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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Claydon & Ors, R. v  EWCA Crim 1359 (13 June 2001)
Cite as:  WLR 1575,  EWCA Crim 1359,  1 WLR 1575
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COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JACK
SIR HARRY OGNALL
(acting as a Judge of the Court of Appeal Criminal Division)
|- and -
|COLETTE DAWN CLAYDON
ASHLEY ROWAN HALL
ROY STEWART FRENCH
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
M Kelly Esq (instructed for the Appellant Hall)
M R Bailey Esq, QC & Miss C Aherne (instructed for the Appellant Costall)
M Roochove Esq & C Rush Esq (instructed for the Appellant French)
D R Holborn Esq & Miss G Jones (instructed for the Respondent)
Crown Copyright ©
LORD JUSTICE HENRY:
"All the charges arise from a police undercover operation code named Padstow, which took place between January and March of 1999. All defendants have submitted through their counsel during the course of this voire dire, which began on the 18th September, with varying degrees of emphasis, that I should stay these proceedings as an abuse of the process of the court or, alternatively, exclude the evidence obtained by the various undercover police officers who took part in the operation.
The bases of their submissions are essentially twofold. First, the operation was neither authorised nor managed in accordance with the guidelines which were in force at the time or with the law and, accordingly, I should hold that there has been a violation of Article 8 of the European Convention of Human Rights and were I so to rule, it is contended further (and in any event) that in such circumstances Article 6 of the European Convention of Human Rights would be violated were a trial to take place.
Secondly, it is contended, whatever my views may be concerning the authorisation and supervision of the operation, individual undercover officers overstepped the mark and entrapped the defendants which, at the very least should lead to the exclusion of their evidence, pursuant to the provisions of Section 78 of the Police and Criminal Evidence Act 1984 or, having regard to the nature of the breaches of Articles 8 and 6, give rise to a stay of the proceedings as an abuse of the process of this court.
This voire dire raises in stark profile the tension which now plainly exists between the need to protect the public from the ever growing problem and menace of, particularly, Class A drugs and the duty to protect the individual rights of the citizens of this country. It is a trite observation to say that the exceptional dangers created by the wide spread supply and use, particularly of Class A drugs, require exceptional measures. It is an equally trite observation to say that such measures may only go so far as the law permits and no further."
"... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding." (see Hui Chi-Ming -v- R. (P.C.))
Section 78 provides:
"78(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given 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 the proceedings that the court ought not to admit it."
Preparatory hearings and appeals
"In ex p. Guardian Newspapers  1 Cr App R 284, CA it was said to be well settled that a trial does not start on arraignment, unless there is a statutory provision creating this effect; it starts when a jury is sworn and the defendant is put into the charge of the jury (R -v- Tonner 80 Cr App R 170, CA) - considering a statutory provision that did not apply to a trial which 'began' before the commencement date), and that entering a plea of 'not guilty' does not mark the commencement of a trial, but merely establishes the need for a trial (Quazi -v- DPP, 152 JP 414, DC); but cf R -v- Hammersmith Juvenile Court ex p. O, 86 Cr App R, 343, DC.
The decision in Tonner left open the question whether it was necessary to put the defendant in charge of the jury before conducting a voire dire to determine the admissibility of evidence without which the Crown would be unable to open the case to the jury. The safe course was to do so even though the consequence might be that the jury would be immediately sent away for a prolonged period. The issue was important because section 2(1) the Criminal Appeal Act, 1968, as originally enacted, provided as two of the grounds for quashing a conviction that there had been a wrong decision of any question of law (para (b)) or an irregularity 'in the course of the trial' (para (c)). In R -v- Vickers, ante Scarman LJ said that (b) 'clearly contemplated a ruling in the course of the trial' (p 51). There is now only one ground for quashing a conviction, namely that it is 'unsafe' (see the text of section 2, as amended by the Criminal Appeal Act 1995). It follows that there is no longer any reason for not determining an issue of admissibility after arraignment but before the swearing of the jury."
"7(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from a hearing (in this Act referred to as a "preparatory hearing") before the jury are sworn, for the purpose of
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge's management of the trial,
he may order that such a hearing shall be held."
"9(3) He may determine
(b) any question as to the admissibility of evidence; and
(c) any other question of law relating to the case."
Section 9(11) provides:
"9(11) An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal."
"29(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such a length, that substantial benefits are likely to accrue from a hearing
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2),
he may order such a hearing (in this Part referred to as a preparatory hearing) shall be held."
Subsection (2) sets out the purposes in the same terms as section 7(1) of the 1987 Act. Subsection (3) provides that no order shall be made under subsection (1) where the case is covered by section 7(1) of the 1987 Act. Section 30 is to the same effect as to the start of the trial and arraignment as section 8 of the 1987 Act. Section 31(3) mirrors section 9(3)(b) and (c) of the 1987 Act the judge's power to makes rulings as to admissibility of evidence, and any other question of law. Section 35(1) provides for an appeal to the Court of Appeal against any ruling under section 31(3) but only with the leave of the judge or of the Court of Appeal.
"If, looking squarely at the matter, the judge comes to the conclusion that the application before him does not relate to one of those [section 7(1)] purposes, then he cannot entertain that application within the ambit of 'the preparatory hearing'".
"Can it be said that the matters sought to be raised by the defendants in the present case fall within the ambit of section 7(1)?
The quashing of the count of theft which is alleged against the defendant Moore: it is perfectly true that indirectly, if the count was quashed, it might have resulted in an expedition of the proceedings before the jury, because there would be much less material to go through. But that was not the purpose of the motion to quash. The object was to prevent Moore being faced with a charge of theft, or perhaps to put right an error in the procedure in that the count had been wrongly concluded when there was no evidence on the committal documents to justify it.
Similarly with other matters under (a) to (d). In each case it is possible that the quashing of the indictment might indirectly have had the results which are detailed in those sub-paragraphs.
However it seems to us that the fact that a possible incidental effect of the purposes of the application does find itself within those sub-provisions (a) to (d) is not one of the purposes of those provisions. It is the word 'purpose' by which the situation is governed. In our judgment it is improper and misconstruction to substitute some such word as 'consequences' for the word purpose'. In so far as the motion to quash is concerned, it does not, in out judgment, come within those four sub-provisions."
" two conditions must be satisfied before the Court of Appeal can have jurisdiction [to hear an appeal under section 9(11) of the 1987 Act]: first there must be an issue of law or evidence within section 9(3); secondly the order appealed from must have been made under the ambit of the preparatory hearing, that is to say, within the scope of section 7(1).
a) re Gunarwardena  1 W.L.R.703 no appeal lay under section 9(11) of the 1987 Act from a refusal to stay on the ground of abuse of process arising from delay, as the application to stay was not within a section 7(1) purpose.
b) Moore & Others, unreported, 4 and 5 February 1991 no such appeal lay from a refusal to quash a count in an indictment, as the application to quash was not within a section 7(1) purpose, likewise no appeal lay from a ruling as to whether the Crown should be required to elect between a charge of conspiracy and substantive charges. We will revert to a further aspect of this appeal and its bearing on questions of evidence.
c) Jennings  98 Cr. App. R 308 no appeal lay from a refusal to sever an indictment , as the application to sever was not within a section 7(1) purpose.
d) Maxwell, unreported, 9 February 1995 an application for discovery was not within a section 7(1) purpose, and no interlocutory appeal lay.
e) Hedworth  1 Cr. App. R 421 an application to quash a count in an indictment on the ground that it was not supported by the evidence, was not within a section 7(1) purpose, and no interlocutory appeal lay.
f) R, unreported, 22 February 2001, No 2000/00375/S1 abuse of process, no interlocutory right of appeal. We will revert to this decision and its consideration of an appeal concerning section 78.
"As Mr Jones rightly submitted, it is not the purpose of the defence which governs the operation of section 7. The relevant purpose is that of the court or judge."
".. the evidence of the test purchase officer ... should be excluded under the provisions of section 78 of PACE and/or the proceedings should be stayed as an abuse of process."
The judge rejected the submissions, the defendant appealed and the Crown submitted there was no jurisdiction in this Court to hear the appeal. The appellants conceded there was no jurisdiction to hear appeals in relation to the stay of proceedings. This concession acknowledges Gunarwardena, and reflects that section 29(2) can only be used for the better management of the trial (ie a non-terminating ruling) as opposed to a stay for abuse (a terminating ruling).
"3 The first question which arises is one of this Court's jurisdiction. The Crown submit that we have no jurisdiction to hear this appeal at all. The relevant statutory provisions are identical to those for serious fraud cases contained in the Criminal Justice Act 1987. Section 29(2) of the 1996 Act enables the judge to hold a preparatory hearing for the purposes of: (a) identifying issues which are likely to be material to the verdict of the jury; (b) assisting their comprehension of any such issues; c) expediting the proceedings before the jury; and (d) assisting the judge's management of the trial. For these purposes section 31(3) enables the judge to make a ruling as to (a) any question as to the admissibility of evidence and (b) any other question of law relating to the case. Section 35 provides for an appeal against any such ruling.
4 Previous decisions of this Court make it clear that these provisions only give a right of appeal against a ruling made for section 29(2) purposes. They do not therefore allow appeals from all rulings on questions of law made before trial. More specifically they do not permit an appeal against a judge's refusal to stay proceedings as an abuse of process: R v Gunarwardena (1990) 91 Cr App R 55. In so far as this appeal is against that part of the judge's ruling we therefore have no jurisdiction to hear it as counsel for the appellants conceded yesterday. It is also clear from the authorities that there can be no appeal from a judge's refusal to quash an indictment on the basis that the evidence does not support the charges made: see R v Hedworth  1 Cr App R 421."
"5 Counsel for the Crown submits by analogy that wherever the effect of the application is that there should be no trial at all there is no jurisdiction to appeal from a judge's ruling. Only rulings at preparatory hearings which are designed to facilitate a trial which is to take place may, he submits, be appealed under those provisions.
6 We are unable to accept these submissions. They ignore the clear language of the statute which permits an appeal against a ruling as to:
'Any question as to the admissibility of evidence.'
7 That is precisely what the judge's section 78 ruling in this case is. The meaning of the statute cannot be affected by the consequences of the ruling. Some rulings on admissibility will have little or no effect on the conduct of the prosecution's case. Others, such as the ruling sought in this case, would or might have the effect that the prosecution cannot proceed, but such a consequence cannot alter the character of the ruling, namely that it was a ruling as to the admissibility of evidence. Such a ruling made in the course of a preparatory hearing can be the subject of an interlocutory appeal."
"There were three applications: first, on the ground that certain evidence was inadmissible at the trial; secondly, to quash one count of the indictment; and thirdly, that the prosecution should elect whether to proceed with a conspiracy charge or with various substantive charges. It was held that there was a right of appeal as to the inadmissibility application but not in relation to either of the other applications, including the application to quash the indictment." per Evans LJ in Hedworth  1 Cr. App. R. at 426.
In his judgment delivered on 4 February 1991 the Lord Chief Justice dealt with the evidence point shortly. He said, at page 2 of the transcript:
"There are three points in issue before this Court. The first is the judge's ruling that certain evidence relating to what is called 'venture capital' was to be admissible at trial. There is no doubt that this is the proper subject of an appeal."
"[The judge in the preparatory hearing] may exercise a range of powers to narrow the issues in dispute and to assist the jury's understanding of the case. For example he may make a ruling on the admissibility of evidence or any point of law."
The authorisation and management of the operation
a) that there was no extant statutory basis for the test purchase operation, with its covert recording of conversations and telephone calls;
b) that the operation was not properly authorised;
c) that the operation was not properly supervised;
d) that the operation was not carried out in good faith, in that there was a "subtle conspiracy" to entrap;
e) that the police taking part in the operation had conspired to commit perjury.
The nature of the proceedings
"It is, frankly, inconceivable, given the input to this operation that an unjustifiable operation was simply rubber-stamped for some undisclosed and dishonest motive."
At 32F-G he said:
"In short, I am satisfied that in matters of authorisation and renewal, officers at all levels were acting ethically and with integrity, having regard to the somewhat inadequate guidelines which applied at the time."
At 136C-E he said:
"Thirdly, for reasons that are already outlined, senior officers sought to live within the spirit of the guidelines which were themselves ill-adapted for governing this particular sort of operation and errors which took place were in effect, errors of form rather than substance."
As to the operations in the field, the judge found (at page 70A-B):
"In this case I have come to the view that there is no instance of a test purchase officer concocting a conversation or deliberately lying about its contents."
"In truth, there were no guidelines tailor-made to apply to this sort of test purchase operation. Notwithstanding this, I am quite satisfied that the senior officers in charge of this operation sought to apply the spirit of these guidelines, insofar as they sought to protect citizens from unwarranted intrusion." (12C)
"I am quite satisfied that the seeking of authority for the use of test purchase officers in this case was properly launched and granted. ... I am quite satisfied, largely on the evidence of Detective Sergeant Davis, that in fact and in truth, this was a justifiable operation, properly authorised." (24G - 25A)
"Meanwhile, in the normal way, applications were made to the Chief Constable's authority for the use of covert video and audio recording equipment. Authority was granted by the Chief Constable on 25th January 1999. The Chief Constable gave evidence that he only authorised the use of such equipment having satisfied himself of four criteria: that the offences being investigated were serious; other methods had been tried and failed and/or there were reasonable grounds to believe that they would not be successful; that evidence garnered would assist in the arrest and conviction of suspects and the use of such equipment was technically feasible. ... In short, once again, I am quite satisfied that the use of covert equipment, extending to covert audio and video equipment, was properly authorised and considered ... insofar as it related to individuals." (25E-26A, and 27F)
a) The judge was impressed by evidence of officers of great seniority and experience showing a determination to scrutinise the application with the greatest care and to play it by the book. (28B).
b) The judge was critical of a sentence in the operational objectives stating that:
"It is unlikely the operations as planned will lead to collateral intrusion."
By the time that statement was made, it was clear that the operation would lead to such collateral intrusion, for if deals were to be done in other people's homes, it was likely that partners and families might be present, or innocent visitors. However, the judge was satisfied that the police were only too aware of the potentially intrusive effect of an undercover operation, and the judge found this to be an error of form rather than of substance. (30D - 31E)
"Again, I am satisfied the operation was properly reviewed and renewed. In short, I am satisfied that in matters of authorisation and renewal, officers at all levels were acting ethically and with integrity having regard to the somewhat inadequate guidelines which applied at the time. I would add further, for the sake of completeness at this stage, that as well as the other officers I have mentioned, other senior officers were consulted in relation to the feasibility of this operation and gave their support to it [and those officers are then listed] .... All of these officers were very familiar with the area because of past service and experience." (32F-33B)
"Of course, the Crown concede that a violation of Article 8 of the European Convention on Human Rights has occurred, since the operation itself was not statutorily based. ... I shall bear in mind that the evidence obtained by the test purchase officers was, in that sense, obtained unlawfully which, in my judgment, is a factor, not a determining factor, in deciding whether the evidence obtained is admissible." (33C-E)
"Having thus, by way of background and introduction, set out the procedures for the authorisation and renewal of the operation as a whole, I shall in a moment return to the law and review it so as to set out in my judgment the framework with which I have to determine the nub of this voire dire; namely, the admissibility of the evidence of the test purchase officers themselves, having regard to the tactical management of the operations and the things said and done by test purchase officers."
c) First, the judge considered "... a considerable shift in tactics ...". This was when the test purchase officers instead of purchasing stolen goods themselves, were purporting to sell stolen goods in exchange for drugs. The judge concluded:
"This seems to me to have been a purely tactical decision. It does not seem to me to have been a matter which needs to be separately and specifically authorised. It is, of course, a matter highly relevant to my decisions as to whether specific evidence should be excluded, but I make it clear that, in my judgment, the provision of apparently stolen goods as payment for drugs by undercover police officers is not, per se, objectionable, either ethically or in terms of the operation which had been authorised. ... The issue in relation to this change of tack ... is whether, in fact in relation to the individual concerned the proffering of stolen goods amount to an inducement to commit a crime which he or see would not otherwise have committed. In other words, I must assess very carefully whether there is evidence that, having regard to a particular individual, the proffering of stolen goods was what tipped the balance and turned a user into a supplier or whether it amounts simply to the provision of opportunity to commit a particular crime which the individual freely accepts." (34D - 35C)
d) Secondly, the judge dealt with the point where
"... a test purchase officer may suddenly and unexpectedly be led down a path quite different from that anticipated and in order to preserve his or her cover, no immediate objection may be made. This in turn will inevitably lead into intrusion in someone's life which has not been specifically authorised; in particular, with the covert equipment, if any, being worn by the test purchase officer. Even if it could not be practical to seek authority for the first intrusion ... should the test purchase officer return to base and seek authorisation?" (35D - G)
The judge set out the pros and cons of the argument and concluded that the duty was restricted to:
"... informing officers in tactical control of the events and to obtain authority to proceed further." (36E)
e) Thirdly, permission for the use of equipment in such circumstances. The Chief Constable had expressed the view that it would have been necessary to return to base and seek authorisation for it before proceeding further. The court concluded:
"That being so, I proceed in this voire dire on the basis that on occasions, covert equipment was used without proper authorisation. Once again, however, I do not take the view that any evidence thus obtained is per se inadmissible. It is simply a factor that I shall take into account when it comes to the individual concerned. In other words, I shall carefully consider the quality of the particular intrusion and consider whether, in the particular case, the lack of authority contributes to contributes to the possibility that a fair trial of the individual would not be possible, or to admit evidence would have no adverse effect on the fairness of the proceedings. I stress, however, that in my judgment, this lack of authority did not arise out of any deviousness or dishonesty on the part of the officer, but rather from a failure to think this particular issue through." (37A - D)
f) The judge then dealt with certain general criticisms of the operation and the records kept. First there was no separate note of the briefings and debriefings of test purchase officers on each day of the operation. He concluded:
"In my judgment, this was not done to conceal anything. The operation remains to be judged on what actually took place on the ground, the vast bulk of which was recorded, thus providing an independent record. Secondly, criticism is made of the fact that test purchase officers were provided with mobile 'phones which were 'pay as you go 'phones'. No records were kept of who used which 'phone to telephone suspects and because at the time Detective Sergeant Davis did not think itemised billing could be obtained for such 'phones - which I accept - no efforts were made to retrieve information which could corroborate the test purchase officers about the use of some of the 'phones until it was too late. No independent record of the use of the 'phones exists, certainly in relation to Collette Claydon, against a background where, for instance, on her behalf it was asserted she was bombarded with and harassed by continual calls. This could have been a serious problem, but in the event I find that all calls were, in fact, accurately recorded in test purchase officers notebooks and the frequency of calls did not amount to improper pressure or harassment, having regard to the particular facts which confronted the test purchase officers at that time. Finally, the criticism is made that because tape recorded conversations were not reviewed daily, it is impossible now to recall whether test purchase officers relayed particular information back to the management team which is not contained in their notebooks, which are of themselves, by necessity, very brief accounts of the days events. Again, in the vast bulk of events, the test purchase officers can be judged on the independent record. I accept from Bob and Alex, two special operations unit officers, their evidence in general terms that the test purchase officers acted with integrity." (41G - 43A)
g) The judge then accepted that there had been isolated breaches of guidelines in instances of the authorisation and use of covert equipment, which he had already indicated he would take into account. He referred to the evidence of alleged entrapment. He accurately summarised the law in saying that it was not a defence, but the court had a discretion to exclude it if unfair. He made it clear that he would consider whether each person was entrapped, as defined by the Lord Chief Justice in the case of Nottingham City Council -v- Amin. There he dealt with the necessity of looking at the credibility of the test purchase officer's evidence as a whole.
"Where there is a recording, does it tally with the notes made? Do the recorded conversations lend weight and support to the test purchase officer's account of the unrecorded event, or do they contradict it? In this case, I have come to the view that there is no instance of a test purchase officer conducting a conversation or deliberately lying about its contents. There is sufficient recording material to make that clear, in my judgment, but seeing, as I have, a number of discrepancies between recorded conversations and notes made by test purchase officers of such conversations, I am equally clear that, in many cases, the notes alone are not a reliable guide of what was said because of the omission of certain things said and changes of emphasis. I make it clear that this is a difficulty caused by the wholly undesirable frailties of human recollection, rather than any deliberate attempt to distort the evidence. I wholly reject suggestions that have been made that there is a clear pattern to the failure to record in this case, that is has been devised to conceal the reality of the test purchase officers from this court." (69G - 70E)
"It will, in our judgment, be a rare case where this Court, who have not heard the undercover office give evidence, nor listened to the tapes ... nor heard the accused, if the accused had chosen to give evidence, will depart from the findings of fact made by the trial judge following a voire dire or the trial judge's conclusions based upon his findings of fact."
"I shall bear in mind that the evidence obtained by the test purchase officers was, in that sense, obtained unlawfully which, in my judgment, is a factor, not a determining factor, in deciding whether the evidence so obtained is admissible."
Entrapment - the law
"In their approach to this case the parties have found significant common ground. It is, first, common ground between them that entrapment is not a defence to a criminal charge in England and Wales. The authority for that is the well-known decision of the House of Lords in R v Sang (1979) 69 Cr.App.R. 282,  A.C.402,  2 AER. 1222, HL. It is furthermore, however, common ground that the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow evidence to be given on which the prosecution proposes to rely 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 the proceedings that the court ought not to admit it. It is plain from that provision that, in exercising its discretion, the court has to make a judgment whether the admission of the evidence would render the trial unfair. If the court concludes that the admission of the evidence will render the trial unfair, it will exclude it. If it concludes that it will not have that adverse effect, then it is likely to allow the evidence to be admitted. If the case is near the borderline then the court has to exercise a judgment, taking account of all the relevant circumstances of the case. Although at the time when R v Sang was decided section 78 of the 1984 Act had not been passed, it is important to note nevertheless that all members of the House of Lords, as one would expect, accepted that a trial judge is empowered to rule against the admission of evidence if the effect of admitting it would be to render a trial unfair.
Our attention has been crucially drawn to Article 6 of the European Convention on Human rights. It is unnecessary in my judgment to cite the terms of that familiar article. It directed to ensuring that a defendant has the benefit of a fair trial and the European Court has on more than one occasion emphasised that it is the fairness of the whole proceedings which must be looked at and not the fairness of any subordinate procedure in isolation.
There have been a series of cases in this country where the commission of a crime has involved the participation not only of the party charged as a defendant but also of the person acting in a law enforcement role. Such a situation can give rise to difficult questions concerning the reception of evidence, in particular questions as to whether it would be fair or unfair to the defendant if such evidence were admitted. It seems to me that the Court has adopted a fairly consistent line. On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant and opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."
"Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence which he would not otherwise have committed? What was the nature of any entrapment? Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence? How active or passive was the officer's role in obtaining the evidence? Is there an unassailable record of what occurred, or is it strongly corroborated?"
"In our judgment the law is clear, and the law is consistent with the European Convention of Human Rights and the judgment of the European Court of Human Rights, namely that if an accused person's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by law enforcement officer, than the evidence of that law enforcement officer should be excluded by the trial judge exercising his power under section 78 of the 1984 Act. In many cases were such a ruling to be made the case against the accused would not be able to proceed further. On the other hand, if the law enforcement officer has done no more than give an accused the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else, then there is no reason why the officer's evidence should be excluded and the accused's trial should proceed with that evidence being admitted. No doubt there will be cases, of which this was one, where such a ruling will lead to a change of plea.
On which side of that line evidence of a law enforcement officer will fall is primarily a question of fact for the trial judge to decide when making his ruling. It is of significance that in the Teixeira case in the judgment of the European Court at paragraph 34 this appears:
'The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.'
It has, of course, to be remembered that in making a ruling under section 78 of the Police and Criminal Evidence Act 1984, it is part of the court's duty to consider whether the evidence should be excluded because the admission of the evidence would have such an adverse effect on the fairness of the proceedings, and one of the matters of which the court has to take account in resolving that issue is the circumstances in which the evidence was obtained.
It will, in our judgment, be a rare case where this Court, who have not heard the undercover officer give evidence nor listened to the tapes, if there are tapes, nor heard the accused, if the accused had chosen to give evidence, will depart from the findings of fact made by the trial judge following a voire dire of the trial judge's conclusions based upon his findings of fact."
"If I find entrapment, I shall exclude the evidence. In other words, I shall adopt an approach which is largely favourable to the defendants."
"The primary submission of Mr French is that he was entrapped into the commission of the 14 drug offences remaining against him. . These can be broken down into two discrete areas. Counts 1 and 2 relate to the supply of heroin; here the Applicant submits that he was entrapped into the commission of these offences by the use of sympathy inducing cover stories which caused him to commit offences that he would not otherwise freely have committed. The remaining counts, with the exception of count 8, relate to the supply of amphetamine sulphate to Test Purchase Officer Mick. Here the Applicant submits that he was induced into the commission of these offences by the offer to supply goods stolen to order in exchange for drugs. Count 8 alleges the supply of cocaine, the argument here being the same although with the added refinement of a link between the supply of cocaine by the applicant with the supply of stolen goods of specific interest to the Applicant."
"... he is a braggart, he is indiscreet, he is proud to be on the fringes of crime and does not mind anyone knowing it, he is extremely sociable and friendly, he is keen to ingratiate himself, especially if there is something in it for himself and, above all, he is keen to help in any way he can, whether it be with legal or illegal activity, provided as I say, he sees something in it for himself. ... He has supplied amphetamine in the past, but not at quite the level he suggests to the test purchase officers. Above all (and over all) he is a keen and enthusiastic salesman."
"In effect, it is suggested by Kate's pose as an addict, Kate and Holy were acting as agent provocateur. I do not agree. Mr French demonstrates by his own actions, actions he freely takes having offered to help with alacrity and by his persistence and by his expressed knowledge of the drug scene, that he is freely willing to help.
I am quite satisfied that these two offences, so far as they relate to French, were not brought about by any unfair or improper activity. He was given an opportunity, namely to help a fellow drug user in difficulty, and freely availed himself of the opportunity."
"What did follow is characterised by the same eagerness on the part of Mr French to assist in any way he can and by his readiness to act with alacrity, to provide help and support to persons he believed were thieves, who could provide some things he wanted, some of whom, at least, were attached to a drug which he purported to dislike.
I derive the strong impression that if French believed there was something in it for him, whether gaining status or contacts within the criminal fraternity or direct financial benefit or even a relationship with a female test purchase officer, he was prepared to go along with things and would have done so whatever the real characteristics of those approaching him were.
The fact that the test purchase officers had access to the sort of goods he might be interested in was less important to him than, for instance, it was to Glen Sainsbury and Christina Hermitage. There is clear evidence on the face of the transaction which followed that he was prepared to help out supplying drugs, either by obtaining from people that he knew or at least putting the test purchase officers in contact with drug suppliers, irrespective of the volume or quantity of goods that he could obtain from the test purchase officers."
"In short, Mr French's conduct is consistent with a pre-existing willingness to supply cocaine and is driven by his own greed and self-interest rather than the actions of the test purchase officers."
"In my judgment, it is perfectly clear throughout that Ashley Hall was not wheedled or pressurised into assistance. This was something he would have done for someone he had become acquainted with. The failures to record in his case were either justified or took place on occasions when I am satisfied that the test purchase officers have accurately noted the gist of what occurred, having regard to the material that was recorded, a phone number that was indubitably handed over and the lack of challenge.
The situation that Hall was confronted with, an addict in need, was in no sense an improper posture by the test purchase officers and I can find no reason for concluding that a fair trial of Ashley Hall would not be possible or that to admit the evidence against him would have an adverse effect on the fairness of the proceedings.
The decision to persist against Ashley Hall after the obtaining of the phone number was plainly set in motion by Collette Claydon's comments in the phone call on 4th February and was not such an unjustified extension of the operation, although the chief constable's views on specific authorisation were not sought, as to justify a stay. I accordingly rule the evidence admissible."
"In the absence of any evidence from her at the voire dire, I have to look with great care at what she said and did during the various exchanges. If, for instance, I took the view that she had been pressurised to act I the way she had by Trevor Greer, then I would find that [the] actual intrusion that took place would have had, unconsidered as it was, a significant impact which could lead me to the view that it would be unfair for the evidence to be adduced against Marina Costall.
Try as I might, I cannot find any indication of reluctance, hesitation, anger or concern on the part of Marina Costall at having been assigned this role by her partner. In such circumstances, therefore, whilst I note the invasion of privacy with unauthorised equipment and the collateral intrusion on Marina Costall, it does not lead me to the view that a fair trial would not be possible, nor that it would it might be the case that to admit the evidence would have an adverse effect on the fairness of the proceedings against her. Accordingly, I rule the evidence in relation to Trevor Greer and Marina Costall admissible on the counts that I have indicated."
"My answer to these questions is a simple negative. The vital calls are recorded. Although Collette is audibly in a bad state, enough is said to satisfy me that she is not making an offer simply to get rid of Kate. She is prepared to help if she obtains a supply. Putting colloquially, she is prepared to help if she gets it together.
The fact that she does not and Hall does not succeed in running for her, does not lead me to the view that she would not have been prepared to offer to help out, but for improper pressure. At all times, Collette leaves it open and significantly, although according to Ashley Hall whose observation on this would be prima facie admissible against Collette Claydon, Collette is unhappy being phoned, she is still prepared for Hall to act as her runner."
He was entitled so to find, and in our judgment was right to do so.
a) there was abundant, specific and convincing evidence against the defendant;
b) the fact that her brother was in prison over the period of the test was no reason not to target her;
c) senior officers sought to live within guidelines ill-adapted for this sort of operation, but the errors were errors of form, rather than substance;
d) the operation against the defendant was fully justified: the test purchase officers wished to investigate the accuracy of the suggestion that she supplied Class A drugs - her answers recorded on the telephone fully supported that contention;
e) that the test purchase officers in the field did not themselves have to check that the information against her was accurate;
f) that the microphone attached to the mobile 'phone was a recording device, and neither a listening device nor an intercept. In fact it was properly authorised.
The judge concluded:
"I find therefore that [counsel's] arguments on authorisation and management, in so far as they affect Collette Claydon, take the matter no further than the concession already made by the Crown of a violation of Article 8 because the operation was not statutorily based.
As to her arguments on the facts alleging entrapment, I have no doubt that the frequency of Kate's calls irritated Collette Claydon, but from what she herself said, it is plain Collette Claydon laid on Ashley as a runner to obviate the problem. She never said no. She always explicitly left open the possibility of supply to Kate, subject to her obtaining necessary supplies. I simply reject any suggestion that her failure to supply in the end is any evidence of unwillingness. That would fly in the face of plain English.
What Operation Padstow revealed in the event is that for whatever reason (and this remains unclear), Collette Claydon was having difficulty obtaining supplies, sufficient to supply others, at the material time. To suggest, however, by a process of hindsight, that this invalidates the operation is simply wrong and it by no means indicates that it was the actions of the test purchase officers which pressurised her to try and keep her markets open in times of difficulty. That I find (and I am sure about) was something she was prepare[d] to do to anyone who approached her. Accordingly, I rule this evidence admissible against her."
The judge was entitled to make those findings and reach those conclusions, and was right to do so.
The ruling of 24th November 2000
"The question raised is as follows; is it permissible to advance by way of defence to the jury in any forthcoming trial of their clients that, firstly, the Crown has conceded during the course of the voire dire that in mounting an operation which was not statutorily based there has been a violation of the rights of their clients, namely a violation of Article 8? Secondly, that in the cases of some defendants, and in particular in the case of Costall, that violation has been aggravated, as I found in the voire dire, by a failure to consider collateral intrusion in her case and failure to obtain authorisation for the use of covert equipment in possible breach of the Home Office guidelines (I would add, by way of parentheses, that in the case of Collette Claydon I did not find any violation of Article 8 beyond the concession by the Crown) and, thirdly, that arguable entrapment has occurred by test purchase officers.
In short, both Mr Bailey and Miss Evans are in effect seeking this court's sanction to reopen the issues aired before me in the voire dire with a jury in any forthcoming trial. In essence they assert that a jury could, if it was so minded, acquit their clients on the basis that, in effect, the whole trial process was unfair because it resulted from an operation which involved breach of their right to privacy. They assert that the fact that the Human Rights Act has now force of law, and has done since 2nd October of this year, has made a difference to the position that would have existed prior to its implementation."
"... following a procedure entirely familiar since the introduction of the Police and Criminal Evidence Act, 1984, and in certain limited respects for centuries as part of the common law."