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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Edwards, R (on the application of) v Criminal Cases Review Commission [2008] EWHC 2389 (Admin) (13 October 2008) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2008/2389.html Cite as: [2008] EWHC 2389 (Admin) |
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QUEENS BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE KING
____________________
The Queen on the Application of Martin Edwards |
Claimant |
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- and - |
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Criminal Cases Review Commission |
Defendant |
____________________
Mr D Perry QC (instructed by Criminal Cases Review Commission) for the Defendant
Hearing date: 16 July 2008
____________________
Crown Copyright ©
Lord Justice Pill :
"Is the Commission correct in its analysis that because the claimant had a substantive defence to the allegation he could not, as a matter of law, argue that the proceedings ought to be stayed (or have the evidence excluded) on the basis of "entrapment"?"
Other grounds of challenge included in the claim for judicial review are not now pursued.
"On Tuesday 9th August 1994, as a result of a surveillance and undercover operation, the appellant was arrested in a van in the company of an undercover police officer known only as "Graham". In the van was a briefcase containing five packages containing a total of 4.83 kilogrammes of heroin of 50% purity. It was the prosecution case that the appellant was involved in arranging the supply of that amount of drugs to the undercover officer Graham. It was the appellant's case that he had been used by the suppliers of the drugs as part of a chain to supply drugs to the undercover officer, whether they were genuine drugs dealers who had evaded arrest or were police informers or agents. The appellant believed that the transaction involved jewellery, not drugs. He disputed ever having possession or control of the drugs found in the bag and said he did not know that they were drugs."
At interview, the claimant had exercised his right to silence.
"The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere."
On the facts of that case, the court found: "The question lay fairly and squarely within the area of judgment entrusted to the Commission."
"Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen."
"But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. Entrapment assumes the defendant did the proscribed act, with the necessary intent, and without duress. But when entrapment occurs, the commission of the offence by the defendant has been brought about by the state's own agents. This is the crucially important difference between cases of entrapment and other cases of instigated crime."
"A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way."
"Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstances in which it was committed."
And at paragraph 19:
"As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly."
"The Government insists that a defendant should not be allowed both to deny the offense and to rely on the affirmative defense of entrapment. Because entrapment presupposes the commission of a crime, Russell, supra, at 435 [(1973) 411 US 423], a jury could not logically conclude that the defendant had both failed to commit the elements of the offense and been entrapped."
The Court concluded, at page 66:
"We are simply not persuaded by the Government's arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject."
"Of course, it is very unlikely that the defendant will be able to prove entrapment without testifying and, in the course of testifying, without admitting that he did the acts charged . . . When he takes the stand, the defendant forfeits his right to remain silent, subjects himself to all the rigors of cross-examination, including impeachment, and exposes himself to prosecution for perjury. Inconsistent testimony by the defendant seriously impairs and potentially destroys his credibility. While we hold that a defendant may both deny the acts and other elements necessary to constitute the crime charged and at the same time claim entrapment, the high risks to him make it unlikely as a strategic matter that he will choose to do so."
"Finally, I am of the view that before a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment. This protects the right of an accused to an acquittal where the circumstances so warrant. If the jury decides the accused has committed all of the elements of the crime, it is then open to the judge to stay the proceedings because of entrapment by refusing to register a conviction. Because the guilt or innocence of the accused is not in issue at the time an entrapment claim is to be decided, the right of an accused to the benefit of a jury trial in s. 11(f) of the [Canadian Charter of Rights and Freedoms] is in no way infringed."
(In the context of England and Wales, where criminal procedures are different, a procedure whereby proceedings are stayed only after the jury's verdict of guilt, presents obvious difficulties).
"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here [in the Court of Appeal] if the option had been exercised at trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth".
"As stated above, we have no doubt that the principles in favour of one trial and against changing tactics remain of paramount and fundamental importance."
"The Commission has also made appropriate enquiries and has found no evidence to support Mr Edwards' defence that he was falsely implicated in a drugs deal or that he was induced into participating in the drugs deal through entrapment."
When considering the evidence, the Commission stated, at paragraph 37:
"However, there was no evidence available at trial to support Mr Edwards' belief that "Graham" had acted unlawfully (by falsely implicating Mr Edwards in the drug deal)".
"In Mr Edwards' case, the Court of Appeal has already viewed the material which was withheld on the basis of public interest immunity and indicated that the material which was not disclosed was adverse to Mr Edwards (see paragraph 26 above). The Commission has also made appropriate enquiries and has found no evidence to support Mr Edwards' defence that he was falsely implicated in a drugs deal or that he was induced into participating in the drugs deal through entrapment."
That statement was repeated at paragraph 60:
"In this regard the Commission relies on the indication at paragraph 40 above that it has made appropriate enquiries and found no evidence to support Mr Edwards' defence that he was falsely implicated in a drugs deal or that he was induced into participating in the drugs deal through entrapment."
The trial judge and the Court of Appeal in 1996 took the same view.
Mr Justice King :