Swaggering confidence turns to silent shock

They came with smiles on their faces and a confident swagger in their step. They left with looks of stunned disbelief and heads bowed in solemnity.

The brothers Maxwell - together with their learned friends - may have expected yesterday's hearing to be a formality, but the men from the Serious Fraud Office bore unwelcome tidings.

The SFO decision to press ahead with another five counts on the original indictment against the Maxwell defendants, despite their acquittal last week on two of the counts, hit the court room like a bombshell.

Before the unwelcome blow, the body language of the five defendants and their legal team was in sharp contrast to that during the trial. Where Kevin had previously been pale and drawn, pacing the room, yesterday morning found him smiling and garrulous.

Indeed, there was a more assured gait about the defendants' retinue as they regarded the five-strong SFO prosecution team sitting a few feet from them. At 10.30am, the trial judge, Lord Justice Phillips, started the proceedings and the SFO's counsel, Richard Lissack, rose to speak.

It all started innocuously enough. Mr Lissack explained why the SFO was dropping charges against Robert Bunn, due to ill health. Mr Bunn was originally a defendant in the first trial who had to drop out, following a heart attack.

Mr Lissack added that Ian Maxwell, Kevin's elder brother, was also clear of all charges as he had "never been involved to the same degree" as alleged of the others.

Then it came: "On counts one, two and nine, we intend to prosecute Kevin Maxwell, Larry Trachtenberg and Albert Fuller ... " The end of the sentence was lost as the journalists stampeded out of the court to alert their offices.

Gone were the smiles. There followed a series of heated exchanges between Mr Lissack and Kevin's counsel, Alun Jones QC. Mr Jones said that the SFO said last week it would inform the defence of its decision in advance, yet he had heard nothing until receiving "anecdotal" information, minutes before the hearing, which turned out to be wrong.

Mr Lissack countered: "I tried to speak to him and he wouldn't speak to me."

Mr Jones then complained of being "caught on the hop". He said a second trial would be even longer than the first and would be "oppressive", "an abuse of process" and "nothing less than an outrage".

Michael Hill QC, Mr Trachtenberg's counsel, said that although he had been able to find out the SFO's intentions before the hearing, the solicitors for Mr Fuller had not been told of the decision. "That discourtesy is a measure of how prosecution is being conducted," said Mr Hill.

Mr Lissack responded: "May I make it plain. I do not propose to rise to language like outrage, oppressive, deplorable ... "

He insisted that final decisions were only reached that morning because so many people's views had to be taken into consideration and all aspects of the case considered "in the minutest detail".

All those concerned had spent the past seven days considering the many factors and how they affected each charge and each defendant, and how the public interest could best be served, he said. Keith Oliver, Kevin's solicitor, shook his head in disbelief.

Mr Lissack concluded that a new judge would not take long to read up for the second trial, which could start in October. The judge, Lord Justice Phillips, one of the few in court to maintain his sang froid throughout the 70-minute hearing, agreed to Kevin having several weeks' holiday before a hearing to decide on the abuse of process claim.