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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mason & Ors, R v  EWCA Crim 385 (13th February, 2002)
Cite as:  EWCA Crim 385
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(Crown Court Coventry) HIS HON. JUDGE COLE
London, WC2A 2LL
B e f o r e :
MR JUSTICE MITCHELL
MR JUSTICE KEITH
|- and -|
|Adrian Craig Mason / Clayton Paul Wood / |
Eammon Terry George McClelland / John Paul Tierney
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
appeared on behalf of the Crown
MR ROBIN PEARSE WHEATLEY
appeared on behalf of Clayton Paul Wood and John Paul Tierney
MR NIGEL SHEPHERD
appeared on behalf of Eammon Terry George McClelland
MR PAUL WILLIAMS
appeared on behalf of Adrian Craig Mason
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Woolf CJ: This is the judgment of the Court
“All of (the) offences were initially investigated in isolation and most persons have been arrested on suspicion of some of the other offences and released without charge. The offenders all use the same firm of solicitors and on each occasion, where insufficient evidence has been disclosed, they have all responded “no comment” at interviews and are not amenable or co-operative with the police. It may well be that the evidence on the three mentioned offences will be sufficient to charge, but further evidence would assist in proving those offences beyond reasonable doubt, which would not only create substantial terms of imprisonment, but also cause a reduction in further offences committed. It is certainly in the public interest that we use any means available to us to detect these offences and bring the offenders before a court.”
“Information had been received that Eammon McClelland and John Paul Tierney were responsible for this offence and evidence has been taken in (the) form of witness statements of persons who know McClelland personally and saw him outside the premises just prior to the offence taking place. Also in respect of this matter the offenders executing the robbery did not conceal their identities and an ID parade is anticipated as witnesses feel strongly that not only would they be identified outside the premises but also inside the premises by the staff that were threatened.”
“On the 16th February 1999 [the premises were] the subject of an attempted armed robbery.
Enquiries have been made in respect of this and from video evidence it transpires that John Paul Tierney was in the store some minutes before the robbery or attempted robbery took place. The offence is shown on the security video and it can clearly be seen that the person responsible for the attempted robbery, having concealed his identity, is still wearing the same jeans and trainers as was Tierney… some minutes before. Expert video evidence will be available to prove that these persons by way of clothing are identical. There is other circumstantial evidence that supports the suspicious nature of his initial entrance to those premises. Tierney will be arrested for this offence and interviewed and subsequently charged.”
“The offenders entered the premises wearing balaclavas and coats, threatened the staff and stole monies. Again this was recorded on video equipment at the premises and one of the youths was wearing a coat which was later taken from Clayton Wood when he was arrested by Warwickshire police on suspicion of robbery at Eathorpe Post Office, Warwickshire. Again expert video evidence will prove that this is the same coat as worn by the offender for that offence.”
THE INDICTMENT, CONVICTION AND SENTENCES
“Bearing in mind the Pinochet case, I think I should disclose that I do know the Chief Constable in a formal, civic capacity in the main. I meet him, as probably all the judges in the area do, at various formal occasions. In addition there was an occasion, I think probably about two years ago, it may have been less than that, where I did write to him formally and ask if he would speak at a dinner in respect of which I was involved. He wrote and said that he would and did speak. As I say, I know him and I want to be sure that there is no objection or any argument as to whether I should disqualify myself from hearing this case.”
“As the case had been allocated to me personally by the Presiding Judge of the circuit Mr Justice Astill I said that I would not give a ruling until I had had the opportunity of seeking his further directions. This I have done and I have told him that I can see no reason why I should not continue to try the case. He has asked that I do so but has suggested that if counsel for Mason is dissatisfied by my ruling he should make an urgent application for judicial review so that the trial date of the 3 July 2000 is not prejudiced.
I realise that the decision is one for me alone. As I have already indicated I propose to try the case myself for the following reasons:
1) I have made full disclosure of my connection with the Chief Constable and I am satisfied that there is no risk of bias.
2) The issues which I have to determine seem to depend upon the facts as outlined to the Chief Constable and his subsequent actions. They should not affect his credibility, but even if they do there is no risk of the defendant not having a fair trial.
3) The Chief Constable is not a personal friend of mine nor am I closely connected with him.”
“Of course any matter involving the fairness of a trial will always by me be kept under close scrutiny, and at any stage of course circumstances, evidence, may differ which means that I have to take a different course. But everyone will know that who knows me, that I will always keep that situation under control and stress that I will ensure that every defendant in this case, as in any other, will get a fair trial.”
“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 that the tribunal was biased.”
i) the investigation concerns serious crime;
ii) normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried;
iii) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;
iv) the use of equipment must be operationally feasible.
“In judging how far the seriousness of the crime under investigation justifies the use of particular surveillance techniques, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. Where the targets of the surveillance might reasonably assume a high degree of privacy, for instance in their homes, listening devices should be used only for the investigation of major organised conspiracies and other particularly serious offences, especially crimes of violence.”
The guidance also requires the keeping of a central record.
THE ADMISSIBILITY OF THE TAPE RECORDINGS
SECTIONS 76 and 78 of PACE
“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof;
the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(8) In this section ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).”
“(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence …
“The general approach of the courts to evidence obtained by trickery is to say that deceit which simply provides a defendant with an opportunity to confess to the offence, as opposed to trickery that positively induces a confession, will not result in a confession being excluded.”
“In the course of the evidence before me, the Chief Constable and Sergeant Fairfield both agreed that further forensic tests were still being carried out and further identification parades were to take place. Indeed the Chief Constable was very hopeful that such identification parades would lead to a successful identification. In those circumstances, I then ruled that, on a literal interpretation of (b), the prosecution could not argue that normal methods must have been tried and failed, on the basis, for example, that identification parades had not taken place. Furthermore, as the Chief Constable had been very optimistic that there would be a positive identification, I could not find that normal methods would be unlikely to succeed.”
“We are very firmly of the view that the police in the most serious circumstances of the investigations being conducted, whatever views some may have against eavesdropping by bugging and so on, did not act unlawfully, although the appellant by that time had been charged. There was clearly no oppression of him and no questioning at all. Even if we had formed a contrary view, we would not rule that the learned judge’s exercise of discretion was wrong.”
“[W]here, as here, very serious crimes have been committed – and committed by men who have not themselves shrunk from trickery and a good deal worse – and where there has never been the least suggestion that their covertly taped confessions were oppressively obtained or were other than wholly reliable, it seems to us hardly surprising that the trial judge exercised his undoubted discretion in the manner in which he did. If contrary to our view evidence of this sort is generally to be regarded as undesirable and inadmissible, then in our judgment it is for the Codes to be extended accordingly. As the legislation and Codes presently stand, we do not think it unlawful to have obtained, nor unfair to have admitted, these taped conversations.”
The Human Rights Act
“The court re-iterates that its duty according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Whilst Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law… … It is not the role of the Court to determine, as a matter of principle whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged ‘unlawfulness’ in question and, where violation of another Convention right is concerned, the nature of the violation found”.
THE POSITION AT COMMON LAW
“So far as the defendants in this case are concerned, not one of them has given evidence. That does of course mean that there is no evidence from him to undermine, contradict or explain the prosecution case, and that is a matter which you may take into account. However, in this case I must direct you not to hold his failure to give evidence against him - I am sorry. I have misled you. Could I just start that again? The defendant first of all said nothing when he was asked questions about these matters, or some of them did on what you may think were the vital pieces of evidence, and I direct you that when a defendant in the course of his interview says ‘no comment’ and did so at that particular stage when advised and represented by a solicitor, that you must not hold his silence or refusal to answer questions against him. That means that it cannot by itself provide any additional support for the prosecution's case. But each one of them has not given evidence in this case and that means of course that there is no evidence from him which can undermine, contradict or explain the prosecution's case, and that is a matter which you may take into account.”
The appeal is dismissed.
Whether evidence derived from the covert recording of conversations in police cells, which is contrary to Article 8 of the European Convention on Human Rights, can be admitted in evidence if this would not affect the fairness of the trial, when the recording took place after a defendant had been arrested lawfully but a purpose of the arrest was to provoke conversation so as to evesdrop on the defendant with a view to obtaining evidence of his participation in a serious offence.