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Royal Courts of Justice

The Strand

London WC2

Tuesday 15th September 1998

B E F O R E :

LORD JUSTICE BROOKE

MR JUSTICE KAY

and

MR JUSTICE MAURICE KAY

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R E G I N A

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GUARDIAN NEWSPAPERS LTD

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR M TUGENDHAT QC appeared on behalf of the GUARDIAN NEWSPAPERS LTD

MR E LAWSON QC appeared on behalf of PALMER

MR A JONES QC and MR WOOD appeared on behalf HASMEMI

MR R BOYLE appeared on behalf of the Crown

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PROCEEDINGS

( As Approved by the Court )

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Crown Copyright

Tuesday 15th September 1998

LORD JUSTICE BROOKE: This is not a formal judgment. The Court is of the opinion, for reasons which will be given in due course, that Rule 24A of the Crown Court Rules 1982 did apply to the proceedings before Collins J. Accordingly Rule 16B of the Criminal Appeal Rules 1968 applies.

We will grant leave to appeal. For fairly obvious reasons, we want to be able to dispose of this appeal without a hearing under sub-rule 7 as speedily as is practicable but Mr Tugendhat has said that he would wish to put in an affidavit concerning what was in the notice of appeal and I do not know whether any other party would wish to submit any other material other than what we have got at the moment. If they did so they would have to do it within 7 days. At the moment the timetable we are working towards is that we would give judgment in relation to this matter when we are reconvening anyhow on 30th September.

MR JONES: My problem is that we would wish to put in some material of a factual nature and short legal submissions. We shall do that normally in 7 days.

LORD JUSTICE BROOKE: Will these be ex parte submissions or submissions which will be to the parties who were in camera or Mr Tugendhat and his clients or what?

MR JONES: Partly open, but partly, I regret to say, they will have to be in camera.

LORD JUSTICE BROOKE: Will the Crown be wanting to add to the volume of paper that has been put before us already?

MR BOYLE: I do not know, much depends on submissions put in.

LORD JUSTICE BROOKE: We will have to have some kind of ordered timetable. We must have these submissions next week. Having looked at the timetable, I see one member of the Court is going to be abroad for the last three days, whether Wednesday or Friday, is not going to affect me very much but I do not know if we can work out a time table by which the end of the paper we get finishes at 4.30 on Friday. Mr Jones, when will you be able to let us have a paper of some kind or another in time for Mr Boyle to consider whether to respond to it in some way.

MR JONES: Could you say by Tuesday evening of next week?

LORD JUSTICE BROOKE: 6.00 pm -- 4.00 pm, Mr Lawson, 4.00 pm on Tuesday. Mr Tugendhat, do you want to do anything than the affidavit.

MR TUGENDHAT: At the moment I do not. If I receive something from Mr Jones which is not ex parte and which does call for something useful I can contribute, I would like to do that. I accept the note of the period would have to be very short. I could certainly meet it by 4.00 pm.

MR JUSTICE KAY: Noon on Friday. I leave London on noon on Friday.

MR TUGENDHAT: Even shorter than that. So long as I know I will get it direct from Mr Lawson, communications between us have been good.

LORD JUSTICE BROOKE: But the affidavit of Mr Gillard can be----

MR TUGENDHAT: It has been sworn.

LORD JUSTICE BROOKE: That can be filed within 24 hours. We give you leave to file that affidavit within 24 hours of today by 4.00 pm tomorrow. Leave to the defendants in the criminal trial to submit written submissions to the Court, and/or evidence, I suppose, either on a restrictive basis or on an open basis, or both. If it is on an open basis, it has to be served on Mr Tugendhat's client by 4.00 pm on Tuesday and then liberty to the Crown and Guardian Newspapers to serve further or original submissions in writing by noon on Friday. Then all being well, one never knows, we would hope to be able to give judgment on Wednesday 30th, not before 2.00 pm.

MR LAWSON: Rather than detaining you further now, we could have liberty to make application in writing, if need be, relating to legal aid taxation. We are both in the same boat, we are either legally aided here today or we are pro bono . We need to look into it further, so can I just ask for liberty to apply in relation to that?

LORD JUSTICE BROOKE: You can certainly have liberty to apply. It seems to be a rather grey area.

MR TUGENDHAT: I was not going to mention it today, I would implore your Lordships attention to section 159(5)(c), which gives you power to make order as to costs as you think fit. Depending on the further progress of the appeal, we may or may not wish to make submissions under that section.

LORD JUSTICE BROOKE: Section 159, page 875. Subsection (5), do you say?

MR TUGENDHAT: Subsection (5)(c) gives the Court power to make such order as to costs as you think fit.

LORD JUSTICE BROOKE: When we give judgment, it may be that that part of our judgment may have to be restricted so far as your clients are concerned and then we will hear submissions as to costs afterwards. If any counsel cannot be here on the 30th, provided they are appropriately covered and competent to argue any subsidiary orders, that will be satisfactory.