England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Monday 31st July 2006

Lord Justice May:

The Criminal Cases Review Commission

1. The Criminal Cases Review Commission is a body corporate established under section 8 of the Criminal Appeal Act 1995. Where a person has been convicted of an offence on indictment, the Commission has power to refer the conviction to the Court of Appeal Criminal Division. Such a reference is treated for all purposes as an appeal by the person against the conviction under section 1 of the Criminal Appeal Act 1968 (section 9). A reference may not be made unless an appeal against the conviction has been determined or leave to appeal against it has been refused (section 13(1)(c)). To make a reference, the Commission must consider that there is a real possibility that the conviction would not be upheld if a reference were made; and they must so consider because of an argument or evidence not previously raised or relied on in the proceedings (section 13(1)(a) and (b)). A reference by the Commission thus enables a convicted defendant to appeal against his conviction for a second time on the basis of new material. It is a safety valve for miscarriages of justice.
2. If the Commission decides not to refer the conviction to the Court of Appeal Criminal Division, the convicted defendant cannot appeal again. He can, however, in an appropriate case apply for judicial review of the Commission's refusal to refer. The present proceedings are such an application on behalf of Martin and Warren Boston.
3. In Mills and Poole v CCRC [2001] EWHC Admin 1153, Lord Woolf LCJ explained the legal framework of the Commission. He said that the requirement that there exist evidence or argument not already raised in the proceedings is important, because it prevents a constitution of the Court of Appeal on a reference sitting as a Court of Appeal from an earlier decision made by a differently constituted Court of Appeal. The different material must justify a new decision. So far as the Commission is concerned, it must appear that a real possibility that the conviction would not be upheld exists as a result of new evidence or argument. The role of the court hearing applications for judicial review to challenge decisions of the Commission is very much a residual one. Lord Woolf referred to the judgment of Lord Bingham of Cornhill in R v CCRC ex parte Pearson [1999] 3 All ER 498, where Lord Bingham emphasised that the only function of the Divisional Court is to ensure that the Commission acts lawfully, not to substitute its own view for a reasonable and lawful decision of the Commission. It is not appropriate to subject the Commissions reasons to a rigorous audit. The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere. Lord Woolf said that the Divisional Court cannot act as an appellate body in relation to the Commission. The standards of judicial review do not require decisions of the Commission to be quashed whenever any flaw, however minor, is revealed by a process of rigorous audit. The Divisional Court should not fall into the trap of forming a view as to how the Court of Appeal would react and then concluding that that is what the Commission should necessarily have done. This would usurp the Commission's functions.

Facts

4. During the 1980s, Martin Boston, the first claimant, was a member of a consortium, which included a Canadian called Mark Nathanson, established to prospect for gold in the African Republic of Mali. Another member of the consortium was George Hervey-Bathurst. Martin Boston had been Hervey-Bathurst's solicitor, but he eventually became a member of the consortium in his own right. The consortium obtained a licence to mine for gold from the Government of Mali, and Martin Boston signed the concession on behalf of a Swiss bank, who were agents for the then members of the consortium. This consortium did not proceed. Nathanson eventually carried on by himself unknown to its other members.
5. In 1987, Nathanson obtained another licence to prospect for gold in Mali through a company called Iamgold. There was some similarity between this concession and the previous one, which led some members of the first consortium to assert that they had an interest in the second. Nathanson did not inform the members of the first consortium that he had obtained another licence to prospect in an area which overlapped that of the original consortium, nor that he had used the same geologists' report, which Martin Boston had paid for personally on behalf of the first consortium. Eventually the new venture was successful and began to generate significant earnings. In 1994, a share listing for Iamgold in Canada was being arranged.
6. In 1990, Nathanson gave Hervey-Bathurst what he said was a goodwill gift of 500,000 shares in the new venture. Hervey-Bathurst came to believe that he was entitled to more shares because of his involvement in the first consortium. He pressed his claim with Nathanson until 1992, but then did not proceed with it. Hervey-Bathurst approached Martin Boston in 1994 and asked him to search his old client files to see whether they contained anything that he did not have. Martin Boston was to say in evidence at his trial that he regarded Hervey-Bathurst's claim for more shares as spurious. By September 1994, he said that Hervey-Bathurst had accepted that he had no claim and had abandoned it. But among the files which Martin Boston considered were documents which he believed entitled him, Martin Boston, to a substantial share in the new venture. He decided to approach Nathanson to press his own claim, but Nathanson initially avoided him.
7. On 21^st September 1994, Nathanson telephoned Martin Boston from Iamgold's premises in Canada. He taped the call while two of his colleagues listened in. Martin Boston implied to Nathanson that there were documents in his files which may have supported Hervey-Bathurst's claim. Martin Boston was to say in evidence that this was untrue and a device to get Nathanson to talk to him about his own claim. After this telephone call, Nathanson consulted the police in Canada who, he said, advised him to record further meetings or calls with Martin Boston.
8. Nathanson returned to the United Kingdom at the end of September 1994. On his return, he received a further unrelated claim from Hervey-Bathurst. He was also served with a writ from another person seeking a share of the proceeds in the new venture. All this could have affected Iamgold's flotation.
9. Nathanson met Martin Boston and his brother Warren Boston, the second claimant, a retired stockbroker, at the Churchill Hotel in London on 3^rd October 1994. Nathanson secretly recorded this meeting. At the meeting, Martin Boston, supported by Warren Boston, in effect offered to destroy documents in his possession which may have supported a claim by Hervey-Bathurst. After the meeting, Nathanson contacted his solicitor who informed the police. Detective Superintendent Alec Edwards was allocated to the investigation.
10. There were further telephone calls and meetings after 3^rd October 1994, during which much of the original conversation was repeated. There was a final meeting at the Churchill Hotel on 2^nd November 1994, at which Martin Boston restated that he had a substantial claim against Nathanson. Warren Boston said that he and his brother wanted some shares and that Nathanson wanted to get both Martin Boston and Hervey-Bathurst off his back. He referred to Nathanson wanting papers which might exist. Nathanson complained that what Martin and Warren Boston were doing was blackmail and extortion. At the end of the meeting, Martin and Warren Boston were arrested.
11. Martin and Warren Boston were charged with conspiracy to pervert the course of justice. Their defence at their trial in summary was that the first mention of destroying documents came from Nathanson; that they never intended to destroy the documents, but only went along with and pretended to agree with his suggestions. This was a negotiating strategy instigated by him and intended to frustrate a genuine claim against him. Nathanson's purpose was to entrap them and then have them arrested to frustrate Martin Boston's well founded claim which itself had the capacity of affecting the stock market flotation of Iamgold. There were in any event a number of copies of the documents in the hands of various people.
12. On 3^rd March 1997, the claimants were convicted at the Central Criminal Court before Her Honour Judge Goddard QC and a jury of conspiracy to pervert the course of justice. Martin Boston was sentenced to 2 years' imprisonment; Warren Boston to one year's imprisonment. They appealed against conviction to the Court of Appeal Criminal Division. Grounds of appeal included that the judge had wrongly refused a submission on behalf of the defence that the prosecution evidence raised no case to answer; that Martin Boston had been unfairly prejudiced by the failure of the prosecution to advance through its own witnesses or in cross-examination substantive matters subsequently relied on; and that the judge was wrong in directing the jury in relation to the point at which the alleged conspiracy started. The appeal was dismissed on 18^th July 1997.

Reference to the Commission

13. On 9^th April 2002, the claimants made representations to the Criminal Cases Review Commission. There followed two years of correspondence and investigation. In April 2004, the Commission gave reasons for refusing to refer the claimants' cases to the Court of Appeal. The claimants began judicial review proceedings, which were subsequently withdrawn after the Commission gave further disclosure and agreed to consider further representations. Further representations were made, and in August 2005 the Commission gave the decision which is now under challenge not to refer the claimants' cases to the Court of Appeal.
14. The main basis upon which the claimants sought reference to the Commission depended on the contents of an Investigation Report dated 31^st January 2002 by Chief Superintendent Bamber into a complaint by the claimants against Detective Superintendent Alec Edwards. The claimants' case was and is that shortly after Edwards was assigned to their case, Nathanson entered into a corrupt relationship with Edwards by offering him a job with companies with which he was associated at a large and unjustifiable salary with other benefits. After he retired, and possibly before that, Edwards worked as Managing Director of two Nathanson companies at a salary of around £105,000 p.a. At the time of the trial, the defence knew that Edwards had gone to work for Nathanson after his retirement, but did not know of the antecedent relationship. Edwards retired in August 1995, well before the claimants' trial. He had been the officer initially in October 1994 assigned to investigate their case, but he relinquished that function by the time he retired, if not earlier.
15. The Bamber Report concluded that there was a prima facie case of corruption. The Investigation Report records that Edwards made a statement in which he said that, after his initial involvement in October and November 1994, when he interviewed Nathanson, he had minimal contact with him. A statement from a former solicitor with the Crown Prosecution Service said that after initially dealing with Edwards, her contact subsequently was with D.S. Richard Wall. A statement from Richard Wall said that after he took over the Boston investigation, Edwards had little, if any, involvement in the case. Edwards stated that he was approached on behalf of Nathanson in the late spring or early summer of 1995. He signed a contract in mid-July 1995 and started employment on 15^th August 1995 upon his retirement from the police.
16. Colin Osborne, a former detective sergeant with the Metropolitan police who had retired in 1991 to run private investigation companies, stated that Edwards had telephoned him in the last week of February 1995 saying that he had received an offer of employment. Osborne gave details of what Edwards said to him. Edward Avey produced a letter, drafted on 7^th April 1995 and sent on 10^th April 1995, giving details of a contract employing Edwards as Managing Director of one of the Nathanson companies. Avey met Edwards in mid-May when he had already been hired. There were other details indicating that Edwards had been hired before the date of his retirement. When Edwards himself was interviewed under caution he denied any impropriety and denied that his employment by Nathanson after he retired was in any way a reward for prosecuting the Boston brothers.
17. The Investigation Report concluded that Edwards was employed by Nathanson companies after his retirement, and that Edwards' account of the manner and timing of his recruitment was false. He was not approached in the late spring or early summer of 1995, but earlier. His employment had been agreed by 7^th April 1995. There was some documentary indication that Edwards was still concerned with the Boston case in April 1995. The report notes and apparently accepts Osborne's account that Edwards told him that he was getting a job with a Nathanson company as a reward for prosecuting the Bostons. Every witness who had worked with Edwards gave evidence of his unsuitability for, and incompetence in, the post.
18. The Report concluded that the case of corruption against Edwards and "by definition" against Nathanson was largely circumstantial, but that there was a prima facie case against both of them. The Report, however, also concluded that a careful examination of the facts revealed no basis for the Bostons' contention that Edwards had entrapped them. Their conviction appeared quite proper on the basis of the tape recorded evidence. I note also that the Report contains no indication whatever that Edwards may have wrongly influenced the course of the investigation and prosecution of the claimants. They were arrested in November 1994 and charged in February 1995. This was before any date on which Edwards may have been approached on behalf of Nathanson and after or at the time when Edwards ceased to be significantly concerned with their prosecution.
19. After the production of the Bamber Report, the Police Complaints Authority and the Crown Prosecution Service considered its conclusions. The PCA concluded that there was evidence on which to bring a charge of misconduct against Edwards, but they did not do so because he had retired. The CPS decided not to prosecute him or Nathanson.

The claimants' case to The Commission

20. The claimants maintain that, if the jury at their trial had known of the apparently corrupt relationship between Nathanson and Edwards, it would have affected their verdict. The convictions are accordingly unsafe. The information was bound to have affected the jury's view of Nathanson's credibility. The Commission rejected this contention. It is submitted that they were wrong to do so. Nathanson's credibility and his role were of central importance at the trial. The judge's summing up squarely raised this issue in various respects and the Commission themselves noted that the defence did accuse Nathanson of entrapment.
21. At this stage, I note certain points. First, although no doubt the jury would have needed to address the credibility of Nathanson's evidence, it was not the central issue. The central issue was Martin Boston's credibility in the explanations he gave for what he and his brother unquestionably said as recorded on the tapes of the meetings. Warren Boston did not give evidence. As Evans LJ, giving the judgment of the court upon their appeal to the Court of Appeal Criminal Division, said (page 30) "The essential question was whether the applicant was telling the truth or not about his intentions during his discussions with Mr Nathanson." This was largely unaffected by Nathanson's credibility, since the tapes spoke for themselves.
22. Second, although the Boston's claimed that they were trapped, this would have occurred, if it did, in October and November 1994, well before any suggestion that Nathanson was offering employment to Edwards. Third, Edwards was not involved in the prosecution beyond the spring of 1995 at the latest and he did not give evidence at the trial. Fourth, there is no indication whatever that Edwards wrongly influenced the investigation of the prosecution. Fifth, the trial did not take place until January 1997, by which time the claimants knew that Edwards had been employed after his retirement by Nathanson. The limit of what they did not then know was that Edwards had been approached some months before his retirement and that there was a prima facie case that the employment was a reward for his involvement in the case. This all indicates that the relevance of the Bamber Report was limited to Nathanson's general credit, which itself was of some concern to the jury, but not of central relevance.

The Commission decision

23. The Commission considered the Bamber Report and submissions based upon it. They were somewhat sceptical whether Nathanson had indeed employed Edwards as a reward. They considered however that the issue was clearly collateral to the issues at the trial. If the judge had allowed defence counsel to question Nathanson about it, they would not have been able to take it further once he had given his explanations. Mr Owen QC for the claimants submits that this was wrong as a matter of hard edged law. The Commission did not in any event consider that the material in the Bamber Report gave any support for the proposition that Edwards acted beyond the course of duty in his part of the Boston investigation or that the additional information might have affected the jury's view of their case.
24. In concluding that the issues raised by the Bamber Report were collateral , the Commission considered a number of authorities including R v Funderburk (1990) 90 Cr. App. R. 469, which speaks of a flexible approach. The Commission concluded in paragraph 117 of its Statement of Reasons that it did:

"… not consider that, in the event of the conviction being referred, even if the Court of Appeal were minded to adopt a "flexible approach" about collateral evidence in the case, it would have any bearing on the outcome. The fresh evidence from the corruption investigation report, namely information about how and when Mr Edwards took up his employment with FIA and what remuneration he received, does not relate in any way to how the court would regard the Bostons' remarks to Mr Nathanson in the tape recorded conversations. Nothing in the Report impacts upon Mr Nathanson's evidence about those conversations. Nothing in the Report touches on issues that would render the convictions unsafe."

25. The Commission also considered arguments relating to the findings of the PCA and evidence that might have been given at the trial by George Hervey-Bathurst.

Grounds for judicial review

26. The grounds for challenging the Commissions decision not to refer in summary are:

(a) that the Commission were wrong that matters relating to Nathanson's and Edwards' credibility were collateral matters on which their answers would have been final;

(b) that the Commission failed properly to analyse the effect on the safety of the claimants' convictions of the findings of the PCA that Edwards appeared to have been guilty of misconduct; and

(c) that the Commission were wrong to conclude that fresh evidence from Hervey-Bathurst to the effect that he did not regard himself in 1994 as having a claim against Nathanson would not provide a ground for allowing the appeal so that the Court of Appeal would not receive it.

Mr Owen QC did not press (b) or (c) in oral submissions. In my judgment, he was right not to do so. They are insubstantial.

27. As to (a), Mr Owen submits that, if the jury had heard the evidence indicating a corrupt relationship between Nathanson and Edwards, they would rightly have been sceptical of Nathanson's explanation of why he gave Edwards an overpaid job for which he was not suited. Mr Owen submits that the Commission's analysis of Funderburk and their application of it to this case was flawed. The relationship between Nathanson and Edwards was not collateral. Nathanson's credit was at the heart of the claimants' case that Nathanson had attempted to suborn them by suggesting the destruction of the documents.
28. In Funderburk, the appellant was charged with unlawful intercourse with a 14 year old girl. She said that she had been a virgin before the acts of sexual intercourse which she alleged. Defence counsel wanted to put to her that she had told a potential defence witness that she had previously had sexual intercourse with two named men and consequently had wanted to have a pregnancy test. The trial judge refused to allow these questions. The Court of Appeal held that, since the jury had heard a graphic account from the complainant as to how she had lost her virginity, they might reasonably wish to reappraise her evidence and credibility if they had heard that on other occasions she had spoken of experiences which, if true, would indicate that she could not have been a virgin at the time. Her standing as a witness might have been reduced. The trial judge was wrong not to allow the questions.
29. Henry J, as he then was, giving the judgment of the court, said at page 469-70:

"Before we come to answering the questions posed we think it necessary to go back to first principles. One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. "Relevant" means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put, as Lord Lane CJ put it in the case of Viola (1982) 75 CR. App. R. 125, 128, 130; [1982] 3 All ER 73, 76, 77. But as relevance is a matter of degree in each case, the question in reality is whether or not the evidence is or is not sufficiently relevant. For in order to keep criminal trials within bounds and to assist the jury in concentrating on what matters and not being distracted by doubts as to marginal events, it is necessary in the interests of justice to avoid multiplicity of issues where possible. In every case this is a matter for the trial judge on the evidence and on the way the case is put before him. When one comes to cross-examination, questions in cross-examination equally have to be relevant to the issues before the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a practical distinction must be drawn between questions going to an issue before the court and questions merely going either to the credibility of the witness or to facts that are merely collateral. Where questions go solely to the credibility of the witness or to collateral facts the general rule is that answers given to such questions are final and cannot be contradicted by rebutting evidence. This is because of the requirement to avoid multiplicity of issues in the overall interests of justice. The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence: (a) goes to an issue in the case (that is obvious); (b) …"

Henry J added other circumstances where the defence might call evidence contradicting that of prosecution witnesses which are not relevant for present consideration. These include evidence showing that the police are prepared to go to improper lengths to secure a conviction. I mention this only to put it to one side, since the Bamber Report contains nothing which would support such a contention in the present case. Edwards is not there shown to have done anything at all to influence the prosecution of the claimants at any time when he may have been approached by Nathanson with a view to future employment by him.

30. The passage from Henry J's judgment which I have quoted shows that, although the issues may include the credibility of a witness, evidence which goes merely to general credibility is not evidence which "goes to an issue in the case" in terms of the exception which permits the defence to call contradictory evidence. In the present case, Nathanson's general credibility was in this category. As to matters which are collateral, Henry J said at page 476:

"Again, we cite from Cross [on Evidence] at p.283:

"As relevance is a matter of degree it is impossible to devise an exhaustive means of determining when a question is collateral for the purpose of the rule under consideration …"

"Pollock C.B. said in the leading case of Attorney General v Hitchcock (1847) 1 EXCH. 91-99:

"… the test, whether the matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence – if it had such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him."

The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutors and the courts sense of fair play rather than on any philosophic or analytic process."

31. Mr Owen referred us also to R v Robinson [2004] EWCA Crim 2726 at paragraph 26, R v TM [2004] EWCA Crim 2085; and R v Busby (1981) 75 Cr. App. R. 79. I note that in Busby Eveleigh LJ giving the judgment of the court, said at page 82, that it is not always easy to determine when a question relates to facts which are collateral only, and therefore to be treated as final, and when it is relevant to the issue which has to be tried.
32. Mr Owen submits that the question whether Nathanson had gone to the lengths of offering corrupt inducements to a senior officer was not collateral, but lay at the heart of the defence case. The jury's view may well have been affected by this evidence. Mr Owen, I think, overstates the case here. The Bamber Report suggests a prima facie case of Nathanson offering a corrupt reward, but not an inducement, since there is no evidence whatever that any offer of employment with Nathanson induced Edwards to do anything relevant. He had done whatever he had done by the time the offer was made.
33. Mr Owen suggests that if the facts in the Bamber Report had been known, Edwards could have been required to give evidence and would have been cross-examined by the defence and that witnesses would have been called to rebut Nathanson's explanation of why he employed Edwards.
34. Since the hearing of this application, the court has received, and I have taken full note of, a letter from the claimants' solicitors of 5^th July 2006 appending Additional Submissions. These re-emphasise points already made and seek to rely on certain additional (doubtless contentious) points about Edwards' alleged contact with Nathanson.
35. In Quinn v CCRC [2005] NIQB at 21, Kerr LCJ said at paragraph 25:

"It is important to recognise that, in dealing with a challenge to the Commission's decision not to refer a case, particularly where that involves a claim that the Commission had reached a wrong view of the law, the court is not necessarily required to reach a conclusion on the competing legal arguments. If the assessment of the legal issues (and therefore the likely outcome of a reference) taken by the Commission is a tenable one, the court should not interfere, even if it considers that there is merit in the contrary view."

This is consonant with the English cases which I have referred to earlier in this judgment, although I note that Quinn was subsequently taken successfully to the European Court of Human Rights.

36. In my judgment, there is no proper basis for concluding that the Commission reached a wrong conclusion in relation to the material in the Bamber Report. Although the report considered that there was prima facie evidence that there had been a corrupt relationship between Nathanson and Edwards, it contained no material whatever which went to an issue in the Bostons' trial. The highest it went was to provide material to attack Nathanson's general credibility. Thus questions derived from the report would have gone merely to credit and were a collateral issue to which the principles in Funderburk applied. Nathanson was not the witness whose credibility was the main question in the trial. The tapes proved that Martin Boston said what he had said. It was his credibility, not Nathanson's, which the jury had mainly to evaluate. The questions raised by the Bamber Report were entirely collateral to the issues at the trial. It does not require a more rigorous audit than I have undertaken to conclude that the Commission's conclusion with reference to Funderburk was more than tenable. I consider it to have been correct. Any corrupt relationship between Nathanson and Edwards was not shown to have existed at a time when Edwards had any influence on the course of the prosecution. Edwards is not shown to have done anything untoward in that respect. Edwards did not give evidence at the trial. I am not persuaded that the court would have been persuaded to require him to do so if the material in the Bamber Report had been available. It is fanciful to suppose that the court at trial would have permitted the defence to call 10 or so witness to attack Nathanson's credit on an entirely collateral question. In any event, the defence knew at the time of the trial that Edwards had been employed by Nathanson after he retired from the police and they took a tactical decision not to make this a prominent feature of the defence. The reasons given by the Commission do not, in my view, betray any of the defects which entitle a court of review to intervene.
37. The ground of challenge that the Commission misunderstood the application of the decision in R v. Edwards [1991] 1 WLR 207 to the decision of the PCA in the present case was rightly not pursued orally and is insubstantial.
38. The third ground again was not pressed orally. It is said that the Commission were wrong to conclude that fresh evidence from Hervey-Bathurst would not have provided a ground for allowing the appeal. The evidence was relevant to the question whether there was a course of justice in being in the early autumn of 1994. Mr Christie, for the Commission, has pointed out the weaknesses of this point in paragraphs 17 to 28 of his skeleton. There is a strong case for attacking the credibility of Hervey-Bathurst's statements. An informed decision appears to have been taken at the time not to call Hervey-Bathurst as a witness at the trial – see paragraph (7) of counsel's letter of 8^th January 2005. On the face of it, none of the criteria for admitting fresh evidence on appeal in section 23(2)(a),(b) or (d) of the Criminal Appeal Act 1968 are obviously fulfilled.
39. For these reasons, I would dismiss these applications.

Mr Justice Langstaff:

40. I agree. I add only this. The claimants might seek to argue that if it is the fact that Edwards was approached and accepted a job offer from Nathanson as a reward this invites evidential exploration whether there was some arrangement between Nathanson and Edwards at the time of Edward's active involvement in the case which merited such subsequent recognition. However, as Lord Justice May has pointed out, this line of enquiry was open from the very fact of subsequent employment (which was known at the time of trial); there is no evidence he was involved at all before the first taped phone call was made; he was not present at the critical meetings at which the claimants offered to destroy documentary evidence. If they were entrapped into doing so, that could only have been as a result of what Nathanson said and did in the course of these conversations. To suggest that Edwards influenced Nathanson into "setting up" the claimants by what he, Nathanson said and did still makes it necessary for a jury to focus upon the words and acts. That, as I understand it, is exactly what the focus of the jury actually was. The Commission were thus plainly entitled to take the view that they should not refer the case for further consideration by the Court of Appeal.