Bowman, R. v

LORD JUSTICE GAGE: This is an application by counsel for the appellant in respect of the costs of various expert witnesses and ancillary matters in relation to the appeal in the case R v Bowman.

The main judgment dismissing the appeal forms the background to this application. Mr Martin-Sperry seeks orders from the court retrospectively extending the representation order to include reports, conferences, advices and attendance at this court by a number of expert witnesses. He also seeks an order to cover an application and an amendment by him of the notice of appeal.

What we propose to do is to say now what it is we shall grant in relation to the extension of the representation order. We shall extend the representation order to include the preparation of a report and the attendance at the hearing of the appeal for Professors Milroy and Crane. We shall also extend the representation order to include attendance at court of Professors Carey, Lawler, Hunt and Vernezzis, and also one conference in respect of each. So far as these expert witnesses are concerned, any other costs that are sought to be justified must be justified before a costs judge. We direct that the assessment of the costs generally be carried out by a costs judge.

So far as Professor Conway is concerned, there was no leave granted by the court in respect of a ground of appeal which concerned him. However, Mr Martin-Sperry has persuaded us that in respect of his evidence we should extend the representation order to include not only his report but a conference, and also him attending this court. The reason for that is, as Mr Martin-Sperry with some justification submitted, he could hardly ignore the case R and T v G when presenting this appeal and it was a necessary matter for the appellant to have investigated evidence that Professor Conway might give. In the result, we did not receive his evidence and decided that his evidence did not assist. Nevertheless, we think it was proper for him to have been instructed and we grant an extension of the order to include him.

Two other matters remain. Firstly, a Mr MacDonald attended at the aborted hearing. Whether or not he thought he was instructed by Mr Martin-Sperry to attend on that date is not, to our minds, really material. The fact is that he did attend. It was an important matter. As it turned out, it came to nothing. We shall extend the representation order to include his attendance at the Court of Appeal on the first day of the aborted hearing. However, so far as the sum claimed by him is concerned, that will also be the subject of an assessment by the costs judge.

That leaves simply, so far as the detail is concerned, the costs which Mr Martin-Sperry seeks for the amendment of his notice of appeal to include further grounds which dealt with the further count on the indictment of which the appellant was convicted. Once again, having heard Mr Martin-Sperry's submissions, we are persuaded that it was a necessary precaution for him to draft those amended grounds that would have enabled him to argue, had the appeal been successful, that the court should regard the convictions on the other counts as unsafe.

Having dealt with the detail, we now wish to make some general observations. The problems that have arisen in this case in relation to costs and that have caused, to a large extent, this hearing to have occurred lie, in our judgment, in the way in which the matters were dealt with before the hearing of the appeal. Mr Martin-Sperry has told the court that on previous cases his experience was that he had an informal arrangement with the Registrar's Office, and indeed the former Registrar, by which he could simply inform the Office of what he proposed to do and the Office would then decide whether or not the representation order should be extended to include the works done. We have seen notes to the court from Mr Martin-Sperry which tell the court what he is doing. However, what did not happen in this case, save in the case of Professor Conway, was that there was never an advice on evidence accompanied by an application for the extension of the representation order laid before the Registrar. In our judgment, it ought to have happened. The way in which this matter was dealt with was, to say the least, unsatisfactory. The problem arises that if there is no representation order covering the expert witnesses at the end of the case, it is equivalent to holding a gun to the court's head to say that now the representation order must be extended to cover these witnesses.

What, in our judgment, should happen (and we say this not so much as a criticism but to make quite sure that a proper practice comes into force for the future) is that it is the duty of counsel to place an advice on evidence before the Registrar before the hearing of an appeal so that the Registrar can decide whether or not to extend the representation order to cover the costs of expert witnesses, and indeed any other witnesses. If necessary, on a refusal by the Registrar, an application can be made to the court for directions. The advice should specify precisely the name of the expert sought to be called and the nature of the evidence he or she may give. If the representation order is not extended either by the Registrar or on a directions hearing by the court, it must be made clear to the witnesses that they attend court pro bono or by some other funding. That is not to say that the court will not grant an extended order after the hearing, as we have done in this appeal, but it must be made quite clear to the witnesses that the court may not do so. We have been told, and are pleased to hear, that in this case Mr Martin-Sperry says that each of the experts did have that made clear to them so they must have all known that they were at risk as to the costs or remuneration for them. That, we underline, should be the proper procedure to be followed in the future.

In the circumstances, we do not propose to dwell on what happened in the past in this case. For those reasons, we extend the representation order in the way in which we have described in this short judgment.

MR MARTIN-SPERRY: My Lord, I am grateful.

LORD JUSTICE GAGE: It would help the court, no doubt, if your junior would draw up the order for us to see and approve.

MR MARTIN-SPERRY: In that context, my Lord, may I ask that today's hearing for both myself and my junior are proper items to be included on the bill.

LORD JUSTICE GAGE: I can see, if I may say so, speaking for myself, one counsel, but why two? It is very nice to see Miss Grey here but --

MR MARTIN-SPERRY: My Lord, Miss Grey has in fact provided me with a number of the answers to the questions that my Lords were concerned with. The moment she came into the case was when leave was granted, which was in April of last year. She has been in charge of the all of the administrative side of the case and the issue --

LORD JUSTICE GAGE: She is looking embarrassed now.

MR MARTIN-SPERRY: She has done extremely well, if I may say so.

LORD JUSTICE GAGE: Mr Martin-Sperry, you can have a representation order today for one counsel. You may divide it up how you wish. Thank you.