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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Panday v. Virgil (Trinidad and Tobago) [2008] UKPC 24 (9 April 2008) URL: http://www.bailii.org/uk/cases/UKPC/2008/24.html Cite as: [2008] UKPC 24, [2008] 3 WLR 296, [2008] 1 AC 1386, [2008] 2 Cr App R 21, [2008] 2 Cr App Rep 21, [2008] AC 1386

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Panday v. Virgil (Trinidad and Tobago) [2008] UKPC 24 (9 April 2008)

Privy Council Appeal No 50 of 2007

Basdeo Panday Appellant

v.

Senior Superintendent Wellington Virgil Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 9^th April 2008

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Present at the hearing:-

Lord Hoffmann

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

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[Delivered by Lord Brown of Eaton-under-Heywood]

1. The appellant is the Leader of the Opposition in Trinidad and Tobago, having previously been Prime Minister. On 18 September 2002 three summonses were issued charging him with three offences of knowingly making false declarations as to his financial affairs in the calendar years 1997, 1998 and 1999, contrary to section 27(1)(b) of the Integrity in Public Life Act 1987 (the 1987 Act). The declarations were made respectively on 9 April 1999, 23 December 1999 and 21 March 2001 and failed to disclose sums held jointly with his wife in an account at the Wimbledon Hill, London branch of the National Westminster Bank, sums respectively of £11,814 (for 1997), £37,033 (for 1998) and £110,752 (for 1999).
2. During those years, as a person in public life, the appellant was required by section 13 of the 1987 Act to file, annually by 31 May of the following year (section 15), a declaration of his financial affairs, including monies beneficially held abroad (section 17). Section 27(1) of the 1987 Act provided that:

"A person who . . . (b) knowingly makes a declaration that is false in some material particular . . . is guilty of an offence, and liable on summary conviction to a fine of $20,000 and to imprisonment for a term of two years, and where the offence involves a deliberate non-disclosure of property the Court may, in addition . . . (ii) where the property involved is situated outside Trinidad and Tobago, order that an amount equivalent to the value of the property . . . be paid by the person in public life to the State."

3. Following a hearing between 20-27 March 2006 the Chief Magistrate on 24 April 2006 convicted the appellant of all three offences and imposed the maximum sentences available: two years imprisonment with hard labour on each charge concurrently, a fine of $20,000 (with three years imprisonment in default) for each offence, and payment to the state of the equivalent of £159,599.
4. The appellant appealed against both conviction and sentence. The Court of Appeal (Warner, Archie and Weekes, JJA) heard the appeal from 22-29 January 2007. Further submissions were made on 19 March 2007. On 20 March the court gave a short oral judgment allowing the appeal, quashing the conviction on the ground of apparent bias and ordering a retrial before a different magistrate. Written reasons for the decision were given on 4 April 2007.
5. By leave of the Board granted on 4 October 2007 the appellant now appeals against the Court of Appeal's order for a retrial. He does so on three grounds. First, he contends that the prosecution was time-barred before ever he was charged with these offences; secondly, he says that the Court of Appeal should have stayed any further proceedings as an abuse of process (rather than ordered a retrial) because the Chief Magistrate, in convicting him, had been influenced by improper government pressure, a fundamental violation of the rule of law; thirdly, he submits that in any event it would be an abuse of process now to retry him given his age (74), his state of health, and the substantial costs which he would incur in defending himself afresh (largely irrecoverable, even were he to be acquitted).

1. The limitation point

6. Section 27(1) of the 1987 Act expressly creates a summary offence and section 33(2) of the Summary Courts Act 1918 (as amended) provides:

"In every case where no time is specially limited for making a complaint for a summary offence in the Act relating to such offence, the complaint shall be made within six months from the time when the matter of the complaint arose, and not after."

These are the provisions upon which the appellant principally relies in contending for a six-month rather than five-year time limit in respect of the offences charged against him. However, section 28 of the 1987 Act provides:

"No prosecution for an offence under this Act, other than an offence under section 12(2) [the disclosure of confidential information by members of the Integrity Commission or those working for it], may be instituted (a) without the written consent of the Director of Public Prosecutions; or (b) after five years from the date when the person in respect of whose declaration or financial affairs the alleged offence was committed, ceased to be a person in public life."

7. Consistently with section 28(b), moreover, section 23 makes provision for inquiries into "the accuracy or fullness" of declarations filed by those in public life and by subsection 4 provides:

"An inquiry may not be commenced after five years from the date when the person in respect of whose declaration the inquiry is being conducted ceased to be a person in public life."

8. It is Mr Clayton QC's somewhat surprising first submission that, section 28(b) of the 1987 Act notwithstanding, the time for making a complaint under that Act is not "specially limited" within the meaning of the Summary Courts Act. Rather he submits that section 28(b) prescribes what he calls a "longstop" when any potential liability for prosecution under the 1987 Act ceases. This, he argues, would not inevitably be otiose: it is possible to envisage an offence arising out of a section 23 inquiry set up towards the end of the specified five-year period in respect of which a five year longstop bar could take effect before the usual six month limitation period. The argument is absurdly far-fetched. The Board regards it as perfectly obvious that the time for making a complaint under the 1987 Act is "specially limited" by section 28(b) to five years after the putative defendant ceases to be a person in public life.
9. Mr Clayton's second argument for a six months time limit rests upon the repeal of the 1987 Act and its replacement by the Integrity in Public Life Act 2000 (as amended by the Integrity in Public Life (Amendment) Act 2000) with effect from 6 November 2000. Un-amended, the 2000 Act by section 21(5) had simply re-enacted section 28 of the 1987 Act. The amendment, however, deleted the five-year provision originally found in section 28(b) of the 1987 Act. Let it be assumed, therefore, that complaints under the 2000 Act as amended must be made within six months from when the subject matter of the complaint arises.
10. Mr Clayton argues that by virtue of section 29(2)(c) of the Interpretation Act 1962 the same six months time limit which would now apply to prosecutions under the 2000 Act must apply also to prosecutions under the 1987 Act. Section 29, under the shoulder heading "Effect of substituting provisions", provides so far as relevant:

"(2) Where a written law repeals or revokes a written law (in this subsection . . . called the 'old law') and substitutes another written law therefor by way of amendment, revision or consolidation . . . (c) all proceedings taken under the old law shall be prosecuted and continued under and in conformity with the written law so substituted, so far as consistently may be."

11. Mr Clayton recognises, as he must, that the offences alleged against the appellant are offences committed under the 1987 Act (the "old law" within the meaning of section 29(2)) but, he submits, section 29(2)(c) requires that they can only "be prosecuted . . . under and in conformity with" the 2000 Act (the "written law" which is now "substituted" for the 1987 Act).
12. The submission is a puzzling one. It affords no explanation as to why, given that a five-year limitation period applied to the prospective prosecution of these offences as at 6 November 2000 (when the 2000 Act came into force), suddenly, at that date, all offences under the earlier legislation (save where the complaint arose within the immediately preceding six months) became time barred. Nor is it readily apparent how the omission of the five-year time limit from the new legislation can properly be regarded as having "substitute[d]" a six month time limit for that which had earlier applied. But the core and in the Board's opinion insuperable difficulty in the appellant's path lies in the clear language of section 27 of the Interpretation Act under the more directly relevant shoulder heading "Effect of repeal". Section 27(1) provides:

"Where a written law repeals or revokes a written law, the repeal or revocation does not, except as in this section otherwise provided, and unless the contrary intention appears . . . (b) affect the previous operation of the written law so repealed or revoked, or anything duly done or suffered thereunder; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the written law so repealed or revoked; (d) affect any offence committed against the written law so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as mentioned above, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the written law had not been repealed or revoked."

13. The short answer to Mr Clayton's second submission is that, unless a contrary intention appears, section 27 expressly allows "legal proceedings" to "be instituted" in respect of "any offence committed against the written law so repealed" "as if the written law has not been repealed". So far from any contrary intention appearing, moreover, the 2000 Act itself provides by section 44:

"Where anything has been commenced by or under the authority of the Integrity Commission under the Integrity in Public Life Act, 1987, repealed by this Act, such thing may be carried out and completed by or under the authority of the Integrity Commission."

14. Their Lordships do not suggest that section 44 (a transitional provision) has any direct application to this case; it indicates, however, that there was no intention to draw a line, such as effectively would be drawn by the sudden retrospective introduction of a six months time limit, under the workings of the 1987 Act. Suppose, for example, the Integrity Commission had already set up a section 23 inquiry with a view to possible future criminal proceedings. On the appellant's argument there would be no point in completing its work even though section 44 of the 2000 Act provides for this. In short, even supposing that section 29(2)(c) has any application here (and it is difficult to accept that the 2002 Act substituted a six-month for a five-year time limit in the 1987 Act "by way of amendment, revision or consolidation", the definition of "amend" – and then "repeal" – in section 75(1) of the Interpretation Act notwithstanding), the appellant's argument cannot survive the closing words of that provision "so far as consistently may be".
15. The Court of Appeal's judgment presently under appeal said nothing about the limitation point despite it having been argued. Two reasons suggest themselves for this. First, the argument had already been fully considered and rejected by the Court of Appeal (Warner, Kangaloo and Archie JJA) in the course of a constitutional challenge brought by the appellant at the very outset of these long protracted proceedings—a challenge also advanced under section 4 of the Constitution. This had been dismissed successively by Rajnaugh-Lee J in February 2004, the Court of Appeal (with costs) on 22 April 2005, and the Judicial Committee's refusal of leave to appeal on 16 February 2006. Secondly, the Court of Appeal (again Warner, Kangaloo and Archie JJA) on 15 March 2007 (only weeks, therefore, before the Court of Appeal's judgment in the present case) gave judgment to like effect in Finbar Gangar v Her Worship Ejenny Espinet, describing it as "the sequel" to their judgment of 22 April 2005 in the appellant's case. Although it appears that the limitation point was differently argued there, it met with no greater success. No purpose would be served by an analysis of the arguments advanced and judgments given in those two earlier decisions. The Board has sufficiently stated why the point is a bad one. The Board would add that in doing so it has taken fully into account the very extensive (26 page) written case prepared by Mr Roy Amlot QC and Sir Henry Forde QC dated 6 March 2008 (following the hearing in the present appeal at which Mr Amlot was present) on Mr Finbar Gangar's behalf in his presently pending appeal before the Board, as it has been asked to do both by him and by the present appellant.

2. The abuse of process/rule of law argument

16. Some limited further reference to the facts is necessary for an understanding of this argument. The appellant's appeal against conviction was, as stated, allowed on the ground of apparent bias. Put shortly, the appeal had arisen out of very much the same factual circumstances as gave rise to the Board's decision in Sharma v Brown-Antoine and others [2007] 1 WLR 780. That decision concerned the prosecution of the recently retired Chief Justice of Trinidad and Tobago and is likely to be familiar to any reader of the present judgment. Reference may be made to it for a fuller description of the surrounding facts. Essentially it comes to this. On 5 May 2006, shortly after convicting and sentencing the appellant, the Chief Magistrate signed a statement to the effect that on three occasions, one before, one during and one after the appellant's trial, the Chief Justice (he and the appellant being the two most prominent members of Trinidad and Tobago's Indo-Caribbean community) had sought to influence him (the Chief Magistrate) in the appellant's favour. The Chief Justice for his part roundly contradicted the allegation. Over the same period the Chief Magistrate had also met the Attorney-General in connection with a real property transaction in which the Chief Magistrate was then engaged (involving amongst other things his receipt of a cheque for $400,000 on 31 March 2006 which shortly afterwards he returned) which transaction, it was suggested, was also discussed between the Chief Magistrate and the Chief Justice and which in some way was said to give the Government a hold over the magistrate.
17. Not a word of all this was mentioned to the appellant before the Chief Magistrate's written judgment convicting him and this it was which decided the Court of Appeal to find the case of apparent bias made out. Warner JA said (para 93) that "the Chief Magistrate had a duty in the circumstances to inform the parties about all the matters which were troubling him—the cheque, his approach to the Attorney-General, and his fears about the conversations, which he said he had with the Chief Justice". Both she and Archie JA were struck by the fact that, as Archie JA had put it at para 51, the Magistrate in his written judgment had "felt constrained to assert that he had not been influenced in his decision by anything that took place before, during or after the hearing of the evidence". The Court was clearly influenced too by the fact that on 5 March 2007 (after the main argument on appeal had been heard) the Chief Magistrate had declined to give evidence in the case then proceeding against the Chief Justice (as a result of which the state had elected not to proceed further with that prosecution).
18. All that said, it is appropriate to record that apparent bias is as far as the judgment went. The Court of Appeal expressly made no finding of actual bias on the Magistrate's part. Indeed, at para 37 of Archie JA's judgment appears this:

"It is fair to say that, when pressed for direct evidence (as opposed to hearsay accounts or suspicion) that there was something fraudulent about the Chief Magistrate's land transaction by reason of which the Government held a 'sword of Damocles' over his head, Mr Clayton retreated from that proposition."

19. It was only in relation to the question whether or not a retrial should be ordered that, as Warner JA put it at para 116:

"[Mr Clayton] wished to argue that the Government had sought to apply pressure and improper influence on the Chief Magistrate to convict the appellant. To that end he asked this Court to admit hearsay evidence arising not only in press statements, but other material which had been sent to attorneys. Counsel for the appellant also raised the question of delay arising from the date of the alleged commission of the offences."

20. The Court of Appeal refused to allow the argument or admit the proposed hearsay evidence. As Archie JA observed (para 65):

"It was not appropriate to reopen the hearing of this appeal in the absence of any further and potentially compelling evidence. If there is a retrial and there is admissible evidence of oppression or abuse of process, the appellant will have the opportunity to make an application in limine."

That was the view too of Warner JA. The Court of Appeal decided there were clear reasons why a retrial should be ordered. The imposition of a permanent stay should be the exception, not the rule. The prosecution had not itself been at fault and based its case against the appellant on apparently clear and cogent evidence. There is a substantial public interest in having offences of the kind alleged against the appellant properly tried.

21. In submitting that the Court of Appeal erred in law in ordering a retrial, Mr Clayton advances and needs to make good the following three principal submissions:

"(i) That the Court of Appeal could and should have admitted hearsay evidence and concluded from it that the Government had indeed exerted influence on the Chief Magistrate to convict the appellant.

(ii) That such a conclusion would necessarily have led to the Court of Appeal imposing a permanent stay under the principle established by the House of Lords in R v Horseferry Road Magistrates Ex p Bennett [1994] 1AC 42: the Court has the power to prevent the abuse of executive powers which threaten the rule of law.

(iii) That it would not be open to the magistrate on the appellant's retrial to exercise a comparable jurisdiction."

22. At an early stage of his submissions Mr Clayton made plain two matters. First, that the abuse of executive power of which he complains was the Government's behaviour during the appellant's trial before the Chief Magistrate; it could not plausibly be suggested that the Government had improperly influenced the instigation of proceedings against the appellant in the first place. Secondly, Mr Clayton specifically disavows any contention that the appellant will be unable to get a fair trial before a different magistrate.
23. In the light of these considerations the Board was prepared to assume that the Government could be shown to have exercised unlawful influence on the original trial—though in truth the appellant's difficulties in making good that first submission need hardly be emphasised.
24. It is at the stage of the second submission that the argument in any event breaks down: the Board simply cannot recognise in this case, even on the assumption made, an abuse of executive power akin to that established in Bennett such as to call for a permanent stay of further proceedings. It is necessary at this stage to look at the Bennett principle and one or two of the later cases which applied it.
25. Bennett was unlawfully brought to this country as a result of collusion between the South African and British police and on arrival here was arrested and brought before magistrates to be committed for trial. The House held by a majority of four to one that in those circumstances the English court should refuse to try the defendant. As Lord Griffiths put it (at p61-62):

"In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law."

26. The Bennett principle was directly applied by the Court of Appeal (Criminal Division) in R v Mullen [2004] 2 Cr App R 290 where it was held that the British authorities, in securing Mullen's deportation from Zimbabwe, had been guilty of "a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts" so that when, many years later, this came to light, his conviction fell to be quashed.
27. The Bennett principle was applied also in the context of entrapment. Two such cases may be mentioned. In R v Latif [1996] 1 WLR 104 Lord Steyn said, at p112, that the Court should exercise the jurisdiction when, "[w]eighing countervailing considerations of policy and justice", the judge considers that the bringing of the prosecution "amounts to an affront to the public conscience". Just how that approach should apply in any particular case was further considered by the House in R v Looseley [2001] 1 WLR 2060 where the principle was laid down that it would be unfair and an abuse of process if the defendant had been lured, incited or pressurised into committing a crime which he would not otherwise have committed but not if the law enforcement officer, behaving as an ordinary member of the public would behave, merely gave a person an unexceptional opportunity to commit a crime and that person freely took advantage of the opportunity.
28. It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the Court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place. But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law. As Lord Hoffmann put it in Looseley at para 40:

"The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths [in Bennett] described the jurisdiction more broadly and, I respectfully think, more accurately, as the jurisdiction to prevent abuse of executive power."

That principle simply has no application here. This appellant has, quite rightly, had his conviction quashed. A fortiori that would have been the appropriate result had he established not merely apparent bias but, consequent on government pressure to convict, actual bias. But the quashing of his conviction restores the appellant to the position he was in before the unfair trial. Why should his success gain him immunity from what is conceded to be the position he now faces under the Court of Appeal's order: a fair trial upon charges properly brought?

29. Their Lordships having decided that the Bennett principle cannot in any event be invoked here, it is strictly unnecessary to address Mr Clayton's third submission—his contention that, if Bennett applied, the magistrate would be unable to exercise the relevant jurisdiction so that the Court of Appeal ought themselves to have dealt with the issue and not remitted it. Since, however, the matter was fully argued and since the Board has reached a clear view upon it, a brief judgment on the point may assist in future cases.
30. Mr Clayton founds this submission on a single passage from Lord Griffiths' speech in Bennett (at p64):

"I would accordingly affirm the power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures. Although it may be convenient to label the wider supervisory jurisdiction with which we are concerned in this appeal under the head of abuse of process, it is in fact a horse of a very different colour from the narrower issues that arise when considering domestic criminal trial procedures. . . . [T]his wider responsibility for upholding the rule of law must be that of the High Court and . . . if a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court which I regard as the proper forum in which such a decision should be taken."

31. No other member of the Committee addressed the particular question as to when exactly it is open to magistrates to exercise this wider supervisory jurisdiction themselves rather than adjourn the proceedings for a judicial review application to be made in the Divisional Court. Although in the passage cited Lord Griffiths initially draws the distinction between on the one hand "matters directly affecting the fairness of the trial . . . such as delay or unfair manipulation of court procedures" and on the other hand "the wider supervisory jurisdiction" (the latter being described as "a horse of a very different colour from the narrower issues which arise when considering domestic criminal trial procedures"), the only illustration he gives of "this wider responsibility for upholding the rule of law" is when "a serious question arises as to the deliberate abuse of extradition procedures", the very question raised in Bennett itself.
32. Lord Griffiths had earlier in his speech noted with approval a number of authorities recognising the magistrate's power, albeit to be "most sparingly exercised", to decline to allow a criminal prosecution to proceed on the ground that it was oppressive or otherwise an abuse of the court's process. And Lord Oliver, although dissenting on the main issue as to whether any court could properly restrain a prosecution just because it followed on from an unlawful extradition, accepted (at p70) "that the court has power to prevent the abuse of its own process". This would "include the power to investigate the bona fides of the charge which it is called upon to try and to decline to entertain a charge instituted in bad faith or oppressively—for instance, if the accused's co-operation in the investigation of a crime has been secured by an executive undertaking that no prosecution will take place" (another clear illustration of circumstances in which the defendant ought never to have been before the court at all).
33. Their Lordships have already mentioned the entrapment cases as an example of the Bennett principle in action. On one reading of Lord Griffiths' speech those cases too, like the unlawful extradition cases, could be said to involve "the wider supervisory jurisdiction" rather than "matters directly affecting the fairness of the trial". It is the Board's clear view, however, that if the defence of entrapment is raised before magistrates, rather than adjourn the proceedings for a judicial review application to be made, they should themselves decide on which side of the Loosely line the case falls: i.e. whether the defendant was incited to commit the offence or merely given the opportunity to do so. So too it would be for the trial court (whether magistrates or a judge) to decide whether a charge had been instituted in bad faith or oppressively, for example in breach of an executive undertaking or indemnity.
34. The Divisional Court case of R v Belmarsh Magistrates Court Ex p Watts [1999] 2 Crim App Rep 188 provides another useful illustration of where it is appropriate for the magistrate himself, even though the fairness of the trial is not itself threatened, to entertain what might broadly be regarded as a Bennett type defence, there a contention that the complainant's summons constituted a collateral attack upon his own conviction. If the Board have any criticism to make of Buxton LJ's analysis (at p195) of the limited circumstances in which, pursuant to Bennett, magistrates must themselves decline jurisdiction, it is that it does not go far enough in narrowing down that class of case. Indeed their Lordships find it difficult to think of any situation save where, as in Bennett itself, the accused has been unlawfully brought within the jurisdiction, in which the magistrates would have to adjourn the proceedings in favour of a judicial review challenge. The rationale for that particular exception must be that unlawful extradition introduces into the case cross-border considerations which may be of a sensitive character and which certainly range far outside the prosecution process itself.
35. It is to be noted in this connection that in Sharma v Brown-Antoine all five members of the Judicial Committee took the view that the Chief Justice's complaints—involving not least an attack on the decision to prosecute him as being politically motivated or influenced, could and should properly be resolved within the criminal process itself rather than by way of a judicial review challenge. Mr Clayton seeks to distinguish that case on the basis that the Chief Justice was to be tried not summarily but on indictment. Their Lordships, however, cannot see this as a relevant distinction.

3. The residual abuse of process argument

36. This final ground of appeal can be disposed of altogether more briefly. Mr Clayton has placed before the Board a detailed medical report from Dr Mark Kinirons, a consultant physician at St Thomas' Hospital, London, following his examination of the appellant on 4 May 2007. The appellant suffers from a heart condition and diabetes. Dr Kinirons concludes that he "is under significant stress by virtue of a threat of retrial" and that his health and well-being are affected not only by his medical condition but also by his fears of future imprisonment and the "shortcomings of the prison conditions" (he was in custody for six days after conviction before being released on bail).
37. Mr Clayton relies too on the very substantial costs which the appellant has already incurred defending himself in these proceedings (said to amount to some £80,000)—costs which he says are for the most part irrecoverable under the governing Costs Regulations because they were incurred in summary proceedings. The state has been represented throughout by expensive London counsel, Sir Timothy Cassel QC—perhaps to ensure counsel's political neutrality—and, says Mr Clayton, for the appellant to enjoy equality of arms at any retrial, he would himself need to incur substantial further expense. None of these matters, however, were put before the Court of Appeal. No medical evidence was adduced at that stage. Nothing was said to suggest that the appellant would be unable to afford proper representation at a retrial. Indeed it appears that the Court of Appeal were not even invited to make such modest costs order as could have been made in the appellant's favour upon the quashing of his conviction. Certainly a considerable length of time has now elapsed since these complaints were laid (although one cannot but observe that the first three years were spent disposing of the appellant's misconceived initial constitutional challenge) and plainly the appellant is becoming older. But there is no possible basis upon which the Board as an appellate tribunal could now properly accede to this last ditch submission and declare that the proposed retrial would constitute an abuse of process. Any such contention (which the Board by no means encourages) must obviously be addressed to the magistrate. Frankly it should never have been raised as a ground of appeal.

Conclusion

38. In the result the appeal fails and must be dismissed. In the ordinary way the appellant would in these circumstances expect to pay the state's costs. The Board has, however, a general discretion in the matter—see Benedetto v The Queen (No. 2) [2004] 1 WLR 500—and in the particular circumstances of this case—given above all the substantial costs expenditure by the appellant both in contesting the initial trial and in having his conviction set aside—the Board will make no order for costs.