Customs and Excise, R (on the application of) v Blackfriars Crown Court

A Crown Court judge’s refusal to release a transcript of sensitive public interest immunity proceedings may be quashed where the reasons rely on irrational assessments of safety, relevance, jurisdiction or the availability of alternative records. The court must recognise the requesting authority’s ability to protect informants and assess the possible relevance of investigative practices and conduct in another case. Under rule 19 of the Criminal Appeal Rules 1968, there is no stated time limit for supplying a transcript where an appeal lies. In sensitive proceedings held in chambers, judicial permission is required, but the judge retains jurisdiction to order disclosure.

HM Customs and Excise sought judicial review of Judge Pillay’s refusal to release the transcript of public interest immunity proceedings in Gardner and Others. The transcript was sought for consideration of disclosure to the defence in the then-current trial of Chandler and Others. The Crown Court judge had refused release on grounds concerning the safety of informants, relevance, jurisdiction and the presence of Customs officers at the original hearing. The central issue was whether those reasons lawfully justified withholding the transcript.

1. The claim succeeded. The Crown Court judge’s decision was quashed and the Crown Court was directed to release the transcript to HM Customs and Excise pursuant to CPR 54.19(3).

2. The concern that release would be potentially unsafe for informants was irrational and perverse. The judge failed to recognise that HM Customs and Excise held highly sensitive material securely and could disclose only parts of the transcript which did not identify previously undisclosed informants.

3. The judge’s view that the transcript could have no potential relevance to Chandler and Others was also flawed. The procedures, practices and conduct of investigating officers in one case might be relevant in another, particularly where the investigating authority considered that material relevant.

4. The judge misdirected himself in concluding that his jurisdiction had ceased and that he was functus officio. Rule 19 of the Criminal Appeal Rules 1968 required a transcript of proceedings, or part of them, in respect of which an appeal lay to be supplied on request to an interested party. The rule imposed no time limit, and transcripts were habitually supplied years after the event.

5. Because the proceedings were sensitive and conducted in chambers, permission from the Crown Court judge or a supervisory court was necessary. That requirement did not deprive the judge of jurisdiction to order release. Notes made by persons present were an inferior substitute for the court transcript.

The application was for judicial review of Judge Pillay’s refusal to release the transcript. The Divisional Court quashed that decision and directed release under CPR 54.19(3).