England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 March 2016

1. LORD JUSTICE BURNETT: On 30 July 2015 Deputy District Judge Aujla, sitting at Waltham Forest Magistrates' Court, ruled that the defendant in the proceedings before him, Mohammed Azim Iqbal, had no case to answer in respect of a summons that on 16 May 2014 he failed to cause a person to stop smoking at 172 Forest Lane, London E7, contrary to section 8 of the Health Act 2006 ("the 2006 Act"). The prosecuting authority is the Mayor and Burgesses of the London Borough of Newham. This is the prosecutor's appeal by way of case stated against that decision.
2. The agreed background to the case is that the defendant, Mr Iqbal, is a director of a company which operates a commercial shisha premises known as the Safire Shisha Lounge at 172 Forest Lane. A shisha lounge enables customers to smoke flavoured tobacco using a hookah, which causes the smoke to pass through a water basin.
3. The law
4. Section 8 of the 2006 Act creates an offence of failing to prevent smoking in smoke-free premises. Smoke-free premises are defined by section 2 of the 2006 Act and include premises which are open to the public. These premises were open to the public. Subsections 4 and 5 of section 2 provide:

i. "(4) In any case, premises are smoke-free only in those areas which are enclosed or substantially enclosed.

ii. (5) The appropriate national authority may specify in regulations what 'enclosed' and 'substantially enclosed' mean."

5. Regulation 2 of the Smoke-free (Premises and Enforcement) Regulations 2006 ("the 2006 Regulations") provides those definitions:

i. "(2)For the purposes of section 2 of the Act, premises are substantially enclosed if they have a ceiling or roof but there is—

(b) an opening in the walls; or

(c) an aggregate area of openings in the walls

i. Which is less than half of the area of the walls, including other structures that serve the purpose of walls and constitute the perimeter of the premises.

ii. (3) In determining the area of an opening or an aggregate area of openings for the purposes of paragraph (2), no account is to be taken of openings in which there are doors, windows or other fittings that can be opened or shut.

iii. (4) In this regulation 'roof' includes any fixed or moveable structure or device which is capable of covering all or part of the premises as a roof, including, for example, a canvas awning."

6. Section 8 of the 2006 Act as material provides:

i. "8(1) It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking.

ii. ...

iii. (4) A person who fails to comply with the duty in subsection (1) ... commits an offence."

7. Subsection 5 then sets out a number of statutory defences.
8. The case on behalf of the prosecuting authority is that the relevant premises were substantially enclosed for the purposes of the 2006 Act by reference to the 2006 Regulations. In support of that contention, their principal Environmental Health Officer, Matthew Collins, gave evidence before the judge. He had visited the premises on 16 May 2014. He saw five people smoking through hookah pipes. He gave factual evidence about the state of the premises and the degree to which it was enclosed by walls or wall-like structures. His factual evidence about the state of the premises was illustrated by four photographs which he took during the course of his visit. It was the conclusion of the judge that the evidence given by Mr Collins, including the photographs he had produced, was such that Mr Iqbal had no case to answer "as I was not satisfied that on the evidence presented to me, I could be satisfied beyond reasonable doubt of his guilt". That quotation comes from paragraph 7 of the case stated.
9. The issue about which he was concerned was whether there was cogent and sufficient evidence to prove that the premises were substantially enclosed for the purposes of the 2006 Regulations. The appellants contend that the definition of "substantially enclosed premises" produces what Mr Moloney describes as a 50 per cent rule. It is summarised in that way in business guidance given to operators of shisha lounges by the London Borough of Newham:

i. "Water pipes can be smoked in the open air where there is no roof or ceiling above the smoker. They can also be smoked in some circumstances where there is a roof or ceiling, but only if at least half of the walls of the structure are permanently open; for example, two walls closed and two walls open, as long as 50 per cent of the total wall area is open."

10. Mr Collins put it differently, but to the same effect, in a letter sent to Mr Iqbal in the course of his investigation:

i. "Substantially enclosed premises are considered to be substantially enclosed if they have a ceiling or roof but have an opening in the walls which is less than half of the total area of the wall space."

11. In short, the appellant's contention is this: if any structure with a roof or ceiling has walls around some of its perimeter, but not all of its perimeter, so long as the area of the openings in the perimeter beneath the ceiling or roof is less than 50 per cent of the total, the premises count as "substantially enclosed" for the purposes of the statutory definition. By way of example, if a square marquee erected in the garden of licensed premises to enable people to smoke was enclosed on two sides but not on the other two, each would represent 50 per cent of the wall area and so the premises would not be substantially enclosed. The opening would not be less than 50 per cent. For the purpose of this illustration, I ignore the possibility of a corner pole being a "structure serving the purpose of" a wall within Regulation 2(2)(b). But if the enclosing material around the two sides intruded into any part of the third or fourth sides, however little, that would make the marquee substantially enclosed, submits Mr Moloney, because there would be an opening which was less than half of the total area of the perimeter of the premises.
12. Mr Wilmshurst on behalf of Mr Iqbal submits that the appellants' interpretation is wrong. His submission is that Regulation 2 of the 2006 Regulations requires an evaluation of the area of the walls, including other structures that serve the purpose of walls. It also requires an evaluation of the opening or openings and then a comparison between the two. Only if the latter is less than half the former is the definition of "substantially enclosed" satisfied.
13. To illustrate the difference between the two submissions, I return to the example I have already given. Suppose that the sides of the square marquee were each ten metres long. Two sides have canvas walls, but the canvas encroaches upon the otherwise open sides by only a metre. Assume also that the walls are three metres tall.
14. The area of the canvas walls on that basis is 22 metres x 3 metres = 66 metres squared. The area of the opening is 18 metres x 3 metres = 54 square metres. Thus the "opening in the walls" on Mr Wilmshurst's submission is not less than half the area of the walls. Half the area of the walls would be 33 metres squared. The opening is less than half the area available for walls but, submits Mr Wilmshurst,that is not the statutory test.
15. Whilst I agree that Regulation 2 on one reading is capable of bearing the interpretation advanced by Mr Wilmshurst I am unable to accept it. In my judgment it fails to give sufficient weight to the final words of Regulation 2(2)(b), namely "and constitute the perimeter of the premises" which govern what comes before.
16. Paragraph 2 of Regulation 2 is not concerned with the sort of fine calculation suggested on behalf of the respondent, Mr Iqbal. The opening or openings in the walls remain part of the perimeter of the premises for calculating whether less than half the overall area is open. That interpretation fits with the obvious vice at which the statutory provisions are directed, namely reducing the risk to health from passive smoking. It also fits, as it seems to me, with the aim of enabling straightforward and practical compliance by those operating premises to which the public have access and practical enforcement. This interpretation is supported by the explanatory note to the 2006 Regulations which states:

i. "Regulation 2 specifies the meanings of 'enclosed' and 'substantially enclosed' premises. By paragraph (1) premises are enclosed if they have a ceiling or roof and, except for doors, windows and passageways, they are wholly enclosed either permanently or temporarily. By paragraphs (2) and (3) premises are substantially enclosed if they have a ceiling or roof and less than half of their perimeter consists of openings in the walls, other than windows, doors or openings which can be shut."

17. The explanatory note is a proper aid to construction, despite its not being part of the Regulations. For our purposes today it is sufficient to refer to the text of Bennion on Statutory Interpretation Sixth Edition at pages 239 and 592 in support of that proposition.
18. In my judgment, it follows that the evidence given by Mr Collins was directed at least to the right question. It appears that the judge approached the evidence on the same basis. The suggestion that the judge misunderstood the correct interpretation of the Regulations formed no part of the application to him to state a case, nor any part of the appeal before us.
19. The case stated
20. Within the case stated, the judge summarised the prosecution evidence. Mr Collins had visited the premises on an earlier occasion in March. There had been changes made to the structure of the part of the premises which was used as a shisha lounge between his visits in March and May. There were photographs taken by Mr Collins in the course of his March visit, but the judge did not find the earlier photographs of assistance because of the intervening changes. The judge referred to the four photographs taken by Mr Collins on 16 May. He continued:

i. "Mr Wilmshurst cross-examined Mr Collins at length. It was put to him that the only evidence that the prosecution had provided were the four photographs which were not clear. It was repeatedly put to him that the photographs were not clear enough for an assessment to be made as to the size of the gaps in the enclosures of the premises so as to decide whether the premises were sufficiently enclosed. He was asked about the gaps in the roof coverings. He was asked about the photographs on page 13 of the respondent's bundle, in particular photographs numbered 2. It became clear to me that, in addition to the four photographs ... the evidence against the respondent was only Mr Collins's oral testimony which was based on his observation of the premises. It also became clear that no measurements of the premises to clearly identify any openings were carried out and there was no video evidence to show the state of the premises on the relevant date."

21. Unfortunately, the evidence given by Mr Collins is not further particularised or described.
22. The judge continued by explaining his ruling at the end of the prosecution case. He had regard to the four photographs and to Mr Collins' evidence. He noted that Mr Collins' evidence was evidence of fact and not that of an expert. He emphasised that he had no doubts about Mr Collins' integrity, but the question was whether his evidence, taken with the photographs, was sufficient to enable the prosecution to establish that the premises were "substantially enclosed". He again noted that there were no plans, video evidence, or measurements. He considered that the material was insufficient, and said this:

i. "18. ... Whilst I clearly stated that I had no doubts about his integrity and experience, the issue before me was whether or not I could place sufficient reliance on his oral evidence coupled with the four not sufficiently clear photographs taken at the premises and come to the conclusion, as the prosecution were inviting me, that the premises were substantially enclosed in accordance with the Regulations. There were no plans or other drawings of the premises identifying the walls and other enclosures which allegedly rendered the premises sufficiently enclosed. There was no expert report, video evidence or measurements of any sort which could have assisted me in my task.

ii. 19. It appears to me that there was insufficient material evidence before me to make out the prosecution case and that I was left with drawing significant inferences from the evidence presented which I concluded would, in the absence of other evidence, be unfair to the respondent and against the interests of justice. I was concerned with identifying the state and nature of the premises and assessing whether, in mathematical terms to a certain extent, the openings in the walls or an aggregate area of openings in the walls was less than half of the area of the walls.

iii. 20. I came to the conclusion that, whilst there was some evidence, it was however not sufficient for me to be satisfied, beyond a reasonable doubt, that the prosecution had made out their case, if I allowed the trial to proceed further. I therefore pronounced my decision, having made my concerns and the apparent gaps in the prosecution case abundantly clear, that I was not satisfied there was a case for the respondent to answer."

23. We have been told that the evidence of Mr Collins took the whole of the morning of the hearing, and that the judge returned after lunch to continue the hearing. The ruling that I have referred to was delivered as soon as the judge returned to court. It was at this point, that is to say after the ruling had been apparently given, that Mr Moloney, who was representing the prosecuting authority then as now, asked the judge whether he would be willing to hear submissions on the point before finally making up his mind. Two of the questions for the opinion of this court concern the unfortunate procedural failure in proceeding to a ruling before giving the parties an opportunity to make any submissions on the point in issue. Those questions are:

i. "(c) Was it proper for me to have formed a view on dismissal at half time without inviting submissions to be made by prosecuting counsel?

ii. (e) If the answer to the question in (c) above was 'No', was the error on my part remedied when I revisited my decision, heard submissions from both counsel, and then gave the decision, maintaining my earlier decision?"

24. There was no subparagraph (d) in the questions identified by the judge.
25. Having received the request to hear submissions from Mr Moloney, the judge heard from him first. The summary of Mr Moloney's submissions are set out in paragraph 21 of the case stated. The points made might be distilled in this way. First, the evidence that had been adduced comprised that of Mr Collins' observations, as well as the photographs. Secondly, that one of the photographs showed that there was a wall on the left hand side along its whole length and that there was a shutter across the end of the premises. Thirdly, all that was needed "to go over the 50 per cent rule" was something amounting to a wall on either of the other two sides; and fourthly, that there was a door which was capable of closing in the shutter, which nonetheless would count as a wall.
26. Mr Moloney is recorded as emphasising that the photographs were merely illustrative of the evidence given by Mr Collins. He accepted that measurements might be needed if the openings came close to representing 50 per cent of the perimeter, but it was the prosecution case that this was not such an instance. The judge did not accept Mr Moloney's interpretation of the evidence he had heard, as he explained in paragraph 22 of the case stated.
27. Mr Wilmshurst then made submissions in reply. They are referred to in the briefest way in the case stated and suggest that he submitted that had the judge not raised the matter himself, he would have made a half time submission.
28. Before returning to the substance of the appeal, I shall deal briefly with the procedural matter. It is entirely natural for a judge hearing a criminal case to form a view, as the prosecution case develops, about whether the evidence is sufficient to call for a response from the defendant. No ruling should be given before hearing submissions. That said, it is also entirely appropriate for a judge, having formed a provisional view adverse to the prosecution, to indicate that he is minded to stop the case but invite submissions. Those submissions must be considered with an open mind. Ordinarily, it would be for the defence to make their submissions first in support of the contention that the case should be stopped at half time. One recognises that if a judge has formed a provisional view, those submissions might be relatively short. But the prosecution must be given a fair opportunity to persuade the judge away from the provisional view. That did not happen in this case before the judge gave his ruling. That was irregular.
29. However, having realised his error, the judge invited the prosecution to make submissions, and, as the case stated shows, he considered those submissions but adhered to his view that the evidence of Mr Collins, taken with the photographs, was insufficient to establish that the premises were "substantially enclosed". The way in which the questions on this topic are asked in the case stated demonstrates that the judge realised that he had made an error.
30. Mr Moloney submits that in the context of this case the error is sufficiently serious in itself to lead to the conclusion that the appeal should be allowed. He points to three features, which may be variations upon a single theme. First, he submits that the judge plainly entertained a strong view at the end of the prosecution case. Secondly, therefore, that there was never a real opportunity for the prosecution to dissuade him away from that view; and thirdly, that the judge would have been under pressure, albeit perhaps unconscious pressure, to adhere to his first view because the defendant might feel it unfair if he did not.
31. In my judgment, the question is whether the subsequent submissions were entertained with a genuinely open mind. If the judge entertained Mr Moloney's submissions with a genuinely open mind, the procedural error that he made would not be material. There is no real suggestion, and certainly nothing that arises from the case stated, which could support the proposition that when the judge invited Mr Moloney to make his submissions, he was doing no more than going through the motions. What happened procedurally was unfortunate -- indeed, it was wrong -- but in the context of this case, it does not in my judgment provide a basis for allowing the prosecutor's appeal.
32. Submissions on the main issue
33. Mr Moloney describes the appellant's position as "simple". He submits that the oral evidence that Mr Collins gave at trial was capable of being relied upon to prove that the premises were substantially enclosed. The basis of the argument is that Mr Collins gave evidence that the position was entirely clear; that is, this was not a case where the openings amounted to even approaching half of the perimeter. Mr Collins, he submits, gave evidence that very obviously demonstrated that the openings did not.
34. Mr Moloney makes much, and understandably so, of the fact that the judge has omitted from the case stated any proper description of the evidence given by Mr Collins. We are reminded that after the draft case stated was produced by the Magistrates' Court, the appellant took advantage of the procedure found in Rule 35.3(6) of the Criminal Procedure Rules to invite the court to amend its case. For the most part, the suggested amendments were not taken up by the judge. It would not be appropriate to go through all of the suggested amendments, but in part they were designed to illuminate for the assistance of this court more of the substance of Mr Collins's evidence than in fact found its way into the case stated.
35. Mr Wilmshurst submits that the evidence of Mr Collins was far from clear. Both counsel, in the course of their written and oral submissions, have taken us to evidential material extraneous to the case stated to support their contentions one way or the other that the judge was right or wrong. Both counsels have provided chapter and verse -- although I may be forgiven for observing that they appeared to be different chapters and different verses on many occasions -- relating to the detail of Mr Collins's evidence. In particular Mr Wilmshurst, by reference to the four photographs which are referred to in the case statement, sought to demonstrate that one of the issues that occupied a good deal of time during the cross-examination of Mr Collins was that, to a considerable extent, these premises were unroofed and had no ceiling. The implications of the premises being substantially unroofed finds no mention in the case stated at all. At two points, the judge refers to the roof. He noted that Mr Wilmshurst cross-examined on the state of the roof and he also noted that Mr Moloney said that the "roof was neither here nor there".
36. The contrasting interpretations of the 2006 Regulations focussed on the correct approach to calculating the area of the perimeter walls. They did not consider the implications of a structure being partly covered by a roof or ceiling and partly open to the sky, about which I express no view.
37. discussion
38. The approach adopted by both parties in this appeal, for reasons which are entirely understandable, given the deficiencies in the case provided by the Magistrates' Court, is not an appropriate one. An appeal by way of case stated is not an opportunity for the parties to redeploy all their evidence with a view to inviting this court to form a primary view on the facts. A case stated is designed to enable the High Court to determine whether the court below erred. As is stated in the practice direction 52E, the position is as follows:

i. "1.1. An appeal by case stated is an appeal to a superior court on the basis of a set of facts specified by the inferior court for the superior court to make a decision on the application of the law to those facts."

39. It is true that section 28A(2) of the Senior Courts Act 1981 provides this court with power to cause the case stated to be sent back for amendment. There has been no application for that to happen, and in any event the moment has long since passed. If an appellant by way of case stated seeks to persuade this court to send the case back, there must be an application to that effect in advance of the hearing of the appeal. I should emphasise that even were such an application to have been made today, it would have been disproportionate in the circumstances of this case to exercise the power.
40. I have referred to the unsuccessful attempts of the appellant to persuade the court below to amend the case stated. Part 35 of the Criminal Procedure Rules generally provides that a case stated should not include an account of the evidence received by a court: see Rule 35.3(5). But there is an exception provided by Rule 35.3(4)(d) where the question is whether there was sufficient evidence upon which the court could reasonably reach a finding of fact. That exception would apply to cases in which the question was whether there was sufficient evidence to require an answer from the defendant.
41. In this case the Magistrates' Court should have set out much more of Mr Collins's evidence, as it was invited to do by the appellant. The result is that we are constrained to rely upon the content of the case stated, which includes the four photographs to which the judge refers repeatedly. The judge accepted that there was some evidence to support the contention that the premises were substantially enclosed. It follows that in deciding that there was no case to answer, the judge relied upon the second limb of R v Galbraith [1981] 1 WLR 1039. His finding essentially was that the evidence was too vague to support the case that the premises were, within the statutory definition, substantially enclosed.
42. The case describes Mr Collins as being cross-examined at length, as I have noted. It became a little clearer in the course of Mr Wilmshurst's submissions why that cross-examination was so long. It would appear that the primary issue upon which he was cross-examined was the extent to which the premises were enclosed within the meaning of the Regulations. The more we heard in argument, the more opaque, as it seemed to me, the position became. The judge formed his view, having heard the evidence and considered the photographs. He considered that the photographs were unclear. On that it may be possible for all to agree, because it was only with the considerable assistance of both Mr Moloney and Mr Wilmshurst that it became even remotely clear what the photographs were showing.
43. The questions for the opinion of the High Court on the substance of the matter, ask in various ways whether the judge was entitled to come to the conclusion he did at the end of the prosecution case. Mr Moloney, in the course of his helpful submissions suggested that is the only question of substance.
44. However, before returning to that question, I record a subsidiary argument that was advanced this morning by Mr Moloney. He submits that when one looks at the case stated, it is proper to draw the conclusion that the judge misunderstood the second limb of Galbraith and was in essence approaching the matter at half time as if he were determining guilt or innocence at the end of a full trial.
45. I reject that submission. In the course of the case stated not only did the judge refer to Galbraith -- and I observe that it would be a strange thing indeed if a judge trying a criminal case was unfamiliar with its terms -- but also, in paragraph 7 of the case stated, to which I have already adverted, identified precisely and correctly the test that he had to apply.
46. Our task, as I have noted, is to consider the evidence as set out in the case stated, including the photographs to which I have referred, and then ask ourselves whether the decision arrived at by the judge was one to which he was entitled on that evidence.
47. Despite the submissions of Mr Moloney, I am unpersuaded on the basis of what is set out in the case stated that the judge was wrong. The matter was obviously one of some complexity, as became clear in the course of submissions. The evaluation of a witness and his evidence is at the heart of the function of the judge in these circumstances. Although it is impossible to know what view this court might have taken if the evidence were more fully set out, my conclusion is that, on the evidence identified in the case stated, there is no proper basis for disagreeing with the conclusion arrived at by the judge.
48. There is one aspect of the matter upon which I would pass further comment. The judge observed in the course of the case stated, on more than one occasion, that Mr Collins did not produce plans, measurements or video evidence of what he had seen. Understandably, the appellants have been concerned that it should not be understood that in cases involving prosecutions under the 2006 Act it should always be thought necessary to produce technical evidence of that sort. Mr Moloney submits that such evidence is not invariably a necessity.
49. I accept that submission. The question in all cases is whether the evidence supports the contention, whether it be at half time or after the defendant's case, applying the right test, that the premises concerned were enclosed or substantially enclosed for the purposes of the statutory scheme. How that issue is proved is a matter for the prosecuting authority. There is no need necessarily to produce technical evidence of the sort adverted to by the judge and the absence of which weighed with him in this case.
50. But in all the circumstances, I would dismiss this appeal.
51. MR JUSTICE CRANSTON: I agree.
52. LORD JUSTICE BURNETT: Are there any subsidiary matters?
53. MR WILMSHURST: Yes, my Lord. My client would apply for costs out of central funds.
54. LORD JUSTICE BURNETT: Right. Let us just ... can you help us with the statutory provisions, because they seem forever to be changing.
55. MR WILMSHURST: Yes, my Lord, I think it's in the relevant costs practice direction, which is very long, I have an electronic copy, I think it comes out of the Prosecution of Offenders Act.
56. LORD JUSTICE BURNETT: It certainly would.
57. MR WILMSHURST: It is very clearly set out that my Lord has a discretion in criminal matters to award costs out of central funds.
58. LORD JUSTICE BURNETT: Central funds. So your client is privately paying for this?
59. MR WILMSHURST: He is, yes, and I understand that the court can either fix the amount or leave it to the relevant central authority to fix the amount.
60. LORD JUSTICE BURNETT: Do you have a costs schedule?
61. MR WILMSHURST: I do have a costs schedule, my Lord.
62. LORD JUSTICE BURNETT: Just before we look at it, Mr Moloney, is it right that this is one of those cases where an order can be made from central funds?
63. MR MALONEY: Had I been successful in the appeal, I would have made the same application, my Lord, so I understand yes.
64. LORD JUSTICE BURNETT: Yes, all right. Well let's have a look at the schedule. (Handed)
65. MR JUSTICE CRANSTON: What is the basis of the exercise of the discretion, Mr Wilmshurst?
66. MR WILMSHURST: That's not set out in the practice direction, my Lord. All that is stated is either that the court can assess the costs, one would have thought under common law principles of what might have been thought proportionate or reasonable, or can leave it to the central authority to assess these costs.
67. LORD JUSTICE BURNETT: Can we just have a look at the practice direction. (Pause)
68. Mr Wilmshurst, what we're going to do is this: we would like to be satisfied that your client is entitled to have his costs from central funds.
69. MR WILMSHURST: Yes.
70. LORD JUSTICE BURNETT: And need to have the statutory provision identified.
71. MR WILMSHURST: Yes.
72. LORD JUSTICE BURNETT: What we are going to invite you to do is to put in during the course of today, if you would, a short note identifying the statutory provision and the basis upon which you are seeking the costs. We can see the way the schedule is put together and we can deal with that ourselves.
73. MR WILMSHURST: Yes.
74. LORD JUSTICE BURNETT: But then we will let you know our answer in writing and include the answer in the order of the court, which will be drawn.
75. MR WILMSHURST: Yes.
76. LORD JUSTICE BURNETT: Because I think it could be quite a painful exercise for you to be hunting for it as we speak now.
77. MR WILMSHURST: I think it's fairly clear, my Lord, I'm sorry that I don't have a copy of it, I thought it was one of those usual orders the court might make, but it's a fairly clear provision.
78. LORD JUSTICE BURNETT: All right. Yes, thank you. We'd be grateful to have it nonetheless.
79. MR WILMSHURST: And shall I have my clerk bring hard copies over?
80. LORD JUSTICE BURNETT: No, if you could just summarise it in a short email which can be sent to my clerk and to my Lord's clerk, I'm sure you'll be given the email addresses.
81. MR WILMSHURST: Yes, thank you.
82. LORD JUSTICE BURNETT: All right?
83. Mr Moloney, this isn't an application against the London Borough of Newham.
84. MR MALONEY: No.
85. LORD JUSTICE BURNETT: But is there anything that you would wish to draw our attention to as a quasi amicus on the figures? They look relatively reasonable, if I may say so, at first blush.
86. MR MALONEY: Yes, my Lord, the only way I can assist I think is by comparison to hand up the schedule of costs of the prosecuting authority.
87. LORD JUSTICE BURNETT: What would the total have been?
88. MR MALONEY: The total of the prosecuting authority is £1,827, my Lord.
89. MR JUSTICE CRANSTON: £1,000 cheaper.
90. LORD JUSTICE BURNETT: £1,000 cheaper. All right, thank you.
91. MR WILMSHURST: My Lord, there is one other matter. At the conclusion of the case below, I raised the matter of all of the substantial amount of shisha and shisha equipment that was seized by Mr Collins. The learned deputy district judge put it like this: he said, "What right do they have to keep the material", and in court it was suggested that there would be no trouble about returning this material to my client, however there was then an about face from the Council as soon as they launched this application, so they still have all of my client's material, there has been a great deal of difficulty getting it back from them. I wonder if there's any indication --
92. LORD JUSTICE BURNETT: Mr Wilmshurst, that's not a matter that's before us. One can understand -- I'm not going to invite Mr Moloney to make any observations on this -- but one can understand why there might have been some caution about returning evidence to you if there was the possibility of a retrial, but that has now gone and I am confident that Mr Moloney will convey back to those who instruct him your straightforward request for the return of material that was seized as evidence in connection with this prosecution and which is now not needed for a prosecution.
93. MR WILMSHURST: Yes, thank you, my Lord.
94. LORD JUSTICE BURNETT: Yes, thank you very much indeed.