HKSAR v. YU LIK WAI WILLIAM AND ANOTHER

CACC 237/2015

[2019] HKCA 1093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 237 OF 2015

(ON APPEAL FROM DCCC 325/2014)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  In our judgment[1] handed down earlier this year we ruled that section 61(4) of the Interception of Communications and Surveillance Ordinance, Cap 589 (“ICSO”) was unconstitutional because under it the duty to make disclosure of extant information was imposed upon the law enforcement agency rather than the prosecution. We suggested that one option that the court could take is to give a remedial interpretation of section 61(4).

2.  Section 61(4) provides:

“ (4) Notwithstanding subsection (2) or any other provision of this Ordinance, where, for the purposes of any criminal proceedings (whether being criminal proceedings instituted for an offence or any related proceedings), any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence—

(a) the department shall disclose the information to the prosecution; and

(b)  the prosecution shall then disclose the information to the judge in an ex parte hearing that is held in private.”

3.  In our judgment we said at paragraphs 233 – 234:

“ 233. We believe that the following remedial interpretation would not be inconsistent with these principles:

… any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned shall be provided to the prosecution so that it may consider whether the information might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence. Where, in respect of such information that is disclosed to it, the prosecution is of the view that it might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence it shall then disclose the information to the judge in an ex parte hearing that is held in private.

234.    The italicised words are read in to ensure that the prosecution is provided with any extant information and that it is the prosecution who then decides whether that information passes the disclosure test.”

4.  In response to this proposal the parties have filed written submissions.

5.  Mr Gerard McCoy SC, leading Mr Richard Donald, for the 1^st appellant, supports the remedial interpretation proposed by the court.

6.  Mr Andrew Bruce SC, leading Mr Phillip Ross, for the 2^nd appellant,submits that given the legislative history of section 61(4) and its earlier incarnations, and the intent of the Legislature as it appears from the provision, remedial interpretation as a constitutional tool is not available to the court.

7.  Mr David Perry QC, leading Mr Martin Hui SC, Ms Audrey Parwani and Ms Karen Ng, for the respondent, urges the court to employ the constitutional tool of remedial interpretation but submits differently drafted remedial interpretations as preferred alternatives to that proposed by the court.

8.  At the conclusion of submissions the court reserved its judgment.  This is the judgment of the court. 

The jurisdiction of the court

9.  We have set out the relevant legal principles underlying the court’s jurisdiction to invoke the power of remedial interpretation at paragraph 232 of our judgment[2]. None of the parties contest that we have such a jurisdiction or the legal principles underlying it but Mr Bruce submits that the jurisdiction cannot be invoked in the present case.  In these circumstances it is not necessary to discuss at great length the case authorities to which we have been referred.

10.  Mr Bruce reminds us that there are limits to the constitutional remedy and argues that such limits are applicable to section 61(4).  He relies on the English Court of Appeal’s decision in Vodafone 2 v Revenue and Customs Commissioners[3]as containing a helpful summary of both the scope and limits of the remedy.  In this case Sir Andrew Morritt C, in giving a judgment with which the other members of the court agreed, at page 90E, adopted the following summary of the scope of the remedy:

“ In summary, the obligation on the English courts to construe domestic legislation consistently with Community law obligations is both broad and far-reaching. In particular: (a) it is not constrained by conventional rules of construction … (b) it does not require ambiguity in the legislative language … (c) it is not an exercise in semantics or linguistics … (d) it permits departure from the strict and literal application of the words which the legislature has elected to use … (e) it permits the implication of words necessary to comply with Community law obligations … (f) the precise form of the words to be implied does not matter …”

11.  At pages 90H to 91C Sir Andrew Morritt C adopted the following summary of the limits to the remedy:

“ The only constraints on the broad and far-reaching nature of the interpretative obligation are that: (a) the meaning should ‘go with the grain of the legislation’ and be ‘compatible with the underlying thrust of the legislation being construed’: see per Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 33; … An interpretation should not be adopted which is inconsistent with a fundamental or cardinal feature of the legislation since this would cross the boundary between interpretation and amendment … and (b) the exercise of the interpretative obligation cannot require the courts to make decisions for which they are not equipped or give rise to important practical repercussions which the court is not equipped to evaluate …”

12.  From this latter passage Mr Bruce derives the principle that “it is impermissible to arrive at an interpretation that should properly be determined by the Legislature as a result of making policy choices.”[4]  Remedial interpretation, he argues, must not effect such a change to the non-compliant legislation as to become an amendment of it. Amendment is, he emphasises, the preserve of the Legislature and the courts must be careful not to trespass on its domain.

13.  Relating these principles to section 61(4) of the ICSO Mr Bruce argues that in its non-compliant form its object is to prevent the prosecutor from being given access to any information other than that which passes the statutory disclosure test.  The remedial interpretation will, contrary to that object, require the prosecution to be shown all extant information irrespective of the view of the law enforcement agency on whether that information passes the statutory disclosure test.

14.  Mr Bruce also submits that by adopting a statutory disclosure test that is narrower than the common law test the ICSO creates a conflict of interest for the prosecutor who may be obliged under the ICSO not to disclose information which would have been disclosable on the application of the common law test.

15.  From this position Mr Bruce argues that were the court’s proposed remedial interpretation before the Legislature then interested parties, such as the Law Society of Hong Kong and the Hong Kong Bar Association, would make representations on the policy issues created by having two disclosure tests to be applied by the prosecutor.

16.  Mr Bruce also refers to an earlier version of section 61(4) which was ultimately not enacted.  Clause 58(4)(a) of the ICSO Bill gave the prosecutor access to intercept information that would now be given to him by our proposed remedial interpretation.  However, by enacting section 61(4) the Legislature clearly removed that right and so for this court to now restore it would amount to an act of legislative amendment.

17.  Finally, Mr Bruce argues that by giving the prosecutor a right of access to material which the defence cannot see, an inequality of arms situation is created which might advantage the prosecutor by enabling him “to conduct the trial in a way that supports inculpatory material that the accused may not be aware of, and avoid material that may lead to a defence.”[5]

18.  For all these reasons Mr Bruce submits that “the prima facie meaning of s.61(4) cannot bear the meaning ascribed to it in the proposed remedial interpretation.”[6]

19.  Mr McCoy accepts that we cannot amend the law and that there may be extreme examples of legislation that are not susceptible to a remedial interpretation.  But, he submits, the ICSO is not such an example as all the court is doing by its proposed remedial interpretation is transferring the disclosure duty from the law enforcement agency to the prosecutor.

20.  Mr Perry supports the court’s entitlement to make a remedial interpretation in respect of section 61(4) and makes the point that section 61(4) is, in its nature, a human rights safeguard as it exists in order to protect the fairness of the trial.  To simply strike it down without a remedial interpretation would have the curious consequence of making the ICSO less human rights compliant.  This, he submits, demonstrates the illogicality of Mr Bruce’s contention.

Discussion: Jurisdiction

21.  As we have said in our judgment a key policy decision underlying the ICSO is that the product of a telephone interception may only be used for an intelligence purpose and not for an evidential purpose. This is in contrast to the policy for the product of covert surveillance.  Having such a policy ensures that everything to do with telephone interception is kept secret and hence the need for safeguards, one of which is the role of the Commissioner on Interception of Communications and Surveillance (“the Commissioner”).

22.  But the Commissioner’s role is to make sure that the power is not abused, to investigate complaints and to report on the operation of the system.  The Commissioner has no role in respect of protecting and securing the rights of accused persons to a fair trial that flows from an investigation in which telephone interception has been employed.

23.  The drafters of the ICSO were clearly conscious of the impact that the policy of secrecy could have on the fairness of the criminal justice process.  As we have explained in our judgment, one of the means by which the common law secures both the fairness of the trial and the openness of the criminal justice process is by imposing on the prosecutor a duty of disclosure.  But as openness is the antithesis of secrecy there will inevitably be a tension between the common law duty of disclosure and the need to preserve the secrecy of telephone interception.  The ICSO seeks to resolve this tension, without sacrificing the fairness of the trial, by having its own disclosure regime, in substitution for the prosecutor’s common law duty of disclosure, that can then be applied to any extant telephone intercept product.

24.  This led to the Legislature enacting a modified form of disclosure that would lessen the risk of the policy of secrecy adversely affecting that process.  The two modifications to the common law duty of disclosure were the substitution of a narrower statutory disclosure test for the common law test and the transfer of the application of that test from the prosecutor to the law enforcement agency on whose behalf the interception was conducted.  No challenge was mounted to the former modification but a challenge was mounted to the latter one.

25.  The Legislature clearly wanted to enact a safeguard, in the form of this modified disclosure regime, that would balance the policy of secrecy with the need to ensure a defendant still received a fair trial through a process that was still sufficiently open.  Though modifying the prosecutor’s role in this regime it made it clear that it still wanted to involve the prosecutor in this process. However, it thought that in order to preserve the secrecy of the telephone interception it was necessary to remove the prosecutor from the initial filtering of information and repose the performance of this aspect of the disclosure duty with the law enforcement agency.  It was only in this respect that the Legislature enacted a disproportionate provision.

26.  By our remedial interpretation we are not creating a disclosure regime where none existed before; we are not altering the disclosure test and making disclosable what was previously not disclosable; we are not involving in the disclosure process a person who is not already involved and we are not enabling a person to see secret information who could not previously see it.

27.  What we are doing is involving the prosecutor at an earlier stage of the disclosure process and, by so doing, enabling him to have access to more information than he would previously have had.

28.  We are not persuaded that the object of section 61(4) is the narrow one of excluding the prosecutor from the disclosure process; rather it is the broader object of enacting a disclosure regime that will protect the policy of secrecy by limiting the persons who will be aware that telephone interception has taken place.  By involving the prosecutor in the way we propose we do not believe that we shall be undermining the policy of secrecy.

29.  We do not accept that a prosecutor would have any difficulty in applying two disclosure tests; one to telephone interception information and the other to all other materials acquired in the course of the investigation.  Nor do we accept that the prosecutor becomes professionally embarrassed by a conflict of interest situation being generated by the existence of the two separate disclosure tests.  Two separate disclosure duties will now be imposed on the prosecutor and we see no reason why he should not be able to perform both of them as a minister of justice.

30.  Key to our judgment is an appreciation of the very special role that the prosecutor plays in the criminal justice process.  His minister of justice role elevates him beyond a mere advocate for a party in an adversarial forum.  An advocate in such a forum represents only the interests of his client.  A prosecutor, on the other hand, represents the interests of justice.  He is not the advocate of government and he is certainly not the advocate of the law enforcement agency from whose investigation his prosecution might flow.  The only interests he seeks to advance and protect are the interests of justice.  In doing so we do not see that he would be subject to any conflict of interest or professional embarrassment for the interests of justice will prevail over all other interests. Nor do we think that he would be incapable of performing his multi-faceted role or that by our remedial interpretation we would be imposing on him a burden greater than he should be required to shoulder. The law already demands much from him but the additional burden we now ask him to shoulder is consistent with, not contrary to, and indeed falls within, the duties he currently performs.

31.  For these same reasons we reject the argument that the prosecutor cannot be trusted to conduct a fair trial once he possesses interception information.  We have confidence in prosecutors performing the role required of them by the law to the highest professional and ethical standards.

32.  Nor do we accept, for the reasons set out in our judgment, that by becoming privy to what is contained in interception information, an inequality of arms is created between the prosecutor and defence. 

33.  We do not need to see other provisions which the Legislature rejected to convince us that the Legislature made a deliberate decision to repose the initial disclosure duty with the law enforcement agency.  This is obvious from the provision it did enact.  Section 61(4) is clearly a deliberate departure from the common law position.  But the fact that the Legislature chose a particular course does not mean that the course they chose cannot be altered by remedial interpretation if the court later finds that it is unconstitutional.  If that were so then the scope of this constitutional remedy would be very narrow indeed.

34.  We are satisfied that by making use of the constitutional tool of remedial interpretation in the way we propose in respect of section 61(4), we are not indulging in legislative amendment and trespassing into the exclusive domain of the Legislature.

The alternative interpretations

35.  Mr Bruce does not suggest an alternative interpretation and Mr McCoy supports that proposed by the court.  Mr Perry, on behalf of the respondent, however, has proposed two alternatives to the interpretation proposed by the court.  His first is as follows:

“ 61. Non-admissibility of telecommunications interception product

…

(4) Notwithstanding subsection (2) or any other provision of this Ordinance, where, for the purposes of any criminal proceedings (whether being criminal proceedings instituted for an offence or any related proceedings), any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned and as may be required so as to facilitate the prosecution in discharging its duty to secure the fairness of a trial shall be provided to the prosecution so that it may consider whether the information might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence.

Where in respect of such information that is disclosed to it, the prosecution is of the view that it might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence, it shall then disclose the information to the judge in an ex parte hearing that is held in private.”

36.  His second alternative remedial interpretation is:

“ 61. Non-admissibility of telecommunications interception product

…

(4) Notwithstanding subsection (2) or any other provision of this Ordinance, where, for the purposes of any criminal proceedings (whether being criminal proceedings instituted for an offence or any related proceedings), any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned and which may affect the fairness of a trial shall be brought to the attention of the prosecution so that it may consider whether any information might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence.

Where in respect of such information that is disclosed to it, the prosecution is of the view that it might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence, it shall then disclose the information to the judge in an ex parte hearing that is held in private.”

37.  The italicised passages in both versions of the respondent’s alternative remedial interpretations reflect the difference between them and the court’s proposed remedial interpretation.

38.  Mr Perry’s alternative remedial interpretations are prompted by a concern that the interpretation proposed by the court could create practical difficulties for both law enforcement agencies and the prosecution.  The practical difficulties are that there could be a huge amount of material generated by a telephone interception and to require the prosecution to go through it all would be excessively burdensome to it.  This, Mr Perry explains, is what he is seeking to achieve by the inclusion in his first alternative interpretation of the words:

“ and as may be required so as to facilitate the prosecution in discharging its duty to secure the fairness of a trial”.

39.  The court expressed its concern that this may still involve the law enforcement agency in making an evaluative judgment as to what it should disclose to the prosecution.  In response to this concern and to meet the practical difficulties that could arise from there being a large volume of information, Mr Perry said:

“ … I would invite the court to make clear that if in any case there is material that in the first instance should at least be notified to the prosecuting authority and it will then be for the prosecuting authority in conjunction with the law enforcement authority to determine whether, in fact, it is wholly irrelevant or whether it is something that should be considered further and that meets the point. So that’s what I would say in relation to that, my Lord.”

40.  This approach is reflected in his second alternative remedial interpretation which contained the words:

“ shall be brought to the attention of the prosecution”.

41.  The court then engaged Mr Perry in whether the words he proposed were really necessary in order to address the concern he had.  We set out the exchange that then ensued in its entirety so the concerns of the respondent can be accurately understood:

“ POON JA: So Mr Perry, if I understand your position correctly, and I have listened to your submissions quite carefully for the past few minutes, is it your submission that … the law enforcement agency should notify the prosecution of all extant materials irrespective of their relevance and then the law enforcement agent should also provide with the prosecution a preliminary assessment on their own of ‑- as to what materials are wholly irrelevant, what materials are prima facie relevant to the fairness of the trial? Is that your submission? And then leave the matter to the prosecution to decide …

MR PERRY: Yes.

POON JA: … what materials should be disclosed?

MR PERRY: Yes, if any.

POON JA: Yes.

MR PERRY: Because what ‑- exactly, my Lord. What I’m proposing, my Lord, is a process that involves a funnelling through where if all the material is brought to the attention of the prosecuting authority, the prosecuting authority then discusses it with the law enforcement authority. The law enforcement authority can indicate what material is in existence and what view they take of it. The prosecutor can then look at the material himself or herself to make his or her own evaluation of all those judgments that have been taken by the law enforcement authority and then a decision can be taken as to whether there is a need to bring any information to the attention of the judge in the proceedings.

POON JA: Yes. So to put it very simply, so there is a long list of all the extant materials, all, and I mean all, and then there is a short list … prepared by the law enforcement agency based on their preliminary assessment of relevancy or fairness as to the question of trial…. And then the lists -- the long list and the short list will be given to the prosecution and it’s for the prosecution to decide whether they are going to look into the matter further. For example, maybe they wish to see a particular item to see whether an item in the long list is relevant to the defence of the trial. It is the scheme that you are trying to put forward to us.

MR PERRY: That’s what I would envisage, my Lord, which is broadly speaking the way it operates in the United Kingdom. If there is a telephone intercept product relevant to an ongoing trial, that would always be brought to the attention by which ‑- by ‑- when I say relevant, I mean which is in the background of a prosecution in the United Kingdom, that would be brought to the attention of the prosecutor. It would then be for the prosecutor to discuss with the investigator whether there was, in fact, any material that engaged section 18(7).

POON JA: Well, … if that is the scheme that you have in mind, then going back to the content of the remedial interpretation, probably you don’t need the words, ‘And which may affect the fairness of a trial,’ because all the information, all the extant information shall be brought to the attention of the prosecution. And then it’s up to the prosecution to decide whether any information should be disclosed for the assistance of the LEA [law enforcement agency], the long list and the short list.

MR PERRY: Well, my Lord, I would be content without those words being included.

POON JA: Right.

MR PERRY: And so it would read, ‘Any information,’ etc, down to, ‘Concerned shall be brought to the attention of the prosecution so that it may consider whether any appeal should be made,’ etc.

POON JA: So you are content to leave out the words, ‘And which may affect the fairness of a trial’? That really brings back to my Lord, Mr Justice McWalters’ observation.

MR PERRY: My Lord, I’m just giving it thought. I agree and the point about ‑- I’m just trying to think about how you limit the ‑- because what we’re not concerned with is any extant intercept product in Hong Kong. It has to have some bearing, but I think that’s probably made clear by the fact that you’re looking to a particular case for the prosecution that is actually ongoing. The reason I had included those words was to sort of limit the scope of ‑- because if you simply say, ‘Any information pursuant to a relevant prescribed authorised,’ which is then to be given to the prosecutor, I just -- I was just keen to ensure that it wasn’t all information in Hong Kong, for example, unrelated to the case. That’s why I was saying that …

POON JA: Yes.

MR PERRY: … it has to be brought into the fact that it’s got some connection with a case which is ongoing. But I think that’s ‑- that would have to be the way it would be read, in any event.

POON JA: Yes. As I understand your submission, there’s a distinction between producing the materials to the prosecution and drawing their attention to the existence of the extant materials.

MR PERRY: Yes, yes, exactly, my Lord.

McWALTERS JA: But it doesn’t ‑- you’re not suggesting that if the prosecutor after seeing the lists or having a conference with the investigator says, ‘All right, I’d better have a look at this material,’ that the law enforcement officer could refuse that request?

MR PERRY: No, he couldn’t, my Lord. That’s the whole point of drawing it to the prosecutor’s attention. The prosecutor is then in control but instead of ‑- but it’s a more efficient process. If you simply have a law enforcement authority that hands over what may be a mass of interception product and says, ‘Here, over to you’ …

McWALTERS JA: Well, it’s a matter of how you might construe the word ‘provide’.

MR PERRY: Well …

McWALTERS JA: I mean, within the system of disclosure that operates.

MR PERRY: Yes, yes.

McWALTERS JA: It really just means, as I said, the LEA is the repository of all the unused material acquired in the course of an investigation and the prosecutor simply usually, well, I would think, would have a conference with the law enforcement officer after a filtering process has been conducted by him and he’s prepared his lists. And the prosecutor will say, ‘Yes, all right, go through the lists,’ as I said before, and then say, ‘Well, what else have you got?’ He hopefully is not just rubber-stamping the list. And so there will then be a process by which the prosecutor discharges his common law obligation.

MR PERRY: Yes, I respectfully agree, my Lord, and the point that we were trying to make was that, as we understood the court’s judgment, it was to ensure that the prosecutor assumed control …

McWALTERS JA: Yes.

MR PERRY: … that underpinned the rationale for the reason that led to the court’s conclusion in relation to section 61(4). So once you’ve got that, and may I also make the point that we were not suggesting that the interpretation for which we contend is a matter of convenience. It is not a matter of convenience. It is a matter of ensuring that the interests of justice are properly safeguarded and also the legitimate interests of individuals whose right to privacy is engaged. And so far as the first point is concerned, the interests of justice, it must be in the interests of justice for a more efficient and focussed process to be put in place rather than ‑- and I take the point that perhaps we’ve been sensitive about the meaning of ‘produced’ in this context but …

McWALTERS JA: I mean, you’re really talking about just being given access.

MR PERRY:  Given access to but if that’s what was meant and I think we left open that possibility in our submission, but I didn’t want to run the risk of having to come back and argue in a future case that that was the point.  And then in relation to the privacy interest, again, it’s a question of ensuring that there is a procedure in place that properly respects the sensitivities about the use of this particular means of surveillance. …”

42.  In response to Mr Perry’s concerns we should make it clear that the object of our remedial interpretation is to involve the prosecutor in the section 61(4) disclosure process just as he is presently involved in it when discharging his common law duty.  The only difference is that he will apply the ICSO test of disclosure.

43.  When performing his common law duty the prosecutor is performing a duty personal to him for which the courts will hold him personally accountable.  But the courts have always recognised that in carrying out that duty he will be assisted by officers of the investigating law enforcement agency.  They will know what they have acquired in the course of their investigation and so they will be in a position to reveal that material and discuss it with the prosecutor.  The prosecutor will know how he will be presenting his case and will know what are the issues in the case and may be able to anticipate what may become an issue and what may be the defence at trial. 

44.  Using his professional judgment the prosecutor will decide (1) what is clearly outside the disclosure test and does not require his further scrutiny, (2) what may be disclosable and will require his further scrutiny, and (3) what is clearly disclosable.  The first and third categories of material should be readily apparent but the second category will require his careful consideration.  How he conducts the disclosure exercise with the assistance of the law enforcement agency will be for him to decide.  The fact that there might be a lot of such material does not absolve him from discharging his duty.  Prosecutors are accustomed to investigations generating a lot of disclosable material, especially in white collar crime and corruption investigations.  The volume of such material does not entitle the prosecutor to dispense with or dilute his common law duty and there is no reason why it should entitle him to dispense with or dilute his ICSO disclosure duty.

45.  It is vital to the effectiveness of the ICSO disclosure regime that the law enforcement agency does not perform a preliminary filtering exercise in which it exercises an evaluative judgment as to what is disclosable and then only reveals to the prosecutor that which it decides is disclosable.  It can, by all means, provide the prosecutor with lists of materials if the prosecutor thinks that would be helpful, and can indicate its preliminary view as to what on the list may be disclosable, but it must reveal to the prosecutor all extant information and must comply with any request by the prosecutor to be given access to it.

46.  With these considerations in mind we must determine which remedial interpretation best encapsulates and advances the object the court seeks to achieve. We are not persuaded that the additional words in either of the respondent’s alternative interpretation add anything to the court’s proposed interpretation.

47.  The additional words of the respondent’s first alternative may suggest that the law enforcement agency has a filtering role in respect of the extant information by determining whether disclosure “may be required so as to facilitate the prosecution in discharging its duty ….”  For the reasons we have given, the law enforcement agency does not have such a role.

48.  The second of the respondent’s interpretations employs the words “shall be brought to the attention of the prosecution”.  In so far as this may suggest that it is the limit of the law enforcement agency’s responsibility we find it equally unattractive.

49.  In the result we are not persuaded that we should depart from our proposed interpretation and it is that interpretation which now becomes the interpretation of the court.

The use of a special advocate

50.  At paragraph 201 of our judgment[7] we mentioned the possibility of a court using the device of a special advocate to assist it in determining applications for disclosure of redacted material where the redactions reveal that telephone interception has taken place and intelligence has been derived from it.

51.  In his helpful submissions to us Mr Perry sounds a note of caution that the special advocate would be so limited in what he could do that he could not, in reality, provide any meaningful assistance to the court.

52.  Although we received observations on this issue from both Mr Perry and Mr McCoy, it was by no means fully argued.  Conscious that anything we say in this judgment is only obiter dicta and is said without the benefit of full argument we are not persuaded that this is an appropriate occasion to engage this issue.