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England and Wales Court of Appeal (Criminal Division) Decisions
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Cite as:  EWCA Crim 733
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Case Nos: 2000/2385W4: 2000/2507W4: 2000/3460W4
Neutral Citation Number:  EWCA CRIM 733
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 15th March 2001
LORD JUSTICE JUDGE
MR JUSTICE CRESSWELL
MR JUSTICE OUSELEY
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- and -
GARY DARYL BAILEY,
LEE GEORGE DAVID KEITH BREWIN
& RAMESH GANGJI
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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W HARBAGE ESQ (for the Crown)
C MAILER ESQ (for the Appellant, Bailey)
C GEESON ESQ (for the Appellant, Brewin)
SIR J WALKER-SMITH (for the Appellant, Gangji)
As Approved by the Court
Crown Copyright ©
LORD JUSTICE JUDGE :
1. These are appeals against conviction by Gary Bailey and David Brewin, who, together with Ramesh Gangji also appeal against sentence.
2. On 21st March 2000, in the Crown Court at Northampton before His Honour Judge Bray, Bailey pleaded guilty to two separate counts of being concerned in the supply of a Class A controlled drug (ecstasy tablets) and in the supply of a Class B controlled drug (amphetamine). He was sentenced to a total of 6 years imprisonment. Brewin pleaded guilty to one count of offering to supply a Class A controlled drug (ecstasy tablets) and being concerned in the supply of a Class B controlled drug (cannabis). He was sentenced to three years and twelve months imprisonment on these counts to run concurrently. He also pleaded guilty to five counts of handling stolen goods. He was sentenced to two years imprisonment on each count, one to run consecutively with the other sentences imposed for the drug related offences, and the remaining sentences to run concurrently. The total sentence was five years imprisonment, but it was ordered to run consecutively to an existing sentence of nine years imprisonment imposed on an earlier occasion for an unconnected offence of robbery. Gangji pleaded guilty to a single count of aiding and abetting Bailey in the supply of a Class A controlled drug (ecstasy tablets). He was sentenced to three years imprisonment. A fourth accused, Shona Stewart, pleaded guilty to being concerned with Bailey in the supply of a Class B controlled drug. She was sentenced to nine months imprisonment. Her application for leave to appeal against sentence, refused by the single judge, was not renewed and has now lapsed.
3. The prosecution in this case arose from a police operation in Kettering which initially was aimed at burglars and receivers and handlers of stolen goods. With the authorisation of the Chief Constable in accordance with Home Office Circular 97 of 1969, two police officers, known throughout the case as Jason and Alan, moved into an upstairs flat at Carlton Street, Kettering, on 10th May 1999, an address selected at random. The officers purported to set themselves up as traders in "nearly new" electrical goods, gold and jewellery in the hope of making contact with and thus identifying burglars and receivers. At the risk of stating the obvious, the two officers were working undercover, and it was an imperative, both for their own safety and for the success of their operation, that their true identity and occupation should remain secret.
4. After moving into their new flat, the officers became acquainted with Brewin and Shona Stewart, who occupied the flat beneath them. This was entirely coincidental. The officers knew nothing about either of Brewin or Stewart, and they were not the original target of the police operation. In order to promote their cover, and lend credibility to their "business" they sold Brewin some designer shirts. Nothing turned on that. However on 27th May, the two officers visited the flat below and while there were asked by Brewin if they wanted a smoke of "blow" (cannabis). It quickly became apparent that further drugs, in the form of amphetamines and ecstasy tablets, were also available. The officers were introduced to Bailey, a friend of Brewin, who was heavily involved in these drug transactions. Subsequently Brewin offered them gold, jewellery and other items which represented the proceeds of various burglaries.
5. The conversation on 27th May was recorded by the police officers in their notebooks. Thereafter, during their subsequent visits to Brewin's flat, they carried concealed tape recorders, and all their conversations were recorded. For the purposes of the trial the conversations recorded on the tape recorders were transcribed, and formed a crucial element in the case for the prosecution. Counsel for Bailey and Brewin took a series of objections to their admissibility, which were, after a six day hearing, rejected by the judge. Thereafter the indictment was amended, and the appellants pleaded guilty.
6. In view of the submissions made on behalf of these appellants we should spell out some of the significant, if obvious, features of this evidence. An authentic recording, and an accurate transcription of it, provided the best possible evidence of exactly what was said during the conversations involving the police officers at Brewin's house, or during phone calls made from the house in their presence. The process was authorised by the chief constable to provide independent evidence of everything and exactly what was said. We all know the fundamental reason why interviews between police officers and suspects at police stations are now tape recorded: the risks of false, inaccurate or incomplete note making by the police at the conclusion of the interviews, and similarly, unjustified attacks on them, are all avoided. It was, of course, impossible for the officers to make contemporaneous and complete written notes of what was said at Brewin's house, and if the note taking process began after they had left the house, the note would have been subject to the usual criticism that it could not be absolutely accurate. So they used modern technology to produce the best, and in the result, entirely unchallenged evidence. There was no suggestion of tampering or interference with the recordings, whether deliberately or accidentally. The result was that the fact finding tribunal (the judge alone on a voir dire) or if the case proceeded as a trial, the jury would know, and was in a position to evaluate exactly what everyone actually said. The transcript, or if there was any doubt about the transcript itself, the recordings, would show how the police officers had behaved, and what they had said, and what the defendants had said and done, and the precise context in which they had said and done what they did. So we emphasise, the police officers were simply using modern technology to make an accurate recording of the conversations which they were having or which were taking place in their presence, in premises into which they were invited by the occupants, using recording equipment which they were carrying themselves, and which came and went in and out of the house with them. They did not record private conversations of others, nor hide recording equipment in Bewin's flat.
7. The first submission to the judge was that the evidence should be excluded on the basis that the police officers had entrapped the appellants to commit the offences to which they pleaded guilty. The judge considered the transcripts of the recordings, and the oral evidence of the police officers. None of the defendants chose to give evidence to him. He concluded that the defendants were not entrapped, and that the offences alleged against them were not instigated or incited by the police officers. That was a finding of fact which the judge was well placed to make, because the very existence of authentic tape recordings left no room for misinterpretation or misunderstanding of what had actually been said by everyone. His decision on this issue is not now the subject of any ground of appeal. We therefore do not need to trouble further with this issue, save to observe that the decision of the European Court of Human Rights in Teixeira de Castro v Portugal  28 EHRR 101, to which our attention was drawn more than once in argument, has no application.
8. The further arguments before the judge, now relied on in the grounds of appeal, can be summarised briefly. It is contended that the evidence produced by the tape recorders was obtained in circumstances which contravened the requirements of the Police Act 1997, and the Codes of Practice made under it, which took effect from February 1999, the Home Office Guidelines of 1969 and 1984, the Wireless Telegraph Act 1949, and the Interception of Communications Act 1985, and was produced in circumstances which constituted a breach of Article 6 and Article 8 of the European Convention of Human Rights (the Convention). All these submissions begged a number of simple questions.
9. Let us assume that the judge had decided to exclude the tape recordings. On the face of it, subject to the continuing general judicial discretion to exclude evidence, in law the police officers would have been entitled to give evidence of what had happened during their visits. Their recollections could not, of course, have been as complete as the tape recordings, and the risk of one side or other, whether deliberately or inadvertently, misleading the jury would have been correspondingly increased. In law the officers would also have been entitled to refresh their memories of what had been said from a note or record made contemporaneously or as soon as reasonably practicable after the relevant visits. The principle is wide enough to cover both "present recollection revived" as well as "past recollection recorded" (see Cross & Tapper on Evidence, 9th Edition, attributing this distinction to J H Wigmore, and R v Bryant  31 CAR 146 at 150).
10. We can see no reason why the principle by which a witness is permitted to refresh his memory to the fullest permissible extent should be confined to him looking at a piece of paper with writing on it. Common sense suggests that if modern technology provides a better or different means for the same purpose, it should be available for use in court. Fortunately the principle is already well established, and was summarised, perhaps in less robust language than we should be inclined to use, in R v Ali  1 QB 688
"It does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices ......"
11. In R v Mills  1 WLR 1152, a police officer who had heard and made a tape recording of a conversation between four suspects held in separate cells at a police station, was allowed to refresh his memory by referring to the notes he had completed with the assistance of that tape recording. Accordingly, in this case, we see no difficulty with the proposition that the police officers would have been able to refer to the tape recordings after they had left Brewin's house for the purpose of completing their own notes, and would then have been entitled to refresh their memory from them. Indeed, on the basis of "past recollection revived", we have no doubt that they could now, if we were to order a retrial, return to the tape recordings, and solemnly refresh their memories from the tape recordings, compile their notebooks, and give evidence accordingly. The absurdity of adopting such a procedure is obvious. What is more, if the evidence taken from these notes were challenged, the recording itself could be considered. Accordingly, even if the tape recordings themselves were excluded, it would be open to the prosecution to proceed to a new trial basing itself on the evidence of the police officers, refreshing their memories from them. It was suggested in argument that this analysis was incomplete. If the officers were behaving unlawfully, their evidence would not be admissible. We disagree. If their behaviour was unlawful, then the judicial discretion under s78 of the Police and Criminal Evidence Act 1984 would arise for consideration.
12. In effect therefore the judge was being asked to exclude the most reliable and undisputed evidence of what had happened when less certain evidence would have been admissible. His ruling did not make the process unfair. To the contrary, it contributed to the greater certainty that a true verdict would be reached if the evidence were placed before the jury. What his ruling did not do was to deprive the appellants of their right to continue to plead not guilty. They remained entitled to put the Crown to proof of the allegations against them, and if they wished, to give evidence to the jury to provide an innocent explanation (if there was one) for the apparently damning evidence contained in the recordings. All the judge decided was that the Crown could produce this evidence to the jury, no more, no less. Faced with his decision the appellants elected to plead "guilty". That represented their free choice, made after advice from their counsel, no doubt stemming from the stark reality that the evidence of their guilt was overwhelming, and presumably, and no one has ever submitted a single word or piece of evidence to the contrary, because they were in fact guilty. In short, justice was done.
13. We are now asked to conclude that the convictions based on the appellants' own pleas of guilty should be regarded as unsafe. In this case that sounds like cloud cuckoo land. Yet we are urged that this is the consequence of the proper application of current legal principles, following the incorporation into domestic law of the Convention.
14. We profoundly disagree. In our judgment, the current state of the law does not require that these convictions should be quashed.
15. Judge Bray's careful and detailed ruling set out the issues he was asked to resolve, and the facts that he found. Among other matters, he noted that authority had not been sought from the chief constable or the Commissioner appointed for the purposes of the Police Act to justify an entry or interference with property under s92 of the Police Act 1997. While he rejected the argument that the police officers were engaged in surveillance for the purposes of the relevant Code of Practice, he did however conclude that the entries by the police into Brewin's property amounted in law to civil trespass and also constituted a breach of Article 8 of the Convention, which protects the right to "respect" for private and family life, but hardly surprisingly, recognises the unpleasant reality that many crimes are planned and committed behind closed doors in private premises.
16. This was not, we repeat, not a case, where the police placed or deposited covert surveillance or recording equipment in Brewin's home, and then left it there, while they could intercept everything said between Brewin and the members of his family, or indeed any other visitors to his home. The civil trespass relied on here stemmed from the fact that the police officers were invited to enter Brewin's premises because they did not disclose their identity and occupation. They knew that if he knew they were police officers they would not have been invited in. So they misled him by allowing him to believe that they were not police officers doing their duty. We do not need to decide whether that converted these entries into the premises into a series of trespasses. What we do not accept is that entry in these circumstances infringed the right provided by Article 8. Brewin chose to deal with these two men on the basis that they would be willing participants in his criminal enterprises. As it happened, they were not. He chose to discuss the possibilities over with them in his home. In the very narrow sense that the discussions took place in that geographical spot, and that Brewin believed that he was dealing with like minded individuals who would treat the conversations as confidential, they were indeed "private". That said, we find it impossible to envisage that the disclosure of what he said to them, or said in their presence in connection with these plans, had anything whatever to do with the rights protected by Article 8, or that respect for his family and private life, was in any way diminished.
17. When Judge Bray turned to exercise his discretion under s78 he proceeded on the basis of civil trespass and contravention of Article 8 by the police. He assumed, also, that he was wrong about the application of the Police Act and the Code of Practice, again therefore favourably to the appellants. He rejected the argument that there had been an abuse of process, rightly commenting that the concept of fairness was "all important" both in relation to s78 and Article 6, and he acknowledged the principle that the exercise of his discretion involved a balance between the public interest "in ensuring that those charged with grave crime should be tried and the competing interest in not conveying the impression that the end justifies any means". R v Latif & Shazad  1 WLR 104. He reviewed the overall fairness of the proceedings and, under s78, was satisfied that it would be "fair to admit the evidence adduced by the undercover officers".
18. That decision is now criticised, in an argument sustained by a generous citation of authority, to which we feel obliged to refer. In R v Chalkley & Jeffries  QB 848, the trial judge rejected an application by the defendant that evidence obtained as a result of police officers placing a listening and recording device in Chalkley's home when he and his family were absent, should be excluded. In the context of the submissions made to us we note that the trial judge expressly took account of the rights enshrined in Article 8 of the European Convention. He also examined and applied the then recent decision of the House of Lords in R v Khan  AC 558.
19. Khan's appeal against conviction was dismissed. The only evidence against him had been produced by an electronic listening device unlawfully installed by the police on the outside of a house without the consent or knowledge of the owner or occupier. This produced a recording of a conversation incriminating Khan. The House of Lords accepted both that the police operation had been unlawful in domestic law and infringed Article 8 of the European Convention. Nevertheless the recording was admissible. In reaching that conclusion it had the advantage of considering several decisions of the European Court of Human Rights, including Klass v Germany  2 EHRR 214, Malone v UK  7 EHRR 14 and Schenk v Switzerland  13 EHRR 242.
"...... If the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings. The fact that the behaviour in question constitutes a breach of the Convention or of a foreign law can plainly be of no greater significance per se than if it constituted a breach of English law. " (per Lord Nolan)
20. We note Lord Nolan's conclusion that the judge was fully entitled to conclude that he should not exclude the relevant evidence, and his admission that he had reached it
"not only quite firmly as a matter of law, but also with relief. It would be a strange reflection on our law if a man who has admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded."
21. Lord Nicholls of Birkenhead underlined that the discretionary powers of the trial judge to exclude evidence marched "hand in hand" with the entitlement to a fair trial provided by Article 6 of the European Convention.
22. Khan was subsequently considered by the European Court. We shall return to it later in this judgment. What no one can doubt was that the European Court was fully informed about the principles of domestic English law, and the vast importance attached in our jurisprudence to the exercise of the judicial discretion to achieve fairness in any criminal proceedings.
23. In the meantime Chalkley was decided in the Court of Appeal. The first issue identified by Auld LJ, giving the judgment of the court, was "whether appellants who have pleaded guilty because the judge rejected their application to exclude evidence which they considered to render their defence hopeless on the facts, can challenge their convictions by way of appeal, irrespective of the correctness or otherwise of the judge's ruling". He reviewed the earlier authorities. Of these authorities, we note, first, R v Erimo  2 CAR 206. In that case Erimo pleaded guilty after his application for a separate trial had been refused. Glidewell LJ observed
"The only proper course ........ and the one which should be followed if this situation arises in the future, is for the defendant who has made the application to continue with his plea of not guilty....... If he pleads guilty this plea is an admission to the facts with which he is charged."
24. In R v Bhachu, unreported, November 18, 1994, the defendant pleaded guilty after the judge had wrongly allowed the prosecution to adduce evidence of admissions made following an inducement. McCowan LJ summarised the consequence of the judge's ruling.
"The judge was not saying that the defendant was guilty on the admitted facts. It was fully open to the defendant ...... to continue fighting the case. All that had happened was that his chances of acquittal had been reduced."
25. Finally, in the present context, attention was directed to R v Greene  Crim LR 659, where the defendant pleaded guilty after the judge had ruled that evidence of his confession should be admitted.
"A plea of guilty in those circumstances serves as an admission of the truth of the contents of the confession. It is not a plea entered where there is no remaining issue to be tried by the jury because it remains open to the defence to invite the jury not to rely on the truth of the confession despite the fact that, contrary to submissions, the trial judge ruled that it was admissible."
26. In his judgment in Chalkley, Auld LJ then went on to consider the impact on general principles of the amendments brought about by the then new s2(1) of the Criminal Appeal Act 1995, and the effect of the single statutory criterion, "unsafe". In that respect his judgment has been reconsidered and must now be read in the light of R v Mullen  2 CAR 143 and R v Togher, unreported, November 9 2000.
27. However the authority of two aspects of his judgment remain undiminished. First, he said:
"A conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged. We qualify the above propositions with the word "normally", because there remains the basic rule that the court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the truth of the facts of the offence charged."
28. The second aspect of the judgment which carries continuing authority is the distinction drawn by Auld LJ between the normal consequences of a plea of guilty following a decision to admit evidence under s78, and the quite separate situation, of a plea being entered when the proceedings ought to have been stayed as an abuse of process (see R v Mullen, applying R v Horseferry Road Magistrates' Court, ex parte Bennett  1 AC 442: R v Togher). No doubt impelled by the difficulties created by the exercise of Judge Bray's discretion under s78, it was argued that the police conduct in this case amounted to an abuse of process. It did not. Without suggesting that the examples of abuse of process currently recognised in the criminal law amounts to an exhaustive list to which additions may not be made as and when the occasion arises, in all the authorities to which we have been referred, including R v Khan itself, and the most recent decision in the House of Lords, R v P & Others,  2 WLR 463, the judge's decision was regarded as an issue requiring the application of s78, and not any question of abuse of process. The obtaining of the evidence in this case did not fall within the sort of abuse identified where, for example, the prosecution had proceeded with inordinate delay, or had deliberately destroyed evidence, or acted in the grotesque and unacceptable way described in the judgment in R v Mullen.
29. We must now return to Khan. The European Court concluded that there was a violation of Article 8 of the Convention. It then went on to consider the effect, amongst other matters, of Article 6(1). It concluded:
"With specific reference to the admission of the contested tape recording, the court notes that, as in Schenk v Switzerland, the applicant had ample opportunity to challenge both the authenticity and the use of the recording. He did not challenge its authenticity, but challenged its use at the voir dire and again before the Court of Appeal and the House of Lords. The court notes that at each level of jurisdiction the domestic courts assessed the effects of admission of the evidence on the fairness of the trial by reference to s78 of the PACE, and the courts discussed, among other matters, the non statutory basis of the surveillance.... The court would add that it is clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it under s78 of PACE ...... The use at the applicant's trial of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6(1) of the Convention."
30. The persuasive effect of the decisions of the European Court in Schenk and Khan was reinforced in R v P & Others. In brief, the issue was whether the judge was right to hold that evidence of recordings and transcripts of telephone conversations between defendants were admissible. Lord Hobhouse of Woodborough considered the passages in the judgment of the ECHR which he explained, at p 474:
"..... emphasised that the defendant is not entitled to have the unlawfully obtained evidence excluded simply because it has been so obtained. What he is entitled to is an opportunity to challenge its use and admission in evidence and a judicial assessment of the effect of its admission upon the fairness of the trial as is provided for by s78."
31. He went on to explain that the decision of their Lordships' House in Khan had been reached before the implementation of the Human Rights Act 1998, and he continued, at p 475:
"The importance of the ECHR decision is that it confirms the direct operation of Article 8 and 6 does not invalidate their Lordships' conclusion or alter the vital role of s78 as the means by which questions of the use of evidence obtained in breach of Article 8 are to be resolved at a criminal trial. The criterion to be applied is the criterion of fairness in Article 6 which is likewise the criterion to be applied by the judge under s78."
32. Towards the end of his speech, at p 479, Lord Hobhouse observed:
"Tape recordings and transcripts (about the accuracy of which, be it said, there is no dispute) will be the best evidence of what was said. The fairness of the trial of these defendants requires that the evidence be admissible."
33. We were invited to ignore Khan and Schenk, or rather, if we considered them at all, to do so subject to the trenchant criticism advanced by Professor Ashworth in his commentary on Khan at  CLR 684. There are a number of answers to this submission, but the simple one is that we are bound by the decisions of the House of Lords in Khan and P. As a subsidiary point, we should add that we find the decisions of the European Court in Schenk and Khan to be wholly persuasive, but even if we had not, we would have remained bound by the decisions in the House of Lords.
34. This was a perfectly straightforward case. No single element of unfairness was demonstrated at any stage. We emphasise that we have not decided that there were any breaches of the relevant statutory principles, or Article 8, or that the police officers rendered themselves trespassers at civil law, but even if we had, we remain wholly unconvinced that anything that the police officers did caused any unfair prejudice to either of the appellants. The short answer to this case is that once the police had good grounds for suspicion that crime was being committed in the flat below, they investigated it in such a way that there could be absolutely no dispute about what actually happened during the course of their visits. That was all they did, and quite apart from the evidence obtained from the tape recordings, there was further evidence, in the form of proved possession of drugs, and stolen property. But even if there had been none, the judge's decision to admit the evidence was absolutely faultless. His decision ensured that any subsequent trial would have been a fair one. In the result, guilty defendants, faced with conclusive evidence of their guilt, elected to admit it. Justice was done.
35. Bailey is thirty years old. He has several convictions, none in connection with drugs. Brewin is twenty eight years old. He has numerous previous convictions, although none were drug related. Both have served previous custodial sentences. Gangji is thirty. He, too, has previous convictions, his last in 1993. Earlier sentences were non-custodial. In 1993 he was convicted of simple possession of cannabis and fined. Several character references were provided which suggested genuine efforts at rehabilitation and a more positive contribution to the ordinary life of the community.
36. So far as Bailey and Brewin are concerned, it is clear from the recordings of the conversations which they had with the police officers that they were running a business selling cannabis, amphetamine and ecstacy tablets from Brewin's house. There were some detailed discussions about prices, and the amounts which they could make available for sale to the undercover officers were substantial. Thus, for example, the officers were actually sold a nine ounce bar of cannabis resin, nine ounces of amphetamine, and one thousand tablets of ecstacy, all of which, by amount alone, suggests that these drugs would be distributed further down the chain, and were not for the personal use of the purchasers. Brewin's position was aggravated by the fact that he continued to offer ecstacy tablets for sale whilst he was on bail for an unconnected offence. Moreover, but quite separately, it was also clear from his dealings with the officers, and offers to sell and sales of property stolen in dwelling house burglaries within minutes of the burglaries taking place, that Brewin was actively involved in them. The burgled homes were clearly targeted as a likely sources of valuable property.
37. Gangji's position was rather different. Although the case initially advanced by the Crown suggested far greater involvement, in the end, after Judge Bray's ruling, his plea was tendered and accepted on the basis that he was involved in a single incident when, knowing that Bailey was engaged in a drugs transaction, Gangji acted as his chauffeur.
38. The crucial point in the submission made on behalf of each of the appellants that the sentences were excessive is the contention that the judge failed to give any or any appropriate credit to them for their guilty pleas. The context however is simple. Bailey and Brewin did not plead guilty until the judge had ruled that the evidence produced by the tape recordings was admissible. Six days of court time was used. Once the judge made his ruling, although the defendants would have been entitled to continue to deny their guilt, the only realistic possibility of an acquittal would have been a perverse jury. The allowance for a plea of guilty to be made in circumstances like these is minimal, and that, in our view, was the effect of what the judge said. Any greater allowance would have been disproportionate, failing to mark the justifiable distinction between a plea of guilty tendered in circumstances like these, and the defendant, with a genuine sense of remorse, who pleads guilty at the earliest possible opportunity, even when the case against him would otherwise not be a strong one. The position of Gangji is rather different. The count to which he pleaded guilty, and the basis on which his plea was accepted, represented an altogether different level of criminality to that originally advanced. In the end he was to be sentenced for his involvement as an assistant to Bailey in a single transaction and he pleaded guilty on this basis as soon as that plea became acceptable to the Crown.
39. We can find no basis for concluding that the sentences on Bailey and Brewin were wrong in principle or manifestly excessive. Indeed in Brewin's case, had it not been for the existing nine year sentence for robbery, and the totality principle, the sentences imposed by Judge Bray could have been substantially longer. In Gangji's case however, we have concluded that the three year sentence of imprisonment was somewhat excessive for his admitted criminality. Accordingly we shall reduce the sentence on Gangji to two years imprisonment.