is a reluctance to accept that it can, although even in such cases defects at first instance, depending on their nature, can exceptionally be so remedied on appeal, where the appeal is in the nature of a full rehearing or otherwise involves a careful review of the merits of the case: see, for example, Edwards v United Kingdom 15 EHRR 417 and Twalib v Greece, judgment of 9th June 1998 (41/1997/826/1032).

34. These cases do not establish that an appeal court cannot remedy defects in first instance decisions by holding those decisions to be invalid. Indeed, that is one way in which an effective remedy for breaches of Convention rights can be secured, as required by Article 13 of the Convention. In such cases the appeal court is not saving the decision notwithstanding the blemishes at first instance, rather it is invalidating the decision because of the blemishes at first instance. The court is then ruling in a criminal case that the original verdict cannot be allowed to stand and that if there is to be a conviction, it can only be after a fresh trial in which the Convention rights are respected. It is simply upholding Convention rights. Nothing in either the Findlay or Riepan cases suggests that providing a remedy of this kind can possibly be a breach of Convention law.

35. We are satisfied in these circumstances that Mr Nicol's contention that a defect in the fairness of a criminal trial at first instance cannot be remedied by an appeal court under ECHR jurisprudence is not well-founded.

36. Mr Nicol's alternative submission was that even if he were wrong about his first argument, we ought to intervene at this stage, given our obligation under section 6(1) and our powers under section 8(1) of the Human Rights Act, because otherwise we would be standing by and allowing a trial to take place which might well, by reason of the inequality of arms as between his client and his client's prospective accuser Munro, violate his client's Article 6 rights without any effective redress at all. His argument ran like this:

(1) It is unlawful for this court to act in a way which is incompatible with a Convention right;

(2) If this court stands by, then Mr Shields will be subjected to an unfair trial at first instance;

(3) The jurisdiction of the Court of Appeal may not extend to remedying this unfairness.

37. He relied in support of this last proposition on a passage in the judgment of Mantell LJ, sitting in the Criminal Division of the Court of Appeal, in R v Davis, Rowe and Johnson [2000] UKHRR 683. The Criminal Cases Review Commission had referred this case back to the Court of Appeal in April 1999. Before the hearing in that court, the ECtHR ruled that there had been a violation of Article 6(1) in the original trial of these defendants which had not been cured by the original appeal process. This defect in the trial process related to the failure by the Crown to disclose to the defence the status of an important prosecution witness as a police informer, together with the fact that this witness had become eligible for a reward and that he may have nominated another man as one of the three robbers before he pointed the finger at the defendant Johnson (see p 694A-B).

38. When the reference was heard by the Court of Appeal in the summer of 2000, it decided to proceed as if the Human Rights Act 1998 was already in force (p 694F). Mantell LJ recited the relevant paragraphs from the conclusions of the ECtHR five months earlier, and then, while not necessarily deciding that the court was bound by the Strasbourg judgment, he said that it had independently come to the same conclusion, and that there had been a violation of Article 6.

39. He then considered the rival contentions of counsel on the question whether this finding necessarily drove the court to the conclusion that the convictions were unsafe within the meaning of Section 2 of the Criminal Appeal Act 1968, as amended. One of the defence counsel had accepted that "fairness" and "safety" were separate concepts, but had submitted that the ECtHR finding raised a strong presumption that the convictions were unsafe. Another argued that the court could only give effect to the Convention right under Article 6(1) by quashing the convictions (see p 699E-H).

40. The court, however, accepted the contention of counsel for the Crown to the effect that the ECtHR was principally concerned with the interpretation of an international treaty and as such it did not express any opinion on the question whether a conviction in domestic law was safe or unsafe (see Murray v UK 22 EHRR 29 at paras 56 and 74-76 and Saunders v UK 23 EHRR 313 at para 86).

41. Mantell LJ continued (p 700B-G):

"The duty of the [ECtHR] is to determine whether or not there has been a violation of the European Convention or in this case, more particularly, of Article 6(1). It is not within the remit of [ECtHR] to comment upon the nature and quality of any breach or upon the impact such a breach might have had upon the safety of the conviction. We note that in Condron v United Kingdom (2000) unreported, 2nd May, the [ECtHR] seems to have questioned the competence of the Court of Appeal to assess safety against the background of an unreasoned verdict. But on our understanding the distinction between `fairness' and `safety' was recognised at para 65:

`The court also has regard to the fact that Court of Appeal was concerned with the safety of the applicant's conviction, not whether they had in the circumstances received a fair trial. In the court's opinion the question whether or not the rights of the defence guaranteed to an accused under Article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any inquiry into the issue of fairness.'

And at para 68 the court simply concluded that the applicants were denied a fair hearing in violation of Article 6(1) of the Convention.

We are satisfied that the two questions must be kept separate and apart. The ECtHR is charged with inquiring into whether there has been a breach of a convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel's] contention that a finding of a breach of Article 6(1) by the ECtHR leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree. At one end of the spectrum [counsel] cites the example of an appropriate sentence following a plea of guilty passed by a judge who for some undisclosed reason did not constitute an impartial tribunal. At the other extreme there may be a case where a defendant is denied the opportunity to give evidence in his own behalf. In both cases there might well be a violation of Article 6. Is each to be treated in the same way? Not in the opinion of this court."

As we have said, Mr Nicol relied on this dictum for his proposition that even if the Court of Appeal were to consider that his client's trial had been tainted by the inequality of arms of which he made complaint, there was no guarantee that it would vitiate the jury's verdict, because fairness and safety are different concepts and must be kept separate and apart. Accordingly, there would be no remedy for the Article 6 breach.

42. We now have the benefit of three subsequent judgments by very senior judges which have explored the relationship between the fairness of a trial and the safety of a conviction.

43. In R v Francom (unreported, CACD transcript 31 July 2000) the Court of Appeal again considered the safety of a conviction as if the Human Rights Act 1998 was in force (see paragraphs 45 and 46 of the judgment of Lord Woolf CJ). The complaint in this case was that after the trial judge had told counsel during the trial that she would direct the jury that it would not be right to draw any inference from the failure of three of the defendants to mention matters to the police which they could have been reasonably expected to mention, she failed to give this direction during her summing up.

44. In paragraph 43 of his judgment Lord Woolf CJ addressed the difference between safety and fairness in these terms:

"The test of unsafeness of a conviction applied by the Court of Appeal is not identical to the issue of unfairness before the ECtHR, as the ECtHR recognised in Condron [2 May 2000, Application No 35718/97]. This has been confirmed by this court in the very recent decision of R v Davis, Rowe and Johnson [17 July 2000], a copy of the transcript of which is available to us. However, as the ECtHR pointed out in Condron, the term `unfair' is to be given a broad meaning favourable to the defendants. It is not limited to the safety of the conviction itself, but encompasses the entire prosecution process. The Court of Appeal looks at all the circumstances of the case, including questions of law, abuse of process and questions of evidence and procedure. (See R v Mullin [1999] 2 Cr App R 143)."

45. In Condron, Lord Woolf said that the ECtHR, who found that a defect in the summing up, followed by the dismissal of the appeal, led to a violation of the applicant's Article 6(1) rights, had differed from the Court of Appeal because it concluded that the direction of law which the judge had omitted was "more than merely desirable", that it was impossible to ascertain what weight if any was given by the jury to the applicant's silence, and that the evidence against him was not as overwhelming as the Court of Appeal had considered (para 64). It therefore found that the imperfection in the direction could not be remedied on appeal.

46. Lord Woolf continued (at paras 47-48):

"A misdirection of the jury can result in a breach of Article 6. But it may not do so. In the same way it may not make a conviction unsafe. It all depends on the circumstances of the case. (See R v David, Rowe and Johnson [17 July 2000 99/2239/S3). In a case such as the present, we would expect this court to be approaching the issue of lack of safety in exactly the same way as the ECtHR approaches lack of fairness. The directions which a judge gives at a trial are designed to achieve the very fairness required by Article 6(1). As we understand the jurisprudence of the ECtHR, that court does not adopt a technical approach to the question of unfairness. The ECtHR is interested, as was pointed out in Condron, in requiring fairness of the trial in all the circumstances. What the ECtHR was most concerned about in Condron was that there had been an infringement of the `fundamental importance of the right to silence, a right which ... lies at the heart of a fair procedure'.

Approaching the present case, we therefore not only pay the greatest attention to the guidance given by the ECtHR in Condron, but also focus on the circumstances of this particular case and ask ourselves whether the omission of the required direction by the judge has in fact achieved unfairness, focusing on the importance of the right to silence, or impaired the safety of the conviction, in the process not drawing any distinction between the two tests."

47. He went on to say (para 44) that the fault of the judge in Francom's case was a non-direction and not a misdirection. Everyone who was involved in the trial was accepting that no adverse inference should be drawn from the relevant defendant's silence, and no cross-examination took place which was inconsistent with this. After considering a number of other features of the trial taken as a whole, Lord Woolf concluded (para 50):

"The test which we have to apply before upholding the conviction is whether, notwithstanding what is, in this case, a non-direction, we are satisfied that no reasonable jury could have come to a different conclusion from that which was reached by this jury if they were properly directed. This approach not only means there must not be a lack of safety, it also means there must be no unfairness because the non-direction or misdirection must not affect the defendants' right to a fair trial. We fully take into account the decision in Condron, but having carefully re-considered the circumstances of this case which are different from those in Condron, we are satisfied that these appellants did have both a fair trial as Article 6 requires and a safe trial and their conviction is safe."

48. This judgment shows that while the Court of Appeal will take into account the distinction between "safety" and "fairness", it must conclude that the defendant's trial taken as a whole was fair (because otherwise, if unremedied, there would be a violation of his Article 6(1) rights if his conviction was to stand), as well as concluding that his conviction was safe.

49. The matter was taken one stage further by Lord Bingham of Cornhill and Lord Steyn in their opinions in the Privy Council in the recent case of Procurator Fiscal, Dunfermline v Brown (Privy Council transcript 5 December 2000, DRA No 3 of 2000).

50. On pp 8-10 of the transcript, Lord Bingham contrasted the ECHR Articles (such as Articles 3 and 4) which permit no restriction by national authorities with those (such as Articles 8, 9, 10 and 11), which permit a measure of restriction if certain stringent and closely prescribed conditions are satisfied. After reciting in full the terms of Article 6, he said (at p 10):

"This article has more in common with the first group of articles mentioned above than the second. The only express qualification relates to the requirement of a `public hearing'. But there is nothing to suggest that the fairness of the trial itself may be qualified, compromised or restricted in any way, whatever the circumstances and whatever the public interest in convicting the offender. If the trial as a whole is judged to be unfair, a conviction cannot stand."

51. Lord Steyn visited the same issue at pp 31-32, when he said:

"The present case is concerned with article 6 of the Convention which guarantees to every individual a fair trial in civil and criminal cases. The centrality of this principle in the Convention system has repeatedly been emphasised by the European Court. But even in respect of this basic guarantee, there is a balance to be observed. First, it is well settled that the public interest may be taken into account in deciding what the right to a fair trial requires in a particular context. Thus in Doorson v Netherlands it was held that `principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify': (1996) 22 EHRR 330, para 70, at p 358. Only one specific illustration of this balanced approach is necessary. Provided they are kept `within reasonable limits' rebuttable presumptions of fact are permitted in criminal legislation: Salabiaku v France (1988) 13 EHRR 379. Secondly, once it has been determined that the guarantee of a fair trial has been breached, it is never possible to justify such a breach by reference to the public interest or on any other ground. This is to be contrasted with cases where a trial has been affected by irregularities not amounting to denial of a fair trial. In such cases it is fair that a court of appeal should have the power, even when faced by the fact of irregularities in the trial procedure, to dismiss the appeal if in the view of the court of appeal the defendant's guilt is plain and beyond any doubt. However, it is a grave conclusion that a defendant has not had the substance of a fair trial. It means that the administration of justice has entirely failed. Subject to the possible exercise of a power to order a retrial where appropriate such a conviction can never be allowed to stand."

52. Although the opinions of the Judicial Committee of the Privy Council on an appeal from a court in Scotland are not binding on this court, it would be impossible for us to ignore the force of these two powerful opinions, following as they do the judgment of the Lord Chief Justice in Francom to similar effect. It will be seen that Lord Steyn was astute to identify in a category of their own those cases (like Francom) where there had been irregularities which did not amount to the denial of a fair trial. It is sufficient for present purposes for us to say that if, following a conviction in this case, the Court of Appeal was to be satisfied that Mr Shields had not had a fair trial by reason of inequality of arms, it would inevitably quash his conviction, whether or not it ordered a retrial.

53. For these reasons we do not consider that the coming into force of the Human Rights Act compels us to revisit section 29(3) of the Supreme Court Act 1981 and give it an interpretation different to that favoured by the House of Lords in the past. All the policy reasons which point away from the undesirability of High Court challenges to decisions by the Crown Court in its pre-trial process still hold good, and if there is a violation of Mr Shields's Convention rights in the trial at first instance he will have a remedy available to him, if convicted, in the Court of Appeal. We therefore accept Mr Hoskins's submission that the Convention does not require that any defects in the trial should be immediately remedied in this court.

54. We would add that we would come to the same conclusion by adopting an alternative, if related, route favoured by Mr Hoskins. He said, correctly, that the Convention right in question is a right to a fair trial. It is not a right to appeal, by one means or another, immediately if a decision is made by a trial judge which is thought to infringe the Article 6 right. The Strasbourg jurisprudence recognises the right of national courts to regulate their proceedings in an orderly manner, and Lord Steyn's speech in Kebilene, from which we have quoted at paragraphs 22 and 23 above, reinforces the importance of this right. If it did not exist, the work of the criminal courts would be endlessly interrupted by High Court challenges to pre-trial rulings, or even in-trial rulings, which were said to constitute a violation of a defendant's Article 6 rights.

55. This need to identify the Convention right said to be at risk of violation is illustrated by the recent decision of the court in R v Canterbury Crown Court ex p Regentford Ltd (unreported, Administrative Court transcript, 21 December 2000). In that case a defendant who had been acquitted at the Crown Court sought judicial review of the refusal of the trial judge to make a defendants' costs order in his favour. He maintained that this decision might impugn his innocence, thereby leading to a breach of his Article 6(2) Convention right. In In re Sampson [1987] 1 WLR 194 Lord Bridge said at p 197 that such a decision was not amenable to judicial review by virtue of the ban on High Court challenges to decisions relating to trial on indictment contained in Section 29(3) of the 1981 Act.

56. The dilemma the applicant faced was that he had no right of appeal against this order to the Criminal Division of the Court of Appeal. In this respect his plight was similar to that which used to befall litigants in civil litigation whose only complaint related to the costs order made at the end of a trial in the days before Section 18(1)(f) of the 1981 Act was repealed.

57. After setting out the applicant's reasons for saying that his Article 6(2) Convention rights would be in peril if he did not have a remedy in the High Court, Waller LJ rejected them at paras 20-22 of his judgment in these terms:

"However, the difficulty with [counsel's] argument is to my mind as follows. Section 29(3) has been construed by the House of Lords in the way it has. The only route available to [counsel] to persuade this court that it can refuse to follow those decisions is via section 3 of the Human Rights Act. Section 3 provides as follows:

`Interpretation of legislation

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.'

Accordingly on the wording of the section the Convention right in relation to which section 29(3) is incompatible when read in a particular way must be identified. Section 29(3) is concerned with judicial review, and there is no Convention right to have decisions reviewed. It does not seem to me permissible to argue that because some of the decisions that are suggested should be reviewable might involve breaches of the Convention and some might not, that therefore section 29(3) must be read so as to allow for review of all decisions. This conclusion seems to me to be supported by section 9 of the Act which provides as follows:

`Judicial acts

(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only -

(a) by exercising a right of appeal;

(b) on an application (in Scotland a petition) for judicial review; or

(c) in such other forum as may be prescribed by rules.

(2) That does not affect any rule of law which prevents a court from being the subject of judicial review.'

In my view the interpretation previously placed on section 29(3) cannot be said to be incompatible with a Convention right. All that can be said is that in some cases it may be that breach of a Convention right by a trial judge may not be capable of review. That does not bring about a further independent breach of a Convention right. Section 3 does not thus compel the court to place an interpretation on section 29(3) contrary to that already placed on it by previous decisions."

58. In other words, Waller LJ is saying in effect that unless and until Parliament decides to remove the anomaly that an acquitted defendant has no right of appeal against the refusal of a defendant's costs order, however unjust the refusal may be, he has no Convention right of challenge to this decision in an English court, and he is still bound to go to Strasbourg if he wishes to make the assertions he sought to raise unsuccessfully in the Administrative Court. However unsatisfactory this may be, this seems to represent the law as it stands today.

59. Finally, Mr Nicol submitted that if all his other arguments failed, since the Lord Chancellor's Department was a respondent to the application, the court ought to consider making a declaration, in language he submitted to us by way of an amendment to his application, in relation to the approach a competent authority should adopt in cases similar to the present, when confronted with an application for assignment of Queen's Counsel and junior counsel under regulation 48(5) of the 1989 regulations as amended.

60. Even if the suggested declaration had been one which we might otherwise have been minded to make, it appeared to us that Mr Nicol was inviting us to outflank the effect of Section 29(3) of the 1981 Act in a manner which Lord Steyn declared inadmissible in his opinion in Kebilene (see paragraph 22 above). We were therefore not willing to accede to Mr Nicol's request.

61. It follows that we are satisfied, for the reasons we have given, that this court has no jurisdiction to entertain the present application.

LORD JUSTICE BROOKE: For the reasons set out in the judgment of the court, copies of which have been made available to the parties, the court is satisfied it has no jurisdiction to entertain the present application. It is therefore dismissed.

MR HOSKINS: I have no application in relation to costs.

MR NARDELL: My Lord, your Lordships will be pleased to know that I do not have any applications, save by way of reminding you that at the conclusion of the hearing before your Lordships, there was a request for the usual direction for assessment of community legal public services funding for the claimant's costs.

LORD JUSTICE BROOKE: Yes.

MR NARDELL: Just in case that has not yet crept into the order, I would ask that your Lordships make that order.

LORD JUSTICE BROOKE: Yes, you may certainly have your order. We are very grateful to counsel for their help in this case.