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Ian West Contempt CACD Judgment - Final 17.7.14-1

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Ian West Contempt CACD Judgment - Final 17.7.14-1
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     Neutral Citation Number: [2014] EWCA Crim 1480 Case No: 201402304B5  IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT DURHAM His Honour Judge Kelson Q.C. Arising from Indictment No: T20147076 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2014  Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION  (SIR BRIAN LEVESON) MRS JUSTICE PATTERSON D.B.E. and  SIR RICHARD HENRIQUES (sitting as a Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - In the matter of: IAN STUART WEST Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Bryan Cox Q.C.  for the Appellant Mr Oliver Glasgow  as amicus curiae  Hearing date : 12 June 2014 - - - - - - - - - - - - - - - - - - - - - Approved Judgment  Judgment Approved by the court for handing down. R v West Sir Brian Leveson P :  1.   On 25 April 2014, in the Crown Court at Durham, following summary contempt  proceedings, Ian Stuart West, a barrister, was found by His Honour Judge Kelson Q.C. to be in contempt of court: he was ordered to pay a fine of £500. The alleged contempt arose out of the his conduct whilst instructed to act as defence counsel at a  preliminary hearing held in the Crown Court on 14 April 2014 in the case  R v Ingham . 2.   Mr West, represented  pro bono  by Mr Bryan Cox Q.C. (who similarly represented him at the contempt hearing) appeals the finding of contempt pursuant to s. 13 of the Administration of Justice Act 1960. We are grateful for the help that Mr Cox has  provided but, given the issues which arise, the court sought the assistance of an amicus curiae  and we are also grateful to Mr Oliver Glasgow who was instructed by the Attorney General to act in that capacity: he has dealt with the principles but not made any submissions on the merits. Although, initially, there was a reporting restriction in relation to these proceedings so as not to prejudice the hearing of the criminal case at the centre of this appeal, it no longer bites: we were told that the defendant, Paul Ingham has subsequently pleaded guilty and been sentenced. The Facts 3.   On the morning of 14 April 2014, a preliminary hearing took place in the case of Mr Ingham, a postmaster or former postmaster who faced allegations of theft and  perverting the course of justice. He was represented by the appellant. No plea was due to be entered that day but a timetable was agreed and a trial date set for 10 September 2014. 4.   The material available at the hearing for the court (and the defence) consisted of a  police summary running to 7 pages, 12 witness statements totalling 24 pages and a summary of the police interviews of some 20 pages in length. Having read the summary of the case, the judge noted that in the final interview, the defendant was asked about his failure to refer to his wife’s’ heavy indebted ness, the fact that he had some £2,500 hidden in a laundry basket and his conflicting accounts of how a paper  band dated 17 March 2014 around some of the money could come to be present. In the circumstances, Judge Kelson determined to exercise the case management powers available to him pursuant to the Criminal Procedure Rules 2013 (“CPR”) . 5.   He invited the appellant to indicate whether any issues were likely to arise,  particularly in relation to the admissibility of the interviews. The judge took the view that the state of the evidence in the case made it the type where active case management at a preliminary stage could help to progress the case; he subsequently explained that his practice is often to adjourn preliminary hearings where he feels that further time focusing on the state of the evidence might, in fact, result in an admission. It is to be said that it might also cause there to be some other sensible resolution of the case. It is not suggested that this was not an entirely appropriate exercise of his responsibilities. 6.   There followed a heated exchange between the judge and the appellant as to whether or not a further conference with the defendant in the case would assist in this matter. Judge Kelson recommended the appellant take further instructions. The appellant was of the view that in the circumstances nothing would be gained from a further  Judgment Approved by the court for handing down. R v West conference; he had spent time with the defendant that morning and the defendant had made it clear his intention was to plead not guilty. Nevertheless, although the judge had said that he was available “all day”, after further words, he  adjourned the case to that afternoon, asking the appellant to return at 2.15pm, but releasing prosecution counsel (to be called if required). 7.   Having regard to the importance of the principles engaged in this case, it is essential to set out part of the exchange which followed the setting of the date fixed for trial within the custody time limit: “ MR WEST: Could we have it on the week of the 15 th  September? JUDGE KELSON: It would be at a risk that week but then again, having read the interviews in the case, I wonder how much of a risk. He had something of a difficulty dealing with the wrap around the £1,000 didn’t he?  MR WEST: He says he is not guilty so we will have to work o n the basis that that is right …  JUDGE KELSON: Mr West, of course he has pleaded [not] guilty, not your most helpful observation. To case manage the case properly, some clue as to the likely issues, even at this early stage, would be useful. I have deliberately made reference to the interviews because to the outside observer they appear to  present him with a very substantial problem evidentially, so what I want from you, a little more helpfully, is there an issue over the admissibility of the interviews? MR WEST: The answer is until I see them I do not know. The issue in the case generally is was he robbed as he says or did he steal the money as the Crown seem to think. JUDGE KELSON: You have not got the interview? MR WEST: I have got brief summaries of them, yes. JUDGE KELSON: Have you had the chance to go through them with the defendant so far? MR WEST: No, I have not. JUDGE KELSON: I think perhaps you should really, to make it a useful hearing. What is the point of this hearing if you have not taken instruction? MR WEST: I have taken instructions that he is not guilty…”  8.   Pausing at this point, the judge had proceeded with perfect propriety: if case management is to have any purpose, it is to understand the issues in the case so as the  better to identify how much court time will be needed and, in certain circumstances,  Judgment Approved by the court for handing down. R v West to make robust orders to ensure that efficient and effective progress is made: it is quite clear that there was a full summary of the interview and absolutely no reason why counsel should not be able to identify whether there was a challenge to admissibility. It is simply not good enough for counsel simply to assert that a defendant is not guilty and that is the end of the matter. 9.   Judge Kelson effectively made that point. The exchange goes on: “ JUDGE KELSON: Of course. Everybody is assumed to be not guilty, but most people are then confronted …  MR WEST: No, no. I am not assuming that. I have actually discussed it …  JUDGE KELSON: … by their interviews by any helpful advocate. You know, I mean, why have you not gone through the interviews with him so far? MR WEST: Because he has been produced from Armley Prison. I have had about 20 minutes in the cells downstairs …  JUDGE KELSON: Then have as long as you need. MR WEST: Sorry? JUDGE KELSON: Have as long as you need. I am here all day. ”  10.   It is important to underline that the judge was simply putting the case back so that he could ascertain what the defence approach to the interviews was likely to be. Unfortunately, rather than take up the judge’ s invitation and then answer the question about admissibility, Mr West took a different line. The exchange goes on: “ MR WEST: I have had all the time I need. I know that it is going to be a not guilty trial. I do not need to through the short summaries of the interviews with him to change that position. He tells me is not guilty. We need to fix a trial date. I do not need any more time, thank you. JUDGE KELSON: Do you not think it is an important part of  preparation for this hearing to go through at least some of the evidence with a defendant rather than just take his bare assertion? At what stage …  MR WEST: Who is saying I took his bare assertion? JUDGE KELSON: At what stage were you proposing going through the evidence with him? MR WEST: When I have got it.
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