Case No:
2003/04573
Neutral Citation Number:
[2005] EWCA Crim 1089
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE LINCOLN CROWN COURT
(The Honourable Mr Justice Astill)
Case No 2003/04573
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 4
th
May 2005
Before :
LORD JUSTICE LAWS
DAME HEATHER STEEL
and
HIS HONOUR JUDGE MARTIN STEPHENS QC
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Between :
Edward Grant
Appellant
- and -
Regina
Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr Edward Rees QC and Ms Rebecca Trowler
(instructed by
Fraser Wise
) for the
Appellant
Mr Anthony Barker QC and Mr Stephen Lowne
(instructed by
Crown Prosecution Service
) for the
Respondent
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Judgment
LORD JUSTICE LAWS:
INTRODUCTORY
1.
On 25 June 2003 before Astill J at the Lincoln Crown Court, following a trial which had commenced on 6 May 2003, this appellant was convicted by the jury of an offence of conspiracy to murder. On 27 June 2003 he was sentenced to 18 years imprisonment. The conspiracy was charged in count 1 of the amended indictment. The particulars were that the appellant had conspired with two others, Chand and Sond, and with persons unknown, to murder a man called Ian Dowling. There was an alternative charge framed in count 2 of the indictment, of conspiracy to cause grievous bodily harm. No verdict on count 2 was taken in the appellant’s case given his conviction on count 1. Chand and Sond stood their trial alongside the appellant. They were acquitted by the jury on both counts.
2.
The appellant now appeals against his conviction. He has put forward five grounds. The learned single judge gave leave only on grounds 1-3. Before us on 24 February 2005 the appellant sought to review his application for leave on grounds 4 and 5. At the outset of the hearing we granted the leave sought. We shall explain the content of the grounds in due course.
FACTS: OUTLINE
3.
The prosecution case in barest outline was as follows. The victim, Ian Dowling, was the appellant’s wife’s lover. She had left the matrimonial home in October 2000, taking the three children of the family with her. She rented a house in Sidney Street, Grantham, and Mr Dowling moved in with her. In the evening of 15 March 2001 Mr Dowling answered a knock at the door. He was confronted by an unknown gunman who shot him in the chest and thigh. He was pronounced dead later that night. The Crown’s case was that, full of bitterness at the break-up of his marriage, the appellant had recruited Sond and Chand to murder Dowling. He had been introduced to them by associates at his work. A pattern of phone calls between the defendants, and notes recovered from their property, were relied on to show contact between them and the existence of a plan to harm Dowling. The defendants were all said to have told lies in interview after their arrest.
4.
The appellant’s case was that there had indeed been a conspiracy in early 2001 to assault Dowling; but he, the appellant, had called it off in February 2001. The appellant suggested that Dowling might have been killed by criminal contacts of his own in Grantham, possibly over drugs. As was admitted by the Crown, Dowling had connections with known criminals, including drug dealers. Sond gave evidence that he and Chand had been party to a plan to beat up Dowling on the appellant’s behalf, but it had indeed been called off in February 2001. Chand did not give evidence. We shall have more to say about the conduct of the cases for Sond and Chand in dealing with the fourth and fifth grounds of appeal.
THE FIRST THREE GROUNDS: OUTLINE
5.
Before the proceedings in front of the jury commenced, a
voir dire
was conducted in which evidence was called in the context of an application made on behalf of the defendants for an order to stay the proceedings as an abuse of process. The
voir dire
lasted nearly three weeks. The case put forward for the appellant, then and now, is that the police had deliberately eavesdropped upon and tape recorded privileged conversations between the appellant and his solicitor which took place in the exercise yard at Sleaford police station, following the appellant’s arrest and in parallel with the interview process. At the very least it is said that the police knew that solicitor/client communications might be picked up, and they were. On 23 May 2003 Astill J dismissed the abuse applications, giving very full and detailed reasons. The first three grounds of appeal, which as we have said the single judge gave leave to argue, in one way or another complain of that ruling. In fact Mr Rees QC for the appellant did not press the second ground as having any independent force, and we need say no more about it.
“WHEEL”, “MINK” AND “GALAXY”: OUTLINE
6.
This case is in fact one of three in which the Lincolnshire police placed covert listening devices in the exercise yard of Sleaford police station. They did so in the course of three major investigations between November 2000 and November 2001. The first in time was Operation Wheel (connected with the criminal prosecution in the case of
R v Sutherland
), then Operation Mink (this case) and finally Operation Galaxy (
R v Sentence
). In Operation Wheel covert devices were also installed at Grantham police station. In each case privileged communications between the detained suspects, later to become the defendants, and their legal advisers were intercepted and recorded. In each case there was an application to the trial judge to stay the proceedings as abusive. In
Sutherland
, Newman J at the Nottingham Crown Court acceded to the abuse application in a very detailed ruling on 29 January 2002. That of course took place before the ruling of Astill J in these proceedings on 23 May 2003. In
Sentence
, His Honour Judge Heath at the Lincoln Crown Court also acceded to the abuse application made to him and again gave a very fully reasoned decision, on 1 April 2004. Newman J and His Honour Judge Heath, after hearing live evidence called on a
voir dire
just as was led before Astill J in the present case, each concluded that the covert devices had been placed with the deliberate intention of capturing communications between the detained persons and their solicitors. Astill J held to the contrary effect in relation to Operation Mink in the present case, and that conclusion is the subject of complaint in ground 1. Moreover Newman J appears to have been of the view
transcript of Newman J’s ruling 40E-47A, especially 41F.
, and His Honour Judge Heath was certainly of the view
ruling of HHJ Heath 66E-G.
, that it was not necessary to prove any prejudice as such to the defendant in order to conclude that the proceedings were tainted by misconduct constituted by a deliberate eavesdropping upon privileged communications, and in consequence should be stopped as abusive. Again, Astill J in the present case was of a contrary opinion
transcript of the ruling of Astill J: 45F-47A.
. That conclusion is the subject of the complaint in ground 3 of the grounds of appeal.
7.
On any view there was much in common between the three investigations, Wheel, Mink and Galaxy. In each the purpose of the covert listening device was stated to be the capture of communications between suspects held in the police station. But in each operation privileged communications between solicitors and their clients taking place in the exercise yard were in fact picked up and recorded by police. In each of the three cases the police asserted that this happened inadvertently. The conversations were listened to by police officers, called “first-hand listeners”, who made contemporaneous logs. The tapes were subsequently listened to by “secondary listeners” who transcribed the material more fully.
8.
An officer called DS Bennett was what was called “interview adviser” in all three operations. In February 2001 he was also appointed disclosure officer in Wheel. As we shall show the evidence about his activities has been at the centre of the submissions made by Mr Rees on behalf of the appellant.
9.
It is will be necessary to consider, in a number of respects, the potential impact of the rulings both of Newman J and HHJ Heath upon some of the issues in this appeal. First, we shall set out the facts of the covert surveillance operation at Sleaford police station in the context of Operation Mink, relating to this case. There are however two matters relating to Operation Wheel which it is convenient to describe by way of preamble.
TWO PRELIMINARIES
10.
The senior investigating officer (“SIO”) in Wheel was DCI White. He would perform the same role in Galaxy. During the course of the transcription of the covert recordings in Wheel, one of the secondary listeners informed DCI White that the recordings included at least one conversation between solicitor and client. Thereafter eight tapes from Grantham, and six tapes from Sleaford, were marked or annotated by secondary listeners as follows:
“On the instructions of the SIO this tape is not considered appropriate for transcription. No secondary listening and/or transcription has been completed on this tape, as it would appear that it may contain inadvertent recording of matter subject to legal privilege.”
These 14 tapes amounted to just over 20% of the 74 tapes on which recordings were made in Operation Wheel.
11.
The second preliminary matter arising in Wheel concerns a confidential report prepared by DS Bennett for DCI White, after Bennett’s appointment as disclosure officer in February 2001. At the time he prepared the report, Bennett was aware of the “inadvertent” recording referred to in the annotation to the 14 tapes. This is how the report opens:
“The purpose of this document is to provide a guide to the surveillance techniques utilised during the investigation of the murder of Mark Anthony Corley. As the document contains references to the authorities and techniques employed, as well as the product of the surveillance, it should not be disclosed to the defence.”
There follows a list of places and times at which covert devices had been authorised, installed, and recovered. The list includes Grantham and Sleaford police stations. Then this follows:
“Due to the costly and time intensive nature of the work, listening was only carried out on limited occasions whilst authorities were in place at each premises. No recording took place when active listening was not being conducted. This means that the product of the surveillance gives only a limited extract of the conversations the subjects of the surveillance actually had.”
Later in the document, under the heading “Content of Transcripts”:
“Each of the recordings was listened to in full, and transcripts were completed in line with the SIO’s policy (see item 37 at Appendix A).
…
The recordings were also examined for matters that might assist the prosecution or undermine it. This was done within the terms of a written policy that may be found at Appendix B.
…
Whilst the recorded conversations may expose the character and criminality of the conspirators, there is nothing that specifically assists or undermines the prosecution case.”
We need not read Appendix B. The policy referred to at item 37 of Appendix A has nothing to do with the SIO’s “instructions” mentioned in the annotations to the 14 tapes. There is no reference anywhere in the report to the fact that speech between solicitor and client had been taped.
OPERATION MINK
12.
Now we may turn to Operation Mink itself. As we have foreshadowed some of Astill J’s conclusions of fact, notably as to the intention with which the operation was put in place, are disputed on behalf of the appellant. We shall have to confront that. We intend what immediately follows to be an account of the uncontentious facts.
13.
DCS Cook was the SIO in Operation Mink. His deputy was DCI Wood. Mr Rees submitted, correctly so far as we can see (and we shall have more to say about this), that no witness giving evidence on the
voir dire
before Astill J accepted responsibility for the initial proposal to bug the exercise yard at Sleaford in the context of Operation Mink. The nearest we get to its beginnings is an obscure reference in Bennett’s notebook for 15 May 2001 where the words “Clerical – Op. Mink” appear. The next day, 16 May, a note was made by DCS Cook on a form with two boxes. The first is headed “POLICY”. DCS Cook wrote:
“Preparations will be made to facilitate audio surveillance of the suspects in custody during the assest [
sic
] operation.”
Then in the box headed “REASON”:
“To monitor conversations between suspects that may connect them to this offence. It is considered that this action should cause minimum interference with the privacy and rights of individuals. It is necessary justifiable and lawful. It is also proportionate to the investigation.”
The note reflected the outcome of a management meeting attended by senior officers on that day, 16 May. It was decided that covert surveillance equipment should be installed in the cell passage area and the exercise yard at Sleaford police station, where the Operation Mink suspects (including the appellant) would be taken after their arrest, and where no other prisoners would be held. DI Bourne was one of two team leaders in the investigation into Dowling’s murder and was present at the meeting. The other was DI Bradwell. DI Bourne was to give evidence on the
voir dire
that he was “tasked” to enquire into the feasibility of putting in place a covert operation of the kind contemplated.
14.
On the same day, 16 May, DI Bourne had a meeting with Mr John Cooper, an operational video technician employed by the Lincolnshire police. He said that he asked Mr Cooper whether the cell area (but not the yard) could be bugged. He said that he did not know that the yard had been bugged in Operation Wheel; no one had mentioned that at the management meeting. Mr Cooper’s evidence was very different. In a statement of 15 February 2002, whose accuracy he confirmed in the witness box, he said:
“This request included the installation of covert audio equipment to be installed in the cell passageway and the exercise yard of Sleaford police station custody area.
I was instructed that this was to be the same as a previous operation and that the audio was to be able to record conversations that took place between prisoners in separate cells or prisoners in the exercise yard.
My understanding of this is that the devices would pick up audio that would be heard if a person were to be standing in the cell passage or outside the cell exercise yard.”
Giving evidence on the
voir dire
, Mr Cooper said that DI Bourne knew that this had been done before and that he, Mr Cooper, was being asked to repeat it. DI Bourne denied saying any such thing.
15.
We are not at this stage seeking to resolve the factual disputes in the case. We will confront that exercise later. It is enough for the present to notice Astill J’s observation
transcript 34D.
that Mr Cooper was “patently an honest witness”; and there is no suggestion in his judgment, far less any finding, that Mr Cooper’s recollection of his meeting with DI Bourne was or may have been mistaken.
16.
Under the provisions of the Regulation Investigatory Powers Act 2000 (“
RIPA
”), the approval of a senior officer was required for the use of listening devices in such circumstances as were contemplated at the management meeting on 16 May. The appropriate officer in this case was Superintendent Tapley. Application for approval in this case was made to him, and granted, on 7 June 2001. In fact the devices had been installed by Mr Cooper the day before, on 6 June. There is nothing sinister in that; as we shall show they were not activated until 12 June.
17.
The application to Supt Tapley was made through the medium of a detailed standard form. DI Bradwell was “tasked” to deal with it. After the management meeting he asked DC Bushell to complete the application as the “applicant”. DC Bushell in turn sought advice on the form of the application from DC Christer of the Covert Operations Department. The contents of the completed form placed before Supt Tapley on 7 June 2001 are of some importance. Supt Tapley was to say that he relied entirely on the accuracy of what was asserted, without giving it any independent consideration. The form included these passages:
“This application is made to monitor and record those conversations that take place within the cell passage area and exercise yard of Sleaford police station whilst the suspects are in custody.
…
The use of covert audio listening devices is essential to record those conversations that take place within the cell area and exercise yard between the subjects. It is strongly suspected that the subjects will not impart the full details of their respective involvement during any interviews.”
Then in a box on the form dealing with “collateral intrusion”:
“Collateral intrusion has been considered in respect of Eddy Grant, Parminder Singh Gill, Ram Chand and Parmjit Singh Khaktar, whilst they are in custody. The level of intrusion will be restricted to monitoring and recording those conversations that take place between subjects in different cells.
The equipment deployed will not monitor activities or conversations taking place within individual cells. This would ensure that conversations between the subjects and any other persons within their cell would not be monitored or recorded.
Collateral intrusion has also been considered in respect of other persons who may be present within the cells or exercise yard whilst the subjects are in custody. The level of intrusion against such individuals is considered justifiable and proportionate. It is also suspected that the subjects of this application are unlikely to communicate in depth with any other person in custody at the same time.”
18.
On 12 June 2001 the appellant and Chand, together with two other suspects Gill and Khaktar, were arrested and taken to Sleaford police station. At 8.15 am the same day the covert listening devices, in the cell passage area and the exercise yard, were activated.
19.
At 9.35 am on 12 June 2001 the appellant and his solicitor Mr Fraser went to the exercise yard. They were unaccompanied. This was before the appellant was formally interviewed by the police. The interview procedure in his case commenced at 10.27 am that day. At 11.19 am the appellant and his solicitor (Miss Fraser, who had taken over from her father) again went into the yard again unaccompanied, and again at 12.23. At some stage about this time another suspect, the man Khaktar, was also in the yard with his solicitor. His interviews began at 17.14 that day. At 22.15 the listening equipment was switched off. It was turned on again at 8.15 am the next day, 13 June. For some period during the morning Mr Khaktar was in the yard with his solicitor. At 13.26 the appellant was taken from his cell for a meeting with his solicitor, but it is not known where that meeting took place. At 15.55 Khaktar went to the yard for a cigarette with his solicitor, but a policeman was present throughout. Covert listening was stopped on the afternoon of 13 June 2001 and never resumed, although interviews of the appellants and Chand continued on 13, 14 and 15 June 2001. As we have said, conversations between the appellant and his solicitor had been recorded. No material of any evidential value was picked up.
20.
There are a number of circumstances relating to the use of covert devices in Mink at Sleaford police station which we should describe before leaving this account of the primary facts. Mr Rees submits that these matters go in support of his contention that the device in the yard must have been installed with a view to picking up privileged communications between client and solicitor. First, there was clear evidence that no more than one prisoner at a time was allowed to use the yard, and a single prisoner doing so had to be supervised by a member of the custody staff. Secondly, conversations between the yard and the cell area could be picked up by a single device placed in the cell corridor. Thirdly, there was a ban on smoking inside the buildings at all Lincolnshire police stations; however custody officers regularly allowed detainees to take unsupervised smoking breaks with their solicitors in the exercise yards (notwithstanding the fact that there were documented instructions to the effect that solicitors and prisoners should not be allowed into the yard unaccompanied). Fourthly, listening officers were able to use what was called a “splitter” device, installed by Mr Cooper, so as to listen exclusively to what was picked up by the microphone in the exercise yard. There was a facility to raise the volume of what was being heard. Lastly, it was Mr Cooper’s understanding of his instructions that the purpose of the device in the yard was to pick up shouted exchanges between the yard and the cells; however, later tests conducted by him (in the course, we understand, of an investigation by the Independent Police Complaints Commission) showed that shouting between the yard and the cells could be clearly heard by means of the cell corridor microphones.
THE JUDGMENT OF NEWMAN J IN OPERATION WHEEL
21.
Newman J’s judgment in Wheel was before Astill J, who referred to it in his own judgment in Mink. Mr Rees’ assault on Astill J’s decision can best be understood after considering Newman J’s conclusions, and also those of HHJ Heath in Galaxy which of course were arrived at after Astill J had delivered judgment. Astill J was, obviously, not bound by the decision of Newman J upon any issue which was parallel or related to a question before him; and HHJ Heath’s conclusions were yet to come. But counsel were agreed, and common sense dictates, that the force of the appellant’s submission that there was an abuse of the process in Mink as surely as there was in Wheel and in Galaxy, and that it is open to this court so to hold notwithstanding Astill J’s decision (after hearing much live evidence) to the contrary, should be judged in light of the whole pattern of events across the three operations. That the court may consider findings made by another judge who has adjudicated upon similar issues is vouchsafed by authority
R v D & J
[1996] 1 CAR 455; see also
R v Twitchell
(CACD 26 October 1999),
R v B
(CACD 5 November 1999).
, if authority were necessary. And there is no difficulty in our admitting Judge Heath’s judgment pursuant to
s.23 of the Criminal Appeal Act 1968
, which we need not set out.
22.
The application in Wheel for permission to install covert listening devices at Sleaford police station, made pursuant to the requirements of
RIPA
, did not name the exercise yard as an intended location for such a device. Yet one was installed there. The cancellation form, for the cessation of surveillance, did however refer to the yard. In Mink, as we have shown, the exercise yard was named in the application. Astill J
transcript, 8B. We shall have more to say about this passage from Astill J’s judgment.
regarded the fact that “authorisation was properly obtained in Mink for the exercise yard” as a “principal difference” between Wheel and Mink.
23.
Now, there is no doubt that Newman J attached some importance to the terms of the
RIPA
application and the cancellation form. As he recorded, DCI White gave unsatisfactory evidence about it
transcript, 14B-D.
. But his conclusion did not, as we read his judgment, critically depend on those matters. We draw attention to these following passages:
“The avowed purpose of the operation was to listen to conversations between detainees. The concept of intercepting conversations between detainees in the exercise yard was, if it ever featured, wholly undermined by the evidence as to the policy at the police stations, that unless escorted by a police officer no two prisoners would be in the yard at the same time. Thus, on analysis, the only possibility of attracting a prisoner’s conversation was where the prisoner was in the exercise yard, shouting from the exercise yard to another prisoner in the cells, and that prisoner in the cells was responding to what was being shouted to him from the exercise yard.”
transcript 20C-D.
“I place particular reliance upon Mr Atherton [a police sergeant with knowledge of Grantham and Sleaford police stations] in the whole of this part of the case, but [
sic
: ‘and’ must be intended] there was no need for a device in the exercise yard to pick up conversations between prisoners in their respective cells. That was the purpose of the microphone in the communal passageway in which the cells are situated.”
transcript 20G-H.
“Common sense dictates, in my judgment, that the device which was deliberately placed in the exercise yards can only have been placed there in order to pick up conversations in the exercise yard. I regard the suggested justifications for it [viz. shouting between the yard and the cells] to attract the conversation as I have described as tortuous, highly unlikely and they leave [me] wholly unconvinced that anyone would have decided to place a bug in the exercise yard to cover the suggested chance or contingency which has been put forward.”
transcript 22C-D.
These observations seem to us to be no less applicable to the circumstances of the surveillance in the exercise yard in Operation Mink. We shall deal below with a qualification relied on by Astill J. Newman J concluded:
“Having carefully considered all the evidence I am satisfied that it is more likely than not that the microphones were placed in each of the exercise yards deliberately and with the intention of capturing any conversation which might take place between the detained persons and the solicitors, either before or between the interviews which were planned to take place over those days.
In my judgment each of White, Bannister [White’s deputy in Wheel] and Thom [who drew up the
RIPA
application in Wheel] acted with that intention. It follows that I have concluded that flagrant breaches of the law have occurred.”
transcript 24F-G.
THE JUDGMENT OF HHJ HEATH IN OPERATION GALAXY
24.
Mink is distinguished from Wheel and Galaxy by the fact that whereas the SIO in the latter two operations was the same officer, DCI White, in Mink it was DCS Cook. In his submissions before us Mr Barker QC for the Crown was at some pains to emphasise this, alongside the fact, as he described it, that DCS Cook was accepted “as a man of integrity” in the
voir dire
before HHJ Heath. It is clear that counsel before HHJ Heath made no attempt to blacken DCS Cook’s character or to attack the findings of Astill J in Mink. That was, of course, a perfectly proper tactical decision on counsel’s part; and it is certainly true that no criticism is levelled at DCS Cook by HHJ Heath. But this cannot in our judgment be equated with a positive adjudication by HHJ Heath such as might strengthen the Crown’s armoury in this appeal.
25.
Like Newman and Astill JJ, HHJ Heath heard a great deal of evidence. It included the oral testimony of DCI White and DS Bennett whom the judge found, to say the least, to be unimpressive witnesses. Much of his judgment is taken up with a critical examination of what they had to say, and we shall cite his remarks about DS Bennett in some detail. At length he concluded
transcript 64E-65A.
:
“It is plain that I have not been told the whole truth by several police officers, namely White, Bennett, Owen, Bosworth, Blakey and Dean. I am driven by all the evidence in this case to the clear conclusion on the balance of probabilities that there was a planned and deliberate capture of privileged conversation between a solicitor and his client… This is not a case of a chapter of accidents or a comedy of errors.
From 18 March, when the meeting took place in the seclusion of the Bourne police station, there has been an effort to cover up what happened by an attempt to effectively remove DCI White from Galaxy…”
THE APPELLANT’S SUBMISSIONS
26.
The starting-point in the case, understandably emphasised by Mr Rees, is that if one stands back and looks at the whole picture there is a perfectly extraordinary concatenation of events on the three judges’ findings: one operation where the purpose included the collection of privileged material, a second operation where it did not, and a third operation where, again, it did: all conducted in the same part of the same police station, with at least some officers (notably DS Bennett) common to all three operations. There is no suggestion before us that the conclusions of Newman J and HHJ Heath, or either of them, were in the least degree erroneous.
27.
This apparent turn of events over the three operations is undoubtedly a striking circumstance. But we do not consider that it would suffice on its own to justify this court’s overturning Astill J’s conclusion. We have to look at the particular points in the evidence on which Mr Rees relies. It is convenient to do this under two headings:
Bennett
, and
Other Matters.
BENNETT
28.
DS Bennett is the strongest link between the three operations. As we have said he was interview adviser in all three, and disclosure officer in Wheel. The state of his knowledge as to what had been done in Wheel, and what he did or did not do particularly when he came to be involved in Mink, is clearly of some considerable importance. He knew, at least, that there had been problems of collateral intrusion. He gave prevaricating answers about this in the
voir dire
in Mink, but it is certainly plain (as we have indicated) that he was aware of the “inadvertent” recording in Wheel, and the 14 annotated tapes. He knew that a device had been placed in the yard in Wheel. He knew that solicitors and detainees visited the exercise yards together, “but he said only when supervised and not for consultation purposes”
Astill J, transcript 12C-D.
. In fact he gave different accounts as to whether at the time of Wheel he knew that solicitors used the yard.
29.
Though Bennett knew about the 14 tapes, as we have said he made no mention of them in his report to DCI White of February 2001. And when it came to Mink, notwithstanding all the matters to which we have referred, on his account he did not warn DCS Cook about what had happened in Wheel or that there were problems bugging the exercise yard; it did not occur to him to inform anyone in Mink of any previous problem with the surveillance; he gave no information or instructions to the listeners in Mink so as to avoid or minimise the risk of collateral intrusion; he gave no instructions to custody officers to stop solicitors going into the yard or only to use the consultation rooms. He said he did not know who the listeners reported to or who briefed them. He was driven in effect to assert that some unknown officer briefed the listeners and the officer in charge of them reported to an unknown officer. This was wholly at odds with the evidence of DI Smith, head of the listening team who said in terms that Bennett briefed the listeners including himself.
30.
Though they are of lesser importance, we should note these further points relating to Bennett which arose in Galaxy. First, he denied knowing the identity of the person who he said had told him that the yard was to be bugged in Galaxy. HHJ Heath found this evidence to be untruthful: “In my judgment, he did know”
HHJ Heath transcript, 15B.
. Secondly, it is to be observed that Bennett was the officer who filled in the
RIPA
application in Galaxy. In it he identified solicitors as a potential subject of collateral intrusion; yet on his account his knowledge of collateral intrusion or any risk of it was no greater than it had been at the time of Mink.
31.
HHJ Heath dealt with the evidence given before him by Bennett at some length in his judgment. It is with respect illuminating to set out these following extracts, some of which traverse points we have already made.
“He then said that such a rule [viz. that no two detainees be allowed in the yard together] may be in existence and then conceded that he did know that prisoners were not allowed in the exercise yard together. I was surprised at how long it took him to arrive at the simple truth in this exchange with Mr Marshall-Andrews [counsel for the defendant Sentence].”
9C-D.
“He said that the reason he did not say [in Mink] there was such a problem [sc. of collateral intrusion] to [DCS] Cook was that it did not occur to him at the time to do so. ‘In hindsight,’ he said, ‘I should have done.’ Operation Mink had arisen within a few months of Wheel. As I have already observed, just over 20% of the total of the tapes in Wheel had been lost.
Given the problems of collateral intrusion which had been encountered in Wheel and of which Sergeant Bennett had full knowledge, it is very surprising indeed that he did not mention what was a significant problem to [DCS] Cook in Operation Mink. It is very surprising indeed that it did not occur to him.”
11C-F.
“He was then asked by Mr Marshall-Andrews about Operation Galaxy and said that he drafted the application. He could not recall who asked him to do it. He said he was made aware two days before arrests were due to be made that the application for directed surveillance had not been made. He said that because of the limited number of persons who were allowed to know of the directed surveillance, he had little choice but to take it upon himself to do it. He said he really did not know who told him it had not been done after this length of time. He did not remember specifically being tasked to do it. He believed that someone else was preparing the application. It could have been one of several who told him it had not been done, so he did it.
I found Sergeant Bennett’s explanation lame as to how it was that that it was he who came to make the application for directed surveillance.”
12C-F.
“I found Sergeant Bennett less than convincing when he repeated that he took the task upon himself of making the application. He said it was not his understanding at the time that DCI White was in charge of the whole operation. I reject his evidence about that. He plainly did know that DCI White was in charge.”
13B-C.
“Detective Sergeant Bennett said that DI Bosworth was to take over as SIO from DI Owen, and Sergeant Bennett said that he would not see the arrest commander for a day as being the SIO. That, in my judgment, was a lame attempt to minimize DCI White’s role in Operation Galaxy.”
13G-14A.
“He [sc. Bennett] agreed that everybody at the meeting [at Bourne police station on 18 March 2002] knew that in his Wheel judgment Mr Justice Newman had not accepted that the covert surveillance on solicitors with their clients was inadvertent and had found that it was deliberate. Bennett said that the purpose of the meeting was to identify what areas needed to be covered to give open and transparent access to what was done in Galaxy. He agreed that DCI White had been found by Mr Justice Newman to be the agent behind the deliberate bugging in Wheel. He said that the strategy was not to distance White from Galaxy. He said, ‘We were all about to make statements. I don’t recall whether there was any discussion about what we would each say about White.’ Then he said, ‘Mr White might have been one of the areas which was to be addressed.’
I pause to make this observation. Of course he was. It was absolutely plain from the way in which Sergeant Bennett gave his evidence that Mr White was one of those areas which was to be addressed.”
18C-G.
“He was recalled to be cross-examined further by Mr Marshall-Andrews about the Bourne meeting of 18 March. He agreed that there was no reference in his pocket notebook about that conference or meeting with White, Owen and so on. He said, ‘I just haven’t included it.’ Given the ranks of the officers attending, it was quite a high powered meeting, it seems to me. He said, ‘It’s not in my pocket notebook because I obviously forgot to put it in.’ I found him very lame and unconvincing about this. Whe he did enter in his pocket notebook was all pretty mundane, but there was absolutely no reference whatsoever to the two-hour meeting at Bourne. He said, ‘I’ve clearly forgotten to enter it.’ He was, in my judgment, very unconvincing when he said that.
It will be clear from what I have said that I found Detective Sergeant Bennett an unimpressive and unconvincing witness.”
19E-20A.
32.
We shall set out our conclusions as to what can be drawn from Bennett’s part in this whole affair after considering the other points in the case, and Astill J’s judgment.
OTHER MATTERS
33.
Here there are a number of points to consider. It is convenient to take first what Mr Rees described as the “Bourne/Cooper conflict”. We have already described the essential discrepancy between the evidence before Astill J of Mr Cooper and DI Bourne, and the fact that Astill J found Mr Cooper to be “patently an honest witness”. In plain contradiction of Cooper’s evidence, Bourne denied that he knew that a bug had been installed in the yard at Sleaford. The implication of DI Bourne’s evidence was that it was Cooper (or “Covert Ops”) who suggested a bug in the exercise yard. This was in conflict with Cooper’s evidence (and also that of other officers). Cooper was clear that the bug in the yard had not been suggested by him. He was clear that DI Bourne knew that this had been done before, and “I would have been asked to provide the equipment similar to what had taken place in Operation Wheel”.
transcript of Cooper’s evidence before Astill J, 187, 191.
He also said the “splitter” was wanted “because they wanted the facility to listen solely to the exercise yard”.
transcript, 182.
34.
Again, we will explain what we make of this after dealing with the other points and considering Astill J’s judgment.
35.
The next point is that none of the officers who gave evidence before Astill J accepted responsibility for the proposal to install a device in the yard at Sleaford police station, and no one admitted to any recollection of whose proposal it was. Likewise the picture painted before Astill J was to the effect that no one in Mink apart from Bennett knew that just the same kind of surveillance in the yard had been carried out before. This marches with the fact, to which we have already drawn attention, that DS Bennett did not (on his account – and that of DCS Cook) warn DCS Cook about what had happened in Wheel or that there were problems bugging the exercise yard. DCS Cook’s evidence was that he knew nothing of the intrusion into solicitors’ conversations which had happened in Wheel until he was told about it over the telephone by DCI White during the Wheel
voir dire
before Newman J. Astill J was to say
Judgment transcript 10C-E.
:
“He [DCS Cook] now accepts that [DCI] White should have told him about the problems in Wheel before he did. The same applies to [DS] Bennett who was the interview adviser in Wheel as he was in Mink. He said that [DS] Bennett should have told him what had happened in Wheel.”
36.
There is a further linked point. Though on the police evidence DCI White had been informed by a secondary listener of the collateral intrusion in Wheel, he did not inform anyone else when it came to Mink. He did not discuss the matter with DCS Cook. And neither he nor Bennett thought it appropriate to inform Supt Tapley who, as we have said, was the
RIPA
authorising officer.
37.
There is more to say about Supt Tapley’s position. As we have indicated, the application form in Wheel had not named the exercise yard at Sleaford as an intended location for a listening device, though the cancellation notice did. The
RIPA
application in Mink
did
name the yard. As we have said, Supt Tapley made it plain that he relied entirely on the accuracy of what was asserted in the application, without giving it any independent consideration. In particular, the clearance given by Supt Tapley for the installation of a device or devices in the yard depended on the assurances given about the risk, or lack of risk, of collateral intrusion. It will be recalled that this was stated in the application:
“Collateral intrusion has also been considered in respect of other persons who may be present within the cells or exercise yard whilst the subjects are in custody. The level of intrusion against such individuals is considered justifiable and propaortionate.”
DCS Cook told Astill J that it never crossed his mind that solicitor/client conversations would be picked up in the exercise yard: “[t]hat justified the minimal risk in the application form”.
Astill J judgment transcript, 10B-C.
38.
But in truth the point is a more general one. The absence of any warning in the
RIPA
application in Mink of the possibility that such conversations might be picked up from the yard at Sleaford pre-supposes, if the officers’ evidence to Astill J was honest, that
no one
associated with the making of the application knew that solicitors habitually, or at least from time to time, frequented the yard with their clients. If it were otherwise the application could not have been completed as in fact it was, even without knowledge on the part of any relevant officer of the fact that solicitors’ conversations had actually been intercepted in Wheel.
THE JUDGMENT OF ASTILL J
39.
Now we shall consider what Astill J made of the case. It is convenient to refer first to what he had to say about differences between Wheel and Mink:
“One principal difference between Operation Wheel and Operation Mink is that authorisation was properly obtained in Mink for the exercise yard. There are more differences. The fact that solicitor/client conversations were listened to was disclosed in Mink; the tapes were stopped running after two days and the cancellation document accorded with the application document.”
transcript 8B-D.
40.
Astill J later returns to the differences between Wheel and Mink, as we shall show. Next however we should refer to what we have called a qualification placed by him upon the conclusion reached by Newman J to the effect that the deliberate installation of a device in the exercise yard can only have been done in order to pick up conversations being conducted in that very place. Astill J said this:
“… Mr Cooper did see… a value in placing a device in the exercise yard despite the fact that as his rerun of the equipment in Wheel with the Yorkshire Police showed, the cell passageway device would pick up conversations between the cell and the yard and vice versa. He said he would not have installed a device simply for the purpose of picking up solicitor-prisoner conversations. He said that the device of the splitters would enhance the quality of the sound.”
41.
Next we should note Astill J’s observations upon the Bourne/Cooper conflict:
“Even if [DI] Bourne is now giving untruthful evidence that he did not know of the covert surveillance in Wheel, I do not consider that that means that he knew that an unauthorised device had been placed in the yard as part of that surveillance… It does not necessarily follow that his instruction to Mr Cooper to repeat the installation was an indication that he knew of the device in Wheel, even though a consequence of his instructions to Mr Cooper would be that a listening device would again be placed in the yard. His instruction to Mr Cooper was in accordance with the Mink application.”
34G-35C.
42.
Apart from the obvious fact that he could have no knowledge of the proceedings before HHJ Heath, Astill J was fully alive to the points made for the defendants and which in effect we have canvassed in this judgment. He reported defence counsel’s submissions, if we may say so, with meticulous care, including Mr Rees’ bald submission that Bennett was “plainly an untruthful witness”
20C.
. He considered Newman J’s judgment at some length, and made detailed reference to some of the evidence before Newman J. At length he concluded as follows:
“In assessing the credibility of the officers who gave evidence and the part that each played in the Mink operation, regard must be had to the differences between the circumstances that presented themselves before Mr Justice Newman and those which are present before this court. I consider them, as I have already indicated, to be significantly different. I have not been able to come to the conclusion, despite considering all the matters that have been argued to the contrary, that there has been a conspiracy by a number of relevant officers cynically to disregard the rights of these defendants to legal professional privilege by deliberately listening to prisoner/solicitor conversations. The evidence before me can be interpreted in a different way. I do not find that the connection between Wheel and Mink has or even probably has the significance which has been claimed. The deceit in Wheel would not have been widely publicised. There were two officers in the Mink operation that were involved in the Wheel operation, [DS] Bennett and [DC] Johnson. There is no suggestion that… Johnson has acted improperly in any way. [DS] Bennett was in a far stronger position to do so, but I accept that he passed on the instruction given to him by [DCS] Cook to inform custody staff of the court surveillance, however inadequate that proved to be. Even that would go some way to thwart a dishonest intention. There is no evidence that he was responsible for solicitors visiting the yard with their clients, even if he hoped privileged conversations would be recorded, that would be insufficient in itself to found a submission in abuse. Rather than an unlawful and deliberate attempt to intrude upon the rights of the defendants, I find that that the police approach to the application in Mink, its authorisation and its execution demonstrates serious shortcomings. Defence criticisms of the perfunctory manner in which the application was completed, approved and put into operation are valid. They demonstrate a disregard for the proper procedures demanded by
RIPA
and it can be no excuse that
RIPA
was new law; Acts of Parliament do not suddenly happen, it is incumbent upon those who must put them into practice to follow the journey of legislation through Parliament and to prepare themselves accordingly. That is particularly important where the legislation impinges upon a right as crucial to the integrity of the criminal justice system as the right to legal professional privilege. In Mink, scant regard was paid to that at every level and the major responsibility must be borne, in my judgment, by senior officers whose job it is to ensure that those in lower ranks are well-instructed and well-informed. Serious though that criticism is, I am unable to come to the conclusion that there was here a deliberate and therefore illegal plan to use the proper authorisation under
RIPA
to intercept privileged conversations nor can I come to the view that these failures on their own, serious though they are, offend our principles of justice to the extent that they justify a stay of the indictment.”
40E-42E.
FACTUAL CONCLUSIONS ON GROUNDS 1 AND 3
43.
First, we are very conscious that we are being asked to overturn the decision of an experienced judge upon issues of fact, in circumstances where the judge heard much live evidence. We have heard no witnesses. Moreover we are being asked to hold, in contrast to the judge, that a good deal of the evidence he heard was substantially dishonest. There is no question of our remitting the case for a further hearing on the merits before a different judge for the matter to be reconsidered in the light of HHJ Heath’s later findings, or anything of the sort. We are invited to reach our own conclusion on the merits in the appellant’s favour. It hardly needs saying that it would take a very exceptional case for the court to accede to such an argument.
44.
That said, we find it very striking, first, that Astill J made no finding as to Bennett’s credibility, though it was surely central to the submissions with which he had to deal. He has not confronted the force of the raft of points concerning Bennett which we have summarised. Nor has he got to grips with the significance of the wall of silence concerning the identity of who it was who proposed the installation of a device in the yard in Mink, or the failure to warn officers in Mink about the collateral intrusion which had occurred in Wheel, or the absence of any warning in the
RIPA
application in Mink of the possibility that solicitors’ conversations might be picked up from the yard.
45.
Without convincing answers to all these points, the plain inference in our judgment was that at least some officers, certainly including Bennett, were proposing to establish Mink as a means of surveillance which might catch solicitors’ communications just as had happened in Wheel. But no such answers are to be found in Astill J’s judgment. We have not forgotten that the burden of proof lay on the defence to establish, on the balance of probabilities, the facts relied to demonstrate abuse of process. But in our judgment once all these points are laid out, as in effect they were before Astill J and certainly are before us, the evidential burden shifts to the Crown: and the inference to which we have referred is an obvious one.
46.
There are some specific aspects of Astill J’s reasoning which have caused us difficulty. We take first his view of the differences between Mink and Wheel. The fact that authorisation for surveillance in the yard was obtained in Mink, but not in Wheel, seems to us to be at most insubstantial. It may have been done, as Mr Rees suggested, because it had been appreciated late in the course of the Wheel investigation that express authority was required for the yard: that would explain the reference to the yard in the Wheel cancellation document. But in any case this difference pales into insignificance when it is recalled that the application made to Supt Tapley in Mink was gravely defective because of the absence of any warning of the possibility that solicitors’ communications might be picked up. As for the disclosure in Mink of the fact that such conversations were intercepted, given the hearing before Newman J in Wheel and the terms of his judgment, when it came to Mink the prosecution surely had little alternative but to disclose. The tapes were stopped running after two days because nothing of value had been captured. The fact that the cancellation document accorded with the application document in Mink in our judgment adds nothing.
47.
If, as we would hold, these differences between Wheel and Mink are in truth of no or trifling importance, Astill J’s reasoning leading to his conclusions, in the last passage we have cited, is gravely undermined. The passage starts with an affirmation of their importance.
48.
Secondly, we do not consider that Astill J’s observations about Mr Cooper seeing a “value” in placing a device in the yard begins to assault Newman J’s conclusion that the purpose of doing so can only have been in order to pick up conversations being conducted in that very place. We do not understand that the facility of the “splitter” device could of itself have been a reason to bug the yard. Newman J’s view was that the suggested chance or contingency of shouting between the yard and the cells cannot sensibly have been a reason for anyone to install a device in the exercise yard: such an explanation was “tortuous” and “highly unlikely”. This conclusion has obvious force which is not, we think, weakened by Astill J’s observations or Mr Cooper’s evidence.
49.
Thirdly, we find ourselves driven to hold that Astill J’s reasoning concerning the Bourne/Cooper conflict is unpersuasive. His acceptance of Mr Cooper as an honest witness effectively implies that DI Bourne was lying in the
voir dire
. Bourne’s adamant answers, as they appear to have been, seem to leave no realistic room for honest mistake and Astill J himself accepted that he had lied or at least that he may have done. But his approach to that fact – “Even if [DI] Bourne is now giving untruthful evidence that he did not know of the covert surveillance in Wheel, I do not consider that that means that he knew that an unauthorised device had been placed in the yard as part of that surveillance” – leaves Bourne’s lying unexplained and without apparent motive. The obvious motive is a desire on his part to conceal the fact that Surveillance in the yard in Mink had been established with the same purposes as had been entertained in Wheel.
50.
For all these reasons we consider with great respect that Astill J’s conclusion as to the motivation for Operation Mink is at best fragile. Indeed, we greatly doubt whether it could stand even had there been no Operation Galaxy. But HHJ Heath’s judgment must be factored in; and when that is done, we are satisfied that the appellant has shown, at least on the balance of probability (and that is all that is required), that Operation Mink was infected by the same unlawful purpose as infected Wheel and Galaxy. When added to the real objective difficulties which in our judgment beset Astill J’s conclusions, the near-fantastic coincidence that an innocent operation be sandwiched in time between two corrupt ones defies belief.
51.
It is, as Mr Rees acknowledged in his reply, impossible to determine precisely which police officers were party to the unlawful plan. Plainly Bennett was; and DI Bourne. While others will almost certainly have been involved it is neither possible nor necessary to name them.
THE LAW
52.
Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court’s process. So much seems to us to be plain and obvious and no authority is needed to make it good. The only question that requires examination is whether such proceedings ought to be characterised as an abuse of the process, and the prosecution stopped, if the defendant or defendants have suffered no prejudice in consequence of the relevant unlawful acts.
53.
In the present case it is said there was no prejudice: nothing was recovered from the illicit intercepts of any value to the prosecution, and nothing so recovered was used as, or led towards, any evidence to be called by the Crown. Astill J stated:
“Prejudice to the defence is not an imperative in all circumstances.
transcript 29D-E.
…
[In the present case] [t]here is a body of potentially cogent evidence independent of any police practice which cannot be tainted by it… In the trial that is now to take place, the covert surveillance operation has no relevance to the issues before the jury… If prejudice is to be claimed on the basis of something that may have been said by another suspect, there would have to be established an evidential basis to demonstrate that a piece of evidence could not have been obtained but for something that must have been said by another suspect. Similarly, if prejudice is to be established in relation to the use of privileged material in the police enquiry, it would have to be shown that the police could not have pursued a line of enquiry or obtained a particular piece of evidence unless it was the result of something that could only have been said by a fellow suspect. The prejudice submissions have not been advanced on either of those bases and for good reason. Accordingly, this trial, unlike
R v Sutherland
[sc. the Wheel case], will not involve the investigation of evidence that has its origins in privileged material. The defences have not established prejudice and these applications must be refused.”
45F-47B.
54.
We have concluded that this is a mistaken approach. True it is that nothing gained from the interception of solicitors’ communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person’s right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court. In
R v Derby Magistrates Court ex p. B
[1996] AC 487
.
Lord Taylor CJ said:
“Legal professional privilege is… much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
At 507.
It is unnecessary to multiply authority to demonstrate the importance which the law attaches to legal professional privilege. It is enough to say that in this area the jurisprudence of the European Court of Human Rights marches with the common law: see
Lanz v Austria
Case 24430/94, paragraph 50.
,
S v Switzerland
14 EHRR 670
.
,
Niemitz v Germany
16 EHRR 97
, paragraph 37.
, Brennan v UK
16 October 2001.
. The reasoning in this last case shows
See paragraphs 58 and 59.
that a breach of Article 6 of the European Convention on Human Rights may be constituted by an infringement of the right to confidential legal advice even though it is not shown that in consequence the accused cannot have a fair trial.
55.
Now, it is not in general the function of criminal courts to discipline the police
See, for example,
R v F
[1984] QB 278, 289H.
. Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor’s act or omission may be thought a paradigm of abuse of process. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court’s duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay.
For the balancing exercise see
Latif
[1996] 2 CAR 92 per Lord Steyn at 100 ff.
56.
Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case. This is well supported by
R v Horseferry Road Magistrates Court ex p. Bennett
[1994] 1 AC 42
: see in particular
per
Lord Griffiths at 62 and 64, and Lord Lowry at 77.
, to which reference was made in
Latif
Compare the leading case on entrapment:
Looseley
[2002] 1 WLR 2060
.
:
“The speeches in
Bennett
conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise.”
57.
We are quite clear that the deliberate interference with a detained suspect’s right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers’ unlawful conduct. Newman J took the same view in Wheel. He had well in mind the gravity of the crime of which the defendant was suspected: “[a] young man has been executed by a brutal shooting”
Newman J transcript, 39F.
. So of course do we, in this present case. As for prejudice, it is a particular vice of the police conduct in such circumstances as these (as, again, Newman J recognised in Wheel
42E-43A.
) that the court cannot know whether the police misconduct has in fact yielded fruit in the form of evidence, whether directly or indirectly, without enquiry as to what the covert surveillance revealed; but that would further violate the suspect’s right of legal professional privilege. As Newman J said
42G.
:
“The defendants having an absolute right not to waive the privilege, it cannot be right that the court can force them to do so in order to prove the case for a stay, for to do so would be to effectively take away the very fundamental right which the law has conferred.”
58.
In all these circumstances, we conclude that there was abuse of the process here and Astill J should have stayed the proceedings in consequence. We understand it to be accepted that if the court reaches this conclusion, the conviction falls to be treated as unsafe. In those circumstances the appeal will be allowed.
GROUNDS 4 AND 5
59.
Given this conclusion on grounds 1 and 3 we can deal with grounds 4 and 5, for which as we have indicated the single judge did not give leave, very much more shortly.
60.
Ground 4 points to the fact that at no stage during the evidence did counsel for the co-defendants, Sond and Chand, advance a positive case that Dowling had or may have been shot by the appellant (acting with others). No such suggestion was put to the appellant in cross-examination for Sond or Chand, nor did their counsel seek to demonstrate any link between the appellant and for example the suspect Khaktar at or about the time of the shooting. However in their final speeches to the jury counsel for both co-defendants submitted in terms that the appellant may well have been guilty of the conspiracy charged, acting with replacement co-conspirators (“team 2”) supplied by Gill and Khaktar. This is said to have been unfair and unjust and in breach of a duty owed by co-defending counsel to make it plain that they did not accept the appellant’s evidence that he played no part in any conspiracy to kill Dowling. For counsel’s duty,
R v Fenlon
71 CAR 307.
is relied on.
61.
We have transcripts of the co-defendants’ counsel’s speeches (as well of course as the summing-up). We have considered them carefully, but do not find it necessary to cite from them. Mr Rees for the appellant is recorded as interrupting the speech of Sond’s counsel, Mr Crigman QC, to ak him to acknowledge that during the course of the evidence he had not given the appellant any opportunity to deal with the case he was now suggesting to the jury.
62.
Ground 5 is to the effect that Astill J failed to make any comment to the jury that the “team 2” theory had not been put to the appellant, or to warn the jury in strong terms that the co-defendants, in advancing such a case, may well have had their own interests to serve.
63.
There is no doubt but that the “team 2” theory differed from the prosecution case which, very obviously, sought to implicate rather than exonerate Chand and Sond as co-conspirators with the appellant. Equally there is no doubt that such a theory had not been suggested to the appellant in the course of cross-examination, nor elaborated by the co-defendants in their evidence. Thus the thrust of ground 4 is that the appellant may have been convicted of conspiracy to murder on a factual basis which he had no opportunity to confront; indeed, given the jury’s acquittal of Chand and Sond, it is said that this is the probable state of affairs.
64.
Mr Barker submits that the safety of the conviction is not infected by the course taken by co-defending counsel in their closing speeches. There was very powerful evidence implicating the appellant in the conspiracy to kill Dowling, consisting of a piece of paper found at Chand’s address which might readily be thought to associate the appellant with the practicalities of Dowling’s murder. It bears the appellant’s fingerprint (and also, in fact, fingerprints of the co-accused). It has Dowling’s name on it, details of his movements, and details of parts of the layout of the house where he was living. Mr Rees submits that this material could be referable to the earlier conspiracy to assault Dowling which the appellant said he had called off. It is certainly a highly incriminating document.
65.
It may well be that (as Mr Barker submitted) it was only after the appellant had been cross-examined on this document by the Crown that any pressing need to advance the “team 2” theory was perceived by co-defending counsel. It may be that Mr Rees could have sought and obtained the judge’s leave to have the appellant recalled after the speeches for the theory to be put to him in further cross-examination. He might have sought the judge’s permission to address the jury a second time (the appellant being first on the indictment, he had made the first defence speech). However that may be, it seems to us very probable - as Mr Rees was disposed to acknowledge - that if he had been cross-examined about it the appellant could have done no more than reply with a bare denial. The suggestion that the appellant has been convicted on a factual basis which he had no opportunity to confront has more appearance than reality.
66.
Mr Rees submits that if it had been clear at an earlier stage that the co-accused were going to mount a “cut-throat” defence, there was unused material which he might have deployed to implicate Sond: not least telephone records showing Sond in contact with Birmingham criminal who had access to firearms. But it must be questionable how far such material would have assisted the appellant rather than merely undermined Sond’s defence.
67.
The judge might have done better to make some observation to the jury as to the possible motivation of the co-accused in running the “team 2” theory, but we greatly doubt that it was imperative that he should comment upon what was, after all, not evidence, but a scenario being put forward by counsel.
68.
In all the circumstances we have concluded that we would not have allowed this appeal against conviction if grounds 4 and 5 had stood alone, and we will refuse leave to appeal in respect of them.