3 August 2003

Related files on David Shayler case:

http://www.cryptome.org/r-v-shayler.htm

Source: http://www.courtservice.gov.uk/judgmentsfiles/j1913/shayler.htm 

Neutral Citation No. [2003] EWCA Crim 2218

Case No: 2002/6948/Z3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Tuesday 29th July, 2003

Before :

LORD JUSTICE KENNEDY

MR JUSTICE CRESSWELL

and

MR JUSTICE BENNETT

- - - - - - - - - - - - - - - - - - - - -

Between :
 

R

  
 

- and -

  
 

David Michael Shayler

  

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Geoffrey Robertson QC for the applicant

Hearing date: 24th June 2003

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Kennedy:

This is a renewed application for leave to appeal against conviction, leave having been refused on paper by the single judge. Only grounds 1 to 3 of the Grounds of Appeal are now pursued, the remaining grounds having been abandoned, and, as Mr Geoffrey Robertson QC on behalf of the applicant explains in the first paragraph of his written submissions, the three grounds of appeal which remain can be combined into one general ground, namely –

"That the conviction is unsafe because the trial was conducted in breach of Article 6 of the European Convention on Human Rights, because the cumulative restrictions imposed upon the defendant deprived the proceedings of the character of an adversarial criminal trial and/or unfairly discriminated against him because he had chosen to defend himself."

It is clear from the surviving grounds of appeal and from the written submissions that we are concerned only with certain rulings made by the trial judge on the 8th, 14th and 30th October 2002. There is no other criticism of the proceedings, and thus in this judgment we do not have to concern ourselves with, for example, the details of the evidence, or the content of the summing-up. But the background to the proceedings and to the rulings now being challenged is of some importance.

Background.

The applicant was a member of the Security Services between November 1991 and October 1996. At the outset of his service he signed an Official Secrets Act 1989 declaration acknowledging the confidential nature of documents and other information relating to security, intelligence, defence and international relations that might come into his possession as a result of his position; he also signed an acknowledgement that he was under a contractual obligation not to disclose, without authority, any information that came into his possession by virtue of his employment. When initially employed he was trained in the secure handling of classified information. He worked in the vetting section first, carrying out checks for other government departments. He then joined the branch concerned with "counter-subversion" followed by the section responsible for countering Irish Republican terrorism. Lastly, he was posted to the section responsible for countering Middle Eastern terrorism, where he remained for two years until he resigned.

When he resigned he signed a further declaration under the 1989 Act acknowledging that the provisions of the Act continued to apply to him, and that the same requirements of confidentiality continued to apply to any information, documents, or other articles relating to security, intelligence, defence or international relations which might have come into his possession as a result of his previous employment.

By August 1997, without having alerted the Security Services of his intentions, the applicant was in contact with journalists from the Mail of Sunday, and was paid to write articles about his period of employment and to voice criticisms of the services. Thirty documents, including four classified as "top secret" and eighteen as "secret", with the balance being classified or unclassified, were handed to journalists of the Mail on Sunday. About two thirds of that documentation came from the Middle Eastern counter terrorism section, and the applicant was the author of about half of the documents.

On 23rd August 1997 the applicant left the country and on the following day the Mail on Sunday published a series of articles by him. On 30th August and 4th September 1997 injunctions against the applicant and the publishers of the Mail on Sunday were granted to the Attorney General, to prevent further disclosures. The documents passed by the applicant to the newspaper were returned to the Treasury Solicitor in March 1998.

In August 2000 the applicant returned voluntarily from France and was arrested. He was not interviewed but did state that he was relying in his defence on his "right to freedom of expression as guaranteed by the common law, the Human Rights Act and Article 10 of the European Convention on Human Rights".

The indictment which he faced contained three counts, namely –

(1) Disclosure of documents, contrary to section 1(1) of the 1989 Act.

(2) Disclosure of information obtained by interception of communications, contrary to section 4(1) of the Act.

(3) Disclosure of information purporting to relate to security or intelligence contrary to section 1(1) of the Act.

The wording of count 3 was amended, but nothing now turns on that.

On 4th November 2002 in the Central Criminal Court the applicant was convicted of all three offences, and received a sentence of six months imprisonment on each count concurrent.

Public Interest as a Defence?

The two statutory provisions relied upon in the indictment, so far as relevant, read as follows –

"1(1) a person who …. has been –
(a) a member of the security and intelligence services … is guilty of an offence if without lawful authority he discloses any information, document … relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services …..

(2). The reference in subsection (1) above to disclosing information relating to security or intelligence includes a reference to making any statement which purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.

4(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such."

Subsection (2) applies the section to information, documents and other articles which are not relevant for present purposes and section 4 continues –

"(3) this section also applies to –
(a) any information obtained by reason of the interception of any communication in obedience to a warrant …"

The trial judge held a preparatory hearing during which he ruled that (1) the defence of duress or necessity of circumstance was not open to the defendant, having been excluded by implication by the 1989 Act, nor (2) could the defendant argue at common law or as a result of the coming into force of the Human Rights Act 1998 that his disclosures were necessary in the public interest to avert damage to life or limb or serious damage to property. The Court of Appeal upheld both of the judge’s rulings ([2001] 1 WLR 2206). In the House of Lords the first ruling was said to be premature, but the second ruling was upheld ([2003] 1 AC 247). Lord Bingham said at page 266 paragraph 20 –

"It is in my opinion plain, giving sections 1(1)(a) and 4(1) and (3)(a) their natural and ordinary meaning and reading them in the context of the OSA 1989 as a whole, that a defendant prosecuted under these sections is not entitled to be acquitted if he shows that it was or that he believed that it was in the public or national interest to make the disclosure in question or if the jury conclude that it may have been or that the defendant may have believed it to be in the public or national interest to make the disclosure in question. The sections impose no obligation on the prosecution to prove that the disclosure was not in the public interest and give the defendant no opportunity to show that the disclosure was in the public interest or that he thought it was. The sections leave no room for doubt, and if they did the 1988 White Paper quoted above, which is a legitimate aid to construction, makes the intention of Parliament clear beyond argument."

The House of Lords gave its decision on 21st March 2002, and the trial judge, Moses J, then resumed control of the case as preparations were made for the trial which was arranged to take place in October and November 2002. That brings us to the period during which the rulings with which we are concerned were made. During the summer of 2002, as Mr Robertson told us, the appellant decided that he would represent himself. He continued to have the services of a solicitor to advise him, and of a member of the bar, Miss Holdsworth, to take a note. In relation to some matters he chose to instruct Mr Robertson or Miss Holdsworth to make representations on his behalf. Mr Robertson told us that it was because of the appellant’s decision to represent himself that the prosecution decided to seek those orders made on 14th October 2002 of which complaint is now made. But before we deal with those orders we look first at the ruling made on 8th October 2002.

Certain witnesses to be screened and not named: Ruling of 8th October 2002.

On 20th September 2002 the Crown gave notice of an application made pursuant to section 8(4) of the Official Secrets Act 1920, section 11(4) of the 1989 Act and Rule 24A of the Crown Court Rules 1982 that "any part of the trial process which touches, or purports to touch, whether directly or indirectly, upon any sensitive operational techniques of the Security and Intelligence Services, and in particular upon their sources of information, including the identity of any officer, contact, or agent (to) be held in camera."

Section 8(4) of the 1920 Act enables the prosecution to apply for all or any portion of the public to be excluded during any part of the hearing and enables the judge so to order "on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the national safety." Section 11(4) of the 1989 Act simply applies the earlier provisions to the 1989 Act and Rule 24A of the Crown Court Rules sets out the procedure to be followed when it is sought to obtain a ruling that all or part of a trial should be held in camera. There is no suggestion that the proper procedure was not followed in this case.

In fact everyone – counsel on both sides and the judge – was anxious that so far as possible the trial should be conducted in public, and what was proposed by the prosecution before the hearing on 8th October 2002 was that –

(1) Certain prosecution witnesses should give evidence from behind screens without being named, and –

(2) The defendant, if he wanted to raise certain matters in evidence should give prior notice in writing to the Crown in relation to those matters.

The Judge dealt with the first of those proposals in the ruling which he made on 8th October 2002. The application was that three serving members of the Security Services and one former member should give evidence without being named, and that when giving their evidence they should be visible to the judge, the jury, the lawyers and the applicant but should be screened from public view. The applicant knew all of their names. The Crown’s application for parts of the trial to be heard in camera was supported by two certificates from the Home Secretary, one dated 31st October 2000 signed by Mr Straw, and another dated 4th October 2002 signed by his successor Mr Blunkett. There was also, a certificate from Mr Straw as Foreign Secretary dated 4th October 2002. These certificates themselves were in general terms, but in paragraphs 2 – 3 the two more recent certificates say –

"I am advised that in connection with this prosecution attempts may be made by the defendant to make statements during the course of the proceedings or put into evidence material which relates to certain security and intelligence matters. I have formed the view that certain such statements or evidence, if received in open court, would be prejudicial to national security."

The certificates go on to speak of possible danger to sources, methods of obtaining information, and security services personnel, and say in paragraph 6 –

"It is not possible for me to be more specific in this Certificate about the information for which non-publication is sought, or the precise harm that publication would cause, since my doing so would be liable to cause the very damage that the Certificate seeks to avoid. Full details are, however, given for the benefit of the Court in the sensitive Schedule to the Certificate."

For the purposes of this application we were not invited to consider, the Schedules, but they were, of course, considered by the trial judge.

The application made by the Crown was resisted by the applicant, who on this occasion was represented by leading and junior counsel and it was also resisted by Mr M. Tugendhat QC, instructed on behalf of the press.

As Mr Robertson acknowledges, the judge carefully considered the submissions addressed to him in the light of the relevant authorities. He emphasised the importance of open justice, and its potentially valuable effect on the extent and quality of the evidence which a court receives. If that openness was to be curtailed the judge had to be satisfied by the evidence adduced in support of the application that the departure from open justice was justified in the overall interests of the administration of justice, and the evidence had to be particular to the individuals who sought to cloak their evidence in anonymity. It could not be general. The judge also recognised that there must be no undue prejudice to the defendant. The judge accepted Mr Robertson’s submission that he must take into account the prejudice likely to arise by reason of the "aura" that anonymity would cast on the evidence in the case. The judge also considered whether the evidence to be given by each witness was sufficiently relevant and important to make it unfair to the prosecution to proceed without it; the extent to which the credit-worthiness of each witness had been properly investigated by the Crown, and the results of that investigation disclosed, and the need to balance the need for protection to the necessary extent against any unfairness or appearance of unfairness in the instant case.

On the basis of all the material before him, in particular that to be found in the Certificates and the Schedules to the Certificates, the judge was satisfied that to disclose the identity of the witnesses would give rise to "a real risk to the safety of those individuals" (page 13F). He went on to find that because of the importance of the witnesses to the prosecution case were he not to make the order sought preserving their anonymity, the prosecution would be faced with a stark choice: either to call the witnesses and expose them to the risk, or abandon the case (Page 15A). As to the possible prejudice to the defendant, he knew the names of the witnesses, and having regard to the nature of the trial their anonymity would not give rise to any real risk of prejudice against him. In the particular case some of the well recognised advantages of open justice were regarded by the judge as not significant factors (for example, increased pressure on witnesses to tell the truth, and the possibility that some one hearing the case would know something relevant to the defence).

Finally the judge specifically had regard to Article 10 of the European Convention when declaring himself satisfied that –

"When one weighs the one against the other the need for protection of the anonymity of those witnesses far outweighs any possible unfairness to the defendant in the particular circumstances of this case."

He found that what was proposed was no more than was necessary to achieve the legitimate aim of properly administering justice, and so he made the orders sought.

It was noteworthy that when making his submissions to us Mr Robertson did not criticise the judge’s approach in any way. Of course Mr Robertson was hampered by not having seen the Schedules, but there is, as it seems to us, no reason at present to conclude that the contents of the Certificates and Schedules are not sufficient to support the judge’s factual conclusions. Indeed Mr Robertson went so far as to concede that it would be difficult to criticise any of the careful rulings made by the judge individually. It was, he explained, the cumulative effect of which he complained. In our judgment there is certainly no viable free standing complaint which can be made so far as the ruling of 8th October 2002 is concerned.

Evidence in camera: Rulings of 14th October 2002.

On 10th October 2002 the trial judge made a number of rulings in response to substantial submissions made by the applicant in person. No ground of appeal is founded on what happened on that day, but it is worth noting that the applicant again raised the defence of necessity, and the judge said, at page 14G of the transcript –

"In my judgment the statute makes it plain that it is not open to him to argue that either his ignorance of that defence or his belief that he, on the basis of his reasons for doing what ever it is proved that he did, amounted to a belief in lawful authority"

On 14th October 2002 the applicant was again represented by leading and junior counsel, and the judge gave further consideration to the Crown’s application for some parts of the evidence to be heard in camera with particular reference to the second proposal which had been made on 8th October 2002. The Crown invited the judge to consider the Ministerial Certificates and in particular Schedules to the Certificates which the judge had not previously considered. Mr Robertson objected to the judge seeing the Schedules. Various alternatives were canvassed, but the judge concluded that he had to see the Schedules to discover the foundation for the application to hear any evidence in camera. As he put it –

"If a court is going to take the drastic step, as I acknowledge it to be, of ordering part, any part of the trial not to be disclosed to the public, then questions of the cogency or otherwise of the evidence and their foundation of any such application must surely be considered before any ruling as to the form the evidence must take ….. I cannot make such a ruling in a vacuum."

He said that he would look at the Schedules de bene esse, and he proceeded to do so. Once again there is, at this stage, no real criticism of that decision of the trial judge, nor in our judgment could there be.

On 8th October 2002 the Crown had given to the court and to the defence a document headed "Suggested Procedure" which read as follows –

"1. Technically the defendant requires lawful authority under the Official Secrets Act 1989 before making any disclosure of any matters relating to security or intelligence in furtherance of his defence.

2. Obviously and for the avoidance of doubt the Crown has confirmed with the Security Services that they authorise, for the purposes of the trial, the defendant to make any such disclosure which is necessary for the proper conduct of his defence with Moses J. being the ultimate arbiter as to what is necessary in the proper conduct of his defence.

3. However, this authorisation cannot in itself deal with the prevention of damage to national security by mention of a matter in open court which results in damage.

4. Accordingly, in the light of the indications given by Moses J on 7th October, it is proposed to invite Moses J. to approve the following regime (designed to avoid the need for an in camera application to be made):

(a) the defendant to give notice in writing to the Crown of any matter relating or purporting to relate to security or intelligence which he may seek to raise (whether directly or indirectly); and

(b) if the Crown dispute relevance, that issue to be decided by Moses J. whether on paper or in chambers (pursuant to the Court’s inherent powers) so as to avoid any risk of damage;

5. Obviously all must understand that if the learned judge rules to be relevant (and thus capable of being referred to in open court) a matter which is caught by the terms of the notices then this will inevitably trigger an in camera application.

6. It should be understood that if this regime is approved, the prosecution in the event of a breach, may apply to the judge to regard that breach as a contempt.

7. Any such breach will also inevitably lead to the resurrection of the in camera application."

As the judge said on 14th October 2002 after he had considered the Certificates and the Schedules, the object of the proposed regime, an object supported by both prosecution and defence, was to conduct as much as possible of the trial in open court without the need to hold it in camera. The judge then said –

"I am satisfied, having read the Schedules, that absent any regime imposed by the Court there is a risk of disclosure of material which will give rise to a risk of damage to national security. I reach that conclusion in the light of the whole history of this matter."

The judge then went on to refer to –

(1) the proceedings in the Court of Appeal and the House of Lords:

(2) Mr Robertson’s decision, after the ruling of the House of Lords to decline to elaborate on the nature of the defence which the applicant wished to offer to the prosecution:

(3) An article which the applicant chose to publish in the Mail of Sunday on 11th August 2002, long after the decision of the House of Lords and shortly before the date fixed for trial in which, as the judge put it, ‘he reiterated matters in relation to the defence he wished to advance which were contrary to the rulings of the House of Lords. He wished to persist in arguing that his disclosures were necessary in a democracy and asserted that he wanted to ‘put the democratic values of the Human Rights Act at the heart of my case’. He further said that he would be using British legislation to put the Labour Government and the Intelligence Establishment on trial.

(4) The issues raised by the applicant last week (i.e. on 10th October 2002) ‘which again raised similar arguments as to the defence he wished to provide of essentially justification in the public interest, or at least a belief that he was justified.’

The judge then referred to a document which we have not seen setting out Mr Shayler’s proposed regime, in which the applicant said that it was not his intention to disclose anything in the trial in such a way as to damage national security or to put any person in danger, and that he would give notice to the Crown of any matter he might seek to raise relating to security or intelligence which was not already in the public domain. In the light of that indication of intention Mr Robertson submitted that there was no risk of any disclosure, certainly during the prosecution case, of anything that might give rise to a risk of damage to national security, and therefore it was not necessary to impose upon the applicant the regime proposed by the Crown.

However, as the judge noted, the applicant maintained his stance that there were matters about which he wanted to cross-examine which did not touch on the simple issue which the jury would have to decide, namely whether or not it was he who disclosed the matters to which the indictment referred. The judge noted that he had received no open agreement by the applicant to confine his cross-examination to the issues which the judge had identified as being material in the ruling which was endorsed by the House of Lords. The judge continued –

"Had I received such a plain assurance, I would of course have been happy to accept it from Mr Shayler, but I have not."

That is an important observation, because it seems to us to be a complete answer to Mr Robertson’s submission that Mr Shayler was put at a disadvantage because he chose to act in person. The truth is that he was not being allowed to try to secure for himself an advantage which no advocate would have enjoyed.

The judge then noted the suggestion made on behalf of the applicant that the situation might change at the close of the prosecution case, and that he might then want to raise matters before the jury in his own evidence or in evidence which he might seek to adduce going beyond the issues identified by the judge as the issues which were relevant for the purposes of the case. The judge was cautious. He recognised the possibility that such evidence might become admissible, and the right of the applicant not to agree to confine his evidence to the simple issue raised by the charges, but in that situation the judge said that he was satisfied that –

"There is a risk that he might, either in the course of cross-examination or in the course of evidence adduced by him or through other witnesses, disclose matters that themselves may cause a risk of damage to national security or put any person in danger."

The judge went on to say that even if some matters were already in the public domain repetition could give rise to a significant risk, so if the applicant wished to keep alive the possibility of raising such matters the judge had to keep alive the possibility that part of the proceedings would have to be conducted in camera. He said –

"It seems to me that the defendant does have a choice: either he makes no reference to those matters at all, in which case there could be no justification for any in camera hearing, or if he wishes to raise those matters, then the question of whether there should be an in camera hearing arises at that point."

Of course that left open the question of how to know in sufficient time when an issue might arise which would require the court to rule first as to admissibility and secondly as to whether to proceed in open court or in camera, and it was in relation to that question that the judge accepted the procedure suggested by the Crown, and ruled that –

"If the defendant wishes to raise any matter relating or purporting to relate to security or intelligence, he must give the Court advance notice of that, be it raised in the form of questions to any witnesses or once the Crown case has closed, should it be necessary and the case go any further in relation to any evidence he wishes to adduce."

It is to be noted that the judge did not require the applicant to give notice of the questions he proposed to ask, or to provide any proof of evidence of himself or his witnesses. All he had to do was to give notice of any matter relating or purporting to relate to security or intelligence which he wished to raise. Having regard to the history of the case up to that point we find it difficult to envisage how the judge could have made a less restrictive ruling. Plainly the judge did not, as contended by Mr Robertson in paragraph 2 of his written submissions to us –

"a. Require the defendant to disclose in detail all his cross-examination areas, and his actual questions in advance to the prosecution for subsequent discussion with the judge if the prosecution thought fit, or –

b. Require the defendant to disclose his evidence in chief in advance and in detail to the prosecution for prior discussion with the judge should the prosecution wish."

It is clear from the opening words of the ruling made by the judge on 30th October 2002 that by that date his ruling of 14th October 2002 had already been considered by this court.

In fact there was an application for leave to appeal made under section 159(1) of the Criminal Justice Act 1988 which, if leave is granted, enables a person aggrieved to appeal against –

"any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such trial."

The application was considered by the Court on paper and on 23rd October 2002 the decision was given in open court. For the purposes of the application the court was prepared to assume that the applicant was a person aggrieved but it found that on 14th October Moses J. had not made an order within the scope of section 159(1). As Rose LJ said –

"He reached conclusions as to the desirability and character of a regime for dealing with how matters, which might affect national security, should be raised by the defendant. But he did not make any order restricting access to the public. On the contrary he said in terms that, when under the regime which he established, notice was given of matters to be raised, he would hear argument by reference to the actual material and would then give a ruling as to whether the matters should be raised in camera or in open court."

Questions as to Credit: Ruling of 30th October 2002.

We were told that the applicant chose to give written notice of questions which he wished to put to various witnesses to be called by the Crown, and the judge then had to rule as to whether he should be allowed to ask the questions of which he had given notice. We asked for a copy of the written notice, and since the conclusion of the oral hearing we have been provided by Miss Holdsworth with copies of not questions but a handwritten note of cross-examination topics prepared by her. It helpfully illustrates what was shown to the prosecution and considered by the trial judge.

The first question which the judge had to consider was the question of relevance, so he summarised what the prosecution had to prove, and identified the matters with which the Crown expected witness B to deal. The applicant wanted to cross-examine B in relation to a number of matters which, he said, went to B’s credibility even though they were not apparently related to the evidence which he was to be called to give. There are of course limits as to what may be put to a witness by way of cross-examination as to credit. In R v Sweet Escott [1971] 55 Cr App R 316 Lawton J said –

"Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence."

That statement of principle, which has been approved by this court, was cited by the trial judge. Mr Robertson submitted to us that it was not relevant, but he did not explain why. In our judgment it was plainly relevant, and the judge was right when he went on to say –

"The question I have to ask is whether it is possible that after raising the topics which Mr Shayler seeks to raise, the jury might take an adverse view of the witness’s account of those facts of which he has given evidence."

The judge answered that question by saying –

"In my judgment it is not possible. When one considers the very limited nature of the factual evidence of which the witness is to be asked, in particular in relation to the service of this defendant and his knowledge of his obligations of secrecy, it is not possible to conceive that general questions about his conduct in relation to totally different matters in respect of which the defendant was or was not involved could lead any reasonable jury properly directed to take an adverse view of his account of the limited facts of which he seeks to speak."

The judge then went on to consider another factor which he regarded as important, namely –

"The defendant has from the very start of these proceedings until today, and he has repeated it today, sought to justify any conduct which may be proved against him by reference to his decision to expose wrong doing of the Security and Intelligence Services."

Against that background the judge said –

"I take the view that his desire to cross-examine the witness B on these topics is part of a design to expose to the jury, and indeed for that matter to the public at large, his justification in what he asserts to be the public interest in disclosure for his actions. In short the proposed cross-examination is in my view no more than an attempt to go beyond the rulings of the Courts which have been given hitherto including the House of Lords and to raise by way of cross-examination a defence which it is not permissible for him to raise as a result of those rulings."

So the judge ruled that the applicant was not permitted to ask certain questions of witness B.

In our judgment it is impossible to fault either the approach adopted by the judge or, on the information available to us, the conclusion at which he arrived.

Conclusion.

That leaves only Mr Robertson’s submission about cumulative effect. It is difficult to see how a series of rulings, each of which was demonstrably correct, could lead to a trial being unfair, but even if that be a theoretical possibility we are satisfied that no unfairness resulted in the present case.

In his written submissions Mr Robertson reminded us of the history of the right of self-defence. That right was carefully preserved by the trial judge in this case. We were also reminded of what was said in Wakeley v The Queen [1990] 64 ALJR 321 as to the limits of cross-examination. That seems to us to be entirely consistent with the English authorities on which the judge relied. Mr Robertson even went so far as to suggest that the trial "ceased to be a true adversarial process". That we cannot accept. It was further submitted that the applicant was prejudiced by each of the restrictions in the presentation of his case or in the eyes of the jury, and that there was no equality of arms. We do not agree. As we have explained, the judge was careful to evaluate and to give weight to any possible prejudice, and the cross-examination by the applicant was only restricted in accordance with well established principle and to the extent that it would have been restricted if the applicant had been represented by counsel. As we have indicated, we see no reason to conclude that the judge failed to have regard to the cumulative effect of his decisions, and we reject the contention that the regime which he imposed was disproportionate. Indeed, as we have demonstrated, the rulings he made only went as far in the circumstances they had to go.

Postscript.

Having drafted this judgment it seemed to us to be right to examine the schedules which were placed before Moses J, and to which he referred when making the rulings under challenge, so as to satisfy ourselves that the material in the schedules provided proper support for the judge’s conclusions. We have now seen those schedules, and are satisfied that on the basis of the material which they contain the judge was entitled to rule as he did.

This renewed application for leave to appeal is therefore dismissed.