Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE HENRIQUES
MR JUSTICE STANLEY BURNTON
R ON THE APPLICATION OF HER MAJESTYS CUSTOMS AND EXCISE
(CLAIMANT)
-v-
BLACKFRIARS CROWN COURT
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR AH MUNDAY QC (instructed by HER MAJESTYS CUSTOMS AND EXCISE) appeared on behalf of the CLAIMANT
The Respondent did not appear and was not represented.
J U D G M E N T
MR JUSTICE HENRIQUES: This is an application for permission to apply for judicial review seeking to quash the decision of His Honour Judge Pillay refusing to release the transcript of Public Interest Immunity proceedings in the case of Gardner and Others heard before him on 7th and 8th August 2000 on the grounds that his reasons for doing so were perverse and irrational. Counsel had sought that the transcript be transcribed and disclosed to them with a view to part of the transcript being disclosed to the defence in the trial of Chandler and Others which was at that time in progress at the Crown Court at Blackfriars.
Leading Counsel, instructed by HM Customs and Excise, Mr Munday QC, and Miss Hobhouse his junior, took the view that there were matters upon such a transcript that should be disclosed to the defence in Chandler and Others as being relevant to issues in that case.
HM Customs and Excise had received a request for disclosure of the transcript of the PII hearing and readily accepted that parts of the transcript may be relevant and should be disclosed. In the course of the hearing in Chandler and Others Mr Kearney, a senior intelligence officer of the Financial Intelligence Team, was asked about his involvement in Operation Xylograph (Gardner and Others) and the defence in Chandler and Others wished to explore the reasons behind a collapse of Gardner and Others with a view to demonstrating a similar state of affairs in the trial of Chandler and Others.
On 17th October 2003 HM Customs and Excise made an application to Judge Pillay for an order (a) that the tape be transcribed and (b) that once transcribed the transcript would be released to HM Customs and Excise in order that it might be disclosed to the defendants in Chandler and Others. Judge Pillay agreed to have the tapes transcribed, but then, on 24th October 2003, post transcription, when HM Customs and Excise renewed their application for the release of the transcript the judge refused to so release the transcripts.
He gave as his first reason, under the heading "SECURITY/SAFETY OF INFORMANTS", that it would be:
"potentially unsafe for those informants, for such information to be released by this Court, especially in circumstances where it had no further control over its onward transmission or disclosure."
In my judgment this reasoning fails to recognise the fact that HM Customs and Excise have the most intense security, retaining as they do vast amounts of highly sensitive material. The judge should have appreciated that if released the transcripts would have been handled with great care and only such parts of the transcript would have been disclosed as did not identify previously undisclosed and unidentified informants. Necessarily HM Customs and Excise already have within their safe custody details of informants in the case of Gardner and Others and in many other cases.
In my judgment it was irrational and perverse to conclude that the release of the transcripts was potentially unsafe to the informants.
Under the heading of "RELEVANCE" the judge stated that the reasons for offering no evidence in Gardner and Others was not explained or laid before him. He stated it was impossible to see what potential relevance a transcript could have in Chandler and Others. It should, in my judgment, have been obvious to the judge that the procedures, practices and conduct of investigating officers in one case may well be relevant in another, not least when HM Customs and Excise officers themselves are of that opinion.
Under the heading "JURISDICTION" the judge stated that any power of review ceased after ordinary time limits for appeals and that he was functus officio and could not disclose the transcript. In that respect the judge misdirected himself. The Criminal Appeal Rules 1968 Rule 19 provides that a transcript of the record of any proceedings, or part thereof, in respect of which an appeal lies, shall on request be supplied to any interested party. There is no limitation as to time within the Rule and transcripts are habitually provided several years after the event.
Since these proceedings were sensitive and were in chambers the judge's permission, or that of a supervisory court, was necessary. The judge, in my opinion, had jurisdiction to make the order requested.
Finally, under the heading "PRESENCE", the judge concluded that since HM Customs and Excise were present throughout the hearing they had access to the information they now sought and should be capable of making disclosure from their own record of the proceedings.
Such record would necessarily be inferior to a court transcript, not least because those present would expect a transcript to be made available if sought. Disclosure of notes taken during the hearing would, in any event, have lead to a subsequent request for a full transcript or such parts of it as were disclosable.
The judge's overall decision was, in my judgment, in error. I would quash it and direct the Crown Court to release the transcript to the claimants, pursuant to this court's powers under CPR 54.19(3).
MR JUSTICE STANLEY BURNTON: I entirely agree and have nothing to add.
MR MUNDAY QC: I am obliged. Thank you.
MR JUSTICE HENRIQUES: I do not think we can assist you any further, Mr Munday, can we?
MR MUNDAY QC: No, thank you very much indeed.