LORD JUSTICE THORPE: Mr Ian Anthony Evans was before Her Honour Judge Case on 3 December in the Chester County Court facing a committal application for breach of an injunction earlier made to protect Diane Evans, the lady with whom he had had a previous relationship. The complaint was that he had pushed an obscene video through her letter box with the intention of causing her anxiety and distress. The judge concluded that the complaint was made out to the standard of her complete satisfaction and she sentenced Mr Evans to six weeks' imprisonment. He applied on 17 December to purge his contempt. The application failed and accordingly his solicitors faxed to this court a notice of appeal. That gave rise to a dispute between his solicitors and the court as to whether the notice of appeal was lodged in due time. The court office believed that the first notice was the notice received in course of post and duly sealed on 18 December. If the court was right about that then Mr Evans required an extension of time.

The papers were put before me for directions. On 24 February I directed this hearing without notice with a half-hour time estimate. However when the papers were put before me last week, I noticed that there seemed to be the bottom half of a fax transmission report signal on top of my copy of the appellant's notice which was just sufficient to speculate that it recorded a transmission at 15.54 on 17 December. Accordingly, I accepted at the outset of this morning's hearing that Mr Gray did not need an extension of time. The consequence was that he had a properly Constituted appeal. The problem for me is how that should be dealt with.

The Solicitors acting for Mrs Evans had made it quite clear to the Civil Appeals Office that if this case was going to proceed they wished to file a skeleton argument in response and be heard. So Mr Gray sensibly conceded that we should this morning evaluate whether he had sufficient ammunition to justify the expense of a further hearing on notice with Mrs Evans represented. I could not myself see sufficient ammunition in his store, but given that he was placing reliance upon an authority of the Court of Criminal Appeal I adjourned so that my Lord could carry out an independent evaluation of Mr Gray's submissions.

His principal complaints are, first, Mr Evans suffered from the lost opportunity to give evidence to the judge to explain a statement in his affidavit of November 2002 to the effect that he had a fiancee with whom he was happily living. That statement conflicted with his own evidence on 3 December and the evidence of the seeming fiancee, Hazel Wright, that their relationship was more casual in its quality and certainly did not amount to an engagement to marry.

Mr Gray's second complaint is that his client suffered the missed opportunity to cross-examine Mrs Evans on a credit point, given that affidavits sworn in June 2002 and November 2002 conflicted with a letter from her solicitors of 11 July 2002. All three affidavits asserted that two children were the children of her relationship with Mr Evans, whereas the solicitor's letter assert that they were not the children of Mr Evans. This point arises out of notes of a child protection case conference material at page I8 in the bundle. He submits it is to the discredit of Mrs Evans and could and should have been put to her in the witness box.

The case is put to us this morning as a missed opportunity case since Mr Gray is struggling to avoid the impact of the rule in Ladd v Marshall, since nothing has arisen since 3 December to throw any doubt upon the validity of the judge's conclusion. So he says since these proceedings on 3 December were quasi criminal, the authority R v Clinton in the Court of Criminal Appeal [1993] 2 All ER 998, justifies the submission that when fundamental error is made at trial by the defendant's counsel the court may set aside a subsequent conviction. So he has diverted his appeal as presented in his skeleton argument of 23 January 2003 to an all out attack on counsel who represented Mr Evans on 3 December.

Mr Gray has very little ammunition for that divergence. He has no statement from his client criticising counsel, and points of criticism have certainly not been put to his predecessor to give her an opportunity of responding. That is, of course, because the point dressed as an attack upon previous counsel only occurred to Mr Gray earlier this morning when he had a conversation with another member of his chambers who is steeped in criminal practice. I say at once that I am not impressed by any of this. For me the analysis of the trial on 3 December must concentrate on the judicial focus. The judge had to decide what happened on a recent night when, within the space of a few minutes, Mrs Evans described a delivery at her house at or about midnight when she and her boyfriend were in bed together. Equally, she had to focus on the evidence of Mr Evans and his girlfriend to the effect that they were together for the 12 hours from 7.00 pm to 7.00 am. Accordingly Miss Wright could account for the respondent's presence throughout, thus constituting a water-tight alibi.

The judge had to listen to these four adults and decide whether two had concocted an elaborate and contrived false accusation, or whether the alcohol consumed by Hazel Wright in the earlier part of the evening had induced a sleep sufficiently deep to enable Mr Evans to slip out to make the delivery.

It is true that the judge placed considerable emphasis on Mr Evans' false statement in the affidavit of 15 November. That appears both at page 34D of the transcript and also at page 35B. But what essentially drives the judge's conclusion is the impression that the adults made whilst testifying. The judge stressed the importance to her of the opportunity of making such an assessment and how she had required the parties to stand in the witness box so that she should have the clearest possible view of them. It is clear to me that the credit point which is in a sense completely unrelated to the principal focus, was only a subsidiary reason for the judge's conclusion. A principal reason for the conclusion was the very clear impression that she had received of Mrs Evans as an entirely truthful witness.

I hope I have sufficiently explained to Mr Gray why I simply do not think that there is the least point in further adjourning this appeal, nor is there the least requirement to do so in order to avoid the possibility of a perpetrated injustice. The complaints made of counsel who had the responsibility of conducting the trial on 3 December were no more than nebulous and, as my Lord has said, they may be indicative of no more than carefully considered decisions as to how Mr Evans' case should be best presented, bearing in mind that there was not only the duty to represent him in relation to the committal, but also to represent him in relation to sentence, should the judge find the committal proved.

For all those reasons I would simply dismiss this appeal.

LORD JUSTICE SEDLEY: Accepting for present purposes Mr Gray's submission that our approach should echo that of courts of criminal appeal, we are asked to consider allowing an appeal against a committal for contempt on the ground that the appellant's counsel missed significant evidential opportunities: one, it is said, was to lead further evidence to repair the damage done by the appellant's current girlfriend's denial that he was engaged to her; the other was to cross-examine the applicant about a letter in which her solicitor had asserted that the children were not the appellant's, contrary to what she herself had repeatedly deposed to elsewhere.

There is no suggestion that counsel then appearing for the appellant had done more than exercise her judgment as to what would be fruitful and what would be better left alone. In hindsight she may have been wrong. Few counsel escape such a fate. But the material before us falls a long way short of the kind of explicable and catastrophic departure from instruction which led the Criminal Division of the Court of Appeal in R v Clinton [1993] 1 WLR 1181 to quash the criminal conviction.

Even without trial counsel's account of her conduct of the case there are not here the beginnings, in my judgment, of a sound appeal. It is painfully visible that any attempt on the hoof to repair the damage done by the current girlfriend's denial of an engagement is likely to make things worse for the appellant. It would certainly not make them any better. As to the possibility of cross-examining the applicant about her consistency concerning the children's paternity no doubt many counsel would have a go. But others might well have anticipated simply that the solicitors letter had got it wrong. Such judgments have to be made every day by counsel, and the fact that they might have been made differently with different outcomes does not afford a ground for starting again.

Criticisms of other counsel need to be made with care, and on a tenable basis of fact. I see none here. Like my Lord, I would dismiss this appeal.