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THE COURT OF APPEAL
Courts of Justice
6th November 1998
B E F O R E :
HONOUR JUDGE TUCKER QC
(Acting as a Judge of the Court of Appeal
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R E G I N A
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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appeared on behalf of the Appellants
J D WARREN
appeared on behalf of the Crown
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approved by the Court
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JUSTICE BUXTON: This is an appeal by Mr Darren Lee Owen and Mr Kevin Kimberley
Stephen against convictions recorded against them in the Crown Court at Lewes
before His Honour Judge Richard Hayward and a jury on 6th November 1997. The
case was argued at length before us last week. We have taken time to consider
the evening of 5th February 1997 there was a robbery at off licence premises in
Rock Street Brighton. Mr Bull, the manager of shop, was confronted by two
masked men, one armed with a gun and the other with a canister of CS gas. CS
gas was sprayed into Mr Bull's face and the sum of some £280 was taken.
Mr Bull described the man with the CS gas canister as being about 6 foot 2
inches or 6 foot 3 inches, with facial hair, wearing a black leather jacket and
blue jeans. The other robber, the one with the gun, was described as being
about five foot ten, and wearing black or navy blue Adidas tracksuit bottoms
and a brown waist length leather jacket. He noted that this second man spoke
with a Welsh accent. As the smaller man was leaving he pulled off his mask.
Mr Bull was able to see that he was clean shaven and had what Mr Bull described
as a square jaw.
The prosecution case was that the description of the smaller robber
matched that of Owen and the description of the taller robber matched that of
Stephen. The clothing was similar to that worn by the appellants earlier in
the day, although, if the appellants had committed the robbery, the prosecution
case was that they might have exchanged jackets.
On the following day the appellants were arrested in Rugby Place in
Brighton. At that address a gun and a canister of CS gas were found. It was
the police evidence, the nature of which was contested at the trial by the
defence, that when they had arrested and cautioned Mr Owen on suspicion of
committing the armed robbery one of the officers had said to him, "Darren,
where's the gun?". Owen had replied immediately, "In the kitchen behind the
sink." The gun exhibited at the trial was found in the flat where Owen was
then living in the place where Owen had said that a gun would be found. The
appellant Mr Stephen was searched after his arrest and found to have a
canister of CS gas in his jacket. When asked why he had the canister he
replied, "Just in case", and did not expand on that answer.
When Mr Bull, however, was shown the gun and the CS canister he said
positively that they were not the gun and CS canister used by the robbers.
That statement by Mr Bull was in the possession of the prosecution before the
trial, and Mr Bull repeated that evidence in his testimony at trial.
Further, whilst the appellant Stephen was in custody he spoke to a lady
called Roma Brooks, who was a co-defendant on one of the counts, and allegedly
asked her to make a false statement to police officers investigating the
robbery. It was not disputed that he had telephoned Miss Brooks and that she
had called on him at Lewes prison on 12th February. It was also accepted by Mr
Stephen that he did then suggest the plan to deceive the police and that later
on the same day Miss Brooks went to police and made a false statement very
substantially in the form that he had suggested to her, that is to say,
implicating other persons of other descriptions as an eye witness to the
robbery. Mr Stephen's defence in that respect was that Miss Brooks had treated
the matter as a joke. We will have to return to that issue in due course.
Further, the Crown produced a transcript of a telephone call from Mr
Stephen to his wife when he was on remand in Lewes Prison. In that telephone
conversation Mr Stephen purported to admit that he had taken part in the robbery.
were four counts on the indictment with which we are concerned. Count one was
a count of robbery laid against both Mr Owen and Mr Stephen: that was in
respect, of course, of the robbery that we have described. Count two alleged
that they possessed firearms on arrest: in the case of Mr Owen a handgun, in
the case of Mr Stephen a CS canister. Count three charged the possession of a
prohibited weapon in respect of the same handgun and CS canister respectively.
Count four was of conspiracy to pervert the course of the justice laid only
against Mr Stephen, his co-accused on that count being Miss Brooks. Miss
Brooks pleaded guilty to that count.
We now turn to the matters of which complaint is made.
Joinder of Counts Two and Three
was contended that on the basis of the evidence given by Mr Bull, a witness
called by the prosecution, it was unfair to join counts two and three to the
indictment; and in any event such joinder fell foul in law of rule 9 of the
Indictment Rules, that there can only be joined:
that are founded on the same facts or form or are part of a series of offences
of the same or similar character."
the gun and cannister were not those used in the robbery then the joinder would
fall foul of that rule.
However despite Mr Bull's evidence it remained the prosecution case that
those items were in fact those that had been used in the robbery. In our
judgement, and in that of the learned judge, the prosecution were entitled to
maintain that position. It was not an abuse nor an improper position for the
prosecution to adopt, despite the difficulty that they had in the form of Mr
Bull's evidence. It is important to remember when looking at the indictment
that the prosecution bring the case, and the indictment reflects what the
prosecution alleged and set out to prove. It is not open to the court to order
that a certain count is wrongly joined merely because the court may think that
the prosecution are going to have difficulty in proving that which they
allege. There will, of course, be circumstances in which matters were so
extreme that the court would think that to formulate the trial on such a basis
would be wrong, and of course we do not need to say that if it were the case
that the prosecution should join a count of a doubtful nature simply for an
ulterior motive then that joinder would not be permitted: but that is not
suggested in this case.
Granted that the joinder was proper, one has to turn to the way in which
the learned judge summed up the case to the jury in order to determine whether
the presence of counts two and three on the indictment, in the light of the
evidence heard by the jury, might make the convictions on count one unsafe by
reason of unfairness. Counsel for Mr Stephen and Mr Owen contended that the
matter of the joinder was so fatal that no summing up could cure the matter.
We do not agree. The judge was very well aware of this point. In our
judgement he dealt with it entirely correctly. He reviewed the matter at page
34C of his summing up to page 35E. We do not cite the whole of that matter.
He was, first of all, careful to remind the jury that Mr Bull had not only
failed to identify the weapons found on Mr Owen and Mr Stephen as those used in
the robbery, but, as the judge told them, he stated definitely that they were
not the weapons used. The judge went through the discrepancy in some detail.
He said, and in our judgement he was entitled to say, also this:
Crown say that being robbed at gunpoint is a terrifying experience and, what is
more, Mr Bull was sprayed in the face and some of the spray caught his right
eye, and that both those factors do not lend themselves to good identification
also mentioned other matters that the jury might want to take into account in
comparing the identification of the gun. He then went on at page 35C and said
you are not satisfied that these weapons were used in the robbery, then they
have no evidential value so far as counts one and two are concerned. Mere
possession of such weapons is no proof that the defendants committed this
robbery; and it was very important, members of the jury, that you do not
convict the defendants, or either of them, simply upon the basis: 'Well, they
were armed the following day with similar weapons, so they must be guilty.'"
clear warning to the jury came in the course of a summing up, that, we venture
to say, was clear and detailed, and in which the judge very forcefully put
every point that could be put on behalf of the defendants. In the light of that
very clear warning by the judge we do not think that any unfairness arose from
the joinder of counts two and three. That ground of appeal is dismissed.
Stephen's admissions in the telephone conversation with his wife
issue gives rise to difficult questions under the Interception of
Communications Act 1985 [the 1985 Act]. The telephone call made by the
appellant to his wife was recorded by the prison authorities and a transcript
of that recording was introduced into evidence. In the terms of the 1985 Act
the Crown accepted that the system concerned was a public telecommunications
system, and that the person carrying out the intercept held an office under the
Crown. There was no warrant issued under the Act for such an interception to
take place. At the trial the appellant Stephen argued that under section 9 of
the Act the evidence was inadmissible as it tended to disclose the commission
of an offence under the Act by the prison authorities. The judge is said,
therefore, to have erred in law in allowing that conversation to be placed
before the jury.
This was an important matter in the trial so far as Mr Stephen was
concerned. The conversation was clearly, if admissible, serious evidence
against him it. It, of course, had nothing to do with the case against Mr
Owen, and the judge properly so directed the jury in terms to which no
objection has been or could have been taken. The circumstances in which the
interception was made and therefore its status as evidence requires this court
to look again at the terms of the 1985 Act.
set out the two sections with which we are principally concerned. Section 1(1)
reads as follows:
to the following provisions of this section, a person who intentionally
intercepts a communications in the course of its transmission by post or by
means of a public telecommunication system shall be guilty of an offence and
liable ... [sentences are stated]"
person shall not be guilty of an offence under this section if --
the communication is intercepted in obedience to a warrant issued by the
Secretary of State under section 2 below; or
(b) that person has reasonable grounds for believing that the person to whom,
or the person by whom, the communication is sent has consented to the
convenience we can refer (as is commonly, though not necessarily wholly
accurately said) to the two cases in section 1(2) as being respectively warrant
cases and consensual cases.
We then turn to section 9 "exclusion of evidence". Section 9(1) reads:
any proceedings before any court or tribunal no evidence shall be adduced and
no question in cross examination shall be asked which (in either case) tends to
that an offence under section 1 above has been or is to be committed by any of
the persons mentioned in subsection (2) below; or
that warrant has been or is to be issued to any of those persons.
the persons referred to in subsection (1) above are --
any person holding office under the Crown;
the post office ...
any public telecommunications operator ..."
also refer briefly to sections 2 and 6 of the Act. Section 2 deals with
warrants for interception, and gives the Secretary of State powers to issue the
warrants that we have already seen referred to. Section 2(2)(b) allows him to
issue a warrant for the purpose of preventing or detecting serious crime.
Section 6(3) deals with another matter connected with the issue of
warrants which is of importance in a case we shall be shortly looking at, which
requires that copies of any material obtained by means of a warrant shall be
destroyed as soon as they are no longer required.
turn first to a case decided in 1992,
95 Cr App R 427. In that case the appellants were convicted of a number of
offences of conspiracy to supply prohibited drugs. Evidence was adduced of
telephone calls made by the conspirators using a cordless telephone which were
intercepted and recorded by police officers who did not have a warrant to
intercept the calls. It was contended that those calls had been wrongly
admitted because the evidence of them was inadmissible under section 9 of the
1985 Act. Steyn LJ giving the judgment of this court, said this at page 431:
first submission is section 9 of the 1985 Act renders inadmissible (subject to
the exceptions of section 9(3)) [which do not apply in that case nor in our
case] any evidence obtained as a result of an interception of a communication
by means of a public telecommunications system. That would be a far-reaching
provision. For the purpose, inter alia, of preventing or detecting serious
crime, Parliament has rendered such interceptions lawful, subject to the
statutory safeguards being observed. But it would follow that if an
interception reveals, for example, compelling evidence of treason, and there is
no other evidence of it, that evidence of the interception may never be led.
Moreover, it would follow that if the interception reveals evidence which
assists a particular defendant, such as an attempt to fabricate evidence
against him, that the evidence may never be led. And that would be so whether
the statutory safeguards had been observed or not. Such astonishing results do
not give the court a licence to depart from the statutory language but it does
permit an initial scepticism about the plausibility of the submission as to the
true meaning of the language.
starting point is the principle that all logically probative evidence is
admissible. Any legislative in road on this principle requires clear
expression. Language to the effect that any evidence obtained as a result of an
interception will be inadmissible could achieve such a purpose. But that is
not what section 9 provides. It merely provides that no questions may be asked
which tend to suggest that an offence under section 1 has been committed by
specified persons or that a warrant has been or is to be issued to any of these
forbidden territory is therefore in the first place questions tending to
suggest that an offence has been committed. That prima facie prohibits a line
of questioning designed to establish that none of the four defences under sub
sections (2) and (3) of section 1, such as a warrant, consent of the sender of
the communication, and so forth, are applicable. Section 9(1) then prohibits
questions tending to suggest that a warrant has been or is to be issued. The
express terms of section 9 do not provide that no evidence obtained as a result
of an interception may be admitted. The forbidden territory is drawn in a much
narrower fashion. And there is a logical reason for the narrow exclusionary
provision. That is the reflection that it cannot be in the public interest to
allow those involved in espionage or serious crime to discover at a public
trial the basis on which their activities had come to the notice of the police,
the Customs and Excise or the Security Services, such as, for example, by
questions designed to find out who provided the information which led to the
issue of the warrant. So interpreted section 9(1) makes sense. And it would
make no sense to stretch that language to become a comprehensive exclusion of
all evidence obtained as a result of any interception. It may well be that
evidence of interceptions will rarely be tendered. But we are confidence that
there is no statutory bar to a court ever admitting such evidence."
far so good. The Act was then the subject of further very close scrutiny by
the House of Lords in the case of
 2 AC 130. In that case it was the defence who raised the point, and
wanted to know if there had indeed been any telephone interceptions. Counsel
for the prosecution refused to divulge whether that was so or not. It later
appeared that that was because a warrant had been issued, and the prosecution
took the view that the material could not be given in evidence because so to do
would reveal the existence of the warrant; nor need the prosecution, nor could
it, disclose even the existence of such intercepted material. Further, it
happened that the material itself had by then been destroyed pursuant to the
requirement of section 6(3) of the 1985 Act that we have already referred to.
That latter step, the destruction, was also complained of by the defendants as
being a material irregularity which had deprived the defendants of matter which
might have been of use to them: as demonstrating, we interpose, that they had
not been engaged during those interceptions in any guilty discussions.
The House of Lords agreed, in terms to which we shall have to return, that
evidence tending to suggest that a warrant had been issued could not be put
before the court because of section 9 of the 1985 Act; but the House went on to
hold on the substance of the appeal before them that it did not follow that the
existence of that material could not be disclosed since that step did not
involve giving evidence about the material or how it had been obtained.
Moreover, since the Secretary of State had no duty to maintain material simply
to assist the defence, and indeed had a positive statutory obligation to
destroy it as soon as its immediate use had passed no material irregularity had
in fact occurred.
We turn to the speeches in
The leading speech was give by Lord Mustill. He was concerned with the
argument, that was pressed on the House of Lords because of the particular
that the prosecution were obliged to retain material intercepted under the
warrant because on their true construction the grounds for issuing a warrant in
section 2(2)(b) of the 1985 Act included the prosecution of crime as well as
its investigation. On that argument it was wrong to destroy the material under
section 6 whilst a prosecution was still in progress. Lord Mustill rejected
that interpretation of the act in favour of what he called the "narrower
reading" of section 2(2)(b), which excluded a prosecution as a ground for
issuing or maintaining in vigour a warrant. Lord Mustill then said this at page
167A of the report:
narrower reading also makes sense of the otherwise impenetrable section 9. If
the purpose of Parliament was to allow the intercept materials to become part
of the prosecution process it is hard to see any point in a provision which
would make it wholly or at least partially (according to how the section is
read) impossible to use them in that process; and if that had been the
intention it is equally hard to understand why Parliament did not say so in
plain language. By contrast, on the narrower reading of section 2 there would
be no need to make explicit provision for the admissibility of materials which
by virtue of section 6 would no longer exist, and the purpose of section 9 can
be seen as the protection, not of the fruits of the intercepts, but of
information as to the manner in which they were authorised and carried out.
Inquiries as to these matters were to be confined to the tribunal under section
7, and the defendant was not to have the opportunity to muddy the waters at a
trial by cross examination designed to elicit the Secretary of State's sources
of knowledge or the surveillance authorities' confidential methods of work.
Evidently the proscription of questioning on the existence of warrants was seen
as an economical means of achieving this result."
then Lord Mustill said this of the case of
which we have already referred to, at page 169B:
Lords, I am conscious that in giving my reasons for this opinion I have omitted
any detailed analysis of the judgments of the Court of Appeal in
... In doing so I intend no discourtesy whatever to the Court of Appeal whose
judgments I have studied with care and profit. The fact is, however, that the
arguments addressed in
were fundamentally different from those which your Lordships heard, and the
concentration on section 2 rather than section 9 has given a new perspective to
the arguments in the present case. I therefore believe it permissible not to
prolong an already long judgment by discussion of those cases, and simply to
say that I agree with the decision of the Court of Appeal in the present case
albeit not altogether with the reasons for it, and in my opinion the decision in
95 Cr App R 427 should be overruled."
Keith and Lord Browne-Wilkinson agreed with Lord Mustill. Lord Jauncy also
agreed with Lord Mustill but he additionally delivered a speech of his own in
which he addressed the terms of section 9. He said this of it at page 143H:
was argued by the defendants that this subsection merely prevented the asking
of questions as to whether or not an interception had taken place but did not
prevent the material derived from such intercept being introduced in evidence
in some other way, such as by admission. However, the clear purpose of the
subsection is to prevent evidence being elicited which suggests that an
intercept has been made and this would be a pointless exercise if,
nevertheless, the content of that intercept was to be disclosed. Indeed it is
very difficult to see how such content could be used in evidence without
disclosure of the circumstances in which it became available.
Lords, I have no doubt that Parliament intended that the existing practice of
not using intercepted material as evidence should continue. Thus section 6
provides that there should be minimum disclosure and retention of intercepted
material and section 9 prevents the asking of questions suggesting that a
warrant to intercept material has been or is to be issued."
Templeman also delivered a substantive speech in which he said this of section
9, at page 140E:
section 9 of the Act in any court proceedings no evidence shall be adduced and
no questions asked in cross examination which tend to suggest that a warrant
has been issued.
the Act makes it impossible for a record of a telephone conversation to be
given in evidence and makes it impossible for evidence to be given that a
warrant was issued for a telephone conversation to be intercepted."
court, however, returned again to the Act in the more recent of case
 2 Cr App R 190
. The argument there was about the admission of an
intercept which was agreed to be consensual in the terms of the Act because it
was a conversation between a consenting police informer and the defendant.
Although the defendant did not know he was being recorded, as will have been
seen from the terms of the Act only one party to the conversation has to agree
to its being intercepted for the intercept to be "consensual" under section
It was argued that the judgments of the House in
nonetheless excluded any evidence of the conversation. This court dealt with
that matter at page 203 of the judgment delivered by Stuart-Smith LJ as
follows. His Lordship set out the relevant passages in the judgment of
and in particular the passage in the speech of Lord Jauncy that we have already
cited. Stuart-Smith LJ went on at page 203D, from that citation:
it seems to me that this too has to be read in the context of the case, [that
is to say, the case of
particularly the provisions of section 2(2)(b) and section 6.
it seems to me that the general statement of the law on the construction of
section 9(1) to be found in the Court of Appeal's judgment in
namely that it does not prevent the admission of the product of a telephone
intercept to which the Act applies, is to be modified only to the extent that
it relates to a warranted intercept. Accordingly section 9(1)(a) is not
sufficient by itself to prevent admissibility of the substance of a consensual
interception. Furthermore since on the question of admissibility, the fact
that the evidence may have been obtained unlawfully is irrelevant, cross
examination to show that the intercept was not consensual cannot be
entertained, quite apart from the prohibition in section 9(1) (a)."
his forceful submissions before us Mr Lyons, who represented Mr Stephen, first
argued that the 1985 Act did indeed impose a blank prohibition on the admission
of any evidence of telephone intercepts. He relied in particular on the
by the House of Lords in
and on the statements, in broad terms, of Lords Templeton and Jauncey which we
have cited. He recognised, however, that that was indeed a bold submission in
the light of
and we are satisfied, for the reasons given by the Stuart-Smith LJ, that in
respect of anything other than a warrant case that argument must be wrong, at
least at the level of this court.
Mr Lyons, however, had another string to his bow. He said that this case
was different from
because here it was strongly contested whether the interception had been
consensual at all. The prison authorities placed notices on the phones and
issued other material to prisoners telling them that their conversations were
liable to be listened to and recorded. Mr Stephen put the prosecution to proof
that the officers who had intercepted the call indeed had reasonable grounds to
believe that Mr Stephen had consented to the intercept, in view of the
admission in evidence by the prison officer called to deal with the matter that
prisoners frequently destroyed the notices; thus raising the possibility that
Mr Stephen had used a phone that did not have a notice upon it. Further, the
prosecution was unable to prove that Mr Stephen had received the general
material dealing with intercepts.
Those issues were addressed at the trial in a voire dire to which we shall
have to return. Mr Lyons argued, however, that the voire dire should never had
taken place, with the corollary that the evidence should have been excluded in
any event. That was because in the course of investigating whether the call
had indeed been consensual, in the terms of section 1 of the 1985 Act, it was
necessary to allege that the prison officers, persons holding office under the
Crown in the terms of section 9(2)(a), had made or might have made
non-consensual intercepts, and thus had committed an offence under section 1.
He said that the voire dire was included in the expression "any proceedings" in
section 9(1) of the 1985 Act; a view with which we are minded to agree. Indeed
the argument went further than that. Mr Lyons said that the very act of giving
evidence about an intercept on the part of an officer of the Crown entailed his
giving evidence that tended to suggest that he had committed an offence.
That we have to say is plainly not right. A statement, without more, that
an intercept has taken place does not of itself entail or suggest that the
intercept fell into the categories forbidden by section 1. However the point
about how to deal with the contexts about the circumstances in which calls were
made has more substance.
Mr Lyons' argument that as a matter of general fairness evidence of the
intercepts simply must be excluded where the circumstances are challenged,
because the challenge cannot be investigated, obviously has serious
implications. It means that the circumstances need only to be challenged for
the evidence to be excluded, perhaps in all but cases of an obviously frivolous
challenge. The handicap to proper investigation that that would pose we have
seen graphically set out in the judgment of Steyn LJ in
But at the same time it is fair to remark that total exclusion of intercepts
even without any interim step of challenging the circumstances in which they
had been made may have been the course deduced from the 1985 Act at least by
Lords Templeman and Jauncey in
At the same time, however, the alternative course is also unattractive. To
prevent questioning of whether the intercept indeed had been consensual would
apparently permit evidence to be admitted which was alleged to have been
obtained by breach of the law; and also, as the present case shows, might cause
difficulties in challenging the reliability as opposed to the lawfulness of the
evidence, a particular matter arising in this case to which we shall have to
with these difficulties it is appropriate to pause and take stock. We think
that the following basic propositions are relevant.
(1) As Lord Mustill said in
the overall objective of the 1985 Act was to base the practice of official
interception of telecommunciations on a sound, statutory basis. Part of that
objective was to enable official activity in intercepting communications to
remain confidential. That was the task of section 9, as Lord Mustill made
at page 167C of that report. That was also underlined as the objective of
section 9 by Steyn LJ in
(2) That section 9 protects, and only protects, official interceptions is
reinforced by the limitation of section 9(2), which prohibits only the
investigation of people who are or might be involved in such official
interceptions. If one private citizen intercepts another and then tries to use
the material in litigation there is nothing in the 1985 Act is stop him being
cross examined about the legality of his actions.
(3) The fact that the 1985 Act prevents some or all telephone intercepts
being used in evidence is likely principally to handicap the prosecution, and
is the price governmental authorities have to pay for the immunity conferred by
section 9: see in this sense Lord Jauncey in
at page 144F of that report.
(4) Whether or not an offence was committed in the course of an intercept
is irrelevant to the admissibility of the evidence provided by the intercept.
That is trite law, as exemplified by the case in the House of Lords of
 AC 402
. It leads to the conclusion stated by this court in its judgment
at page 403E of the report that we have already read. The same simple answer
cannot however be given in respect of questions of lawfulness that might
arguably arise under section 78 of the Police and Criminal Evidence Act, for
which purpose it might be sought, in the absence of section 9 of the 1985 Act,
to investigate the nature of official activities.
principles that apply to this case
our case no question of protecting official operations from exposure in fact
arises. It is the prosecution's positive case to disclose the fact and matter
of interception which, far from seeking to conceal from the person
intercepted, they aver they have made clear to him throughout. In these
circumstances it is tempting to say that since our case does not fall within
the objective of the 1985 Act, because no embarrassment, at least in terms of
confidentiality, would be caused to the authorities by investigation of the
lawfulness of their actions, then section 9 of the Act simply does not apply to
it. However, even though that may be the overall objective or reason for the
passing of the section 9 provisions, no distinction is made in the Act itself
between what might be called embarrassing and what might be called
non-embarrassing investigations. The prohibition against questioning officers
of the Crown as to whether they have reasonable grounds to believe in the
consent of the intercepted party, for the purpose of section 1(2)(b), or
against giving evidence suggesting that they did not have such grounds, is
absolute and not linked to the nature of the case. There may well be good
reasons for that, not least because in cases less clear than the present any
distinction based on the effect of the questioning, if allowed, might force the
court to enter undesirable territory in order to determine that preliminary
We are therefore driven back to the conclusion that section 9(2)(a)
prevents any investigation, in any proceedings, of whether in a non-warrant
case an interception by an officer of the Crown is covered by section 1(2)(b).
That view is in accordance with the ruling of this court in
setting out the forbidden areas of enquiry, including whether or not the
interceptor had the benefit of what is there described as the defence afforded
by section 1(2)(b). We are bound to follow that ruling in view of the further
ruling by this court in
equally binding upon us, that
is overruled by
only to the extent that it related to warranted intercepts.
The effect in the present case is that it was not open to the defence to
question whether or not the interceptors had reasonable cause to believe that
Mr Stephen was consenting to the interception. Therefore the judge (with whom
we sympathise in having to deal with this intractable subject without even the
full report of
was, in the circumstances of the case and of the arguments that were sought to
be put against the admissibility of the intercept, wrong to order a voire dire
to investigate the existence or otherwise of a section 1(2)(b) belief on the
part of the prison officers. The intercepts were admissible without further
recognise that that may be regarded as a strong holding and one that gives rise
to concern that material may be introduced into evidence that might, absent the
particular rules with which we are concerned, be challenged by the defendant.
We have already indicated that we consider ourselves unable within the specific
terms of section 9 of the 1985 Act to make a distinction that excludes cases
like the present from the general prohibition that section 9 imposes. However
in order further to test that conclusion, and because of the general importance
of the matter, we add some further observations.
(1) As this court pointed out in
the issue in respect of statements such as Mr Stephen's remarks on the
telephone is not as to their admissibility. As a statement by the accused they
are admissible without further enquiry. That view of the status of evidence of
this type, subject to this type of attack, was confirmed in the speeches of the
House of Lords in
 AC 558
, a case to which we shall have to return. The only question that
arises is, therefore, whether the court in its discretion should nonetheless
refuse to allow the evidence of the statement to be given: principally though
not exclusively, under section 78 of the Police and Criminal Evidence Act.
(2) The complaint in
alleged an invasion of the accused's privacy by the installation in, or on the
outside of, a house of an associate of his of a covert listening device without
the knowledge either of the associate or of Mr Khan himself. That conduct was
alleged to have been a civil trespass, and also probably an act of criminal
damage against the associate; and also, which was the main issue debated in the
case, a breach of Mr Khan's rights under article 8 of the European Convention
on Human Rights. No claim in respect of the Convention was made in our case.
The House of Lords held that whilst the Convention was not binding law in this
jurisdiction, and could not affect the status of the decision in
it could and should be taken into account in determining an issue arising under
section 78 of PACE. That, we venture to draw from the speeches, would follow a
fortiori in respect of a complaint that the evidence had been gathered in the
course of a breach of the law by authorities, rather than a complaint merely of
breach of a right to privacy.
(3) It is important to note, however, how the House of Lords addressed
that issue. In the leading speech Lord Nolan said this at page 581H:
am prepared to accept that if evidence had been obtained in circumstances which
involved an apparent breach of article 8, or, for that matter an apparent
breach of the law of a foreign country, that is a matter which may be relevant
to the exercise of the section 78 power. This does not mean that a trial judge
is obliged to decide whether or not there has been a breach of the Convention
or of the foreign law. That is not his function, and it would be inappropriate
for him so to do. By the same token, it would have been inappropriate for the
judge in the present case to have decided whether the admitted damage caused by
the police to Mr Basforth's property amounted to a criminal offence under
section 1 of the Criminal Damage Act 1971. 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 such 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.
the facts of the present case in agreement with the Court of Appeal I consider
that the judge was fully entitled to hold that the circumstances in which the
relevant evidence was obtained, even if they constituted a breach of article 8,
were not such as to require exclusion of the evidence."
do not suggest that those observations are of more than indirect relevance to
our problem. It is however important to note that the crucial issue is the
effect of the alleged irregularity on the fairness of the proceedings, and that
there is no suggestion that unknown eavesdropping or interception of
conversations of itself gives rise to a legitimate complaint under section 78.
That general point is to some extent supported by the view of this court in
that no issue in that case arose under section 78. Although there was no
as to whether the interception was "consensual" in the sense of section 1(2)(b)
of the 1985 Act, that was not because the party making the admission in the
intercepted conversation agreed to the interception or indeed knew anything
about it. The reasonable grounds for belief in consent related only to the
consent of the police informer who initiated the conversation. The party
against whom the conversation was used and who might have sought to rely on
section 78 could not conceivably have been said to have consented to that
(4) It therefore seems unlikely, though we can put the matter no higher,
that interrogation about the state of mind of the interceptors as to reasonable
belief of consent would be a relevant issue under section 78. Matters might be
different if there were allegations of bad faith, deceit, or a positive
misleading of the speaker into thinking that he would not be recorded or that
the material would not be used. In such a case, although care would have to be
used, it should be possible to investigate those specific allegations without
trespassing on the ground forbidden by section 9 of the 1985 Act, at least in a
case where the allegations were sufficiently clear and serious to give rise to
an arguable question under section 78 in the first place.
We have made these observations, as we say, not as part of our decision,
which turns on the interpretation of the 1985 Act, but in order to consider
whether that interpretation leads to such unreasonable results that it must be
wrong. In our judgement it does not.
78 of the Police and Criminal Evidence Act and this case
have already held that a desire to pursue matters under section 78 does not, in
the circumstances such as those of the present case, compel the exclusion of
the evidence. It would be wholly artificial if we did not add another,
separate, consideration that is present in this case. We have said that in
fact the judge did conduct a voire dire in which he investigated the
circumstances in which Mr Stephen had made the telephone call. The appellant
argued that the judge's conclusion that the prison authorities did indeed have
reasonable grounds to believe that Mr Stephen had consented to the monitoring
was not open to him on the evidence. We do not agree.
The judge heard evidence from the security officer at the prison in
question as to the practice, and then said this, which is at page 12A of the
transcript of that ruling:
security officer], when asked by Mr Lyons, said that the notices at Lewes
Prison did not follow that wording exactly but did indicate that phone calls
may be monitored. He very frankly said in evidence that he could not be
certain that that notice was present at any particular telephone at any given
time; and nor could he say -- again very frankly -- what telephones the
defendant may or may not have used and whether or not any such notice was
present at such telephones.
have considered the submissions carefully made by Mr Lyons on this matter. I
am quite satisfied, on what I have heard, that the defendant was aware that
telephone calls made by him from prison may be monitored. It is relevant, in
my view, to this matter that the defendant is not entirely unfamiliar with
prison, he has been in prison on previous occasions. Even if he did not see the
notices or did not read them, I am also quite satisfied on what I have heard
that those who conduct the monitoring process had reasonable grounds for
believing that the defendant was aware of those notices and was therefore aware
that any calls he made might well be monitored."
Lyons said before us that that evidence could not prove that Mr Stephen had in
fact seen the notices, nor that the evidence of his previous record, even
admissible, carried the matter further, because it had not been shown that the
general practice was in fact followed at any of the prisons where he had been
previously detained. It may be noted that Mr Stephen himself was not called to
give evidence on the voire dire as to those matters, even when the judge made
it clear that he was minded to refer to Mr Stephen's previous experience.
However, even leaving that point aside, we have no doubt that the judge was
justified in finding on the material before him that the prison authorities had
reasonable grounds to believe -- which it should be emphasised is the test
under section 1(2)(b) -- that Mr Stephen had given knowing consent. Mr
Stephen's evidence of the actual arrangements or of his actual beliefs might
have been illuminating on the facts of that matter, but it could not be
dispositive, as we have already made clear. On our view of the law this point
does not arise since no such finding was necessary or indeed permissible as a
preliminary to the admission of the evidence of the cause. However the judge,
in fact, did go on to deal with section 78. He said this at page 13A of his
should add that I have considered, although I have not been specifically
addressed on this, the question of section 78, and whether it would have been
in any way unfair to admit this evidence, in my view it would not be unfair.
The calls were made, they were made on a phone where I am quite satisfied the
defendant was aware the calls might be monitored, and even if he was not aware
I am quite satisfied the prison authorities had reasonable grounds for
believing that he was aware ..."
if the section 78 point were prime facie available in this case it would, in
our view, be wholly artificial therefore to ignore the finding of the judge
(albeit one that the law as we now rule it to be does not call for) that there
had in any event been no unfairness.
The admission of this conversation cannot, in our view, be challenged on
general section 78 grounds.
Stephen's explanation of the telephone call
was however a further point of fairness not arising under section 78, and much
more particular to this case. Mr Stephen's explanation of the actual admission
in the conversation was that he was simply trying to stop his wife complaining
of his criminality, as she was doing, by agreeing, as the judge graphically put
it to the jury, to "any old robbery just to get her off his back". As part of
that case Mr Stephen said that he had not known that his calls were being
intercepted. He gave circumstantial evidence before the jury, not having given
any such evidence on the voire dire, that he knew that a monitoring system
existed. Indeed he could apparently, from the phone booth, see the officers
who were operating that system. He had made his calls at times when he thought
them not to be on duty. He was in due course cross-examined on his belief by
the prosecution. Earlier however, when the prison officer in charge of
intercepts gave the evidence to which reference has already been made, proving
the intercepts, counsel for Mr Stephen was not allowed to cross-examine him on
the arrangements for warning prisoners of the intercept arrangements, since
that would involve issues as to the officer's belief and thus the legality of
the intercept. That disparity was said to be unfair.
Our view on this issue is as follows.
(1) As we have already pointed out, what Mr Stephen in fact believed was
not the same issue as what the officers had reasonable grounds to believe.
Investigation of the former issue is not in itself covered in the terms of
(2) The judge was right to rule that section 9 prevented the challenge to
the officers, for whatever purpose, as to arrangements and notification to the
(3) In the circumstances of this case the application of that ruling could
potentially put Mr Stephen at a disadvantage, because testimony by the prison
officers as to gaps in the notification arrangements, and thus possible
ignorance on Mr Stephen's part of the intercepts, would be more likely to carry
weight with the jury than allegations by Mr Stephen himself.
(4) The judge had no discretion to cure that disadvantage by permitting
the questions to be asked because section 9 prevented that course. The only
remedy would be to exclude the evidence of the intercept under the inherent
power of the court, rather than strictly under section 78. In the state of
general beliefs at the trial about the implications of the 1985 Act it is not
surprising that the judge was not asked to proceed on that basis.
(5) On balance, however, no unfairness resulted. The issue was the
reliability of what Mr Stephen said on the tape and whether he was simply
agreeing with his wife. More important to that enquiry than his argument about
his grounds for thinking or not thinking that he was being listened to was the
terms of the tape itself. It was played to the jury at the request of Mr
Stephen's own counsel; they did not merely have a transcript of it. The judge
addressed the jury on this at page 41G to 42G of the summing up. We do not
read the passage. The judge pointed to a number of issues that, no doubt, the
jury had already identified. He said:
is no doubt that Lisa [that is the wife] is furious, the language is appalling,
but at one point you may have thought that Mr Stephen was not quite the humbled
husband seeking to agree with an enraged wife."
judge, having reminded the jury of that passage, went on at page 42E:
you may think, members of the jury -- and, as I say, you can listen to that
again -- was that the voice of a man who was in fact seeking to justify what he
had done rather than meekly agreeing with what he was being accused of doing?
But it is a matter entirely for you."
do not think that on balance the fairness of the trial or the safety of the
verdict, to the extent that the jury acted on the content of that tape in their
finding against Mr Stephen, were affected by the inhibition on the cross
examination of the prison officers. We therefore reject the grounds of appeal
based on the admission of the record of the telephone intercepts.
We turn to other matters.
statement of Roma Brooks
Over two months after her conversation with Mr Stephen, which we have already
detailed, and thus well after her false statement to the police, Miss Brooks
was interviewed by the police. At the trial it was claimed that some parts of
that interview could be read as fitting Mr Stephen's defence to the conspiracy
count: which was, in effect, that although he had suggested the act on her part
to pervert the course of justice, she at the time had treated it all as a joke.
In other words, she had not agreed with him at all, and therefore had not
conspired with him. Her act of going to the police the day after her
conversation with Mr Stephen, and telling them almost exactly what he had asked
her to say, had been a frolic of her own.
At the trial it was sought by Mr Stephen's counsel to introduce that
statement into testimony not by the use, as we understand it, of section 23 of
the Criminal Justice Act, but apparently as a piece of evidence in its own
right. The argument before the judge was that the statement, although plainly
hearsay, was admissible as evidence of Miss Brooks's state of mind at the time
of the alleged agreement. The judge rightly rejected that argument, which was
not seriously pursued before us. The statement wholly lacked that element of
contemporaneity with the events sought to be explained that is a necessary
preliminary to the application of this exception to the hearsay rule. That
failure of this argument in limine exempts us from having to go on and point
out that, if the evidence had been admitted, the judge would almost certainly
in fairness have had to tell the jury that its alleged meaning was contradicted
by Miss Brooks's plea to the conspiracy count. That plea was, in fairness to
Mr Stephen, not known to the jury, and their hearing about it in the middle of
the trial could hardly have assisted his case.
no comment interview
us Mr Lyons opened a further ground on which he said that Miss Brooks's
statement should have been before the jury. We are not wholly clear whether
this point was taken at the trial; certainly this extremely careful trial judge
did not refer to it in his ruling on the admissibility of Miss Brooks's
statement. We do nonetheless go on to consider it, because it raises a point
of some more substance.
The judge's summing up on the conspiracy count against Mr Stephen, after
setting out the background, was as follows, at page 53F of the summing up:
Mr Stephen does not dispute that he telephoned Roma Brooks on 10th February,
that she visited him in prison on 12th February. He does not dispute that he
suggested this plan to her; and there is no dispute that on that very same day
she went to the police and made a false statement in which she said very
substantially what Mr Stephen had suggested.
Mr Stephen says that when he suggested this plan to Miss Brooks she laughed and
told him not to be stupid; and he said he didn't think that she was going to do
it. So, he says, there was no agreement and Miss Brooks took it upon herself
later to take up the idea and make the statement.
Stephen was interviewed about this matter and he declined to answer any
questions. He did not give the explanation then that he has now given you in
court. I have already directed you as to what inferences you may draw from a
defendant's failure to mention facts which he later relies upon in this court,
and that direction applies to this interview of Mr Stephen at which he makes no
replies to the questions put to him. And you will consider again his
explanations for not giving any answers: again his solicitor was there and it
was felt that the police were not being entirely frank as to what Roma Brooks
had told them, and so he decided that he would not answer any questions. Well,
if you think that is a good reason, an adequate explanation for not giving the
explanation then that he has now given, well ignore the fact he did not answer
questions when interviewed. But if you do not think that is an adequate
explanation, then you can then take that into account as some additional
evidence to support the prosecution case.
I already directed you, Miss Brooks made the statement in the absence of Mr
Stephen, so the statement on its own is not evidence against Mr Stephen; you
must be satisfied that she made the statement as a result of the agreement
reached with Mr Stephen. [that, of course, is a reference to Miss Brooks's
original statement to the police and not her interview]."
complaint now made is that when Mr Stephen was interviewed by the police they
told him that Miss Brooks had in her statement to them, in her interview with
them, admitted participation in a conspiracy. Nothing was said about any part
of the statement in which she suggested or may have suggested that it was all
regarded by her as a joke. It was argued that it was unfair of the police to do
that, and therefore unfair to Stephen to draw any conclusions from his refusal
to answer questions and his failure to give the explanation that he advanced in
evidence at trial. That unfairness could have been demonstrated to the jury if
they had been shown Miss Brooks's record of interview.
This point, and more particularly the judge's decision to give a direction
as to the failure to refer in interview to Mr Stephen's defence, initially
caused us some concern, but on reflection we are satisfied that there is
nothing in the complaint. Mr Stephen's case as put to the jury was that he was
not prepared to participate in the interview because he and his solicitor
thought that the police were not being frank in what they told them. The issue
for the jury, so far as there was an issue at all, was not whether that belief
was justified, but whether it was honestly held, and if held whether it
explained Mr Stephen's silence. A deception, if there was one, that Mr Stephen
did not know about could not affect that issue. Moreover, if the police told
Mr Stephen that Miss Brooks had made full admissions that would seem to be
more, rather than less, reason for Mr Stephen indignantly to explain what he
thought to have been her true attitude. The defence case seems to be that if
Mr Stephen had seen Miss Brooks's statement, or been told its full contents, he
would then in agreement with her have told the police the full story. It is,
however, difficult to see how a lack of frankness or disclosure can be
explained just by the absence of a particular trigger to that frankness.
We should also say, on the merits of the matter, that the actual statement
of Miss Brooks, which we have carefully read, in our view falls very far short
of being a ringing endorsement of the case that Mr Stephen sought to put at the
trial. It is difficult to extract from the record of interview that which the
defence said was there. Miss Brooks appeared to us rather to be saying that
she had not thought much about what she had been asked to do because she
thought that Mr Stephen was innocent of the robbery and was being unfairly
treated by the police. If that was the substance of what she said, she was
indeed admitting, or at least not denying, participation in the offence of
conspiracy. Further, the interview started with the police officers putting to
her that on arrest she had admitted the offence by saying that she was guilty
and had signed the officer's pocket book to that effect. She denied that that
was her complete attitude, but she did not, in our judgement, on the face of
the interview do that in convincing terms. If the interview had gone before
the jury the whole of it would have had to have been put, and not just such
parts as the defence chose to rely on. Even leaving aside the issue of
relevance of the interview, we would be hard pressed to think that its
introduction would, in fact, have assisted Mr Stephen's case.
Some judges might, however, have concluded that in all the circumstances
it would have been better not to invite the jury to consider the effect of Mr
Stephen's silence on this point. However the direction that the judge did
give, allied to what he had said on the general topic earlier, cannot be
faulted. In any event the case against Mr Stephen on this count was, in our
view, overwhelming, particularly in the absence of any contrary explanation of
her conduct from Miss Brooks: an explanation that in view of her plea it was
not, of course, open for her to give. Mr Stephen's conviction on count four
is, in our view, not unsafe.
grounds of appeal advanced by Mr Owen
Owen submitted after the prosecution had closed its case that the case against
him should be dismissed. The judge did not agree, referring in particular to
the reply that, on the (admittedly challenged) police evidence, Mr Owen had
given when asked on arrest where the gun was. Mr Lyons was reduced to arguing
before us that that evidence was ambiguous. That concession, which was
properly made, and which was certainly the least that could be said, was, of
course, fatal to the suggestion that there was nothing for the jury properly to
consider. The judge's ruling was entirely right.
Mr Owen submitted alibi evidence from himself and in the shape of section
23 statements of three witnesses. Two of those witness had criminal records
for dishonesty. One of them had told lies about another matter in the case, as
the jury were properly told. Mr Owen complained that the prosecution had not
satisfactorily disproved that alibi, more particularly because they had not
called evidence to challenge that of Mr Owen's witnesses. That submission,
which it is fair to say was settled by counsel other than Mr Lyons, was quite
hopeless, and Mr Lyons did not seriously press it. The matter was one for the
jury, entirely properly instructed on it as they were. The same is the case
with Mr Owen's general claim of lack of safety, based on the foregoing matters;
the difficulties of the identification evidence; and the occurrence of a
similar robbery in the area, on the same night, committed by persons other than
Mr Owen and Mr Stephen. There was ample material on which the jury properly
instructed, as they were, could convict on these counts.
For the reasons that we have stated these appeals are dismissed.
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