CO/15170/2009 
Neutral Citation Number: [2010] EWHC 2225 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 16th July 2010
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE WYN WILLIAMS 
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Between: 
GC & C 
Claimant

v 

COMMISSIONER OF POLICE OF THE METROPOLIS 
Defendant 
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Mr S Kragg & Mr D Squires (instructed by Fisher Meredith & Public Law) appeared on behalf of the Claimants
Mr J Beer (instructed by DWF LLP) appeared on behalf of the Defendant

Mr J Strachan appeared on behalf of the Interested Party
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J U D G M E N T
1)	LORD JUSTICE MOSES:  These are two applications for judicial review in two separate claims.  They have not been consolidated but by order of Hickinbottom J they have been listed to be heard at the same time.  They were heard at the same time yesterday.
2)	The issue is whether the policy of the Association of Chief Constables of Police (ACPO) of retention of biometric samples, DNA and fingerprints, for an indefinite period save in exceptional circumstances, breaches these two claimants' rights enshrined in Article 8 of the European Convention of Human Rights.  The claimants contend that the policy applied by the Commissioner of Police, the defendant in these proceedings, and by other Chiefs of police across the country, is a blanket and indiscriminate policy which fails to allow consideration of individual factors and permits the indefinite retention of samples obtained in circumstances where neither of the claimants had been convicted of any offence.  They contend that that policy amounts to a disproportionate interference with their right to respect for private life.  
3)	The Commissioner and the Secretary of State, as an interested party, contends that this court is bound by the decision of the House of Lords in Regina (S) v Chief Constable of the South Yorkshire Police Regina (Marper) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196.  They contend that it is not open to this court to apply the decision of the European Court of Human Rights in S and Marper v United Kingdom [2009] 48 EHRR at 50.  They contend, further, that the policy which is now pursued in relation to the retention of biometric samples is merely a temporary policy, pending legislation designed to take into account the decision of the European Court of Human Rights and conform with the Convention as interpreted by that court.
4)	If the contentions of the Commissioner supported by the Secretary of State are correct, then all parties agree that the appropriate course is to order a leapfrog appeal to the Supreme Court which can then consider its previous decision in the light of the judgment of the European Court of Human Rights.  To ensure that there is no undue delay caused in particular by the circumstances in which this case came to this court this time of year, we did not hear any detailed argument on the merits of the claims brought by these two claimants.  We focussed upon the question of precedent and whether the Commissioner and the Secretary of State were correct in contending that this court is bound by the decision of the House of Lords.  In those circumstances it is only necessary to deal briefly with the facts and the underlying issues.
5)	In the case of Gc, on 20th December 2007 he attended a police station voluntarily.  There he was arrested on suspicion of common assault on his girlfriend of the time.  The custody record confirmed that no injury had been caused.  
6)	The claimant contended that the allegations were wholly without justification, that he had been attacked by his girlfriend and had merely defended himself against that attack.  After DNA samples, fingerprints and a photograph had been taken, the claimant was released on bail without charge and before the time for his surrender was told that no further action would be taken.  
7)	In relation to his fingerprints, there had in fact been an occasion when they had been obtained earlier, relating back to a previous irrelevant conviction, a conviction some 19 years before.  But, of course, at that time no DNA sample had been taken.
8)	The claimant, following the decision of the European Court of Human Rights sought, through his solicitors, destruction of the DNA samples and the fingerprints, on the basis that he had not been guilty of any offence and retention of those samples and the fingerprints breached his rights enshrined in Article 8 of the Convention.
9)	The other claimant, C, was arrested on 17th March on suspicion of rape, harassment and fraud on the basis, he says, of allegations made the previous day by a former girlfriend and members of her family.
10)	At the time of his arrest his fingerprints and DNA samples were taken.  He is a man of good character, without any previous convictions.  No further action was taken in relation to the allegations of harassment and fraud but the following day, on 18th March 2009, he was charged with rape.  Not long after, on 5th May 2009, the prosecution offered no evidence against him at Woolwich Crown Court on the rape charge and he was accordingly acquitted.
11)	He contended that he was arrested and charged on the basis of false allegations, made both by his former girlfriend and members of her family, a contention, he says, supported by other evidence, both of inconsistency in the material relating to those allegations and some evidence which a police officer declined to consider or assess that one member of the family had been put up to joining in the allegations.
12)	The policy which is impugned demonstrates that in response to requests for destruction, the Commissioner proposes to apply the ACPO guidance which applied before the decision of the European Court of Human Rights until such time as new legislation is introduced.  The policy which is relevant for the purposes of these claims is applied in the context of legislation under the Police and Criminal Evidence Act 1984 (PACE) as amended by section 82 of the Criminal Justice Act 2001.  As originally enacted section 64 of Police and Criminal Evidence Act required fingerprints and DNA samples to be destroyed if the person from whom they were taken was not subsequently convicted of  the offence for which he had been arrested.  But section 54 was amended by section 82 which replaced the obligation to destroy such biometric samples with the rule that such fingerprints and DNA samples could be retained and used for the purposes related to the prevention and detention of crime investigating offences or conducting prosecutions.
13)	Section 64(1)(a) relevantly provides, under the rubric "Destruction of Fingerprints and Samples": 
"Where fingerprints or samples taken from a person in connection with the investigation of an offence and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or the person from whom a body part came."  
1(b): 
"In subsection (1)(a) above (a) the reference to using a fingerprint includes a reference to allowing any check made against it under section 63(1)(a) or (1)(c) above and to disclosing it to any person (b) the reference to using a sample includes a reference to allowing any check to be made under section 63(a)(1) or (1)(c) above against it, or against information derived from it and to disclosing it or any such information to any person." 
14)	The section itself does not impose any duty but rather creates a power to retain samples and fingerprints.  But it does not specify the circumstances in which that power is to be exercised, the circumstances in which any biometric samples are to be destroyed, still less any time limit for retention.  Those matters were the subject of a policy entitled "Exceptional case procedure for removal of DNA fingerprints and PNC records known as the ACPO guidelines."  The relevant part of those guidelines reads:  
"Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC owned by them.  They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry.  It is suggested that this discretion should only be exercised in exceptional cases ... Exceptional cases will by definition be rare.  They might include cases where the original arrest or sampling was found to be unlawful.  Additionally, where it has established beyond doubt that no offence existed, that might, having regard to all the circumstances, be reviewed as an exceptional circumstance." 
The guidelines make a reference to such exceptional circumstances by giving an illustration of a dead body discovered, where murder is originally suspected and it is subsequently found that the person died from natural causes.
15)	The decision of the European Court of Human Rights in 2009 led to reconsideration of that policy but no change.  The Commissioner of Metropolitan Police published a document dated 10th July 2009 which acknowledged the decision of the European Court of Human Rights.  The document went on to say, in perhaps even more stringent terms, than are to be found in the previous publication of the policy, that exceptional circumstances would be "extremely rare".  It went on to say that until the policy was changed by Parliament there would be no change to the MPS policy procedures and retention of samples.
16)	In a letter dated 28th July 2009 the Director of Information at ACPO wrote to all chief officers notifying those officers that the Home Office was undertaking a consultation process following the court's decision in Strasbourg, reminding the officers that the current retention policy remains unchanged and strongly advising that decisions to remove records should not be based on the proposed changes.  It continued: 
"It is therefore vitally important that any applications for removals of records should be considered against current legislation and the retention guidelines exceptional case procedure."
17)	In response to correspondence on behalf of these claimants, it is plain that that decision to continue with the pre‑existing policy was maintained. There is no reference in those responses to the proposal of the then government to introduce new legislation.
18)	However, it is clear that the government, following the promulgation of the European Court of Human Rights judgment on 4th December 2008 did intend to consult and then enact, in the light of that consultation, new legislation.  A White Paper entitled "Keeping the right people on the DNA database" was published on 7th May 2009.
19)	The Policing and Crime Bill in 2009 proposed powers in relation to the retention of biometric samples but that proposal was not pursued and was withdrawn.  The Crime and Security Act 2010 was introduced into the House of Commons and had its first reading on 19th November 2009.  This made statutory provisions in relation to the destruction of biometric data and the time during which it could be lawfully retained (see section 64 ZD).  Section 22 made provision for destruction of material before commencement of the Act.  No commencement date was provided in relation to the relevant sections, sections 14, 22 and 23 of the 2010 Act once it had been enacted.  The introduction of the passing of that Act has now been followed by a change of government.  The new government indicated an intention, in the Queen's Speech of 25th May 2010, to amend the 2010 Act by means of a Freedom (Great Reform) Bill so as to adopt the system which applies in Scotland.  In summary, that system permits retention of biometric data for no more than 3 years in relation to sexual offences and offences of violence, and permits an application to be made for retention and extension of that period for a period of no more than 2 years on application to a sheriff by a Chief Constable.
20)	The history of the intention of the government to change the law in the light of the decision of the European Court of Human Rights prompts an issue raised by both the Commissioner and the Secretary of State as to the propriety of retaining biometric samples in the meantime.
21)	It is contended that the continuation of the policy upheld in the House of Lords but successfully impugned in Strasbourg is itself proportionate and legitimate.  That temporary maintenance of the policy, so it is contended, affords a legitimate period of time in which the domestic law can be changed.  But as the claimants point out, neither the Commissioner nor the Secretary of State as members of the executive can speak for the legislature.  There can be no certainty as to when or what, or even whether legislation will be passed or, if it is passed, what it will contain by way of measures relevant to the retention of biometric samples and the time during which those samples can be held.  This case must be judged, so the claimants contend, on the basis of the policy as it has been applied to them.  Certainly, this case must be judged in the light of the question as to whether the decision of the House of Lords binds this court in the conclusion it reaches.
22)	I should mention two discrete issues.  In relation to the claimant, Gc, he now complains of the retention of photographs taken when he was arrested.  The taking of those photographs falls within a different legislative code.  By section 64A, a person who is detained at a police station may be photographed and a photograph taken under that section may be used by or disclosed to any person for a purpose relating to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or the enforcement of a sentence. 
23)	Paragraphs 330‑333 of Code D of the PACE Code make provision for destruction of photographs taken for ID parades but not destruction for any other purpose.
24)	C's claim also raises a discrete issue.  The claimant seeks to challenge the retention of information on the Police National Computer (the PNC), where under the heading "non conviction offences" it is recorded that the claimant made false representations and pursued a course of conduct amounting to harassment.  The file on the computer also contains what is described as "non guilty disposals" in relation to an offence of rape of a female aged 16 years or over.
25)	The retention of those records is covered by retention guidelines for nominal records on the Police National Computer issued on 16th March 2006. Those guidelines provide for what is described as a process whereby the histories will be "stepped down" in relation to all non‑conviction events.  That ensures that such data is only open to inspection by the police (see paragraph 1.3 and 1.4.)
26)	The circumstances in which such material is retained even though only to be inspected by the police is covered by the ACPO guidelines identified as the "exceptional case procedure".  Thus, the way in which police officers' discretion as to destruction of such information is carried out is the same as that in relation to biometric samples.
27)	I now turn to the issue on which the hearing yesterday was focussed, namely whether this court is bound by the decision of the House of Lords in Marper or is free to follow the decision of the European Court of Human Rights in S and Marper.  There is no dispute but that those two decisions cannot be reconciled.  In Marper the House of Lords unanimously held that the policy preceding that which is in issue in the instant claims, but not in any material respect different, did not infringe the appellants' rights enshrined in Article 8.  There was some dispute as to whether the majority of their Lordships concluded that Article 8 did not even apply to the retention of the appellant's biometric samples, that is their fingerprints and DNA.  That dispute arose out of the wording of Lord Steyn's speech with whom all but Baroness Hale agreed on that point.  At paragraph 31, he said:  
"Looking at the matter in the round I am inclined to the view that in respect of retained fingerprints and samples article 8(1) is not engaged. If I am wrong in this view, I would say any interference is very modest indeed." 
It is suggested by the claimants that those are not words of conclusion.  But, in my view, it is clear from Lord Steyn's reasoning, and what he said at paragraphs 32 and 44 that it was his conclusion that Article 8(1) did not apply.  That was the conclusion of the majority.  At paragraph 44, Lord Steyn said that, in relation to the question as to whether there was any discrimination contrary to Article 14 of the Convention: 
"In this case the question is whether the facts fall within the ambit of article 8. If my conclusion is right that article 8(1) is not engaged, it follows that article 14 is not triggered."
In any event it is clear that the House of Lords were unanimous in concluding that any interference was justified for the purposes of Article 8(2).  It was in accordance with the law and was proportionate.  In particular the House of Lords rejected the suggestion that the only fair process compatible with Article 8 was a case by case examination of the circumstances.  At paragraph 39, Lord Steyn said: 
"In my view this would not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (subject to judicial review of individual decisions) about offences of which the individual had been acquitted." 
28)	It is plain that that conclusion cannot live with the essential submission advanced on behalf of these claimants, that the Chief of Police is required to consider their individual circumstances.  The conflict between the decision of the House of Lords and Marper in Strasbourg is equally clear.  
29)	In S v United Kingdom the European Court of Human Rights found that the blanket and indiscriminate nature of the powers of the retention of biometric samples failed to strike a fair balance between the competing public and private interests and that the United Kingdom had "overstepped any acceptable margin of appreciation in this regard" (see paragraph 125).  The basis of that conclusion is set out in paragraph 119:
"In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non‑imprisonable offences. The retention is not time‑limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above)[that is an open to the ACPO guidelines]; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances."
30)	In my judgment, this court is bound by the decision of the House of Lords.  The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.  
31)	In K & Ors v Lambeth Borough Council [2006] 2 AC page 465, Lord Bingham identified that principle and its application in relation to conflicting decisions of the House of Lords with the Strasbourg court.  He said:  
"44. There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply."
32)	In the next paragraph Lord Bingham identified what he described as "one partial exception". That single exception is miles away from this case.  It relates to a decision made before the introduction of the Human Rights Act 1998, in circumstances where the policy which applied to that decision had been largely eroded and where it was accepted that the previous decision was not good law.  The subject of that decision were the same children whose claims succeeded Strasbourg and who had recovered substantial reparation.  
33)	In the instant claims the applicants contend that the decision of the House of Lords in S and Marper is not binding because the parties in that case were the same as the parties in the case before the Strasbourg court.  That argument is falsified by the speech of Lord Bingham at paragraph 45, in which he made plain that there was only one exception to the application of the doctrine of precedent and made it clear that the fact that the parties were the same was only one consideration.  That that is so was confirmed by the Lord Chief Justice, Lord Judge, in R v (On the application of Purdy) v DPP [2009] UK HRR 1005 at paragraphs 52 to 54.  The fact that the parties were the same, both in the House of Lords and in Strasbourg affords no ground for failing to follow the decision of the House of Lords. 
34)	There was one other basis advanced.  It was said that the doctrine of precedent operates differently in relation to questions concerning proportionality and exercise of a discretion.  I am unable to see how that affords any ground for distinction.  Of course it was open to chief officers of  police, albeit unlikely, to follow the lead set by the European Court of Human Rights and change the policy following the promulgation of the decision in Marper in Strasbourg.  But no Chief of Police decided to adopt that course.  There was no change in the circumstances, nor materially in the policy which formed the subject matter of  the decision in the House of Lords.  There was no change in the circumstances which could have made any difference to the House of Lords consideration of the justification for the policy.  All that had happened was the decision of the European Court of Human Rights.  Even if there had been a change in circumstances that, in my view, would be a matter for the Supreme Court and not for this court.  That is made clear by the closing sentences of paragraph 44 in K.
35)	Accordingly, I conclude that this court is bound by the decision of the House of Lords.  The appropriate course that I would take is that which is indicated in page 43 of the speech of Lord Bingham, namely, that this court should give permission to appeal and order a leapfrog appeal to which I should record both the defendant and the Secretary of State have specifically accented.
36)	I have not expressed any view on the underlying merits.  Lord Bingham suggested that that would be permissible.  But the court has not heard any detailed oral argument on those underlying merits.  It seems to me more important to set the appeal in train, rather than cause what would have been substantial delay before adopting exactly the same course, namely permitting a leapfrog appeal.
37)	It is true that part of the Commissoners and the government's argument has been that legislation will be passed which will substantially restrict powers of retention in such cases.  But, as I have said, no one at present can say when that will occur, nor identify the precise nature of such legislation, still less any policy to be adopted in furtherance of that future legislation.  Neither the defendant nor the Secretary of State has sought to rely on those considerations to justify delay in bringing the case before the Supreme Court.
38)	No one can properly predict the conclusion that the Supreme Court might reach.  It is far from a foregone conclusion.  In particular the Supreme Court will have to consider the relevance of the government's contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.
39)	The issue is thrown into high relief by the consideration that if the claimant succeeds in the meantime, the biometric samples will be lost for ever even though it may be that they can be retained for a longer period under future and, it is anticipated, compliant legislation.
40)	There remains in Gc's case the question of the photographs that were taken.  The only references to photographs was a passing reference in the claim form and in paragraph 20 of the grounds.
41)	The Commissioner of Metropolitan Police has addressed Gc's claim in relation to the photographs in writing, but has had no opportunity to explain, other than from the Bar, any justification for their retention.
42)	The claimant, Gc, relies, in support of the contention that retaining the photographs breaches his rights enshrined in Article 8, on the decision of the Court of Appeal in Wood v Commissioner of Police for Metropolis [2009] EWCA Civ 414.  That case concerned circumstances, wholly different from those which apply in his case, where photographs were taken on arrest.  In Wood the claimant was photographed by the police in the street, leaving a hotel following a meeting itself both lawful and peaceable.  They were concerned that in future he might attend an arm's fair and demonstrate.  Laws LJ considered, first, the question as to whether Article 8 applied.  He concluded that it did and the State should be called upon to justify the taking of those photographs in those circumstances.  In reaching that conclusion with which Dyson LJ and Collins J agreed, he drew a contrast between the taking of photographs in the street and the taking of photographs on arrest, which was the subject matter of a case in Strasbourg decided by the Commission X v The United Kingdom Application No 5877/72 (unreported).  He noted that the police might well be expected to take photographs of someone who had been arrested once that person had been taken to a police station and observed: 
"In cases of that kind where the police or other public authority are acting just as the public would expect them to act, it would ordinarily no doubt be artificial and unreal for the courts to find the prima facie breach of Article 8 and call on the State to justify the action taken by reference to Article 8(2)" 
Dyson LJ agreed with the Laws LJ's analysis of the application of Article 8 at paragraph 64.  Dyson LJ and Collins LJ differed from Laws LJ as to the justification for the taking of the photographs and concluded that there was no justification for taking them and retaining them for the limited period in which they were to be retained.  It is to be emphasised that in Wood the photographs were not retained on any database.  Wood is no authority for the proposition that Article 8 applies, where photographs were taken on arrest.  It powerfully suggests that it does not.
43)	In my view, the taking of photographs in the circumstances in which Gc's photographs were taken does not trigger the application of Article 8.  However, even if that conclusion was wrong, the issues of justification for their retention cannot now properly be considered where the Commissioner has had no opportunity to give evidence as to justification.
44)	The purposes for which those photographs are retained may derive from the purposes for which and the justification for keeping his biometric samples.  For example, as Mr Beer, on the behalf of the Commissioner suggested, it may be necessary to retain those photographs, in order to assist in identifying the person from whom the biometric samples were obtained, and for quite distinct reasons, as a measure of protection for the police and to ensure the person from whom the photographs were taken has correctly identified himself on arrest.  That is not always the case.
45)	In Wood, Laws LJ, having referred to the decision of the European Court of Human Rights, observed that if it was relevant to confront the issue, then S v The United Kingdom in Strasbourg would be binding (see paragraph 58).  But he took the view that it was not because the consideration in relation to the photographic images was distinct from the considerations relevant to biometric samples such as fingerprints and DNA (see paragraph 59).  But in my view, even acknowledging that distinction, the absence of evidence as to justification makes it unwise for me to consider further the question of either the application of Article 8 or, if it applied, the justification for retention of  photographs.  It will be a matter for the Supreme Court to consider the extent to which it should consider, as a separate issue, the retention of photographs on the basis of evidence which is not presently before the court.
46)	There remains, finally, questions of the information retained on the Police National Computer, in respect of the claimant, C.  Different considerations again may apply to that category, distinct from the considerations applying to biometric samples.  But that may be of little assistance to the claimant.  It may be relevant to bear in mind that the information may properly be retained on databases other than the PNC in consequence of the recommendations of Sir Michael Bichard in his report, the Bichard Inquiry Report HC 653.  They have led to guidance on the management of police information and a Code of Practice which contains separate provisions in relation to the retention of information about rape (see the National Retention Assessment Criteria, paragraph 7.4 and appendix 4 (ii)).  
47)	But I do not consider that it would be sensible to consider that separate issue because questions relating to justification of the retention of that information may be fortiori any conclusion in relation to biometric samples.  As I have endeavoured to explain, the challenge to the retention of those biometric samples just as the challenge to retention of the information is based upon seeking to impugn what is described as a blanket and indiscriminate approach.
48)	If that approach is justified, as we are bound to hold it is in relation to biometric samples, for the reasons given by Lord Steyn, then retention of the information is equally justifiable for that reason.  
49)	In those circumstances, I would dismiss these applications for judicial review. 
50)	MR JUSTICE WYN WILLIAMS:  I agree.  
51)	LORD JUSTICE MOSES:  So far as the leapfrog appeal, this court has to certify that the relevant conditions set out in section 12(3) of the Administration of Justice Act 1969, and that a point of general public importance is involved, and that this court is bound by a decision of the House of Lords in previous proceedings.  I am looking at 1.2.19. 
52)	MR BEER:  It might help in drafting the order the particular elements that has to be certified.  If I could hand that up? 
53)	LORD JUSTICE MOSES:  Have you shown it to your opponents? 
54)	MR BEER:  In that respect it is not controversial. 
55)	MR KRAGG:  One in each identify for wording. 
56)	LORD JUSTICE MOSES:  Thank you.
57)	MR JUSTICE WYN WILLIAMS:  Mine is photocopy.
58)	LORD JUSTICE MOSES:  Have you a copy for my Lord?  
59)	MR KRAGG:  There are two copies.  (Pause) Do I have to identify what the point of law of general importance is? 
60)	MR BEER:  We thought not from the wording of section 12 and 13 of 1969 Act, I have written out and drafted some wording if your Lordships... 
61)	LORD JUSTICE MOSES:  I am not particularly keen.  Do you think we do? 
62)	MR KRAGG:  My Lord looking at section 12 I cannot see that we do.
63)	LORD JUSTICE MOSES:  I will not then.  We will make those orders.  There remains however.
64)	MR BEER:  You will see a blank in relation to each order. Those are the costs.  We simply ask that the claimants pay the Commissoners' costs on the usual legally aided basis, namely that they will be enforced until after an assessment under section 11 of the Access to Justice Act 1999.
65)	MR KRAGG:  The only thing I can say against that is that we have no choice but come here on the way to the Supreme Court. On that basis the court had a discretion not to order costs against us at this point, that would be the appropriate order.
66)	LORD JUSTICE MOSES:  You would say the same thing.  It is slightly curious.  We have Strasbourg.  I suppose you would say they should have waited until the legislation.  
67)	MR KRAGG:  Which is exactly what the Supreme Court might say.
(The Bench Conferred) 
68)	LORD JUSTICE MOSES:  We will make the order you ask.  
69)	MR BEER:  The other point is at paragraph 5 of the order.
70)	LORD JUSTICE MOSES:  Sorry.  I am now being handed a document "Application for leave to appeal to the Court of Appeal Civil Division".  It has nothing do with this, we are now leapfrogging to the House of Lords.
71)	MR BEER:  My Lord will see the C order and Gc order at paragraph 5, is effectively a conditional grant of permission to appeal to the Court of Appeal in the event that the Supreme Court declines to hear the appeal.
72)	LORD JUSTICE MOSES:  I thought I had given permission.
73)	MR KRAGG:  My Lord, no you have given permission to apply.
74)	LORD JUSTICE MOSES:  I see, yes.
75)	MR BEER:  That is about certification rather than permission to.
76)	LORD JUSTICE MOSES:  I follow.  It would be up to the Supreme Court whether they give permission.  If they do not, it is agreed.
77)	MR BEER:  If they do not the issue arises as to whether or not permission should now be granted to go to the Court of Appeal.  What we say is that one should not include paragraph 5, instead the court should extend the time for filing a notice of appeal to the Court of Appeal to 21 days after the Supreme Court makes its decision.
78)	LORD JUSTICE MOSES:  Then the Court of Appeal may want to decide rather than us.
79)	MR BEER:  Exactly and it will do so in the knowledge of the basis of the Supreme Court.
80)	LORD JUSTICE MOSES:  I think that is very sensible.  
81)	MR KRAGG:  I have taken the wording of paragraph 5 from a case called Jones in the House of Lords which is all about sections 12 and 13.
82)	LORD JUSTICE MOSES:  You will not lose anything if I extend time.
83)	MR KRAGG:  My Lord, no.  That is the form of wording the order which Lord Bingham holds appropriate.
84)	LORD JUSTICE MOSES:  I am going to do what Mr Beers says.  
85)	MR KRAGG:  The only other application I need to make is for detailed assessment of the claimant's costs.
86)	LORD JUSTICE MOSES:  I am very grateful both.
87)	MR BEER:  Anonymity up to the date. 
88)	LORD JUSTICE MOSES:  I will include that, yes.  Can you just draw up the change to paragraph 5 and let the court have it.
89)	MR BEER:  Insert paragraph 2 and hand it in.
90)	LORD JUSTICE MOSES:  Thank you very much indeed.  Thank you all very much.  I think to save this to go on until, well it would not have been until the end of September you would have got anything.  I am very grateful.  You have put a lot of hard work into it and I am sorry it went rather rapidly on the merits which after all in one sense are the most interesting part.  Thank you all very much indeed.