England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		04th November 2002

 


1. This is an appeal by way of Case Stated from the decision of the North Tyneside Magistrates Court dated 25^th February 2002.
2. Mr Snowdon is, by occupation, a bus driver. He is also, on his own plea of guilty, a convicted sex offender. The appeal raises questions relating to the licensing of bus drivers, and, in particular, the refusal to issue a licence where the applicant is considered not to be a fit and proper person. Mr Snowdon relies on his licence for his livelihood. It is also clearly the case that bus and coach passengers (particularly women and children) must be able to place their trust in the person charged with their safety and, to a limited extent, with their general welfare. The Magistrates' decision under challenge, in summary, was to the effect that, notwithstanding his conviction, Mr Snowdon was a fit and proper person to hold a passenger-carrying vehicle drivers licence pursuant to the provisions of the Road Traffic Act 1988.
3. Before looking at that decision in detail, it is necessary to consider the statutory framework. First, the Sex Offenders legislation – what follows on this topic is largely taken from a very helpful additional written note provided to the Court on 17^th October 2002 by Shaheen Rahman, Counsel for the Appellant.

4. The Sex Offenders Act 1997 (Section 1) provides that certain persons are subject to a notification requirement. There are three classes of person subject to this requirement. The first class are those persons who have been convicted of an offence listed in Schedule 1 of the Act. The second class are persons who are have been acquitted of an offence listed in Schedule 1 to the Act by reason of insanity but who have been found to have committed the act which is the subject matter of the charge. The third class are those who have admitted committing an offence listed in Schedule 1 of the Act and who have been cautioned in respect of that offence. Mr. Snowdon falls within the first class.

5. Section 2(1) of the Act provides that fourteen days after the "relevant date", (defined in section 1(8)), a person who is subject to a notification requirement must supply the police in his local police area with details of all the names he uses and his home address.

6. The duration of the notification requirement is set out in section 1(4) of the Act. Persons convicted of an offence listed in Schedule 1 to the Act who have received a non-custodial sentence, such as Mr Snowdon, are subject to the notification requirement for a period of five years.

7. The Sex Offenders Act 1997 does not contain any provision as to whether and in what circumstances a police force may disclose the fact that a person is subject to a notification requirement for the purposes of the Act. Disclosure of information obtained pursuant to the Act is the subject of a Home Office circular (HOC 39 / 1997).

8. This circular was addressed to amongst others the Lord Chief Justice, the Lords of Appeal in Ordinary, the Lords Justices of Appeal, the Judges of the Queen's Bench and Family Divisions and the Chief Officers of Police in England and Wales. Guidance as to when the information obtained pursuant to the Act may be disclosed is contained at Appendix A to the circular. The circular makes it clear that decisions as to when information obtained pursuant to the Act are to be disclosed to third parties by the police are matters for the discretion of the police.

9. The basic principle underlying the Guidance is to be found at paragraph 1:

"Ministers have made it very clear that the information must not merely be recorded or filed: it is essential that risk assessment should be undertaken by the police working with other child protection agencies, in order to protect children and vulnerable adults. Information should not be handed out gratuitously, however, and assessment of risk is at the heart of the process which should be adopted."

10. The effect, therefore, of the Sex Offenders Act, and the subsequent guidance, is that certain bodies receive information on the register, and there is some (but controlled and limited) disclosure of the fact of registration by the police. Relevant to this appeal, there is no automatic disclosure to any employer of a passenger bus driver – such as Mr Snowdon.

11. Second, I turn to other relevant statutory provisions that deal with disclosure of criminal convictions (again, taken from Ms Rahman's note).

12. Part V of the Police Act 1997 creates a national regime for the disclosure of criminal convictions. The regime created by the Act operates by permitting the Secretary of State (in practice the Criminal Records Bureau, "CRB") to issue certificates containing details of a person's criminal record. There are three categories of certificate each giving a slightly different amount of information. The procedure for applying for each of the three types of certificate also differs. The three classes of certificate are: -

(a) The Criminal Conviction Certificate

This certificate is addressed in section 112 of the Police Act 1997. However, the section has not been brought into force, and this certificate would not be available in Mr. Snowdon's or any other case. In any event, the certificate will be issued by the Criminal Records Bureau upon an application being made by the person who is the subject of the certificate. The certificate records details of all convictions recorded against that person's name, except for those that are spent. The certificate does not contain details of any cautions recorded against that person's name.

(b) The Criminal Record Certificate.

This certificate is covered by section 113 of the Police Act 1997. This certificate is issued by the CRB, again upon an application being made by the person who is the subject of the certificate. The certificate can not be issued unless the application for the certificate is accompanied by a statement provided by a registered person to the effect that the certificate is required for the purposes of an 'exempted question'. The certificate will contain details of all convictions relating to the applicant, regardless of whether the conviction is spent or not, as well as details of any cautions relating to that individual. A copy of any certificate provided by the CRB to the applicant is sent to the registered person who countersigned the application. This level of disclosure is currently available from the CRB.

(c) The Enhanced Criminal Record Certificate.

This certificate is addressed in section 115 of the Police Act 1997. As above, this certificate is issued by the CRB upon an application being made by the person who is the subject of the certificate. As with the Criminal Record Certificate, it can not be issued unless the application for the certificate is accompanied by a statement provided by a registered person that states that the certificate is required for the purposes of an exempted question. Additionally, the application must be accompanied by a statement from the registered person that the certificate is required for the purposes of an exempted question asked in the course of considering the applicant's suitability for a job, licence or other such matter as listed in s115 of the Police Act 1997. The certificate would provide details of all matters listed in a Criminal Record Certificate and additionally any other information held in central records or held by a police force and provided to the CRB that might be relevant to determining the applicants suitability for the job, licence or other such matter as listed in s115 of the Police Act 1997. As above a copy of any certificate provided by the CRB to the applicant is sent to the registered person who countersigned the application.

13. Exempt questions are defined in the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975. The Order defines an exempt question as a question asked by a person in the course of their duties or employment in order to assess the suitability of an individual for: -

(a) admission to one of the professions listed in Part I of Schedule 1 to the Order,

(b) an office or employment listed in Part II of Schedule 1 to the Order,

(c) one of the occupations specified in Part II of Schedule 1 to the Order, or

(d) to hold one of the certificates, licences or permits of a kind listed in Schedule 2 to the Order.

14. The holding of a PCV driver's licence is not listed in Schedules 1 or 2 of the Order. Therefore, questions concerning the suitability of a person to hold a PCV driver's licence are not exempt questions as defined in the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975. The only level of disclosure available to those considering suitability to hold a PCV driver's licence is therefore that contained in a Criminal Conviction Certificate dealt with at (a) above - under provisions not yet in force.
15. Section 127 of the Police Act 1997 provides that nothing in Part V of the Police Act 1997 shall be taken to "prejudice any power which exists apart from this Act to disclose information or to make records available".
16. The police have a power at common law to disclose information held by them concerning previous criminal convictions or cautions. This power is discussed in R v. Chief Constable of the North Wales Police and another Ex Parte AB and another [1998] 3 WLR 57, at page 68:

"Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure."

17. Section 19(2)(b) of the Public Passenger Vehicles Act 1981 imposes a duty upon those who hold a public service vehicle operators licence (i.e. a licence to operate buses) to inform the Traffic Commissioner of:

"Any relevant conviction of any officer, employee, or agent of the holder for an offence committed in the course of the holder's road passenger transport business".

In so far as this was an obligation imposed on Mr Snowdon's employers it does not appear to have been complied with.

18. Third, I turn to the licensing regime itself. Mr Snowdon has been licensed to drive passenger-carrying vehicles for some time. In 2001 Mr Snowdon reached 45 years of age. His licence lapsed and he was obliged to re-apply – see Section 99 (1A) of the Road Traffic Act:

"Insofar as a licence authorises its holder to drive any prescribed class of goods vehicle or passenger-carrying vehicle, it shall, unless previously revoked, suspended or surrendered, remain in force -

a) …….

i) for the period ending on the 45^th anniversary of the applicant's date of birth or for a period of five years, whichever is the longer."

Mr Snowdon's Licence lapsed on his 45^th birthday – 21^st August 2001. Section 112 provides that the Secretary of State shall not grant to an applicant a passenger-carrying vehicle driver's licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. Section 113 provides that:

"any question arising under Section 112 of this Act relating to the conduct of an applicant or a licence may be referred by the Secretary of State to the Traffic Commissioner of the area in which the applicant resides."

19. On the reference of any such application, the Traffic Commissioner "shall determine whether the applicant for a licence is or is not, having regard to his conduct, a fit person to hold a licence to drive…..passenger-carrying vehicles".

20. In this case the application for renewal was considered and determined by the Traffic Commissioner, Mr Geoffrey Simms, following a hearing in Cambridge on 24^th September 2001. Mr Simms published his decision on 27^th September 2001.

21. The reference to "conduct" in Section 1122 – which would be at the heart of any consideration of the application by the Traffic Commissioner, is explained in Section 121 (1) of the Act:

In this Part of this Act – "conduct" means:

a) in relation to an applicant for or the holder of large goods vehicle driver's licence or the holder of a LGV Community Licence, his conduct as a driver of a motor vehicle, and

b) in relation to an applicant for or the holder of a passenger-carrying vehicle driver's licence or the holder of a PCV Community Licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger-carrying vehicle driver's' licence or (as the case may be) his authorisation by virtue of Section 99A (1) of this Act to drive in Great Britain, a passenger-carrying vehicle of any class.…"

22. The duration of a licence when granted, subject to various exceptions, would be a further five years. Section 114 is relevant in that it is clear from that section that conditions cannot be imposed on the grant of a passenger-carrying vehicle driver's licence unless it is issued as a provisional licence or granted to a person under the age of 21.

23. The facts proved or admitted before the magistrates can be taken from paragraph 5 of the Case Stated:

"a) Mr Snowdon was convicted on 16^th February 2000 on two offences of indecent assault on a female and sentenced to 100 hours on each count to serve them concurrently.

b) His name was ordered to be entered on the Sex Offenders Register for a period of five years. At the time he was employed as a coach driver for Cantabrica Coaches and had been so employed since 1996. He did not work for them during the period of his community sentence. However on completion he was reinstated and has continued to work for them in his capacity as a driver, taking family groups on continental holidays. He is accompanied by another driver and a hostess on these occasions.

c) We took regard of the circumstances of the indecent assault for which Mr Snowdon has expressed his regret. His employer has sent to the court references referring to his future employment with the company which is assured."

Although not recorded in the above extract from the Case Stated, it is clear from paragraph 3 of that document that the offences of indecent assault had occurred not only in relation to a 15 year old girl, but also that she was a passenger during the course of a school extended excursion to Spain and, therefore, the incident took place in the course of his employment with Cantabrica Coaches. Apart from this, outline, information, the Court has not been supplied with any details of the circumstances of the indecent assaults. I note that the Magistrates did have regard to the "circumstances of the indecent assault" – see paragraph 5(c) of the Case Stated referred to above.

24. The Traffic Commissioner's findings of fact were brief and I now read from paragraphs 7 and 8 of his September 2001 decision letter.

"Findings of Facts

7. The Applicant, who has been convicted of a sex-related offence (indecent assault), relies upon his PCV entitlement for his livelihood. The sentence of 100 hours community service is not in my view a lenient penalty; it most likely reflects the Judge's view that, as a first offence, a custodial sentence was inappropriate. The Applicant was placed on the Sex Offender's Register until February 2005. Previous and subsequent good conduct, whilst taken into account, cannot overcome the fact the Applicant is a registered sex offender.

Decision

8. The findings of fact set against the test applicable to PCV drivers, and when the Applicant's and the public's interest have been carefully balanced, causes me to find incompatibility between them for which reasons I shall recommend to the Secretary of State his application be refused. As an indication for the future, I would be prepared to reconsider a further application once Mr Snowdon's name had been removed from the Register, although I would have to take account of all the circumstances prevailing at the time of any such application. Because of the less stringent test applicable, there would be no impediment to the applicant seeking LGV entitlement."

25. I now return to the decision of the Magistrates.

26. Paragraph 7 of their decision reads as follows:

"We came to the conclusion that in our judgment, Mr Snowdon's conduct was not such as to give rise to a conclusion that he was not a fit person to hold a passenger carrying vehicle driver's licence. We did so for the following reasons:-

1) He completed his 100 hours community sentence satisfactorily.

2) Mr Snowdon had expressed remorse for the offence of indecent assault.

3) Cantabrica Coaches has seen fit to continue Mr Snowdon's employment and the work in which he was currently employed appeared to pose no significant risk of circumstances arising in which a further offence might occur.

4) We did not consider that Mr Snowdon's current registration on the Sex Offender's Register was incompatible with his being the holder of a passenger carrying vehicle driver's licence.

5) The Secretary of State could have referred the question of Mr Snowdon's conduct to the Traffic Commissioner with a view to the revocation of his passenger carrying vehicle driver's licence following his conviction, but did not do so.

6) We have regard to the objective of the Traffic Commissioner in refusing renewal of the licence but did not accept his conclusions as we considered that Mr Snowdon posed little risk of re-offending in the future."

27. Point 5 in this list of reasons is inconsistent with paragraph 2 of the Case Stated where the Magistrates record that the Secretary of State was unable to consider whether or not to enquire into Mr Snowdon's conduct with a view to revoking his licence because the conviction had not been notified to the Driver and Vehicle Licensing Agency or the Traffic Commissioner by the Police or the Crown Prosecution Service. Therefore, although the Secretary of State could have referred the question of Mr Snowdon's conduct to the Traffic Commissioner, the reality is that that was not possible as the Secretary of State was not aware of the conviction.

28. The questions of law on which the opinion of the High Court is sought is set out in paragraph 8 of the Case Stated –

"Whether, in the absence of established case law and precedent, we were right in the following respects:

a) to regard the current employment status of Mr Snowdon as being a relevant and compelling consideration.

b) whether we were right to regard registration on the Sex Offenders Register as not being incompatible with holding a passenger carrying vehicle driver's licence.

29. Counsel for the Appellant, Ms Shaheen Rahman, has set out her arguments succinctly in her skeleton argument. Those arguments have been developed in the course of her oral submissions, and in the additional note, but the essence of the argument has not altered. Mr Snowdon appeared before me in person. He told me that the offence had taken place in 1999 and that it took place when he was engaged in private hire in Spain. He informed me that he has been employed by Cantabrica for six years, is now not involved at all with children and he emphasised that he has now driven approximately 48,000 miles since his conviction and there have been no other offences or disciplinary proceedings. In support of the decision of the Magistrates Court he said this:

"I explained exactly what my job entailed and the Magistrates had every chance to assess the risk."

30. The essence of the submissions on behalf of the Secretary of State was that Mr Snowdon's conviction and his presence on the Sex Offenders Register automatically leads to the conclusion that he is not a fit person to hold the licence applied for within the meaning of Section 112 of the Act as explained by Section 121. For ease of reference I now set out the closing paragraphs of Miss Rahman's written argument setting out the Secretary of State's position.

Is the employment status of a PCV driver's licence a relevant consideration when determining his fitness to hold such a licence?

The appellant contends that the respondent's employment status is an irrelevant consideration in determining his fitness to hold the licence. Sections 112 and 121 of the Act provide that the only matter relevant to fitness to hold a licence is the personal conduct of the applicant. The word 'conduct' cannot properly be interpreted to include matters such as employment status. The fact that the respondent's employers are willing to continue to employ him is irrelevant to the issue of whether the respondent's convictions render him unfit to hold a PCV licence.

Matters that can properly be described as relevant to conduct in this case are his two convictions, committed whilst working as a PCV driver, and the fact that his name is currently on the Sex Offenders Register. It is submitted that reliance upon the respondent's employers' assurances as to his secure employment status and that his work minimises the risk of re-offending is misplaced and cannot be justified on a correct reading of the provisions of the Act.

Is registration on the Sex Offenders Register incompatible with holding a PCV driver's licence?

On the second issue referred to the court, the appellant submits that presence on the register should render an applicant unfit to hold a PCV licence. The presence of the respondent's name on the list is indicative of a risk that further offences may be committed. As above, the fact that employers suggest they minimise the risk cannot be relied upon by the appellant in granting a licence to someone whose conduct renders them unfit. There is no guarantee that the applicant will wish to continue with these employers or that his work will remain the same. In those circumstances, he will be in possession of a licence with none of the safeguards assumed in granting it.

It is submitted that it was not the role of the magistrates in this appeal to determine the risk of re-offending: the presence of the respondent on the register is determinative of the issue of risk. The Traffic Commissioner indicated that reconsideration would be appropriate once the respondent's name was removed from the list. It is submitted that, bearing in mind what is at stake in such cases, this must be the correct approach.

31. To this summary, I should also add the final two paragraphs of Ms Rahman's additional note, which follow the analysis of the statutory regime dealing with disclosure of convictions. I have added my own emphasis.

16. The assurances of Mr. Snowden's present employers are wholly inadequate for the protection of the public. In his and other cases, once the licence is granted it would be for him to co-operate in the disclosure of his previous conviction and presence on the Sex Offender's register.

17. The magistrates' approach to this matter as an exercise in sentence mitigation was misconceived and flawed. They took irrelevant considerations into account such as the present employer's assurances; Mr. Snowden's apparent remorse and completion of community service and the fact that the Traffic Commissioner was not informed of Mr. Snowden's conduct by the Secretary of State. The magistrates failed properly to take into account Mr Snowden's presence upon the sex offender's register and risk to the public apparent from this. There is no way of stopping Mr. Snowden seeking employment once granted the licence without the apparent safeguards of his current job. Accordingly the Appellant maintains, in addition to its first argument as to the flawed nature of this decision, that the presence of an applicant for a licence on the Sex Offenders' Register is determinative of the issue of risk and that the Traffic Commissioner's approach was the correct one. In short, drivers on the Sex Offenders Register should properly be restricted to employment where they do not carry members of the public until their removal from the register.

32. At paragraph 7 of her Skeleton Argument, Miss Rahman also relies upon the error of the Magistrates in identifying the presumed failure to refer Mr Snowdon's conduct to a Traffic Commissioner following conviction, noting, as I have already noted, that the Secretary of State was not aware of the convictions until there was, fortuitously, an application for a renewal of the licence when Mr Snowdon reached 45 years of age. Although this is an error on the part of the Magistrates, I do not consider it to be such as to drive me to the conclusion that their decision is unsafe or wrong.

33. It is now necessary to consider with greater care the questions of law on which the opinion of the High Court is sought.

34. Whether or not the Magistrates were right to regard the current employment status of Mr Snowdon as being a relevant and compelling consideration.

As already noted, the Secretary of State's contention is that "employment status is an irrelevant consideration" when considering that Section 112 and 121 of the Act. I accept and proceed upon the basis that "conduct" referred to in Section 112 suggests what has been done, how a person has behaved etc. However, the person's conduct must also be considered in context and in the round. Here, Mr Snowdon's convictions do, of course, raise questions that must be given the most careful consideration. But it does not follow that references from an employer, for example, are irrelevant, or that explanations as to the detail of a person's life – both private and commercial, after the incident and/or the conviction – should not also be taken into account. Any other approach, in my opinion, would be too arid and would not allow an applicant's personal circumstances to be considered. Here, it is indeed unfortunate that Mr Snowdon's case was not referred to the Secretary of State on conviction. However, as a matter of fact it was not and, it would in my opinion be wrong to deny Mr Snowdon the opportunity of relying on evidence from his employer who had stood by him both during and after his conviction and, apparently, with full knowledge that Mr Snowdon's name is now on the Sex Offenders Register.

35. What of the Secretary of State's concern that present employment is no guarantee of the terms of any future employment? And so it is argued, what of the reality that when given a licence, Mr Snowdon can leave his employment and leave, also, the public protection presently put in place by his employers. This caused me considerable concern and I can see some force in the point. However, I do not consider that the Magistrates were precluded from considering it as one of the surrounding circumstances bearing on their decision. The Magistrates had to form their own judgment and, as with the Secretary of State or the Traffic Commissioners, they were only obliged to "have regard to his conduct" before moving on to decide whether or not Mr Snowdon was a fit and proper person to hold the licence applied for. Ms Rahman's submission to me was, in effect, that having regard to this person's conduct, (the commission of two sex offences on a young girl when she was a passenger on his bus) was so serious that no reasonable decision-maker – here the Magistrates – could have concluded that he was "a fit person to hold the licence applied for". I accept, of course, that the Magistrates could have reached the same conclusion as the Traffic Commissioner but I do not accept that it was the only conclusion they could have reached. If it was Parliament's intention that conviction of a sex offence and/or presence on the Sex Offender's Register automatically disqualifies a bus driver from holding a PCV licence, then it could have said so. There has been ample opportunity in the statutory provisions referred to in the earlier parts of this judgment for Parliament to have adopted that course. But so long as Magistrates are allowed to form their own judgment and reach their own conclusion as to whether or not, "having regard to his conduct", the person before them is a fit person to hold the licence applied for, then the court should be loathe to interfere with the decision eventually made.

36. Whether the magistrates were right to regard registration on the Sex Offenders Register as not being incompatible with holding a passenger carrying vehicle driver's licence.

The Secretary of States questions whether the Magistrates were right to regard registration of the Sex Offenders Register as not being incompatible with holding a passenger carrying vehicle driver's licence. The Secretary of State argues that presence on the Sex Offenders Register automatically equates to unfitness to hold any PCV licence. During the course of her submissions Ms Rahman put it in a slightly different way, but substantially to the same effect. She argued that the circumstances of the offence involving a fifteen year old female passenger on a bus, coupled with registration on the Sex Offenders Register is such as to have led the Magistrates to only one conclusion, that Mr Snowdon should not be licensed to drive such a vehicle. I accept that the existence of such a conviction, or convictions, is a very powerful indicator that such a person is not a fit person to hold the licence applied for. Certainly, applying the extended meaning of 'conduct' as set out in Section 121(1)(b) the decision-maker is allowed to take account of, indeed obliged to take account of, any conduct which is 'in any other respect relevant to his holding a passenger carrying vehicle driver's licence'. Clearly there are strong arguments for concluding that Mr Snowdon should not have been allowed to continue his former occupation as a bus driver. Another bench of Magistrates may, reasonable and rationally, have reached the decision that Mr Snowdon's appeal should have been dismissed. However, as already noted, if the intention of Parliament was that the presence of a person's name on the Sex Offender's Register automatically deprived that person of the right, or ability, to drive a passenger carrying vehicle, Parliament could, and should, have said so. Parliament did not so provide. In my judgment, the question of fitness, and the impact on the question of fitness of registration on the Sex Offender's Register is essentially a matter – when on appeal – for the Magistrates. Referring to Ms Rahman's additional note, set out in part above, I do not accept her proposition "that the presence of an applicant for a licence on the Sex Offenders' Register is determinative of the issue of risk". Under the licensing legislation the assessment process calls for a more sophisticated, and wide-ranging approach than that statement suggests.

37. Ms Rahman subjected paragraph 7 of the Magistrates' Case Stated to intensive and detailed criticism. Apart from paragraph 7(5), I do not consider that the reasons advanced by the Magistrates are irrelevant. Each of the points may be of minor significance but it seems to me that the Magistrates were entitled to reach the conclusion, it was essentially a matter for them, that "Mr Snowdon posed little risk of re-offending in the future". The Magistrates, so it seems to me, gave very careful consideration to Mr Snowdon's current occupation (although, of course, with no guarantee that the employment would continue), but I cannot categorise their overall conclusion as irrational or so wrong that the Court should interfere.

38. The opinion of the High Court is sought in relation to two questions of law identified in paragraph 8 of the Case Stated. In my judgment, the short answer to question 8(a) as to whether or not the Magistrates were right to have regard to the current employment status of Mr Snowdon as being a relevant and compelling consideration, is 'Yes'. In relation to the second question in paragraph 8(b) "whether we were right to regard registration on the Sex Offenders Register as not being incompatible with holding a passenger carrying vehicle driver's licence". The short answer is, subject to amendment of the primary legislation, "No.".

- - - - - - - - - - - - -

MR NIGEL PLEMMING: For the reasons set out in the judgment handed down, the appeal by the Secretary of State is not allowed. I have answered the questions posed by the magistrates in the case stated in the final paragraph of the judgment, paragraph 38. That is the judgment of the court. Are there any applications?

MISS RAHMAN: My Lord, my instructions were to ask for permission to appeal, which I would be intending to do. However, in looking at the relevant provisions something has come to my attention which, certainly on the face of it, it seems to suggest there may not be a right of appeal.

MR NIGEL PLEMMING: Because it is a case stated from the magistrates. You have to go to the Court of Appeal yourself, do you not?

MISS RAHMAN: My Lord, it does not actually specify. What I am going to refer you to, you may have come across it before, it may not be completely new to you, I was going to hand up what it says in Stones Justice Manual.

MR NIGEL PLEMMING: Yes, please.

MISS RAHMAN: My Lord, you will see this in the section -- it is the updated version: "You are expected to have----

MR NIGEL PLEMMING: Unfortunately, it is not legible because the end of the right-hand side has not been copied.

MISS RAHMAN: I am sorry about that, my Lord. There are two lines which I would like to refer you to. If you look at the bottom: "Appeals to the High Court"?

MR NIGEL PLEMMING: Yes.

MISS RAHMAN: It is the last sentence: "An appeal lies in a non- criminal matter----"

MR NIGEL PLEMMING: Where are we?

MISS RAHMAN: Underneath the section in italics: "Appeals to the High Court".

MR NIGEL PLEMMING: "An appeal lies in a non-criminal matter", is that it?

MISS RAHMAN: That is right, my Lord. What it says is: "An appeal lies in a non-criminal matter from the High Court to the Court of Appeal, but permission of the High Court or the Court of Appeal is necessary." It does not actually refer to what I would expect it to, which is the Supreme Court Act, which my Lord will find in the volume 2 of the Civil Procedures Rules at page 1543.

MR NIGEL PLEMMING: Page again?

MISS RAHMAN: Page 1543.

MR NIGEL PLEMMING: Yes.

MISS RAHMAN: You will see there there is an insertion at section 28(a), that is where the section starts, turning to the next page, subparagraph (4): "except as provided by the Administration of Justice Act 1960 right of appeal ... in criminal decisions of the High Court under this section is final." So, on the face of it, notwithstanding what appears or does not appear in Stones, I do not seem to have a right of appeal.

MR NIGEL PLEMMING: The case stated is here under section 111 of the Magistrates' Court Act.

MISS RAHMAN: Yes.

MR NIGEL PLEMMING: It seems to say what you say it says, but I am surprised by that. I thought----

MISS RAHMAN: I am also surprised, my Lord.

MR NIGEL PLEMMING: Is this a recent piece of research confirmed by case law, or would you like some more time to think about this?

MISS RAHMAN: My Lord, I would certainly like some more time. I had an opportunity, as I say, to speak to my client this morning about judgment, I noticed this at the time of the last hearing and I did think it was odd, but I would be very grateful for some more time.

MR NIGEL PLEMMING: Why do we not leave it at this -- the only complication really is that Mr Snowden is in person and does not have representations, otherwise I would say without really hesitating that submissions in writing on the jurisdiction of this court even to consider permission and then I would make a decision on the merits, if I had jurisdiction. But can you, in any event, do that, it seems to be too important for the Secretary of State, and indeed for Mr Snowden's future, if this is not resolved fully and finally? Could you complete your research, take your final instructions, knowing, as I do, that your client has not had a great deal of time to consider the judgment, and then make your submissions to me within seven days, is that convenient?

MISS RAHMAN: My Lord, yes.

MR NIGEL PLEMMING: Copy those submissions to Mr Snowden. I will reach a decision, if I have jurisdiction, by return and communicate it in writing.

MISS RAHMAN: My Lord, I am extremely grateful. Thank you very much.

MR NIGEL PLEMMING: Mr Snowden, do have any applications? I do not think that you are entitled to make any application for costs, save perhaps for the expense of getting here. I will speak to the associate to see if that can be covered, apart from that that is the end of this judgment. Anything you want to say, Mr Snowden?

MR SNOWDEN: I did pass some newspaper cuttings up, my Lord. On the hearing you requested the Press not to mention my name.

MR NIGEL PLEMMING: No, I did not, Mr Snowden, in fact quite the contrary. There was an application by you for your name to be kept secret, confidential. I decided on that application that freedom of speech prevented me from making such an order, particularly as the circumstances of your conviction would already be on the public record. So I did not make such an order, I may have made a request, but no more than that, that the Press treat your circumstances with a little care because of the fact that you have family.

MR SNOWDEN: I beg your pardon, my Lord, it was a request and I thought your request would have been -- I have had bricks put through my window and there was children in my house at the time.

MR NIGEL PLEMMING: Mr Snowden, I am afraid I have to leave that to the local police force to give you what protection they can. My decision when we last met was that I could not prevent and, indeed, would not prevent the Press from covering the case. That is my clear recollection, Miss Rahman will correct me if it is wrong, but I think that was the decision I made. I have seen the Press coverage, that, I am afraid, is a matter for others and not for me.

MR SNOWDEN: All right, could I have them back please?

MR NIGEL PLEMMING: Yes.