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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barkshire & Ors, R. v  EWCA Crim 1885 (20 July 2011)
Cite as:  EWCA Crim 1885,  Crim LR 453
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London, WC2A 2LL
B e f o r e :
MR JUSTICE TREACY
MR JUSTICE CALVERT-SMITH
|R E G I N A|
|DAVID ROBERT BARKSHIRE|
|ADAM KEITH WEYMOUTH|
|BEN JOHN STEWART|
|PHILLIP ASHLEY MURRAY|
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Mr N Gibbs appeared on behalf of the Crown
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"Each of these defendants admit that they have committed all of the acts which are necessary for the prosecution to prove the case against each of them. In other words, in the absence of a defence they admit they have committed the offence but say they were justified in doing what they did."
"Each defendant is innocent of this offence if they reasonably believed (even if mistakenly):
1. That it was necessary to do what they were doing in order to avoid the imminent threat of serious injury to himself/herself or others, and
2. That in the circumstances that they believed them to be, it was reasonable and proportionate to do what they were going to do.
So the prosecution have to make you sure that:
Either: doing what they planned to do was not necessary for the above purpose
Or: that it was unreasonable and disproportionate for them to do what they were going to do.
If the prosecution have not made you sure, then the defendant is not guilty."
"must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and dispute over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury."
"Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant ... should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made."
That material includes anything available to the prosecution which may undermine confidence in the accuracy of evidence called by the prosecution or which may provide a measure of support for the defence at trial.
"UCO133 (that is Kennedy) will decline the offer for a solicitor. UCO133 will be engaged in driving and dropping off of activists prior to them committing offences. UCO133 will withdraw from the vicinity of the power station to avoid arrest and avoid becoming a witness to offences. SIO Inspector David Hutcheson will be regularly informed of the situation of UCO133 and in the event of ... arrest will be immediately informed in order to liaise with the Nottinghamshire Senior Management and the Criminal Prosecution Service."
"Previously unavailable material that significantly undermines the prosecution case came to light on Wednesday 5th January. In the light of this information, the Crown will not proceed with the trial and are discontinuing the case. We shall be offering no evidence on Monday 10th January."
(a) There was a failure to disclose relevant material to the CPS by the Nottinghamshire Police prior to the trial of the six defendants whose trial was due to start on 10th January, which collapsed on 7th January.
(b) If there was a failure to disclose, whether this had a bearing on the collapse of the criminal proceedings.
(c) If there was a failure to disclose resulting in the collapse of the proceedings, whether this was as a result of misconduct by any police officer or any police staff member employed by the Nottinghamshire Police.
(d) If there was misconduct, the nature of that misconduct, those involved in it and the gravity of the matter.
(a) To identify whether the actions of Kennedy were consistent with those authorised for his deployment and, if found to be inconsistent, to report upon the nature and seriousness of any breach.
(b) To establish if the management and records relating to his overall deployment against environmental extremism and in particular this investigation were in accordance with the relevant codes and legislation and that appropriate records were made by the appropriate authorising authorities. This review will run parallel to the HMIC review and there is every likelihood that a joint report will be available for publication in September.
"The safety of the convictions should be considered by the Court of Appeal as soon as possible. As you know, the prosecution cannot lodge an appeal to the Court of Appeal save in very limited circumstances and I therefore invite you to lodge an appeal and to include the issue of non-disclosure of material relating to the activities of an undercover police officer in any grounds of appeal ... the CPS will assist in any steps you may wish to take in expediting the appeal."
(a) the CPS approach to charging in this case was right, bearing in mind the known existence of an undercover police officer in the operation.
(b) the CPS and prosecution counsel complied with their disclosure duties properly in relation to the known existence of an undercover police officer in this case.
(c) the CPS arrangements in place for handling the known existence of an undercover police officer, including arrangements between the police and the CPS, the CPS and counsel and the local prosecuting team and the national co-ordinator, were adequate and properly followed in this case.
(d) the CPS followed all relevant guidance and policy in relation to the known existence of an undercover police officer in this case.
The independent inquiry will also make such recommendation it feels appropriate in light of the examination and findings set out above, including, if appropriate, recommendations about CPS policy and/or guidance and CPS arrangements for handling cases involving undercover police officers.