R v David Andrew Howell and Eamon Francis Harris and Frederick May
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANCE,Mr Justice Mitchell,MR JUSTICE MITCHELL,LORD JUSTICE JUDGE,Lord Justice Judge |
| Judgment Date | 28 February 2003 |
| Neutral Citation | [2002] EWCA Crim 2980,[2002] EWCA Crim 2861,[2003] EWCA Crim 486,[2003] EWCA Crim 25 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2001 01050 W2 2001 01052 W2,No: 2001/1050/W2, 2001/1051/W2, 2001/1052/W2 |
| Date | 28 February 2003 |
[2002] EWCA Crim 2861
Lord Justice Mance
Mr Justice Sachs
Mr Justice Mitchell
No: 2001/1050/W2, 2001/1051/W2, 2001/1052/W2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MR M WOOD QC appeared on behalf of Howell
MR A ARLIDGE QC and MR C CAMPBELL-CLYNE appeared on behalf of Harris
MR M CHAWLA QC appeared on behalf of May
MR J LAIDLAW AND MR E BROWN appeared on behalf of the CROWN
DIRECTIONS
It is unnecessary for us to go much into the background of this matter, suffice it to say that it is a long one. The matter is still at the stage of applications for permission to appeal and the reason for that relates in very large measure to disclosure. This is to some extent accepted by the Crown must be made and is to some extent in issue. It has developed as a material matter on this application as a result of another trial which has been adjourned from time to time. The court now has before it applications which are nominally not merely for disclosure and for PII directions but primarily, as it has emerged, to adjourn the presently fixed date for the hearing of the applications for permission to appeal. All three applicants join in applying for an adjournment and the Crown realistically does not really resist it. The Crown, in some measure at least, accepts that there is further material for disclosure which, if it had been available, and we understand that in large measure at least it did not exist at the time of the original trial, would have been disclosable. The Crown in saying that in no way accepts that it would have actually been useable or that it has any impact on the safety of the jury's convictions, but nonetheless the Crown accepts its relevance for disclosure. It relates first and foremost to the circumstances in which a former Police Officer, Garner, came to give evidence incriminating the applicants Howell and May on 9th December 1997 and then subsequently to change his account on 26th February 1998 to the extent of also incriminating the third applicant Harris. It is perhaps surprising that this material was not the subject of greater focus at the original trial, but that is not a matter which we can judge, or need to. What is accepted now is that it has come very much into the forefront of the picture and that there is a good deal of new material arising out of complaints made against the interviewing officer DCI Jarratt who saw Garner on 9th December 1997. Those complaints are still unresolved and are being investigated by the police. It seems to us of the greatest urgency that they should be resolved at least to the extent that the Crown should decide what material is disclosable as a result of them in the present proceedings and the Crown we think accepts that, although the disclosure has not yet been made. It was envisaged that it would be made, as we understand it, this month, but it is now said that it can be made in the near future and it certainly should be.
The conclusion we have come to is that the hearing dates for the applications, which were to be next week, have to be broken and that the matter has to be refixed. However, today's proceedings have, we think, underlined the need for a greater element of structure to the timetable leading up to the final hearings and the orders we propose to make are with that aim in mind.
Firstly, the Crown should make the disclosure which it accepts it must make of the material relating to DCI Jarratt and that should be made by 6th December 2002. If it has not been made then, that will be reported to us because we propose that on 6th December there should be a further listing of this matter, if only for half an hour, in order to provide the court with an update and if there is any question of the disclosure not having been completed by then we would expect the police officer, a senior police officer in charge of the investigation, to come and assist us as to the problems. That is the first direction that we make.
With regard to the further listing of the matter, there is a range of other disclosures sought, as we have indicated. It seems to us at the moment very unsatisfactory and diffusely defined. There are three separate requests, one from each applicant. Internally the requests, certainly the Harris disclosure request, seem repetitive and in order illogical, but they all overlap. Clearly the three applicants should coordinate their requests and we so direct. We think that they should present a coordinated request to the Crown and that should be possible within a matter of days—we will hear counsel as to the precise number of days—but certainly not longer than a week. That will no doubt assist the Crown's consideration of the matter and its response. The Crown should in turn respond within a period on which we will hear counsel, but a period which is sufficient to allow the matter, if necessary, to be mentioned again on 6th December when we reconstitute, as I said hopefully very briefly.
Friday 6th December will not be an occasion when matters of disclosure can be resolved, nor can the further matters of public interest immunity which the Crown has told us will arise then be resolved. They need anyway to be resolved by a constitution of the court which will be hearing the appeal. That, counsel have suggested, should be in one of the early months of next year. At present what we propose is that the constitution of the court sitting in January should hear the matter. There will be reading days assigned on 14th and 15th January. The 16th January can be listed for the PII hearing and 17th January can be listed for the resolution of other matters. If that is not an appropriate order then no doubt counsel can address us, and obviously the court which is involved would anyway have a discretion as to how it deals with the matter within that four day period.
As regards the actual hearing date for the appeal, what we direct is that within 72 hours from today all parties should agree a date with the Registrar, who has kindly attended in court, and that date should be for the hearing of the applications for leave. The Crown will be involved at that stage and the Crown should also attend on the hearing of the applications for leave and skeletons should be served and exchanged accordingly. The possible dates include the last week in January for the hearing of the applications. If leave to appeal is granted it may well be possible to proceed to the hearing of the appeals. That is, of course, again a matter for the court and it is a matter on which any party will have the right to make submissions at the time. We are not in any way committing the court but the parties should be prepared for that possibility.
We have been asked to consider making remuneration orders under Regulation 10 of the Criminal Defence Service General No 2 Regulations 2001, set out in Archbold at 6–161 and we do so as follows: In respect of the applicants Howell and May we make representation orders for solicitors and leading counsel; and in respect of Harris, in view of the submissions made regarding the extra work and the dominant role which Harris has been pursuing in relation to, for example, disclosure, we accept the submission that there should be a representation order for two counsel. In his case we understand that the solicitors are already on legal aid so there is no need for a special order there. So far as lies within our power, and we conceive that it does, we consider that that should cover the work done to date. Does that cover the points?
Would you hear me, please, before you fix the date of 6th December? I am sorry but I do not think Mr Arlidge made it clear about the timing in respect of the Jarratt interviews, he is not due to be interviewed until 10th December, so we are bound to fail to meet the court's first order. I do not ask for very much time but may I ask please for the Friday after that week, which would be 13th December?
Yes. Two of the members of the court cannot be present then. I think Mr Justice Mitchell can, but it will have to take account of that. I am sorry we misunderstood you in our discussions.
I should have made it clear to the court. I obviously ask at for time.
Do forgive me for interrupting you. You will know on the 6th where the land lies. At the moment there have been so many delays. This is four days before the date of interview. They will have an idea as to how long it will take to interview, will they not?
Yes, they will, my Lord.
And by the 13th I do not suppose there will be much (inaudible), will there, three days later?
We will not be able to make any disclosure by the 13th of the transcripts of interviews.
The idea of this date is to make sure that the timetable is on track and not derailed at the first set of points. You will know that on the 6th, will you not?
I will, but thus far and certainly the Old Bailey moved forward on the basis that no disclosure would be made until interviews had been completed.
Yes.
And of course if the hope of the court is that we would have made at least some disclosure by the 6th that will not be the position.
As I indicated, two members of the court cannot be here but Mr Justice Mitchell would certainly be a member of any constitution. What about Monday 16th?
My Lord, certainly. I am very keen we do make some disclosure and the process has begun.
We all feel it is rather important to keep an...
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