E, R (on the application of) v Secretary of State for the Home Department

This is an application for appropriate relief by way of judicial review in respect of the defendant's decision (i) to locate the claimant at HMP Bronzefield and (ii) to treat the claimant in a manner that allegedly interferes with her right to a fair trial. A further matter is no longer pursued.

The claimant currently faces trial at the Central Criminal Court. It is said that the arrangements for transporting her between prison and court means that she is exhausted, constantly nauseous and unable concentrate when she arrives for the day's hearing. In addition, it is said that she is produced at court either shortly before the start of the hearing or after the scheduled start so that her ability to provide instructions to her lawyers is severely reduced. Accordingly, the issues that arise in the claim are (i) whether the treatment of the claimant amounts to a violation of her rights under Article 6 of the European Convention on Human Rights ("the ECHR") and/or (ii) whether the treatment of the claimant amounts to a violation of her common law right to a fair trial.

As I have already indicated, the claimant is a defendant in a trial currently being held at the Central Criminal Court. She is charged with withholding information, contrary to section 38B of the Terrorism Act 2000. The trial itself commenced on Wednesday 23 May 2007 and is scheduled to last for five weeks. The claimant is due to give evidence and to be subjected to cross-examination. It is anticipated that this will occur at some date either on or very shortly after 20 June 2007.

The claimant is presently detained as a "restricted status" prisoner at HMP Bronzefield. HMP Bronzefield is located in Ashford, Middlesex. It opened in 2004 and is administered by a private company, United Kingdom Detention Services. It is said that until HMP Bronzefield opened, almost all women prisoners facing trial at the Central Criminal Court would have been detained at HMP Holloway. As it happens, the Prison Service website describes the reception criteria for Holloway in the following terms:

The claimant's categorisation and general circumstances are fully explained by Mr Gary Nicholls ("Mr Nicholls"), the Head of Operations and Casework within the Directorate of High Security, in paragraphs 4 to 16 of his witness statement dated 19 June 2007, the material terms of which are as follows:

I interpolate at this stage to indicate that I have been told that it was no later than the early 1990s that category A female prisoners were, on occasions, located in HMP Holloway. I am also told that this happened on very few occasions because there were very few category A females. Furthermore, it is also worth noting that the male high security prison, HMP Belmarsh, is at approximately the same distance from the Central Criminal Court as HMP Bronzefield.

I continue with Mr Nicholls' witness statement at paragraph 10:

It is the claimant's case that having to travel between prison and court in the high security van, with cramped conditions and limited windows, has caused her to suffer from dreadful travel/motion sickness and to be sick in the van and/or shortly thereafter. The claimant's medical problems have resulted in her being placed on medication. It is said that the medication has certain side effects, including causing drowsiness and, it is said, has almost caused the claimant to faint when she was required to stand as the jury was empanelled in her trial.

The second statement of Ms Gareth Peirce, the claimant's solicitor, states as follows (see paragraph 9):

Miss Peirce continues in her witness statement at paragraph 10, emphasising the important stage the trial has now reached, as follows:

At paragraph 11 of her witness statement, Ms Peirce goes on to state:

Ms Peirce then goes on to express her further concerns, which are said to be shared by the claimant's leading counsel, Baroness Kennedy QC, about the ability of the claimant to participate in the impending most important part of her trial as follows:

The claimant's doctor saw her on 14 June 2007 in order to provide an up-to-date and second report to the court for the purposes of this hearing. In his report dated 19 June, Dr Fluxman, a general practitioner, expressed the following opinion:

On 4 June the claimant's predicament was brought to the attention of the trial judge. Counsel's note of what took place is in the following terms:

On 14 June 2007, the trial judge apparently invited the prison authorities to review the claimant's categorisation. It is very clear from this limited amount of information that the trial judge is sympathetic and anxious to take whatever is appropriate action within his powers to ensure that the fairness of [E's] trial is not jeopardised by any health problems that she may be encountering. It is also to be noted that, to the extent that any application has been made to the trial judge (eg for time to consult or for the claimant to be absent from the courtroom itself) he has acceded to it. However, no application has been made to stay or adjourn the proceedings for lack of fairness. The judge has rightly indicated that he does not have the power to order the Secretary of State to relocate the claimant within the prison estate. It is only to that extent (as it seems to me) that the trial judge has expressed the view that he is not able to help the claimant deal with her current predicament. However, I wish to make it clear that this particular limitation on his ability to deal with the matter does not, as it seems to me, raise any suggestion that the judge is unwilling or unable to use other appropriate procedures in order to alleviate the situation and to ensure the fairness of the claimant's trial.

Section 1 of the Prison Act 1952 provides that:

Section 12(2) of the Prison Act 1952 provides that:

Article 6(1) of the ECHR provides as follows:

Much of the applicable law in this case is not controversial. In Salabiaku v France [1991] 13 EHRR 379, at paragraph 28, the ECtHR stated "the object and purpose of Article (6), which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law."

In Delcourt v Belgium [1970] 1 EHRR 355, at paragraph 25, the European Court of Human Rights stated:

The principle of equality of arms is inherent in Article 6. It was described in De Haes and Gijsels v Belgium [1997] 25 EHRR 1, at paragraph 53, in the following terms:

The Convention is intended to guarantee rights that are practical and effective, not theoretical and illusory (see Airey v Ireland [1979] 2 EHRR 305 at para 24). Article 6 guarantees a criminal defendant the right to effective participation in his or her trial. In SC v United Kingdom [2005] 40 EHRR 10, at paragraph 28, the ECtHR stated:

On behalf of the claimant, Mr Cragg also referred to Barbera, Messegue et Jabardo v Spain App No 10590/83, and the ECtHR's decision of 6 December 1988 ("Barbera"). In that case the applicants who were accused of terrorist offences were transported in a police van some 600 kilometres from Barcelona Prison to their hearing in Madrid on the night before their trial was due to start. Mr Cragg submitted that, in reaching its decision, the court concluded that there had been a breach of Article 6(1) and (3) on the basis of a number of reasons, and the court made the following observations at paragraph 70 of its judgment:

As indicated earlier, this particular problem was not the only reason the court came to the conclusion that there had been a breach of Article 6, and I will return to more details of the reasons for the court's decision at a later stage in this judgment.

Barbera was cited by the ECtHR in Makhfi v France, App No 59335/00, in its judgment of 19 October 2004. In paragraphs 35 to 38 the court confirmed that it was of the utmost importance that the accused be able to follow the proceedings, respond to questions and give evidence without being in a state of excessive tiredness. Much of the effect of the very long court days on the applicant in that case therefore was found to constitute a breach of his right to a fair trial and of the principle of equality of arms.

Mr Cragg also relied heavily upon the decision of R v Secretary of State ex parte Q [2000] UKHRR 386 ("Q"). In that case, Richards J (as he then was) held that the allocation of a prisoner to a particular prison would be ultra vires if it infringed that prisoner's common law right to a fair trial. Richards J stated (inter alia) that the correct approach for a court considering a challenge to an allocation on this basis is to ask whether there is a real danger that the prisoner will not be able to put his defence fully and freely.

Mr Cragg submitted that Article 6 of the ECHR entitles the claimant to participate in and follow the trial that she faces. It was Mr Cragg's submission that her Article 6 rights have been violated in the present case by the failure of the Prison Service to take adequate steps to ensure that the claimant is able to participate in a trial that she faces, and that thus the defendant has acted incompatibly with the claimant's Article 6 rights in the exercise of his powers under section 12(12) of the 1952 Act. In support of this submission, Mr Cragg relies in particular upon the following matters.

Mr Cragg submitted that, bearing all these points in mind, the claimant's situation has "undoubtedly weakened [her] position at a vital moment when [she] needed all [her] resources to defend [herself] and, in particular, to face up to questioning" and that she has to "face a trial that [is] vitally important to [her], in view of the seriousness of the charges against [her] and the sentences that might [be] passed in a state which must be one of lowered physical and mental resistance": see the judgment of the court in Barbera supra.

Mr Cragg submitted further that it should be remembered that the principle of equality of arms is a central aspect of the right to a fair trial as protected by Article 6. He contended that this is significant in the claimant's case because the prosecution is not required to call its witnesses after they have been travelling for two and a quarter hours in conditions that make them feel sick. Similarly, the prosecutors are not required to participate in the trial after travelling for two and a quarters hours in conditions that cause them to feel sick. As a consequence, Mr Cragg submitted that the claimant's treatment in the way in which she has to travel to and from court, with the consequential adverse effect on her health, amounts to a serious interference with her right to equality of arms.

Furthermore, Mr Cragg drew attention to Article 6(3)(b) which provides that everyone charged with a criminal offence has the following minimum rights:

Mr Cragg therefore submitted that the claimant's complaints amount to a complaint that she has been denied adequate time and facilities to prepare because of the physical and mental conditions she finds herself in; it is not simply a case of her late arrival at court. Her complaint that she is unable to consult with her lawyers, it is said, clearly comes within the scope of Article 6(3)(b).

Further, and in the alternative, Mr Cragg submitted that the failure of the Prison Service to take adequate steps to ensure that the claimant is able to participate fully and properly in the trial that she now faces is unlawful and is contrary to her common law right to a fair trial: see Q supra. Mr Cragg submitted that in Q the court accepted that a decision of the Prison Service to allocate the applicant to a particular prison that infringed his right to a fair trial would be ultra vires. It was therefore Mr Cragg's submission that it is for the court to form its own primary judgment as to whether the right to a fair trial is infringed and that, in order to do so, the court should apply a test as to whether there was "a real possibility" of an infringement of the right to a fair hearing that justifies intervention, discounting any remote or fanciful risks: see the judgment of Richards J in Q at pages 393 to 394.

It was Mr Cragg's submission, therefore, that judicial review is the correct form of proceedings in which to raise these issues because, it is said, the trial judge in the current criminal trial lacks any real power to address and deal with the problems. Mr Cragg stressed that the trial judge has been made aware of these current proceedings for judicial review and that he has expressed his surprise at the claimant's current location at HMP Bronzefield.

On behalf of the Secretary of State, Mr Sharland submitted that it is not really possible for this court properly to consider the fairness or otherwise of an ongoing criminal trial. He submitted that the ECtHR has repeatedly explained that a decision as to the fairness of a hearing is based on an assessment of the course of the proceedings as a whole: see Clayton and Tomlinson, The Law of Human Rights, at paragraph 11.204 and the cases therein cited; see also Archbold 2007 at paragraph 16-58.

Mr Sharland pointed out that in Barbera the ECtHR did not conclude that there had been a breach of Article 6 solely by reason of the defendant's transportation: see paragraph 89 of the court's judgment where the court said this:

Mr Sharland emphasised that the claimant's criminal trial is an ongoing trial and submitted that, as such, it is not possible to assess the fairness on the proceedings as a whole. That difficulty, he argued, is exacerbated by the lack of evidence about the current proceedings. Thus, Mr Sharland stressed that there is no evidence before me from the trial judge, the prosecution or the claimant herself. He pointed out that the claimant's evidence is limited to witness statements from her solicitors and doctor. Notwithstanding Mr Sharland's submissions, I am satisfied that, in an appropriate case, this court does have jurisdiction to intervene in an ongoing criminal trial in order to ensure a defendant's right to a fair trial. However, given that the primary responsibility for the conduct of the trial and its fairness is that of the trial judge, I am of the firm view that intervention by this court in an ongoing criminal trial will only be appropriate in the most exceptional circumstances. In my view, that will be even more so in a case such as the present one where there is no evidence to suggest that the judge is in any way reluctant to act or at fault in failing to take appropriate and available steps to ensure the fairness of the trial proceedings before him or her.

In my view, Mr Sharland was right in his submission that the primary responsibility for ensuring that the claimant's criminal trial is fair lies with the experienced criminal judge who is presiding over her trial. It is his role, inter alia, to ensure that the claimant receives a fair trial. I agree with that submission, which, in my view, is essentially uncontroversial. In this case, the claimant has put in no evidence to indicate that the trial judge is failing, or will fail, to discharge his duty in that regard. In fact, if anything, the evidence points firmly the other way. Mr Sharland pointed out, for example, that the claimant alleges that the Prison's transport arrangements deny her the right to a fair trial because they prevent her having time properly to instruct her legal team as a result of late arrival at court. However, as Mr Sharland observed, if on a particular day the claimant, because of heavy traffic, does arrive late at court and needs time to speak to her legal team, her counsel can seek to have the hearing delayed to enable such a meeting to take place. To the extent there is any evidence about this aspect of the matter, it is to the effect that this is what has happened in this case, when necessary.

There is no evidence before this court that any particular application for time or other assistance has been refused or that the trial judge would be minded to refuse any such application. As I have already indicated, to the extent that there is evidence, it points firmly the other way. Equally, Mr Sharland stressed that the claimant alleges that the effect of her transportation and medication make it difficult for her to concentrate during the hearing. However, as Mr Sharland observed, if this is so on a particular day, the claimant's counsel could apply for regular breaks during the hearing to ensure that she can maintain concentration. Again, as Mr Sharland pointed out, there is no evidence that the claimant's counsel has thought that such an application has been necessary or appropriate. To the extent the matter has been raised at all, it appears that the judge has readily acceded to any measures by way of remedy that has been sought.

Furthermore, I stress again that there is no evidence that the trial judge has refused, or would refuse, any application for assistance. To the extent there is evidence at all, as in other matters, it points firmly the other way.

Mr Sharland submitted uncontroversially that the defendant has a wide discretion under section 12 of the Prison Act 1952 as to the location of prisoners. In the light of the security risk posed by the claimant, as detailed in Mr Nicholls' witness statement, Mr Sharland submitted, correctly in my view, that the defendant's decision to place the claimant at HMP Bronzefield is not unlawful, nor contrary to Article 6 of the ECHR: see by analogy R v Home Secretary ex parte McAvoy [1984] 1 WLR 1408. As I have indicated, I agree with that submission.

Mr Sharland stressed that the claimant is not being denied access to the court; she is attending court every day and is assisted in her defence by highly experienced solicitors and counsel. Mr Sharland contended that any particular difficulties on a particular day can be accommodated by altering the arrangements for the court day. Mr Sharland submitted, further, that the claimant is not being denied any right to equality of arms. She is very well represented. Mr Sharland submitted that the mere fact that some prosecution witnesses may have easier journeys to court does not undermine this equality. I agree.

Mr Sharland submitted that invariably, although not exclusively, prosecution witnesses are not detained in prison, but the failure to detain such witnesses does not mean that the prosecution has gained an unfair advantage. Again, I agree with that proposition. The conditions under which a defendant and other witnesses give evidence are often different. The conditions placed on the claimant are, in the defendant's view, no more than is necessary to protect the public and the security of the State. So much is clear from the evidence of Mr Nicholls, and I agree with Mr Sharland's submissions to that effect.

Mr Sharland emphasised that the claimant does not, and cannot, challenge the defendant's decision that she should be classified as a restricted status prisoner (the highest level of classification presently applied to female prisoners). Mr Sharland pointed out that the claimant was designated in this category in September 2006 and that at no stage since that classification has the claimant sought to dispute its correctness. It was therefore Mr Sharland's submission that this court should proceed on the basis that the claimant's categorisation is correct and that she would pose a serious risk to the public if she were to escape. Again, I agree with that submission.

Mr Sharland then made the point that the claimant's case is that, notwithstanding her restricted status classification, the defendant has erred in law in the exercise of his discretion pursuant to section 12 of the 1952 Act by locating her in HMP Bronzefield, which is the only prison in the south east that has been designated as suitable to accommodate such prisoners. Mr Sharland drew attention to the fact that, in her claim form, the claimant seeks mandatory relief that the defendant transfer her to HMP Holloway. In his closing submissions Mr Cragg confirmed that this relief is still the primary relief sought, notwithstanding the amendment to seek declaratory relief that I granted during the course of the hearing.

Mr Sharland stressed that it is the defendant's case that such a transfer, namely to HMP Holloway, would place public safety at risk because this prison, or indeed any other prison location in the south of this country (other than HMP Bronzefield) is not sufficiently secure to accommodate someone of the claimant's security status. It is clear from the evidence of Mr Nicholls that this is correct. Accordingly, the only basis for the claimant's assertion that the defendant has acted unlawfully in locating her in HMP Bronzefield is that, if she remains at that prison establishment, she will be denied a fair trial because of the adverse effect on her health occasioned by the necessary travel arrangements to and from court. As Mr Sharland pointed out, it is not clear whether it is said that, over the last few weeks, the claimant's trial has been rendered unfair, or whether the claimant's case is limited to an assertion that if she remains in HMP Bronzefield it will become unfair at some stage in the future. Mr Sharland stressed that the claimant has not so far made any application to the trial judge presiding over the criminal case that (1) the hearing up until and including 20 June 2007 has been unfair because of difficulties caused by the claimant's health; and (2) the hearing at some time in the future will be unfair because of the difficulties caused by the claimant's health.

Mr Sharland also emphasised that the claimant makes no criticism whatsoever of any decision made by the Crown Court judge, and makes no allegation that any action he has taken in the past or may take in the future has or would lead to the claimant receiving an unfair trial.

As Mr Sharland submitted, it is the claimant's case that she must be moved from HMP Bronzefield because the journey to and from court is making her too ill to be able to participate in her trial. It is accepted that there have been no applications to the trial judge to obtain any relief to deal with the alleged difficulties caused by the transportation, other than to draw attention to the fact, and to receive from the judge the perfectly correct observation that he was not himself able to exert any power to relocate the claimant in the prison estate.

Mr Sharland went on to suggest that there were a number of solutions that could have been canvassed with the judge by way of addressing the claimant's situation but which have not been explored. They are as follows.

Mr Sharland stressed that he was not advocating any particular one of these various possibilities as the solution to the difficulties said to be being experienced by the claimant, but that the important point to note is that none of them has been explored with the judge in an effort to address the alleged problem.

It was Mr Sharland's submission that it is not open to the claimant to contend before this court that she will not receive a fair hearing before the trial judge if she remains located at HMP Bronzefield, whilst at the same time failing to seek to explore potential solutions to the difficulties caused by such transportation. I have considerable sympathy with that submission. Indeed, as Mr Lalli's second witness statement indicates, the trial judge did ask the claimant's counsel this week whether she wanted him to do something about the claimant's alleged health issue, and the claimant's counsel indicated that she was merely putting down a marker. What Mr Lalli said about the matter is this:

Mr Sharland then turned to the medical evidence which forms an important basis for the assertion that the claimant is not well enough to continue with the hearing, and that any continuation would breach her common right to a fair trial and/or constitute a breach of her Article 6 rights. Mr Sharland stressed that, in the timescale of these proceedings, it has not been possible for the defendant to obtain his own independent medical evidence. Accordingly, Mr Sharland emphasised that the defendant does not accept that any particular weight should be placed upon the claimant's medical evidence in this case.

Mr Sharland contended that it would be unfair or inappropriate to place too much reliance on the claimant's medical evidence in circumstances where the defendant has been unable to respond meaningfully to it, particularly when it is contrary to the apparent evidence in relation to the claimant's health at the trial (ie there is no evidence either from the nurse at HMP Bronzefield as to ill-health, and no evidence, apart possibly from 18 June 2007, that the claimant or her very experienced legal team have suggested to the court that she was unwell or should be seen by the doctor at court). Mr Sharland also stressed that the CPS has not had any opportunity to intervene in these proceedings or to file evidence in relation to any of these matters, including the medical matters. Mr Sharland then went on to make the following additional points with regard to the medical evidence:

Whilst I have some sympathy with these latter submissions by Mr Sharland, it is not possible to form a final view on the matter because of the absence of any body of considered evidence on the part of the defendant or the Crown Prosecution Service dealing with the overall medical condition of the claimant. This illustrates and emphasises the difficulties facing this court in this application by reason of the absence of a full body of medical evidence.

Mr Sharland then turned to deal with the case of Q. His primary position was that Q was wrongly decided in a number of important respects. However, as it seems to me, that is not a matter upon which it is necessary to spend any time. For the purposes of this hearing, I am satisfied that Q is correctly decided. However, I recognise that the defendant has reserved the right to challenge the correctness of that decision in any further proceedings, either in this action or other actions.

Mr Sharland submitted that even if the approach adopted in Q was correct on its own particular facts, this present case is fundamentally different. He pointed out that Richards J concluded that "in the particular circumstances of the present case" it was appropriate to examine the substance of the claimant's case: see page 395 at B. Mr Sharland submitted, therefore, that it is clear that Richards J was not seeking to lay down any general principle. I find myself in general agreement with that submission. Mr Sharland pointed out that Richards J went on to note that, although he did not regard the advantage of an application being made to the trial judge as preventing him from considering the claim in the particular case, "it is a reason to exercise caution in evaluating the claim": see page 395 at C.

Mr Sharland submitted that the present case is different from Q for the following reasons.

In this case I am very conscious that the claimant is asking me to base my decision on disputed medical evidence, as to which the defendant and the Crown Prosecution Service have had no opportunity to put in any evidence by way of response. The claimant is also asking me to base my decision on various witness statements from Ms Peirce, to which the defendant has also been unable to respond fully and to which the Crown Prosecution Service have been unable to respond at all. Furthermore, as I have already indicated, the Crown Prosecution Service has not been joined as an interested party when, as it seems to me, it clearly should have been. The unfortunate consequence is that any meaningful response to the claimant's evidence as to what is occurring in this trial is not available.

It is to be stressed that the present defendant to these proceedings does not have the responsibility for the conduct of the trial. Neither counsel appearing before me on behalf of the defendant or the solicitors that instruct him are in any way engaged in any sense in the criminal proceedings relating to this claimant. They are not in a position to throw any light upon what is happening other than to the limited extent they have been able to obtain information from the Crown Prosecution Service during the course of these proceedings and in the two or three days immediately preceding the commencement of the hearing before me.

I accept Mr Sharland's submission that, given those facts and Richards J's comments regarding the need for caution, the appropriate approach is for this court to leave the issue of a fair trial to this experienced trial judge against whom no criticism has been made. I have every confidence in his ability to take appropriate steps to ensure the fairness of the trial taking place before him in the light of any concerns that are raised by the defence and which he will then consider. I accept that to grant relief on the basis of disputed and essentially one-sided information to which the defendant has not had adequate opportunity to respond would be plainly unfair to the defendant. Such a course could potentially jeopardise an important and lengthy trial and possibly prejudice the safety of the public, in circumstances where the prosecuting authorities have had no opportunity to intervene in these proceedings and make their position clear.

Moreover, I stress that there is no evidence that refusal of relief in these proceedings will lead to the claimant not receiving a fair trial. My decision merely means that the claimant's lawyers will have to make a suitable application to the trial judge if they are of the view that the claimant's health is such that, on a particular day or generally, she is not able to participate fully and properly in her trial. At no point in the first month, except possibly on 18 June, have the claimant's legal representatives suggested to the court that the claimant's health has prevented her from fully participating in her trial. If and when the claimant's representatives reach the view that such a point has been reached in the trial, then they will be able to apply to this experienced trial judge, who will, I have no doubt, act in accordance with the claimant's common law right to a fair trial and/or in a manner compatible with her Article 6 rights. It goes without saying that any decision on such an issue by the trial judge, which is thought to be wrong for any reason, would be subject to an appropriate appeal to the Court of Appeal.

As Mr Sharland pointed out, judicial review is, in a sense, a remedy of last resort. Where there are adequate alternative remedies available in the form of an appropriate application or applications to the trial judge, then judicial review is, generally speaking, not the appropriate course to take. In my view, this is such a case.

For all the foregoing reasons, I have come to the firm conclusion that this application must be and is hereby dismissed.

Is there anything further?

MR CRAGG: Perhaps three matters on behalf of the claimant's point of view. First of all, I am not instructed to apply for permission to appeal. We will take our concerns back to the trial judge as advised. On that point, it seems to me that it might be useful for the judge and the advocates involved in the criminal trial to have a copy of your Lordship's judgment. I know there is an order from yesterday that the details are not published. I wonder whether it would be possible to have an amendment to that order to allow a copy of the judgment, which would have to be --

MR JUSTICE FORBES: You are going to draw up the order, are you not?

MR CRAGG: I did draw up the order. I managed to show it to my learned friend this morning. I think he agreed it.

MR JUSTICE FORBES: Mr Sharland, what do you say about that? Are there any observations you want to make?

MR SHARLAND: My Lord, we are neutral on that. Obviously, if it goes to the defence counsel, it would also need to go to the CPS counsel. We do not have an objection to that course of action if the claimant seeks that, my Lord.

MR JUSTICE FORBES: As it seems to me, I think the gist of what I have said can be conveyed to the judge. If the judge feels that he will be assisted by a transcript of the judgment, then I will take steps to have one provided to him.

MR CRAGG: I am grateful for that indication.

MR JUSTICE FORBES: But in a sense it would almost be, not so impertinent, but perhaps a little lacking in tact to send this judge, who I have expressed every confidence in, a copy of my judgment to reassure him. But if he feels he is going to be helped by it, then of course he can have a copy of it.

MR CRAGG: My Lord, I am grateful for that indication.

MR JUSTICE FORBES: Can I have a look at this order -- the reporting restrictions order. Is there anything you want to say about the form of order, which seems to be all right as it presently stands, Mr Sharland?

MR SHARLAND: No, my Lord.

MR JUSTICE FORBES: If you both agree, that could be modified slightly by words added to paragraph 1, something to the effect that "save that a copy of this judgment can be provided to the trial judge and counsel if required". You both say counsel at the criminal trial?

MR CRAGG: Yes, my Lord.

MR JUSTICE FORBES: If you would add words to that effect, agree it between the two of you, that would seem to meet the situation and I will make the order in those terms. If you would then lodge it with the court.

MR CRAGG: I am grateful for that indication. It means we will not have to try and undo the order if the judge does want to see a copy of the judgment. My Lord, the only other application I need to make on behalf of the claimant is a detailed assessment of her publicly funded costs.

MR JUSTICE FORBES: I do not imagine there is anything you want to say about that, is there, Mr Sharland?

MR SHARLAND: No, my Lord.

MR JUSTICE FORBES: In that case, yes, detailed assessment of the claimant's publicly funded costs. Is there anything else?

MR CRAGG: Not from our side.

MR JUSTICE FORBES: I would like to thank both of you for the very considerable assistance you have given me in a difficult case, which both of you had to deal with in a very short interval of time, particularly Mr Sharland. I am very grateful to both of you.