Case Nos: 2009/04542, /04693, /04719 and /04721
Neutral Citation Number:
[2010] EWCA Crim 2740
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT BRADFORD
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24/11/2010
Before :
LORD JUSTICE RICHARDS
MR JUSTICE GRIFFITH WILLIAMS
and
HIS HONOUR JUDGE ROOK QC
(sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - -
Regina
- v -
(1)
John Daniels
(2)
Anthony Paul Davies
(3)
Anthony Vincent Neale
(4)
Darren Trevor Martin
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Peter Kelson QC and Danielle Cooper
(instructed by the Registrar of Criminal Appeals) for
Daniels, Davies and Neale
Iain Goldrein QC
(instructed by
BH Mohamed Solicitors
) for
Martin
Tom Bayliss QC
(instructed by
the Crown Prosecution Service)
for
the Crown
Hearing date : 20 October 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Richards :
1.
Anthony Davies and Darren Martin appeal against their conviction on 5 August 2009, after a trial at Bradford Crown Court before Langstaff J and a jury, on counts of murder and conspiracy to rob. John Daniels and Anthony Neale appeal against their conviction, after the same trial, on the count of conspiracy to rob. Davies also appeals against sentence. A co-defendant, Sonny Stewart, had previously entered into an agreement pursuant to section 73 of the Serious Organised Crime and Police Act 2005 (“SOCPA”) under which he agreed to give assistance to the authorities. In accordance with that agreement he pleaded guilty to manslaughter and to conspiracy to rob, and he gave evidence for the Crown at the trial of the appellants. The central issue in the conviction appeals is whether it was an abuse of process for the case to proceed on that evidence and/or whether the evidence should have been excluded under
section 78 of the Police and Criminal Evidence Act 1984
(“
PACE
”).
2.
The victim was Edward (or Teddy) Simpson, whose body was found in the grounds of a disused nursing home at Shirley Manor, Bradford, on 2 August 2007. He was naked save for his underpants, trousers binding his ankles, and a top which was wrapped loosely around his neck. His hands were tied behind his back. The pathologist recorded some 56 separate external injuries to the body. They included a cut to the left ear which was consistent with it having been pulled by an instrument such as a wrench. The facial skeleton had been shattered by blows which had also caused underlying brain damage. The cartilages of the voice box had been broken, either by stamping or by compression. Both shoulder blades had been fractured. At least seven ribs had been fractured, also causing a lung to be punctured. The multiple injuries were the cause of death. It was likely that the deceased remained alive for between one and six hours after the injuries were inflicted. The brain injury would have led to unconsciousness and it was unlikely, though not impossible, that he regained consciousness.
3.
A number of men were charged with the victim’s murder. In June 2008, shortly before their trial was due to commence, Stewart entered into the SOCPA agreement and entered guilty pleas as we have indicated. At the trial he gave evidence for the Crown. Dacosta Daniel, Errol Witter and Robert Cameron were convicted of murder and conspiracy to rob and were each sentenced to life imprisonment with a minimum term of 33 years. Mumtaz Ali was acquitted on both counts. The jury were unable to agree a verdict on either count in respect of Davies, Neale and Martin.
4.
A second trial took place between June and August 2009. For Davies, Neale and Martin it was a re-trial. Tried with them was Daniels, who had been implicated by Stewart but too late for him to be charged and tried with the other defendants at the first trial. Stewart again gave evidence for the Crown. Davies and Martin were convicted on both counts and were each sentenced to life imprisonment, with a minimum term of 35 years in the case of Davies and of 24 years in the case of Martin. Neale and Daniels were acquitted of murder but convicted of conspiracy to rob, and were sentenced respectively to 12 years’ imprisonment and 13 years’ imprisonment.
The evidence at the second trial
5.
Stewart’s importance as a prosecution witness is shown by a summary of the evidence he gave at the second trial. We will start with that and will refer briefly to the main features of the other evidence at the trial, before examining Stewart’s SOCPA agreement, the circumstances surrounding it and the issues arising out of it.
6.
Stewart gave evidence that he and Anthony (“Jigger”) Davies had been like cousins and had more or less grown up with each other. Stewart, Davies and Daniels had had two conversations together at Daniels’ house during which they formulated a plan to rob the deceased. The first of the conversations occurred about one week before 1 August 2007, soon after Daniels had been released from prison. Daniels was looking to raise some money and said that he had just “slapped a kid and taken 50 grand off him”. Daniels suggested that they find somebody worth robbing, and Davies enthusiastically supported the suggestion. Daniels and Davies were doing the talking. No specific target was identified during this first conversation.
7.
Stewart felt that Davies and Daniels must have spoken together without him between the first and second conversations, as by the time of the second conversation they had narrowed the intended target to two people. Daniels said that he had taken the £50,000 from the deceased, who had owed him the money for protection, and that the deceased was worth robbing as he had a further couple of hundred thousand pounds at his house and was due to receive a shipment of drugs. Daniels thought that it would be quite easy to take the money from him. The decision was therefore taken to rob the deceased.
8.
Daniels gave the impression that he wanted Davies to commit the robbery as Daniels himself was on an electronic tag. He said that the deceased was a “shiverer”, meaning that he would give up the money straightaway when confronted by intimidating looking men. He said that there would not be any need for violence. Davies told Stewart privately that he did not want to do the robbery and asked him whether he knew anyone from out of town who would want to do it. Stewart said that he did know someone. He phoned Neale, who said that he was not interested but that he could get someone who would be willing.
9.
On 1 August Davies phoned Stewart at 16:00, asking him to find out whether Neale had found someone to do the robbery as it was on for that evening. At the time of the call Stewart was in his Renault Laguna together with the co-accused Ali and with a man called Dean Martin (to be distinguished from the defendant Darren Martin, to whom we refer simply as “Martin”). Davies said that he was on his way back to Bradford and told Stewart to “get it sorted”. Further calls from Davies followed, as Stewart did not immediately phone Neale. When he did phone Neale, he was told that Neale had found someone to do the robbery and that that person would phone Stewart within the next 20 minutes. The person who thereafter contacted him was Dacosta Daniel, who said to him, “I’m going to do this thing for you”, and stated that he would make his way over shortly. (Dacosta Daniel, Witter and Cameron were referred to as “the Leeds men” and were the three defendants convicted at the first trial.)
10.
Stewart was picked up from his brother’s house by Ali. They drove together to a petrol station where they met Davies, and then on to another petrol station where they had a rendezvous with the Leeds men between 18:00 and 18:30. From there they drove in convoy: Stewart and Davies in a Ford Focus, the Leeds men in a white van, Ali in Stewart’s Laguna. They drove to Daniels’ house in Cutler Heights Lane where Davies had a quick conversation with the Leeds men before going into Daniels’ house for about five minutes.
11.
Thereafter Stewart got a call to go to a restaurant called Akbar’s which was about five minutes away. He travelled to Akbar’s with Davies and Ali in the Laguna. The men from Leeds followed them and waited in a side street while they were at the restaurant.
12.
After they left Akbar’s there was a series of phone calls between 19:11 and 19:16 to establish the whereabouts of Martin, who had been tasked with delivering a replica hand-gun for use in the robbery. After leaving Daniels’ house Davies had made a phone call to Martin and had said, “Bring the toy”. Stewart had known that a gun was to be involved since that afternoon at the latest. The handover of the gun took place in a side street called Broad Lane. Davies got out of the Laguna and directed Martin to pass the gun through the window of the van. Martin got out of his car and did as instructed. Stewart saw the handover with his own eyes.
13.
Following the handover they drove past the deceased’s house in Sticker Lane. Davies, while on the phone to the Leeds men, pointed out the house from the car. They parked nearby. Davies got out of the car and said to the Leeds men that they knew to simply threaten the deceased and not to hit him. He also told them to take the CCTV video tape from the house and to phone when they were in the house. Stewart, Davies and Ali then all returned to Stewart’s house in Hope Lane.
14.
While they were there, Stewart received a phone call from Dacosta Daniel who said that he was in the deceased’s house and asked where the money and video tape were. Stewart did not know, so he handed the phone over to Davies. Stewart understood from what he could hear of the conversation that the men were unable to find the tape, the drugs or the money. Davies eventually said that they were coming over to Sticker Lane.
15.
They met up with the Leeds men in a side road just off Sticker Lane. Davies waved at them and indicated that they should follow. They eventually stopped and Witter informed Davies that they had found no money or drugs and that the deceased was in the back of the van. Davies told them to drive to Judy Woods. Davies phoned Martin and told him to bring a Transit van. Stewart left before Martin arrived.
16.
Stewart returned home with Davies to put on a tracksuit top. He said he did not want to leave the house again but Davies persuaded him to do so. Davies received a phone call, Stewart thought from Dacosta Daniel, and was informed that Witter and Cameron had gone home. Davies relayed this phone conversation to Stewart. Dacosta Daniel was complaining that Martin was hitting the deceased and cutting him. Davies’ reaction to the news was to laugh and say, “He’s a game lad, Darren”. Davies appeared to be enjoying it.
17.
They went to pick up Martin. Stewart swore at him and voiced the opinion that what he had done to the deceased was wrong. Martin replied, “What’s up?”, as if he had not done anything at all. Stewart asked him what he had done and Martin replied, “What? I haven’t done nowt”.
18.
Back at Martin’s house they swapped cars and Martin took the Laguna. Stewart understood that he was going back to Judy Woods. Stewart and Davies drove to Davies’s house before setting out to look for Dacosta Daniel. Stewart received a phone call from Neale wanting to know what had happened. Neale said that he had heard that Cameron had been stabbed (this referred to an injury received by Cameron in the course of events at the deceased’s home) and that there was no money or drugs. He said that he was on his way to Bradford and wanted to speak to Davies and collect Dacosta Daniel.
19.
Davies spoke to Martin on the phone and told him that they were going to meet Neale. Stewart heard from Martin, via Davies, that the deceased was still alive in the van. Stewart and Davies met with Neale. They then drove to Shirley Manor where Dacosta Daniel and Martin were present with the van and where the deceased’s body was dumped.
20.
The following morning Stewart was awoken by Davies and informed that the deceased had died. Davies told him to get up. Martin was waiting outside the house in his car. Stewart blamed Martin for what had happened, but Martin did not seem bothered. In the afternoon he and Davies hired some bikes to go to Judy Woods to look for the discarded gun. During an argument between Davies and Ali which was captured on CCTV, Davies had said, “You’ve just found out you’re involved in a murder and you’re going around with a known grass (i.e. Dean Martin)”. Stewart and Ali both left Bradford to get out of the way.
21.
Matters covered in the cross-examination of Stewart included the circumstances in which he had agreed to give evidence for the Crown (an issue to which we will return) and inconsistencies between the accounts he had given at various times.
22.
Other prosecution evidence included a detailed log of calls made between the defendants’ various mobile phones, together with cell site evidence as to the location of the phones when those calls were made. Stewart’s evidence was consistent with that evidence, though one of the points made in cross-examination of him was that he had tailored his account to fit with it. There was also a body of CCTV evidence showing the movements of vehicles and defendants at various times. Dean Martin gave evidence which, among other things, supported Stewart’s account of the phone call he received from Davies while he was in his car with Ali and Dean Martin.
23.
A man called Gary Folkard, a friend of the deceased, gave evidence that he called at the deceased’s home at about 20:00 for a pre-arranged meeting. Having knocked repeatedly at the door, he was dragged into the house and hit a number of times over the head with a wrench and some sort of metal object (which forensic evidence indicated was probably a frying pan). A man wearing tights over his head came into the hallway carrying a gun, which he forced into Mr Folkard’s mouth. Mr Folkard lost consciousness. As he regained consciousness he saw two men dragging the deceased out of the house by his shoulders, face down. The deceased looked unconscious. The man with the gun said that the deceased was coming with them until they got what he owed.
24.
Forensic examination of the address revealed that the deceased must have received at least four blows at that location. Evidence also suggested that a cushion cover had been placed over the deceased’s head while he was bleeding and that water had then been poured over it from a jug. There was extremely strong evidence that the deceased had been struck with the wrench and had then been dragged out of the house.
25.
Moving to the later stages of the crime, a van and a car, driving in convoy, were witnessed entering the grounds of Shirley Manor just after midnight. At about 00:30 a group of teenagers camping in the area heard a number of people talking and what sounded like a van door sliding open and shut. The van drove off with screeching tyres. At 01:13 Martin purchased some petrol. At between 2:10 and 2.45 the van was set alight. The burnt-out van was subsequently recovered and was identified as a Ford Transit purchased by Davies less than a month before the killing. There was expert evidence that the tyre marks found at Shirley Manor matched the section of burnt tyre recovered from the van.
26.
In relation to Davies, there was evidence of bad character: in an undercover police recording made in connection with an unrelated matter he was heard directing violence against an unknown individual in relation to an unpaid drug debt, and expressing his approval of the violence used.
27.
In relation to Martin, there was evidence that a swab taken from the inside of the left arm of the deceased matched Martin’s DNA.
28.
Daniels, Davies and Martin did not give evidence. Neale gave evidence to the effect that he had no involvement in the robbery and that his contacts with Stewart and Dacosta Daniel were entirely to do with a cannabis deal.
The SOCPA regime
29.
Sections 71-75 of SOCPA, the statutory provisions relating to defendants who assist in the investigation or prosecution of an offence, were examined in detail in
R v Blackburn
[2007] EWCA Crim 2290
, [2008] 2 Cr App R (S) 5, and do not need to be set out at length here. Section 73 governs the arrangements for a reduction in sentence for a defendant who in specified circumstances has provided assistance. By subs.(1), the section applies if a defendant (a) following a plea of guilty is either convicted of an offence in proceedings in the Crown Court or is committed to the Crown Court for sentence, and (b) has, pursuant to a written agreement made with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence. By subs.(2), in determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered.
30.
At para 27 of the judgment in
R v Blackburn
the court stated that “[t]he essential feature of the new statutory framework is that the offender must publicly admit the full extent of his own criminality and agree to participate in a formalised process”. Those and other features of the SOCPA regime are reflected in the Attorney General’s guidelines on witness immunities and undertakings.
31.
Because of the way it featured in the judge’s ruling at the trial and in the argument on the present appeal, it is also relevant to note what the court said at para 22 of the judgment in
R v Blackburn
, under the heading “The Common Law”, before it came to the detail of the SOCPA regime:
“There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. …. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.”
Stewart’s SOCPA agreement
32.
The factual background to the making of Stewart’s SOCPA agreement was as follows. On 7 August 2007, Stewart was arrested, interviewed and released without charge. 13 November 2007, he was arrested for a second time, was interviewed further and was charged with murder. Throughout this process he made limited comment and denied any involvement in the murder.
33.
Some time between February and April 2008, an exchange of draft proofs of evidence took place between Stewart and Dacosta Daniel while they were in prison. Stewart wrote a manuscript letter to Dacosta suggesting a number of amendments to Dacosta’s proof of evidence so that it more closely reflected Stewart’s account of events.
34.
In June 2008 Stewart contacted the police through his solicitors to indicate that he wished to speak to them within the SOCPA framework. On 16 June 2008 there took place a “scoping” interview in which he gave his account of events for the purpose of enabling a decision to be made by the prosecution as to whether to enter into a SOCPA agreement. In the course of the interview Stewart handed over a draft proof of evidence prepared by his legal team on the basis of his instructions. At the end of the interview one of the interviewing officers expressed the view that they had got enough for a decision to be made. On the morning of 17 June, however, before the SOCPA agreement was entered into, a further scoping interview took place at which, as explained further below, Stewart for the first time implicated Daniels in the events leading up to the death of Edward Simpson.
35.
The SOCPA agreement was then entered into, signed by Stewart and a specified prosecutor. It provided:
“2. It is hereby agreed that Sonny STEWART will assist the investigator and prosecutor in relation to the ongoing investigation being conducted by West Yorkshire Police into the murder of Edward Simpson.
3. Assistance under the terms of this agreement will include the following:
(a) Sonny STEWART will plead guilty to the offences of conspiring to rob Mr Simpson and manslaughter as a result of his death.
(b) Sonny STEWART will participate in a de-briefing process. He undertakes during that process, which will be tape recorded and conducted under caution, to fully admit his own involvement in the matters under investigation.
(c) Sonny STEWART will provide the investigator with all known facts, statements, documents, evidence or any other items available to him relating to the said investigation and offences and the existence and activities of all others involved.
(d) Sonny STEWART will maintain continuous and complete co-operation throughout the investigation of the said offences and until the conclusion of any court proceedings arising as a result of the investigation. Such co-operation includes but is not limited to Sonny STEWART:
(i) voluntarily and without prompting providing the investigator with all information that becomes known to him or available to him relating to the said offences in addition to any such information already provided;
(ii) providing promptly, and without the prosecutor using any powers under any section of the Act, all information available to him, wherever located, requested by the investigator in relation to the said offences, to the extent it has not already been provided.
(e) Sonny STEWART will give truthful evidence in any court proceedings whatsoever arising from the investigation of the said offences.”
36.
There followed, on 17 June and 18 June, a number of formal evidential interviews under caution.
37.
Thereafter Stewart pleaded guilty to conspiracy to rob and to manslaughter, and the evidence he gave at the trials of his co-defendants accorded with the account given in the evidential interviews which followed the SOCPA agreement.
38.
Certain features of the SOCPA agreement and the surrounding circumstances are of particular importance for the submissions on the appeal:
i)
Stewart’s plea of guilty to manslaughter, and the Crown’s acceptance of that plea, are criticised on the basis that Stewart’s own account provided no proper factual basis for a plea to manslaughter, whilst on the case as advanced by the Crown at trial Stewart was guilty of murder rather than manslaughter. In his own account Stewart accepted involvement in the conspiracy to rob but maintained that the conspiracy envisaged only minimal if any violence being required to facilitate the robbery, owing to the timidity of the victim. The prosecution case, on the other hand, was that the conspirators must have envisaged that serious violence might be needed for the robbery.
ii)
It was only at a very late stage, immediately prior to the signing of the SOCPA agreement, that Stewart implicated Daniels in the events leading to the death of Edward Simpson. In his first scoping interview, on 16 June, and the draft proof of evidence handed across at that interview, he made no reference to Daniels. At the beginning of the further scoping interview, on the morning of 17 June, he was asked if there was anything else he wanted to tell the police about the events leading to the death. He responded that Daniels was “the main player in the organisation and all of the death of Edward Simpson” and went on to give details of Daniels’ involvement and of the basis of his, Stewart’s, knowledge of it. He claimed not to have said this before because he was scared for himself and his family’s wellbeing.
iii)
In the first scoping interview and the draft proof of evidence, Stewart said that Davies “laughed” on hearing that Martin was cutting the deceased’s ear. In the interviews after the SOCPA agreement, however, Stewart added to his account by stating that Davies not only laughed but said words to the effect of “Darren’s a game lad” on hearing the news about Martin cutting the deceased’s ear. It is said that this evidence about Davies glorifying in violence became a potentially important part of the case, because the jury convicted Davies of murder after asking a specific question “If a defendant became involved in the events at a point after some injuries had occurred, but did not contribute to the death by way of violence, but also did not stop events and attempt to help the victim, does that make him guilty of murder?”.
The application to exclude Stewart’s evidence at the trial
39.
At the start of the second trial it was submitted on behalf of Daniels that the case against him should be stayed because the evidence of Stewart had been obtained through an abuse of executive power and there was no other evidence on which the Crown could rely against him; the Crown had irrationally and for improper purposes failed to observe the usual practice under ss.71-75 of SOCPA; there was no proper legal basis for Stewart’s plea to manslaughter; Stewart did not accept his full criminal responsibility; the circumstances and timing of his first mention of Daniels gave rise to the suspicion that he was induced to mention that name; and his evidence at the first trial lacked credibility in a number of respects. For similar reasons it was submitted on behalf of Davies that Stewart’s evidence should be excluded under s.78 of
PACE
.
40.
In rejecting those submissions, Langstaff J said that ss.71-75 of SOCPA deal with the relationship between the Crown and those who give evidence about their own criminality in return for immunity or a reduction in sentence; they do not deal with the relationship between the Crown and co-defendants, save that they may be said to imply that it will not be an objection to the admissibility of the evidence of such a witness that he has “self-interestedly done a deal or entered into … a Faustian pact”. He referred to
R v Blackburn
, cited above, in particular to the passage in para 22 which talks of an overwhelming public interest that major criminals should be caught and prosecuted to conviction. As to the well recognised risk that where a witness gives evidence against accomplices he is serving his own ends and not those of justice, the judge observed that the conventional answer to that has not been exclusion but entrusting the jury to reach the appropriate conclusion on the evidence in the light of cross-examination and with an appropriately worded direction from the court. He also referred to
R v Cairns
[2003] 1 Cr App R 38
for the proposition that the prosecution has a discretion to call a witness part of whose evidence is capable of belief even if not all of his evidence is regarded as reliable. He continued:
“It seems to me that there is no abuse in executive discretion given the overriding public interest to which I have made reference. For the Crown to accept as a pragmatic matter a plea which is freely offered in consequence of legal advice accepted by him and in respect of which there is no evidence of improper pressure, … put shortly in the circumstances of this case – I can understand, as I indicated in the previous trial I did, why that pragmatic approach might be taken. It does not seem to me to be relevant that there is, in effect, a plea to [an offence] which, on my current understanding of the law, it would be difficult if not impossible for the Crown to make out. Given not least that Section 71 to Section 75 make provision, amongst other things, for immunity in cases of those defendants who are known … to have committed various crimes.
I turn, therefore, to the argument in respect of
Section 78
. The argument here is to exclude the whole of the evidence, that is a bold argument. In my view there is no proper basis for excluding the whole of the evidence. … The jury are the proper arbiters. It is not in my view appropriate to regard evidence of a co-conspirator or accomplice otherwise admissible and whose admissibility is provided for by inference by Sections 71 to 75, by regarding the prejudicial effect as outweighing the probative value, because in one sense the more cogent the evidence is against a defendant the greater the ‘prejudicial’ effect may seem to be. The safeguard it seems to me to be applied here is that which is conventionally applied in the case of those who give evidence against their mates, and that is to give proper directions reminding the jury of Stewart’s self-interest, and any particular flaws which have emerged in his evidence and inconsistencies therein.
It seems to me that that is the way in which the interests to which I first referred, those of securing a fair trial, that is a fair trial to all parties, can be served. For those reasons I do not regard the balance is made out favourably to exclusion. The evidence is to be included.”
41.
Prior to the judge’s ruling there had also been argument on behalf of Davies that, by handing over his draft proof of evidence in the course of the first scoping interview, Stewart had waived legal professional privilege in communications between himself and his legal advisers, so that the defence could seek disclosure of that material. The proposal canvassed by counsel for Davies was that a witness summons should be issued by the defence against Stewart’s solicitors. The judge expressed a provisional view that privilege had not been waived. Full argument was left over on the basis that it would require Stewart himself to be represented, since the privilege was his. It appears, however, that the matter was not then pursued and that the judge was not called on to make a formal ruling on it.
42.
When it came to his summing-up, the judge gave directions of the kind he had indicated in his ruling on abuse of process and unfairness, as to how the jury should approach Stewart’s evidence. They included this:
“Do not lose sight of the fact that some witnesses may have reasons of their own for being not wholly truthful. In particular, take care when you are looking at the evidence of Sonny Stewart. He was ‘One of the gang’. He has done what has been described as the deal of the decade if not of the century, got away with murder, engaged in a deal which the Prosecution are said have ‘Done a deal with the devil’, two of the phrases. You may think that if he had been in the dock you would have been asking whether he was guilty of murder.
Well, he offered a plea to manslaughter. Plainly, you may think, the prosecuting authorities accepted that in order to put his evidence before you. They do so on the basis that he promised, in a form of agreement which is authorised by an Act of Parliament, the SOCPA agreement, … to tell the whole truth. That does not mean to say he has told the whole truth, it is for you to decide the extent to which he has done. It has been strongly suggested that to secure the deal he might have emphasised some other Defendants’ roles or even in the case of Daniels, invented them. Does he have a reason to do so? Has he minimised his own role? Your distaste for the procedure does not matter, you must avoid prejudice. But you should be careful of the fact that he might have interests of his own to serve. He did not mention a word of Johnny Daniels’ involvement on the day he was first interviewed by the Police to see if they would enter into an agreement, yet the very next morning almost the first thing he did was to volunteer his name. Look carefully at why that was. Do you accept that the reason he did not mention Daniels on the 16
th
June last year, was that he was worried, scared about what he thought Daniels might do to him and his family? Or was it because he wanted to offer a name to secure a beneficial deal?”
The submissions on the appeal
43.
The case advanced on appeal is that the prosecution should not have been allowed to adduce Stewart’s evidence at all: it was an abuse of process for the trial to proceed on the basis of that evidence, or the evidence should have been excluded under s.78 of
PACE
.
44.
Reliance is placed, first, on the general nature of the SOCPA agreement and Stewart’s plea of guilty to manslaughter. Neither Stewart’s own account nor the way in which the prosecution put its case against the co-defendants at trial provided any proper basis for Stewart’s manslaughter plea. Thus the prosecution were calling as their principal witness a man whom they knew or believed to be lying on a matter as fundamental as the basis of his own plea. Moreover, under the SOCPA agreement Stewart had agreed to “fully admit” his own involvement in the matters under investigation; and the effect of the agreement and its statutory framework was to compel him to see his account through to the bitter end if he was not to lose the benefit of the SOCPA process. It was an abuse or unfair for the prosecution to rely on his evidence in those circumstances.
45.
Reliance is also placed on the specific circumstances surrounding the making of the SOCPA agreement, a point which shades into the second aspect of the case advanced. The fact that the SOCPA agreement was entered into immediately after Stewart had implicated Daniels, having made no previous mention of his involvement, prompted questions about the conduct of the police. Concern was expressed that one of the officers concerned harboured prejudice towards Davies. The nature of the questioning of the police officers at the trial and of the evidence elicited is apparent from the following passage in the judge’s summing-up:
“What is of particular importance, you may think, in this case was whether or not Sonny Stewart had had any off-the-record conversations between the first day, the 16th, and the second day, the 17th, the very first time that he mentioned anything about the involvement of Johnny Daniels. Why was that? Was it because he had spent the night wondering how he might beef up his account; was it because he was wondering whether he should tell what he knew. Was it because something was said to him secretly, off-the-record, that is, off the tape record – there was a record of it but not a tape record of it, by the Police.
Well, when he was asked in cross-examination, my note of it reads thus. ‘Did you have any conversations with the Police about the account you’d given?’ Answer, ‘No’. ‘No-one approached you to ask you about what you had said?’ Answer, ‘No’. The Police Officers who came told you that there were conversations about telling the truth, that is what you had to do. They said there was a conversation about giving him material which he had not got with him in the police station, the CCTV and the telephone records. But there is no actual evidence that there was a conversation about the account which he had given. That may miss the point, the point that has been made to you powerfully by Defence counsel is, everything else was tape-recorded, why was this particular conversation not tape-recorded? So you know, so you can be sure of that. But there it is, it is for you to make of the evidence what you will.”
46.
That feature of the evidence is relied on as reinforcing the general case as to abuse and unfairness in permitting Stewart to give evidence. It also leads in, however, to the separate submission that Stewart should not have been permitted to give evidence without waiving legal professional privilege so as to allow the defence to see his solicitors’ files. It is submitted that that material was of potential importance for a number of issues, notably: (i) the reason for Stewart changing his account just before the SOCPA agreement so as to implicate Daniels in the events leading to the murder; (ii) what led Stewart to embellish, in a manner adverse to Davies, his account of Davies’s reaction to the information that Martin had cut the deceased’s ear; (iii) the circumstances in which Stewart came to exchange draft proofs of evidence with Dacosta Daniel in prison and to suggest changes to Dacosta’s own proof; and (iv) the wider circumstances of Stewart’s entry into the SOCPA agreement and his change of plea to one of guilty to manslaughter. Given the dangers inherent in evidence of the kind given by Stewart against his co-defendants (cf.
Benedetto v The Queen
[2003] 1 WLR 1545
), the prosecution bore a heavy burden to investigate his account exhaustively as to its reliability, and those investigations should have included full analysis of the solicitors’ files on those matters.
47.
The argument put to Langstaff J that Stewart had waived legal professional privilege by entry into the SOCPA agreement or disclosure of his draft proof of evidence was, very sensibly, not pursued before us. It was, however, submitted to us, though it had not been put that way to the judge, that the prosecution could and should have required Stewart to waive privilege and that in the absence of a waiver and an investigation of the solicitors’ files it was an abuse and unfair for Stewart to give evidence.
48.
In his submissions on behalf of Daniels, Davies and Neale, Mr Kelson QC placed a great deal of weight on the ruling given by Owen J on 7 December 2009 on a defence application for prosecution disclosure in
R v George and Others
. In his contention that ruling, which was made after the trial of the present appellants, could be transposed to this case and should lead to the conclusion that every defendant who enters into a SOCPA agreement can be required to waive privilege and that the prosecution cannot rely on his evidence if he refuses to do so. We examine Owen J’s ruling in the next section of this judgment.
49.
Mr Goldrein QC, who represented Martin on the appeal but did not appear below, put the focus of his submissions on the obligations in Stewart’s SOCPA agreement. The existence of the SOCPA process may be the result of pragmatism (see
R v Blackburn
, para 22), but there is no room for pragmatism in the operation of that process. Unlike the former “text” regime, which still exists as an alternative, the SOCPA regime is much more formalised (see
R v Blackburn
, para 27, and the observations in
R v H
[2010] 2 Cr App R (S) 18, para 3). The formalised process means that strict compliance is required. The defendant is bound by contract to make complete disclosure and is in breach of contract if he fails to do so. If a defendant is to be “cleansed” by the process, he can have nothing to lose by waiving privilege; and if a waiver is not volunteered, the inference must be that there is something to hide. For that reason some authorities are including a provision in their SOCPA agreements requiring the defendant to waive privilege. In this case the prosecution called a witness, Stewart, whom they could not put forward as totally reliable, yet they had contracted with him that he would tell the whole truth. The SOCPA agreement does not allow the prosecution to call someone whose evidence is known or believed to be contaminated by lies.
50.
We should emphasise that the case advanced before us relates only to the question whether the trial should have been allowed to proceed at all on the basis of Stewart’s evidence. No complaint is made about the way in which the judge dealt in his summing-up with that evidence once it was given, either as regards his summary of the evidence itself or as regards his directions to the jury about the approach they should adopt in assessing Stewart’s reliability.
The ruling in R v George
51.
R v George & Others
was a prosecution brought by the Office of Fair Trading (“the OFT”) against executives of British Airways (“BA”) for alleged participation in a price-fixing arrangement with Virgin Atlantic Airways (“VAA”). Owen J’s ruling of 7 December 2009 was made on a pre-trial application by one of the defendants for disclosure by the prosecution. The material in question was in the possession of third parties. The judge proceeded on the basis that where there were reasonable grounds to suspect that a third party had material or information that might be disclosable if in the possession of the OFT, the OFT was under a duty to take reasonable steps to obtain it.
52.
The disclosure sought included material relating to three VAA executives who had been granted immunity from prosecution and were prosecution witnesses. Legal professional privilege had been claimed in respect of such material. The relevance of the material can be seen from this passage of the ruling (para 21):
“So far as the first category is concerned, the defence seek disclosure not only of all previous accounts of the relevant events given by the three VAA witnesses, but any record of the context in which such accounts were given, i.e. the questions put to or comments made to them in the course of giving their accounts. It is submitted on behalf of Mr George that in the light of the disclosure that has now been given, it can be seen that each of them give accounts that develop significantly and change over time. Moreover none of the witnesses, either in their first or subsequent more detailed accounts suggested that they were guilty of the cartel offence, yet subsequently admitted their guilt when required to do so by the OFT. [Counsel for Mr George] also relies upon the fact that the statements made by them to lawyers acting for VAA are inconsistent with the statements served by the OFT. She submits that it is therefore reasonable to infer that the witnesses were put under pressure either to give statements and/or to tailor their evidence to safeguard their own position and/or to protect the perceived interests of VAA. It is submitted that the material in relation to which disclosure is now sought is likely to support the proposition that such witnesses were subject to inducement or pressure, and that that could have the most serious effect upon their reliability or credibility. I accept that it is possible that such material could have that effect, and I have no doubt that if in the possession of the OFT, it would be disclosable.”
53.
Owen J considered it far from clear that legal professional privilege had been properly claimed in relation to the VAA witnesses. He also held, however, that the OFT ought to press for a waiver of the privilege if it existed. In reaching that conclusion he took into account an OFT guidance note concerning the obligations assumed by those who benefit from immunity or leniency. The note included the following:
“8.1 The requirement to maintain continuous and complete co-operation throughout the OFT’s investigation and any subsequent proceedings is at the heart of the leniency process and is a stated requirement in both the OFT’s penalty and no-action guidance. Clearly the requirement necessitates compliance with the rules and principles set out in those guidance documents and also in this guidance note ….
…
8.26 It is important that a careful note is made of all actions taken as part of an internal investigation, and that those are retained until the conclusion of any proceedings. There may be circumstances where the OFT will need to rebut arguments that an internal investigation has compromised the integrity of the OFT’s case, and clear contemporaneous notes detailing each step in such an investigation will be invaluable.
8.27 The importance of note-taking and the retention of notes is particularly acute when it involves the conduct of interviews with witnesses ….
…
8.29 It is accepted that the undertaking may contend that legal professional privilege will attach to both of the types of notes referred to in paragraphs 8.26 and 8.27 above. However, there may be circumstances where the OFT is advised by counsel that disclosure to the OFT and to others is
necessary
to enable a case to proceed and in those circumstances the OFT will expect an undertaking or individual to waive any applicable privilege to the extent that the OFT is advised that it is necessary ….”
54.
The judge said that the question was whether it would be reasonable for the OFT to press for disclosure of the material, notwithstanding the claim to legal professional privilege, on the basis that both the airlines and the VAA witnesses were under the duty to give continuous and complete co-operation as a condition of leniency/immunity and, failing a satisfactory response, to invoke its power to revoke the leniency agreements and no-action letters. He stated (at para 32):
“In my judgment the OFT ought reasonably to take such steps. I arrive at that conclusion for a number of reasons. First I have borne in mind the overriding obligation on the OFT as the prosecuting authority to deal fairly with the defence. Secondly I take account of the duty on the airlines and VAA witnesses to give continuous and complete co-operation, and of the fact that the airlines are required to grant the OFT access to all relevant documentary material as a condition of the leniency agreements. Thirdly I take account of the nature of the material sought, and of the fact that it may shed light upon an issue likely to be of considerable importance at trial, namely whether the VAA witnesses were subject to pressure or inducement with regard to the changes in their account of the events in question. Fourthly I bear in mind that waiver would not result in any unlimited loss of the applicable privilege since any waiver would be for the purposes only of the criminal trial. If a request for waiver is made, it may be that the airlines, and more importantly the VAA witnesses, will respond favourably, bearing in mind that if they do not do so, they will face the risk that immunity/leniency will be withdrawn.”
The conviction appeals: discussion
55.
We do not accept that Stewart’s evidence was wrongly admitted at the trial. It was not an abuse of process for the prosecution to adduce it, nor did it have an adverse effect on the fairness of proceedings so as to call for exclusion of the evidence under s.78 of
PACE
.
56.
There can be no objection of principle to the admission of evidence given by a defendant who has entered into a SOCPA agreement. As Langstaff J observed in his ruling, it is implicit in the statutory framework that the fact that a witness has done a SOCPA deal will not in itself be an objection to the admissibility of that witness’s evidence; but in any event the position in this respect is no different from that which applies to a defendant who co-operates with the authorities under the procedures that have existed at common law since long before the enactment of SOCPA (to which reference is made in para 22 of
R v Blackburn
, cited above). The dangers inherent in a witness giving evidence against accomplices in such circumstances are of course well recognised. They are met, however, by ensuring that the jury are given a proper warning of those dangers and of the need to take them into account in their assessment of the evidence, as was done by the judge’s directions to the jury in this case. They do not generally mean that the evidence should be excluded altogether, even where it is of central importance as it was here. Similar considerations apply to the contention that the evidence of a defendant who has entered into a SOCPA agreement should be excluded because the agreement and the statutory framework “compel” him to see his account through to the bitter end for fear of losing the benefit of the agreement. That, again, may be relevant to the assessment of the evidence but is not a reason why the evidence should not be admitted at all.
57.
There is nothing in the particular circumstances of the present case to warrant the conclusion that Stewart’s evidence should nonetheless have been excluded. The prosecution’s decision to accept his plea of guilty to manslaughter even though it was neither supported by Stewart’s own account nor consistent with the way the Crown advanced its case of murder was described as a pragmatic one and, like the judge, we find it difficult to see a coherent legal basis for the plea. There is, however, plainly room for pragmatism under the SOCPA regime as in relation to the corresponding processes at common law. It may well be that, in return for giving evidence against his co-defendants, Stewart got off very lightly. Indeed, in sentencing him the judge observed: “You are lucky, in my view, not to have been convicted of murder, and for that you have the fact that you entered into the agreement you did with the Prosecution to thank”. Such a possibility is inherent in the SOCPA regime. It does not provide a good reason for excluding the evidence, though it does reinforce the need to ensure that the jury are properly directed on how to approach the evidence.
58.
If the prosecution considered core features of Stewart’s evidence against his co-defendants to be capable of belief, it was entitled to put Stewart forward as a witness even if he was not considered to be telling the whole truth about his own involvement. The judge rightly relied on
R v Cairns
[2003] 1 Cr App R 38
to that effect. The position is not altered by the fact that Stewart’s SOCPA agreement required him fully to admit his involvement and to give truthful evidence but there was reason to believe that he was not making a full admission or giving truthful evidence as to the extent of his own involvement. Any such failure to fulfil the terms of his agreement exposed him to the risk that he would lose the benefit of the agreement and to proper attack upon his credibility in cross-examination by the defence. It did not, however, make it an abuse or unfair for the prosecution to put him forward as a witness.
59.
Although a great deal was made at trial, as in the submissions to us, about the circumstances in which the SOCPA agreement came to be made, we see nothing in those circumstances that made it an abuse or unfair for the prosecution to rely on Stewart’s evidence as it did. It is true that Stewart’s first mention of Daniels was made at a very late stage, just before the agreement was entered into. It is also true that in his evidential interviews he added to what he had said previously about Davies’ reaction to Martin cutting the ear of the deceased (“Darren’s a game lad”). There was, however, no evidence that he had been pressured or induced by the police to change his account in either respect or had been encouraged to lie in the account he gave. The evidence about his conversations with the police over the relevant period, including the absence of a tape record of them, was before the jury for them to assess. That, rather than the exclusion of his evidence, was the correct way for the matter to be dealt with.
60.
On the issue of legal professional privilege, one of the difficulties facing the appellants is that the arguments were advanced before the judge in a less developed way than before us and do not appear to have been pursued to a conclusion. Unlike in
R v George
, there was no application for prosecution disclosure that would have required the prosecution to obtain documents in the possession of the witness’s solicitors and if necessary to procure a waiver of privilege for the purpose. It seems that there was no actual application of any kind. Nevertheless we think it right to address the issues that have been raised on the appeal.
61.
The fundamental importance of legal professional privilege in the context of disclosure in criminal proceedings was affirmed by the House of Lords in
R v Derby Magistrates’ Court, ex parte B
[1996] 1 Cr App R 385
; and see, more recently,
R (Kelly) v Warley Magistrates’ Court
[2008] 1 Cr App R 14
, para 25, and
R v Seaton
[2010] EWCA Crim 1980
. Mr Bayliss QC, resisting the present appeals, submitted that it is so fundamental that, in the absence of express provision to that effect, SOCPA is not to be read as authorising the imposition of a requirement that a defendant waive privilege as a condition of a SOCPA agreement, and/or the terms of Stewart’s SOCPA agreement are not to be read as imposing such a requirement: they should not be so read in the absence of express provision or necessary implication to that effect.
62.
We are inclined to the view that it is open to a prosecutor to include in a SOCPA agreement an express condition as to waiver of privilege if it is considered that such a waiver is or may be necessary for the purpose of obtaining the defendant’s full assistance. But we heard only limited argument on the issue and we do not need to decide it for the proper disposal of the present appeals.
63.
Assuming that a requirement to waive privilege can lawfully be included in a SOCPA agreement, we doubt whether the terms of Stewart’s actual SOCPA agreement are sufficient to enable the prosecution to require him to waive privilege. The language is certainly very wide, with obligations such as to provide “all known … documents” and to “maintain continuous and complete co-operation”, but in our view one should be slow to read such general language as imposing an obligation to waive privilege or to provide documents that are the subject of privilege. If a requirement to waive privilege is to be imposed, we would expect it to be spelled out in clear, specific terms. We acknowledge that in
R v George
Owen J took the view that the OFT could rely for that purpose on the obligation under the immunity/leniency agreements to give continuous and complete co-operation and to grant access to all relevant documentary material, and that the scheme under consideration in that case had many similarities to the SOCPA regime. On the other hand, the OFT guidance contained an express indication that a waiver of privilege might be called for, and the agreements in question might fall to be read in the light of that guidance. There are other possible points of distinction between the cases. Accordingly, the reasoning in
R v George
cannot necessarily be transposed to the present context. Again, however, we do not need to reach a decision on the point.
64.
It is sufficient for present purposes that even if the prosecution had the power in this case to require Stewart to waive privilege in the material in his solicitors’ files and thus the power to obtain that material, there was no application that the prosecution should follow that course; it did not fail in its duties of investigation and disclosure by not following that course of its own initiative; and such a failure could not be said in any event to have been of such seriousness as to make it an abuse or unfair to rely on Stewart’s evidence. The material simply did not have the potential importance claimed for it. The suggestion that it might have contained something capable of undermining Stewart’s credibility or unreliability is pure speculation. As it was, the nature of the SOCPA agreement and what it meant for Stewart were squarely before the jury. The changes in his account over time and in particular just before and just after entering into the agreement were likewise before the jury, as were his explanations for them, the evidence of the police as to the conversations that took place and the fact that, exceptionally, those conversations had not been tape-recorded. The jury also had Stewart’s letter to Dacosta Daniel asking for changes to Dacosta’s proof of evidence, and Stewart’s explanation for that letter. There is no reason to believe that the solicitors’ files contained anything capable of adding materially to the very full picture already before the jury on those issues.
65.
Further, although cross-examination of Stewart and comment on his evidence were limited to some extent by the need to avoid intruding upon the privilege, we have been shown nothing to suggest that this was a serious limitation in the overall context of the case.
66.
Taking everything together, the arguments concerning legal professional privilege appear to us to lack cogency in the factual circumstances of this case even if the requisite powers to require a waiver of privilege and to obtain privileged material are assumed to exist.
The conviction appeals: conclusion
67.
In conclusion, we are satisfied that Langstaff J’s ruling on the issues of abuse of process and exclusion of evidence under s.78 of
PACE
was correct and that Stewart’s evidence was properly admitted at the trial of the appellants. We are also satisfied that it was not an abuse or unfair for Stewart’s evidence to be given without waiver of legal professional privilege and disclosure of the material in his solicitors’ files. The matters advanced on behalf of the appellants have not caused us to doubt in any way the safety of their convictions. All the appeals against conviction are therefore dismissed.
Davies’s appeal against sentence
68.
That makes it necessary for us to consider Davies’s appeal against the minimum term of 35 years specified by the judge in respect of the offence of murder.
69.
In setting that minimum term, the judge took a starting point of 30 years, on the basis that, as a murder committed in the course of a robbery, this was an offence of particularly high seriousness. He considered there to be a number of aggravating features which justified an increase over the 30 year starting point: a significant element of pre-planning of the robbery, that it was a group attack, the fact that the victim was vulnerable, the use of an imitation firearm, and the persistence of the assaults committed on the deceased throughout the evening until he succumbed, without any attempt to seek assistance for him although he was known to be seriously injured. He had previously also referred to the attack on Gary Folkard (the man who called at the victim’s house at the time of the robbery) as an aggravating factor. The judge accepted that the defendants did not intend to kill the deceased, but he said that that mitigating feature was balanced by the fact that the intent was to use whatever violent means were necessary to extract the whereabouts of the money and cash, and it was an intent to cause considerable suffering.
70.
Davies had a substantial criminal record, mainly for drugs offences and acquisitive offending. His first convictions were in 1998, for possession of cannabis and amphetamine. Other convictions included numerous offences of theft and obtaining by deception in 2001 and an offence of handling stolen goods in 2004. In October 2008 he was sentenced to a total of 6 years’ imprisonment for offences relating to the supply of class A and class C drugs. The judge noted that Davies’s record was not one of violence but that he had been heavily involved in drugs. Davies still had over a year to serve of the 6 year sentence imposed in October 2008. The judge considered that he should reflect the outstanding period in the minimum term for the murder.
71.
The judge went on to refer to evidence called in the case which demonstrated that on a number of occasions around the time of the murder Davies used violence as an ancillary to his drugs trade. He had no doubt that Davies was someone who had taken pleasure in his physical strength and in violence. Further, Davies occupied a central role in the present offences, foresaw that serious bodily harm might occur within the house and knew that it was happening thereafter.
72.
Having gone through those various matters, the judge concluded as follows:
“Starting at 30 years, the aggravating features I have already identified put that figure up to 33 to 34 years given your organising role. I make allowance for the fact that you did not yourself wield a weapon within … the home of the victim. Having taken account of the fact that you are currently serving a sentence with a year and some months to run, it seems to me that the appropriate minimum terms that you must serve before you are even considered for release is one of 35 years.”
73.
It is submitted on Davies’s behalf that, while the 30 year starting point was not inappropriate, the minimum term of 35 years was manifestly excessive. The aggravating factors relied on by the judge were factors that had already been accounted for in the starting point of 30 years, and in using them to increase the figure from that point he was double-counting. The judge was also wrong to describe the victim as vulnerable and to treat the attack on Gary Folkard as an aggravating factor. The only fair conclusion from the evidence and the jury’s verdicts in respect of the various co-defendants is that Davies did not have within his contemplation the very serious violence that was inflicted during the attack inside the deceased’s house; and the fact that he was not directly involved in the initial attack is a relevant factor, although the jury’s verdict must mean that his involvement in the treatment of the deceased after he had been removed from the house was such as to make him guilty of murder. In those circumstances a longer minimum term than given to those who inflicted the fatal injuries and carried out the torture inside the house cannot be justified. Finally, the judge failed to give adequate weight to the lack of an intention to kill in this case.
74.
In assessing those submissions, it is highly material to note that the co-defendant Cameron was refused leave to appeal against his minimum term of 33 years, the court taking the view that a minimum term in excess of the 30 year starting point was inevitable and that a term of 33 years could not be said to be manifestly excessive: see
[2010] EWCA Crim 1282
.
75.
The judge, having presided over the two trials and heard all the evidence in the case, was in an excellent position to form a view on the relevant aggravating and mitigating factors, Davies’s organisational role, the degree of violence contemplated by him and other matters relevant to culpability. We see no error in the matters that he took into account or in the conclusion he reached. Bearing in mind what the court said on Cameron’s application and the particular features of Davies’s case, including the period remaining to be served of his existing sentence, we take the view that it was open to the judge to specify a minimum term of 35 years. The sentence was not manifestly excessive.
76.
Davies’s appeal against sentence is therefore dismissed.