Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE FORBES
MR JUSTICE SULLIVAN
Between:
MICHAEL LATHAM
Claimant
v
NORTHAMPTON MAGISTRATES' COURT
Defendant
(1) MURTAZA NAZHAM
(2) HAMEED NAZHAM
Interested Parties
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Mr John Hardy (instructed by Messrs Hill Dickinson LLP) appeared on behalf of the Claimant
Mr Hugh Southey (instructed by Messrs David-Law solicitors) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE SULLIVAN: In this application for judicial review the claimant challenges two decisions of the defendant Magistrates' Court to issue two summonses against him following the laying of informations by the two interested parties. The summonses were in identical terms. Each alleged that the claimant had committed the following offence:
"Between 28.02.02 and 14.02.04, did an act or acts, tending or intending to pervert the course of public justice, namely that he provided written statements and verbal evidence, in relation to the appeal hearings of Murtaza Nazham and Hameed Nazham, which he knew to be false. Contrary to Common Law."
The summons in response to the information made by the first interested party was issued on 9th January 2007. The summons in response to the information laid by the second interested party was issued on 15th January 2007. The informations and the materials supporting them were in the same terms. I will refer in more detail below to the materials placed before the Magistrates.
The "appeal hearings" referred to in the summonses were a hearing before the Court of Appeal Criminal Division before Kennedy LJ, Richards and Hedley JJ at which the Court of Appeal considered the interested parties' appeals against their convictions on 7th September 2000 at Warwick Crown Court of conspiracy to defraud, for which each was sentenced to three and-a-half years' imprisonment. Confiscation orders were also made in the sum of £571,073.38 in respect of the first interested party and £302,806.31 in respect of the second interested party.
Both of the interest parties had pleaded guilty on re-arraignment on 30th September 2000. They appealed with leave of the full court on one ground only. There had been a conversation in the judge's chambers on 5th September 2000 before their changes of plea. In the words of Kennedy LJ, giving the judgment of the Court of Appeal on 9th March 2004 (2004 EWCA Crim 491, 2004 WL 0413064):
"It is said that the conversation in chambers was irregular, and that when it was relayed to the appellants by their respective counsel it fettered their freedom of choice as to their plea." (paragraph 1)
Having considered the authorities, Kennedy LJ said in paragraph 19 of the judgment that there was:
"... a burden upon the appellant to show not only that there was an irregularity in the judge's room, but also that the irregularity brought about his subsequent change of plea in such a way as to render the plea a nullity because it can be attributed to improper pressure. We turn therefore to consider the evidence as to what happened in the judge's room and thereafter, in order to decide whether there was in the present case an irregularity, and if so whether that gave rise to improper pressure which was causative of the subsequent changes of plea."
The court then considered the evidence as to what had happened in the judge's room, in respect of which there was a contemporaneous record:
As to what happened in the Judge's room there is a contemporaneous record. Clearly the initial purpose was to enable the judge to find out what could be done on that Tuesday when the judge still had to finish another trial. Ms Norman had been served with additional material which she wanted time to consider. The judge indicated that he might also have to sit at Lincoln on the following Friday, so there was a danger of further disruption, and it was in that context that the judge said "this has got plea written all over it and bags of credit". He then said that he did not know what it was worth and had formed no view, but even though the case was listed for trial a plea would still attract credit. He was asked by Ms Norman if he would give any kind of indication, and said he was not prepared to talk figures because that would be unhelpful and he had not had the papers back (although he had previously had dealings with the case). He then said that a plea would make for a shorter term of imprisonment which, it is clear from what he said immediately thereafter, meant, and was understood to mean, a term of less than 4 years. There was then a discussion about swearing in the jury, and the judge observed that the appellants were professionals, observed by police squads targeting this sort of fraud. He continued –
'At the end of the day they know whether they are guilty or not you know and they have got an eye for a deal, I would have thought.'
Counsel were then told that because of the preceding trial the hearing of their case would not begin until about midday on the following day.
In our judgment it is clear beyond argument that what happened in the judge's room was irregular. The judge did not behave as advised by this court in Turner and in paragraph 45.4 of the Practice Direction. He was drawn into giving an indication as to the sentence he had in mind if the appellants were to plead guilty, and that was the sentence which in due course he did impose."
The court then proceeded to deal with the effect of this irregularity on two interested parties. At his trial the second interested party had been represented by the claimant in these proceedings. In order to understand the claimant's contention that the two summonses are vexatious and an abuse of process because they are in reality simply trying to re-litigate matters which have been determined by the Court of Appeal and amount to a collateral challenge to that court's decision; and the rival contention of the interested parties that they placed "new material" before the Magistrates which was sufficient to enable the Magistrates to conclude that there might have been an intention on the part of the claimant to pervert the course of justice by giving false evidence before the Court of Appeal, it is necessary to set out the Court of Appeal's account of the evidence given by the second interested party and the claimant:
As to the effect of the irregularity upon Hameed Nazham we heard evidence from that appellant and the barrister who represented him at his trial, Mr Latham.
Hameed Nazham made a statement of truth on the 13th June 2003 which he adopted as his evidence in chief. In that statement he said that between his arrest in November 1999 and his appearance at court on 5 th September 2000 he and his cousin were remanded in custody together, but they were separately represented, and he probably saw his solicitor for 'five or six marathon sessions'. He saw his solicitors and counsel on at least four separate occasions, and he maintained his innocence throughout. None of that is contentious.
On 5th September 2000 Hameed Nazham says that he and his cousin were taken to court early and were put in a holding cell together. No lawyer visited them until after Mr Latham had been to see the judge. Mr Latham and Mr Panton then collected him from the cell to have a conference. Mr Latham said that he had just returned from the judge's chambers, the judge having summoned all counsel. The judge had asked about his plea, and Mr Latham had indicated that he was still pleading not guilty. The judge had then said that he had seen all the paperwork, and evidence against Hameed Nazham and even at this late stage he was willing to accept a change in plea and give substantial discount on sentence. Obviously if Mr Latham reported the judge as having said that he had seen all the paper work and evidence, that was wholly at variance with what had in fact been said by the judge a few minutes earlier. Hameed Nazham in his statement of truth went on to say that Mr Latham said that the judge had said that if he would plead to the indictment as it stood he would be looking at a sentence of about 3½ years, but if he were to be tried and convicted he would be looking at a sentence of five years plus. That, Hameed Nazham said, scared the living daylights out of him. There was a discussion as to when, in relation to each sentence, he would get parole, and Mr Latham told him that it was for him to decide whether to continue to plead not guilty or to change his plea. Hameed Nazham said in his statement that he felt he had no choice. The judge appeared to be suggesting he had little chance of acquittal. He went back to his cell and discussed the situation with his co-accused, and they both concluded that they had really no choice. It would not have had anything like the same effect to be told by his barrister that the evidence was overwhelming and that he would get substantial credit for a guilty plea, because the pressure was coming from the judge who would be conducting the trial. So when he and his co-accused were brought into the dock after the mid day adjournment he told Mr Latham that he had thought about what he had said, that it was a scary situation, and that he wanted to plead guilty before the jury was sworn. Mr Latham was anxious that he should not make a hasty decision, and got confirmation from the judge that there would be no loss of credit if any possible re-arraignment were to be deferred to the next day. Mr Latham asked Hameed Nazham in the dock if he was sure he knew what he was doing, and Hameed Nazham states that he told Mr Latham "we didn't feel we had any choice". He had no recollection of any subsequent conference, but did recollect signing for Mr Latham a blank sheet of paper which Mr Latham said that he would complete as a change of plea document. In fact he signed a page in Mr Latham's notebook which came to light just before we began to hear the appeal. After release from prison in June 2001 he and his co-accused tried to mount an appeal based on fresh evidence, and then in September or October 2001 the co-accused came across the decision in Pitman to which we have already referred.
Under cross-examination Hameed Nazham said that prior to 5th September 2000 he had received no advice as to sentence. He did not think he would escape prison if he pleaded guilty, but had no idea as to the length of sentence he might receive. He was not told that he would get credit for a plea of guilty but he knew that. He changed his plea for two reasons – first because Mr Latham said that the judge had seen all the evidence against him, and even at a late stage was still prepared to accept a change of plea, and, secondly, because the indication of a sentence of in excess of 5 years put him under intolerable pressure. He did not recall complaining to Mr Latham of any unfairness, but he recalled Mr Latham talking with Mr Panton about refreshers. Mr Latham was affable throughout, and merely apparently relaying what the judge had said. He did not say that what the judge had done was inappropriate.
After his appearance at court on 5th September 2000 he went back to prison with his co-accused, who was also pretty scared, and they discussed the position over night. He did not appreciate that one consequence of a plea of guilty would be confiscation proceedings. He never saw any document setting out his instructions (that is to say a proof of evidence), and was never advised as to the possibility of an appeal.
Mr Latham gave us rather a different perspective. He recalled going to see the judge in chambers on 5th September 2000. His unaided recollection was that it was the co-defendant who wanted an approach made to the judge. That did not surprise Mr Latham, who believed that Murtaza Nazham was considering his position because his impression was that Murtaza had no realistic defence. Any defence he had would be a cut throat defence and Hameed Nazham would suffer if they were tried together over six to eight weeks. Having read the transcript Mr Latham accepted that the visit to the judge may have been at the judge's instigation, but his impression was that Hameed Nazham, knew what was happening and approved, because he recognised it would help his case if Murtaza Nazham pleaded guilty. Mr Latham believed that he saw Hameed Nazham on 5th September before he went to see the judge. In chambers the judge made it clear that he had not read the papers or formed a view, and much of the discussion proceeded on the basis that there would be a trial. The judge did not indicate that anyone's position was hopeless, but he would clearly have been pleased if the matter were to go short. Mr Latham, who is an experienced practitioner, did not feel that any improper pressure was being applied. He regarded the judge's indication as to a possible sentence of under four years if there was to be a plea as very welcome. He could not recall any previous discussion with his client as to possible sentence, but said that such a discussion was almost inevitable, and he would have pointed out that credit would be given for a plea of guilty. Having regard to the amount of money involved he expected a sentence of over 5 years imprisonment if his client were to be convicted after a trial, and when he passed on to his client what the judge had said as to the sentence he would impose if there were to be a plea of guilty he got the impression that Hameed Nazham was weighing his options. Hameed Nazham is, said Mr Latham, an intelligent man, who was very much on top of his case. He never showed any concern that the judge might be against him, and Mr Latham was certain that he felt under no pressure to change his plea. Mr Latham had no recollection of Hameed Nazham saying he had no choice, but after the mid day adjournment Hameed Nazham was very keen indeed to plead guilty. Mr Latham got the judge's assurance in relation to re-arraignment and then later that afternoon discussed with Hameed Nazham the evidence and his options, making it clear that the final decision was his. He understood that. The evidence against him was very strong. For example the prosecution could prove that his writing was on damaging documents, he was identified as the purchaser of valuable items when his only source of income was state benefits, and he was in no position to call expert evidence to challenge the experts who would be called by the prosecution. On the following day, 6th September 2002, in the presence of Mr Panton's representative, Hameed Nazham signed the written acknowledgement in Mr Latham's notebook of his decision to change his plea. There was no question of him signing a blank sheet of paper. Mr Latham said he was completely satisfied that Hameed Nazham pleaded guilty genuinely and properly and without any inducement.
When cross-examined Mr Latham made it clear that he did not seek to relay to his client everything said by the judge. He told him that on a plea the sentence could be up to 3 years 11 months as opposed to five or six years if the case were to be contested. That was his assessment based on the judge's indication, as noted in Mr Panton's attendance note. He did not tell Hameed Nazham that the judge had said the case had 'plea written all over it', or indeed say anything to indicate that the judge considered the prosecution case to be overwhelming. He did not consider it relevant to tell his client the judge's feelings about the strength of the evidence.
After the mid day adjournment the attitude of Hameed Nazham dramatically changed, and when he saw him again in conference that afternoon he dealt with matters relevant to mitigation. He also noted in his note book 'substantial confiscation' so it would seem clear that the question of a confiscation order was discussed. When Hameed Nazham eventually pleaded guilty Mr Latham was satisfied that it was because he wanted to and he had no recollection of anything ever have been said about refreshers."
Having set out the evidence, the Court concluded:
We have no doubt that where the evidence of Mr Latham differed from the evidence of Hameed Nazham it was the evidence of Mr Latham which we should accept. For example, we do not accept that Mr Latham never discussed with his client the question of sentence, or the credit which might be obtained by pleading guilty, until after he saw the judge on 5th September 2000. We accept that on that day Mr Latham saw Hameed Nazham before going to see the judge, and when he returned from seeing the judge he said nothing to indicate the judge's view of the merits of the case. Mr Latham himself did not feel that he was being pressurised in any way, and that, as it seems to us, is precisely what he would have imparted to his client.
We accept Mr Latham's evaluation of Hameed Nazham as an intelligent man, on top of his case, who carefully weighed his options, and then chose to plead guilty of his own free will, encouraged no doubt by the prospect of being sentenced to less than four years imprisonment. When he eventually changed his plea on 6th September 2000 he was well aware that there would be confiscation proceedings, because that was a topic which had been covered by Mr Latham in conference during the previous afternoon, and he also knew what he had signed in Mr Latham's notebook. It was not a blank sheet of paper, and his evidence to that effect is, in our judgment, almost certainly a deliberate lie."
It is unnecessary to set out the evidence of the first interested party and his trial counsel, Ms Norman. Summonses based on the same or similar informations were also issued in respect of Ms Norman, but, although she was permitted to do so, she has played no part in these proceedings. In paragraph 38, the Court of Appeal concluded:
We found Murtaza Nazham to be, if anything, an even more unreliable witness than Hameed Nazham, and in so far as his evidence was at odds with the evidence of Ms Norman it was her evidence which we preferred. We are satisfied that prior to 5th September 2000 she repeatedly attempted to get from him the instructions she needed to contest the case, and she failed because he had no worthwhile instructions to give. She visited him before going to see the judge, and he was happy she should go because he hoped for information about his possible fate. When she reported back she did not say anything about the judge's attitude to the strength of the case, but she did convey the judge's indication as to the sentence which he would impose if Murtaza Nazham were to plead guilty, and Murtaza Nazham was relieved to receive that information. Relief is quite different from oppression, and we are completely satisfied that when Murtaza Nazham changed his plea he exercised, and willingly exercised, a free choice. It was only much later, after his release from prison, that his researches led him to his present ground of appeal, the main attraction of which may well be a desire to avoid the confiscation orders which the court has made."
The court's overall conclusion in paragraph 39 was as follows:
In this case we are satisfied that it is necessary in the interests of justice for us to receive the evidence which we heard. Having received that evidence we conclude, for the reasons we have given, that -
the judge should not have said what he did in his room, but-
the indication which he gave as to the sentence he was minded to impose in the event of a plea of guilty (which was all that was conveyed to either of the appellants by their counsel) did not improperly inhibit their freedom of choice, or give rise to any injustice, apparent or real.
We reject the submission that it is not in the interests of justice for evidence to be called and received in a case such as this, because it may be necessary, as in this case, to discover the effect of an irregularity which has occurred. In some cases there may be difficulties with legal professional privilege, but if so they will have to be resolved on a case by case basis."
Before turning to the material that was placed before the Magistrates by the interested parties in support of the summonses, it is helpful to refer to two authorities. In R v West London Metropolitan Stipendiary Magistrates ex parte Klahn [1979] 1 WLR 933 the Divisional Court dismissed an application for an order of mandamus requiring the Magistrate to hear the appellant's objections to the issue of summons against him. Giving the judgment of the court, Lord Widgery CJ said at pages 935G to 936A:
""The duty of a magistrate in considering an application for the issue of a summons is to exercise a judicial discretion in deciding whether or not to issue a summons. As Lord Goddard CJ said in R.v.Wilson (pages 46-47):
'A summons is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons.'
It would appear that he should at the very least ascertain: (1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not 'out of time'; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute.
In addition to these specific matters it is clear that he may and indeed should consider whether the allegation is vexatious: see R v Bros (1901) 85 LT 581. Since the matter is properly within the magistrate's discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given. Plainly he should consider the whole of the relevant circumstances."
Lord Widgery added that, while the Magistrate had a residual discretion to hear a proposed defendant if he felt it necessary to do so, he was not under any duty to do so and there was "no question of conducting a preliminary hearing".
In R v Bury Justices ex parte Anderton and others [1987] Crim LR 683, the Divisional Court granted certiorari to quash a summons which had been issued by the Bury Justices. The note of the court's decision states:
"The Court should be very slow to quash a summons issued by a Magistrate, if only because the Magistrates' Court itself had ample power to deal with it. However, where it could be clearly shown that the issue of a summons was an abuse of the process of the court and that the allegations which the summons made were oppressive and vexatious, the High Court had power to grant relief by way of judicial review."
Pausing there, the summonses had referred to "appeal hearings" and the Magistrates were provided by the interested parties with a transcript of the Court of Appeal's decision. The Magistrates had to consider whether issuing these summonses would be an abuse of process and/or vexatious or oppressive. If the summonses were, on the face of it, no more than an attempt to relitigate matters which had been considered by the Court of Appeal, they would be a clear case of an abuse of process and therefore vexatious. It would also be oppressive to require the claimant to reargue the very matters which had been in issue in the Court of Appeal. Mr Southey, who appeared on behalf of the interested parties, very properly accepted that that would have been the position had there been no new material before the Justices. It is therefore necessary to consider with some care the material which the interested parties placed before the Magistrates at the hearing of their applications on 5th January 2007. The interested parties provided the Magistrates with a "Brief Outline of Allegation":
"This is an allegation against both defendants that they knowingly gave false evidence in the appeal proceeding of Murtaza Nazham and Hameed Nazham, at the Royal Courts of Justice, on 12 and 13 February 2004. To put it quite shortly, what the prosecution say that both witnesses had deliberately fabricated evidence, made written statements containing assertions of fact material, which they knew to be false, wilfully lied under oath and misled the Court of Appeal, the Crown and the defence on material issues, to defeat the ends of justice."
The "Case Summary" provided by the interested parties to the Magistrates is in these terms:
"The counts arise out of the conduct and evidence of Miss Elizabeth Anne Norman and Mr Michael Raymond Henri Latham, in connection with the appeal proceedings of Hammed Nazham and Murtaza Nazham, at the Royal Courts of Justice on 12 and 13 February 2004, in respect of an appeal against conviction.
On or about 26th day of April 2002, and on or about 1st day of March 2002, witnesses Miss E Norman and Mr M Latham, respectively, made written statements containing assertions of fact material in particular, which they knew to be false admitted in the aforementioned appeal proceeding on 12 and 13 February 2004. During the course of that appeal hearing, both witnesses also gave oral evidence on oath, and whilst giving evidence had 'wilfully' made false statements material in particular, in those proceedings, which they knew to be false. The evidence given was beyond the possibility or the probability of mistake, it was 'deliberate, calculated and wilful', thereby perverting the course of justice and the outcome of justice.
The main issue of the appeal was whether the defendants (Nazham and Nazham) had a choice as to their plea, as the law states that they should, or were deprived of that choice. On two previous occasions, the Full Court said that the appeal could not be decided without evidence of the previous trial counsels (Miss Norman and Mr Latham). It is the evidence of Miss Norman and Mr Latham that the appeal was decided upon. Therefore, their contribution was substantial and determinative, without them the prosecution had no viable case to oppose the appeal.
The secondary issue was, [whose] evidence the Court should accept - the defendants or the previous trial counsels? This was a case which depended wholly on the evidence of two barristers and defendants, therefore, a situation where there was an oath against oath. The questions then arose who does the Court believe, the defendants or Miss Norman and Mr Latham, members of the Bar. It is clear from the judgment of the Court (9th March 2004) that, the evidence as put before the three Appeal Court Judges by the appellants, there was a stark conflict between theirs and Miss Norman and Mr Latham's. The dismissal of the appeal was only due to the court not being satisfied by the evidence given by the appellants (as stated in the judgment, paras 30 & 38). The three Judges were under the impression that Miss Norman and Mr Latham were telling the truth, and were unaware of the lies that were told, and how they had been deceived.
Subsequent to the appeal proceedings evidence was adduced that proved conclusively that both witnesses had deliberately fabricated evidence, made written statements containing assertions of fact material, which they knew to be false, wilfully lied under oath and misled the Court the Crown and the defence on material issues. The offence disclosed by the indictment and the evidence proffered in support, are, we contend, more than sufficient to sustain the charges."
It must have been apparent to the Magistrates from the Brief Outline and the Case Summary that the summonses were an attempt to relitigate issues which had been determined against the interested parties by the Court of Appeal. Absent any new material of any apparent significance, this was a blatant abuse of process which should have been stopped in its tracks.
What then of the evidence which was adduced subsequent to the appeal, which, in the words of the interested parties, was said to prove "conclusively" that the claimant and Ms Norman had not merely given evidence before the Court of Appeal that might have been inaccurate or mistaken but had "deliberately fabricated evidence" or had "made written statements containing assertions of fact ... which they knew to be false" or had "wilfully lied under oath and misled the court the Crown and the defence on material issues"?
Given that the summonses were, on their face, and in the light of the interested parties' explanatory background material, an attempt to relitigate the Court of Appeal's decision, the Magistrates should have been astute to see whether there really was any new material of any significance or whether the informations were in reality simply an attempt to reopen the very issues that had been determined by the Court of Appeal.
In respect of the claimant the only "new" information, that is to say the information which was not available at the time of the Court of Appeal hearing in February 2004, would appear to have been a statement from the Courts Controller Reliance Custodial Services, dated 10th May 2006, which says:
"I can confirm that the times stated in my original letter, dated 19 March 2003, detailing when your Legal Representatives visited you in the Custody Suite in Birmingham Magistrates Court are correct and that these times are also the first visits from your Legal Representatives."
That letter has to be understood in the context of the earlier letter referred to, which was dated 13th March 2003 (and was thus available at the hearing before the Court of Appeal), from Premier Business Services to the interested parties. That letter, after apologising for the delay in responding, said:
"I can confirm that you both had legal visits on 5 September 2002. Mr Hameed Nazham was seen at 1145 hrs by a representative from Davis Walker's solicitors and Mr Murtzaz Nazham was seen at 1230 hrs by a representative from Millichips Solicitors. I regret that the advocates names were not recorded, only the firm that they worked for."
The hearing in the judge's room began at 10.45 and lasted until 10.54. For completeness, I should mention a letter dated 19th November 2004 from Jeremy Dein QC, who represented the appellants in the Court of Appeal. That letter said, so far as material for present purposes:
"I can categorically say that, on appeal, all matters with regard to timing of legal visits were fully canvassed in cross examination, and in the course of submissions. Of course, the only relevant independent evidence was that concerning Elizabeth Norman. However, in the course of the hearing, the prima facie significance of this material weakened considerably. Due to Ms Norman's disability, she explained in evidence that she was, as a matter of course, permitted in to legal visits through the dock so as to avoid undue inconvenience to herself. Often, no record, was made by those in charge. It therefore became clear that the independent evidence was of little probative value, and nowhere nearly as compelling as first thought. Though their line of reasoning might have been better spelt out in the Judgement, it is undoubtedly the case that the court considered the independent evidence to have fallen by the wayside, as matters developed.
In relation to Michael Latham, as would be evident, there was no independent evidence of importance. In any event, he, too, was cross-examined as to all aspects of his evidence. It is clear from the Judgement, and it was clear from the court's interventions during the hearing that Mr Latham's evidence was accepted.
As for the attendance notes helpfully copied to me, all were served in sufficient time for them to be of use in framing questions asked of Ms Norman, in cross examination. Whilst I addressed my mind to the issue, I concluded that there was nothing by way of admissible evidence to be made use of via the attendance notes."
In respect of Ms Norman, the "new" information amounted to a statement, dated 16th February 2005, from Ms Goldingay, a senior custody officer with Reliance Custodial Services. Ms Goldingay took issue with Ms Norman's claim that she would have been allowed to visit prisoners through the dock. In her statement Ms Goldingay states that she remembered the case on 5th September 200. Her statement continues:
"I understand that one of the Barristers namely Elizabeth NORMAN whom I know as she has visited Warwick Crown Court, on numerous occasions, has stated that she was allowed to visit prisoners through the dock area at Birmingham Magistrates Court on the 5th September 2000. I can specifically say that this would not have been the case. I am aware, as barristers are aware, that they are not allowed to speak to their clients in the dock. I would certainly not have allowed Miss Norman to have entered the dock area and then walk down the 96 steps to see her client. I would not have allowed her to do this firstly because it would not be appropriate and secondly I do not believe that she would have been able to get down the 96 steps to the cell area as I know from personal experience that she had difficulties in negotiating the steps at Warwick Crown Court down to the custody area which [is] probably less than 20 steps.
I would also state that if Miss Norman had, as she said she did, come through the dock area to visit her client this visit would have been recorded as every other legal visit is recorded."
When the court asked Mr Southey whether there was any other "new" material before the Magistrates which the interested parties had not been able to place before the Court of Appeal, he confirmed that the new material was limited to the information to which I have just referred.
In respect of Ms Norman, it is to be noted that Ms Goldingay does not say of her own knowledge that the visit through the dock did not occur, she merely states that under the system operated by her it would not have been allowed to occur. The fact that there is therefore a degree of conflict between her statement about the system in force and Ms Norman's recollection of what actually occurred does not demonstrate that Ms Norman's recollection is in error, much less that there was any wilful lie under oath which was intended to mislead the Court of Appeal. There was simply no material whatsoever before the Magistrates on which they could reasonably have concluded that it was appropriate to issue a summons against Ms Norman alleging that she had attempted to pervert the course of justice.
In respect of the claimant, the "new" material is even more threadbare, insofar as that is possible. It is clear from the documents to which I have referred that the recorded time of the visit (11.45) was known before the Court of Appeal hearing, and that the claimant was cross-examined by Mr Dein QC about that very issue. The Court of Appeal recorded in paragraph 27 of its judgment that the claimant's evidence was that he "believed that he saw Hameed Nazham on 5th September before he went to see the judge". It is important to read paragraph 27 as a whole. If that is done, it is plain that, apart from the entry in his notebook in which Hameed Nazham signed the written acknowledgment of his decision to change his plea, the claimant was not purporting to rely on contemporaneous notes, he was giving evidence as to his recollection of a meeting some three and-a-half years before. He was giving evidence in February 2004 and the meeting with the judge had taken place on 5th September 2000. Thus, in addition to recording his belief that there was a meeting with the second interested party on 5th September before the meeting with the judge, the court also records "he [Mr Latham] could not recall any previous discussion with his client as to possible sentence, but said that such a discussion was almost inevitable, and he would have pointed out that credit would be given for a plea of guilty". In short, the claimant was setting out his recollection of events some years earlier. In these circumstances, it is quite impossible to see how, even if the claimant's belief was in error, that erroneous belief could conceivably be the foundation for an allegation of an intention to pervert the course of justice. There is nothing whatsoever to suggest that, in stating his belief as to the sequence of events on 5th September 2000, the claimant had intended to mislead the court in any way. Again, there was simply no material on which any reasonable court could have issued a summons against him.
When the defendant court disclosed the "new information" on which the summonses had been sought, the claimant's response was as follows:
"It is submitted that, whether or not there was a conference at court before the Claimant saw the judge, it is evident from consideration of the evidence that no question of a plea of guilty arose prior to the meeting with the judge. In fact, had the magistrates invited a response from the Claimant to the application for summonses, they would have learned that the Claimant was probably (though not necessarily) mistaken in asserting that a conference had taken place at court that morning before he saw the judge. They would also have learned that a conference did take place the previous day - Monday 4 September 2000 - at HM Prison Blakenhurst, where [the second interested party] was held on remand. It follows that the issue of whether a conference took place on the morning of 5 September 2000 or the afternoon of 4 September is nothing to the point, since when the Claimant went to see the judge he was concerned only with the issue of trial management."
Whether the meeting took place on 5th September or the previous day was not the issue in any event. The issue for the Court of Appeal was whether the interested parties had pleaded guilty of their own free will or whether they had done so because they had been "pressurised" by counsel to do so, ie whether they had been pressured by counsel after the visit to the judge because of what the interested parties had been told by counsel as to what the judge had said. It is common ground that, having told the second interested party about the discussion in the judge's room on 5th September, the claimant then ensured that the second interested party had time to reflect. The second interested party's plea of guilty was in fact entered on 7th September, not 6th September, as stated in paragraph 31 of the Court of Appeal's judgment. That was after the second interested party had signed a written acknowledgment in the claimant's notebook of his decision to change his plea. The Court of Appeal rejected the second interested party's evidence that he had been asked to sign a blank sheet of paper.
In reality, the "new" material has no bearing whatsoever on the Court of Appeal's conclusions in paragraph 31 of its judgment that the second interested party was "an intelligent man, on top of his case, who carefully weighed his options, and then chose to plead guilty of his own free will". In these circumstances, I for my part find it impossible to see how the defendant court could reasonably have concluded that the material in support of the informations included anything of significance that had not already been considered by the Court of Appeal.
In summary, there was no rational basis on which it could have been concluded that the informations were not in reality an attempt to relitigate issues that had been determined by the Court of Appeal and were therefore an abuse of process, vexatious and oppressive. In his skeleton argument on behalf of the interested parties, Mr Southey submitted that the right to bring a private prosecution was an important constitutional right, that any consideration of the issue of a summons was bound to be a relatively summary procedure and that any unfairness caused by such a summary procedure could be addressed after the summonses had been issued, for example by an application to dismiss or stay them on the basis that there was an abuse of process. For my part, I find it unnecessary to refer to the authorities which he cited in his skeleton argument in support of those submissions because in his skeleton argument and in his submissions he properly accepted that this court had power to grant relief in cases where issuing a summons was an abuse of process or oppressive or vexatious: see the Bury Magistrates case above. It is true that the court stated that the jurisdiction to do so should be exercised only in exceptional circumstances. For my part, I am satisfied that this is such an exceptional case. It is not often that a litigant seeks to relitigate a Court of Appeal decision by means of issuing summonses before the Magistrates.
Since that was plainly the position in the present case, the Magistrate decision to issue the summonses against the claimant must in my judgment be quashed. Though Ms Norman has not participated in these proceedings, the same considerations apply to the summonses in her case. For the reasons that I have set out above, there was nothing before the Magistrates which could have persuaded any reasonable bench that it was appropriate to issue a summons against her. The Magistrates asked the CPS to take over both prosecutions. We were told that the CPS have taken no further action pending this court's decision in this case. In respect of the summonses against Ms Norman I would merely say that the CPS will now be able to take into consideration this court's comments in deciding whether or not it would be proper to continue proceedings against her; but in respect of the summonses against the claimant that are before us, for my part I would quash them for the reasons set out above.
LORD JUSTICE MOSES: I agree.
MR JUSTICE FORBES: I also agree.
LORD JUSTICE MOSES: Now, Mr Hardy, there was a claim for damages. What we suggest, if you really want to pursue this, is that you must pursue separate proceedings out of the Administrative Court.
MR HARDY: So be it, my Lord. I will not seek to persuade your Lordships to give any directions. There remains the issue of costs. I am very grateful to my learned friend for observations made outside court. On one view, those who should pay the costs of this case are the interested parties but that would of itself involve this court or its administrative staff --
LORD JUSTICE MOSES: So what are you asking?
MR HARDY: I am asking for costs out of central funds. I do so, my Lord, pursuant to section 16(5) of the Prosecution of Offences Act 1985. It is in chapter 66 of Archbold.
LORD JUSTICE MOSES: Have you observations on that?
MR SOUTHEY: My Lord, I think it was my suggestion out of court --
LORD JUSTICE MOSES: But do you accept they have power to order them out of central funds?
MR SOUTHEY: Yes, my Lord.
LORD JUSTICE MOSES: That is what we will do then.
MR HARDY: Subject to detailed assessment, my Lord.
LORD JUSTICE MOSES: Yes, thank you very much.
MR SOUTHEY: My Lord, just one thing in relation to the damages, because obviously my learned friend says he is not seeking directions. As I understand it, the claim is quashed --
LORD JUSTICE MOSES: The claim is no longer to be in the Administrative Court. If he wishes to pursue it, he must issue a writ.
MR SOUTHEY: That is what I understood the court to mean. I just wanted to clarify that.
LORD JUSTICE MOSES: Thank you very much.