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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Johnstone & Ors, Re  EWCA Crim 194 (31st January, 2002)
Cite as:  EWCA Crim 194
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COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
London, WC2A 2LL
B e f o r e :
MR JUSTICE PUMFREY
MR JUSTICE BURTON
| Robert Alexander JOHNSTONE|
Matthew Louis CROXSON
Toon Chin HO
Charles Thomas ELEY
MAYRON MULTIMEDIA LTD.
Richard James HARRISON
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr A Roughton appeared on behalf of the Appellants Croxon & Eley
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Tuckey:
1) Whether in a prosecution brought under section 92(1) of the Act
a) it is necessary for the Crown to prove “an infringement of the registered trade mark” ?
b) a defendant relying on the statutory defence provided by section 92(5) may further rely upon sections 9,10 and 11 ?
2) a) What do the words “infringement of a trade mark” in section 92 (5) mean?
b) Do they mean “an unauthorised use of a registered trade mark” ?
3) Whether section 92 of the Trade Marks Act 1994 is compatible with the Directive ?
4) Whether the penalties provided for in section 92(6) of the Act are effective, proportionate and dissuasive for the purpose of Article 5 of the Treaty of Rome ?
92. Unauthorised use of trade mark, &c in relation to goods.1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor –(a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or(b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or(c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).(3) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor –(a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or(b) has such an article in his possession, custody or control in the course of a business,knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods.(4) A person does not commit an offence under this section unless _(a) the goods are goods in respect of which the trade mark is registered, or(b) the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the trade mark.(5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.(6) A person guilty of an offence under this section is liable –(a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both,(b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.
- Section 104 of the Act says :
In this Act the expressions listed below are defined by or otherwise fall to be construed in accordance with the provisions indicated.
The provisions indicated for the words “infringement (of registered trade mark)” are sections 9(1) (2) and 10. Section 9 is in Part 1 headed Registered Trade Marks. The first eight sections define what trade marks are and set out the grounds for refusal of registration. Under the sub-heading Effects of registered trade mark. Sections 9 to 12 say :9. Rights conferred by registered trade mark(1) The proprietor of a registered trade mark has exclusive rights in the trade mark which are infringed by use of the trade mark in the United Kingdom without his consent.The acts amounting to infringement, if done without the consent of the proprietor, are specified in section 10.(2) References in this Act to the infringement of a registered trade mark are to any such infringement of the rights of the proprietor...
10. Infringement of registered trade mark(1) A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.(2) A person infringes a registered trade mark if he uses in the course of trade a sign where because -(a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or(b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered,there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.(3) A person infringes a registered trade mark if he uses in the course of trade a sign which -(a) is identical with or similar to the trade mark, and(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered,where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.(4) For the purposes of this section a person uses a sign if, in particular, he –(a) affixes it to goods or the packaging thereof;(b) offers or exposes goods for sale, puts them on the market or stocks them for those purposes under the sign, or offers or supplies services under the sign;(c) imports or exports goods under the sign; or(d) uses the sign on business papers or in advertising.(5) A person who applies a registered trade mark to material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, shall be treated as a party to any use of the material which infringes the registered trade mark if when he applied the mark he knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.(6) Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee.But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes an unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.11 Limits on effect of registered trade mark(1) A registered trade mark is not infringed by the use of another registered trade mark in relation to goods or services for which the latter is registered (but see section 47(6) (effect of declaration of invalidity of registration)).(2) A registered trade mark is not infringed by –(a) the use by a person of his own name or address,(b) the use of indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services, or(c) the use of the trade mark where it is necessary to indicate the intended purpose of a product or service (in particular, as accessories or spare parts)provided the use is in accordance with honest practices in industrial or commercial matters.(3) A registered trade mark is not infringed by the use in the course of trade in a particular locality of an earlier right which applies only in that locality ........
12. Exhaustion of rights conferred by registered trade mark(1) A registered trade mark is not infringed by the use of the trade mark in relation to goods which have been put on the market in the European Economic Area under that trade mark by the proprietor or with his consent ........
Ho, Eley and Mayron Multimedia Ltd.
The Act – Civil and Criminal Liability
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure , forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence….
There is no doubt that a Member state is both entitled and obliged to create appropriate offences relating to trade mark infringement.
(a) Does the infringer use the mark in the course of trade? If he does not, there is no infringement. ‘Trade’ is defined by section 103 as meaning ‘any business or profession’. This is not a narrow definition, and to use a mark even on a single article to be sold or hired out for reward will normally amount to use of the mark ‘in the course of trade’, as will its use on orders, invoices, advertisements, brochures and the like (section 10(4)).
(b) The infringer’s sign is the same as the proprietor’s mark, and the use is on goods identical to those in respect of which the mark is registered (section 10(1)). This is the normal counterfeiting case.
(c) The infringer’s sign is the same as that of the proprietor, but it is used in respect of goods similar to those for which the mark is registered (section 10(2)(a)).
(d) The infringer’s sign is similar to the proprietor’s mark, and it is used either on goods identical to those in respect of which the proprietor’s mark is registered or on goods similar to those goods (section 10(2)(b))
(e) If the case falls under (c) or (d) above, then is the public likely to be confused?
To exemplify the infringement, assume that “Pierre Cardin” and “Gucci” are registered marks and that the Pierre Cardin organisation or the Gucci organisation manufactured goods but declined to put them on sale being not satisfied with their quality. It would, in my opinion, be an infringement for some other person without authority to put the goods on the market with the description that they were manufactured by Pierre Cardin or by Gucci but that the sale had not been authorised. Yet that is what the respondent seeks to do in the present case. It seeks to avail itself of the goodwill in the name “Rolling Stones” by using that name to identify the goods and it seeks to defend the infringement by stating that the release was not authorised by the Rolling Stones.
We prefer this view to that of the majority but emphasise that whether the mark is ‘used as a trade mark’ is a question of fact in every case.
39. Sections 92(1) to (3) are qualified by sub-section (4) which requires either that the mark be used in respect of goods for which it is registered or that the mark enjoys a reputation and the use complained of satisfies the requirements of unfair advantage or detriment also set out in section 10(3).
40. Each of sub-sections 92(1) to (3) is prefaced by words requiring the prosecution to prove that the acts of the defendant are done ‘with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor’. The requirement for consent mirrors the provisions of section 9. The preceding words are found nowhere else in the 1994 Act and appear to have their origin in the Theft Act 1968, where they are used in sections 17 and 21. The terms ‘gain’ and ‘loss’ are defined in paragraph 34(2)(a) of the Theft Act 1968, but since there is no definition in the Act they must be given their ordinary meaning
(a) The wide meaning of “in the course of trade” (para. 30(a)).
(b) Our view that the minority judgment in Tansing was right (para. 35). We can see strong reasons for supposing that in every bootlegging case use of a registered trade mark consisting of the name of the performer would be a trade mark use, since it indicates the origin of the performance, a recording of which the consumer has to acquire and is hence a badge of origin.
(c) It should also be noted that the important defences set out in section 11(2) are negatived if the prosecution establish to the normal criminal standard that the defendant’s use of the mark is not in accordance with honest practices in industrial or commercial matters. Thus the jury need only consider the specific defences if they are not satisfied that the defendant acted dishonestly.
(d) We cannot envisage many, if any cases in which the issue as to whether the trade mark was being used as a badge of origin (trade mark use) will be distinct from the defence under section 11(2) but in such event the issue is one which should be left to the jury
(e) The validity of the registration of the trade mark cannot be tried in criminal proceedings. The presumption in section 72 applies to such proceedings. If a defendant says in his defence statement that he is challenging the validity of the registration the criminal court may have to consider on the application of the defendant whether or not to grant an adjournment to allow the challenge to be determined. Mr Roughton suggested that such an application was not practicable in the context of a prosecution. We disagree. We would expect a challenge to validity to be launched very early in the life of the prosecution. No doubt the trade mark owner will be astute to protect his own interests. There is no reason why the challenge should not be expedited. There would be a discretion in the criminal court to refuse an adjournment where the challenge was proceeding slowly or had been started late or on obviously frivolous grounds.
Whether a defendant who exposes for sale goods which bear a registered trade mark makes out that statutory defence if his evidence shows that he did not know of the existence of the registered trade mark and could not, therefore, have applied his mind to its detail.
The defendant had taken steps to ascertain whether there was a registered trade mark by asking his supplier and checking the Draper’s Record.
Auld LJ said this:
The logical starting point is to identify the mens rea of the offence, subject to the statutory defence. …
In my view, the offence is made out if the prosecution prove: (1) the fact of registration of a trade mark to which a sign on goods which the defendant exposes for sale is identical or for which it is likely to be mistaken; (2) that he does so with a view to gain for himself or another or with intent to cause loss to another; and (3) without the consent of the proprietor. It is not necessary to prove knowledge or intent to infringe a registered trade mark….
After holding that ignorance of the registration could not afford any defence, Auld LJ continued:
That leaves the question whether a trader is entitled to take advantage of the statutory defence in section 92(5) on the basis that he believed on reasonable grounds that there was or might have been no registered trade mark to infringe. A trader who does not know of, or who is in doubt as to, the existence of the registered trade mark which he is in danger of infringing, can check the register. It will provide him with a definitive answer...
It follows, in my judgment, that the statutory defence in section 92(5) can have no application to a defendant’s state of mind as to whether at the material time there was or might have been a registered trade mark capable of infringement. Its wording makes plain that that is not its function. It does not speak of a reasonable belief in the absence of a registration. It speaks of a reasonable belief that the “manner” of use of the sign did not infringe “the registered trade mark”. In my view, it presupposes an awareness by a defendant of the existence of the registration against which he can match his manner of use of the allegedly infringing sign. The use of the definite article in the words “the registered trade mark” coupled with the reference to the “manner” of use of the sign makes plain that the draftsman intended that a defendant’s reasonable belief of no infringement in the manner of use of the sign falls to be judged against his knowledge or deemed knowledge of the registered trade mark in question.
It also follows that the justices conducted the wrong enquiry as to Mr Singh’s belief and the reasonableness of it when considering his reliance on the defence provided by section 92(5). Accordingly I would answer “No” to the question posed by the justices…’
25. What section 92(5) does do, however, in cases such as the present is, in our judgment, provide a broad general defence wich is capable of applying to all activities covered in section 92(1)(a), (b) and (c), but, of course, the defence involves the appellant showing that he believed on reasonable grounds that the use of the sign on goods in whichever of the ways mentioned in (a), (b) or (c) it was used or was to be used was not an infringement of the registered trade mark. The only matter which he must be taken to know is the existence of the registered trade mark.
23. In that respect, although the third recital in the preamble to the Directive states that 'it does not appear to be necessary at present to undertake full-scale approximation of the trade mark laws of the Member States', the Directive none the less provides for harmonisation in relation to substantive rules of central importance in this sphere, that is to say, according to that same recital, the rules concerning those provisions of national law which most directly affect the functioning of the internal market, and that that recital does not preclude the harmonisation relating to those rules from being complete.
24. The first recital in the preamble to the Directive notes that the trade mark laws applicable in the Member States contain disparities which may impede the free movement of goods and freedom to provide services and may distort competition within the common market, so that it is necessary, in view of the establishment and functioning of the internal market, to approximate the laws of Member States. The ninth recital emphasises that it is fundamental, in order to facilitate the free movement of goods and services, to ensure that registered trade marks enjoy the same protection under the legal systems of all the Member States, but that this should not prevent Member States from granting at their option extensive protection to those trade marks which have a reputation.
25. In the light of those recitals, Articles 5 to 7 of the Directive must be construed as embodying a complete harmonisation of the rules relating to the rights conferred by a trade mark. That interpretation, it may be added, is borne out by the fact that Article 5 expressly leaves it open to the Member States to maintain or introduce certain rules specifically defined by the Community legislature. Thus, in accordance with Article 5(2), to which the ninth recital refers, the Member States have the option to grant more extensive protection to trade marks with a reputation.
(Case C–355/96 Silhouette International Schmied GmbH & Co KG v Hartlauer Handelsgesellschaft mbH  ECR I–4799.)
Whereas this Directive does not exclude the application to trade marks of provisions of law of the Member States other than trade mark law, such as the provisions relating to unfair competition, civil liability or consumer protection.
Mr O’Neill submitted that whether or not section 92 went wider than civil infringement, it could be justified as a measure of consumer protection and thus could benefit from this recital. We would observe that the decision in Silhouette suggests that any suggestion that the Directive is not exhaustive in respect of the substantive scope of protection to be given to trade marks must be approached with caution. But it is clear that while consumer protection may be the effect of section 92 (as it is in respect of all trade mark provisions) consumer protection is not material to the elements of the offence. We do not consider that this submission is well-founded. The Directive is concerned with the internal market, is made pursuant to Article 95 (ex Article 100a) of the Treaty, and empowers the Council to “adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” It is settled that the Internal Market provisions of the Treaty, and in particular Articles 28 (ex Article 30) and 30 (ex 36) which relate to measures having effect equivalent to quantitative restrictions on imports and the justification of such restrictions on the grounds of protection of industrial property (trade marks, patents, copyrights &c) apply to criminal proceedings: see Case 8/74 Procureur du Roi v Dassonville  ECR 837 (a case concerning certificates of origin required for imports into Belgium). An approximation of laws for preventing the impeding of the free movement of goods would be partial if it related only to civil liability.
61. 1. Whether in a prosecution brought under section 92(1) of the Act
(a) it is necessary for the Crown to prove ‘an infringement of the registered trade mark’?
(b) A defendant relying on the statutory defence provided by section 92(5) may further rely upon sections 9,10 and 11.
Answer :- (a) No, but see para 48 and paras 62-64 below.
(b) Yes, but see para. 64 below.
(b) Do they mean ‘an unauthorised use of a registered trade mark’?
Answer:- (a) The word ‘infringement’ means infringement according to sections 9 to 12 of the Act.
Answer : Yes.
Answer : Yes – Article 5 has now become Article 10 EC.
Ho, Mayron and Eley
The Lambert Point
In these circumstances I am satisfied that the transfer of the legal burden in section 28 does not satisfy the criterion of proportionality. Viewed in its place in the current legal system, s28 of the 1971 Act is a disproportionate reaction to perceived difficulties facing the prosecution in drugs cases. It would be sufficient to impose an evidential burden on the accused. It follows that s28 is incompatible with the Convention rights.
A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activities is an obvious example. The preservation of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry no real social disgrace or infamy.
There is a strong public interest in bladed articles not being carried in public without good reason. I do not find it obviously offensive to the rights of the individual that it is for him to prove a good reason on a balance of probabilities … Parliament is entitled, without infringing the European Convention on Human Rights, to deter the carrying of bladed or sharply pointed articles in public to the extent of placing the burden of proving a good reason on the carrier.
i) Though in the event it was not decisive to his deliberations, Pill LJ was plainly concerned (at paragraph 23 of his judgment) as to whether the so-called placing of the evidential burden on the defendant, being in fact a description of the situation in which, as discussed above, what is in fact required is the raising of a sufficient case on the evidence, can properly be described as a burden of proof at all. He therefore had a reluctance (which it seems was not shared by their Lordships in Lambert) to construe the word ‘prove’ as anything other than satisfying a legal burden of proof, as opposed to raising an issue. If this be a concern in relation to some statutes, we are satisfied it does not apply here where the words used simply require the defendant to ‘show’ his belief, which would certainly be consistent, given the obligation of the courts to construe a statute so far as possible to comply with the Convention, with imposing what is conventionally called only an evidential burden.
ii) We are satisfied that the offence in this case, carrying with it as it does a sentence of up to ten years imprisonment, is one which renders it important to give adequate protection to a defendant, and in any event we can see no similar public policy reasons to those which were identified by Pill LJ in Lynch.
LORD JUSTICE TUCKEY: Are there any applications arising out of that with which we can deal now?PRIVATE
MR BOUMPHREY: There is an application for costs in relation to Johnstone.
LORD JUSTICE TUCKEY: The costs of what?
MR BOUMPHREY: My Lord, this hearing and the hearing below.
LORD JUSTICE TUCKEY: We hear what you say, yes.
MR BOUMPHREY: The basis of that application is that Mr Johnstone was deprived of his defence.
LORD JUSTICE TUCKEY: I follow that.
MR BOUMPHREY: My Lord, I would respectfully suggest that while his behaviour is behaviour that may have brought some form of attention to him, it is not behaviour that has fallen to such a low standard that he should have been deprived of a defence necessarily. In those circumstances he was entitled both to see whether his defence was effective in the Crown Court and in the circumstances of what happened in the Crown Court he was entitled to bring the matters from there to here.
MR JUSTICE BURTON: Was he legally aided?
MR BOUMPHREY: He was legally aided initially in the Crown Court, yes. He has subsequently instructed counsel privately.
LORD JUSTICE TUCKEY: When? We ought to perhaps know, when did legal aid come to an end?
MR BOUMPHREY: My Lord, my understanding is that he was privately funding the case from the moment it started its process in the Crown Court to the Court of Appeal.
LORD JUSTICE TUCKEY: Right.
MR JUSTICE BURTON: So throughout the Crown Court he was legally aided.
MR BOUMPHREY: He was legally aided from the end of Crown Court proceedings and from the conviction in the Crown Court he started to fund his solicitors privately.
MR JUSTICE PUMPHREY: Can you tell me what the sale price of the compact discs which he had by way of stock were?
MR JUSTICE BURTON: And the defence he wanted to put forward was that the identification of the performers on the CDs was not a badge of origin, is that it?
MR BOUMPHREY: It would have been both the combination of it not being a badge of origin and an element of reasonable belief in relation to it not being a badge of origin as a result of his belief about the property.
MR JUSTICE BURTON: It was not a badge of origin, and if he was wrong about that then he reasonably believed that the names of the performers was not a badge of origin.
MR BOUMPHREY: My Lord, yes.
LORD JUSTICE TUCKEY: We understand, Mr Boumphrey, what the application is. That is your only application, is it, in the case of Johnstone? Are there any applications by anyone else? Mr Roughton?
MR ROUGHTON: My Lord, their Lordships in the House of Lords. Your Lordship is refusing me leave to appeal; I cannot appeal an application for leave to appeal unless your Lordships so order.
LORD JUSTICE TUCKEY: No, you cannot.
MR ROUGHTON: My Lord, can I just take you to the relevant part?
LORD JUSTICE TUCKEY: Let us deal with this question of costs first, shall we? There is nothing else arising out of Johnstone.
MR RUSH: There is an application for costs so far as I am concerned. I will deal with mine later. Shall I make the application now?
LORD JUSTICE TUCKEY: Let us deal with costs together. You are applying, Mr Rush, in the cases of Croxson, Ho and Eley.
MR RUSH: Eley and Mayron. The costs simply for this hearing. The total figure of costs for three local authorities legal departments and the council is £15,315.
LORD JUSTICE TUCKEY: Do we assess them in this Court? I do not think we do. When you say there are three local authorities involved, because there are two involved in the Croxson prosecution.
MR RUSH: My Lord, yes.
LORD JUSTICE TUCKEY: Then there is a separate authority in the Ho cases. You apply for the Crown's costs of the appeal.
MR RUSH: I do, effectively, to be split four ways between the four appellants.
LORD JUSTICE TUCKEY: Very well. Give me the figure again.
MR RUSH: The total figure is £15,315. Split four ways that would amount to £3,828.
MR JUSTICE PUMFREY: Do we not make a joint and several order; or can we not do that?
MR RUSH: Yes. I give you that figure and I seek a joint and several order.
MR JUSTICE BURTON: Croxson's appeal should be regarded as joint and several?
LORD JUSTICE TUCKEY: No, I think not.
MR JUSTICE BUXTON: Can you give a separate figure for Croxson?
MR JUSTICE PUMFREY: Would you have to allocate that on the basis of a quarter?
LORD JUSTICE TUCKEY: 3,828 let us say for Croxson, and the balance in the other case; would that be fair?
MR RUSH: I think that would be fair.
MR JUSTICE BURTON: I do not know whether you feel that Croxson was rather more than the one quarter of the consideration, given that he had his own separate facts.
MR RUSH: The reality, my Lord, is that, although there are separate facts in the case of Croxson, factually Ho/ Mayron was a much more complicated case. As far as the legal arguments advanced by Croxson, they are the same.
MR JUSTICE BURTON: I suppose there is the separate point under 4(b).
MR RUSH: There is a separate point on 4(b) as far as Eley was concerned, which frankly did not take up very much time. I did not mean it quite like that.
LORD JUSTICE TUCKEY: Okay, I think we have a picture. Thank you, Mr Rush.
Miss Bevan, you appear for the Crown in Johnstone, is that right?
MISS BEVAN: Indeed.
LORD JUSTICE TUCKEY: What do you say about the costs in that case?
MISS BEVAN: The Crown do not oppose an application for costs out of central funds in relation to Mr Johnstone.
MR JUSTICE BURTON: In relation to the appeal.
MISS BEVAN: In relation to the appeal.
MR JUSTICE BURTON: What do you say about the costs below?
LORD JUSTICE TUCKEY: I do not think there are any.
Mr Boumphrey, I am not sure I understood you; at one stage I thought that you were telling us that he was not legally aided below and then I understood that he was legally aided until after the trial.
MR BOUMPHREY: My Lord, yes, I was under the misapprehension that there was a contribution that he was required to pay in relation to his legal aid payments in the Crown Court.
LORD JUSTICE TUCKEY: I would be amazed if there was not, but one is always being amazed at these things. And he had thousands of pounds worth of....
MR JUSTICE PUMFREY: Can you tell me - this has probably gone past in the wash now - he was legally aided with a nil contribution in the Crown Court?
MR BOUMPHREY: I understand that he was legally aided with a nil contribution in the Crown Court.
LORD JUSTICE TUCKEY: Very well.
LORD JUSTICE TUCKEY: Mr Boumphrey, as Mr Johnstone was legally aided no question of costs arises, but we are surprised to hear that he had no contribution in the circumstances, and had he paid any part of his costs below he certainly would not have been given them by this Court. But we think it is right, having succeeded on the appeal, that he should have his costs of the appeal out of central funds to be assessed.
Mr Roughton, you have dealt with the application against your clients.
MR ROUGHTON: I say very little, except to say that Mr Eley has been legally aided throughout. Mr Croxson was not legally aided until he was granted representation by the Registrar. That is all I have to say.
LORD JUSTICE TUCKEY: Miss Wilson, do you want to say anything about the question of costs?
MISS WILSON: My Lord, I do not, thank you. I leave the matter rest there.
LORD JUSTICE TUCKEY: It seems to us - just so that you should know what we are thinking - that although Mr Ho tried unsuccessfully to obtain an adjournment, he had availed himself of the argument which was advanced by Mr Roughton on behalf of the other two and we agreed that we would consider it on that basis.
MISS WILSON: My Lord, yes. I cannot add anything to that. So, my Lord, I have no applications to make.
LORD JUSTICE TUCKEY: We think it is right that the unsuccessful applicants should pay prosecution costs in this case. In the case of Croxson we will make an order that Mr Croxson pays £5,000 towards the costs of the relevant prosecuting authorities in that case, and in the case of Ho, Mayron and Eley, we make an order that those applicants should be jointly and severally liable to an order for costs in the sum of £10,000 in favour of the one prosecuting -- there were two in each?
MR RUSH: Two for Croxson, Oxford County Council.
LORD JUSTICE TUCKEY: And the prosecuting authority in the Ho/Eley case.
Mr Roughton, that leaves your application. What is it you want us to do?
MR ROUGHTON: I am sorry about this; can we just go back to costs?
LORD JUSTICE TUCKEY: Go back to costs, right.
MR ROUGHTON: What your Lordship has ordered is that Mr Croxson has to pay two people because he had been prosecuted by two authorities. If he is sued on costs, which is a civil debt, then there might be a problem.
LORD JUSTICE TUCKEY: £2,500 each.
MR ROUGHTON: I am obliged. Sorry to raise that.
LORD JUSTICE TUCKEY: No, let us avoid complications of that type.
MR JUSTICE PUMFREY: It is comfortably above the limit of £750 for the statutory demand anyway.
LORD JUSTICE TUCKEY: What were you going to show us in the good red book?
MR ROUGHTON: Page 993. I am looking, my Lord, at paragraph 7-255, the paragraph that starts "section 51".
MR JUSTICE BURTON: You are asking to recall our judgment, is that right, prior to it being drawn up and grant you leave to appeal but then dismiss the appeal rather than refusing your application?
MR ROUGHTON: My Lord, it is not clear what is said in Archbold because it appears that your Lordships have the power to say 'Although this is an application for leave to appeal we order it to be treated as if it were an appeal'. My Lord, if one looks at section 51 I think that is consistent with what your Lordship says. What I would like to do is try to convince your Lordships of that and to make that order.
MR JUSTICE BURTON: What does Mealey and Sheridan say?
MR ROUGHTON: That I do not know.
LORD JUSTICE TUCKEY: Let us go to other end of this and you tell us shortly what it is you say the House of Lords should be considering in your cases.
MR ROUGHTON: The problem is that I need to have some time to consider your Lordships' judgment. What I was going to ask for is a week.
LORD JUSTICE TUCKEY: What, you mean anything will do? What do you have in mind?
MR ROUGHTON: My Lord, the Directive point, we say, is of fundamental importance in this case.
LORD JUSTICE TUCKEY: On the basis of the construction which we put on the Act, the main planks of your argument fell to the ground, as we have indicated. The only discrete points remaining were about the invalidity point and the penalty point. Is that what you are saying you want to take to the House of Lords?
MR ROUGHTON: The penalty point I did not make. I know your Lordship said I did - it does not matter because it is there as a point anyway.
LORD JUSTICE TUCKEY: I thought you had made it.
MR ROUGHTON: It does not matter. We say the Directive has to be more seriously advanced - I say 'seriously', more fastidiously followed.
MR JUSTICE BURTON: In what way? The only point in that case, apart from the point on 4B, which you abandoned in the course of argument, the only point then is the adjournment/validity point, if you are going to associate yourself on penalty. We are not trying to say that you have wrongly construed the Act.
MR JUSTICE PUMFREY: It is going to be a bit surprising for (inaudible), is it not, to be told if you cannot try the two issues separately, you cannot do it any other way.
MR ROUGHTON: My Lord, it would be, yes. I would like the opportunity to make submissions, even if I can do it on paper.
MR JUSTICE BURTON: Even for the purposes of coming to us, never mind to the House of Lords, would you get leave to appeal against sentence if your only point was the validity point?
MR ROUGHTON: I would like to consider it. I was asked just to give my off-the-cuff point, but I would like to consider the judgment.
LORD JUSTICE TUCKEY: I suppose in fairness to you, you have to have the opportunity to consider it, but we will give a snap view on the point.
LORD JUSTICE TUCKEY: Mr Roughton, I am sorry, I do not think we are going to need to embark on whether procedurally you are in order. If the point that you want to raise is the adjournment point, you can be guaranteed that we will not certify as a point which should go to the House of Lords. So I should not waste your time on it if I were you.
MR ROUGHTON: My Lord, can I have at least the opportunity to think about whether I want to waste my time. I do not want to use up any more of your Lordships' time --
LORD JUSTICE TUCKEY: Remember you are also wasting our time.
MR ROUGHTON: Everybody's time.
LORD JUSTICE TUCKEY: Right.
MR ROUGHTON: My Lord, I just want to have an opportunity to consider the judgment. I can do that today. My Lord, I then may choose to make an application to your Lordships and it would have to be a very good application, I entirely concede that.
LORD JUSTICE TUCKEY: It would also have to be on paper because we shall be dispersing to the four corners, perhaps only in this building.
MR ROUGHTON: What I do not want to do is - and I have some notes of what was said. I just want to consider them in some detail. I am happy to do that in a relatively short time in the course of this afternoon and indicate to everybody, 'Yes, I will go', 'No, I will not'. But my concern is that there are some things that your Lordship said that I would like to have a chance to look at, and that is the essence of my application. I do not ask for an extension of any time from the fourteen days or anything like that.
MR JUSTICE BURTON: The trouble is you are doing three things, are you not? One is you are seeking to persuade us that there is a point of law of public importance; secondly, if there is, you have to persuade us that we should turn your application into an appeal; and, thirdly, even if we did that - and suppose anticipatorily we might - you would then have to persuade us to grant you leave, or at least refuse you leave so that you can then go to the House of Lords.
MR JUSTICE PUMFREY: It comes to this, does it not? You want us to hold back drawing the order for two days.
MR ROUGHTON: 24 hours.
MR JUSTICE PUMFREY: Right, 24 hours. And if the order is not drawn for 24 hours, if before the order is drawn you make an application that you wish to press to have your application for leave to appeal allowed and your appeal dismissed and if you formulate a suitable question for their Lordships then you want us to deal with it on paper and hold up the drawing of the order at least sufficiently long for that to happen; is that right?
MR ROUGHTON: My Lord, that is right.
MR JUSTICE BURTON: You will need to address us on Mealey and Sheridan as well in your paper application, quite apart from the formulation --
MR ROUGHTON: I appreciate there is an uphill struggle and I think it is probably vertical, my Lord, but I am a little concerned - and I stress a little - that I am being asked to make an application on the basis of a fairly lengthy judgment. So 24 hours is all I am asking. I am quite happy to indicate either way what my position is.
LORD JUSTICE TUCKEY: And you are happy for us to deal with it on paper?
MR ROUGHTON: Absolutely, my Lord.
LORD JUSTICE TUCKEY: If we think it requires a response we will put it; if we do not, we will deal with it.
MR RUSH: Can I mention a further potential complication? I know, having spoken to Mr O'Neill last week - and your Lordships can see he is not here, and of course Crown is represented by my learned friend Miss Bevan today - that if the decision was adverse to the Crown in that case I know he would be grateful for some time to consider the position. It has a slightly different effect, I appreciate, from my learned friend's application. I know, having spoken to him, he would be grateful for a little bit of time as well.
Can I say from my point of view I think it is extremely unlikely that I would seek to take the matter any further, but I know, having spoken to Mr O'Neill, it is something he would be grateful for some time to consider.
LORD JUSTICE TUCKEY: There is a logistical problem as I have explained. How long are you asking for on his behalf? I am assuming that we will be able to get the final form of this judgment to you today. We have had problems in that respect, so whether we can deliver on that promise I am not certain, but certainly by tomorrow.
MR RUSH: For my part not very long. I do not know, perhaps if Miss Bevan ...
MISS BEVAN: My Lord, I understand that Mr O'Neill in the first instance will be seeking perhaps up to a week to consider the judgment that you have delivered today, either to make a paper application or respectfully so that the Court can reconvene to hear submissions if any are forthcoming.
LORD JUSTICE TUCKEY: I think a week is too long.
(The Bench conferred.)
LORD JUSTICE TUCKEY: What we have decided to do is this. We think that this should be dealt with speedily. We will give you, Mr Roughton, and also Mr O'Neill until close of business on Wednesday to put in writing any application for - in your case, Mr Roughton, as you know you have a number of difficulties, but so far as the prosecution are concerned, any application to certify and for leave should be put in writing by close of business on Wednesday. When we have received that written application, we will either deal with it on paper or give further directions as to how it should be dealt with, which may involve calling for a reply from the other side, or possibly reconvening the Court to consider it. But that is the way we see forward.
We have refused the application in the case of Croxson and Eley and Co. We had better defer drawing up the order until that time as well.
MR ROUGHTON: My Lord, yes.
LORD JUSTICE TUCKEY: But there is no reason why the orders in relation to those who are not affected by this, which it is only Johnstone, is it not, and Harrison, should not be drawn up. But in the other cases the order will not be drawn up until close of business on Wednesday and then subject to any further directions.
MR ROUGHTON: So be it, my Lord. Would a nil return be appreciated for the Court? If I was to write as soon as I possibly knew and say: 'I do not wish to make any application', would that assist?
MR JUSTICE BURTON: The order can be drawn up as soon as we get your nil return, assuming your nil return is to that effect.
LORD JUSTICE TUCKEY: Certainly, Mr Roughton, thank you very much. Is there anything else that we need to deal with? Thank you all again for your help.