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, WC2A 2LL
		03/03/2009

Lord Justice Toulson and Mr Justice Forbes:

1. At the directions hearing on 18 November 2008 Mr Haw sought a large number of directions. His submissions took up the whole of the time which had been allocated for the hearing of the application and did not allow us to hear submissions from Mr Clemens on behalf of the second defendant ("the Commissioner"). We asked him to respond in writing to the points raised by Mr Haw and for Mr Haw to put any reply in writing. This has been done. Owing to a mistake in the office for which we apologise, it took some time for us to receive these documents. These directions are therefore being given much later than we had hoped. We have discussed the various issues and set out below, as succinctly as possible, the decisions which we have reached on each of the points raised.

1. Transcript of the hearing on 18 November 2008

We directed at the hearing that this should be provided.

2. Time for the Commissioner to produce bundle of material relevant to the issues to be determined at the full hearing

The Commissioner is to complete and serve the bundle by 31 March 2009

3. Provision for the Claimant (and Interested Party) to object to admissibility of the material and to provide rebuttal evidence

Any objection to the material, or any rebuttal material, is to be lodged with the court and served on the Commissioner by 28 April 2009.

4. Fixture of a further directions hearing

A further directions hearing is to be fixed on the first available day after 12 May 2009, with an allocated hearing time of 2 hours.

5. Video of the property seizure on 23 May 2006

This is to be served in DVD format.

6. Information as to who opened the container on 4 July 2007 and why

The commissioner has provided this information in Mr Clemens' responses dated 26 November 2008 and therefore there is no need for us to give a direction about it.

7. Disclosure of legal advice to DAC Allison and any officer regarding the legal basis for the seizure.

The Commissioner objects to disclosing such material on the basis of legal professional privilege. He is entitled so to object and we make no order for disclosure of this material.

8. Minutes of all briefing and debriefing

The Commissioner has undertaken to disclose all briefing notes. There is therefore no need for us to give a direction in relation to them. At the time of Mr Clemens' response it was believed that there was no debriefing note. We infer from the terms of the response that the enquires about this were not yet complete. If there was a debriefing note, it should be disclosed.

9. Communications between No 10 Downing Street and the Commissioner, DAC Allison and subordinate officers

It is asserted by Mr Haw that there were such communications and he asks that the matter be investigated by "an impartial person". Under our system of civil litigation, responsibility for proper disclosure is in the hands of the parties (subject to any order of the court). We have no reason to disbelieve the statement that there were no such communications, and we made no direction under this head.

10. Tape recordings of any (telephone) communications between No 10 and the Commissioner/his officers

This is closely related to the request under 9. We have no basis for believing that there was any relevant conservation between the Commissioner and 10 Downing Street and we make no direction under this head.

11. CAD (Computer Aided Dispatch) reports/radio communications and press briefings on and following 23 May 2006.

Mr Clemens' note stated that enquires are ongoing as to the volume of material that there is. We are sceptical that disclosure of such material will be necessary in order to do justice between the parties but this is a matter best left for any further argument on the adjourned directions hearing.

12. Full transcripts of the hearing before HH Judge Rivlin QC at Southwark Crown Court in October 2007 and tapes of the hearing

We direct that a full transcript of the hearing be obtained. This will obviously be prepared from the tapes, but it would be unusual to order in addition the production of the tapes themselves and we see no cause to do so.

13. Transcript of the full hearing before Lord Phillips of Worth Maltravers, CJ [2007] EWHC 1931 (Admin)

We are un-persuaded that a full transcript of that hearing is necessary. Mr Haw says that it will show that the court side-stepped the issue as to the legality of the seizure. If that is so, a transcript of the proceedings is not going to help in relation to that issue.

14. Direction that Pill LJ should give reasons for refusing to grant interim relief and transcript of the hearing before Pill LJ and King J on 15 July

The first part of the proposed direction is beyond the court's power and wholly inappropriate. Nor are we persuaded that there is sufficient reason to order a transcript. Mr Haw complains that the court gave little or no explanation for its refusal to grant interim relief. Mr Clemens agrees that the presiding judge said words to the effect "I am not prepared to grant interim relief. It must be decided upon hearing the full merits. I am not prepared to say more than that." On that basis it would be pointless to order a transcript.

15. An interim order for the return of property to Parliament Square forthwith

We are not prepared to make this order. Whatever the legal position at the time of the original seizure, the return of the property to Mr Haw at Parliament Square would place him in breach of the law, because under the revised conditions his demonstration would be unauthorised. It would be wrong for the court to make an order, compliance with which by the police would cause Mr Haw to be in breach of the law.

The Commissioner has offered to return the property to Mr Haw elsewhere, and as a matter of discretion it would in our judgment be inappropriate therefore to make an interim order for the return of the property.

16. Where the property is and the contact details for who has it

The Commissioner has stated that the property is being held at a police storage warehouse in Charlton. There is no need for us to order that further details be given at this stage. If Mr Haw wishes to have the return of the property at some place other than Parliament Square, it will be a simple matter to arrange.

17. What insurance cover is in place

Questions of this kind go far beyond what is necessary for the proper disposal of the outstanding hearing, but the Commissioner has provided information about its insurance position.

18. Custody record for 23 May 2006

The Commissioner has agreed to produce this and so there is no need for us to consider whether it would be appropriate to order its production.

19. Order that the evidence of DAC Allison be excluded or that he should be available for cross-examination

This direction was sought by the interested party but it is supported an adopted by Mr Haw in his submissions dated 16 December 2008. We are un-persuaded that we should rule the evidence inadmissible. It was served within the permitted period after Mr Haw was granted leave to apply for judicial review on 15 July 2008. The evidence cannot be said to be irrelevant.

The interested party argued that DAC Allison should be available for cross-examination because she wished to challenge his claimed belief on the night of 26 May 2006 that the seizure was lawful.

She should be entitled to cross-examine him on that issue. At present we do not see that there would be a need for cross-examination of him on any other issue, and it would be wrong to use him merely as a sounding board for putting arguments, but the scope of any permissible cross-examination will ultimately be a matter for the court hearing the full application.