R v Lord Chancellor, ex parte Maxwell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY |
| Judgment Date | 19 June 1996 |
| Judgment citation (vLex) | [1996] EWHC J0619-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO-957-96 |
| Date | 19 June 1996 |
[1996] EWHC J0619-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
The Strand
Lord Justice Henry and
Mr Justice Sachs
CO-957-96
MR A JONES QC & MISS L SAFFIAN (Instructed by Messrs Peters & Peters, London W1R) appeared on behalf of the Applicant.
MR S RICHARDS (Instructed by the Treasury Solicitor) appeared on behalf of the First Respondent (The Lord Chancellor).
MR N PLEMING QC & MR M LUCRAFT (Instructed by the Treasury Solicitor) appeared on behalf of the Second Respondent (The Serious Fraud Office).
Wednesday 19th June 1996
This is the judgment of the Court. The applicant, Mr Kevin Maxwell, challenges the decision of the Lord Chancellor not to request (under Section 9 of the Supreme Court Act, 1981) Lord Justice Phillips to act as a judge of the Crown Court for the purpose of presiding over the disposal of the remaining stages of the criminal case against Mr Maxwell and others (Indictment No T 930798). It seems to have come as some surprise to the profession that an administrative discretion relating to the deployment of judicial manpower could be the subject of such a challenge, and to that point we will return. But the first point to make clear is that no comparison or evaluation of the judicial qualities of the two judges is involved in this challenge and its resolution.
The matter arises in this way. In June 1992, the applicant Mr Maxwell was arrested and charged with fraud. In July 1993, the ten charges that had been preferred against him and his co-accused were transferred to the Central Criminal Court for trial under the serious fraud regime established by the Criminal Justice Act, 1987. Mr Justice Phillips (as he then was) was appointed the trial judge. On 19th January 1994 Indictment No T930798 was preferred and signed, containing ten counts against Kevin Maxwell and five co-defendants. The trial judge ordered a preparatory hearing in relation to those counts under Section 7(1) of the 1987 Act. On the 31st January 1994 the accused were arraigned, and all pleaded not guilty to all offences. The significance of arraignment under the serious fraud regime is that it marks the start of the trial (see Section 8 of the 1987 Act).
The judge's first act in the preparatory hearing was to order severance of the counts in the indictment. To achieve manageability of the case before a jury, he restricted the first jury trial to Counts 4 and 10 of the indictment. In so doing, he commented that even trial on those two counts alone went close to the limits of manageability. In the event 61 days were spent on the preparatory hearing before the trial. That preparatory hearing was directed to the trial on Counts 4 and 10. There were then 131 days of trial before the jury. That trial ended on 19th January 1996 with the acquittal of all defendants (including the applicant) on both counts.
During the trial, an unusual event had occurred. On 2nd October 1995, Her Majesty The Queen, pursuant to Section 10(2) of the Supreme Court Act, 1981 by Letters Patent appointed Mr Justice Phillips to be a Lord Justice of Appeal. That appointment meant that he was no longer qualified under Section 8 of the Supreme Court Act, 1981 to sit as a judge of the Crown Court (as he had been doing to conduct this trial). He would only have such powers if the Lord Chancellor invited him to continue under Section 9(1) of the Supreme Court Act. As the balance of public interest clearly pointed to Lord Justice Phillips concluding the trial of Mr Kevin Maxwell and others on the Counts 4 and 10, the Lord Chancellor requested him to sit as a judge of the Crown Court to conclude that trial, and he accepted. But for that request, he would not have had jurisdiction to continue.
That trial was concluded on 26th January 1996. On that date the prosecution indicated that they intended to proceed with the trial of Counts 1, 2 and 9 against Mr Kevin Maxwell, Mr Trachtenberg and Mr Fuller, and a separate trial in relation to Counts 7 and 8 against Mr Stoney. At that hearing, Lord Justice Phillips made it clear that his jurisdiction to sit as a judge of the Crown Court did not extend to trying the suggested second and third jury trials under the indictment. Counsel for Mr Maxwell then invited the judge to proceed on the basis that " your Lordship is seised of this trial, which opened when the preparatory hearing began in January of 1994, and there is no power in your Lordship to transfer any further disposal of any part of this trial to another judge." Lord Justice Phillips made the point that he could hardly be required to deal with the remaining counts as a matter of law if he had no jurisdiction to do so, and that unless the Lord Chancellor requested him to do so he had no such jurisdiction. Counsel for Mr Maxwell and Mr Trachtenberg made submissions to the Court both as to why he must conduct those trials, and second why he should. Mr Maxwell's solicitors that evening wrote to the Lord Chancellor, asking him to exercise his powers, stating:
" We contend that it is clearly in the interests of justice and in accordance with the law that Lord Justice Phillips should preside over the second trial. The reasons for this contention are summarised in the submission of Alun Jones QC which are contained in the attached transcript. In the circumstances we invite you to issue a further direction to Lord Justice Phillips to sit as a Crown Court judge and to hear any further proceedings against Mr Kevin Maxwell."
They followed that up with a letter of 29th January suggesting that it would be arguably unlawful to appoint a new judge.
However, on 9th February, The Court Service wrote saying that the forthcoming trial of Mr Kevin Maxwell and others would be listed before Mr Justice Buckley.
That appointment prompted a judicial review challenge to the Lord Chancellor's failure to request Phillips LJ to sit as a judge of the Crown Court for the remaining stages of the trial, dealing with the remaining counts in the indictment. That challenge asserted that the Lord Chancellor was bound in law to issue such a request to Lord Justice Phillips, submitting that the case was "part heard" under Section 7(1) of the Criminal Justice Act, 1987, and that having ordered a preparatory hearing in relation to the trial of the indictment, the judge was thereafter bound to preside over the trial or trials of all counts on that indictment in the absence of exceptional circumstances such as ill-health. We would guess that that submission was a determinative factor in the single judge granting the applicant leave to bring the judicial review challenge now before us.
We examine the submission that it would be unlawful for Lord Justice Phillips not to try the remaining counts on the indictment. As a High Court judge, Mr Justice Phillips had jurisdiction to sit in the Crown Court by virtue of Section 8 of the Supreme Court Act, 1981 and High Court judges routinely do so, whenever trying crime. But that section does not empower Lord Justices of Appeal to sit in the Crown Court. In our judgment, after his appointment, Lord Justice Phillips would only be empowered to conduct the trial of all the outstanding counts on the indictment if the Lord Chancellor requested him to do so under Section 9( 1) or (4), and no such request has been made. But it is contended that Section 9(7) empowers him so to sit. That section reads:
" (7)Notwithstanding the expiry of any period for which a person is authorised by virtue of sub-section ( 1) or (4) to act as a judge of a particular court:
(a)he may attend at that court for the purpose of continuing to deal with, giving judgment in,or dealing with any ancillary matter relating to, any case begun before him while acting as a judge of that court; and
(b)for that purpose, and for the purpose of any proceedings arising out of any such case or matter, he shall be treated as being or, as the case may be, having been a judge of that court."
The authority given to him as a result of his acceptances of the Lord Chancellor's mid-trial request under sub-section (1) was to conclude the trial of Counts 4 and 10. He has concluded that trial. The trial of the remaining counts are not an ancillary matter relating to that trial, nor are they proceedings arising out of that trial. It follows that in our judgment the Lord Chief Justice was quite right to say in the letter of 1st February 1996 that the conclusion of the trial on Counts 4 and 10 terminated his powers pursuant to the request under Section 9(1), which entitled him to sit in the Crown Court despite his elevation. Therefore, unless the Lord Chancellor specially requested Lord Justice Phillips to try the remaining counts on the indictment under Section 9(1), the judge had no power to do so. The omission of Lord Justices of Appeal from those whom Parliament has automatically empowered to act as Crown Court judges in Section 8 clearly shows that the Lord Chancellor (as the "appropriate authority") has been entrusted with discretion as to whether or not to issue such a request under Section 9(1). There are no statutory limits placed on the exercise of that discretion: it is a "strong discretion". The policy is clear: that in matters of judicial deployment, Parliament does not seek to lay down how the Lord Chancellor should exercise his discretion.
Recognising that the Lord Chancellor has such a discretion, Mr Alun Jones QC for Mr Maxwell mounts an irrationality challenge to the Lord Chancellor's decision not to invite Lord Justice Phillips to try the remaining counts on the indictment. In making such a challenge, the applicant has a...
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