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.