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Kanaris v Governor of H.M.P. Pentonville [2002] EWHC 109 (Admin) (17th January, 2002)

		Neutral Citation Number: [2002] EWHC 109 (Admin)
		Case No: CO/5208/2001

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

17 January 2002

B e f o r e :

THE HONOURABLE MR JUSTICE ANDREW SMITH
____________________

Andreas Kanaris
Applicant

- and -

Governor of H.M.P. Pentonville
Respondent

Crown Prosecution Service
Interested Party

Kingston Crown Court
Interested Party

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mrs Nadine Radford QC and Mr Peter Caldwell (instructed by Kaim Todner for the Applicant)
Mr John Black QC and Miss Jane Bewley (instructed by The Crown Prosecution Service for the Interested Party)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Andrew Smith :

This is an application by Mr Andreas Kanaris, who is detained in Pentonville prison, for a writ of habeas corpus. On 21 December 2001 Mr Justice Moses, before whom the application came without notice, ordered that the matter be adjourned for papers to be served on the respondent, the Governor of Pentonville Prison, and interested parties, namely the Crown Prosecution Service and Kingston Crown Court. I understand that he directed the matter be fit to be heard before 11 January 2002 because a hearing in the Crown Court proceedings, which give rise to this application, was to take place on that day. The order of Moses J also states “permission be granted” but it is not apparent to me what permission was granted, and Mrs Nadine Radford QC and Mr Peter Caldwell, who appear for the applicant, were not able to elucidate this. Mrs Radford has confirmed that the applicant does not apply for judicial review.

The respondent and the interested parties have been served. The respondent and Kingston Crown Court do not appear before me. The Crown Prosecution Service are represented by Mr John Black QC and Miss Jane Bewsey.

The application came before me as the vacation judge. At the end of the hearing on 9 January 2001 I granted the application, but did not have time to give my reasons immediately.

The issue upon which this application turns is whether a “preparatory hearing” in respect of charges against Mr Kanaris began before the relevant custody time limit expired on 21 October 2000. It will be necessary to explain what has happened in the Crown Court proceedings in some detail, but I first identify the relevant statutory provisions.

By section 22 of the Prosecution of Offences Act 1985 the Secretary of State may make regulations providing, with respect to any specified preliminary stage of proceedings for an offence, for the maximum period to be allowed to the prosecution to complete that stage and during which the accused may, while awaiting completion of that stage, be in the custody of the Court in relation to the offence. Regulation 5(6B) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (as amended) provides that where (as in this case) “an accused is sent for trial under section 51 of the Crime and Disorder Act 1998, the maximum period of custody between the accused being sent to the Crown Court by the magistrates’ court for an offence and the start of the trial in relation to it, shall be 182 days less any period, or the aggregate of any periods, during which the accused has, since that first appearance for the offence, been in the custody of the magistrates’ court”.

Section 22 of the 1985 Act gives power to the Court to extend any time limit imposed by the regulations subject to stipulated conditions, first that the extension be made before the expiry of the time limit and secondly that the Court be satisfied that the extension is needed for a proper reason and that “the prosecution has acted with all due diligence and expedition”.

Section 22 (11A) of the 1985 Act (as amended) provides that “For the purposes of this section, the start of a trial on indictment shall be taken to occur when a jury is sworn to consider the issue of guilt or fitness to plead or, if the Court accepts a plea of guilty before a jury is sworn, when that plea is accepted; but this is subject to section 8 of the Criminal Justice Act 1987 and section 30 of the Criminal Procedure and Investigations Act 1996 (preparatory hearings)”. Section 8 of the 1987 Act concerns preparatory hearings in cases of serious or complex fraud falling within part I of the Act. The relevant section in this case is section 30 of the 1996 Act. That section provides that “if a Judge orders a preparatory hearing – a) the trial shall start with that hearing, and b) the arraignment shall take place at the start of that hearing, unless it has taken place before then”.

The 1996 Act provides for preparatory hearings in cases in which the indictment reveals “a case of such complexity or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue” from such a hearing. There is no dispute that the case in which the applicant is charged is such a case, and that there can properly be a preparatory hearing in the Crown Court proceedings giving rise to this application. The purposes for which a preparatory hearing can be ordered are those set out in section 29 (2) of the 1996 Act, namely “(a) identifying issues which are likely to be material to the verdict of the jury; (b) assisting their comprehension on any such issues; (c) expediting proceedings before the jury; and (d) assisting the judge’s management of the trial”. By section 29 (4) a Judge may order a preparatory hearing on the application of the prosecutor or of any accused person or of his own motion.

Section 31 of the Act stipulates the powers of the Judge on a preparatory hearing. Section 31 (3) provides that the Judge “may make a ruling as to (a) any question as to the admissibility of evidence; (b) any other question of law relating to the case.” Sections 31(4)-(7) provide that the court may order the prosecutor to provide a case statement and any accused person to give a written statement in response.

Section 32 of the Act states that where a Judge orders a preparatory hearing he may make any order under section 31 (4)-(7) before the hearing and the relevant provisions of the sub-sections apply. On the other hand, before the preliminary hearing he may not make a ruling on the matters stipulated in section 31 (3).

Mr Kanaris faces four charges of conspiracy stated as follows: “to remove from the jurisdiction property which represents the proceeds of drugs trafficking and/or criminal conduct contrary to section 1(1) of the Criminal Law Act 1977”. More simply, the charges are of conspiracy to launder drugs money or the proceeds of crime or both. He is one of eleven defendants named on the indictment, and on each of the four charges he is jointly charged with all or some of the other defendants.

Mr Kanaris was arrested on 10 April 2001 and has been in custody since then. He appeared before Highbury Magistrates Court on 27 April 2001, and the case was transferred to the Crown Court at Southwark. The custody time limit in respect of the remand therefore expired on 21 October 2001.

On 1 May 2001, His Honour Judge Bathurst Norman at the Crown Court at Southwark directed the service of prosecution papers and ordered a pleas and directions hearing on 3 July 2001. Before that hearing could take place, however, the case was transferred to the Crown Court at Kingston-upon- Thames. It was listed for mention before His Honour Judge McGregor-Johnson on 8 June 2001. At that hearing, for reasons that have not been explored before me, the applicant was not represented. I understand that the other defendants were. I do not have a transcript of that hearing, but there is in evidence a note prepared by a representative of the Crown Prosecution Service. At one point there is reference to a “PDH” (pleas and directions hearing) to take place on 7 September 2001. However, there is also a note that “Judge: 7 September will be a Preparatory hearing, although it will be preliminary in nature because the prosecution won’t have served a case summary”.

A hearing in the case did take place on 7 September 2001 before HH Judge McGregor-Johnson, the Prosecution being represented by Mr Black and the applicant by Mr Caldwell. Mr Black had prepared a document for the hearing which was presented to the Court and to counsel representing the defendants and was headed “preparatory hearing – 7 September 2001, proposed agenda”. The first item reads as follows “indictment put – start the Preparatory Hearing pursuant to section 29 and 30 of the Criminal Procedure and Investigations Act 1996”. The agenda then lists various matters which the prosecution suggested should be discussed, reference being made to orders under section 31 of the 1996 Act which the prosecution invited the court to make.

At the opening of the hearing Mr Black reminded the Judge that the Crown had indicated on 8 June that the case was one in which “we thought it was appropriate to create a preparatory hearing”. Shortly afterwards Mr Black referred to the indictment being put, and said that “the Crown respectfully submit the sooner the better as far as that is concerned so that the preparatory hearing can commence”, adding that the custody time limits for three defendants who were in custody would expire towards the middle of October. The Judge expressed the view that the case “qualified” for a preliminary hearing, but observed that he had powers “to order statements and the like in advance if it necessary to do so”.

Mr Black went on to identify matters which should be dealt with before the trial began. One such matter was that one of the defendants, Mr Alfred Correya, had given notification that there might be an application for dismissal of the charges against him. Mr Black referred the Judge to the provisions of schedule 3 paragraph 2 to the Crime and Disorder Act 1998, that a person sent for trial under section 51 of the Act may apply for any charge against him to be dismissed “at any time (a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and (b) before he is arraigned (and whether or not an indictment has been preferred against him)”. The Judge commented on Mr Black’s submissions that, “On the timetable you are suggesting…it seems to me that the earliest date for a proper full preparatory hearing after the service of statements is probably going to be the very beginning of January.”

Submissions were then made by counsel representing Mr Correya, asking that there might be a detailed case statement from the Crown before Mr Correya served a formal application for dismissal of the charges against him. He pointed out that section 32 of the 1996 Act allows that court to order a case statement before a preparatory hearing. Mr Black responded that “that could be accommodated within the scope of the case. The difficulty is, of course, that in a sense the earlier we get started with the preparatory hearings the earlier we can get on with the case”. The Judge commented that he would not envisage that “that would necessarily interfere with the date of the preparatory hearing. I would expect those representing Mr Correya to proceed on the basis that the matter is going ahead and to be ready for a preparatory hearing along with everybody else”. Counsel for Mr Correya observed that it was not appropriate for his client to be arraigned until the application to dismiss had been heard, an observation with which the Judge agreed.

Next, counsel representing another co-accused, Mr Ian McKenzie, was heard. He referred to the possibility of an application to sever certain counts and the Judge observed that that could be dealt with “at the preliminary hearing”. Mr McKenzie’s counsel said that his client accepted “at some stage there should be arraignment and the preparatory hearing should commence then in the not too distant future”. The Judge asked whether there was any reason not to have arraignment that day of those defendants who had no application to dismiss the charges, and counsel for Mr McKenzie said that his client was “very neutral on that”.

Counsel for Mr Jeffrey Green, another defendant, said that his client was also neutral as to whether pleas should be taken that day, but he clearly did not contemplate that that would mark the start of the preparatory hearing. He said, “We do not feel that, even if all the evidence is served by the 30^th October of this year with a preparatory hearing, a preparatory hearing being held sometime in early November with a preparatory hearing in January that within two or three months thereafter we shall be in a position to proceed”. No-one suggested that he was under a misapprehension in thinking that his client’s arraignment would not mark the start of a preparatory hearing.

Mr Caldwell, on behalf of the applicant, made submissions as to whether the applicant should be arraigned, and raised a question as to whether he was fit to stand trial and to be arraigned. Mr Caldwell requested medical reports on the applicant. Mr Black agreed that the Court had to be satisfied that the applicant was fit to plead, and that he should not be arraigned until the Court was satisfied. The Judge agreed that that “must be right”.

Against this background the Judge said the following: “in my view it is right to start the preparatory hearing to this extent: to have arraignment today of those defendants apart from Mr Carreya and Mr Kanaris for the reasons that have already been set out”. The Clerk of the Court then proceeded to put the indictment to and to take pleas from the nine defendants other than Mr Carreya and Mr Kanaris.

After this had taken place, the Judge turned to arranging a timetable for the preparation towards trial. He floated the suggestion that the trial should be listed for 7 May, but said that this could be considered “a little nearer the date, perhaps at a preparatory hearing”. He then indicated to Mr Black that he proposed “to adopt the timetable in paragraph 5 of your agenda for service by the defence of documents in reply by 14 December”, that paragraph of the “agenda” referring to section 31 of the 1996 Act. With regard to interview transcripts, the Judge said that “that could certainly await the preparatory hearing”.

Mr Black referred to the question of the custody time limit that applied to the applicant. He said “the issue remains in relation to Mr Kanaris because of the custody time limit and it seems respectfully, either we have a hearing before they expire as they are at the moment or with the consent of the defence we extend them to a convenient time to give the Court the opportunity to consider ramifications of the material that has been suggested to you”. The Judge responded “I would rather if we can have a hearing before the expiry date”.

I should also mention an exchange in which counsel representing another defendant asked the Judge, “is Your Honour going to set a date for a preparatory hearing in the New Year?”, to which the judge responded that he would do so when reminded and that it ought to be at the beginning of January.

After the luncheon adjournment on 7 September there were further exchanges between Mr Caldwell and the Judge about the hearing to deal with the applicant’s case in view of the issue, or potential issue, about his fitness to plead. In the course of that exchange, the Judge, canvassing the date of 5 October, said the hearing “is purely going to be effectively a directions hearing”, and that, although “effectively that will be for mention”, the defendant should attend.

Next, the hearing on 5 October: the only defendant present or represented was the applicant. The question about his fitness to plead was not pursued. The indictment was put to the applicant, and he pleaded not guilty to all counts. There followed this exchange between Miss Bewsey, who represented the Crown, and the Judge:

“MISS BEWSEY: Your Honour, of course, the hearing that we had on the 7^th of September was a preparatory hearing.

JUDGE MCGREGOR-JOHNSON: Yes.

MISS BEWSEY: And, as such, therefore, the arraignment of the defendants was the start of the trial for the purposes of custody time limits.

JUDGE MCGREGOR-JOHNSON: That’s right.

MISS BEWSEY: Your Honour, of course, Mr Kanaris falls outside that hearing, but could I invite Your Honour, on the same basis, to say that this, therefore, is the start of Mr Kanaris’s trial?

JUDGE MCGREGOR-JOHNSON: Yes, I ordered on the last occasion, that the preparatory hearing should start on that occasion.

MISS BEWSEY: Your Honour, yes.

JUDGE MCGREGOR-JOHNSON: And, of course, all save two defendants were arraigned. So, yes, unless Miss Radford wants to say anything about that, I’ll make the same order, as far as this is concerned.

MISS BEWSEY: I’m very grateful. ”

Mrs Radford, in response to this invitation, raised the question of the custody time limit and whether it was protected “by simply saying it’s a preparatory hearing”. The Judge said, “there were no representations made on behalf of any defendant on the last occasion that I should not treat the matter as a preparatory hearing and, indeed, I ordered that I should. It seems to me that it follows from that ---in fact, I’ve already made that order, even though the defendant listed then was not arraigned on that occasion for good reason, because the question of fitness to plead had to be looked at. So it seems to me that the same should apply to him, obviously in terms of any bail application that follows subsequently”.

Miss Bewsey then asked this: “if it is necessary for Your Honour to do so, could I invite Your Honour to simply say that the order that Your Honour made in respect of all other defendants on the 7^th of September, obviously apply to Mr Kanaris; and he will be receiving his copy of the prosecution case statement at the end of the month”. The Judge agreed to that, saying “Yes. I see no reason to depart from that timetable”. Then, having dealt with other matters of timetable, he said, “And then the next preparatory hearing will be the 11^th of January.”

I am told by Mr Black that there has not yet been a hearing as to whether the charges against Mr Correya should be dismissed, and he has not yet been arraigned.

The trial is due to start on 7 May 2002.

I must therefore decide whether a preparatory hearing of the charges against the applicant began before 21 October 2001. Mrs Radford submits that it did not. She says that there is not a preparatory hearing simply because that label is attached to a hearing, even though that label has been attached by the Judge.

Mr Black submits that the position is as follows: he acknowledges that the Judge did not make a formal and effective order for a preparatory hearing on 8 June. He argues that on 7 September the prosecution applied for a preparatory hearing and the Judge, acceding to that application, ordered on 7 September 2001 that the hearing begin with immediate effect against the nine defendants other than the applicant and Mr Correya, and on 5 October 2001 he made a similar order in respect of the applicant; and so that the preparatory hearing against the applicant began on 5 October, before the custody time limit expired.

Mr Black’s submission raises three issues. First, a question of principle, namely whether a Judge can hold a preparatory hearing against only some of a number of defendants charged on the same indictment and indeed jointly charged on the same count. The second question is whether, if it is possible, in this case the Judge made an order to this effect. The third question is whether a preparatory hearing begins simply because the Judge directs that a hearing be so designated even though in reality it is not of the nature of a preparatory hearing; and if not whether these hearings were in truth of the nature of a preparatory hearing.

On the first point, I do not consider that the statutory provisions contemplate a preparatory hearing against only some of a number of defendants on an indictment. Of course, it is possible that there might be questions properly determined at a preparatory hearing (as at a trial) that would affect only one defendant (such as whether an admission should be admitted as evidence against him). However, the criterion as to whether there should be a preparatory hearing is the Judge’s assessment of the case as a whole as revealed by the indictment: section 29 of the 1996 Act. Moreover, the statute contemplates a single preparatory hearing, the Judge being given power to adjourn the hearing from time to time. It does not contemplate a number of separate preparatory hearings. If the case as a whole is such as to warrant to preparatory hearing, at that single hearing the charges against all the parties should be considered. And the corollary is that the arraignment which is to take place at the start of the preparatory hearing (if it has not taken place earlier) is the arraignment of all the defendants. I therefore take the view that a preparatory hearing cannot take place against only some defendants on an indictment, a fortiori against only some of the defendants charged on the same count.

I also consider that, even if he could have done so, the Judge did not make the orders for which Mr Black contends. Mr Black’s argument that a preparatory hearing against the nine defendants began on 7 September rested upon three points.

First, he relies upon the document headed “proposed agenda”. Certainly that document shows the intention of the prosecution to apply for an order that a preparatory hearing begin that day. It also refers to “indictment put”, which naturally connotes the whole indictment being put, that is the arraignment of all the defendants. However, that proposal ran into difficulties when, for different reasons, it became apparent that two of the defendants could or should not be arraigned. The proposed agenda could not be followed.

Secondly, Mr Black relies on the fact that the agenda (at paragraphs 3, 4 and 5) contemplates that orders be made under section 31(4) and 31(6) of the 1996 Act. Therefore, he argues, when, after the nine defendants had been arraigned, the Judge said that he “propose[d] to adopt the timetable in paragraph five of your agenda for the service of documents in reply”, he was making directions under section 31, and so effectively stating that he was conducting a preparatory hearing.

This argument does not convince me. These directions might indeed be made at a preparatory hearing, but they might also be made before one. If they were being made before a preparatory hearing, they would still be made under section 31 because the wording of section 32 is that before the preparatory hearing section 31(4)-(7) “shall apply” (and not, for example, that before the preparatory hearing the court has similar powers to those conferred under section 31(4)-(7)). But even without this answer which is available because of the precise wording of the statute, it seems to me unrealistic and contrived to argue that this phrase of the Judge shows his intention with regard to the start of a preparatory hearing.

Mr Black’s argument really, it seems to me, to stand or fall on his third point, the words used by the Judge immediately before the indictment was put to the nine defendants: “it is right to start the preparatory hearing to this extent: to have arraignment today of those defendants apart from Mr Correya and Mr Kanaris”. By this, did he mean (i) that the nine defendants should be arraigned and the preparatory hearing begin against all eleven defendants; (ii) that the nine defendants should be arraigned and the preparatory hearing begin against those nine only; or (iii) that the nine defendants should be arraigned, something which could be done at a preparatory hearing but could be done before it?

There is, of course, some difficulty in extracting any of these three meanings from what the Judge said. Undeniably there is a element of unreality in purporting to examine with such precision what were in truth less than sharply focused exchanges between the Judge and counsel. Mrs Radford suggested that possibly the Judge might have thought that in some way arraignment would automatically trigger the start of a preparatory hearing against those arraigned. Whatever the Judge’s subjective thoughts, however, it is necessary to examine whether, on an objective analysis of what he said, he is to be regarded as ordering a preparatory hearing with a staggered start as between different defendants, as Mr Black submits he did, and to this end his words must be interpreted as best they can be.

If the judge intended the first of the three meanings that I have posited, he would have been contemplating contravening section 30(b) of the 1996 Act, that arraignment shall take place at the start of the preparatory hearing unless it has taken place before. Mr Black had, effectively, reminded him of this when he said that the indictment should be put so that the preparatory hearing could begin. I cannot believe that the Judge either overlooked or intended to ignore this requirement, and Mr Black does not argue that his words had that import. Moreover, this would be inconsistent with the exchange between Mr Black and the Judge to the effect that there should be a further hearing to deal with the applicant’s fitness to plead before the custody time limit expired. I reject the first of the possible meanings of his words.

I also find it difficult to believe that he intended the second meaning, even if he did have power, or believed that he had power, to start a preparatory hearing against some defendants. It would, on any view, be an unusual order, and he does not say that he is making it. He does not differentiate between different defendants with regard to whether the preparatory hearing was beginning or with regard to whether he was making an order for a preparatory hearing to begin.

I am driven to give the Judge’s words the third meaning. Although this departs from their literal meaning, it is in closer accord with other remarks which were made during the hearing on 7 September to which I have referred. Given that in the course of exchanges between the Judge and Counsel there was (perhaps understandably) a certain amount of loose language, this seems to me the most probable import of his words.

What then happened on 5 October 2001, when Mr Black says the Judge ordered the preparatory hearing begin against the applicant? The Judge was, it seems, initially proceeding on the basis (as I have held on the mistaken basis) that on 7 September 2001 he had ordered the start of the preparatory hearing against nine defendants; and it appears from the exchanges with Miss Bewsey which I have set out, that he was prepared to make an order to put the applicant in the same position as the nine “unless Miss Radford wants to say anything about that”. However, after Mrs Radford had addressed him, he did not make such an order, apparently because he had come to the view that the applicant was already covered by what was ordered on 7 September 2001. He ordered that the same timetabling orders should apply to the applicants as to the nine, but I do not interpret that as amounting to an order (which the Judge, it seems, would have regarded as otiose) that the preparatory hearing against the applicant begin. Certainly, he did not, in my view, say anything sufficiently clear and specific to amount to an order having the effect of depriving the applicant of his liberty for the months before his trial is heard.

Mrs Radford puts the point rather differently, submitting that even if the Judge did direct that the preparatory hearing begin against the applicant on 5 October 2001, that does not change the reality that on that date no such hearing did begin. She submits that the question whether a preparatory hearing has begun is not to be answered simply by deciding whether the Judge has stated that it has, but by considering whether there was under way anything which could properly be regarded as a preparatory hearing. I accept that submission. It is supported by the decisions of the Divisional Court in R v Maidstone Corwn Court ex parte Hollstein [1995] 3 AER 503 and R v Crown Court at Maidstone, ex parte Clark, [1995] 1 WLR 831, cases decided when the custody time limit ran until arraignment. In the latter case Glidewell LJ said (at p.836E): “Arraignment should not be used as a mechanism for determining the right to bail, which is granted by the provisions of to which I have referred, if a custody time limit expires either after an extension or without an extension.”

I also agree with Mrs Radford’s submission that in no real sense can it be said that a preparatory hearing – a hearing for one or more of the purposes stipulated in section 29 of the 1996 Act – started against the applicant on 5 October 2001. It could not do so because it could not involve all the defendants until Mr Correya’s application to have charges dismissed had been determined and he could be arraigned, and because the defendants other than the applicant were not present or represented.

I need hardly say that no-one suggests (and from what I have seen, no-one could properly suggests) that the prosecution was intending to act deviously or improperly, or was in any way behaving trickily. To avoid that connotation, I do not describe what happened as a “sham”. Nevertheless, it was a fiction, and in my view an impermissible fiction, to say that the preparatory hearing was beginning against anyone on 7 September 2001 or on 5 October 2001. The truth is that the partial arraignment of the defendants was a device, and I do not think that the time limits can be so circumvented.

I therefore conclude that no preparatory hearing has begun against the applicant and the custody time limit is spent.

It might be said that the applicant is exploiting a technical argument when it is clear that those involved in the proceedings regarded the preparatory hearing as begun against him, and the custody time limit protected. And it might well be that in this case the prosecution could have justified an application to extend the time limit: indeed, although I have not heard argument on the point, there is every indication that, if the Crown had sought an extension of the custody time limits the defendants would have had difficulty in resisting it. However the fact remains that, although Mrs Radford fired a warning shot on 5 October 2001 when the prosecution could still have applied for an extension of the limit, no application was made. The custody time limits rules are an important safeguard for accused persons and demand that prosecutors and the Court consider with care whether prolonged detention before trial is properly justified. This is witnessed by the narrow view the courts have taken of what constitutes “good and sufficient cause” to extend custody time limits. It is not an answer to an accused entitled to his liberty after the limit has expired that his argument is a technical one.

What order should I make in these circumstances? Mrs Radford rightly drew to my attention the cases of R v Crown Court at Maidstone, ex parte Hollstein, [1995] 3 AER 503 and R v Crown Court at Leeds, ex p. Hussain and ors, [1995] 3 AER 527, in which differently constituted Divisional Courts took different views about the effect of s.29(3) of the Supreme Court Act 1981, which restrains the powers of the High Court to make orders of judicial review in relation to the jurisdiction of the Crown Court in matters relating to trial on indictment. However, Mrs Radford does not seek judicial review. She says that there is no decision of the Crown Court that needs to be quashed. This case is not like the Hollstein case in which the accused had been arraigned and the application was to quash the arraignment as improper.

In any event, however, and even if there was a decision of the Crown Court that the applicant needed to quash, I can, and should, order a writ of habeas corpus, not as an adjunct to judicial review but standing alone: Clark (loc cit) at p.842E. Hence my order of 9 January.

I am very grateful to all counsel for their clear submissions and the help that they gave on this application despite the constraints of time attending a hearing of this kind during the vacation.

***************

MR JUSTICE ANDREW SMITH: Thank you both for the corrections to the judgment. The only one that I ought to mention to Mr Caldwell is that I have incorporated the descriptions of the offences that the prosecution suggested, that the nature of the offences was laundering drugs money and the proceeds of crime, rather than just drugs money, subject to any comments you have.

MR CALDWELL: I have no comments about that, thank you.

MR JUSTICE ANDREW SMITH: In that case the reasons are those set out in the written judgment.

MISS BEWSEY: I wonder if I could just ask if it would be possible to say today that if a time comes when we wish to consider taking this to a higher place whether the time for lodging any appeal would run from today, please.

MR JUSTICE ANDREW SMITH: Yes, I am not sure quite what the position would be if I said nothing but, in any event, that seems right, again, subject to anything Mr Caldwell says.

MR CALDWELL: I have nothing further on that point. On perhaps a final point in relation to costs, Miss Bewsey was asking what the defence position was.

MR JUSTICE ANDREW SMITH: Yes.

MR CALDWELL: The applicant was in receipt of legal aid for these proceedings. Now, in part I have a duty to the Legal Aid Board in making an application made in civil proceedings effectively. Certainly that is how the Legal Services Commission look at the issue.

MR JUSTICE ANDREW SMITH: Yes.

MR CALDWELL: It being litigation between civil parties, there really is a duty upon the applicant to ask for costs in those circumstances. It generally would not be done in criminal proceedings, but that seems to me the appropriate course and I do make that application on his behalf. He will not in any way be affected materially by the judgment of the court, it is simply a question of from what aspect of the resources --

MR JUSTICE ANDREW SMITH: From which bit of the public purse it comes?

MR CALDWELL: Yes, indeed.

MR JUSTICE ANDREW SMITH: Normally costs would follow the event.

MISS BEWSEY: My Lord, normally in a criminal situation such as this costs would come from central funds, so in the circumstances could I suggest that something of that nature takes place in this case.

MR JUSTICE ANDREW SMITH: Yes. I am not sure that I have jurisdiction because, as Mr Caldwell, says it is a civil matter.

MISS BEWSEY: Yes, I am not sure you do either.

MR JUSTICE ANDREW SMITH: I think the normal order would be that the costs be borne by the CPS. That does not reflect in any way that it was unreasonable for them to argue the point on the contrary. Firstly, it was of assistance to the court and, secondly, (inaudible) raise these issues. I think I must order the CPS pay the costs.

MISS BEWSEY: So be it.

MR JUSTICE ANDREW SMITH: What I will say is that if you wish to draw anything to my attention within the next seven days I give you liberty to apply within seven days.

MISS BEWSEY: Thank you. I am grateful.

MR JUSTICE ANDREW SMITH: If you do find some provision with regard to central funds, or anything else that you feel you would like me to consider.

MISS BEWSEY: Thank you.

MR JUSTICE ANDREW SMITH: Well, thank you very much. I would simply reiterate the last paragraph of the written judgment and I hope that you will convey that to your leaders.