B e f o r e :
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE TOMLINSON
SIR HUMPHREY POTTS
| ||Isidore Jack LYONS|
| ||Anthony Keith PARNES|
| ||Gerald Maurice RONSON|
| ||Ernest Walter SAUNDERS|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr Ben Emmerson QC & Mr Piers Gardner, Mark Ellison (instructed by Stephenson Harwood) appeared for Lyons
M/s Clare Montgomery QC & Mr Julian Knowles (instructed by Peters & Peters) appeared for Parnes
Mr Nicholas Purnell QC & Mr Alex Cameron (instructed by Mishcon de Reya) appeared for Ronson
The Hon Michael Beloff QC, & Mr Murray Hunt (instructed by DJ Freeman) appeared for Saunders
Mr V B A Temple QC & Mr James Eadie (instructed by the SFO) appeared for the Crown
HTML VERSION OF JUDGMENT
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The Vice President :
This is the judgment of the court, to which all have contributed.
- After a six month trial before Mr Justice Henry at the Central Criminal Court sitting at Southwark, these appellants were convicted on August 27, 1990 on a number of counts. They all alleged dishonest conduct in a share support operation during Guinness Plc’s (Guinness) take-over bid for the Distillers Company Plc (Distillers) early in 1986. Appeals against conviction by Saunders, Parnes and Ronson were, save as to one count in respect of Saunders, dismissed by a different constitution of the Court on May 16, 1991.
- Saunders was convicted on two counts of conspiracy to contravene section 13(1)(a)(i) of the prevention of Fraud (Investments) Act 1958 (counts 1 and 14); he was also convicted on eight counts of false accounting contrary to section 17(1)(b) of the Theft Act 1968 (counts 4,7,9,11,13,16, 19, and 22) and on two counts of theft (counts 5 and 23). He was acquitted on a count of destroying company documents.
- Parnes was convicted on one count of false accounting contrary to section 17(1)(a) of the Theft Act 1968 (count 6); he was also convicted on three counts of false accounting contrary to section 17(1)(b) of the same Act (counts 9,11 and 13) and of two counts on theft (counts 10 and 12).
- Ronson was convicted of conspiracy on count 1 (specified above); he was also convicted on two counts of false accounting (counts 3 and 6) and on one count of theft (count 5).
- Lyons was convicted of conspiracy on count 14 (specified above) and on one count of conspiracy to contravene section 151(2) and (3) of the Companies Act 1985 (count 21). He was also convicted on one count of false accounting contrary to section 17(1)(a) of the Theft Act 1968 (count 15), on two counts of false accounting contrary to section 17(1)(b) of the same Act (counts 16 and 19) and on one count of theft (count 20).
- Saunders was sentenced to a total of five years’ imprisonment; Parnes was sentenced to a total of 2½ years’ imprisonment; Ronson was sentenced to a total of 12 months’ imprisonment and was fined £5 million with a four year consecutive sentence in default; Lyons was fined a total of £3 million with a total of five years’ imprisonment in default. Parnes, Ronson and Lyons were each ordered to pay £440,000 towards the costs of the prosecution.
- At the conclusion of the first appeal hearing on May 16, 1991, the Court quashed Saunders’ conviction on count 14. His total sentence of imprisonment was reduced to 2½ years and Parnes’ sentence was reduced to 21 months. On June 14, 1991 the Court reduced the period to be served in default of payment of Ronson’s fines and extended the time in which to pay. The orders for costs made against Ronson and Parnes were reduced to £330,000 each and a similar order was made on November 15, 1991 in favour of Lyons who had abandoned his appeal against conviction in December 1990.
- The case was referred back to this court by the Secretary of State pursuant to section 17(1)(a) of the Criminal Appeal Act 1968. The reference was based on representations by Parnes, Ronson and Lyons that material subsequently revealed during a second Guinness trial ought to have been disclosed to these appellants before their trial. The appellants raised other grounds in addition to that which occasioned the reference. On 27th November 1995 the CACD in a judgment reported at  1 Cr App R 463 quashed Lyons’ conviction on count 14 but dismissed all other appeals.
- On 17th December 1996 ECtHR held, in Saunders v UK 23 EHRR 313, that there had been a violation of Saunders’ rights under Article 6(1) of the ECHR arising from the use made at the trial of the transcripts of his interviews by DTI inspectors.
- On 19th September 2000 ECtHR held, on the same ground, that there had been a like violation of the rights of the other 3 appellants (I.J.L, G.M.R & A.K.P v UK Applications 29522/95, 30056/96, 30574/96).
- As a result of these decisions of the ECtHR, the matter was again referred to this court by the Criminal Cases Review Commission (CCRC) on 20th December 2000 in relation to Lyons and on 28th February 2001 in relation to the other 3 appellants. The references were made because, on the basis of the then law, there was a real possibility that this court might not uphold the convictions because of the decisions of the ECtHR referred to in paragraphs 9 and 10 above. It is by virtue of those references, albeit on additional grounds not contemplated by the CCRC, that this appeal has proceeded before us. We shall come, in due course, to the change in domestic law which has occurred since the references were made by the CCRC.
- Our account of the facts is taken, with a few amendments and omissions, from the judgment of the court delivered by Lord Taylor CJ in November 1995.
- In the autumn of 1985, Distillers was thought to be ripe to be taken over since its share price was low. Between December 1985 and April 1986, Guinness and Argyll Plc made bids and counter-bids in a take-over contest.
- The Guinness team consisted of the appellant Saunders, Olivier Roux and Thomas Ward. Saunders was chief executive of Guinness and became chairman shortly afterwards. Olivier Roux was acting as finance director having been seconded from Bain & Co; Management Consultants. Ward was an American lawyer also acting as a director of Guinness. The appellant, Ronson, was chairman of the Heron Group of Companies. The appellant, Parnes, was a stockbroker. The appellant, Lyons, was a prominent businessman and consultant to Bain & Co. Parnes was a joint director, with Lyons, of J Lyons Chamberlayne.
- During the take-over contest, the Guinness offers included an exchange of Guinness shares for Distillers shares.The success of the final Guinness bid therefore depended upon its share price. The aim of the Guinness team was to maintain and, if possible, inflate that price. In the event, supporters purchased large numbers of Guinness shares. On April 11, 1986 their price rose to 353 pence. By April 18, 1986 Guinness had won and its offer became unconditional. Ten days later, the share price had fallen to 296 pence.
- The prosecution alleged that the appellants and others had employed an illegal share support scheme, whereby undisclosed payments were made out of Guinness funds, on the authority of Saunders, to individuals and companies by way of indemnities and success fees for assistance given in connection with the take-over bid. Such undisclosed payments were dishonest and in contravention of the City Code on Take-overs and Mergers and unlawful in the light of s151 of the Companies Act 1985. The effect of paying undisclosed indemnities and success fees to purchasers of shares was to mislead the market into believing that they were genuine risk-taking purchasers and thus to create a false market. There was evidence from a number of Distillers’ shareholders that the price of the Guinness shares had swayed their decision and they would have acted differently had they known of the payments. It was further alleged that the payments out of Guinness funds were not authorised by the Board and so amounted to theft. The written particulars in the invoices upon which the payments were made disguised the real reason for the payments; hence the charge of false accounting.
- Many of the events which occurred during the bid period were undisputed and the main issue at the trial was whether the appellants were proved to have acted dishonestly. It is convenient to summarise the prosecution evidence of the various transactions and dealings under a number of headings as was done by the trial judge in his summing-up.
Heron (counts 1,3,4,5, 6 and 7)
- Roux, a principal witness for the crown, said Saunders told him in January 1986 that Ronson had agreed that the Heron Group would purchase £10 million worth of Guinness shares upon an undertaking that Guinness would indemnify Heron against any losses incurred on resale. In early 1986 Ronson further agreed to increase Heron’s total investment to £25 million for a similar indemnity plus a success fee of £5 million in the event that the Guinness bid for Distillers succeeded.
- The prosecution alleged that Parnes conducted the negotiations with Ronson. Two companies in the Heron Group purchased approximately £25 million of Guinness shares. It was alleged that the purchases were made in amounts and at times determined by Parnes. Although the outlay represented about 5 per cent of the whole capital of the Heron Group, no written record of the arrangements was made. The overall agreement formed the basis of count 1.
- After the Guinness bid had succeeded, Ronson arranged for an invoice to be sent to Saunders from Heron Management Limited for £2,875,000, half the agreed success fee. The invoice was sent with a covering letter from Heron Corporation Plc. It claimed the money for “services rendered year 31.3.87”. The Crown contended Heron Management Limited had rendered no services in that year. The issue of this invoice formed the basis of count 3 against Ronson and count 4 against Saunders. It was passed by Saunders to Roux and paid by Guinness on June 3, 1986. Since the payment had not been authorised by the Guinness Board, it formed the basis of the theft charge in count 5 against Saunders and Ronson.
- At Ronson’s request, Parnes asked Roux to arrange for Guinness to pay the balance of the success fee and the losses incurred on the resale of Guinness shares to Pima Service Corporation, a subsidiary of Heron based in Arizona. The invoice dated September 25, 1985 was sent to Roux and paid by Guinness on November 3, 1986, again without Board authority. Parnes was present at a meeting between Roux and the Heron Finance Director when Roux dictated the wording of the invoice. The invoice claimed the dollar equivalent of some £3.4 million “for professional advice provided in connection with the Distillers acquisition”. Pima had performed no professional services for Guinness. In fact, the invoice represented losses of some £800,000 on the resale of the shares plus the second tranche of £2.5 million towards the £5 million “success fee”. The invoice formed the basis of count 6 against Ronson and Parnes and count 7 against Saunders. Subsequently, Ronson repaid the £5 million “success fee”.
Consultations et Investissements S.A. (C&I) (counts 9 and 10)
- Parnes, an experienced stockbroker, provided Guinness with market intelligence and advice. He also organised the purchase of £40 million worth of Guinness shares through the Heron Companies and the Beresford Companies of a Mr Margulies.
- On June 4, 1986 Parnes gave to Roux a C & I invoice “for corporate finance advice, success fee as agreed £3,350,000”. C & I was a Panamanian Company with an address in Geneva. Parnes had no connection with C & I, save that it was a convenient receptacle for this payment and Margulies provided him with a piece of its notepaper. Roux said he believed the payment had been agreed by Saunders, Ward and Lyons and that it accurately summarised Parnes’ services to Guinness. The invoice was paid by Guinness in July 1986.
- The Crown relied on the fact that C & I had provided no advice to Guinness. They contended C & I had been used because £3.3. million was an obviously excessive payment to an individual. The issue of the invoice formed the basis of count 9 against Saunders and Parnes and of the theft charge in count 10 against Parnes.
The Margulies Companies (counts 11,12 and 13)
- At the end of March 1986 Margulies arranged for S.W. Beresford Plc, of which he was chairman, to buy £1 million worth of Guinness shares. On the introduction of Parnes, Margulies met Saunders and agreed to support the bid by purchasing more Guinness shares. After Guinness had won, about May 27, 1986, in the course of a meeting between Parnes and Roux, the potential loss to the Beresford group of £1.4 million in the purchase and resale of Guinness shares was discussed. According to Roux it was suggested that Guinness should pay Beresford an indemnity and success fee similar to that paid to Heron and Saunders agreed to this.
- C.I.F.C.O. was an independent company, apparently unconnected to Beresford, but used to recover part of the Beresford losses. According to Roux, Parnes submitted a C.I.F.C.O. invoice using words dictated by Roux. It was dated June 10, 1986 and claimed £1,940,000 as “fee for advisory services re: Distillers Plc”. C.I.F.C.O. had given no advice to Guinness. On July 4, 1986 Guinness paid the invoice. Out of the total sum, £340,000 was paid into an account in Switzerland for the benefit of Parnes. The issue of the invoice formed the basis of count 11 against Saunders and Parnes. The payment was charged as theft in count 12 against Parnes.
- A subsidiary of Beresford named Erlanger submitted an invoice dated June 17, 1986 to Roux for £1,495,000. The invoice was expressed to be for “work in connection with the acquisition of Distillers”. Erlanger had done no work for Guinness. Guinness paid the invoice on July 2, 1986. Its use formed the basis of count 13 against Saunders and Parnes.
- Thus, by means of C.I.F.C.O. and Erlanger invoices, both paid without Board authority, the Margulies/Beresford companies recovered their actual losses plus about £2 million. Subsequently, Parnes repaid the commission of £340,000 which he had received.
We now turn to those counts which concern the appellant Lyons.
Z Bank (counts 14,15 and 16)
- On April 15, 1986, three days before Guinness won the take-over battle, Lyons persuaded the London representative of Z Bank, Vienna (Z Bank) to recommend his bank to purchase Guinness shares on an indemnity basis. On April 16, Z Bank bought 550,000 shares. Parnes acted for the bank as stockbroker. On the resale of these shares the bank lost money. Lyons told Roux about the losses. Roux said in evidence that he told Saunders who confirmed that Guinness would help financially, the help to be regarded as an advance payment against future work. On June 24, 1986 Lyons said the losses would be paid. On June 25, Z Bank submitted an invoice through Lyons to Roux claiming £254,000 for “consultancy services re: Acquisitions and Commercial Investments in Europe” and “out of pocket expenses”. Z Bank had rendered no consultancy services, and were concerned about the wording of the invoice, despite Lyons’ assurance that that was “how we do things here”. On July 1, 1986 Guinness paid the invoice. Subsequently, Z Bank refunded the money. The issue of the invoice formed the basis of count 15 against Lyons and count 16 against Saunders and Lyons. The whole transaction formed the basis of count 14 which charged conspiracy against Saunders and Lyons. It was Saunders’ conviction on that count which was quashed on the first appeal and Lyon’s in the second.
Konsultat (counts 19 and 20)
- Lyons had assisted Guinness in their bid, by advice as well as by purchasing shares and recruiting other supporters. Roux said in evidence that Ward and Saunders agreed to pay Lyons a success fee of £3.3 million. This was done by means of two invoices: one for £300,000 from J Lyons Chamberlayne and one from Konsultat S.A. (a Panamanian Company) for £3 million. The Konsultat invoice was submitted on May 27, 1986 for “professional and advisory services including all disbursements: fees as agreed, £3 million”. According to Roux, Lyons handed him the invoice and Saunders confirmed it should be paid. Konsultat had performed no services. The £3 million was paid on May 29, 1986 by Guinness without Board authority. The invoice formed the basis of count 19 against Saunders and Lyons. The payment formed the basis of the charge of theft in count 20 against Lyons. Subsequently Lyons refunded about £2 million of the payment received.
- During the bidding period, Lyons purchased about £1.2 million worth of Guinness shares on behalf of himself and clients. The losses on those purchases amounted to some £300,000. After Guinness had won, Lyons agreed with Ward that Guinness should make good the losses by 12 monthly payments of £25,000 to Bain & Co for Lyons and his clients. Five instalments were paid before the affairs of Guinness were investigated.
M.A.C (counts 22 and 23)
- Marketing and Acquisition Consultants Limited (MAC) was a Jersey company controlled and solely owned by Ward. From January 1985 Ward was entitled to receive $75,000 for his services as a non-executive director of Guinness. When his law firm did work for Guinness it was entitled to appropriate fees. Any special remuneration from Guinness to Ward required approval by the full Board. Such approval was never given.
- About May 23, 1986 Ward submitted an MAC invoice for £5.2 million to Guinness. The sum was claimed in respect of “advice in relation to strategy and execution in respect of the successful acquisition of Distillers Plc”. MAC had given no such advice. Guinness paid the invoice on May 23, 1986, the money going into a Jersey bank account. On July 3, 1986 £3 million of the £5.2 million, together with the interest accruing, went into Saunders’ Swiss bank account, where it remained until November 1986. The total sum was eventually remitted to companies controlled by Ward in the United States.
The MAC invoice formed the basis of count 22 (false accounting) and the payment the basis of count 23 (theft).
- The various invoices and payments were drawn by Guinness’ chief accountant to the attention of the auditors. Eventually, Mr Hughes, the senior Price Waterhouse auditor saw Saunders on November 25, 1986. According to Mr Hughes, he raised his concerns. Saunders evinced no surprise and said he could provide whatever information was required.
- Meanwhile, following rumours and allegations of misconduct during the bid period, inspectors were appointed on November 28, 1986 by the Department of Trade and Industry (the DTI) pursuant to sections 432 and 442 of the Companies Act 1985. They started their inquiries on December 1, 1986. Apart from Saunders, who was first interviewed by the inspectors on February 10, the appellants were first interviewed in January. Other interviews followed. S434 of the Companies Act provides:
“(3) An inspector may examine on oath the officers and agents of the company or other body corporate, and any such person as is mentioned in subsection (2), in relation to the affairs of the company or other body, and may administer an oath accordingly….
(5) An answer given by a person to a question put to him in exercise of powers conferred by this section (whether as it has effect in relation to an investigation under any of sections 431 to 433, or as applied by any other section in this Part) may be used in evidence against him. ”
By virtue of s436(2) and (3) a refusal to answer questions by an inspector can be punished as contempt of court. Saunders was arrested on May 6, 1987, at that stage solely on a charge of destroying documents. Lyons was arrested on October 8, 1987, Ronson on October13 1987 and Parnes on March 24, 1988, after returning from California.
The interviews conducted by the DTI inspectors with each of the appellants were admitted in evidence, despite objection, and formed a significant part of the prosecution case. The prosecution spent 3 days reading the interviews to the jury, Saunders was cross examined about them and the judge, in his summing-up, made many references to their potential importance.
The defence cases
- At the trial the only one of the appellants to give evidence was Saunders. He disputed much of the evidence of Roux and in particular denied knowledge at the relevant time of any indemnities or success fees. He was aware of one Heron invoice but not that it related to anything other than legitimate business. He denied Mr Hughes’ account of their meeting on November 25, 1986, saying that Mr Hughes had made his own version up. Since they convicted him, the jury clearly disbelieved Saunders. It was not suggested by him that he believed granting indemnities and success fees was an established market practice; rather he simply denied that he had given, authorised or was aware of any indemnities or of the success fees as proposed or paid.
- Ronson’s defence followed the line taken in three letters written on his behalf by his solicitors and in his answers to the inspectors. Essentially his case was that he relied on Parnes and on his belief that Guinness had the best advice from reputable and experienced City professionals. It was unthinkable to him that he would be asked on their behalf to do anything improper. In the course of his second interview with the inspectors, Ronson claimed that if Parnes had told him at the start that he, Parnes, was getting a fee of over £3 million, he “would have smelt that this whole thing was not right”. Yet, Ronson did know of Parnes’ fee before agreeing his own success fee, He was wholly unable to explain to the inspectors why he, nevertheless, went ahead.
- Parnes’ case was that a reasonable man with experience in the City would not at the time have regarded what he did as dishonest. Guinness shares did not reach a price higher than was justified. He did not accept he had any responsibility to make disclosure to the Stock Exchange. The payments he received were for lawful and valuable services. He did not believe the invoices to be false in any material particular. The payments to him via C & I was for reasons of “fiscal efficiency”. No reasonable man would have regarded the payments he received as theft.
- Lyons told the inspectors that Ward had offered him a success fee. He denied promising an indemnity to Z Bank before the Guinness bid succeeded. Payment was made in advance for services. He denied dishonesty, asserting that he would not have risked his reputation to support a dishonest scheme. He did not claim to have believed Guinness could properly grant indemnities to purchasers of its shares. On the contrary, he told the inspectors that if anyone at Guinness had suggested it to him “they would have had a walk-out”. His receipts were, he claimed, in part for his advice and his contacts and in part for the sale to Ward of his flat in Washington.
- Before this court there have been essentially four grounds of appeal on behalf of the appellants. First, (the basis for the CCRC reference), that the Human Rights Act 1998 (HRA) is retrospective in effect so that, on an appeal to this court after it came into force on 2nd October 2000, the appellants can rely on the breach of their right to a fair trial under Article 6 by the prosecution’s use in evidence against them of their answers given to the DTI inspectors under compulsion. Secondly, even if the HRA is not retrospective, the convictions are unsafe because: (i) the UK’s treaty obligations, particularly under Article 46, confer on the appellants the right in domestic law to rely on the violation established by the ECtHR’s conclusion that their trials were unfair and to seek reparation by the quashing of their convictions; (ii) it is not possible to uphold the convictions by reliance on evidence admitted in breach of Article 6 because this would place this court in breach of the HRA s6(1) obligation to act compatibly with convention rights; and (iii) contemporary standards of common law fairness require that the answers to the DTI inspectors should have been excluded by the trial judge in exercising his discretion under s78 of the Police and Criminal Evidence Act 1984. Thirdly, that there was, at the trial, material non-disclosure of evidence as to market practice in relation to share support schemes which precluded the proper advancement of the defence of at least some of the defendants. Fourthly, that there was, at the trial, non-disclosure by the prosecution of information in relation to the foreman of the jury which puts into question his integrity and impartiality.
- As to the first ground, it was conceded on behalf of the appellants that the House of Lords’ recent decision in Kansal  UKHL 62 has determined the point adversely to the appellants. But the appellants wish to keep the point open lest, in the future, the House of Lords can be persuaded to take a different view. This calls for a brief explanation.
- In Lambert  3 WLR 206 the majority of their Lordships (Lord Slynn at paragraph 10, Lord Clyde at paragraphs 139-144 and Lord Hutton at paragraphs 173-176) concluded that sections 6(1) and (2), 7(1) and (6) and 22(4) of the HRA do not retrospectively permit a defendant, convicted before the coming into force of the Act on 2nd October 2000, to rely, on appeal after that date, on a breach of Convention rights at his trial. Lord Hope, at paragraphs 107 to 116, concluded that, on such an appeal, a defendant can rely on such a breach by the prosecuting authority but not by the court. Lord Steyn, at paragraphs 28 to 30, concluded that, on such an appeal, a defendant can rely on such a breach whether by the court or the prosecuting authority.
- In Kansal the House of Lords were unanimous in allowing the appeal and upholding the conviction of a defendant tried before October 2000, but appealing after on a reference by the CCRC. The prosecution had relied at his trial on answers given under compulsion in bankruptcy proceedings under s433 of the Insolvency Act 1986 which is, for present purposes, indistinguishable from s434(3) and (5) of the Companies Act 1985. All but Lord Hope held that Lambert must be followed, although Lord Lloyd (at para 17) and Lord Steyn, (at para 26) as well as Lord Hope, (at para 72) thought that it had been wrongly decided. Lord Hope and Lord Hutton differed as to the ratio of Lambert, the former saying that this was limited to violation at trial by the court (paragraph 33), the latter saying that it extended also to violation at trial by the prosecution (paragraphs 99-100). Although Lord Hope concluded that, contrary to Lambert, the retrospectivity of the HRA permitted Kansal to rely on a pre-Act violation, he also concluded, (paragraphs 83, 86, and 88), following Lord Bingham of Cornhill CJ in Staines & Morrisey  2 Cr App R 426 at 442-3, that the prosecutor, in relying on the provisions of primary legislation in s433 of the Insolvency Act, was not acting unlawfully under s6(1) of the Human Rights Act. It was for this reason that he agreed that Kansal’s conviction should be upheld.
- It therefore follows, in relation to the present appeal, that the conclusions of all 5 of their Lordships in Kansal are adverse to the appellants’ attempt to rely on the HRA.
- Before us, submissions on behalf of all the appellants were advanced by Mr Beloff QC, Mr Emmerson QC and Miss Montgomery QC each dealing with different aspects of the case. For the Crown, both Mr Temple QC and Mr Eadie made submissions on different aspects. All the submissions were of high quality, covered a great deal of ground, raised many issues and included references to numerous authorities. We intend no disrespect to those submissions by not rehearsing them in detail. We shall make such references to the arguments as seem appropriate in expressing our conclusions.
- In the light of the conclusion of the majority in Kansal that Lambert was wrongly decided, we accept Mr Emmerson’s submission that Lambert should not be applied beyond its strict ratio and that the appellants are entitled to advance before us any argument not expressly excluded by the ratio of Lambert. We also accept Mr Eadie’s submission that, save that in Kansal no violation of Article 6 rights was established in Strasbourg, Kansal is indistinguishable from the present case.
- The next question is whether, as Mr Eadie contends, the submissions made on behalf of all the appellants except Saunders who intervened in the House of Lords in Kansal were such that it is not open to the appellants now to advance matters in support of any of the three limbs of the second ground of appeal as summarised in paragraph 40 above. In our judgment that is not the case. As to (i) the speeches in Kansal do not suggest that the established violation point was being determined. There was no established violation in that case and we are told, and accept, that their Lordships indicated it would be premature to decide that point. As to (ii), the point was, in our judgment determined adversely to the appellant in Lambert and Kansal, the latter case being, as we have said, indistinguishable on this aspect from the present case. There is no difference in principle between unfairness resulting from a misdirection (as in Lambert) and unfairness resulting from the wrongful admission of evidence (as in Kansal): if there were any difference it seems highly likely that the decision in Kansal would have been different. As to (iii), although there were, in the written submissions of the intervener, references to this point, it did not arise on the question certified in Kansal and was not referred to in any of the speeches. We conclude that it is open to the appellants, before us, to advance submissions in support of (i) and (iii) of the second ground identified in paragraph 40 above. The third ground was not pursued after we had indicated during the course of argument that, if we concluded that the compelled answers should not have been admitted in evidence, or if we concluded that we were bound to give effect to the Strasbourg Court’s decision that the trial was unfair by examining anew the safety of the convictions, we would not uphold the convictions on the basis that they are safe in any event. It was for this reason that we did not hear submissions from Mr Purnell QC.
- We turn to the second ground of appeal and consider, first, the question of whether the United Kingdom’s obligations under Article 46 of the Convention mean that, in the light of the ECtHR’s conclusion that the appellants’ trial was unfair, in violation of Article 6, their convictions must be quashed.
- Article 1 imposes on the State a duty to secure “to everyone” the rights and freedoms of the Convention. Article 13 requires States to provide an effective remedy to those whose rights are violated. Article 46 provides “(1) The high contracting parties undertake to abide by the final judgment of the court in any case to which they are parties. (2) The final judgment of the court shall be transmitted to the committee of ministers which shall supervise its execution”.
- A State’s obligation is to put an end to the breach and make reparation by restoring as far as possible the situation existing before the breach (Papamichalopoulos v Greece 21 EHRR 439 paragraph 34). Recommendation R 2000(2) of the Committee of Ministers provides that re-opening the proceedings “has proved the most efficient if not the only means of achieving restitutio in integrum”.
- A judgment of the ECtHR is declaratory and leaves to the state the choice of means for performing its obligations to abide by the judgment: see Marckx v Belgium 2 EHRR 330 paragraph 58. It is accepted by the appellants that the Attorney General’s Guidelines in February 1998, which were given statutory effect by the Youth Justice and Criminal Evidence Act 1999 s59 and Schedule 3, have been appropriate measures to prevent further future violations. Answers given to inspectors cannot now be used in criminal proceedings against a person, such as these appellants, “by or on behalf of the prosecution unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person”. It is also accepted that the existence of the CCRC and the CACD’s power, on a reference by the CCRC, to quash convictions is an appropriate mechanism for providing restitutio in integrum. But, it is said, a treaty dealing with human rights demands special treatment: reliance is placed on the Bangalore principles on the domestic application of human rights (1998). Further, the ECtHR’s decisions in relation to these appellants are binding by virtue of Article 46 or, alternatively, should be applied by the English courts in the interests of comity, absent any statutory provision preventing this. Reliance is placed on Lord Bingham of Cornhill’s maiden speech in the House of Lords on 3rd July 1996, four years before the Convention was incorporated into English domestic law and at a time when incorporation was not government policy. He identified six respects in which the Convention “can and in practice does have an influence in our domestic proceedings”. The first, second and fourth of those principles are particularly pertinent. First, where a statute is capable of two interpretations, the courts presume that Parliament intended to legislate in conformity with the Convention. Secondly, if the common law is uncertain, unclear or incomplete, the courts will, wherever possible, declare it to be in a manner which conforms with the Convention. Fourthly, where the courts have a discretionary exercise, they seek to act in a way which does not violate the Convention. It is also to be noted that Lord Bingham said “if domestic legislation plainly conflicts with the enforcement of the Convention then the courts apply domestic legislation….despite ingenious and persistent invitations by counsel to depart from it”.
- In her 1992 article in 18 CLB 1268, Professor Rosalyn Higgins QC accepted, at page 1273, that, although international law is part of the common law, human rights obligations “will be overridden by a clear contrary directive in a statute”. There is nothing in any of the divergent views expressed by members of the Privy Council in recent years to suggest otherwise. (see Fisher No 2  1 AC 434, Thomas v Baptiste  2 AC 1, Higgs v Minister of Social Security  2 AC 228 and Lewis v AG of Jamaica  2 AC 50). On the contrary, the classic statement of principle in The Parlement Belge (1879) 4 PD 129, that unincorporated treaties cannot change the law of the land, is still the law even where human rights are involved (see eg per Lord Hoffman in Higgs at 241D, 242 E-F and 246 A-C).
- In our judgment, the State’s obligation under Article 46 to abide by the judgments of the ECtHR does not confer any right on these appellants. In any event, we doubt whether Article 46 requires the re-opening of convictions. This is not expressly or implicitly required by Article 46 and there is nothing in the Strasbourg jurisprudence to suggest that there is any such obligation. It is to be noted that the ECtHR made a declaration of violation in relation to each of these appellants. That declaration can be, and is regarded by the ECtHR as amounting to, sufficient just satisfaction. That court could have awarded damages but did not do so. It made an award of costs which the United Kingdom has paid in fulfilment of the judgment of the court. There is no suggestion in the ECtHR’s judgments that that court regarded the remedy of declaration and costs as insufficient, irrespective of what might or might not occur domestically. This is so even though the English courts (whatever may have been the position in other countries) have not, before the HRA, re-opened convictions solely because of a Strasbourg finding of unfairness. Assuming, at the highest from the appellants’ point of view, that the Strasbourg findings entitle them to have their convictions re-opened by this court, that would simply mean, in view of the other evidence against them, that their convictions would be quashed and a retrial ordered. This is not a case in which, in relation to any appellant, the prosecution case was dependent solely on the compelled answers: there was and is substantial other evidence against each of them. It may be, given the lapse of time in this case and other considerations, that a retrial would not, as a matter of discretion, be ordered – indeed we so indicated during the hearing. That does not detract from the point that in principle in a case such as the present where what is complained of is the use of compelled evidence but there exists other evidence on the basis of which a jury might equally have convicted, restitutio in integrum would be achieved by the ordering of a retrial. Merely to quash a conviction would in such a situation put an appellant, at any rate so far as concerns jeopardy of a conviction, in a superior position to that in which he had been before his trial. Perhaps what this discussion demonstrates is that, in relation to convictions properly secured years ago, the concept of restoring as far as possible the situation existing before the breach is somewhat elusive, the more so when the challenge is to the use of some but not all of the material deployed at trial.
- However, and determinatively, even if the failure to re-open the appellants’ convictions might give rise to violation of Article 46, domestic law precludes reliance on any such violation in the circumstances of this case. The fact of violation could not have led to the exclusion of the answers at the trial, applying the approach available under domestic law at the time, because this would have amounted to partial repeal of legislation enacted by Parliament which authorised the use of the evidence (see R v Staines and Morrisey  2 Cr App R 426at 442C, approved by Lord Hope in Kansal at paragraph 86 to which we return later). The same conclusion results from s6(2) of the HRA which preserves the lawfulness of the conduct of the prosecution and trial judge in relation to the admission of the DTI answers. Put another way, the will of Parliament as expressed in s434 trumps any international obligation.
- The unfairness and want of safety found in Davis, Rowe & Johnson 30 EHRR 1 and  1 Cr App R 115 resulted from improper non-disclosure arising from common law principles, not from lawful compliance with an Act of Parliament. The ECtHR’s decisions in relation to these appellants were tantamount to a declaration that Parliament’s enactment of s434 was unlawful. Such a conclusion is not open to this court, even since the HRA, because the whole scheme of the Act preserves the sovereignty of Parliament. These appellants, in our judgment, cannot assert, at common law, rights derived from the Convention which they are prevented from asserting under the HRA because it is not relevantly retrospective. The primacy of Parliament means that, albeit these convictions resulted, in part, from procedures which the ECtHR have categorised as unfair, this court cannot properly declare them unsafe, because the stigmatised procedures were expressly permitted by Parliament. We respectfully agree with Lord Slynn, in Kansal paragraph 9, that there is no valid distinction between the procedures being mandatory or discretionary. In consequence, we derive no assistance from Dallal v Bank Mellat  1 QB 441. That case shows that, when considering recognition, competence can be derived from international law and comity requires a domestic court to give effect to a competent tribunal’s decision between the same parties. But the case was not concerned with the problem at the heart of the present case, namely the conflict between a Strasbourg decision or the decision of any other competent triburnal and the clearly expressed will of Parliament to which the domestic court must, inevitably, give effect.
- The remaining question is whether contemporary standards of fairness require the appeal to be allowed. There is now clear authority at the highest level for the proposition that, in assessing the safety of a conviction this court must apply the standards now developed by the common law. In R v Mills and Poole  AC 382 Lord Hutton rejected the approach of the Court of Appeal in Ward  Cr App R 1 and said “I am of the opinion that your lordships should apply the modern rules to determine whether the failure to disclose …..constituted a material irregularity”. In R v Bentley  1 Cr App R 307, where Mills and Poole was not cited, Lord Bingham CJ said that the conduct of the trial and the safety of the conviction must be judged according to the standards now applicable (see page 310 paragraph 4). In Johnson  1 Cr App R 408 Lord Woolf CJ at 414 paragraph 26 said:
“The test which this court is required to apply is to approach the issue in the round. In doing so it can only apply the standards which this court adopts today. No one can be criticised for applying standards which were current at the time of any trial. If, however, as a consequence of doing that the trial is properly regarded by this court as unsafe, this court must intervene.”
There is also the highest authority for the proposition that a trial which is unfair by reference to Article 6 will generally result in a conviction which is unsafe. In Togher  1 Cr App R 457 Lord Woolf CJ said at 467 paragraph 30
“If a defendant has not had a fair trial and as a result injustice has occurred, it would be extremely unsatisfactory if the powers of this court were not wide enough to rectify that injustice. If, contrary to our expectations, that has not previously been the position, then it seems to us that this is a defect in our procedures which is now capable of rectification under s3 of the Human Rights Act…..We would expect…that the approach of this court applying the test of lack of safety would produce the same result as the approach of the European Court of Human Rights applying the test of lack of fairness. We would suggest that, even if there was previously a difference of approach, since the 1998 Act came into force the circumstances in which there will be room for a different result before this court and before the European Court of Human Rights because of unfairness based on the respective tests we employ will be rare indeed.”
That passage was approved by Lord Bingham in Forbes  2 WLR 1 giving the unanimous opinion of the committee at 13G. Those passages of course reflect the position since the implementation of the HRA.
- The question which arises, however, is whether, leaving aside the HRA, the common law has developed to a stage at which it should now be said that the trial judge could not properly have exercised his discretion under s78 of the Police and Criminal Evidence Act in admitting most of the DTI answers but excluding those post-charge. It is to be noted that the trial judge, Henry J, gave a careful ruling on 21 November 1989 as to the admissibility of the DTI answers. He reviewed the history of the legislation, from the middle of the 19th century when the privilege against self-incrimination was taken away by Parliament in relation to bankruptcy. Later, Parliament adopted the same approach in relation to investigations by customs and excise and into companies. The use of answers so obtained in criminal proceedings has long been permitted at common law, even in the absence of express statutory permission (see e.g. R v Scott  169 CR 909 and Commissioners of Customs & Excise v Hay & Power  1 AC 760 per Lord Reid at 816 D-E). Whether this common law approach would be compatible with the Convention is not in point because s434 contains Parliament’s express permission. At the time of trial, unfairness, for the purposes of s78, could not arise from the use of compelled answers alone, because Parliament said this was permissible.
- Prior to the implementation of the HRA these is no doubt that the decisions of the English courts were informed by the Strasbourg jurisprudence in the ways identified by Lord Bingham in his maiden speech in the House of Lords. There is also, in our judgment, no doubt that, subject to R v SSHD ex parte Simms  2 AC 115 and ex parte Evans No 2  3 WLR 843 on which the appellants placed reliance, the common law prior to the coming into force of the HRA was reflected in the decision in Staines and Morrisey, the hearing of which was delayed pending the decision of the ECHR in Saunders v United Kingdom. In dealing with evidence of answers to DTI inspectors compelled under s177(6) of the Financial Services Act 1986, which is indistinguishable from s434 of the Companies Act, Lord Bingham CJ at 442Csaid
“If the court were to rule here that this evidence should be excluded it would be obliged to exclude such evidence in all such cases. That would amount to a repeal or a substantial repeal of an English statutory provision which remains in force in deference to a ruling which does not have direct effect and which as a matter of strict law is irrelevant. It is significant that this issue has already been before this court when Mr Saunders challenged the admission of this material in the Court of Appeal before his application in Strasbourg. In giving the judgment of this court in Saunders  1 Cr App R 463 Lord Taylor CJ at page 475A noted Mr Saunders’ acceptance that by the relevant statutory provisions:
“Parliament has in this context overridden the principle against self-incrimination”
At page 477G he continued:
“However that may be, English courts can have recourse to the European Convention on Human Rights and decisions thereon by the European Court of Justice only when the law of England is ambiguous or unclear. Saunders has taken his case to Europe on this issue and the European Convention on Human Rights has referred it the European Court in Strasbourg. Should Saunders succeed there our treaty obligations will require consideration to be given to the affect of the decision here. But our duty at present is to apply our domestic law which is unambiguous. Parliament has made its intentions quite clear in s434(5). It cannot be right for a judge to exercise his discretion to exclude evidence of interviews simply on the ground that Parliament ought not to have countenanced the possibility of self-incrimination...In our view the admission in evidence of answers which Parliament have said may be admitted cannot be regarded as unfair per se under s78 simply because of inherent features of the statutory regime under which they were obtained.”
Lord Bingham went on to consider Khan  2 Cr App R 440, on which these appellants place reliance in relation to the exercise of discretion under s78. As Lord Bingham pointed out, in Khan’s case a breach of Article 6 was not alleged and the argument was about Article 8. At 443C Lord Bingham went on
“The vital distinction, in our view, is that the section here expressly authorises the use of evidence so obtained and that, as we see it, amounts to a statutory presumption that what might otherwise be regarded as unfair is, for this purpose and in this context, to be treated as fair, at any rate in the absence of special features which would make the admission of the evidence unfair. ”
It is to be noted that Staines’ subsequent complaint in Strasbourg was declared inadmissible on 16th May 2000 although the case had proceeded before the CACD on the assumption, unduly favourable to the defendant as it turned out, that Strasbourg might well find a breach of Article 6. We reject the contention that Lord Bingham and the other members of the court in Staines & Morrisey misunderstood the position. They concluded, and we respectfully agree, that unfairness for s78 purposes could not arise merely from the use of compelled answers, because Parliament had expressly permitted such use.
- As to Faryab CACD 22nd February 1999, this was decided as it was because the trial judge and counsel were unaware of the AG’s Guidelines. The prosecution conceded, on appeal, that, had the guidelines been known, the interview answers would probably not have been adduced: (transcript p.6). It is also clear that there could have been no proper exercise of discretion by the judge. It provides no general principle availing these appellants.
- There is, in our judgment, nothing in ex parte Evans which assists these appellants. The principle of retrospectivity, at common law, of the courts’ interpretation of a statute and the doctrine of prospective overruling are of no help when assessing the impact of unambiguous statutory provisions. So far as ex parte Simms is concerned, although Lord Steyn, with the concurrence of Lord Browne-Wilkinson, and Lord Hoffmann concluded that the relevant prison rules could have been drafted in conformity with Convention rights, there is nothing in either of their speeches to suggest that the principles there enunciated should be regarded as applicable in the present circumstances. In our judgment ex parte Simms adds nothing to the appellants’ case, because the principle of legality when construing general words in a statute (to which Lord Steyn referred at 130 E-F and Lord Hoffman at 131 E-F) has no impact on clear and unambiguous words such as appear in s434. This section abrogates the common law principle, historically enshrined in the Judges’ Rules, that only a defendant’s voluntary statements can be relied on in a criminal trial. If the principle of legality has any role to play in relation to s434, it is inconceivable that this would not have occurred to Lord Steyn in relation to the identical provision considered in Kansal.
- In relation to this part of the second ground of appeal as in relation to the first part, the primacy of Parliament and the provisions of s434 are fatal to the appellants contentions.
- We turn to the remaining ground of appeal, in relation to the foreman of the jury. We heard evidence from four Metropolitan police officers DC Perry, DC Allam, D.Chief Supt. McStravick and D.Chief Supt. Botwright, two men with criminal records Paul Maguire and Michael Michael, and the jury foreman.
- Perry has been a police officer since 1981. In 1987 he was posted to the Metropolitan Police Fraud Squad. From 1988 he was employed at the Serious Fraud Office on a mortgage fraud enquiry. He was never employed on the Guinness enquiry. In 1990 he recruited Michael, also known as ‘Ridgely’, as an informant. Michael began to supply Perry with information concerning drugs. Consequently Perry handed him over to the Central Drugs Squad where D.I. North became his senior handler. Perry remained a co-handler, along with Allam who had joined the police service in 1979.
- Perry was with Allam at the Serious Fraud Office on Friday 18th May 1990 when Allam received a telephone call from Michael. (The Crown’s case in Guinness was closed on Tuesday 22nd May). In consequence of this contact with Michael, on Monday 21st May 1990 Allam brought into existence a contact sheet (headed ‘Information Report’), setting out the effect of his conversation with Michael and the steps taken in consequence of it. This Report was for the immediate sight of Allam's senior officers, North and D. Chief Supt.Todd. The Report is in these terms.
“Whilst engaged at The Serious Fraud Office on 18.5.90 i/c DC Perry of that office I received a phone call from RIDGELY who was updating me on a meeting he had had with Patrick MAGUIRE aka MAGOO the previous evening. The purpose of their meeting was to discuss the current dispute between himself and James WARDEN concerning the profits on the Wine Bar and the sale of some Drugs. The meeting revealed a serious rift between them that may result in violence.
During the meeting MAGUIRE had told RIDGELY that he (MAGUIRE) had a relative, who was a Publican, who was on the Jury in the Guinness Trial at Southwark C.C. and who was open to large money offers in return for his assistance on the Jury. The purpose of mentioning this to RIDGELY was the probability that he would know who to approach with a view to arranging such a “deal”. (This may not be as far from the truth as it may seem).
Realising the seriousness of any such possibility I spoke with DC Perry who is working with Officers on the said Trial: following further contact with RIDGELY and the best questioning of him that the phone allowed the info. Was considered serious enough to contact at once the Officer in the Case, Detective Chief Superintendent Botwright, at the Court. We then together were put in touch with and met with Commander McSTRAVICK at the Holborn Fraud Offices – the information was relayed to him and he in turn appraised Commander PENROSE. At 6pm that evening I informed Det.Insp. NORTH of all that had passed. It was decided that at this stage nothing further could usefully be done and come Monday 21.5.90 further enquiries could usefully be done and come Monday 21.5.90 further enquiries would follow.
The identity of MAGUIRE has been confirmed: he is Paul MAGUIRE DOB 4.8.49 CRO 89340/67 his previous involves armed robbery, burglary and involvement in a Murder Enquiry. He uses the name MAGOO”.
It is to be noted that it is common ground that, on the same day, 18th May 1990, there were widespread media reports of the arrest of a man called Lucas for attempting to blackmail the appellant Ronson for £20 million.
- Allam had further contacts with Michael on 21st May 1990 and 29th May 1990 In consequence he reported on 21st May as follows:
“RIDGELY phoned me this morning and stated that he had an arrangement to see MAGUIRE last night but he failed to show. As soon as further approaches are made I will be told. RIDGELY has been advised to exercise caution and to promise nothing if the subject of GUINNESS comes up again.
He went on to say that C & W have been “buzzing” over the weekend due to a delivery made to them of Cocaine earlier. This may be connected to the phone call RIDGELY overheard last week concerning O’CONNELL? Enquiries continue.”
- The Report for the 29th May 1990 is in these terms:
“RIDGELY contacted me on Sat. 26.5.90 to pass on the following information:
On Friday he had a meeting with MAGUIRE in his (M’s) room above Gladstones Wine Bar – as RIDGELY walked in he saw on the table at ;east 2 kilos of “rock” cocaine which was in the process of being cut. In the room also was WARDEN’s sister, Sally Ann. It is strongly believed that CHRISTIAN would have been MAGUIRE’s supplier. MAGUIRE made some reference to RIDGELY about its presence in his room.
With regards to the Guinness Trial information RIDGELY says that the only reference made to it by MAGUIRE was that the person they had previously mentioned had been “placed”. RIDGELY took this to mean that the Juror had found someone to pay him. I am expecting further contact from RIDGELY to day when hopefully he will be able to tell me more on Sat. he was not well placed to talk.
RIDGELY contacted me again today to add the following to the above:
Whilst in MAGUIRE’s room he saw also a set of scales (kitchen type) and a couple of black credit card type pieces of plastic – he is now not certain that this substance would have come from C & W as he may have his own independent supplier. MAGUIRE is sharing the upstairs of GLADSTONES with LEONARD.”
- In January 2001 these contact sheets were disclosed by the Crown to the defence during the course of a trial in which Michael was a prosecution witness. He was cross-examined by counsel for one of the defendants about them. Thereafter, a solicitor passed the contact sheets to those acting for the appellants who, in turn, brought the matter to the attention of H.M. Customs & Excise, the Metropolitan Police and, eventually, the Court.
- The matter was first investigated by DS Peirce of the Metropolitan Police in February 2001. Peirce spoke to Perry, Allam, North and Botwright among others. McStravick was questioned regarding this matter by DI Harvey. Michael was interviewed in prison. In consequence of the above enquiries, statements were obtained from Allam, Perry, North, Botwright, Commander Penrose and Michael.
- On 5th April 2001 this court, differently constituted, directed that no further investigation of this matter be undertaken by the Metropolitan Police. Thereafter, enquiries were conducted by officers of the Merseyside Police who took further statements from the relevant witnesses and interviewed Maguire.
- In evidence Perry and Allam each confirmed that the content of the contact sheet dated 21st May 1990 (in respect of the events of 18 May 1990) was accurate. In particular, Perry told us that, on receipt of the information from Michael, he telephoned Botwright who told him to see McStravick. In consequence he went to the Fraud Squad Office and informed McStravick of the bare bones of what they had been given. Perry said that Botwright was ‘taken aback’ by what he, Perry, told him. He used similar language to describe the reaction of McStravick. He said that McStravick instructed him to keep this matter confidential and that he would be in touch. Perry said that, at about 8p.m. on 18th May, he attended a meeting at the Fraud Squad Office. Three senior officers were there. One was a Mr Stevenson, he thought. He was not sure whether Botwright was present. At that meeting he was badgered to identify the informant and he refused. Perry said that, at an office breakfast given to mark his retirement from the Fraud Squad and held at the St Ermin’s Hotel at the end of August or the beginning of September 1990, Botwright thanked him for the way in which he had handled this matter and informed him that there had been no approach to the juror.
- Allam had reservations as to the contact sheet dated 29th May, referring to events on 26th May 1990. He did not remember using the word ‘placed’ in the record. He thought that the document did not fit into the sequence numerically, but, this apart, he had no reason to doubt the contents.
- Botwright and McStravick, are both now retired from the Metropolitan Police. The effect of Botwright’s evidence was that he had no recollection of a telephone conversation with Perry on 18th May. He did not see Perry that day. Had he received information concerning a juror he would have informed counsel for the Crown with a view to the trial judge being notified. He would have done this without reference to McStravick. A telephone call of the sort described by Perry would not have been forgotten. Botwright, as senior officer in the Guinness case, had worked closely with counsel for the Crown for three years prior to 1990. It was absurd to suggest he would have just referred the information to McStravick. As to the alleged conversation at the St Ermin’s Hotel, Botwright said that he had no recollection of this event, or of speaking to Perry. He found it hard to believe that the conversation took place. Had it taken place, he would have remembered it.
- McStravick said he had no conversation with Perry about a juror in the Guinness trial. Had he been told by Perry of the matters described in the contact sheet relating to 18th May 1990, he would have taken the appropriate action of reporting the matter to the court through the prosecution.
- Maguire, who is 52, with previous convictions for robbery with violence, theft, possessing a firearm without a licence and possession of drugs, was interviewed by Merseyside police officers on 30th May 2001. He said in evidence that he accepted that he knew Michael, who used to do his pub accounts in 1990. He denied discussing the Guinness trial with Michael or making the approaches set out in the contact sheets which he described as ‘absolute rubbish’. He said, when the juror’s name was put to him, that it meant nothing. If he saw him he might know his face but the name rang no bells. He did not have a relative on the Guinness jury. He denied Miss Montgomery’s suggestion that he had formed a plan to obtain money from Lyons and Ronson and went to Michael to seek his assistance in furtherance of this scheme. He said he did not know a man who drank in his pub who was on the jury. He was a dismally unimpressive witness. If what he told Michael in 1990 was as reliable as what he said to us, it must have been very unreliable indeed. Whether he contacted Michael because he had learned that day of the blackmail attempt by Lucas in relation to Ronson it is impossible for us to know.
- Michael is currently awaiting sentence, having pleaded guilty to offences of importing Class A and Class B drugs, money laundering and firearms. He confirmed that the contents of a statement made by him to the Metropolitan Police on 28th March 2001 were true. In 1989 when he worked as an un-admitted accountant, he was arrested in connection with a mortgage fraud and thereafter became an informant for the Metropolitan Police, his handlers being Perry, Allam and North. He became an informant in order to obtain a shorter prison sentence for his part in the mortgage fraud. By 1990 he was providing the police with information concerning drug offences involving Maguire whom he knew as a result of his work as an accountant. As to the contact sheet relating to the events of 18th May, he said that, on 17th May, he had gone to see Maguire who had telephoned him. Maguire said he had a relative on the Guinness jury who was a publican and asked if Michael could get in touch with anyone in the defence to arrange a payment for the juror’s services. He provided this information to Perry rather than Allam, because he was in the SFO. As to the second contact sheet dated 21st May, he updated his handlers regularly. He did not recall being advised to exercise caution.
- As to the Report dated 29th May 1990, he said “The only conversation I had with Maguire was whether I had found anybody to approach the juror. I said I hadn’t. So it was left. `Being placed’ is not a term I would use. Maguire never told me the juror had been placed”. Michael said that he saw Perry very soon after his release from prison at the end of August 1990, in a public house in Oakwood. Perry was called away to the telephone. When he returned he looked pleased and said that one of his bosses in the SFO had rung to give him a pat on the back for the information he had supplied. Perry said the juror was a publican. He had been identified and the police had found out what he was up to and had kept a watchful eye on him. For example, if the juror went to the canteen, the police followed him and watched him. Perry told us that, after the trial, he saw Michael in public houses and that he might have told Michael that a juror had been identified but not that he was tainted. Perry said that he would not have told Michael that the police were keeping an eye on a juror in the canteen at the court.
- In the light of this evidence we consider that three matters are of particular importance:
(1) Michael and Maguire give conflicting accounts of their contact with each other and what passed between them;
(2) Allam and Perry give accounts which conflict with those of Botwright and McStravick; and
(3) in any event, the material does not establish any kind of link between the publican juror and Maguire.
Given this last conclusion, it seems to us unnecessary to investigate in detail the discrepancies in the evidence. We merely observe that, on their accounts, neither Maguire nor Michael had, or knew of anyone who had had, any dealings with the juror. As to the police officers, we accept that Perry and Allam received the information set out in the contact sheets and that that information passed through the Drug Squad to North and Todd. We recognise that Perry, in particular, gave detailed evidence concerning his report to Botwright and McStravick as well as about his contact with senior officers on the evening of 18th May. However, we are satisfied that an officer of Botwright's experience, in charge of the police enquiries in the Guinness case, would, if he had received the information in question, have immediately notified counsel for the Crown, who was in the same building and with whom he was working closely, with a view to the judge being advised. This approach would have been in accordance with general proper practice. In any event, it was not in the interests of Botwright to fail to inform prosecuting counsel that a member of the jury was soliciting bribes from defendants he was seeking to bring to justice. We agree with Miss Montgomery’s submission that it is unlikely that Botwright, had he received the information, would have done nothing. But we regard it as equally unlikely that he would, unilaterally, have taken action which might well have come to the attention of the juror, if not of all the jurors, and which on one view extended to letting the juror know that the police knew what he was up to.
- Accordingly, were it necessary for us to make a finding for the purpose of the decision which we have to reach on this point, we would prefer the evidence of Botwright to that of Perry and Allam where that evidence is in conflict. In any event, we reject the suggestion made by counsel, but not expressly put to Botwright, that he himself engaged in “free lance” steps to investigate, observe or warn the juror without informing counsel or the court of information supplied by Perry/Allam.
- As to the juror, he, like the other jurors in the case, was interviewed by members of the Merseyside Police on the instructions of this court. He was asked prepared questions of which we have a record. He confirmed that, in February 1990, he was a publican. He did not know the Gladstone public house in Cricklewood, the First Resort in Neasden or Churchill’s in Edgeware, which were all premises connected with Maguire. He said ‘I did drink in Cricklewood around 1987/90 and some people would have known I was in the Guinness trial at the time. People seemed to know I was on the jury, I don’t know how’. He was allowed to read edited contact sheets and he informed the police that he knew nothing about the intelligence and did not know Maguire or Michael. He was asked specifically ‘Did you attempt to influence the outcome of that trial for reward or other reasons?’ and answered ‘No’. He said that it was common knowledge ‘we were on the jury’… ‘people used to say I could make a lot of money because of it, but I never took any notice. I just took it as a joke, could have been a millionaire’. He made no attempt to influence the trial for reward or other reasons.
- In evidence to us he said that, between 1987 and 1990, he had drunk in the Cricklewood area at the Black Cap and the Cricklewood Hotel but not very often, maybe every 6 months. He had no family there at that time. A few months before he sat on the Guinness jury he had bought the Railway public house in Penge with money he had earned from almost 30 years of working in a variety of jobs, including several in the licensing trade. During the trial he had gone for a drink in the city with friends from British Telecom. They knew he was on the Guinness jury. When a group of friends were together, at a time during the trial which he could not identify, probably in the Catholic Club in Rainham, someone had said something about the defendants being able to pay millions out. It was just a joke. He said something like it wouldn’t be worth it for a million. The subject was dropped. He treated it with a pinch of salt. He didn’t discuss the case with them. He hadn’t a clue how Paul Maguire could have come to know he was a publican. He didn’t know and hadn’t heard of him or Michael. In connection with the trial, he was never offered any money, never indicated he was open to offers and was never approached by a stranger. No one told him to keep his head down or watch his back.
- It is common ground that the information contained in the contact sheets ought to have been brought to the attention of the trial judge, for him to decide what action to take. The failure to inform the trial judge was therefore an irregularity at the trial and it matters not whether that failure was on the part of Michael’s handlers or the senior officers. In our judgment, the essential question for this court is whether that irregularity was material.
- It is agreed that the relevant test is that laid down in In re: Medicaments & related classes of goods (No.2)  1WLR 700, recently unanimously approved by the House of Lords in Porter v Magill  UKHL 67. At 726F-H to 727C Lord Phillips M.R said:
“We would summarise the principles to be derived from this line of cases as follows.
(1) If a judge is shown to have been influenced by actual bias, his decision must be set aside.
(2) Where actual bias has not been established the personal impartiality of the judge is to be presumed.
(3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside.
(4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court.
(5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.
This approach comes close to that in R v Gough  AC 646. The difference is that, when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular tribunal under review was in fact biased.
When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R v Gough, had the truth of the juror’s explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded onlooker would not necessarily find the juror’s explanation credible”.
- Against this background, it is submitted on behalf of the appellants that their convictions should be quashed:
(1) because of the fear of bias on the part of the juror in the sense defined in Re: Medicaments and
(2) because of the failure on the part of the police to make disclosure of the contact sheets so that the appellants were deprived, at trial, of the opportunity of a proper investigation by the judge and the benefit of a warning by the judge to the jury not to get involved in discussions about money.
- As to (1), Miss Montgomery submitted that, on the material before this court, a fair minded and informed observer would conclude that there was a real possibility that the juror was biased and that the appellants’ convictions are accordingly unsafe. We are unable to accept this submission. We are acutely aware of the need to maintain confidence in the administration of justice. But we are satisfied, on the whole of the material before us, that the juror had no contact of any kind with Maguire or Michael and did nothing improper in relation to his functions as a juror. Furthermore, no fair-minded person could possibly conclude that there was a danger that he had been improperly approached. The appellants’ fears of possible bias on the juror’s part are relevant when the court has to decide whether a complaint should be investigated: but, as Lord Hope pointed out in paragraph 104 in Porter v Magill, those fears lose their importance once the stage is reached of looking at the matter objectively. The mere fact that Maguire was said by Michael to know that this juror was a publican affords no basis for suspecting there may have been improper contact between the juror and anyone and, contrary to what appears in the contact sheet, it is plain that Maguire is not related to the juror. Given the length of the trial, it is not surprising that it was known that a publican was a member of the jury. As Lord Hope also pointed out at paragraph 104 in Porter v Magill, protestations of lack of bias are “unlikely to be helpful”. But that is when such protestations are made in the face of material suggesting the possibility of bias. There is simply no basis for any suspicion of bias or wrongdoing by the juror, whatever passed between Maguire and Michael and whatever was the source of Maguire’s knowledge that a juror was a publican.
- As to (2) Miss Montgomery submitted that, had the information in the contact sheets been disclosed in a timely fashion, the basic facts could have been properly investigated by the trial judge who, had he heard the evidence we have heard, would have discharged the juror. We do not accept this. Had the trial judge investigated this matter in 1990, the high water mark of suspicion then, as now, would have been the contents of the contact sheets. There is no reason to believe that there would been other material evidence available to him which would have led him to reach any different conclusion as to the possibility of bias – whatever test was appropriate at that time. He would inevitably have concluded that, at its highest, this was a storm in a teacup and the trial could safely proceed without discharging either the juror or the jury as a whole. Equally, the judge would have concluded that no need for a warning to the jury of the kind suggested by Miss Montgomery arose. No doubt, in a perfect world, jurors sitting on long trials would not go into public houses and would not talk to friends when others might overhear and choose to misinterpret what is said. But that does not mean that, if they do, it is right or permissible to suspect bias. This jury were warned not to discuss the case with others. We accept the juror’s evidence that he had no improper discussion in breach of this warning or otherwise.
- Accordingly, this ground of appeal also fails. The convictions of all the appellants are safe and their appeals are dismissed.
THE VICE PRESIDENT: For the reasons given in the judgment handed down, these appeals are dismissed.
For the benefit of those members of the public without the opportunity or inclination to read the full judgment, it amounts to this: the single ground on which the Criminal Cases Review Commission again referred this case to this Court became unarguable because, after the Reference, the House of Lords ruled that the Human Rights Act is not retrospective in a way benefiting the appellants. Without such retrospectivity, the appellants cannot rely on the United Kingdom's obligations in a treaty which was not incorporated into English law until 10 years after their trial.
Nor can they rely on the findings of the European Court of Human Rights made before incorporation that their trial was unfair because of the use of answers they had been compelled to give to the DTI inspectors. Parliament, by whose enactments this Court is bound, specifically permitted the use of such answers at the time of trial. There was and is, in any event, substantial evidence against each appellant, quite apart from their compelled answers.
As to the juror, on the evidence we have heard, no informed, fair-minded person could conclude that the foreman of the jury was tainted by bias or the possibility of bias. If the trial judge had been informed, as he ought to have been, of the material before us, there is no reason to believe that he would or should have discharged the juror or the jury. Accordingly the convictions of these appellants are safe.
THE VICE PRESIDENT: Yes Mr Temple?
MR TEMPLE: On behalf of the respondent, I have an application for costs. In order to assist your Lordships, I have prepared a short note on the statutory provisions and the breakdown of the costs we seek. Perhaps, through your usher I can ask for those to be handed up and copies of course have been distributed to my friends.
This application is under the provisions of section 18(2)(a) of the 1985 Prosecution of Offences Act. The terms are set out. I have no doubt that they are more than familiar to your Lordships and your Lordships will also recollect that the amount is required to be specified in the order. For the sake of completeness, I have also added the principles to be applied where there are multi appellants and the costs are to be divided. I suspect in this instance there will be no difficulty should the application be granted in principle but the costs will simply be divided between the four.
With regard to the computation of costs themselves, your Lordship will see the breakdown.
THE VICE PRESIDENT: Have you got them?
MR TEMPLE: I think Sir Humphrey will be favoured of the three. Your Lordship will see the breakdown; it is entirely self explanatory. It covers counsel and other costs. Your Lordships will also note that some costs have been estimated. May I say, in no uncertain terms, on any view the figure asked for is a very conservative figure. For the sake of the record, that is £235,088.
THE VICE PRESIDENT: You are asking for an order for that sum in relation to all the appellants?
MR TEMPLE: We are my Lord, yes.
MR ELLISON: Mr Temple was kind enough to give us notification of the application at 9.55 am. As a result it has not been possible for any of the appellants to carry out any check or research in relation to the amount claimed. Nobody is suggesting that it is inaccurate. But in accordance with our duty with our clients, it does seem to us that we really must ask for an opportunity to investigate the overall sum. If there is any authority required for that being a fair way of proceeding this Court has, in the past, indicated that the prosecution must give advanced notice and as much advanced notice as is possible in order that that sort of investigation can be carried out.
THE VICE PRESIDENT: I quite see the point at 9.55--
MR ELLISON: Without seeking to persuade your Lordships that there might not be costs clearly to be paid in principle, may we adjourn the apportionment of a particular figure until investigations have taken place between the parties, and on the basis that it will either be presented to the court as an agreed figure, in due course, or that the parties will indicate to the court that a hearing is required.
THE VICE PRESIDENT: Are you speaking on behalf of all the appellants for this purpose?
MR ELLISON: I think so yes, I see the nodding of heads.
THE VICE PRESIDENT: Yes.
MR ELLISON: We have a further application to make.
THE VICE PRESIDENT: Let us deal with costs first. Mr Temple there cannot be any objection to that can there?
MR TEMPLE: None at all, my Lord, no.
THE VICE PRESIDENT: We shall adjourn the question of costs until such time as either there is agreement as to the figure, or it becomes necessary for an adjudication to be made upon it. But as to the principle, there will not appear to be any objection in principle to an order that the appellants pay costs in a sum to be identified in due course.
MR ELLISON: My Lord, we will be applying to the Court to certify a point of law and to grant leave. But due to the availability of leading counsel, we do not apply today for the point to be certified or to be dealt with. Your Lordships will be aware that the 14 day period is capable of being extended at the appellant's request. May I simply ask for the Court's consideration of extending it by seven days, in order that every opportunity can be taken to liaise amongst the appellants, to arrive at draft certified questions which represent all parties' applications, given the period--
THE VICE PRESIDENT: The issues in this case have not been obscure for some time. The judgment was available to counsel two days ago.
MR ELLISON: It was, it was not available due to the availability of those leading to all leading counsel.
THE VICE PRESIDENT: The advantage of having juniors is that often they are extremely diligent and able to present their leaders with proposals.
MR ELLISON: I accept that of course. Nevertheless the practical situation we are in is that one or other leading counsel is out of the jurisdiction for some time from today. We ask the Court whether an extra 7 days could be granted to the 14, otherwise we of course comply with the 14 days.
THE VICE PRESIDENT: When is the one counsel who is leaving the country today, and who presumably had the opportunity of looking at the judgment before he left returning?
MR ELLISON: He left before today and has not seen the judgment but returns on 27th December. I can only make the application.
THE VICE PRESIDENT: We shall not extend the usual period. (Pause).
The Registrar has raised the point that, at the moment, there is no timetable in relation to the costs aspect and clearly there should be a time within which either a figure is agreed or it is not. What do you have to say about that?
MR ELLISON: Would your Lordship allow a month? It depends very much on the information provided of course, the detail and whatever may be discussed between the parties. But realistically it seems to me a month is a realistic figure for that negotiation, if it is negotiation to take place.
THE VICE PRESIDENT: Again the quantum of cost cannot come as a great surprise to those involved in the case but....
MR ELLISON: The quantum came as a surprise at 9.55 am.
THE VICE PRESIDENT: I understand that.
Twenty-one days. Is there anything else? Thank you.