England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		24th May 2007

1. LADY JUSTICE HALLETT: In giving this judgment I shall not weary the parties with a recital of the statutory provisions to which we have been referred in the last two days. I have provided the shorthand writer with a copy of those provisions so that she can insert them where necessary.
2. Somewhat unusually, this is a case where three members of the Bar and a firm of solicitors, the Stokoe Partnership, have sought to persuade this court that the Court of Appeal Criminal Division does not have the power to authorise expenditure from public funds for applications for leave to appeal conviction or sentence before leave to appeal is given. This all stems from their post-trial representation of a man called Michael Tyrell. On 23rd October 2000 Tyrell was charged with the importation of 272 kgs of cocaine at 100 per cent purity. On 27th October 2000 a restraint order was made over his assets under the Drug Trafficking Act 1994. The usual exception was made to cover his legitimate legal expenses.
3. Tyrell was represented at trial by counsel and solicitors in accordance with the Crown Court representation order. On 12th February 2002 he was convicted at the Snaresbrook Crown Court and later sentenced to a term of imprisonment of 26 years. Grounds of appeal were lodged on his behalf against conviction and sentence by trial counsel and trial solicitors. Tyrell then instructed the Stokoe Partnership, respondents to this application. A fresh representation order was made to cover them and to cover fresh counsel to appear in the confiscation proceedings. The Stokoe Partnership and counsel freshly instructed also took over the proceedings in the Court of Appeal.
4. From November 2002 correspondence ensued between the Stokoe Partnership and the Criminal Appeal Office as to the funding of the applications to the Court of Appeal Criminal Division. The Office informed the Stokoe Partnership that any work done by them or fresh counsel would not be covered by the Crown Court representation order, it must be funded privately. The Office indicated, however, that an application for a representation order could be made.
5. On 20th December 2002 Forbes J made an interim order releasing some of the restrained funds for payment of legal fees if the application for a representation order was refused. In a letter dated 13th January 2003 the Stokoe Partnership formally applied for a representation order for solicitors, leading counsel, Ken MacDonald QC (as he then was), and Ivan Pearce. The Partnership informed the court that, but for the restraint order, their client would have access to substantial funds with which counsel could be instructed privately. They also informed the Office that Forbes J had varied the restraint order. To my mind, this was a clear hint that this was not in fact an earnest application for a representation order.
6. The application for leave to appeal Tyrell's conviction and sentence were put before the single judge, Davis J. On 2nd July 2003 he referred three of the five grounds of appeal against conviction to the full court. He neither refused nor granted leave. In other words, he was not persuaded of the merits of the three grounds referred but he considered them worthy of further consideration, and certainly consideration by the full court. At the same time as he referred the application, Davis J, following the practice of many before him and since, purported to grant a representation order. It was in these terms:

"The preparation and presentation of an application for leave to appeal against conviction and, if granted, the appeal."

The order was limited to one counsel only. It is not clear to me whether Davis J had been informed of the possible availability of private funds subject to the restraint order. In any event, counsel named in the representation order was "K MacDonald", now Sir Ken MacDonald. Sir Ken has never claimed under that representation order. All the work he did for which payment has been claimed was carried out before 2nd July 2003.

7. Sir Ken MacDonald's appointment as Director of Public Prosecutions came soon after Davis J's order. When that occurred, Mr Anthony Jennings QC was instructed in his place. The representation order kept the same date but it was amended so as to name Mr Jennings as the sole advocate. We were informed by Mr Knowles that the representation order was sent many months later to Mr Jennings' chambers but he was never personally made aware of it. Mr Jennings accepted his instructions on the basis that he was to be privately paid. His junior, Mr Pearce, who was in a different set of chambers and never saw any representation order, was in a similar position.
8. Despite their efforts, the full court refused leave to appeal against conviction on the three referred grounds on 2nd December 2004. They also refused a renewed application to appeal against sentence. Thereafter, there followed considerable correspondence between various parties. I shall only refer to a small selection of it. In March 2006 the Stokoe Partnership wrote to the Criminal Appeal Office costs section asking if the representation order covered work done by junior counsel and solicitors, as well as leading counsel. They were informed that the representation order covered just one advocate, Mr Ken MacDonald. In a letter dated 22nd March 2006 the Stokoe Partnership then challenged the fact that a representation order had been made. They also challenged the fact that they ever made an application for one. They stated in terms that they had always understood that they were acting on a privately paid basis. This was the position they adopted thereafter. They have claimed and been paid fees from the restrained assets by the RCPO (the Revenue and Customs Prosecution Office).
9. By letter dated 24th April 2006 Mr Greenhill of the Costs Section of the Court of Appeal Office informed the Stokoe Partnership that the representation order covered the presentation of the application for leave to appeal by leading counsel only. As far as solicitors and junior counsel's fees were concerned, he pointed out that the Department, now the Ministry of Justice, took the view that joint public private funding arrangements are prohibited by virtue of Regulation 22 of the Criminal Defence Service Regulations. He further observed that had the court known that junior counsel and solicitors were privately instructed, the court might have made a recovery of defence costs order in respect of the publicly funded costs.
10. For the purposes of this application we have been asked to proceed on the basis that joint private public funding arrangements are prohibited by the Regulations. This was certainly the stance adopted by the RCPO. In April 2006 their costs draftsman submitted a report to the RCPO stating that because a valid representation order was granted on 2nd July 2003, no private fees were properly payable after that date. In her opinion, substantial fees had been wrongly released to the Stokoe Partnership from the restrained funds to pay solicitors and counsel.
11. On 2nd May 2006 the Stokoe Partnership wrote to Mr Greenhill again querying the representation order. On the same date they wrote to the Legal Services Commission setting out why they believed the order was invalid. Mr Greenhill of the Costs Section stood his ground. He insisted that the making of the representation order was not conditional upon the grant of leave. At that time, however, the Legal Services Commission begged to differ. The Stokoe Partnership told the court of the conflicting views. They asked for the Registrar's assistance. In June 2006 the RCPO made an application for an enforcement receiver. They wrote demanding repayment within 14 days of just under £50,000. The following month the Registrar, essentially supporting Mr Greenhill, wrote to the Stokoe Partnership saying no payment could be made to solicitors because of the absence of any representation order in their favour and an order for costs from central funds could not be made because the appeal was not allowed.
12. Further correspondence ensued about whether the solicitors could submit a private bill. The Stokoe Partnership wrote to the RCPO indicating they were awaiting a response from the Registrar and would revert to the Office when it was received. They also wrote to the Office enclosing a copy of the Legal Services Commission's letter. In their turn the RCPO questioned the meaning of the Commission's letter. On 25th September 2006 the Partnership informed the RCPO that the Commission were saying "that the order of Davis J of the 2nd July 2003 granting Legal Aid was wrongly made".
13. On 4th October the Stokoe Partnership wrote agreeing to a receivership order, provided the receiver would retain sufficient funds to pay outstanding invoices, pending resolution of this dispute. The same day, 4th October 2006, a receivership order was made pursuant to section 29 of the Drug Trafficking Act by Stanley Burnton J. This was to enforce the confiscation order. By virtue of clause 1(a) the receiver was empowered to take into his possession and retain £160,000 for specified expenditure, the majority of which was intended to cover legal costs. Clause 1(a) was inserted into the order by agreement between the parties each represented by counsel.
14. Unfortunately, thereafter matters seem to have become somewhat heated, in correspondence at least. The RCPO insisted that the representation order was valid and that they had been misled by the Stokoe Partnership. They demanded again the repayment of the money they said had been wrongly released. On 13th November 2006 the present application for variation of the receivership order and a wasted costs order against the Partnership was issued by the RCPO. The grounds of the application were:

(1) that the Stokoe Partnership had drawn excessive amount of costs;

(2) that they misled the RCPO as to the existence of the representation order made by Davis J.

15. The RCPO claimed that had it known of the representation order it would not have consented to the specified expenditure provision contained in the receivership order. Alternatively, the RCPO said it would not have agreed to the sum of £160,000 being set aside because the relevant Regulations prohibit the receipt of additional private funds where an advocate is publicly funded.
16. As I have indicated, the RCPO had sought a wasted costs order. However, during the hearing Mr Hall, at the invitation of the court, took further instructions from the RCPO and the decision was taken, which this court welcomed, to withdraw the application for a wasted costs order.
17. The matter was first listed before Gibbs J in February of this year. With his experience of the Court of Appeal Criminal Division, he immediately appreciated that this application could have ramifications for the system as a whole. He adjourned the matter to a Divisional Court hearing. He considered the possibility of the instruction of an amicus curiae and he wanted the Ministry of Justice and/or the Legal Services Commission to intervene. Unfortunately, the Commission has not intervened. Mr Hyam was instructed on behalf of the Ministry of Justice, but not as an amicus. He had firm instructions to support the arguments of the respondents as to the invalidity of the representation order. Further, no-one saw fit to inform the professional bodies, the Bar Council and the Law Society, who may also have an interest in the outcome of this litigation, certainly not in time for them to make any representations to be heard. All parties asked us to proceed without their intervention because a decision is required urgently from the court. Every day interest is accruing on the restrained funds. It is for that reason that this is largely an ex tempore judgment.
18. The Legal Services Commission, since the hearing before Gibbs J, have apparently changed their minds again, or at least their legal advisor has. As he put it, "having spoken to the Administrative Court", he has now come down on the side of the RCPO as to the validity of the representation order.
19. The argument before us all turns on the meaning of five words: "notice of leave to appeal" in the 2001 Criminal Defence Service Regulations. I turn immediately, therefore, to the statutory framework. It is common ground that between 1907 and 1999 the law was clear. Enshrined in primary legislation the Court of Appeal Criminal Division had the power to grant Legal Aid in respect of all proceedings before it, including applications for leave to appeal.
20. I start with the Criminal Appeal Act 1907. This created the Court of Criminal Appeal. Section 10 provided:

"The Court of Criminal Appeal may at any time assign to an appellant a solicitor and counsel or counsel only in any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the court, it appears desirable in the interests of justice that the appellant should have Legal Aid, and that he has not sufficient means to enable him to obtain that aid."

Section 21 provided that the term 'appellant' includes a person who has been convicted and desired to appeal under the Act. In other words, someone seeking leave to appeal would qualify as an "appellant". The power given by section 10 was preserved in the 1949 Legal Aid and Advice Act.

21. Then we have section 73(5) of the Criminal Justice Act 1967. That provided:

"Where a person is convicted or sentenced by a court of assize or quarter sessions and desires to appeal to the Court of Appeal against his conviction or sentence, the Criminal Division of the Court of Appeal may order that he be given Legal Aid for the purpose of the appeal and any proceedings preliminary or incidental thereto."

22. That brings me to the Criminal Appeal Act 1968 which replaced the 1907 Act. Sections 1 and 18 provide, so far as relevant:

"1. (1) Subject to subsection (3) below, a person convicted of an offence on indictment may appeal to the court of Appeal against his conviction.

(2) An appeal under this section lies only --

(a) with the leave of the Court of Appeal;

(b) if the judge at the court of trial grants a certificate that the case is fit for appeal . . .

18. Initiating procedure.

(1) A person who wishes to appeal under this Part of the Act to the Court of Appeal, or to obtain the leave of that court to appeal, shall give notice of appeal or, as the case may be, notice of application for leave to appeal, in such manner as may be directed by rules of court.

(2) Notice of appeal, or of application for leave to appeal, shall be given within 28 days from the date of the conviction, verdict or finding appealed against, or in the case of appeal against sentence, from the date on which sentence was passed or, in the case of an order made or treated as made on conviction, from the date of the making of the order."

The words to note are "notice of appeal" and "notice of application for leave to appeal".

23. Section 31 of that Act delegates certain powers of the Court of Appeal to a single judge of the High Court and provides a filter mechanism for unmeritorious applications for leave to appeal. It states so far as is relevant:

"(1) There may be exercised by a single judge in the same manner as by the Court of Appeal and subject to the same provisions --

(a) the powers of the Court of Appeal under this Part of this Act specified in subsection (2) below . . .

(2) The powers mentioned in subsection 1(a) above are the following --

(a) to give leave to appeal . . .

(3) If the single judge refuses an application on the part of an appellant to exercise in his favour any of the powers above specified, the appellant shall be entitled to have the application determined by the Court of Appeal."

24. It should be noted that in subsection (3) an "appellant" clearly includes an "applicant" for leave. Mr Hardy, for reasons that will become apparent, argues that the section 31 procedure by which a single judge grants leave to appeal, or makes a determination, should be treated as part of, or equated with, the process of the court's notifying the applicant of his successful application.
25. I move to the Legal Aid Act 1974. Section 28(8) provided:

"(8) Where a person desires to appeal to the Court of Appeal under Part I of the Criminal Appeal Act 1968, the criminal division of that court may order that he shall be given Legal Aid for the purpose of the appeal and any proceedings preliminary or incidental thereto."

By virtue of section 30(8) the grant of Legal Aid could be limited in the first instance to "advice by counsel or solicitor assigned by the court, on the question whether there appear to be reasonable grounds of appeal and assistance by that solicitor in the preparation of an application for leave to appeal or in the giving of a notice of appeal."

26. As under section 74(7) of the 1967 Act, Legal Aid for Crown Court proceedings granted under section 28(7) covered some advice and preparation for appeal. By section 30(7):

"Legal Aid which may be ordered to be given to any person for the purpose of any proceedings by a Legal Aid order under section 28(7) above shall, in the event of his being convicted or sentenced in those proceedings, include advice on the question whether there appear to be reasonable grounds of appeal and --

(a) if such grounds appear to exist, assistance in the preparation of an application for leave to appeal or in the giving of a notice of appeal;

(b) while that question is being considered, assistance in the making of a provisional application or the giving of a provisional notice."

27. I now turn to the Legal Aid Act 1988. Part V of the Legal Aid Act 1988 applied to "criminal proceedings" generally. Section 19(2) provided that:

"Representation under this Part for the purposes of the proceedings before any court extends to any proceedings preliminary or incidental to the proceedings, including bail proceedings, whether before that or another court."

By virtue of section 20, various courts including the Court of Appeal were competent to grant representation for the purpose of proceedings, but subject to limitations imposed elsewhere in the Act. By section 20(2) representation orders could only be granted by the Court of Appeal as follows:

" . . . if notice of appeal is given or an application for leave to appeal is made."

Again, the words should be noted.


 


28. Section 21(8) provides:

"Where an application for representation for the purposes of an appeal to the Court of Appeal . . . is made to a competent authority before the giving of notice of appeal or the making of an application for leave to appeal, the authority may, in the first instance, exercise its power to grant representation by making a grant consisting of advice on the question whether there appear to be reasonable grounds of appeal and assistance in the preparation of an application for leave to appeal or in the giving of a notice of appeal."

29. The following year came the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (SI 1989/344). Regulation 22 limited the power of the Court of Appeal to grant Legal Aid until after proceedings in the Court of Appeal had been started. It provided that:

"(5) A Legal Aid order shall not be made until --

(a) a notice of appeal or application for leave to appeal to the Court of Appeal or the House of Lords, as the case may be, has been given . . . "

Again it should be noted that the same words "a notice of appeal or application for leave to appeal" appear. These repeated references are to notices given to the court by the convicted person. As a result of Regulation 22(5), it is the giving of that notice by the applicant which triggers the making of a Legal Aid order in the Court of Appeal. Mr Hall, who appeared on behalf of the RCPO, invited us also to note that the consequence of a failure to give a notice in this context was that the applicant could not be awarded any public funds.

30. Next we come to changes in the Legal Aid system and the creation of the Criminal Defence Service. This was in the Access to Justice Act 1999. Mr Hyam wished to emphasise the fact that the Act was not an attempt at codification. It contained major radical changes.
31. Sections 12 to 18 of the Access to Justice Act relate to representation in criminal proceedings before any court. Section 12 imposes upon the Legal Services Commission a statutory duty inter alia to establish and maintain the Criminal Defence Service "for the purposes of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require". This, Mr Hyam says, provides the general power in primary legislation to make provision for public funding in criminal proceedings. Section 13 imposes a duty on the Commission to fund such advice and assistance as it considers appropriate, including assistance in the form of advocacy. Section 14 of the Act reads as follows:

"(1) Schedule 3 (which makes provision about the grant of a right to representation in criminal proceedings) has effect; and the Commission shall fund representation to which an individual has been granted a right in accordance with that Schedule."

32. By the interpretation section, section 26, "criminal proceedings" has the meaning given by section 12(2) of the Access to Justice Act, namely:

"In this Part 'criminal proceedings' means --

(a) proceedings before any court for dealing with an individual accused of an offence,

(b) proceedings before any court for dealing with an individual convicted of an offence (including proceedings in respect of a sentence or order) . . . "

There is no specific reference to the Court of Appeal Criminal Division, but all are agreed it is included in the definition of "any court".

33. "Representation" means:

"representation for the purposes of proceedings and includes the assistance which is usually given by a representative in the steps preliminary or incidental to any proceedings and (subject to any time limits which may be prescribed (none have)) advice and assistance as to any appeal."

There was considerable argument before us on the extent to which "representation" in the Crown Court, which includes "advice and assistance" on appeal, covers representation in the Court of Appeal. It is common ground that "advice and assistance" cover the initial advice and preparation of the grounds of appeal. Further, it is conceded that practitioners, judges and staff of the Court of Appeal Criminal Division have assumed and acted on the basis that the law has remained constant. If no representation order is in place, once a practitioner has given the initial advice and the grounds of appeal are lodged, it is a matter for them whether they pursue an application before the court. If they decide to do so, they act pro bono and they have no professional or statutory duty to continue to act.

34. Mr Hyam invited us to note that in the predecessor Legal Aid Acts, the words "advice and assistance" were qualified by the phrase "in the preparation of an application for leave to appeal or in the giving of a notice to appeal". The words "in the preparation of" have been removed in the Access to Justice Act. This, Mr Hyam was instructed to argue, means that the Crown Court representation order now subsists until the application for leave is determined. If a case is referred to the full court by the Registrar or a judge, but no leave granted, counsel is now bound by the terms of the Crown Court representation order to appear in the Court of Appeal on any oral application. He or she, said Mr Hyam, will be entitled to an attendance fee of £46.50. If unsuccessful, that would be the limit of his or her payment, however many hours or days they have spent on the case, essentially at the direction of the court. If successful, however, the Court of Appeal can make a representation order that can be backdated. Mr Hyam was instructed to concede that if this happened the Court of Appeal representation order would then overlap with the Crown Court representation order and counsel would be entitled to be paid under both for the work that he had done.
35. Despite what appeared to me to be an element of double counting, Mr Hyam, on instructions, insisted this was all part of a new cost effective and workable system. This new system, as envisaged by the Ministry of Justice, may come as a surprise to many who had no idea that they could claim under the Crown Court representation order for oral applications in the Court of Appeal. No such claims, to anyone's knowledge, have ever been made. Many practitioners may also find it surprising to learn that, as a result of the Access to Justice Act, if a High Court judge refers one of their cases to the full court as worthy of further consideration, they are now obliged by statute both to prepare it and present it, payment being on a somewhat speculative basis.
36. If the Crown Court representation order is to subsist in the way that Mr Hyam argues it does, he had to find a way to bring it to an end. Although he could find no provision for this in the Act or the Regulations, Mr Hyam asserted that public policy demands that the representation order ends if and when leave to appeal is refused.
37. It is important now to consider Schedule 3, paragraph 1(1) of the Act. This refers to the right to representation for the purposes of any kind of criminal proceedings. At paragraph 2 in its unamended form as applied in 2003 provided:

"Grant of right by court

2. (1) A court before which any criminal proceedings takes place, or are to take place, has power to grant a right to representation in respect of those proceedings except in such circumstances as may be prescribed.

(2) Where a right to representation is granted for the purposes of criminal proceedings it includes the right to representation for the purposes of any related bail proceedings and any preliminary or incidental proceedings; and regulations may make provision specifying whether any proceedings are or are not to be regarded as preliminary or incidental.

(3) A court also has power to grant a right to representation for the purposes of criminal proceedings before another court in such circumstances as may be prescribed."

38. Thus, on the face of it, the powers of any court, including the Court of Appeal, are very broad and allow for the making of representation orders for the purposes of proceedings before them which are preliminary or incidental to an appeal. It also allows for representation orders in bail proceedings. However, Mr Hardy for the Stokoe Partnership, Mr Knowles for the three barristers, and Mr Hyam all argue that the Criminal Defence Service (General)(No 2) Regulations 2001 (SI 2001/1437), to give them their full title, which were made pursuant to the Access to Justice Act imposed a severe restriction on the powers of the Court of Appeal. These regulations where relevant provide as follows. Regulation 4 provides that the Legal Services Commission:

" . . . shall fund such advice and assistance, including advocacy assistance, as it considers appropriate in relation to any individual who --

(a) is the subject of an investigation which may lead to criminal proceedings;

(b) is the subject of criminal proceedings;

(c) requires advice and assistance regarding his appeal or potential appeal against the outcome of any criminal proceedings or an application to vary a sentence;

(d) requires advice and assistance regarding his sentence."

39. I need not trouble with Regulation 5. I turn immediately to Part III which contains the relevant regulations for our purposes. Under the heading "Applications for Representation Orders", Regulation 6, which I cite in full, provides:

"(1) Any application for the grant of a representation order shall be made on Form A in Schedule 2 to these Regulations and, subject to Regulation 10(5) and (6), the date of any representation order shall be the date upon which such form, properly completed, is received in accordance with these Regulations.

(2) Any application for the grant of a representation order in respect of the proceedings mentioned in section 12(2)(a) to (f) of the Act shall be made in accordance with Regulations 8, 9 and 10.

(3) Any application for the grant of a representation order in respect of the proceedings mentioned in Regulation 3(2) (criminal proceedings for the purposes of section 12(2)(g) of the Act):

(a) shall be made to the Commission; and

(b) may be granted only by the Commission or a person acting on behalf of the Commission where such function has been delegated in accordance with section 3(4) of the Act.

(4) Where an application under paragraph (3) is refused, the Commission shall provide to the applicant:

(a) written reasons for the refusal; and

(b) details of the appeal.

(5) Where the person who requires representation is aged less than 17, the application for the grant of a representation order may be made by his parent or guardian on his behalf.

(6) The appropriate officer of each court shall keep a record of every application to that court for a representation order, and of its outcome.

(7) The appropriate officer shall send to the Lord Chancellor such information from the record mentioned in paragraph (6) as the Lord Chancellor may request."

Regulation 7 provides:

"The court, a judge of the court, or the Registrar of criminal appeals may grant a representation order at any stage of the proceedings in the circumstances set out in these Regulations whether or not an application has been made for such an order."

40. I now turn to the all important Regulation 10. On its face it sets out the procedure to be followed in the Court of Appeal and the House of Lords. One would expect, Mr Hall argues, for it to set out, therefore, the procedure to be adopted for all proceedings in the Court of Appeal other than the "advice and assistance" covered by the Crown Court representation order. Although the argument has focused on 10(5), it is important to set it out Regulation 10 in full. Under the heading "Proceedings in the Court of Appeal (Criminal Division) and the House of Lords" it provides:

"(1) An application for a representation order in respect of proceedings in the Court of Appeal or the House of Lords may be made --

(a) orally to the Court of Appeal, or a judge of the court; or

(b) in writing to the Court of Appeal, a judge of the court, or the Registrar of criminal appeals ('the Registrar').

(2) Where an application is made to the court, it may refer it to a judge or the Registrar for determination.

(3) Where an application is made to a judge, he may refer it to the Registrar for determination.

(4) The Registrar may --

(a) grant the application; or

(b) refer it to the court or a judge of the court.

(5) A representation order shall not be granted until notice of leave to appeal has been given in respect of the proceedings which are the subject of the application.

(6) Where a representation order is granted in respect of proceedings in the Court of Appeal, a judge or the Registrar may specify the stage of the proceedings at which the representation order shall take effect.

(7) The House of Lords may not grant a representation order in respect of any proceedings."

41. In Regulation 10(5) we have the first and only reference, to counsels' knowledge, of the phrase "notice of leave to appeal". Mr Hyam has asked us to note not only Regulations 4, 6, 7, 8, 9, 10 but also Regulation 15. Regulation 15 permits the Court of Appeal to grant a representation order for an advocate only, ie, an advocate and no solicitor in respect of "an appeal". This, Mr Hyam argues, does not seem to include applications for leave to appeal which is how Mr Hall would interpret the Regulations.
42. Finally, our attention was directed to the Criminal Procedure Rules 2005 which replaced the Criminal Appeal Rules 1968. By Rule 68.29 the Registrar shall:

" . . . as soon as practicable serve notice of any determination by the court or by any judge of the court under section 31 of the Criminal Appeal Act 1968 . . . on --

(a) the appellant;

(b) the Secretary of State …."

43. In practice, a form SJ1, setting out the single judge's order and headed "Form of judge's order under section 31", is sent to an applicant along with a copy of any representation order made. Considerable argument was advanced before us on what exactly the form SJ1 is. Messrs Hardy, Knowles and Hyam say it is a notice of the court's determination. They did not seem to be agreed as to the identity of the person to whom the notice is directed. Mr Hall argues it is a record of a court order or a determination which the Registrar then notifies to the applicant in accordance with Criminal Procedure Rule 68.
44. Given that background, we have been invited to contrast the words of the 1989 Regulations by which a Legal Aid order could be made when "a notice of appeal or application for leave to appeal" has been given, and the words of the 2001 Criminal Defence Regulations by which a representation order shall not be granted until "notice of leave to appeal" has been given.
45. Mr Hardy, supported by Mr Knowles and Mr Hyam, argued that the key word "application" has been omitted from the latest set of Regulations. This, they submit, must have been deliberate. They argue it indicates a dramatic change in the law. Whereas before an applicant had to give notice to the court to trigger the provision of public funding, now the court must give notice to the applicant or to itself of a judge's decision to grant leave to trigger the provision of public funding. Until that happens the Court of Appeal and its Registrar, they say, have no power to grant a representation order, whatever they may think of the merits of an application.
46. The expression "notice of leave to appeal" appears only in Regulation 10(5). It is not an expression with which anyone is familiar. Having scoured Archbold and other learned tomes and manuals, counsel were unable to point to any document (be it a statute, be it a regulation, be it a guide) in which the expression was used. It is, therefore, plainly a new phrase and one that requires construction.
47. One thing is clear. If the new phrase was deliberately chosen to change the law, Mr Hyam could put before us no material to suggest that anyone was properly informed that a major change was afoot, let alone that a major change had been implemented. If there was consultation, there does not seem to have been sufficient opportunity to provide informed comment. Mr Hyam said in terms that he did not intend to rely upon any evidence to establish that the Department had, as a matter of policy, set about changing the law. He indicated that he put some material before us which suggested the previous Registrar had been shown the draft Regulations because of questions asked by the court during the course of argument. I do not criticise Mr Hyam, in any way, for the stance that he adopted. As he rightly observed, this case is essentially all about statutory onstruction.
48. Given the lack of any notification of a change in the law, not surprisingly, following the Criminal Defence Service Regulations, the Court of Appeal Office did not change its approach, nor did the judiciary, nor did practitioners. Applications for representation orders continued to be made and granted after an application for leave to appeal had been made but before leave was granted. This meant, that in all cases where it was felt that representation by an lawyer was in the interests of justice and/or would assist the court, such representation could be provided at public expense without recourse to any other body and without incurring any unnecessary delay or cost. The Registrar of Criminal Appeals, currently Master Venne, will frequently refer cases direct to the full court in cases of urgency or if he is satisfied the application is likely to succeed where, for example, there may have been a misapplication of the law.
49. To date, Master Venne has followed the practice of his predecessor who, in February 1997, published a revised edition of "A Guide to Proceedings in the Court of Appeal Criminal Division". Section 7.1 of the guide is headed "Grant of reference by the single judge". It reads:

"Where the single judge grants leave or refers an application, he is likely to grant Legal Aid. This may be limited to the services of counsel only, in which event counsel would be assigned by the Registrar . . . As to the possibility of an extension of Legal Aid to include solicitors see 12.5."

This guide was amended in 2002 to take account inter alia of the abolition of Legal Aid, but otherwise it is expressed in similar terms on this point.

50. Nevertheless, Mr Hardy, Mr Knowles and Mr Hyam argue robustly that the change in wording which appears in Regulation 10(5) was not an error. Mr Hardy argued the words are clear and unambiguous and have been chosen carefully. The Parliamentary intention was to restrict the grant of representation orders in respect of criminal proceedings in the Court of Appeal until notice of leave to appeal has been given.
51. Mr Hyam adopted a slightly different stance. Albeit he conceded there may be some degree of ambiguity or obscurity in the Regulation, he argued there are good policy reasons for the change advocated by Mr Hardy and Mr Knowles. However, despite his best efforts, I fear Mr Hyam was unable to provide for me a satisfactory explanation of those policy reasons or how a tightening up on the provision of public funding had been achieved without the risk of injustice or a waste of resources.
52. Further, Counsel for the respondents and the Ministry of Justice all argue that we must give effect to their interpretation of the Regulation, whatever the consequences to the practice in the Court of Appeal. This was a reference to a document prepared by Master Venne in which he has set out what he considers to be the consequences of this alleged change in the law. It has been distributed to all parties. At the beginning of the hearing I ascertained that no-one had any objection to this court taking into account what Master Venne had said, albeit he is not here before us or represented.
53. Mr Hardy, Mr Knowles and Mr Hyam all argue that the consequences of this change in the law would not be as dire as Master Venne predicts. They reject his assertion that if their arguments prevail there would be a lacuna in the provisions for proper public funding. The particular lacuna that Master Venne had in mind are cases where leave to appeal is not required and a mere notice of appeal will suffice. Mr Hardy and Mr Knowles argue that such appeals that do not require leave and are not covered by Regulation 10. They may be covered by Regulation 7. In the alternative, there is a general power in the Legal Services Commission to grant public funding where appropriate.
54. Mr Hyam argues that Regulation 10(5) is intended to restrict rather than empower. He says that the applicant who does not require leave to appeal is not affected by the restriction made in Regulation 10(5) because he does not need to have recourse to the Regulations. He is covered by the Act. .
55. We were referred by counsel to the decision in R v Gibson [1983] 757 Cr.App.R 151 in which it was held at page 159 that:

" . . . The renewal to the full court is but a further step in the making of an application which is not finally dealt with until it is --

(a) granted by the single judge;

(b) refused by the single judge and not renewed; or

(c) renewed to the full court and either granted or refused.

Until one of those events has occurred 'the application' is in being and attracts the provisions of section 30(7) of the Legal Aid Act 1974. Thus, in our opinion, assistance given in the preparation of the application for leave to appeal provided by counsel or solicitor or both, either originally or when consideration has been given to renewal of a refused application, is covered by the original Legal Aid certificate. In our experience, assistance, which of course includes advice on the question of whether an application should be renewed and if so whether it requires amendment in any way, is very seldom required."

56. Mr Hall, however, drew our attention to the case of Kearney [1983] 77 Cr.App.R 187 in which Lord Lane CJ, giving the judgment of the court, in clear terms qualified the decision in Gibson. He stated that the words of the relevant section of the Legal Aid Act 1974 excluded representation in court.
57. By the conclusion of the arguments, I confess I was not clear the extent to which Mr Hardy et al were relying on Gibson. It did not seem to me to advance their argument significantly. As Mr Hyam was at pains to point out, both Kearney and Gibson concerned the construction of a now repealed statutory provision. Further, the analysis in Gibson which we were encouraged to follow was found to be faulty, at least in part, just a few months after the decision had been given.
58. Perhaps more pertinent to the point in issue here was the decision in R v K, G and M, judgment delivered on 28th January 2005, [2005] EWCA Crim 145. Mr Hardy relied upon the fact that Thomas LJ held in paragraph 5 that a representation order:

" . . . only covers work on and attendance or appearance at the hearing in respect of the grounds upon which the court has granted leave to appeal. It does not cover any work, preparation or time in court which is done or spent in respect of any renewed application in respect of grounds on which leave to appeal has been refused. If on a renewed application made at the same time as an appeal leave is granted, the practice of the court is exactly the same as applies when a renewed application is made separately."

Pausing there, I note Thomas LJ did not refer in that paragraph to cases where the matter has been referred to the full court and a representation order made. However, in paragraph 6 he observed:

"It is therefore essential in every case where there is a failure of a renewed application for leave to appeal made at the same time as an appeal and the court does not specially and exceptionally order the advocates or solicitors representing the applicant are entitled to a representation order for the costs of the failed application, that the fee notes submitted by the advocates or solicitors show a detailed account of the work done for the appeal and a detailed account of the work done for the renewed application for leave to appeal. This detailed split is necessary so that the Registrar of the Court can apply detailed scrutiny to the amount claimed so as to ensure that no amount is paid under the representation order in respect of the renewed application."

As I pointed out in argument the words of paragraph 6 did not seem to fit with Mr Hardy's argument. On that basis, Mr Hardy fell back on the trusty sword of the judge's remarks were obiter".

59. Mr Hall, outnumbered but not outgunned, countered with the following. Unlike its predecessor Acts, there is no reference in the Access to Justice Act to the powers of the Court of Appeal, in this context, but there is no reason to conclude that Parliament intended to exclude proceedings before the Court of Appeal or any aspect of those proceedings from the breadth of the power to grant representation. He placed reliance upon the provisions in the Act itself, which he said echoed provisions in predecessor Acts. He reminded the court that representation for criminal proceedings extends to any proceedings which are preliminary or incidental to those proceedings. He argued "preliminary and incidental" proceedings must include applications before leave is given. He submitted that to impose a restriction on the court's powers and change dramatically the law of nearly a century, clear unambiguous words would be necessary. The words of Regulation 10(5) cannot be so described. They only make sense if given the interpretation he puts on them, he says; namely that "notice of leave to appeal" is shorthand for "notice of appeal and applications for leave to appeal".
60. Mr Hall summarised his argument with four short but telling points. If this was a deliberate change in the law:

(i) It would represent a massive shift from the preceding legislation in which the Court of Appeal was responsible for granting Legal Aid for proceedings in the Court of Appeal.

(ii) Far from tightening the purse strings, it would remove effective control over public funding of advocacy in the Court of Appeal, because funding would be automatically available under the Crown Court representation order or from the Legal Services Commission, rather than its grant subject to the discretion of the judge or judicial officer in the Court of Appeal.

(iii) It would overlook the scheme of Schedule 3 to the Access to Justice Act which, as in the predecessor legislation, has the effect of empowering the court before which proceedings are taking place to grant representation.

(iv) The system as envisaged by the others is unworkable for the reasons given in Master Venne's paper. The interests of justice and economy demand the flexibility that the system as applied at present continues.

61. The point is a short one, albeit an important one. I can state my conclusions relatively briefly. I begin with a few general observations. If this was a deliberate change in the law, I find it astonishing that there was, on the material before us, no proper consultation as to the necessity for, and the consequences of, a change in the established law and practice of nearly 100 years. One might have expected that those charged with the implementation of such a change -- the judiciary, the court, the profession and the Legal Services Commission -- would be alerted to the major change afoot. The Legal Services Commission cannot have appreciated the effect of any change because otherwise one assumes they would not have been in two minds about the validity of the representation order made here.
62. Even if one cannot expect effective consultation, at the very least one might expect some form of notification. It is to my mind absurd to suggest a Government Department would have deliberately effected a major change in the law with the express intention of saving public money and then would have failed to notify the Legal Services Commission and the Court of Appeal Office of what they had done, so that representation orders continued to be made, before leave was given and payments were made of thousands of pounds of public money, all without authority.
63. For decades, the Court of Appeal, for good reason in my view, was empowered by primary legislation to grant representation orders at any stage of the proceedings and where necessary in the interests of justice. It was specifically empowered to do so before leave to appeal had been given. There is nothing before us to suggest that the Court of Appeal, its officers or its judges were too ready to grant representation orders so that the Department decided to tighten up on unnecessary expenditure by removing the power to grant representation orders from them despite the fact that they were seized of the case. There is nothing in the Act to suggest that Parliament intended to strip from the Court of Appeal powers it has used, to my mind to great effect, to save time, precious resources, to cut bureaucracy, and most importantly to do justice.
64. The powers given by the Act to all courts in all criminal proceedings, including preliminary and incidental proceedings, are broad. In the light of that breadth and the Act's aim "to secure the provision of publicly funded legal services to those who need them", I would take some convincing that those powers had been curtailed in the way claimed. Of course I accept that Parliament has given the Minister power to make regulations which prescribe circumstances in which representation orders may be made. The Act says so, even if some do not like the consequences. Thus, the Regulations could have dictated that no representation order may be made unless and until leave has been granted. But, for the reasons given, to my mind clear and unambiguous words would have been required to achieve that aim.
65. With those observations in mind, I turn to the task of statutory construction put before us. Mr Hyam, as I have explained, did not rely upon any material to assist in this task other than the words of the Regulations themselves, the statutory framework and statutory history. Having considered the words of Regulation 10(5) carefully and in context, I reject any assertion, if it is still maintained, that the words of the Regulation are plain and unambiguous and that they have an obvious natural meaning. To my mind they have no natural meaning. They are obscure. The phrase "notice of leave to appeal" is a new one. It is not used elsewhere. It is not defined by the draftsman. Without explanation, the Regulation refers to the giving of "notice" of leave to appeal. It does not specify who is to give the notice and it does not say to whom the notice is to be given. This is despite the fact that before the enactment of the Access to Justice Act the law was straightforward: it was the applicant who had to give notice to the court to trigger the grant of public funding. No explanatory notes appear to assist anyone as to what it means. It is not a term of art. The only terms of art known to those who have to implement these regulations and relevant to this case are "notices of appeal" and "applications for leave to appeal". These are notices given by the applicant to the court. The only notice given by the court is when the Registrar gives notice of a determination. The Registrar's notice of the judge's determination may or may not include the grant of leave. The same applies to the section 31 form. In my view, this form cannot, without more, be equated as is suggested to the single judge's giving notice of leave to appeal. It is a record of his or her determination of any number of applications before them. The determination may or may not include the grant of leave to appeal.
66. Further, I find the structure of the Regulations most illuminating. The Act gives the general power, the Regulations set out how the power is to be used. The Regulations may restrict the use of the power for example, the exclusion by the House of Lords. But as my Lord David Clarke J observed during the course of argument, Part III in which Regulations 6 to 10 appear, appears to be a self-contained code for the making of representation orders in all courts and criminal proceedings. Regulation 6, which applies to all courts, lays down in clear terms that applications for representation orders under section 12(2)(a) to (f), (which includes proceedings in the Court of Appeal Criminal Division) shall be made in accordance with Regulation 8, 9 or 10. To my mind, that must mean Regulations 6, 7, 8, 9 and 10 cover all applications for representation orders in the Court of Appeal.
67. Regulation 7 is clearly designed to cater for the situation where no application has been made, for example, by a litigant in person or by inadvertence. I do not accept that, given its place in the structure of the Regulations, Regulation 7 provides a freestanding and general power to grant representation orders as suggested by Mr Hardy and Mr Knowles.
68. Regulation 8 then sets out the procedure to be adopted in the Magistrates' Court, Regulation 9 provides for the procedure in the Crown Court, and Regulation 10 which has the heading "Proceedings in the Court of Appeal and the House of Lords" covers applications for representation orders before the Court of Appeal or for proceedings in the House of Lords. Again, as my Lord David Clarke J observed, Regulation 10(1) does not begin "An application for a representation order in respect of proceedings in which leave is required in the Court of Appeal may be made in the following way". It applies, on its face, to all applications for a representation order in respect of Court of Appeal proceedings.
69. Taking the draftsman as competent and knowing the law, he must know that there are applications for representation orders in the Court of Appeal where no leave is required. If Mr Hyam's interpretation of Regulation 10 was correct, for some reason the draftsman deliberately omitted appeals where no leave is required from the effect of Regulation 10. The applicant who did not require leave would then be sent back to Regulation 7 on Mr Hardy's argument (I have already dealt with that), or, on Mr Hyam's argument, to the Act itself. Put simply, I fail to see why applications for a representation order by someone who does not require leave to proceed in the Court of Appeal should be singled out in this way and should be the only applications for a representation order in the Magistrates' Court, Crown Court, Court of Appeal or for the House of Lords not covered by Part III.
70. As for Regulation 15, just as the definition of "representation" in the Act refers to advice and assistance for any appeal, when it means advice or assistance for any application for leave to appeal and appeals, so I am satisfied that the reference in Regulation 15 to "appeal" must include applications for appeal.
71. Thus, I conclude that the draftsman must have intended to include applications for representation orders where no leave is required in Regulation 10. That means that for notice of leave to appeal one must read "notice of appeal or application for leave to appeal".
72. I accept that it is an unfortunate situation when a court must read into a statutory provision these additional words, but, to my mind, there is, here, no choice. Whichever interpretation one chooses, words must be read in. On the arguments advanced by Mr Hyam et al the phrase "notice of leave to appeal" would have to be expanded to "The court has given notice that leave to appeal has been granted". I simply did not follow the argument that the intention of the draftsman was to require the court to give notice. No sensible explanation was proffered as to why this should be so. If the court has to give notice in addition to the section 31 form, that would have the consequence feared by Master Venne that a single judge could not grant a representation order at the same time as he gave leave to appeal. He would have to wait until notice had been given.
73. Even if I am wrong as to the effect of a form 31, to my mind this begs the question. The question is: why should the Regulations require the court to give any notice and to whom? The central feature on the respondent's argument is that leave is granted. It would have been perfectly straightforward to state in the Regulations "No representation order may be made for proceedings in the Court of Appeal unless granted leave".
74. In my view, the interpretation that Mr Hyam, Mr Knowles and Mr Hardy put on Regulation 10(5) strains the language, which Mr Hall's interpretation does not. I am therefore satisfied that Regulation 10 does not exclude from its remit cases which go straight to the Court of Appeal without leave. To find otherwise, in my judgment, would be to find that there is a lacuna and then there would be a great swathe of appeals and references set out in Master Venne's paper which would be excluded from funding. Some meritorious appellants or applicants may possibly have recourse to overlapping provisions, for example in a reference by the Criminal Cases Review Commission, but many of them may not be so fortunate. An applicant whose case had been referred to the full court and who required leave which had not been given, who approached the Legal Services Commission for funding would no doubt be met by the response on the respondents' interpretation of Regulation 10(5), "no leave, no representation order- look at the terms of Regulation 10". The short-term prisoner may well have served his term before any application could be made to a body outside the Court of Appeal. As it seems to me, applications of this kind are far better dealt with by the Court of Appeal which is seized of the matter and fit to assess the need for urgency and public funding. As I understand it, that was the Parliamentary intention. That is the scheme of the Act and the Regulations.
75. It follows that I do not accept that there is any mechanism outside these regulations to provide the necessary assistance for all the cases cited by Master Venne. I do not accept the proposition that the Crown Court representation order, for example, extends to the extent that Mr Hyam suggested. The fact that the words "in preparation" have been removed in the Access to Justice Act does not, to my mind, mean there has been a major change in the law and a major change in advocates' duties. I am satisfied that this is a mere simplification of the provisions and not a deliberate change. Until yesterday, I confess, I had never heard of the proposition that the Crown Court representation order covers oral advocacy in the Court of Appeal.
76. If I am right, and no proper mechanism exists for providing funding in all the worthy cases mentioned by the Registrar, I cannot accept that the Act and the Regulations were intended to restrict funding in the way that is suggested. If a judge or a judicial officer considers a criminal conviction worthy of the attention of the full Court of Appeal, funding should surely be made available and that must have been Parliament's intention. A system whereby those who have a potentially strong or urgent case find themselves unrepresented before the Court of Appeal because there is no mechanism for providing public funding would be in no-one's interests, least of all the convicted and the sentenced. It would not be in the interests of the court, it would not be in the interests of the system, it would not be in the interests of justice, which have always been and remain at the heart of the provision of representation in criminal proceedings.
77. In my judgment, the position is clear. The draftsman must have conflated a notice of appeal and a notice of application for leave to appeal. I prefer to read in the words "appeal or application for". To my mind this makes sense of the phrase and achieves what I consider to be the legislative purpose. The other interpretation does not. It would lead to an unworkable and an unjust system. I hope I have been able to do justice to the arguments advanced before us in the time available. For the reasons given, I am satisfied that the representation order made by Davis J was valid.
78. I should just like to add that I repeat my appreciation of the skill and eloquence with which the arguments have been advanced before us by each of the four counsel, despite a considerable amount of questioning from the court.
79. MR JUSTICE DAVID CLARKE: I agree. In my judgment the term "notice of leave to appeal" does not naturally bear the plain and obvious meaning which has been contended for. It is common ground that this particular phrase has not appeared in any of the earlier Regulations. If it does bear the meaning contended for, then it seems to me that the phrase is itself a form of shorthand in that it is short for "notice of the grant of leave to appeal".
80. Except in legal shorthand, by which the term "leave" commonly imports grant of leave, its meaning is obscure, as the arguments before us demonstrated, including the arguments about whether the section 31 form SJ1 signed by the single judge itself constitutes a notice. I therefore agree with my Lady that the court must ascribe a meaning to the phrase and hold that it is another form of shorthand encompassing both notice of appeal and applications for leave to appeal. Like her, I cannot accept that in the drafting of the Regulations under the Access to Justice Act 1999 there was a deliberate fundamental change from notice of leave to appeal or application for leave to appeal, being a notice given by the appellant or applicant, to notice of leave to appeal being the grant of leave or a notice or notification of the grant of leave given by the court. If there had been, it seems to me inconceivable that five years since then could have elapsed throughout which the practice of the court has remained essentially unchanged without that fundamental change being brought to the attention of the court, of its judiciary, or of the practising professionals.
81. LADY JUSTICE HALLETT: Mr Hall.
82. MR HALL: I am very grateful indeed for the delivery of judgment as quickly as that. The interest accruing is £396 per day so I am keen to make some progress. The suggestion I make is as follows. I have drafted an order which I have handed to Mr Hardy. The order is that therefore no further monies at the moment can be paid privately. The £120,000 was kept back to meet a potential private claim, but that has fallen away at the moment. I would ask that those monies can now be paid to satisfy the confiscation order, recognising, however, as I do, that there may be an application to revoke. Obviously that depends upon whether Mr Tyrell agrees and whether counsel and solicitors feel that they ought to do that. I would invite the court to put the £120,000 back in the receivership so they can get a confiscation order but give the other parties 28 days liberty to apply. If they make an application to re-vary the order then what I propose should remain suspended until the determination. I will pass up a draft. (Handed).
83. LADY JUSTICE HALLETT: So it is an order suspended for 28 days to give them a chance to make an application.
84. MR HALL: Exactly. In my submission, I would like to take something out of this on behalf of the RCPO. It is really their application to revoke and their application to vary.
85. LADY JUSTICE HALLETT: So it is a suspended variation.
86. MR HALL: Exactly.
87. LADY JUSTICE HALLETT: Mr Hardy?
88. MR HARDY: I have seen the order and I oppose it.
89. LADY JUSTICE HALLETT: Mr Hall, is there anything else you wish to say?
90. MR HALL: I have a request for costs. I do not seek costs against the Ministry of Justice, they were asked to intervene as an amicus. I do not seek costs against counsel. However, those instructing me were served with a schedule for costs by the Stokoe Partnership which they would have sought against the RCPO had they been successful. The total that they would have sought is £30,373, including £21,000 of counsel's fees. I would ask the court to award the RCPO their costs of the receivership variation, excluding the wasted costs which has been withdrawn, which I would ask the court to summarily assess as my fees, and I can explain how that is reached. The figure is £5,008.95 plus VAT, which is made up of preparation time at a fixed hourly rate, plus two hearing fees, one for this two day hearing and one for the short hearing in front of Gibbs J. I would invite the court to make the order at paragraph 3 and put into square brackets £5,008.95 plus VAT. One of the reasons I invite my Lord to make a summary assessment is that, as the court sees, the question of costs is a contentious one. I would like if possible to avoid the need for taxation.
91. LADY JUSTICE HALLETT: Thank you. Right, Mr Hardy.
92. MR HARDY: This is an application for variation. We have gone through but the first stage of that application because our position was, and has been throughout as my Lady knows, that if the order was invalid the application for variation could not possibly succeed. But there are other aspects to that application for variation which include the question of whether or not the order should be revoked ab initio, as it were. In which case, were an argument to that effect to succeed, again we would submit that the proper position would be that the application for variation could not then follow.
93. LADY JUSTICE HALLETT: Is there any application in writing to withdraw the representation order? To do that, were we not going to have to reconstitute as Court of Appeal Criminal Division?
94. MR HARDY: My Lady, this court would have to do that.
95. LADY JUSTICE HALLETT: There is currently no official application before the court, is there?
96. MR HARDY: There is a contingent application which Mr Knowles made.
97. LADY JUSTICE HALLETT: I think Mr Hall might say that it was last minute.
98. MR HARDY: It was set out in his skeleton argument.
99. LADY JUSTICE HALLETT: What I am not following -- this was before us an application to vary.
100. MR HARDY: Yes.
101. LADY JUSTICE HALLETT: The application to discharge has yet to be made officially.
102. MR HARDY: Yes.
103. LADY JUSTICE HALLETT: So what is wrong with this order? If there are grounds to apply for the withdrawal of the representation order, that application can be made in proper form before the proper court.
104. MR HARDY: Our respectful position, my Lady, is that this court is seized of this matter and the justice of this case is best determined by this court.
105. LADY JUSTICE HALLETT: You are not going to get the two of us back together, Mr Hardy, I am afraid. My Lord is off around the country.
106. MR HARDY: My Lady, we would be quite content, if I may respectfully say so, with great respect to both members of the constitution of this court, if one or the other dealt with it at the one or the other's convenience. We respectfully submit such are the complications of this case, so much has been the to-ing and fro-ing between respective parties and interveners, such has been the confusion --
107. LADY JUSTICE HALLETT: That is a different point as to whether or not you get me or do not get me. For the moment what I am not following is what is the harm? This order has a degree of certainty about it. If Mr Knowles and you feel that you have proper grounds to make a proper application to withdraw the representation order you can do that, in which case this does not take effect. The other effect would be that Mr Hall would get his costs because you have lost on the matter that we have heard over the last two days.
108. MR HARDY: We have not lost on the application to vary yet. If your Ladyship makes this order on a suspended basis then it does not take effect unless and until it is either not appealed in itself or -- may I indicate the other difficulty we have?
109. LADY JUSTICE HALLETT: Pause there. You cannot object to paying the costs of the last two days' hearing. Whether you call them the costs of the variation or whatever you call them, you have lost.
110. MR HARDY: With great respect, yes, I accept that, but this is not a case in which we say that costs should necessarily follow the event, given the event as it has actually turned out. Our position is, perhaps my Lady's reference to heat may have been partly in response to what might be regarded, given this court's judgment, which of course we respect, as a rather bullish approach by the Stokoe Partnership to the issue of costs as set out in the documents.
111. LADY JUSTICE HALLETT: There was heat on both sides, to be honest, Mr Hardy.
112. MR JUSTICE DAVID CLARKE: Heat came from some of the accusations made against your client. Heat was added to by some of the comments made from your side, particularly about the level of competence of the staff of the Court of Appeal Criminal Division.
113. MR HARDY: With great respect, during the course of argument that particular comment from that particular source was referred to by me quite deliberately. My Lady dealt with it by saying that, in particular, paragraph 1 on page 37 was not something that the court was necessarily going to follow.
114. LADY JUSTICE HALLETT: I think it was a little unkind, if I may say so, but we are not going over that. I am afraid I have to leave court in 10 minutes. I have a very important meeting.
115. MR HARDY: I am so sorry. Can I just say that that comment as such was made when the Legal Services Commission were batting for us rather than bowling for them, and before the Ministry of Justice intervened.
116. LADY JUSTICE HALLETT: We do not know how they have intervened, Mr Hardy. We still do not know what they think.
117. MR HARDY: They intervened. They refused the appeal, but Mr Hall has referred it to the video umpire and succeeded on that, so to speak.
118. LADY JUSTICE HALLETT: Just a second. Mr Hardy, my Lord and I are of this mind. We should deal with the question of costs of this last two days of hearing. The amount claimed is modest so, first of all, address us, if you would, on the principle in short form because, as I say, I have to leave this courtroom in 10 minutes.
119. MR HARDY: I shall be no more than three, my Lady. As my Lady and my Lord know, it is CPR 44 which deals with costs in civil proceedings. The jurisdiction to award costs is as follows. If your Ladyship will bear with me a moment, it is at 44.3 and the provision is that the court has discretion as to whether the costs are payable by one party to another, the amount of those costs and when they are to be paid. If the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order.
120. There is a discretion vested in the court. The rule is a general one, not always of application. We have found ourselves in a position where we have acted (1) in complete good faith; (2) have adopted an approach in correspondence with the responsible authorities which has led us to take the position that we have, in particular the correspondence with the Legal Services Commission which has been set out at length in the documentation; (3) we were supported by the Legal Services Commission up to and past the application in front of Gibbs J; (4) the Ministry of Justice no less has said before this court, albeit the court has rejected its representations, (i) that our interpretation was right, (ii) that the intention of the Regulations was to achieve the result for which we contended. Therefore, with great respect, my Lady, we say it is onerous and improper and oppressive for us to be visited with a costs order in the circumstances, and so far as these proceedings are concerned the proper order in the exercise of the court's discretion is that each of the parties should bear its own costs. That is our position.
121. LADY JUSTICE HALLETT: That is on the principle. No point, presumably, on what appears to be a relatively modest sum?
122. MR HARDY: A relatively modest sum, with great respect, is a relatively modest sum where a public authority is concerned. The Stokoe Partnership is essentially a publicly funded Legal Aid partnership. I accept that there may be some cynical thoughts harboured in certain quarters about the relative comparisons, but nevertheless the modesty of the sum sought does not affect the principle as to whether or not, in the exercise of its discretion, this court should make an order.
123. LADY JUSTICE HALLETT: I was not asking that, Mr Hardy. I was merely asking whether you had any objection to the amount. In other words, if we were against you on the principle.
124. MR HARDY: I am so sorry, my Lady.
125. LADY JUSTICE HALLETT: I think the heat is coming back.
126. MR HARDY: My Lady, we say the principle defeats the application. As the quantum, we have no submissions.
127. LADY JUSTICE HALLETT: Thank you. Mr Hall, the decision of the court is that your application for a variation will be adjourned to the Administrative Court. A single judge can deal with it there. You may have your costs in the sum of £5,008.95 plus VAT. In reaching that decision, much as we take Mr Hardy's remarks into consideration, as it seems to us this representation order was applied for, the Stokoe Partnership knew it was there and there were other ways the matter could have been dealt with. We do not see why the RCPO should pay the costs of the last two days, provided not a single penny of those costs relates to the wasted costs application.
128. MR HALL: Since the application has been adjourned, it would assist, although maybe I can do this with your associate or David Clarke J, to get a return date. If the court does not make one now we are going to go off until October/November.
129. LADY JUSTICE HALLETT: We have the Head of the Administrative Court with us. I have given an ex tempore judgment because I was told it was pressing because of the interest accruing. You heard the Head of the Administrative Court. It is not a guarantee. It is not an undertaking, Mr Hall, but the Head of the Office will do what she can to get you a date as soon as possible. Cutting the time down I am sure will assist your task.
130. MR HARDY: My Lady, I am so sorry. May I mention one other matter. I do so just to invite a response from my learned friend in open court. The issue an appeal arises but technically what has happened is that this court has not made a decision on the actual application to vary. What it has done is effectively, in our view, made a decision on a preliminary point bearing upon the application to vary. Thus, in that sense, the application to vary having not been determined, our present view is that no appeal lies. If I am wrong in that view, I would have about 21 days in which to approach the Court of Appeal itself. I do not technically need permission but there is strong authority suggesting that I should seek it. However, I do not propose to seek permission unless I am entitled to. Can I invite your Ladyship and my Lord to determine that issue in the light of any representations Mr Hall will make in the next 30 seconds.
131. LADY JUSTICE HALLETT: What is the application you are asking us to decide?
132. MR HARDY: I am inviting my Lady to give an indication as to whether -- there is no determination on the actual application. What has happened is this court has heard a preliminary issue bearing upon the application today. That, with respect, is one of the reasons why I challenge jurisdictionally the question of costs.
133. LADY JUSTICE HALLETT: Mr Hardy, what I suggest is that you and Mr Hall get together. I am sure the associate would welcome any assistance to the drafting of the order because on hearing an application for variation, what is the order. So if you could get together to decide and then run it past me when I return from vacation.
134. MR HARDY: I am grateful.
135. LADY JUSTICE HALLETT: I can always get hold of David Clarke J if I have to.
136. MR HARDY: May I make it clear, I do not want Mr Hall, in the event that the application to vary is decided against the Stokoe Partnership, to say "Well, you cannot appeal against the --"
137. MR JUSTICE DAVID CLARKE: Are you thinking of this court making an order now to the effect that what has happened is the determination of a preliminary issue which might then give you something to hang an appeal upon?
138. MR HARDY: With great respect, my Lord, we will abide by this court's determination of that preliminary issue in so far as it affects the outcome of the application to vary. If the application to vary is decided against us, we would seek to reserve our position and reserve the possibility of lodging an appeal against the decision in toto. Thus we seek guidance from the court now and an indication from Mr Hall as to whether he is going to say "You are out of time".
139. LADY JUSTICE HALLETT: You are not going to take any technical points, Mr Hall, are you? I know you want to encourage us to carry on and do the variation order but we have run out of time.
140. MR HALL: Mr Hardy could ask the court to make a declaration, if he needs something to hang an appeal on. That has not been sought. The court could be invited to make such an order. I will speak to Mr Hardy.
141. LADY JUSTICE HALLETT: As I say, as far as I am concerned, Mr Hardy, no time is running.
142. MR HARDY: I am grateful, my Lady.
143. LADY JUSTICE HALLETT: I do not know if you want the assistance of Mr Hyam, who now has his head down by the looks of it. If you want any assistance we will ensure the order is drawn up in proper form.
144. MR HARDY: I am so terribly sorry about the timing, may I deal with it in this way. If Mr Hall and I decide in effect what this court has done is to declare what the law is, and we seek to appeal against that declaration, may we have leave to submit an application on the papers to the constitution of this court for permission to appeal?
145. LADY JUSTICE HALLETT: You may.
146. MR HARDY: I am grateful.
147. LADY JUSTICE HALLETT: Thank you all very much.