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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 >> Clarke, R. v [1996] EWCA Crim 281 (30 April 1996) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1996/281.html Cite as: [1996] EWCA Crim 281

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2 Tuesday, 30th April 1996

LORD JUSTICE OTTON: On 22nd November 1995, in the Crown Court at Coventry, before His Honour Judge Thomas Corrie, the appellant, Jennifer Anita Clark, was convicted of three counts of supplying a controlled drug, namely heroin. She also pleaded guilty to possessing a controlled drug, diamorphine. She was subsequently sentenced to 30 months' detention in a Young Offender Institution. She now appeals against conviction by leave of the single judge.

The basic facts out of which these charges arose can be stated briefly. The case for the prosecution on the three counts was whether heroin was supplied to three people as a joint enterprise by the appellant and her then fiance, Mr Clark. The police mounted an observation of Mr Clark and the appellant.

As to Count 1, the evidence was that on 7th September 1994, police officers, carrying out a surveillance operation in the centre of Coventry, saw a Mr Russell enter a public telephone box near to a public house called the Sir Colin Campbell. During a period of 40 minutes he was then moving in and out of the archway to the public house and he appeared to be waiting for someone. Eventually the appellant and her fiancee arrived in their car, a red Citroen. The appellant got out of the car and appeared to follow Mr Russell who went into the beer garden of the public house. She returned 25 seconds later. Mr Russell then appeared to have a conversation with Mr Clark who was still in the car.

The police carried out a search of the public house and recovered a corner of a polythene bag in the lavatory. Mr Russell was seen shortly afterwards walking unsteadily towards the city centre. The inference which the prosecution invited the jury to draw was that he had obtained a fix in the lavatory. He was arrested and gave the police a piece of tube which subsequent examination showed contained traces of heroin.

Count 2 relied to Mr Clark only. Count 3 again concerned the appellant. Seven days later, on 16th September, it was alleged that the appellant and Clark supplied a Mr Leach and two others with a small amount of heroin. The evidence was observation, telephone calls and a meeting of the appellant and Mr Clark with the purchasers outside the YMCA in the centre of Coventry. After the supply the police found two corners of plastic bags and a small amount of heroin in the Sierra car belonging to Mr Leach, in which the purchasers were arrested following the supply.

In interview the appellant agreed that she was familiar with the technique of packaging heroin in the corner of a plastic bag such as those recovered by the police on this occasion.

Count 4 alleged that on 19th September (three days later) Clark and the appellant supplied heroin to a Mr Gwyer. The appellant and Clark parked their car near to the entrance of the Golden Eagle public house in the centre of Coventry. Clark was seen going and in and out of the public house. Mr Gwyer and a woman came out of the pub and got into a taxi. They then spoke to Clark and went off in a taxi. Clark returned to the pub.

Mr Gwyer was arrested. Inside his pocket was found a corner of a plastic bag containing powder similar to those recovered three days earlier.

Clark was arrested in the area and the appellant was arrested later. Clark was found with £563 in his possession and the appellant had £216 in cash on her.

A search was carried out at the Clarke's home where various items were found, including a number of cornerless plastic bags and evidence of heroin and heroin abuse. Digital scales were found in the Clarkes motor car.

An important part of the prosecution case was the forensic evidence which clearly linked the appellant with the supply of heroin. The samples of heroin found in respect of Counts 1, 3, 4 and 5 were consistent with coming from the same source. Similarly, the corners of the plastic bags were of the same type and construction as bags found in the home of the appellant. Also found was a role of plastic bags of similar design.

In respect of Count 4 there was a match between the corner of the plastic bag and a bag with corners missing found at the Clarkes home. The heroin found at the Clarkes home and that sold to Leach and Gwyer in Counts 4 and 5 was indistinguishable and similar to that discovered in respect of Count 2, which concerned Clark only, and consistent with that recovered in Count 1, which concerned the appellant also.

The police eventually conducted a number of interviews with the appellant. She was first interviewed on 20th September, in the presence of her legal representative and effectively made no comment. She was released on bail to return on 22nd September.

They both duly surrendered to custody. When she was interviewed, the appellant admitted to heroin abuse and purchasing heroin for her own use. She admitted that she would occasionally wrap up drugs in plastic bags for her own use. She admitted only to personal use and said that the heroin found at their home was either hers or Clarke's. In other words, she made no admissions of supplying drugs on any of the three occasion when she had been observed.

They were released pending further inquiries and forensic analysis of the evidence which was in the police possession.

They returned to the police station on 10th November. By this time they were married. In interview the appellant admitted that the heroin found belonged to her and then, with her legal adviser present, she declined to answer any further questions.

During the course of the trial the defence sought to exclude the contents of the interviews with the police. It was submitted that the interviews carried out on 20th and 22nd September should be excluded under section 78 of the Police and Criminal Evidence Act 1996. In relation to the second arrest, at 11 pm on 19th September, no reason had been given for that arrest. It was submitted that the appellant should have been questioned specifically in respect of the four dates material to Counts 1 and 4 and that a clear warning that she had been arrested in respect of those specific offences should have been given so that she understood the nature of the enquiries the police were making.

It was also submitted that the appellant had been mislead in the interviews into believing that she was being questioned about a non-existent offence about drugs paraphernalia found in the house. The interview on 10th November was not the subject of any application of exclusion.

In the course of a voir dire, her legal representative, Miss Angela Craig, said that she had been under the impression that the second interview had been about mere possession, but the judge rejected her evidence and preferred the evidence of a police officer, who stated that the appellant had taken steps to explain where their money had come from, and that he had told Miss Craig that the interview was to be about the supply of heroin. He told the judge that at that stage he did not have confirmation that the substance found was heroin, the reason being that the substances had not yet been forensically examined.

The judge found that the appellant must have known that the interviews were about the supply of drugs; the police were not obliged to put the specific dates in relation to Counts 1 and 4; there was no reason to support the belief that the appellant had been misled into thinking that the interview was about a non-existent offence; there was no bad faith on the part of the police; there was no oppressive conduct during the interviews; no admissions arose from the first interview and by the second interview the appellant knew that she was being asked about heroin.

It is against that background that we must consider the law. Section 28 of the Police and Criminal Evidence Act provides:

"(1) Subject to (5) below, when a person is arrested otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practical after his arrest."

That section is central to the submissions made on behalf of the appellant. It is to be noted that the Philips Royal Commission recommended that the common law rule requiring an arrested person to be told that he is under arrest and the grounds of his arrest should be put into statutory form. This section implements that proposal and adds for good measure that when the arrest is by a police officer, but not otherwise, the requirement to inform the suspect that he is under arrest and the grounds apply regardless of whether the fact of the arrest, or the ground for it, is obvious. Where the arrest was initially unlawful, when it becomes lawful by the officer conveying the grounds, that does not alter the original unlawfulness of the offence: see Regina v. Hawkins [1988] 1 WLR 1,066. It is not necessary for the arrest to be accompanied by words such as "I arrest you" for it to be valid (see R v Abassy and Ors and R v Newman and Ors). Mr Abassy sued the police for false imprisonment after he had been arrested over the ownership of the car he was driving. The trial judge held that the explanation given by the police officer for the arrest, namely unlawful possession, was insufficient as a matter of law and that the arrest had accordingly been unlawful. The Court of Appeal allowed the appeal by the police and ordered a retrial. Lord Justice Woolf (as he then was) said that the most helpful guidance as to the extent of the explanation that has to be given on arrest was still that given in Christie v Leachinsky [1947] AC 576, and in particular the five principles which are set out at page 587:

"(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed but is nevertheless seized, the policeman apart from certain exceptions, is liable to false imprisonment.

(3) The requirement that the person arrested should be informed as to the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

(4) The requirement that he should be so informed does not mean that technical or precise language need be used. ......

(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him."

Another passage is relied upon by Mr Kearney, namely, in the speech of Lord Simonds at page 592.

"The exigency of the situation, which justifies or demands arrest without a warrant, cannot, as it appears to me, justify or demand either a refusal to state the reason of the arrest or a mis-statement of the arrest."

Later, at 593:

"These and similar considerations lead me to the view that it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and only this, is the qualification which I would impose upon the general proposition ... that the arrested man is entitled to be told what is the act for which he is arrested ... This is I think, the fundamental principle, viz, that a man is entitled to know what, in the apt words of Lawrence LJ, are 'the facts which are said to constitute a crime on his part.'"

We were referred to two other authorities, which can be dealt with very briefly. The first was Regina v. Telfer a decision of Sir Joseph Molony, sitting as a Recorder. Suffice it to say that this was a decision at first instance, which is not binding upon this Court, and the circumstances related to a totally different type of incident. We did not find this decision relevant or helpful.

We were also referred to Edwards v DPP (1993) 97 Cr.App.R 301, where it was held that although a police officer might have had power to arrest for unlawful possession of cannabis and a power to search and detain under the Act, since the officer gave an invalid reason, namely obstruction, for arresting the suspect, the arrest was invalid. Thus the arrest of the defendant was likewise invalid. That, again, is a situation which turned on its particular facts and we did not find it helpful on the issues which we have to determine.

Finally, section 78 of the Act provides:

"(1) In any proceedings the Court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the Court that having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

Mr Kearney submits that the trial judge in all the circumstances should have exercised his discretion under section 78 to exclude the interviews of the appellant prior to 10th November 1994. He advances the following reasons.

(a) The second arrest at 11 pm on 19th September was unlawful because simply being told "being concerned in supplying drugs" was insufficient to satisfy the requirements of section 28 of the Act and the criteria in Christie v Leachinsky.

(b) The police officer knew that the true ground for arrest was on suspicion of supplying heroin to the individuals named in the indictment but this reason was deliberately not given, despite the fact that the officer had reasonable grounds to suspect that Mrs Clark had committed such offences.

(c) The interviews were conducted with the specific purpose, of obtaining evidence relating to those counts without the appellant being alerted to the allegations and cautioned in relation to them. Whatever the motives of the police, they must have been acting in bad faith. The conduct could therefore hardly be described as scrupulously fair. By this conduct the appellant's right to silence had been seriously undermined. The interviews of Mrs Clark were central to the prosecution case and this was the view taken by counsel for the Crown. He referred to a previous decision of the court in Regina v. Mason and Stephens (Unreported: COA 24th March 1992) where a defendant was arrested for one offence of deception and then subsequently interviewed regarding a robbery without being arrested for that offence. The appeal was dismissed on the basis that although the police had a suspicion as to the defendant's involvement in the robbery, it was no more than that and they were not in a position (for the purposes of section 31 of the Act) to arrest the defendant for that purpose. It was held that in those circumstances the arrest was lawful.

In approaching the submissions, which were admirably prepared by Mr Kearney, in his Notice of Appeal, his Perfected Grounds and (in particular) his impressive skeleton argument, it is necessary to consider the history and the details of the evidence which led to the interview which it is sought to impugn.

By the time the appellant was arrested the police had in their possession photographs which showed clearly the involvement of the appellant, both inside and outside the motor car, and entering and leaving the public house. They had recovered the plastic corners which it was said contained the drugs which had been supplied. Thus, on 19th September 1994, when they arrested the couple on suspicion of possession of a controlled drug, the police had clear evidence to support such an arrest.

The home address was then searched which resulted in the seizure of a large number of incriminating items, incriminating both Mr and Mrs Clark. The items seized were consistent with heroin abuse but the presence of the paraphernalia and the scales in the car legitimately aroused a suspicion that drugs were being supplied.

One of the items seized on that occasion was a knotted cut off corner of a polythene bag containing a very small quantity of powder (suspected of being heroin). This was insufficient to give rise to a reasonable suspicion of possession with intent to supply. It was sufficient to give rise to a reasonable suspicion of simple possession in respect of either or both of the occupiers of the premises. The other items seized included the digital scales, large quantities of unused plastic bags, a pair of scissors, a large number of cut off corners from polythene bags and the remains of polythene bags from which the corner had been cut. Of further significance was a total of £3,170 in cash recovered from two hiding places at a time when it was believed that the appellant and her co-accused were unemployed and suspected of having an expensive personal drug habit.

Accordingly, prior to the second arrest on 19th September, there was evidence to give rise to a reasonable suspicion that the appellant had been a party to the supply of a controlled drug (suspected to be heroin) on a substantial scale and not only on the three occasions when the observations had been carried out. Clearly a possible charge which might have been under contemplation at that stage was one of conspiracy between the two persons living in the house to supply a controlled drug, to persons known or unknown. Both offences were arrestable offences within section 24 of the Act.

It is against that background that we approach the interview on 19th September. The appellant was arrested and told that she was arrested "on suspicion of being concerned in the supply of controlled drugs" by PC Lee. It is that phrase which is central to the appeal.

The custody record was endorsed with this further arrest in those precise terms. At 12 noon on 20th September the appellant was still in custody and she was interviewed and the following question was put to her:

" Q. . . . . and I believe it has been explained to you that we just intend to do a brief interview at the moment. You understand you were arrested concerning supplying a controlled drug?" (emphasis applied).

A. No comment.

Q. No, I'm just saying do you understand that is why you are under arrest?

A. No comment.

Q. Okay, well you have been told. All I am going to do is basically to give you the opportunity to make any comments you want on tape then ask you, could you just run through your movements yesterday?

A. No comment.

Q. You are not prepared to run through your movements yesterday?

A. No comment...."

A solicitor's representative was present during this interview and we infer she took that line on advice.

The appellant was then bailed until 22nd September. She and her co-accused surrendered to their bail. On this occasion a different representative from the solicitors was present, namely Angela Craig. She brought with her four letters from the appellant's parents purporting to show gifts, of £3,000, £500, £400 and £200 respectively, which were said to be gifts for the pending marriage between the two suspects. The co-accused also provided a portfolio of drawings, he being an artist, to show a legitimate source of income.

Given that background, we consider that it was a reasonable inference for the judge to draw that the appellant was aware, from what had been said on 19th and 20th September at the police station, before and at the time of being bailed, and from what she later discovered to have been seized from her home by the police when it had been searched, that the police would, and in fact did, suspect her of being a party to a supply of controlled drugs on a substantial scale. So did she, because the letters were produced to counter this suspicion.

It is true that on the voir dire Angela Craig gave evidence that prior to the interview with the appellant on the 22nd, she had gained the impression from the police officers that they proposed to question her about possession with intent to supply. However, the officer concerned gave evidence on the voir dire in rebuttal of that suggestion. He maintained that he had told Angela Craig that the appellant would be asked questions about the (actual) supply of heroin. He had a short note to this effect in his pocket book. The judge preferred the recollection of the police officer to that of Angela Craig.

The appellant was interviewed on two occasions on 22nd September by two officers, Woman Police Constable Baskerville and Detective Constable Mosey. The prosecution accepted at trial (and before this Court) that the form of these interviews had been planned in advance. The interviews with the co-accused on the same date followed the same format. Detective Sergeant Wassell, who did not conduct the interview on 22nd September, but was in charge of the case, gave evidence on the voir dire that at that stage, pending the results of the forensic examination of the items seized from both suspected customers and from 35 Partridge Croft, the home of the accused, that he did not have sufficient evidence to charge the appellant with any offence. Moreover, he did not propose that the appellant should be asked any question about either specific dates or suspected customers because he did not wish to compromise the investigation or the suspected customers or to run the risk of witnesses being interfered with.

That is an important passage in the evidence on the voir dire and one which Mr Kearney seizes upon and bases a large part of his argument. He submits that it suggests bad faith on the part of the police and that they were manifestly not acting fairly in the way they dealt with the appellant. That was a ground in itself for exclusion of the interview evidence under the provisions of section 78, regardless of whether there had been a lawful arrest or not.

We have considered that passage with great care. The judge at trial was clearly uneasy about the way that the police conducted this part of the investigation. It must now be abundantly clear to the West Midlands Police and, in particular to the Coventry Police stationed at Little Park Street, that proceeding such a manner creates hazards and that a trial judge may well take the view that there has been unfairness, exercise his discretion against the police and exclude the evidence. The fact that this Court might have taken that course is irrelevant. We have to consider whether the judge departed from principle or erred in the exercise of his discretion. This Court is slow to interfere with a judge's discretion and substitute its own. The judge, having heard all the evidence, and no doubt applying the criterion of fairness in section 78, decided that he would admit the evidence. We cannot find that the exercise of discretion was in any way at fault.

It is necessary to see whether and to what extent the defendant was prejudiced. She was asked first about her personal drug habit, and nothing arises out of that. She was also asked about her knowledge of her co-accused's personal drug habit. She was asked questions about their domestic circumstances, finances and sources of income, during which she gave details of the gifts from relatives in respect of their pending marriage and four letters were produced. The items which had been recovered from her home were shown to her individually and she was asked for her comments or explanations. She admitted that she might rewrap her own personal heroin in either cling film or polythene wraps. She said:

"It's in a bag, the bags what you have got. I put it in the corner and like tie it and then like melt it....

Q. So is it only you who stores your heroin like that or have you ever seen Dave do that, is that just something you do?

A. I'm not sure. I do mine like that but I'm not sure if Dave does.

Q. Have you ever seen any of Dave's heroin lying around?

A. I can't quite recall at this moment. I think he does it like that, yeah. Actually, yes he does.

Q. So you are not sure whether that's yours or his?

A. Yeah, it's one of ours anyway. That's the way we do it."

When shown exhibit 31, the heroin recovered from their house, she stated was her's or Clark's. That evidence quite clearly shows that there was a joint participation, at least in the preparation of drugs, and it coincided with the evidence that the police already had in their possession of the corners of bags which had been recovered when the drugs were supplied.

Later, specific matters were put:

"Q. Now I guess you know what we are going to say to you now Jenny. We have been through all the items seized from your address. That would be used in connection with weighing, wrapping and dealing in drugs?

A. No, that's not right.

Q. Yes they are. As you have already stated yourself you cut the corner off plastic bags to wrap your own drugs?

A. Yes.

Q. And all over the house we find plastic bags?

A. Yes.

Q. We find corners of plastic bags already cut up?

A. Yes....

Q. ... So you are just saying that they are for your own personal drugs?

A. Yes."

A little later the appellant was asked about her movements on the day of her arrest. She stated that she had been at the hairdressers all afternoon, how she had later seen her mother, but she stated, quite contrary to the observation that had been carried out on her (and the photographs to support it) that she and her co-accused had left home to go to a take-away when they were arrested. She omitted, deliberately or inadvertently, any reference to the visit to the Golden Eagle public house.

Finally, there was the evidence relating to the events of 10th November, when they surrendered at the police station in answer to their bail. The bail notice on each occasion contained the same information, namely "on suspicion of being concerned in the supply of controlled drugs." By this time the forensic examination had been carried out.

Angela Craig was again present upon that occasion when the appellant was interviewed by the same two officers. On this occasion she merely said "No comment" and the interview was terminated after seven minutes.

Detective Sergeant Russell, on the voir dire, gave evidence that it had been the intention to put to the appellant the observation evidence in respect of the specific occasions, the subject matter of Counts 1, 3 and 4. That was not done because the appellant, through her representative and in the course of the interview herself, made it clear that she did not propose to answer any questions. No issue was taken as to the admissability of this interview.

Against that detailed analysis, we proceed to determine whether or not there was a lawful arrest and whether, if there was not, the judge was right in the exercise of his discretion, taking all the circumstances into account, to allow that evidence to go to the jury. We are satisfied that the words used were apt to describe more than one offence, but they aptly described the offence for which the arrest was made. There can be no criticism of the police in the way that they behaved in that particular regard and such a situation was approved of by the Court of Appeal in Abassy. The arresting officer did not lead the appellant to think that he was arresting her for one offence when, in truth, he was wishing to arrest her for another. Thus, there was no violation of the important criteria in Christie v Leachinsky and Abassy. Moreover, it is not essential that the arresting officer should, at the time of the arrest, formulate any charge at all, much less the charge which may ultimately be found in the indictment. Again, this was in conformity with Christie v Leachinsky principles.

The ground of the arrest complained of was "on suspicion of being concerned in the supply of controlled drugs." This, in our view, correctly stated one of the grounds for the appellant's arrest. The language used sufficiently conveyed to the appellant the nature of the offence, or offences, on suspicion of which she was being arrested. The language used embraced charges which were eventually laid, namely Counts 1, 3 and 4 in the indictment. In our view, it was not necessary to identify either specific dates or the names of specific individuals, to whom the supply was suspected, when the results of the forensic examination, which would either confirm or contradict such suspicion, was still awaited.

We have come to the conclusion that the arrest was lawful and, thus, the evidence was, admissible. However, if we were wrong about that, and even if the judge had proceeded on the basis that the arrest was unlawful, we are satisfied that the judge was entitled to come to the conclusions that he did on the voir dire. He took the view that the second arrest was logical and sensible and, looking at the sequence of events, we consider that comment was justified. There was no evidence of bad faith on the part of the arresting officers or the officer in charge of the case in respect of the reasons for the arrest. We emphasise that because, although we have reservations of the conduct of the police and consider that they were unwise in the way they conducted the critical interviews, we, like the trial judge, would acquit them of any suggestion of bad faith.

Finally, the judge approached the matter on the basis that if there was a breach of section 28 of the Act, it was only one factor to be taken into consideration when carrying out the balancing exercise when considering admissibility under section 78. We agree. The ultimate test was one of fairness and we are far from persuaded that there was any lack of fairness of any significance.

In coming to that conclusion, we consider that the interviews complained of were not central to the prosecution case. There were no admissions in the interview on 20th September 1994. The only question of relevance was when she was asked if she understood the reason for her arrest and was asked to give an account of her movements on the day of her arrest. At this time she replied "no comment" and thus her reply cannot be held against her. The judge so directed the jury.

The lengthy interviews on 22nd September in the main consisted of denials. Where she did make admissions they were significant, in that they exposed the extent of her personal habit regarding heroin, that she was responsible for cutting up plastic bags and wrapping heroin in small corners of plastic bags which were then heat sealed.

More significant was the lie as to her movements on the day of the arrest, and the judge gave the appropriate direction in that regard. The essential part of the prosecution case, which apparently was not challenged was the evidence of observation by the police of her participation in the actual supplies.

In those circumstances, we have come to the conclusion that there was no material irregularity. There is, thus, no substance in that ground of appeal.

There is a second ground that when summing-up to the jury the judge failed to remind the jury of evidence called by the prosecution to the advantage of the defence. In particular, it is said the jury were reminded of what the forensic scientist had said in chief concerning the practise of wrapping quantities of drugs in plastic bags but not what she said in cross-examination, that from her experience it was common practice for small deal of heroin to be wrapped and sealed in that manner, so that the addict could swallow it to avoid detection by the police.

We are satisfied that this point was properly ventilated in evidence, that the jury could have been under no doubt as to the contradiction (if it be a contradiction) and the admissions made by the appellant herself. This was essentially a point for the jury and the judge cannot be criticised for not going any further into that aspect of the case than he did.

It is also said that the reason why the first interview was aborted was because Clark had collapsed on arrest and was taken off to hospital with a heart condition. It is said that to rely on the response of "no comment" in an adverse way was unduly prejudicial. We do not regard that criticism as having any substance. The judge had made it clear that "no comment" could not be construed as an admission. We are satisfied that circumstances in which that particular answer was given did not require elaboration.

Other criticisms are made to suggest that the judge gave an unbalanced aspect to the summing-up by not mentioning details of fact, or the evidence of the prosecution in that regard.

We consider that in the absence of any evidence from the appellant herself, the judge went as far as was necessary for him to bring out those parts of the prosecution case which were favourable to her and no further duty lay upon him. In summary, we consider that this summing-up was very carefully structured, was patent in its fairness, impeccable for its command of the law and analysis of fact, and the identification of the issues which the jury had to determine.

There is, thus, no substance in this ground of appeal. The appeal must be dismissed.

MR KEARNEY: In relation to the first ground, may I ask you to certify that is a point of general public importance since it does concern information --

LORD JUSTICE OTTON: We do not entertain such applications unless the question is committed to paper. We do not encourage you to take that course.