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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hardy & Anor, R v [2002] EWCA Crim 3012 (31 October 2002)
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Cite as: [2002] EWCA Crim 3012, [2003] 1 Cr App R 30

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Neutral Citation Number: [2002] EWCA Crim 3012
No: 200105362/Y3-200105497/Y3

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2
Thursday, 31st October 2002

B e f o r e :

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE HUGHES
MR JUSTICE ROYCE

____________________

R E G I N A
-v-
BRIAN GEORGE HARDY & DANNY PAUL HARDY

____________________

Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR R PEARSE-WHEATLEY appeared on behalf of the APPELLANT
MISS A PINTO appeared on behalf of the CROWN

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE HUGHES: These appellants are father and son. At St Albans Crown Court, on 7th September 2001, each of them pleaded guilty to a count of conspiracy to supply cannabis. Each of them now appeals against his conviction and contends that he is entitled to do so, despite his plea of guilty, because of the circumstances in which the plea came to be entered.
  2. The evidence for the Crown consisted chiefly, if not exclusively, of evidence of police officers who had kept the defendants under surveillance. First, from about June 2000 until mid-November 2000, Brian Harvey, the father, was watched by following police officers. He was seen to meet a man called Fromet, who in due course appeared on the indictment alongside these two appellants. Some of the conversations between Brian Harvey and Fromet were overheard and they clearly indicated that an unlawful movement of some substance was being planned. Fromet was seen to draw cash from the bank and to meet Brian Hardy immediately after doing so. To anticipate, Fromet, when later arrested, admitted planning a drugs importation and investing money in the proposed enterprise.
  3. Secondly, from about mid-November 2000, Brian Hardy and Fromet ceased to meet. It emerged subsequently that Fromet had resiled from an original intention to transport the drugs himself. On 13th November Brian Hardy, using a false name, placed a newspaper advertisement, seeking an owner lorry driver "for continental work". That came to the attention of the investigating police officers. They arranged for two undercover officers, separately, to answer the advertisement. Between then and 1st February 2001 each of those two undercover officers, posing as owner/drivers of lorries, had a series of meetings with Brian Hardy. Each of them also spoke to him on the telephone. Each of them was equipped, both for meetings and telephone calls, with a tape recorder. They tape-recorded both the face-to-face meetings and the telephone conversations. The discussions consisted, broadly, of Brian Hardy asking them to smuggle cannabis into the country in substantial quantities and in him advising them how to go about collecting the drugs from Holland and bringing them to England.
  4. On 1st February 2001, one of those undercover officers was sent by Brian Hardy to Holland, to collect just such a consignment. There he was met by Danny Hardy, the son, who oversaw the Dutch end of the business on that day. Danny directed the driver and arranged the loading of the cannabis. The driver drove it back to England. Before he reported to Brian Hardy with his consignment, the load was intercepted by police officers, the drugs removed and dummy packages substituted. The driver then went on to meet Brian Hardy and, at his direction, drove to a work's unit in Tottenham, occupied by a fourth defendant called Gavan. There the police swooped whilst Brian Hardy and Gavan were in the act of unloading what they thought was cannabis. Danny Hardy was arrested later.
  5. Neither Brian Hardy nor Danny Hardy answered any questions in the course of the police interviews. Their defence statements in due course merely said they were not guilty of the conspiracy charged. When they appeared at the Crown Court, and indeed beforehand in the Magistrates' Court, counsel for both of them made it clear that they wished the Crown to disclose the authorities under which the surveillance of the defendants had been carried out. They sought particularly, but not only, authorities relating to the tape recording of telephone calls.
  6. It was contended that, unless they saw those documents, they could not properly investigate whether the surveillance had or had not been lawful. As from 25th September 2000, the governing statute had been the Regulation of Investigatory Powers Act 2000, which came into force on that date and thus governed most of the police activities in this case.
  7. The authorities which had been given were, as they conventionally are, in a form which sets out not only the permission granted but also, in quite a detailed manner, the information which led the authorising senior officer to grant it. That is likely to mean, and did mean in this case, that the documents included material relating to the information available to the investigators, to the progress of the police enquiry and to the means by which it was being carried out, as well as other sensitive matter. That was material in relation to which there was, and is, a clear public interest in nondisclosure within the principles daily applied in the criminal courts. Accordingly, the Crown made application ex parte for permission to withhold such information. That was an entirely proper application of the kind which is expressly provided for by the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997. On investigation of such claim, the judge has a well understood duty to conduct a balancing exercise. He has to weigh the public interest in the protection of police information and methods, on the one hand, against, on the other, the public interest in a defendant having available to him all the material which he properly needs to conduct his defence. If the material may prove the defendant's innocence, or avoid a miscarriage of justice, the balance comes down firmly in favour of disclosure: see, among other cases, R v Keane (1994) 99 Cr App R(S) 1.
  8. In this case, to anticipate, in due course the defendants very properly disclaimed any request to see the information on which the authorities were based. What they wanted to see was the authorities themselves. It would appear that at the early stage, in the magistrates' court at least, the prosecution was unwilling to disclose any part of the authorities. If so, that went too far, but it was later corrected.
  9. At the Crown Court the learned judge saw all the relevant authorities. He went through the documents and he satisfied himself, clearly rightly, because we have seen the documents as well, that there was material which attracted public interest immunity. The judge then referred to section 7(2)(a) of the Criminal Procedure and Investigations Act 1996, which provides for secondary disclosure by the Crown of unused material which is in its possession. It provides, as is well-known, that the prosecution must disclose any material which might reasonably be expected to assist the accused's defence as disclosed by the defence statement given under the Act.
  10. The learned judge, at that stage, took the view that the authorities that he had seen plainly did authorise what the police had done by way of surveillance, including by way of tape recording. He ruled that, since that was the position, the documents could not assist the conduct of the defence. Accordingly that there was no occasion for disclosure under section 7 and consideration of public interest immunity did not arise.
  11. In our view, at that point, the learned judge did fall into error to the extent that he ruled that there should not be disclosure even of those parts of the authorities which did not attract public interest immunity, that is to say the fact of authorisation and the terms of it.
  12. Whatever the position might be as to the disclosure of unused material, it was, by then, apparent that there was going to be an issue in the case whether the surveillance evidence, and particularly the tape recording evidence, ought to be admitted at trial. There was likely to be an application to the Judge, if the trial had proceeded, to exclude it pursuant to section 78 of the Police and Criminal Evidence Act 1984. That application being foreseeable, on such an application the legality of the tape recording and surveillance would plainly be a material issue.
  13. Although, no doubt, the Crown could have called the relevant Assistant Chief Constable to say that he had given the authorisation, the best evidence of the grant of authorisation consisted of the documents. If legality was challenged, they would have to have been produced. In other words once that issue was foreseen, as it clearly was, the documents would rapidly and inevitably become used rather than unused material.
  14. However that may be, in the end it did not matter. The Crown was taken by surprise by the learned judge's ruling that considerations of public interest immunity did not even arise. It was, by then, willing to disclose the authorities in suitably redacted form to remove the PII material which the defence in any event did not ask to see. Accordingly the learned judge was invited to approve a bundle of redacted documents. He did so and the defendants were duly provided with it on 7th September 2001.
  15. At the same time that that was continuing, Mr Pearse-Wheatley, for Brian Hardy, supported by counsel who then appeared for Danny Hardy, contended to the judge that the use of tape recorders could not in any event have been authorised lawfully. In modified form he makes the same submission to us. His contention was and is this. First, he says that the authority did not cover tape recording. Secondly, he says that it was not in conformity with the Regulation of Investigatory Powers Act 2000. Thirdly, if it was, he contends that the Act is not in conformity with the European Convention on Human Rights.
  16. From that he proceeds to the submission that the bringing of the prosecution was, from the outset, entirely illegal, or at least was an abuse of the process of the court. He made to the judge below an application to stay the proceedings on grounds of abuse. The judge declined to stay proceedings. In the course of his judgment, he expressed his opinion as to the construction of the 2000 Act, and he expressed his opinion that the surveillance, including the tape recording, which the police officers had undertaken, had been properly authorised and was lawful.
  17. To that we will return. We should however say plainly that whether or not the judge was right in his interpretation of the 2000 Act, the application to stay proceedings was altogether misdirected. The circumstances in which this Court will stay a prosecution on the grounds of abuse of process, and thus interfere with the conduct of a prosecution which is in the hands of the prosecuting authorities, are very exceptional. They include cases in which the court comes to the conclusion that it is impossible for a fair trial to take place. They also include cases in the category exemplified by R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42 and R v Mullen [1999] 2 Cr App R 143, where it is contrary to the public interest, by reason of some abuse by the Crown of its executive powers, for the defendant to face trial at all.
  18. Neither of those situations even arguably existed in the present case. If the surveillance undertaken by the police or some part of it was illegal, then the proper remedy was to apply for the judge to exclude it under section 78 of the Police and Criminal Evidence Act. He would, at that stage, decide whether or not to do so, according to the effect that the evidence would have on the fairness of the trial. He would not necessarily exclude it. Evidence obtained illegally is not ipso facto inadmissible (see R v Sang [1980] AC 402) but it would be excluded if its admission would make the trial unfair. That is the test required by section 78. Legality or illegality would be a very material consideration to that question. Nor does the passing of the Human Rights 1998 alter that position, on the facts of the case such as this. Since that Act, the court's duty to ensure that a trial is fair is underscored by the direct application of Article 6 of the European Convention. But the Court's powers to regulate the admission of evidence, pursuant inter alia to section 78 and its inherent jurisdiction, represent means of ensuring that Article 6 is not infringed.
  19. The admissibility of evidence is generally regarded by the European Court of Human Rights as a matter for the domestic court (see Schenk v Switzerland [1998] 13 ECHR 14 at paragraph 46). Moreover the jurisprudence of the European Court of Human Rights expressly recognises, as does English law, that unlawfully obtained evidence may be inadmissible but is not ipso facto so. Nor is a trial in which it is relied upon necessarily unfair. The evidence in Schenk consisted of the recording of the defendant's telephone call which, it was conceded, was unlawfully obtained according to local law. But given the Court's control of its admissibility, that did not render the trial unfair. The court expressed itself similarly in Khan v United Kingdom [2001] 31 ECHR 45. Both those cases also demonstrate that although surveillance may in some circumstances be a breach of Article 8 of the Convention, if not conducted according to law, that breach, even if established, does not necessarily import a further breach of Article 6, provided that the Court has power to regulate admission of evidence in such a way as to ensure that the trial is fair.
  20. For those reasons it follows that in this case the arguable inadmissibility of all or part of the surveillance, if it could not be shown to have been lawfully carried out, by no means carried with it the conclusion that the proceedings were an abuse of process. On the contrary, the power of the court to refuse to admit any evidence which would render the trial unfair, means that the proceedings were not arguably an abuse of process. Nor were they in any sense illegal.
  21. If the surveillance evidence or part of it had been excluded that might or might not have weakened the Crown case to a point at which it failed. It is not necessary for us to express any opinion about that, save to say that it is far from clear that it would have done. Quite apart from the recorded conversations, there was the evidence of the undercover officer/driver that he had been sent by Brian Hardy to Holland to collect drugs and met there by Danny Hardy who had supervised the provision of them. Moreover, Brian Hardy had been caught red-handed unloading, wearing gloves, what, but for the substitution of the dummy parcels, would have been 21 kilograms of cannabis. He had been seen on arrest to destroy the memory card of his mobile telephone which would have contained the numbers of the undercover officers and others and to have torn up documents which also contained those numbers. With or without the tape recording the officers would arguably have been able to give oral evidence of their dealings with both defendants.
  22. After the judge had refused to stay the prosecution and had expressed the view that the surveillance was lawfully authorised and, after the Crown had supplied the redacted authorities under which the surveillance had been carried out, both of these defendants pleaded guilty. As we understand it, the stage of swearing a jury had not yet been reached. By those pleas of guilty each of the defendants acknowledged his guilt and accepted that he had conspired to supply cannabis.
  23. Mr Pearse-Wheatley's contention is that the appellants are nevertheless entitled to challenge this conviction by appeal to this Court. We do not agree. This Court held in R v Togher, Doran & Parsons [2001] 3 All ER 463 that an appeal against conviction may be entertained, despite a plea of guilty, where a trial was or would have been an unfair abuse of process. In such a case, if a ruling that there was no abuse is shown to have been erroneous, it will often and perhaps normally follow that the conviction, despite the plea of guilty, is unsafe. An example would be a defendant in the position of Mullen [2000] QB 520, had he pleaded guilty after refusal to stay the prosecution. So also a conviction might be unsafe, despite a plea of guilty, where the plea was entered in ignorance, through culpable lack of disclosure by the Crown, of facts which would have enabled an application for a stay on the grounds of abusive unfairness to succeed (see R v Early & Ors [2002] EWCA Crim 1904).
  24. But neither of those situations exists in this case. First, as we have explained, there was no question of the prosecution being an unfair abuse of the process of the court. Second, the judge had never ever been asked to exercise the judgment required of him by section 78 of the Police and Criminal Evidence Act. Third, to the extent that his ruling upon the stay application indicated what his decision upon the question of authorisation was likely to be, that was, at most, advance warning of a likely stage on the way to a ruling as to the admissibility. A ruling that evidence is admissible against a defendant does not, in the absence of the abuse of process, prevent that defendant from advancing his defence; it merely makes the evidence which he has to confront the more powerful.
  25. The judge's indication that he regarded the surveillance as properly authorised and therefore likely to be admissible did not prevent the defendants from advancing their defence that they were not guilty, if they wished to do so. It certainly created no unfairness in the trial. On the contrary, as we have said, a ruling under section 78 as to admissibility if and when the judge was asked to make it, would be governed by considerations of fairness.
  26. In the absence of unfairness, such as abuse of process, this Court in Togher expressly approved the following passage from the judgment of Auld LJ in R v Chalkley & Jeffries [1998] 2 Cr App R 79:
  27. "Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.
    We qualify the above propositions with the word 'normally', because there remains the basic rule that the Court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the guilt of the offence charged."

    This case, we are satisfied, is exactly in line with the situations dealt with by this Court in Chalkley & Jeffries, and also in R v Llewellyn & Gray [2001] EWCA Crim 1555. In the first of those cases the judge admitted evidence of recorded conversations, which the defendants would have had the greatest difficulty in controverting. In the second case, the judge indicated, although he had not yet come to the point of ruling, that he was not likely to admit certain evidence which one of the defendants had said that he was likely to wish to adduce. In both cases the defendants thereupon pleaded guilty. They no doubt took the view that their chances of acquittal were slim. But only they knew whether they were guilty or not, and they elected to admit in court that they were. They could, if they had wished, have maintained their denials. Their pleas of guilty were admissions. Their trials were fair. So here. There is nothing unsafe about a conviction for an offence which, in circumstances like the present, the defendant admits he committed.

  28. We come, nevertheless, to express our views about the Regulation of Investigatory Powers Act 2000. We do so because, quite apart from the fact that, having pleaded guilty in these circumstances, it is not open to the defendants to challenge their conviction, we are quite satisfied that the surveillance which was conducted by the police, including the tape recording of Brian Hardy, both at meetings and on telephone, was properly authorised and entirely lawful.
  29. Mr Pearse-Wheatley's submissions are these. First, he says that what was done amounted to interception, within the meaning of the Act. Next, he submits that it necessarily follows that the contents of the intercepted calls were made inadmissible by the 2000 Act. Thirdly, he contends that, whether interception or not, the tape recording which was conducted in this case required authorisation beyond what was granted here. In particular, he submits that it required authorisation of somebody outside the police force and, specifically, judicial authority. He submits that if the 2000 Act does not require that, then, to that extent, the Act is inconsistent with the European Convention on Human Rights and should be read down so that it does. We are unable to accept any of those submissions.
  30. Section 1 of the Regulation of Investigatory Powers Act 2000 provides as follows:
  31. "1(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission, by means of-
    (a) a public postal service; or
    (b) a public telecommunications system."

    Subsections 1(2) and (6) between them make similar provision for private telephone systems, subject to exceptions which do not apply here.

    It will be observed that it is only interception which is conducted without lawful authority which is made an offence.

  32. 'Interception' is defined in section 2(2):
  33. "For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he-
    (a) so modifies or interferes with the system, or its operation,
    (b) so monitors transmissions made by means of the system, or
    (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

    as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication."

  34. For present purposes the important words are "while being transmitted". What happened here was that one party to the telephone calls (the undercover officer) taped the calls. The contents of the calls were not made available, whilst being transmitted, to any third party. This is not a case of telephone tapping. It is exactly the same as the undercover officer secreting a tape recorder in his pocket or briefcase whilst meeting the suspect face-to-face, something which he also did in this case. It is surveillance. It requires authorisation. The Act provides for it. But it is not interception.
  35. We regard that conclusion as the clearest possible result of the words of the statute. We are fortified in it by the decision of this Court in R v Hammond, McIntosh & Gray [2002] EWCA Crim 1243. The court was there considering the predecessor of the 2000 Act, namely the Interception of Telecommunications Act 1985. That earlier Act spoke of, but did not define, interception. This Court held, however, that interception for its purposes did not include the recording of a telephone conversation by one party to the call. In arriving at that conclusion, this Court drew upon the words of section 2(2) of the 2000 Act, which we have quoted, as plain support for it. We are quite satisfied that section 2(2) puts the conclusion in Hammond beyond doubt.
  36. Mr Pearse-Wheatley submits that such a construction is not consistent with Article 8 of the European Convention. We do not agree. Whether interception or not, such recording by a police officer is surveillance which requires authorisation under the Act, and the Act contains a complex framework for providing such regulation. It follows that, provided such surveillance is conducted under authority given by the Act, it is conducted according to law, for the purposes of Article 8. Moreover, to the extent that such recording comes into question in a criminal trial, the court has ample powers to control the use which is made of it in such a way as to ensure that the trial remains fair.
  37. There is, moreover, good reason why this should be the meaning of "interception". A person who speaks to another on the telephone knows that that other may in due course be able to relate the conversation to somebody else, including to a court. The fact that party B to such a conversation can support his account of what was said by a tape recording does not convert the discussion into one which party A was entitled to prevent party B from speaking about.
  38. The position of a telephone conversation which is intercepted and overheard by a third party, unknown to one or both of the parties to it, is different. Such a conversation may legitimately be regarded by the two speakers as something which could only be revealed by one of them. That is what is separately provided for as 'interception' for the purposes of the 2000 Act. Mr Pearse-Wheatley conceded that if the submission made on behalf of the defendants were correct, it would be an offence for any householder to put a tape recorder on his own private telephone. We are quite satisfied that Parliament intended to make no such provision and has not done so.
  39. Furthermore, in so far as one party to a telephone conversation is an investigating police officer, who could give oral evidence of what was said in any event, there is very good reason for his being able to show (by means of a recording) that what he says about the conversation is accurate. The tape recording provides independent corroboration for what he says. It is a safeguard for the suspect as well as for the Crown against false or mistaken evidence. There is every reason for investigating officers to be encouraged to obtain such independent corroboration for what would otherwise be likely to be challenged oral evidence. In R v Smurthwaite & Gill (1994) 98 Cr App R 437, when considering the Court's approach to the role of undercover officers acting as if participating in a criminal enterprise, this Court underlined the fact that a most material consideration is whether there exists an unassailable record of what transpired.
  40. It follows that, for all those reasons, we are satisfied that what took place in this case is not within the meaning of the word 'interception'. Moreover, even if it were 'interception', it would not necessarily follow that the contents would not be admissible in a criminal trial.
  41. It is necessary to look at section 17 of the 2000 Act. Section 17(1) provides:
  42. "Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)-
    (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or
    (b) tends (apart from any such disclosure) to suggest anything falling within subsection (2) has or may have occurred or be going to occur."

    Subsection (2) then provides as follows:

    "The following fall within this subsection-
    (a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of Interception of Communications Act 1985;
    (b) a breach by the Secretary of State of his duty under section 1(4) of this Act;
    (c) the issue of an interception warrant or of a warrant under the Interception of Communications Act 1985;
    (d) the making of an application by any person for an interception warrant, or for a warrant under that Act;
    (e) the imposition of any requirement of any person to provide assistance with giving effect to an interception warrant."

    We pause to observe that the interception warrant there referred to is a warrant issued by the Home Secretary under section 5 of the Act. The persons who fall within section 17(3) there mentioned include the police and the National Crime Squad which conducted this present enquiry. So, if there has been an offence against section 1 by a person such as a policeman, it would follow that no evidence could be given of the contents of any call which was properly an intercepted call.

  43. Thus what section 17 does is to make wholly inadmissible the results of interception properly so-called, where it is conducted under warrant of the Home Secretary, or where an offence has been committed under section 1 of the Act by a person such as a policeman. Apart from that, however, it is a fallacy to submit, as was submitted here, that section 17 makes inadmissible the contents of all interception. It does so only when section 17(1) applies, in other words where the origin of the contents is in something falling within subsection (2) which we have quoted.
  44. Not all interception is an offence, irrespective of the absence of a Home Secretary's warrant. That follows from s 1(1) and is confirmed by the opening words of section 17, which we have quoted, namely, "subject to section 18". If one then goes to section 18(4), that subsection provides as follows:
  45. "Section 17(1)(a) shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of section 1(5)(c), 3 or 4."

    That makes it necessary to consider, in this case, section 3 of the Act. Section 3 provides for situations in which an interception may be authorised. Firstly under section 3(1) it is authorised if both parties consent. Here that did not apply because Brian Hardy did not consent. Secondly, under section 3(2) an interception is authorised if one of the parties to the telephone call consented and the surveillance by means of that interception has been authorised under part II of the Act. Part II of the Act provides for the giving of authority, for different grades of surveillance, by senior police officers and other comparable office holders. It is quite distinct from the Home Secretary's power to issue an interception warrant which is given by section 5 contained within part 1 of the Act. It follows that section 3(2) demonstrates that, in the circumstances contemplated by that section, interception may, if consented to by one party to the call, be authorised by senior police officers. If so authorised, the interception is lawful, no offence is committed and section 17 does not render the contents inadmissible.

  46. That takes us to part II of the Act, which it is necessary in any event to consider because, even though, as we have ruled, the tape recording of the calls in this case did not amount to interception, it did amount to surveillance which required authority under the Act.
  47. Section 26(1) of the Act classifies surveillance as
  48. (a) directed surveillance

    (b) intrusive surveillance and

    (c) the conduct and use of covert human intelligence sources.

    This was not intrusive surveillance. Section 26(3) provides that intrusive surveillance is surveillance covertly carried out upon residential premises or in a private vehicle, involving either a person or a surveillance device being in those premises or in that vehicle. So, whether or not it was interception, this was not intrusive surveillance.

  49. What it was, we are satisfied, was the use of a covert human intelligence source. Such are provided for by section 26(8):
  50. "For the purposes of this Act a person is a covert human intelligence source if:-

    (a) he establishes or maintains a personal or other relationship with a person or the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c).
    (b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
    (c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship."

    Plainly that is what the undercover officers did.

  51. It may also be that what the undercover officers did amounted to directed surveillance. Directed surveillance is defined by section 26(2):
  52. "Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken-
    (a) for the purposes of a specific investigation or a specific operation
    (b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
    (c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance."

    Whether it amounted to directed surveillance or not is likely, as it seems to us, to depend on whether it was likely to result in the obtaining of private information. We have not heard argument about the proper construction of that expression and offer no opinion about it. It is unnecessary to do so because, whether this was directed surveillance on the one hand, or the conduct and use of covert human intelligence sources on the other, does not, in the end, make any difference. Authority for either of those methods of surveillance may be given under the Act and Regulations made in pursuance of it by an officer of the rank of superintendent or above. Without quoting the relevant statutory provisions, that is the result of sections 28 and 29 of the Act and of the Regulation of Investigatory Powers (Prescriptions of Offices, Ranks and Positions) Order 2000. In each case one of the grounds upon which authority may be given is "for the purposes of preventing or detecting crime" (see section 28(3)(b), and 29(3)(b)), which was clearly the purpose of the present authorities.

  53. In the present case, there were a number of authorities given for directed surveillance which covered operations other than the recording of conversations. In addition, first orally on 16th November, and then in writing on 17th November, authority was given by a duly qualified officer for the deployment of the undercover officers and specifically as follows:
  54. "authority is also given for the undercover officer to utilise tape recording equipment to effect independent corroboration".

    That authority was given on 17th November for a period of 3 months and thus lasted up until the end of this operation which came with the arrest of the Appellants early in February.

  55. Thus, all the activities by way of recording carried out by the undercover officers were justified either by the oral authority given in the same terms on 16th November, or by that written authority given on the 17th. The authority was given by an Assistant Chief Constable in the National Crime Squad. Accordingly it was explicit authority to do exactly what was done on grounds on which it could be given and whether it was directed surveillance or covert human intelligence sources, it was provided by an officer of more than the necessary qualifying rank.
  56. Lastly, we should observe, without citing the statutory provisions, that even if this had been an interception it would have been directed surveillance; for that proposition see section 26(4)(b) and section 48(4) of the Act read together.
  57. For all those reasons, the judge's conclusion, provisional as it may have been, that the recording of Mr Hardy's telephone conversations and indeed of his face-to-face conversations, was authorised, was correct. The evidence of these recordings would, subject to any other factor subsequently emerging, have been admissible. Nor, we are satisfied, is the complex framework contained in the 2000 Act and providing for authority for surveillance to be given by (amongst others) senior Police Officers in any sense contrary to the provision of the European Convention. That Convention does not require judicial authority. It requires a system in which surveillance is regulated by law in a manner which the citizen can understand and which gives adequate protection against arbitrary interference with his rights: see Malone v UK (1984) 7 EHRR 14.
  58. We deal, briefly but separately, with a distinct argument which has been mounted in the case of Danny Hardy, as to recordings made and observations carried out in Holland. There, of course, the Regulation of Investigatory Powers Act did not apply. Dutch law plainly did.
  59. The investigating officers had sent a number of formal letters of request for co-operation to the Dutch authorities seeking their consent to each of the steps which it was contemplated might be taken in observing events in Holland. Those included requests that the undercover officers be allowed to travel to Holland and to continue to operate as such there, that the drugs transaction be permitted to take place, that there be surveillance and monitoring by the local police of the movements of suspects in Holland and for the release of any videos, photographs or statements as might be needed for the purposes of any subsequent English prosecution. Those letters also specifically requested authority for the use by the undercover officers of tape recorders.
  60. The letters were disclosed to the defence at the Crown Court in a slightly redacted form, but revealing all of those requests. So also disclosed to them was the letter of response from the prosecutor for the Kingdom of the Netherlands, giving his confirmation
  61. "that the assistance required has been provided and that all legislation governing actions by the national police service and all necessary authorities to mount surveillance operations and to employ undercover officers have been complied with."

  62. It was submitted to the judge, and the submission is repeated here, that the Crown ought to be required to disclose to the defendants not only that letter from the Dutch supervising prosecutor but also any internal Dutch authorisations that there may have been. The defendants put forward a brief statement by a Dutch lawyer, giving a very general outline of Dutch law on the subject. To the extent that it referred to telephone tapping it may have proceeded, innocently enough, upon a false basis, but that depends on the use of that expression made in Holland. The gist of the advice was, in any event, that undercover surveillance was permitted, providing that it was conducted under the supervision and authority of a Dutch prosecutor. The letter to which we have referred and which was disclosed indicated that this surveillance was so authorised and supervised.
  63. The ruling that the judge was asked to make was a ruling on disclosure. There is absolutely no evidence that there was any material in the hands of the Crown beyond that which they had disclosed to the defence. There is no reason to suppose that they had any internal Dutch authorisations that there may have been. Moreover, the stage of an application to exclude the evidence, pursuant to section 78, had nowhere near been reached. If it had subsequently been reached, it would have been open to the defence to obtain evidence of Dutch law. If that had suggested that prima facie what had been done might have been unlawful, then it may be that the Crown would have found itself in the position of having to obtain from Holland the necessary authorisations to prove that it was not. That position was never reached. The documents to which we have referred, the letters of request and the authorities of the Dutch prosecutor, were provided to the defence. The defence, we are told, had the opportunity to consult their Dutch lawyer and the next thing that happened was that the defendants pleaded guilty. There is, accordingly, nothing in the submission that anything relating to that aspect of the case causes the conviction of these defendants to be unsafe.
  64. For all those reasons, it follows that the appeals of both defendants against conviction must be dismissed.
  65. We turn next to the appeal of Danny Hardy against the sentence which was imposed upon him. That sentence was one of 30 months' imprisonment. The submission made on his behalf is that it was wrong in principle and manifestly excessive, when compared with the sentence passed upon Fromet, which was 2 years and with the sentence of 3 years and 9 months which was imposed upon his father, Brian. The judge dealt with Brian Hardy on the basis that it had been shown, as it plainly had, that his conspiracy was not to be limited to the single transaction which actually took place. The judge dealt with Danny Hardy on the basis that he had been involved in a single transaction only, and was not to be treated as a party to an agreement to effect further importations subsequently. Danny Hardy had, however, journeyed to Holland both on the occasion of the importation and on an earlier occasion, plainly to undertake arrangements for supply. When in Holland he had managed the supply end and it was he who had controlled the actions of the driver whilst there.
  66. So far as Fromet was concerned, the evidence was that he had started rather more enthusiastically in the conspiracy than he had finished. He had originally been intending to be a driver but had declined to do so. He had, however, put up some 22,000 as an investment in the enterprise and, although withdrawing from active participation, so far as any of the observations could tell, he nevertheless expected a return upon his investment.
  67. There was this vital difference between Danny Hardy and Fromet: Fromet had frankly and freely admitted his guilt at the earliest possible stage immediately on arrest and interview by the police. He had then followed that by pleading guilty at the first available opportunity. By contrast, Danny Hardy maintained a denial of his guilt, indicated he would contest the trial and delayed his admission for as long as he possibly could until he judged he could no longer get away with a plea of not guilty. Accordingly, whilst he was entitled, certainly, to discount from the sentence which would have followed at the end of a trial, the judge was fully entitled to say that the discount which his sentence ought to attract should be significantly less than the reduction applied to a man in Fromet's position. The judge was of course conscious of this important difference. He referred, in the course of argument, to the likelihood that there would be a substantial reduction in the case of Fromet; indeed he referred to a figure as high as 40%. There could, of course, be no question whatsoever of Danny Hardy receiving a reduction of anything approaching that. The judge did not set out his arithmetic and he was under absolutely no obligation to do so. If he was going to recognise Fromet's unusually early admissions by a reduction in the region of 40%, that would suggest a starting point, assuming trial, at around three-and-a-half years. The sentence on Brian Hardy of 3 years and 9 months, upon a plea as late as that of Danny, rather looks as if it may indicate a starting point in the region of 4-and-a-half to 5 years. Thirty months for Danny Hardy may well suggest a starting point in the region of 3 years.
  68. We should say that we have read a letter provided today by the father in which he expresses his regret at having involved his son in this offence. Involved, however, he plainly was. The assessment of the right balance of sentence between the various participants in the conspiracy is primarily a matter for the sentencing judge. This Court will interfere only if he has erred in principle and imposed a sentence which is manifestly excessive.
  69. We do not see any error in principle. Nor, looking at Danny Hardy's sentence, whether alongside the others or on its own, do we see any reason to suppose that, for his part in the importation of 21 kilograms of cannabis, a sentence of 30 months was in any sense manifestly excessive. Accordingly the appeal against sentence also fails.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/3012.html