Case No: 2000/0187/X3, 2000/3753/X3 & 2000/0525/X3

Neutral Citation No: [2002] EWCA Crim 2203
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 11 October 2002
Before :

LORD JUSTICE MANTELL
MR JUSTICE CRESSWELL
and 
 MR JUSTICE GAGE

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	REGINA		
	- v -		
	STEPHEN CARRUTHERS
&
GERALD ERNEST FRANK (NOW DECEASED)		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr S Leslie QC and Mr M Taylor (instructed by Cunninghams) for Carruthers and Frank
Mr R J Scholes QC for the Crown

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mantell: 

Background.
1.	Stephen Carruthers is forty-three years of age.  He has many criminal convictions amongst which feature a number involving indecency with and towards young boys.  On 13th November 1997 at Manchester Crown Court he was sentenced to a term of seven years imprisonment for indecently assaulting a boy under the age of fourteen.  To begin with, at any rate, his sentence was served at Her Majesty’s Prison Strangeways in Manchester.  Up to that time and whilst on bail he had been living at 836A Stockport Road Levenshulme in Manchester.  
2.	When Carruthers was about twelve his mother had married Gerald Ernest Franks thereby making Franks the stepfather of Carruthers.  Franks had been born in 1920.  At the time of the events with which this Court is concerned Franks was living on his own in Oldham.  
3.	On 6th June 1998 Franks visited Carruthers in Strangeways.  He brought with him a young boy, as it turned out, aged ten, and whom we shall refer to as K.  Prison officers claimed to have brought the visit to a premature conclusion following what they considered to be inappropriate behaviour by Carruthers – known to them to be a convicted paedophile – towards the young boy.  Two days later one of the officers, Fogg (the other was Cook) sent a memorandum to Head of Probation at Strangeways in the following terms:- 
“On the 6th June I was on duty supervising the visits room.  Inmate AM5679 Carruthers was being visited by his father and a young boy who must be seven or eight years old.  Due to having the knowledge of this inmates offences I started to become concerned about the visit and monitored it closely.	
	Carruthers was very “touchy” and “hands-on” with the young boy, and his father, who is wheel chair bound, took no part at all on the visit.  After some forty minutes Carruthers had the boy sat on his lap it was at this stage that I finished the visit off.  
I asked Carruthers later that evening who had come to visit him  and he replied it was his father and his son who was in foster care.  
The whole situation seems very disturbing when this inmate’s convictions are taken into account and I feel it is serious and warrants further investigation, hence I bring it to your attention.  
I will be extremely grateful if you will keep me informed of your views and findings.”
4.	That memorandum led to the Head of Probation contacting the Governor of the Prison who in turn made contact with the Greater Manchester Police in the person of Detective Sergeant Weaver.  
5.	Detective Sergeant Weaver made his own enquiries which led to the discovery that Carruthers’ two children were both in the care of Social Services and that neither could have been the little boy seen by the prison officers.  Moreover, although Frank did not have any convictions he was a suspected paedophile and so far as the police were concerned believed to have been present during the offences of which Carruthers had been convicted.  According to information available to Detective Sergeant Weaver, Frank was by now living at the address in Levenshulme.  The matter was passed to Longsight Police Station where a Detective Sergeant Howarth was charged with carrying out further investigations.  
6.	That Frank was indeed now living at Carruthers’ home address was confirmed when Detective Sergeant Howarth visited on 30th July 1998.  In the course of an unrecorded interview Frank informed Detective Sergeant Howarth that the child was K and gave his mother’s name.  Frank denied that he had told anyone that K was the son of Carruthers.  
7.	However, the information provided was sufficient to allow the Detective Sergeant to trace K to an address in Longsight and eventually to K being interviewed on 3rd August by a Detective Constable Cross.  There were further interviews on 29th September 1998 and 23rd October 1998 during which K made a number of very serious complaints about Carruthers including allegations of kidnapping, false imprisonment and rape.  
8.	As a result of what K had to say Detective Sergeant Howarth also interviewed his elder brother P.  He made similar allegations concerning Carruthers and also accused Frank of having indecently assaulted him some time during the second half of 1997.  
9.	It seems that on a date shortly before 27th October 1998 Detective Sergeant Howarth had a meeting with prison officers Fogg and Cook and also with principal prison officer Patrick Langford who claimed to have been on duty on the 6th June 1998 and to have had a conversations with Gerald Franks following the visit.  In a statement made on 27th October 1998 he stated:
“At the conclusion of the visit I was approached by Gerald Franks who complained about the ending of the visit.  He told me that the child he had with him was the son of Carruthers.  I told him that if he had a complaint he should put it in writing to the Governor of the prison.”
Statements were also made by prison officers Fogg and Cook in which they described what they had seen during the course of the visit on 6th June.  
10.	On 28th October 1998 both Carruthers and Frank were interviewed by Detective Sergeant Howarth.  Each admitted the prison visit and Carruthers was to accept that there came a time when K had been sitting on his knee but both were adamant that nothing indecent had taken place either then or on any earlier occasion.  They were both charged with the offences which eventually formed the substance of an indictment on which they were to stand their trial over nineteen working days at Manchester Crown Court during November and December 1999.  The trial judge was His Honour Judge Blackburn, now, sadly, deceased.  Count 1 of the indictment charged Carruthers with kidnapping K, count 2 with the false imprisonment of K and count 3 with his rape.  Counts 4, 5,  & 6 alleged similar offences involving P.  Count 7 charged Frank with indecently assaulting P and arising out of the prison visit on 6th June 1998 count 8 charged Carruthers with incitement to commit an act of gross indecency and count 9 charged Carruthers and Frank with indecent assault upon K.  
The trial.
11.	Naturally enough those representing Carruthers and Frank were concerned about possible prejudice arising from the evidence relating to the prison visit.  There had been an earlier application to have counts 8 & 9 tried separately which the learned judge had refused but that application was renewed at an early stage during the trial.  The judge refused the second application as he had the first on the basis that he would give a clear direction to the jury to disregard the fact Carruthers was serving a prison sentence and, so it seems, on the understanding that the jury were not to be told the nature of Carruthers’ conviction.  The evidence of both boys was by way of video interview followed by cross-examination through television link.  K was to say that he had been literally picked up by Carruthers and carried off to his house in Levenshulme.  He had tried to escape without success.  Carruthers, to whom he referred as Steve, stripped him, got undressed himself and pushed “his willy” in and out “his bum”.  He was then thrown out of the house.  He went on to describe in a little more detail the circumstances in which he had first met Carruthers and then described how Frank had persuaded him to go with him to Strangeways where Carruthers had told him to go under the table and play with him.  The broad thrust of cross-examination was to the effect that whatever had occurred between them was the result of natural affection and had nothing to do with indecency.  
12.	P’s evidence was similarly presented.  He told the jury that his brother had spoken to him about Carruthers and what had happened between them.  P said that he had also been grabbed by Steve and taken back to Steve’s flat.  Steve sent Frank, whom he referred to as Granddad, out to the shop whereafter he removed P’s trousers, held him face down by the shoulders, laid on top of him and committed buggery.  P also described an occasion when Frank had put his hand down the front of his, P’s, trousers.  
13.	Prison officer Fogg told the jury that he had seen Carruthers brought in for the visit when he had cuddled the boy and kissed him full on the lips.  He said that the boy had been unresponsive.  During the visit Carruthers had stroked the boy slowly on the arm and touched his face several times.  Frank had been in a wheel chair slightly away from the table.  After about half an hour he had noticed that the boy was sitting on Carruthers’ lap and it was at that stage that he went over and ended the visit.  He had reported the matter the following day.  In cross-examination he accepted that the report had not been made until 8th June and he accepted that there were differences between the report and the content of his evidence.  He was adamant that the visit had not been allowed to run its full course.  
14.	Prisoner officer Cook gave evidence to similar effect except that he claimed to have seen Carruthers and the boy kiss twice.  As did prison officer Fogg, prison officer Cook accepted that he ought to have made sure that any video was preserved.  
15.	Principal prison officer Langford gave evidence that at the relevant time he was on a different floor of the prison managing other visits.  He became aware that someone called Frank was a visitor for Carruthers.  He had not known that a child would be attending.  He was made aware that something had happened as Frank was coming away from the visit and he saw that Frank was in company with a small child.  Frank had spoken to him and complained that the visit had been brought to an end before time and that he, Frank, had brought Carruthers’ son to see him.  Principal prison officer Langford said that he told Frank to make any complaint to the Governor and put it in writing.  He accepted in cross-examination that he had not recorded the complaint but he was satisfied that the other prison officers would make an appropriate record for themselves.  He also agreed that it would have been important to ensure that any video record was preserved and he would have expected Fogg and Cook to make sure that it was.  The following day the prison governor had asked about a video recording but it was confirmed by the operator that there was none.  
16.	Detective Sergeant Howarth gave evidence of the interviews of both Frank and Carruthers.  Frank had said that he got to know the boys because Carruthers had stopped K from running into the road.  The boys had followed them and asked for money.  He had taken K to see Carruthers in prison on two occasions and on the second, that is 6th June, all that had happened was that K had sat on Carruthers’ knee and Carruthers had given him a cuddle.  There had been a kiss but it had been on the cheek and not the lips.  There had been an occasion when K and P’s mother had called at the flat when P was present but P had been there of his own free will and that he, Frank, had not at any stage put his hand on P’s ‘willy’.  Carruthers had also said that he had stopped K running onto the road and that was how he and his stepfather had got to know the two boys.  Their mother had come round to thank him.  He said that they had been friendly with the boys but that nothing indecent had taken place.  As to the prison visit, 6th June had been his birthday and K had said “happy birthday dad”.  K has sat on his knee and then on the table and then got off and gone under the table.  Frank had told him to come out and he had.  The visit had lasted the full hour and although he had cuddled the boy nothing indecent had taken place.  He denied the allegations of both boys with regard to what had happened at his home.
17.	There were other witnesses including the mother of K and P, none of whose evidence has any particular relevance to the present proceedings.  
18.	Neither Carruthers nor Frank gave evidence.  In each case it was submitted that what the boys had said was simply unbelievable having regard to the continuing relationship between them and the defendants and in particular the show of affection observed on 6th June.  
19.	In the course of his summing up the learned judge fulfilled his promise made on the application to sever.  At p.12 he said:
“The allegations in relation to counts 8 & 9 occurred while Gerald Frank was visiting his stepson, Stephen Carruthers, in prison.  People are in prison for a variety of reasons.  The reason that Carruthers was there is nothing to do with this case.  You must approach the evidence on these counts simply on the basis that what happened at the prison happened in a large room with many other people in it when certain other people might have been able to see what those other two people were doing.
The fact that Carruthers was in prison must not influence you against him or his co-accused in relation to these charges nor in relation to the other charges against them.  You must in considering the whole of the evidence against the defendants put out of your mind the fact that Carruthers was in prison.”
20.	Elsewhere in the summing up (p.14) the judge gave the following direction:
“I do not know in which order you will consider the evidence.  It is not for me to advise you.  If, however, having considered the evidence you are sure that K is telling the truth concerning counts 1 to 3 then you may take that into account when deciding whether he is telling the truth about 8 and 9 and what the state of mind of Stephen Carruthers was concerning counts 8 and 9.  
Similarly, if you are sure that K was telling the truth about counts 8 and 9  you may take that into account in deciding whether he is telling the truth about counts 1 to 3.  The reason why you may take it into account is because the evidence on counts 8 and 9 may tend to rebut the evidence such that it is in Stephen Carruthers’ interview record in relation to counts 2 to 3 that his association with K was purely innocent and vice versa but it is vitally important that you bear in mind that this direction I give you now applies only to the case against Carruthers.  You must decide the case against Gerald Frank only on the evidence in relation to each of the two counts which he faces, namely, 7 and 9.”
Later when dealing with the evidence of an outreach worker, Mr Pook, who said he had seen Carruthers and K together when Carruthers had taken hold of K affectionately and K had no response, the judge said:
“Echoes there perhaps, members of the jury, of what prison officers recount.”
At p. 13 of the summing up the Judge had already given what loosely may be termed a ‘similar fact’ direction:
“You must ask yourselves this, are you sure that K and P did not put their heads together and make completely false allegations against the defendant.  If you are not sure about that, the evidence of K and P is of no value and you must ignore it but if you are sure that there was no collaboration of that kind, you are entitled to consider the evidence of P in deciding whether K was speaking the truth and vice versa.
You must ask yourselves is it reasonably possible that the two boys independently making those similar accusations which you have heard could both be lying or mistaken.
If you think that is incredible then you may well be satisfied that K, for instance, was speaking the truth.  But in answering that question you must consider two important aspects of the case.  The first is this, whether there is a degree of similarity between the accusations.  If you conclude that there is a degree of similarity between the accusations, on the one hand by K in counts 1 to 3, on the other hand by P in relation to counts 4 to 6, the more likely it may be that those separate witnesses are speaking the truth for you may think it would be a remarkable coincidence of one brother hit upon the same lies or made the same mistakes as to matters of detail.  On the other hand, the less the degree of similarity, the less weight should be given to the evidence.”
21.	The jury retired at 1:25 p.m. on 3rd December 1999.  Within two and a half-hours they returned verdicts of guilty on all counts save 1 and 4 which had alleged the kidnapping of K and P respectively.  
22.	On 24th February 2000 Frank received consecutive sentences of thirty months in respect of counts 7 and 9 making a sentence in total of five years imprisonment.  Carruthers was sentenced on 31st May to concurrent terms of life imprisonment on counts 2, 3, 5 and 6.  He received concurrent sentences of three and two years on counts 8 & 9.
Post trial.
23.	On Friday 17th December 1999 solicitors for both Carruthers and Frank received a telephone call from a man who refused to give his name.  The call was received by a Mr Paul Green.  The man told Mr Green that principal prison officer Patrick Langford had lied when giving evidence during the trial.  He said that Patrick Langford had not been on duty on 6th June as he had stated in evidence but the senior officer on duty on that date had been one John Livesey who had since died.  The man also said that Patrick Langford might say that he was acting principal officer on the date of the incident but the fact was that he only started his duty as acting principal officer on 1st August 1998.  
24.	The same caller phoned again on 21st December 1999 and once more spoke to Mr Green stating that he had further information to give.  The information was to the effect that Patrick Langford had finished work on Friday 5th June at 12:15 p.m. and had not returned for a further shift until Tuesday 9th June at 1:15 p.m.  The caller said that he would send photocopies of the duty roster for 6th June.  Documents were delivered the following day in an envelope marked for the attention of Paul Green.  They appeared to confirm what the anonymous caller had said to Mr Green.  There was a further phone call made on the 2nd February 2000 to much the same effect.  
25.	Accordingly on 8th February 2000 Cunninghams wrote to the Home Office asking for the matter to be investigated.  
26.	An investigation did indeed take place leading to disciplinary proceedings against Mr Langford.  It was alleged that he had not been on duty at HMP Manchester on 6th June 1998 and therefore could not have played any part in an alleged incident during a domestic visit that took place that Saturday afternoon at sometime between approximately 14:30 and 15:30 hours.  It was further alleged that Mr Langford had given a false statement to the police in regard to this incident on 27th October 1998 and that he had lied and therefore committed perjury at the trial of Carruthers and Frank whilst giving evidence and, further, that he had lied to the police in the course of the investigation instigated by the Home Office.  Having entertained a vast body of evidence much of which had been accumulated by the police during the investigation the disciplinary tribunal came to the conclusion that the complaints had been proved.  
The appeal.
27.	As mentioned, Gerald Ernest Frank has now died.  He had previously obtained leave to appeal against conviction.  By leave of this court granted under section 44A of the Criminal Appeal Act 1968 his appeal is continued by his stepson, Carruthers.  Carruthers himself appeals against conviction by leave of this court.  Originally there were several grounds prominent among which was a complaint that the judge was wrong not to order a separate trial of counts of 8 and 9.  That ground has not been pursued on behalf of either Carruthers or Frank and we simply record our view that it would have been bound to fail in any event.  On the facts as outlined it is quite clear that for the reasons he gave that the judge was right to refuse the repeated applications.  What is relied upon, however, and it forms the only remaining ground of appeal, is the fact that it now appears that Patrick Langford must have given false evidence at trial which surely leads to the conclusion that not only the convictions on counts 8 and 9 but on all counts cannot now be regarded as safe.  
28.	To that end we have been invited to receive all the evidence which has emerged in the course of the post-trial investigation and which has been presented to the disciplinary tribunal. The application has not been opposed on behalf of the Crown.  Indeed it has been accepted that for present purposes the conclusions reached by the disciplinary tribunal cannot be contradicted.  Nor has the court been presented with any material which might lead it to reach a contrary conclusion.  
29.	Accordingly and without attempting a comprehensive or even a cursory review of the material, we have admitted the evidence and proceeded on the basis that it is accepted that Patrick Langford did give false evidence at trial in that he was not present at HMP Manchester on the 6th June 1998 and could not have spoken to Frank or made any of the observations about which he gave evidence at trial.
30.	In presenting his submissions Mr Leslie QC has argued that matters could not have proceeded as they did without both prison officers Fogg and Cook and Detective Sergeant Howarth being party to a conspiracy to pervert the course of justice.  It is our view there is nothing in the material presented before this court which would entitle us to reach the conclusion that Detective Sergeant Howarth had been in any way implicated in the procuring of false testimony.  Nor do we consider that on the material available it would be right to conclude that either prison officer Fogg or prison officer Cook must have been involved in recruiting Patrick Langford as an additional witness in the case.  However, as Patrick Langford did not return to duty until 9th June at the earliest and could only have learnt of the visit from someone else we cannot exclude the possibility that prison officer Fogg or prison officer Cook or both had played a part in the briefing and recruitment of Patrick Langford as a potential witness in any criminal proceedings.  
31.	The case presents some curious not to say troubling features but upon the unchallenged and unexplained evidence laid before the court there would seem to be no other available conclusion.  
Decision.
32.	It has been submitted by Mr Scholes QC for the respondent that even if we were to hold that the false evidence of Patrick Langford and the possible complicity of other prison officers so tainted the case on counts 8 and 9 that they could not be allowed to stand yet nevertheless the fresh evidence should not be permitted to impact upon counts 2, 3, 5, 6 and 7.  We cannot agree.  As is plain from the passages from the summing up included in this judgment the jury had been told that it was open to them to regard the evidence of the prison officers with regard to counts 8 and 9 as being in some way supportive of what K had to say with regard to counts 1 to 3 and further, if K was to be believed, his account was in turn capable of supporting the account given by P.  With regard to Frank, the conversation with Patrick Langford, denied by Frank, went directly to Frank’s credibility.  We are quite unable to say that had the fresh material been available to the jury that there would have been convictions in respect of any one of these counts.  
33.	Accordingly the appeal of Carruthers and the appeal brought on behalf of Frank must be allowed. The convictions recorded against both will be quashed.

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LORD JUSTICE MANTELL:  For the reasons contained in the judgment which has been handed down, the appeals of Stephen Carruthers and Gerald Ernest Frank are allowed and their convictions quashed.
MR LESLIE:  Thank you, my Lord.
MISS BLACKWELL:  My Lords are aware of the representation in this case.  My Lords, the respondents do seek a retrial in this matter.  It is a matter of the utmost seriousness even on just the pure facts themselves.  If one looks at it these were offences, if true, which were committed whilst on bail in one instance and even whilst in custody.  In the respondents submission public interest must dictate that these matters are retried; so long as that can be done without unfairness or oppression as far as the appellant is concerned.  My Lord, the respondents clearly do not take the matter so far as the appellant Frank is concerned any further.
LORD JUSTICE MANTELL:  I do not think you can.
MISS BLACKWELL:  No, quite so.  But so far as the appellant Carruthers is concerned we do.   
My Lords, the appellants have prepared a skeleton argument, part of which I have seen yesterday and the revised version I have seen this morning.  I apologise there is no response to that from the respondents. I quite simply have not had the time. 
LORD JUSTICE MANTELL:  I take it the one that we have seen is the revised version?
MR LESLIE:  Yes, my Lord.  My Lord, I am sorry, we done one provisionally and it was revised yesterday.
LORD JUSTICE MANTELL:  We were advised that there would be, if the application for a retrial were made, resistance.  We were supplied with the name of two authorities yesterday.
MR LESLIE:  Yes, my Lord.
LORD JUSTICE MANTELL:  And this morning we have had a chance to see the skeleton argument.
MR LESLIE:  I am very grateful.
LORD JUSTICE MANTELL:  So, Mr Leslie, you oppose the application on the grounds contained in your skeleton argument?
MR LESLIE:  My Lord, there are one or two additional points that I need to make, my Lord.  My Lord, one point relates particularly to an aspect of the original skeleton argument, can I just refer your Lordships to it, that was made on the previous occasion.  My Lord, first of all, in relation to counts 2, 3, 5, 6 and 7, the skeleton argument refers to Mr Howarth.  My Lord, one of the points that I would seek to add is that there is no conceivable way, even if there was a trial on those counts alone ‑ we submit there should be a trial of none ‑ that the prison matter would not go in because of the question of Mr Howarth.  My Lord, that is a matter that gives us great cause for concern, bearing in mind the fact that he has been present, has had all the matters, and has been present throughout the proceedings.  This is an important factor.  This was a choice, and I understand why, that was made by the Crown, your Lordships obviously felt rightly, and I am not criticising that, prior to the hearing.  My Lord, the second matter is this.
LORD JUSTICE MANTELL:  Anything new, Mr Leslie, we have read the skeleton argument.?
MR LESLIE:  Yes, the Crown chose Mr Howarth.  My Lord, they declined to call him and said, and this we respectfully say is important, that he would want to take legal advice before giving evidence and that he may need to be cautioned.   
My Lord, if he were to give evidence in the Crown Court, then the same problems would arise yet again.  My Lord, the other aspect of the matter that we submit is of importance, is set out in this aspect: the boy said that Carruthers said that the defendant was his son.  My Lord, this is a separate point, this is not contained in the skeleton argument, we discussed it yesterday evening.  My Lord, it was said to the prison officers this is what the boy said as they came over, that Carruthers said "He is my son."  Your Lordship knows that both prison officers who the Crown would have considerable difficulty, for obvious reasons, in calling, say that the boy never said that‑‑ 
LORD JUSTICE MANTELL:  Yes.
MR LESLIE:  ‑‑at any stage. 
LORD JUSTICE MANTELL:  What is the short point, please, Mr Leslie?
MR LESLIE:  My Lord, the short point is that it would be unfair to the defendant because the defendant could not be expected to call Cook and Fogg during the course of the proceedings, and the Crown no doubt will not seek to call them.
LORD JUSTICE MANTELL:  I think we all recognise that there would be tactical difficulties on both sides.
MR LESLIE:  My Lord, that is, if I may say so, not just a question of tactical difficulties, it is a question of unfairness because once the prison material goes in, if it goes in, it is unfair to the defendant because he cannot really properly deal with it without putting the whole of the matter in and that would be extremely unfair.  That is the key issue here.
LORD JUSTICE MANTELL:  Yes, is there anything else, Mr Leslie? 
MR LESLIE:  No, my Lord, those are basically the issues.
LORD JUSTICE MANTELL:  Do you wish to respond, Miss Blackwell?
MISS BLACKWELL:  My Lord, the matters that are raised, I would submit, in the skeleton argument and those advanced today are matters that can properly be dealt with during the course of a trial in front of a jury, and they are not matters, any of them, either individually or collectively, which would lead to such unfairness or oppression that these very serious matters ought not to be retried in the usual course.
LORD JUSTICE MANTELL:  We consider that the public interest requires a retrial in this very serious case.  So, notwithstanding that we have allowed the appeal and quashed the convictions of Stephen Carruthers, we direct that in this case a fresh indictment is to be preferred, and that he be rearraigned on that fresh indictment within two months.  
We will raise the question of venue in a moment.  But to begin with, let us make it plain that, pursuant to section 4 of the Contempt of Court Act 1981, we direct that this case is not to be reported in any form at all until the conclusion of any retrial.  Of course, nothing is to be reported at any time, either before or after a retrial, which may lead to the identification of the two boys involved in this case.  Now, what about venue?
MR LESLIE:  My Lord, when the defendant was sentenced‑‑‑‑ 
LORD JUSTICE MANTELL:  We wondered about Birmingham? 
MR LESLIE:  My Lord, that would be very sensible.  I will not hand up the newspapers in that case. 
LORD JUSTICE MANTELL:  I think there are certain formalities or curtesies to be absorbed if it involves a transfer from one circuit to another.
MR LESLIE:  My Lord, yes.
LORD JUSTICE MANTELL:  Is it appropriate for us to order that the venue be fixed on application to a presiding judge of the northern circuit?
MR LESLIE:  My Lord, yes. 
LORD JUSTICE MANTELL:  We respectfully suggest that it be moved off circuit.
MR LESLIE:  Thank you very much, my Lord.  I think your Lordship can actually direct technically that it does go off circuit.
LORD JUSTICE MANTELL:  We think we can.  We could say Birmingham. 
MR LESLIE:  My Lord, I would not ask you do so at the moment, there is a particular personal reason why not, because if I were to be asked to do the matter, if it was going to go off circuit, it might be more somewhat ‑‑ so I would ask your Lordship not to direct at the moment, but I take your Lordship's point that Birmingham is obviously the appropriate circuit.
MR JUSTICE GAGE:  Mr Leslie, I think it can be done administratively.  It is not necessary to make an application in court, but if you administratively apply to the court administrator and he, if necessary, to the presiding judge, and it can be dealt with between the presiding judges administratively.
MR LESLIE:  Thank you, my Lord, I am very grateful.
LORD JUSTICE MANTELL:  Very well, on that basis we order a retrial on Stephen Carruthers.
MR LESLIE:  My Lord, the question of bail, I have been asked to raise it, I do not make an application for bail today because obviously it may be that it should be dealt with by the court concerned.
LORD JUSTICE MANTELL:  You are at liberty to make whatever application you deem appropriate to any judge concerned with this matter in the future.
MR LESLIE:  My Lord, having looked at the rules, I think I have to technically give 24 hours' notice to apply for bail.  But all I would indicate at the moment, my Lord, is that I do not want it to be taken that because I am not applying for bail today that an application for bail will not be made.
LORD JUSTICE MANTELL:  No.  Thank you both.
MR LESLIE:  Thank you very much.
LORD JUSTICE MANTELL:  We have not dealt with the question of legal aid for any retrial.
LORD JUSTICE MANTELL:  My Lord, could the legal aid be as the court awarded it in this case? 
LORD JUSTICE MANTELL:  Which was for leading and junior counsel?
MR LESLIE:  Leading and junior counsel.
LORD JUSTICE MANTELL:  Yes, we agree.
LORD JUSTICE MANTELL:  Thank you very much indeed.