R v Manchester Crown Court, ex parte Rogers
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BRIAN SMEDLEY,THE LORD CHIEF JUSTICE |
| Judgment Date | 02 February 1999 |
| Judgment citation (vLex) | [1999] EWHC J0202-6 |
| Docket Number | CO/2926/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 February 1999 |
[1999] EWHC J0202-6
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill) and
Mr Justice Brian Smedley
CO/2926/98
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
MR T KING QC and MR A NADIM (instructed by Kristina Harrison Solicitors, Manchester M3) appeared on behalf of THE APPLICANT
MR L C GOLDSTONE QC and MR A J FARROW (instructed by The Crown Prosecution Service, North West Area, Manchester M60) appeared on behalf of THE RESPONDENT
Tuesday 2 February 1999
This is an application by leave of the court for an order of certiorari to quash a decision made by His Honour Judge Henshall sitting in the Crown Court at Manchester on 20 July 1998 and for an ancillary declaration.
The proceedings arise out of a written application dated 27 May 1998 under section 9 of and Schedule 1 to the Police and Criminal Evidence Act 1984. The application was authorised by Detective Superintendent Brown of the Greater Manchester Police and was made by Detective Sergeant Beddows, an officer of that force, who in a written information explained the basis upon which the application was made.
The brief facts placed before the judge when the application first came before him on 12 June 1998 were these. On 22 December 1997 the mortally injured body of a man named David Heath was found on the first-floor landing of a block of flats called McLaren House on an estate near Salford. Mr Heath had severe head injuries. A police investigatory team was established which made inquiries and which was led to believe that on the afternoon of the killing Mr Heath had been in the flat of the applicant Wayne Rogers. The evidence suggested that there had been an argument between the two men which had caused a witness to run out of the premises in fear. On her return she found Mr Heath lying in a pool of blood on the landing. The applicant was nowhere to be seen.
The police were led to believe that the applicant had left the scene in a taxi at about quarter past three that afternoon. The driver of the taxi was traced. He made a statement in which he said that he had picked up a man outside McLaren House at about the relevant time. This passenger asked the driver to take him to a firm of solicitors named Kristina Harrison in Chapel Street, Salford. According to the driver, he had noticed that the passenger on entering his taxi had blood on his hands. Again according to the driver, the passenger offered him £200 to say if he was asked that he had picked up the passenger at 2.30pm and not at 3.15pm. The driver said that he had refused and asked the passenger why he wanted the time changed, to which the passenger replied that he had assaulted somebody and that his hands had become bloodstained as a result. The driver said that he took the passenger to Chapel Street and dropped him off at the solicitors.
The application was made on the basis of the belief entertained by the police (whether rightly or wrongly, and I emphasise that at this stage the facts are merely allegations) that the passenger whom the driver took to the solicitors was the applicant. They further believed that he had committed the assault and that he was trying to bribe the driver in order to support a false alibi. However, when the driver attended an identification parade some five months after this incident he failed to identify the applicant. It was said that the applicant's appearance had changed in the meantime. But be that as it may, the driver failed to pick him out.
The injured man Mr Heath remained unconscious for a number of months following this assault, but died on 29 March 1998. A post- mortem examination showed that he had suffered serious injuries. The police tried to trace and interview the applicant after the incident but failed to do so until 8 May 1998 when he was eventually traced and arrested. There was no scientific evidence to link him with the assault at McLaren House.
At interview the applicant was represented by Kristina Harrison Solicitors. He refused to answer any questions.
The matter was put to the judge on the basis that it was of obvious relevance to the police to establish whether the applicant was or was not the passenger whom the driver took from McLaren House to the solicitors and it was therefore relevant to establish whether he did attend the solicitors on 22 December 1997, and if so at what time. In support of the application made to the judge the officer made a statement in which he deposed to the matters listed in paragraph 2 of Schedule 1 to the Police and Criminal Evidence Act 1984, there described as the first set of access conditions.
Originally the Crown sought an order for production of:
"Any diaries, appointments and/or attendance records or any other information relating to the attendance of Wayne ROGERS on Monday 22nd December, 1997."
The order was directed to the solicitors.
By the time that the matter came before the judge on 12 June, however, the effect of the order sought had been amended. The rest of the application was unaltered, but the Crown now sought production of:
"Any record or log recording the time of arrival at the premises of Kristina Harrison Solicitors by Wayne Rogers on 22 December 1997."
We have a transcript of the hearing before the judge on that date. It is apparent that at the outset counsel for the present applicant drew attention to the fact that the draft order by that stage before the court was in a very different format from the order originally drafted. It was on that basis that counsel went on to say that the only issue upon which the court was invited to rule was the issue of privilege. When the detective sergeant was examined in-chief he was asked whether he would be satisfied to receive information confirming the time of the attendance at the solicitors by the applicant and he said that he would. As the hearing developed, Mr Nadim representing the applicant said to the judge:
"The only issue now is whether the prosecution are entitled to [see] any record or log recording the time of arrival at the premises of Kristina Harrison Solicitors, by Wayne Rogers, on 22 December 1997."
He also suggested that the order being sought in its amended form was radically different from that originally sought.
The judge granted the order in the terms already recited. In the course of his ruling he set out his reasons. He said:
"It is clear that what is sought is not a communication made in connection with or in contemplation of legal proceedings and is not for the purpose of those proceedings. What is sought is the record of attendance of this person, which is simply the time of his entry into Kristina Harrison's office on that day, namely, Monday 22nd December 1997."
He went on to observe:
"That order specifies any record or log, relating to the time of arrival at the premises of Kristina Harrison Solicitors."
That, however, was pointed out to him to be an error. He corrected it to read:
"…. any record or log recording the time of arrival at the premises of Kristina Harrison Solicitors."
Following that hearing, a request was duly made of the solicitors who wrote on 19 June 1998 to acknowledge receipt of the order. In their letter they confirmed that they did not have any records or logs recording the time of arrival by the applicant on the relevant date at their premises. The Crown Prosecution Service endeavoured by letter to investigate the documents which the solicitors had reviewed for purposes of giving that answer, but the solicitors replied on 7 July, pointing out that they owed a duty of confidentiality to their client and, while they were willing to act in accordance with an order of the court, they were bound to observe that duty of confidence, save insofar as they were required to do otherwise.
It was against that background that the parties returned to the judge on 20 July when the order now under challenge was made. There was on that occasion considerable discussion of the meaning and effect of the existing order. Mr Nadim, in answer to the judge, made plain that he had no objection to clarification of the order so long as it was restricted to the time of the applicant's arrival. He did, however, object to an extension of the order to cover the time of any appointment. He said in the course of the transcript:
"Your Honour, certainly as far as today's attendance is concerned, I had no prior appreciation that the prosecution or the police would be seeking to widen the ambit of the order in the manner that is being sought today, and, in my submission, requiring a disclosure as to the fact of making an appointment has the effect of widening the ambit [of] the order, and I would respectfully value an opportunity to argue that.
I do not object to the order, as it is presently drafted, being further defined, in terms of the Court proceeding to define what is meant by 'record', proceeding to define what is understood by 'log', but those two records do not concern the fact of arrival, and that is what we are dealing with here."
When the judge put it to counsel for the applicant that he was really suggesting that a fresh...
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