Change of judge for Maxwell trials upheld

LAW REPORT 25 June 1996

Regina v Lord Chancellor, ex parte Maxwell; Queen's Bench Divisional Court (Lord Justice Henry, Mr Justice Sachs) 19 June 1996

The Lord Chancellor did not act unreasonably in declining to exercise his power under section 9 of the Supreme Court Act 1981 to request Lord Justice Phillips to preside over the remaining stages of the criminal case against Kevin Maxwell and others, even though he had, when a High Court judge, been appointed the trial judge, had conducted the preparatory hearing and had, at the Lord Chancellor's request, continued to preside over the first of the trials to be heard despite his promotion to Lord Justice of Appeal.

The Queen's Bench Divisional Court refused an application by Kevin Maxwell for judicial review of the Lord Chancellor's decision, communicated by letter dated 9 February 1996.

Alun Jones QC and Leah Saffian (Peters & Peters) for the applicant; Stephen Richards (Treasury Solicitor) for the Lord Chancellor; Nigel Pleming QC and Mark Lucraft (Treasury Solicitor) for the Serious Fraud Office.

Lord Justice Henry said the applicant was arrested in 1992 and charged with fraud. In 1993 the 10 charges preferred against him and his co-accused were transferred to the Central Criminal Court for trial under the serious fraud regime established by the Criminal Justice Act 1987. Mr Justice Phillips, as he then was, was appointed trial judge.

At the preparatory hearing held pursuant to section 7 of the 1987 Act, he ordered severance of the 10 counts in the indictment. To achieve manageability of the case before a jury, he restricted the first trial to counts 4 and 10. That trial ended on 19 January 1996 with the acquittal of all defendants on both counts.

On 2 October 1995, the judge had been appointed a Lord Justice of Appeal. That meant he was no longer qualified under section 8 of the Supreme Court Act 1981 to sit as a judge of the Crown Court. He could only do so if, as happened, the Lord Chancellor invited him, under section 9(1) of that Act, to continue. But for that request, he would not have had jurisdiction.

After the end of the first trial, he made it clear that, unless requested to do so by the Lord Chancellor, he would have no jurisdiction to sit as a Crown Court judge at two further trials arising out of the indictment. The Lord Chancellor declined to make such a request, and the next trial was listed before Mr Justice Buckley.

The applicant sought judicial review. His case was that Lord Justice Phillips, having ordered a preparatory hearing in relation to the whole indictment under section 7 of the 1987 Act, was thereafter bound to preside over the trials of all counts on that indictment save in exceptional circumstances such as ill-health.

In their Lordships' judgment, after his appointment, Lord Justice Phillips would only be empowered to conduct the trial of all outstanding counts on the indictment if the Lord Chancellor requested him to do so under section 9(1) or (4). The authority given him by the Lord Chancellor's initial request was to conclude the trial of counts 4 and 10. He had concluded that trial.

The trials of the remaining counts were not an "ancillary matter relating to" that trial within section 9(7)(a), nor were they "proceedings arising out of" that trial within section 9(7)(b), so as to permit him to attend court to deal with them after the expiry of the original period of authority.

Their Lordships also rejected the submission that the Lord Chancellor's decision had been irrational.

The Lord Chancellor was exercising a broad administrative discretion. He had to decide on the best deployment of judicial manpower in the proper administration of justice. This involved a balance between competing facets of the interests of justice; between the best disposal of the remaining counts in a single trial, albeit an important one, for which Lord Justice Phillips was uniquely well placed; and the broader interests of justice in having a fully manned Court of Appeal for a period of a year or more.

On the facts, irrationality was unsustainable.

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: Office Manager

Negotiable: Recruitment Genius: Have you been doing a brilliant job in an admi...

Surrey County Council: Senior Project Officer (Fixed Term to Feb 2019)

£26,498 - £31,556: Surrey County Council: We are looking for an outgoing, conf...

Recruitment Genius: Interim Head of HR

£50000 - £60000 per annum: Recruitment Genius: Are you an innovative, senior H...

Recruitment Genius: Human Resources and Payroll Administrator

£20000 - £22000 per annum: Recruitment Genius: Our client, a very well respect...

Day In a Page

The difference between America and Israel? There isn’t one

The difference between America and Israel? There isn’t one

Netanyahu knows he can get away with anything in America, says Robert Fisk
Families clubbing together to build their own affordable accommodation

Do It Yourself approach to securing a new house

Community land trusts marking a new trend for taking the initiative away from developers
Head of WWF UK: We didn’t send Cameron to the Arctic to see green ideas freeze

David Nussbaum: We didn’t send Cameron to the Arctic to see green ideas freeze

The head of WWF UK remains sanguine despite the Government’s failure to live up to its pledges on the environment
Author Kazuo Ishiguro on being inspired by shoot-outs and samurai

Author Kazuo Ishiguro on being inspired by shoot-outs and samurai

Set in a mythologised 5th-century Britain, ‘The Buried Giant’ is a strange beast
With money, corruption and drugs, this monk fears Buddhism in Thailand is a ‘poisoned fruit’

Money, corruption and drugs

The monk who fears Buddhism in Thailand is a ‘poisoned fruit’
America's first slavery museum established at Django Unchained plantation - 150 years after slavery outlawed

150 years after it was outlawed...

... America's first slavery museum is established in Louisiana
Kelly Clarkson: How I snubbed Simon Cowell and become a Grammy-winning superstar

Kelly Clarkson: How I snubbed Simon Cowell and become a Grammy-winning superstar

The first 'American Idol' winner on how she manages to remain her own woman – Jane Austen fascination and all
Tony Oursler on exploring our uneasy relationship with technology with his new show

You won't believe your eyes

Tony Oursler's new show explores our uneasy relationship with technology. He's one of a growing number of artists with that preoccupation
Ian Herbert: Peter Moores must go. He should never have been brought back to fail again

Moores must go. He should never have been brought back to fail again

The England coach leaves players to find solutions - which makes you wonder where he adds value, says Ian Herbert
War with Isis: Fears that the looming battle for Mosul will unleash 'a million refugees'

The battle for Mosul will unleash 'a million refugees'

Aid agencies prepare for vast exodus following planned Iraqi offensive against the Isis-held city, reports Patrick Cockburn
Yvette Cooper: We can't lose the election. There's too much on the line

Yvette Cooper: We can't lose the election. There's too much on the line

The shadow Home Secretary on fighting radical Islam, protecting children, and why anyone in Labour who's thinking beyond May must 'sort themselves out'
A bad week for the Greens: Leader Natalie Bennett's 'car crash' radio interview is followed by Brighton council's failure to set a budget due to infighting

It's not easy being Green

After a bad week in which its leader had a public meltdown and its only city council couldn't agree on a budget vote, what next for the alternative party? It's over to Caroline Lucas to find out
Gorillas nearly missed: BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter

Gorillas nearly missed

BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter
Downton Abbey effect sees impoverished Italian nobles inspired to open their doors to paying guests for up to €650 a night

The Downton Abbey effect

Impoverished Italian nobles are opening their doors to paying guests, inspired by the TV drama
China's wild panda numbers have increased by 17% since 2003, new census reveals

China's wild panda numbers on the up

New census reveals 17% since 2003