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Cite as: [2013] EWCA Crim 2230

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Neutral Citation Number: [2013] EWCA Crim 2230
Case No: 2012/03011/C3

Her Honour Judge Smith
T 20117087

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :




- and -



Mr Michael Wolkind QC (instructed by G.C.Wroe & Co) for the First Appellant
Mr Dafydd Enoch QC (instructed by Janes Solicitors) for the Second and Third Appellants
Mr John Price QC (instructed by the Crown Prosecution Service) for the Respondent.
Hearing date : 8th November 2013



Crown Copyright ©

    Lord Justice McCombe:

  1. On 11 and 12 April 2012 in the Crown Court at Reading, following a trial before the Recorder of Reading (Her Honour Judge Smith) and a jury, the appellants were convicted of the attempted murder of Mr Quadir Hussain and were sentenced by the Judge to life imprisonment, with a minimum custodial term of 10 ½ years, less 404 days spent in custody on remand. These convictions were returned at a second trial, after a first trial at which the jury were unable to agree verdicts. The appellants now appeal against conviction by leave of the Full Court granted on 19 April 2013. Applications for leave to appeal against sentence have been adjourned to await the outcome of the conviction appeals.
  2. The principal issue before the court is whether the learned Judge was correct to admit into evidence recordings of conversations between the appellants Kajla and Mahmood which occurred on Saturday, 5 March 2011 when they were in a police van, in the course of transport from custody in Reading to the Magistrates Court at Slough having been charged with the present offence. The appellants contend that this evidence should not have been admitted by the Judge and that the convictions are accordingly unsafe.
  3. The background circumstances of the case were as follows. Shortly before 11.30 p.m. on the evening of 27 September 2010, Mr Hussain was shot three times, from a distance of about 8 feet, as he got out of his car at the front of his home in Reading. He was struck in the chest, left shoulder and upper arm. Mercifully, Mr Hussain survived the attack. As he was shot, he was speaking to a friend on his telephone; in his plight, he asked his friend to call the police, which the friend did. Mr Hussain was later to describe the gunman as a light skinned Asian man. A possible motive for the crime was thought by Mr Hussain to be a family feud concerning land in Pakistan. The appellant Khan is Mr Hussain's cousin. Their fathers were brothers and appear to have been at the centre of the property dispute. Shortly before the shooting Mr Hussain had been approached in the centre of Reading by Khan's sister who, Mr Hussain said, had uttered a threat that he would be killed because of something to do with this dispute.
  4. On the evening in question, witnesses reported seeing a blue MG Rover saloon car, with two occupants, parked near to Mr Hussain's home from about 9.30 p.m. The car was observed by one of these witnesses at 11.05 p.m. (less than half an hour before the shooting) in the street where Mr Hussain lived, with its windows steamed up. However, the witness could again see the outline of two occupants. A further witness saw the car, minutes before the shooting, apparently then unoccupied; as the witness waited for his own front door to be opened by his wife, he heard three shots. Shortly after the shots another neighbour saw a blue MG Rover drive off at speed; he managed to recall some of the digits of the registration number. Four minutes after the shooting police received a report of a vehicle fire about 1 ½ miles away from the scene. It was found that the vehicle was a blue MG Rover which had been deliberately "torched". It bore false number plates, corresponding to the short details remembered by one of the witnesses.
  5. It was discovered that the car had been stolen in Coventry on the night of 23/24 September 2010, some 4 days before the shooting. On the evening of the following day, that car (with its false plates) was picked up by a police number plate recognition camera, heading south on the M40 motorway into the Thames Valley area. The false plates were traced to a Birmingham number plate manufacturing company. The owner of that business recalled three Asian men calling at his premises on the same day as the motorway sighting, ordering and collecting the plates. By the time the police began to make enquiries there, the CCTV images for 25 September were no longer available. On 18 November, however, the owner of the business telephoned the police to inform them that two of the men who had visited previously had returned to purchase a further registration plate. The police did recover the CCTV footage of that visit, which depicted two men, said to be the appellants Mahmood and Kajla. They were also seen to have travelled to the premises in a motor vehicle which was then traced to the family of the appellant Mahmood. That car, another car (hired on a credit card issued to Mahmood) and the Rover were all traced by number plate recognition to the Reading area during the period 25 to 29 September.
  6. On 3 March 2011 the appellants were arrested. In interview they declined to answer questions. Khan provided a prepared statement in which he agreed that he knew Mahmood, but contacted him only occasionally.
  7. In the course of the arrests mobile telephones were recovered and further connections were made between the appellants, in the relevant period, through six separate telephone numbers.
  8. By the time of trial all this material began to make up a significant circumstantial case against the appellants in respect of the attempted murder of Mr Hussain. However, the direct evidence at the time of the arrests was limited. In these circumstances, on 21 February 2011 (prior to the arrests) the investigating officers had sought authorisation, under the Regulation of Investigatory Powers Act 2000 ("RIPA"), from an appropriate superior officer to conduct "directed surveillance" on those to be arrested, including the appellants. The request for authorisation was for recording equipment to be installed in two marked police vans to be used to convey the suspects to court on the occasion of what it was thought would be an application for a warrant for further detention following "no comment" interviews.
  9. The authorisation documents are lengthy and we intend to refer only to certain salient features. In the request for authorisation the purpose of the exercise was stated to be
  10. "…to gather intelligence and evidence on the…subjects with a view to proving or disproving their involvement in this offence namely the attempted murder of Quadir Hussain…"
    The circumstantial case, as then known, was summarised. It was said that, owing to the complex nature of the investigation, warrants for further detention would be needed and that the suspects would be likely to provide "no comment" interviews. The application continued,
    "It is firmly believed that this application will enable the police to establish a link between Imran Khan who resides in Reading and the individuals from Coventry…The tactic will only be employed post arrest and once the…suspects have been given every opportunity to provide their version of events, having had every opportunity to utilise their rights under the PACE Codes of Practice. A Policy decision will be made by the SIO [Senior Investigating Officer] with regards to pairing the suspects together for transportation. This will be done to try to achieve the best results to progress this investigation further. Two suspects will be placed in each of the transit vans whereby they will be left for a short period of time on their own. It is believed that this engineered meeting will generate a conversation between the suspects which will greatly assist in proving or disproving their involvement in the Incident."
  11. The authorisation request was drafted by a Detective Sergeant in the Thames Valley Police. To this request, the supervising officer, an Acting Detective Inspector, added his comments which included this,
  12. "A vast amount of enquiries have been conducted regarding this investigation. However at this time the majority of the evidence is circumstantial and it is unknown as to whether CPS will provide an authority to charge. Therefore, this tactic, if successful, could identify critical evidence to assist in reaching a charging decision. This method is the least intrusive means of obtaining such evidence and is a necessary justified and proportionate tactic. Should the authority be granted, it will be kept under continual review until the day of deployment in case the intelligence or evidential picture changes. Should significant evidence come to light before then, the authority will be reviewed with the SIO to identify whether it is still a justified tactic."
  13. The authorisation was given on the following day (22 February) by a Superintendent who wrote,
  14. "I believe [this application] is necessary for preventing and/or detecting crime or of preventing disorder under section 28(3) of [RIPA] and para. 5.1 of the "Covert Surveillance and Property Interference" Codes of Practice.
    I believe that it is proportionate, having regard to para. 3.6 of the … Codes of Practice, as the application is material to progress an investigation into attempted murder…
    …I concur with the applicant that, if required, this activity could be considered to be the only reasonable means of achieving the objectives of the operation. It is anticipated that if all other investigative methods have been utilised, and conclusive evidence sufficient to charge [sic: is] still required then the use of this tactic may secure the necessary evidence of the criminal offences being investigated…
    The purpose of the directed surveillance is to gather intelligence and evidence of the … subjects with a view to proving or disproving their involvement in this offence…"
  15. The authorisation was stated on its face to be effective for a period of three months, i.e. to 21 May 2011. However, it seems tolerably clear from the contents which we have quoted that the tactic was designed to assist a charging decision.
  16. The surveillance tactic was duly employed on the morning of Saturday, 5 March as the appellants Mahmood and Kajla were being conveyed to court in Slough. However, by then, the purpose of the court hearing was not to obtain a warrant for further detention. Contrary to what the police had expected, on the evening of Friday 4 March, the Crown Prosecution Service had authorised the charging of the appellants with attempted murder and they were so charged between 6.00 and 6.30 p.m. on that evening. Therefore, they were being conveyed on the Saturday from Lodden Valley police station to the Magistrates Court at Slough not for an application for a warrant of further detention but for the first post-charge hearing in the court.
  17. During the course of the recorded conversations, these two appellants made certain remarks implicating them further in the incidents at the premises where the number plate was obtained and made references to someone with a nickname "Bana", which other evidence established as being a nickname for the appellant Khan.
  18. At the first trial, the Crown did not seek to rely upon the evidence of the conversations in the van. However, they did wish to use it at the second trial. Mr Price Q.C., who has appeared for the Crown throughout, told us in his written argument that the decision at the first trial was tactical; the conversation contained no explicit admissions and the transcript as ultimately used (in an agreed version) was not obtained until after the first trial. That document made it clear that the two men recorded were aware, at the outset, of the possibility of a "bug". The use of the tape in evidence was opposed by the defence in the second trial.
  19. It has been accepted throughout that the recording made on 5 March 2011 in the police van exceeded the RIPA authority granted on 22 February, in that the request for authority, sought and given, was stated in the passages quoted above, to be for the purpose of assisting the charging decision by providing direct, as opposed to circumstantial evidence, of involvement in the offence. This concession was made by the Crown notwithstanding the wider purposes of the application and authorisation stated elsewhere in the documents. We do not revisit it. The Crown accepted at trial that if the recording tactic was also employed in bad faith, in the sense that it was done by the officers concerned knowing that it went outside the terms of the authorisation given, they would not seek to rely on the recording.
  20. A "voire dire" was held as to the circumstances in which the recording was made, in the light of the terms of the authority given, to determine whether or not the recording had been carried out "in good faith" in this sense, the officers not appreciating the limits of what they were authorised to do and when.
  21. The Judge found that the SIO was not aware of the terms of the authority that had been given and that the other relevant officer was content to proceed as the factual circumstances giving rise to the application had not changed. Having heard the evidence, the Judge found that the officers had not acted in bad faith, knowing that they were exceeding their authority.
  22. That factual decision by the Judge was not challenged in this court by any of the appellants. However, all the defendants maintain their objection to the admission of the evidence and submit that it ought to have been excluded by the Judge in exercise of her discretion under section 78 of the Police and Criminal Evidence Act 1984 ("PACE").
  23. The Judge rejected the defence submissions. The principal reasons for her decision appear at p.7 of the Transcript of her Ruling as follows:
  24. "The defendants here were charged with one of the most serious of offences. Nothing evidentially had changed from the time the authorisation was given and, therefore, the same degree of necessity and proportionality remained. And in these circumstances, the use of the covert device in the opinion of the court did not amount to an abuse.
    By section 78, the court may refuse to admit evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
    The defence submissions are well set out in the skeleton arguments put before me and in their oral submissions.
    No coercion was practised on the defendants to make them talk. The decision to pair the second and third defendants was obvious; they were friends and it was necessary to pair at least two defendants in order that there would be a conversation. And I conclude that the recording is relevant and admissible and from which a jury would be entitled to infer that both men were present at innovate on 25 September when the false plates in the MG were required. And that they had hypothesised as to what they might say as to a reason for having visited Reading."

    There followed certain other specific decisions to include or exclude certain specific passages, but we do not need to say any more about those particular points.

  25. For Khan, a separate point was taken by Counsel then appearing for him. He submitted that, even if the evidence of the van conversations was admitted, the references in the transcript to the name "Bana", and anything said in connection with that name, should be excluded on the basis that the words were hearsay or were spoken in Khan's absence. On either basis, it was argued, those representing Khan were unable to explore how Kajla came to know him by that name or the context in which he came to speak of him. Accordingly, those passages should in any event be excluded.
  26. The Judge rejected the contention that the references to "Bana" were hearsay, because, she held, they were not evidence of a matter stated and were "not being said to make another believe that they [were] true". The Judge said that the words spoken were no different from notes, hypothetically scribbled by Kajla indicating a familiarity with Khan, that were uplifted in a search of Kajla's property. Like such notes, the Judge held, the words spoken were admissible as relevant to the question of the disputed association between Kajla and Khan.
  27. This last point has been argued somewhat differently from the manner in which it was argued at trial, by Mr Wolkind QC who now appears for Khan, but who did not appear below. We return to that point below.
  28. The case duly proceeded. The evidence of the "van conversation" was placed before the jury. At the close of the Crown case, submissions of no case to answer were made on behalf of Khan and Kajla. The Judge rejected the applications, relying at least in part upon the evidence of the "van conversation".
  29. None of the accused gave evidence. The Judge summed up the case on Tuesday, 10 and Wednesday, 11 April and the jury retired to consider their verdicts at 12.46 p.m. on the Wednesday. At 4.22 p.m. they returned a unanimous verdict of "guilty" in respect of Khan, but did not agreed on verdicts for the other two appellants. The Judge then adjourned proceedings for the day. On Thursday 12 April, the jury went into retirement again at 10.30 a.m. At 2.22 p.m. after over 7 hours' deliberation they returned to court and were given majority verdict directions. At 3.11 p.m. they returned with majority verdicts of "guilty" in respect of Mahmood (with a majority of 11 to 1) and of Kajla (with a majority of 10 to 2).
  30. On the present appeal, Mr Dafydd Enoch QC appears for Mahmood and Kajla, having appeared for Kajla alone at trial. Mr Wolkind QC (as we have said) appears for Khan. Mr Price Q.C. appears for the Crown, as before.
  31. For the appellants, it is submitted that the convictions are unsafe because the Judge wrongly allowed the Crown to adduce the evidence of the "van conversation". Mr Enoch said to us that if that evidence had been correctly admitted, then the case for saying that the Judge should have acceded to the submission of "no case" was "reduced". He did not say it was reduced to nothing, but (it has to be said) he did not advance before us any oral submissions in independent support of an appeal on that ground and we can see none. He was supported by Mr Wolkind, who contented himself with adopting Mr Enoch's submissions on it.
  32. We turn to the case on the "van conversation".
  33. Mr Enoch submitted that this was factually an important case of its kind. It was a case where it was accepted by the Crown that the police had acted unlawfully in carrying out the recording. He argued that the surveillance could no longer be seen, post-charge of these appellants, to be either "necessary or proportionate" within the meaning of RIPA and/or the Code of Practice issued under it. The breach of the authority was "serious and significant" and undermined the integrity of the appellants' rights under the PACE Codes. By the time the recording was carried out, the CPS had given authority to charge and the appellants had been charged. Indeed, it could be seen that the evidence was quite sufficient to mount a case against the appellant without this evidence because the Crown had not sought to use it at the first trial.
  34. To interpolate a factual submission by Mr Price QC for the Crown at this stage, he argued that the evidence was not as robust at the date of the recording as Mr Enoch sought to suggest. He pointed out that a very substantial amount of work was carried out later, between March 2011 (the date of the recording) and the start of the trial in the summer of that year, to analyse in particular, the evidence derived from the 100+ telephones, simcards and other materials seized at the time of the arrests.
  35. Mr Enoch's case before us was simply that this was a clear case in which the Judge should have ruled out this evidence under section 78 of PACE. He submitted that if ever there was a case for exclusion of evidence this was it, even though the Judge had absolved the police of bad faith in what they had done.
  36. In support of these submissions, Mr Enoch relied in particular on the decision of this court in Plunkett & anor [2013] EWCA Crim 261 (Sir John Thomas P (as he then was), Swift and MacDuff JJ). In that case, the two accused were charged with and convicted of aggravated burglary, committed on 5 November 2010, in the most horrifying circumstances, in which three men had forced their way into the home of a family called "Butt". Family members were tied up. The father of the family was threatened with a gun and a syringe said by the attackers to contain blood contaminated with HIV virus. He was ordered to open safes. Even after Mr Butt had done this, one of the burglars inserted the syringe needle into him, but without injecting fluid. The men made off with valuable items and about £37,000 in cash. The victims were so terrified by their experience that no report was made to the police until a time between 15 and 30 March 2011, when the men accused of the burglary had been sentenced to 6 and 7 years in custody for other offences. They were arrested for the aggravated burglary and on three occasions, while in police vans, they were recorded in conversation.
  37. In support of a case that the evidence of the recordings should be excluded, it was argued, first, that the surveillance was "intrusive" rather than "directed" (within the meaning of RIPA) because it had been carried out in a "private vehicle" and thus had to be authorised not by a Superintendent (as was the case), but by the Chief Constable. Therefore, there was no valid authorisation. Secondly, it was said that the surveillance, however categorised, was neither necessary nor proportionate. Thirdly, it was argued that because they had been recorded on the first occasion before having had the opportunity of seeing their solicitor, they had not been afforded adequate time and facilities for the preparation of their defence within the meaning of Article 6(3)(b) of the European Convention on Human Rights. Thus, for all these reasons, the evidence should have been excluded by the Judge under section 78 of PACE.
  38. The court held, not surprisingly, and with little difficulty, that a police van was not a "private vehicle" and thus the surveillance, authorised by a Superintendent, was "directed surveillance" and was correctly authorised under RIPA. The court went on to consider whether the surveillance was "necessary and proportionate" for the purposes of section 28(2) and (3) of RIPA, i.e. that it was necessary "for the purpose of preventing crime or of preventing disorder". The court recited the findings of the trial Judge that the surveillance was "necessary" in view of the circumstantial nature of the evidence then available, which in that case like the present, lacked detailed computer and cell site analysis and in view of the ongoing threat to the Butt family. On this issue, this court agreed with that finding. At paragraph [39] of the judgment, Sir John Thomas said,
  39. "It was not disputed before us that the burglary of the Butt household and the terrifying attack to which they were subjected was conduct that a civilised society cannot tolerate. It must have been the case, as the judge found, that the Butt family were terrified, s they had not reported the attack for some months. Those who had carried out the attack were persons plainly prepared to resort to the most serious violence and could be regarded as exceptionally dangerous. The judge was fully entitled to find that the Detective Superintendent believed that the surveillance was necessary and that there were indeed very strong objective grounds for that belief. The judge was right. Establishing who the attackers were was, in our judgment, plainly necessary."
  40. On the question of proportionality, after reference to paragraph 3.6 of the Code of Practice, the court rejected a submission that the police should have waited until the technical analyses of the telephone and computer evidence was available. It held that the threat to the Butts was real and that it was unrealistic to await these further reports.
  41. The court also rejected the contention that the police conduct infringed Article 6(3)(b) of the Convention. There had been no breach of confidentiality. There was an adequate facility for the accused to consult with lawyers before interview and, thereafter, there was proper time to prepare the defence.
  42. Accordingly, the surveillance was held to be lawful and the court proceeded to consider the question of whether the surveillance evidence should nonetheless have been excluded under section 78 of PACE. The trial Judge had rejected a submission that the surveillance had been "a cynical attempt to circumvent the PACE procedures and, in particular, the right to silence" – a submission having its parallels to the argument of Mr Enoch QC in the present case. In Plunkett the Judge had held that there was no trickery or manipulation of process, no oppression, no inducement, misrepresentation or entrapment. There had been no wrongdoing or lies. The evidence had been obtained lawfully and there was no breach of Article 6.
  43. After considering some of the authorities, to some of which we return below, the court concluded on this issue as follows:
  44. "58. In our judgement, even if there had been a breach of RIPA or of s.30 (1A) of PACE, the breaches would have been minor, given the immense seriousness of the crime and the need to protect the Butt family. There was nothing in what the police did that called into question the integrity of the criminal justice system.
    59. Against those observations, we turn to consider the central question of the fairness of the trial. The judge rightly held that there had been no misrepresentation, entrapment or other conduct that could be characterised as misbehaviour; the police had simply afforded the opportunity to the applicants to talk together. There was nothing to suggest that what was said by the applicants during the conversations was anything other than true. They had full opportunity to test all the other evidence in the case and to provide an explanation of the conversations in the van.
    60. We conclude that the judge was entitled to exercise the discretion under s.78 as he did. Not only was it within that ambit of discretion open to him, but he was correct in exercising it as he did. Even if, contrary to the views both the judge and this court has formed, there had breaches of RIPA or s.30(1A) of PACE, the evidence was properly admitted and there was no ground to exclude it under s.78."
  45. We have spent a little time with this case because of Mr Enoch's submission that the case demonstrated how the court should approach questions of the lawfulness of surveillance and the exercise of the discretion under section 78 of PACE to exclude evidence obtained by it in this type of case. He argued that the Judge in this case did not truly engage with this process.
  46. In our judgment, on the present facts, it was not necessary for the Judge to engage at any length with the provisions of RIPA because it was accepted by the Crown that the police had exceeded the authority granted under that Act and the only question for the Judge was whether the evidence should be excluded under section 78. As Sir John Thomas said, at paragraph [51] of the judgment in Plunkett, covertly recorded evidence is in principle admissible but can be excluded under that section. The focus of the enquiry, whether the evidence has in fact been obtained within or without the provisions of the enabling statute, must be the effect on the fairness of the proceedings. He quoted a passage from the speech of Lord Nolan in Khan [1997] AC 358 at 582, which bears repeating:
  47. "But 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."

    Sir John further noted that the European Court of Human Rights, in its decision in the Khan case, also made clear that despite a breach of Article 8 of the Convention, the central question was whether the proceedings as a whole were fair.

  48. It is necessary to recall, in cases such as the present, that the Strasbourg cases have consistently held that issues of admissibility of evidence obtained unlawfully are for the national courts to decide based on principles of fairness. The cases on this subject were collected and reviewed by Lord Hobhouse of Woodborough in R v P [2002] 1 AC 146, a case (along with several others) which was cited in the written materials before us but which was not referred to in argument. Lord Hobhouse said (at p. 159G):
  49. "Questions of admissibility of evidence are not governed by Article 8. The fair use of intercept evidence is not a breach of Article 6, even if the evidence was unlawfully obtained".

    A little later in the speech (at p.161E), his Lordship said that it was not within the power of the criminal court at trial to provide a remedy for a breach of Article 8 of the Convention. As he put it, summarising the European Court's view on this matter in Khan,

    "Section 78 was concerned with the fairness of the trial not with providing a remedy for a breach of Article 8".
  50. It is, of course, the Article 8 rights of suspects that are potentially infringed by surveillance activities of investigating authorities and it is to that Article of the Convention that RIPA and the Code of Practice, made under section 71 of that Act, are principally directed. As is well known, Article 8 provides as follows:
  51. "Right to respect for private and family life.
    1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others."
  52. Interference with Article 8 rights are only permissible so far as it is "in accordance with law" and so far as it is necessary for the stated purposes indentified, including "prevention of disorder or crime". The interference must also be "proportionate".
  53. In Malone v UK (1984) EHRR 14 the European Court held that the United Kingdom's surveillance arrangements were not sufficiently underpinned by clear provisions of law, readily accessible to the public, in order to preclude abuse and to satisfy the requirement that relevant interference must be "in accordance with law" under Article 8. The result was the passing of the Interception of Communications Act 1985. After the decision to similar effect, even after enactment of the 1985 Act, concerning covert surveillance planted by police on private property (Khan (2000) 31 EHRR 45, paragraphs 27 and 28), RIPA was enacted: see per Lord Hobhouse in R v P at pages 156B to 157E.
  54. For these reasons, to meet the requirements of Article 8 (as considered in Malone and Khan), RIPA, in section 28(2) and (3), requires that surveillance must be "necessary" (inter alia)…"for the purpose of preventing or detecting crime or preventing disorder" (section 28 (2)(a) and(3)), essentially mirroring the requirements of Article 8. It must also be "proportionate" (section 28(2)(b)). The Code, made under the Act (copied with Mr Enoch's supplementary skeleton argument, but not cited at the hearing of the appeal) appears to us to be similarly directed: see Chapter 2, paragraphs 2.2 and 2.3. All these materials are designed to ensure compliance with Article 8 of the Convention. They have nothing to do with the "fair trial" provisions in Article 6.
  55. In the present case, while the surveillance was carried out in good faith, it was conducted in circumstances in which the investigating officers negligently failed to have proper regard to the limits of their authorisation. Accordingly, there was a breach of the appellants' rights under Article 8 of the Convention. Mr Price Q.C. for the Crown submits that a negligent, but brief, invasion of rights to privacy cannot conceivably amount to such unfairness as to have required the Judge to exclude potentially relevant and cogent evidence. Certainly, he submits, the Judge's decision could not be impugned upon any application of the Wednesbury test, to the extent that that test is applicable to a review of trial Judges' decisions under sections 78: see the cases collected and summarised in Archbold 2013 at paragraphs 15-418 to 15-419, p. 1802.
  56. Before expressing a view on that point, it is right to consider the wider submission made by Mr Enoch (and adopted by Mr Wolkind QC) that, quite apart from Article 8 considerations, what occurred here was an undermining of the integrity of the PACE codes and the "right to silence" that had been exercised by Mahmood and Kajla in the course of their police interviews. We were not directed to any specific provisions of the PACE Codes, but we have obviously borne in mind the prohibition in PACE Code C paragraph C:16.5 generally prohibiting interviews post-charge.
  57. We note, however, the decision of this court in Bailey & Smith (1993) 97 Cr. App. R 365. In that case, two men charged with conspiracy to commit robberies had exercised their right to silence in interview and were remanded in police custody by the Justices for the express purpose of conducting identification parades. During that remand, the police took the opportunity to "bug" conversations between them in a police cell. It was submitted that the process "drove a coach and horses" through the PACE Codes. This court rejected that submission. Simon Brown LJ (as he then was), giving the judgment of the court, referred to the decision in Shaukat Ali (1991) The Times, 19 February, concerning the covert recording of conversation between the appellant and his family at a police station on the day after charge. In that case Tasker Watkins LJ had said,
  58. "The Code is absolutely silent as to a circumstance such as this, and it does not provide that there should be any kind of warning to an accused at a police station as to the fact that it might be possible that a police officer or police officers would in certain circumstances eavesdrop upon conversations that an accused person might be having with someone else at a police station, for example, with a fellow prisoner or with someone else with whom he was having an audible conversation about the matter in respect of which he was being kept in custody and in respect of which he may by that time have been charged. There is nothing in the Code which prohibits, so it seems to us, inferentially or directly, what was done by the police here in bugging the interview room."
    …….that recordings of conversations taken in an interview room which the police have bugged is admissible in law in court. The remaining question is always, therefore, whether a trial judge, having regard to the provisions of section 78 of the 1984 Act, should in the exercise of his discretion, having regard to the way in which the evidence has been gathered, admit it and, therefore, allow it to be heard by the jury….
    We are very firmly of the view that the police in the most serious circumstances of the investigations being conducted, whatever views some may have against eavesdropping by bugging and so on, did not act unlawfully, although the appellant by that time had been charged. There was clearly no oppression of him and no questioning at all. Even if we had formed a contrary view, we would not rule that the learned judge's exercise of discretion was wrong. There is a very broad discretion given to the court under section 78, even to the extent of recognising that the method used was to gather evidence contrary to the Code."
  59. In Bailey, the court recognised that Shaukat Ali was perhaps the first case in which evidence of recordings obtained post-charge had been held admissible. The court followed that decision and held that the recorded conversation in that case too had been properly admitted. Concluding the court's judgment, Simon Brown LJ said,
  60. "We regard as mere rhetoric Mr Wood's submission that deceitful conduct of this sort drives a coach and horses through the Code to the point where the police will in future not bother even to interview suspects. Manifestly this is not a stratagem to be used with any frequency - nothing would more obviously be self-defeating; it should be used only in grave cases. And manifestly nothing should be done oppressively or so as to render unreliable any admissions made - grounds in either case for objection under section 76 of PACE. But where, as here, very serious crimes have been committed - and committed by men who have not themselves shrunk from trickery and a good deal worse - and where there has never been the least suggestion that their covertly taped confessions were oppressively obtained or other than wholly reliable, it seems to us hardly surprising that the trial judge exercised his undoubted discretion in the manner he did."
  61. Mr Enoch invited us to note that in Bailey the court rejected any suggestion that there was any element of illegality or breach of any Code of practice and that the decision was itself 20 years old, pre-dating RIPA.
  62. With regard to the first of these points, it is to be noted that in Bailey, Simon Brown LJ said that the last sentence of the passages quoted above from Watkins LJ's judgment in Shaukat Ali indicated that even if the disputed evidence had been obtained in breach of the Code, it still fell within the Judge's discretion to admit it.
  63. In so observing, we do not forget that both Shaukat Ali and Bailey pre-date the decision of the House of Lords in Looseley [2002] 1 Cr App R 29, in which it was decided that the House's earlier decision in Sang [1980] AC 402, in relation to the admissibility of evidence obtained "unfairly", had been superseded by section 78 of PACE, as reinforced by the Human Rights Act 1998: see per Lord Nicholls of Birkenhead in Looseley paragraphs [11] – [16].
  64. As we have sought to enunciate, "fairness" of the criminal trial process overall is now the touchstone of the law in this area, as the later cases (including those specifically directed to the provisions of the European Convention), demonstrate. On this aspect of the case, we have also borne in mind the decision of the Privy Council in Warren v A.-G. of Jersey [2011] 2 Cr App R 29 (p.411) to which Mr Price Q.C. for the Crown invited our particular attention. It is not necessary to say more about that case, save that a decision not to stay proceedings as an abuse, following the obtaining of surveillance evidence by means of truly egregious breaches of the law, was upheld.
  65. After considering all these points, we have re-directed our minds to this central issue of fairness and have asked ourselves whether the trial Judge's decision to admit this evidence, obtained outside the authorisation granted, rendered this trial unfair. We have no hesitation in saying that it did not.
  66. It is accepted that there was a failure to observe the limits of the authorisation obtained. However, the result was a breach of two appellants' rights of privacy, contrary to Article 8 of the Convention. In our judgment, on the facts of this case, it says nothing about the fairness of the appellants' trial. As in Plunkett there was no misrepresentation, entrapment or trickery. The police had simply made use of the opportunity afforded to the two appellants to talk to each other. As the recordings themselves demonstrate, the two men were well aware of the possibility that their conversation might be bugged. There was no oppression or coercion. Nothing limited the appellants' right to challenge the evidence or to explain it. We do not see that the cases of Shaukat Ali and Bailey would be decided any differently today.
  67. We would add that the circumstances in which the recording was made also mirrored the circumstances of Plunkett as regards the seriousness of the crime under investigation and the potential danger to the victim. While Mr Enoch emphasised that the recordings were made long after the event and therefore the threat to Mr Hussain was perhaps reduced for that reason, this was a crime of attempted murder and the victim was still alive. As Mr Price submitted, the contract killing (by whomsoever attempted) had not worked; the dispute behind it was long-standing and accordingly the motive for it had not gone away: the conviction of the guilty remained very important to inhibit a further attempt. Moreover, the arrest of the suspects in the Plunkett case on suspicion of the offences in question occurred after they had been sentenced to substantial terms of imprisonment.
  68. For these reasons, we conclude that the Judge rightly admitted the recording in the cases of Mahmood and Kajla and that their appeals must accordingly be dismissed.
  69. We turn to the additional point made on behalf of Khan.
  70. In the course of the conversation in the van there were references to a person named Bana. Early on in the conversation Mahmood warned Kajla of the possibility of their conversation being recorded whereupon Kajla replied "Yeah, of course. Don't call Bana". A little later there was a short exchange about why the two men were being taken to Sough (as opposed to Reading). Kajla provided the explanation that Bana's family was in Reading. Towards the end of their conversation Mahmood and Kajla were talking about the searching of their homes and a search of the car. Mahmood said "Let's see what Mr Bana's got to say." Kajla replied "Fuck that, I ain't chatting to him" to which Mahmood responded "Have to, init, within the same fucking – in the dock together." Almost immediately afterwards, apparently in the context of whether or not there was room for the accused in the cells Kajla said "They have lockouts. They'll accept two more bastards like us, won't they? Couple of bastards like you, me and our mate Bana." In the transcript the phrase "our mate Bana" was bracketed so as to signify that there was a lower level of confidence in the words transcribed.
  71. As we have said, there was other evidence about the name Bana before the jury. On 3 March 2011, police officers had searched Mahmood's home, 7 May Street Coventry. During the course of that search a telephone was seized. In its memory the name Bana was stored together with a telephone number which was admitted to be the number of a phone used by Khan. There was no suggestion in the trial or before us that this evidence was not admissible as against all the appellants.
  72. It was part of the case of both Khan and Kajla that they did not know of each other's existence and had certainly never met. The Crown sought to deploy the references to Bana in the conversation in the van to assist in proving an association between Khan and Kajla. There was no dispute at trial that Khan and Mahmood were known to each other.
  73. At trial Counsel then appearing for Khan sought to exclude the statements making reference to Bana from the evidence, whatever the fate of the rest of the van evidence, either on the basis that they were "hearsay" or on the basis that they were words spoken in the absence of Khan which were not admissible for that reason as against him. The Judge rejected these submissions. She said,
  74. "Dealing now with the submissions made by Mr Trimmer [Counsel then acting for Khan]. There are 4 references to Mr Khan by his nickname Bana, 3 made by Mr Kajla: (inaudible) Bana; Bana's family are in Reading, and a reference to him as "our mate". And there is one reference by Mr Mahmood, "Let's see what Mr Bana has to say".
    Mr Trimmer has submitted here, and in a full skeleton argument, that these references should be excluded. Put briefly, the grounds are that the words uttered are either hearsay or they are words spoken in the absence of the First Defendant. In either case, it is submitted that the First Defendant is unable, therefore, to explore how it is that Mr Kajla comes to know him by that name and therefore the context in which he comes to speak of him and that they should, therefore, be excluded.
    In the court's opinion, these words are not hearsay. They are not evidence of the matter stated. They are not being said to make another believe they are true. This is a conversation between two friends in which a third party is referred to in circumstances from which it can be inferred they both knew the person that was being referred to.
    Had notes scribbled by Mr Kajla been uplifted in the search, notes that indicated that he was familiar with Mr Khan, there would be no proper objection to them being produced. The fact that these are oral statements should not be treated differently. There is no dispute as to the accuracy as to what was said and in the court's opinion, the references to [Bana] are admissible as to the question whether Mr Kajla and Mr Khan are associated and as to whether that supports the Crown's contention that they met on 22 September".
  75. Section 114(1) Criminal Justice Act 2003 provides:
  76. "(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-
    (a) Any provision of this Chapter or any other statutory provision makes it admissible;
    (b) Any rule of law preserved by section 118 makes it admissible;
    (c) All parties to the proceedings agree to it being admissible, or
    (d) The court is satisfied that it is in the interests of justice for it to be admissible."

    Section 115 defines what is meant by the word "statement" and the phrase "matters stated" within section 114. It reads,

    "(1) In this Chapter references to a statement or to a matter stated are to be read as follows;
    (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
    (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making this statement appears to the court to have been-
    (a) to cause another person to believe the matter, or
    (b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

    In Twist & Others this court considered these provisions in detail – see paragraph 3 to 17 of the judgment. At paragraph 17 the Vice President set out the approach which was likely to be helpful in determining the question whether the hearsay provisions apply in any given case. He said,

    "(i) Identify what relevant fact (matter) it is sought to prove;
    (ii) Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters be contained in the communication);
    (iii) If yes, ask whether it was one of the purposes (not necessarily the only of dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not."
  77. Mr Wolkind QC, who now appears for Mr Khan, does not argue with the Judge's conclusion that the statements in which reference to Bana were made were not "hearsay"; he agrees that they were not. However, he argues that the Judge's analogy with scribbled notes was a bad one because such notes would have been statements made in furtherance of a conspiracy, which would have been admissible against all potential conspirators; see Archbold Op. Cit. paragraphs 33-63 et seq. pp. 3019-3021. On any view the statements relied on in the instant case were made after the conspiracy had ended. We agree with that submission but the matter does not end there.
  78. The learned Judge concluded that the statements in which reference was made to Bana were not hearsay because the statements were not being said to make another believe that they were true. She characterised the statements as constituting a conversation between two friends in which a third party is referred to in circumstances from which it can be inferred that both the friends knew the person to whom reference was being made. Was that approach correct? At first blush it might be thought that each of the statements in which reference is made to Bana were either made to cause the listener to believe what was being said or to cause the listener to act as if the matter was as stated. Upon reflection, however, we do not consider that to be the proper analysis. The statement relied upon by the prosecution was not the whole of the phrase or sentence in which the word "Bana" was spoken, but, rather, the word "Bana". The prosecution relied upon the use of that single word to demonstrate that the speaker knew the person whose nickname was Bana. The use of the word Bana was not for the purpose of causing the listener to believe that the speaker knew Bana or to cause him to act as if the speaker knew Bana. It was obvious from the conversation that both men knew Bana. We think that this analysis follows from the decision of the court in Twist [2011] EWCA Crim 1143 paragraphs 3-17. We have reached the conclusion, therefore, that the Judge was correct in her ruling that the statement relied upon by the prosecution was not hearsay. It follows, too, that the concession of Mr Wolkind QC was also correct.
  79. Should the Judge have excluded the references to Bana on the alternative ground that it was a conversation between Mahmood and Kajla in the absence of Khan which was prejudicial to Khan's defence? The Judge did not deal with this issue, in terms, in her ruling-no doubt because she was then dealing with a submission, principally, that the evidence was inadmissible because it was hearsay. We have given this issue careful consideration but we are satisfied that there was no proper basis for excluding the evidence. Since the evidence was not hearsay it was admissible in evidence generally, like any other piece of relevant evidence. The evidence was admissible in the case of all the appellants. The reason why judges are often required to tell juries that a statement made in the absence of the Defendant by one of his co-defendants cannot be evidence against him is because (usually) it is hearsay and inadmissible for that reason, unless it satisfies any of the criteria specified in section 114 of the Act and is admitted on that basis – see Cross and Tapper on evidence 11th Edition (2010) p. 225. We have also considered whether the admission of the evidence had such an adverse effect on the fairness of the proceedings that it ought to have been excluded for that reason (section 78 of PACE). We have reached the conclusion that there was no warrant for that course. The evidence was one strand tending to prove an association between Kajla and Khan and on any view it was admissible against Kajla. As against Khan it was of peripheral importance. The primary case advanced by the prosecution as against him was motive, his admitted association with Mahmood and the very powerful circumstantial evidence of contacts between a number of telephones (including many said to be associated with Khan) and his co-accused. Its admission did not make the trial unfair. Admirably succinct and clear as Mr Wolkind's submission was on this point, we reject it.
  80. As already mentioned, no sustained submissions were advanced in support of any contention that there was an insufficient case to go to the jury if, as we have held, the "van conversation" evidence was properly admitted. In our judgment, there is nothing in such a submission. The Judge was correct to dismiss the application before her for the reasons she gave.
  81. For these reasons, the appeals against conviction are dismissed. The sentence applications must now be relisted through the usual channels.

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