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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 >> R v Birtles  EWCA Crim 1 (19 May 1969)
Cite as:  1 WLR 1047, 133 JP 573,  2 All ER 1131,  EWCA Crim 1,  WLR 1047, 53 Ch App Rep 469
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B e f o r e :
LORD JUSTICE MEGAW
MR. JUSTICE NIELD.
| R E G I N A
|FRANK ALEXANDER BIRTLES
appeared on behalf of the Appellant.
MR. R. LYONS, Q.C., and MISS WOOTLIFF
appeared on behalf of the Crown.
Crown Copyright ©
THE LORD CHIEF JUSTICE: In March of last year at West Riding Quarter Sessions, this Appellant pleaded guilty to burglary and also to carrying an imitation firearm with intent to commit burglary. He was sentenced to three years and two years' imprisonment consecutive, in other words, five years in all. He now applies for an extension of time and for leave to appeal against sentence. Originally he asked for leave to appeal against conviction also, but Mr. Savill on his behalf before this Court has not continued that application. In the course of argument the extension of time was allowed, and the Court gave leave to appeal against sentence, and treats this as the hearing of the appeal.
The facts of this matter, so far as the offence is concerned, are very short. On the evening of 8th January of 1968 this Appellant, together with another man who had been recruited that very day for the purpose, broke into a sub-post office at Letwell in South Yorkshire. It was a crime of a type only too prevalent these days. They wore stocking masks and the Appellant had this imitation pistol with him at the ready. In fact the police were waiting and closed in on them, and thereupon the Appellant thrust the pistol into the face of one of the police officers and pulled the trigger. Then notwithstanding that the police were present both of them made their escape, but the Appellant was picked up in the early hours of the following morning, and the man with him later gave himself up. In a statement made to the police in these proceedings the Appellant said this, "I am sorry about the gun. It was instinct that made me pull the trigger, but I'm thankful it were not a real gun. I was going to get a Luger but I'm glad I did not because the same thing might have happened. Well, it would have done natural because of the fright of seeing the officers coming downstairs".
This Appellant is a man of 27 with no less than 15 previous convictions, though it is to be observed that the highest sentence he has got heretofore was one of 18 months.
Now if the matter rested there, no one could suggest that there was any ground whatever for interfering with this sentence. Indeed, for the type of crime involved, it was today a lenient sentence.
The matter however does not rest there. There was an informer concerned, a man called Oates and that is how it came about the police were on the premises. Later when the Appellant was in prison, Oates and another man were charged with housebreaking, and it was then that the informer, Oates, gave an interview to a reporter, in which he made a number of allegations concerning the police officers involved in the present case, and in particular one police officer who has been throughout the proceedings referred to as "Ken". It is of course well known that it is impossible to rely on the evidence of such a man, and as a result of his reporting to the Press an inquiry has been held, and in the course of that inquiry the informer, Oates, has withdrawn much of what he said. However, it is not without interest to observe that as a result of his allegations he was in fact acquitted, the Crown not offering any evidence against him on the charge of housebreaking for which he had been arrested.
The Court has had the advantage of seeing various statements made in the inquiry. It is of course impossible for this Court to say with certainty where the truth lies, but one can say at least this, that this Appellant while Still in prison appears to have been minded on his release to carry out some raid on a post office. It also appears that after his release he was approached by the informer, Oates, and approached with the full knowledge and approval of the police officer who was his contact, who has been referred to as "Ken", and as a result of that various things followed. The police officer was introduced to the Appellant as a top criminal from London called Ken. The police officer's car was used, to use the common expression, to case the joint, and by someone, either the police officer or the informer, this man was supplied with this imitation firearm. It may well be of course that that was done because this Appellant, as he said in his statement, had been minded to take a real firearm, but no one knows what the truth of that is. Finally, there is no doubt that, whether with or without his consent, the police officer's car was used a second time, namely as the supposed get away car, in the raid on the post office.
As I have said, no one will perhaps ever know the exact truth, but it certainly seems to this Court, doing the best that they can in the matter, that there is a real possibility here that this Appellant was encouraged by the informer and indeed by the police officer concerned to carry out this raid on the post office. Whether or not he would have done it without that, again no one can say, but there is, as it seems to this Court, a real likelihood that he was encouraged to commit an offence which otherwise he would not have committed.
It is in those circumstances that this Court is asked to review this sentence. On that assumption, that he was so encouraged, the Court is quite satisfied that some reduction in sentence is called for. Doing the best they can, bearing in mind not only this possible encouragement but at the same time the fact that the Appellant had been minded to use a real firearm, this Court feels that the greatest reduction that they can make is to make these two sentences concurrent instead of consecutive, in other words, that this man in the circumstances shall serve three years' imprisonment.
Before leaving this case, the Court would like to say a word about the use which, as the cases coming before the Court reveal, is being made of informers. The Court of course recognises that, disagreeable as it may seem to some people, the police must be able in certain cases to make use of informers, and further - and this is really a corollary -that within certain limits such informers should be protected.
At the same time, unless the use made of informers is kept within strict limits, grave injustice may result. In the first place, it is important that the Court of trial should not be misled. A good example of that occurred in the case of Macro and others, again a raid on a sub-post office, which came before this Court on 10th February. There the charge was one of robbery with aggravation, with a man "unknown". In fact, the man "unknown" was an informer who together with the police had warned the victim of what was going to take place, and had in fact gone through the pretence of tying up the victim while the police were concealed upon the premises. Now there the effect was that the appellant in that case pleaded guilty to an offence which had never been committed. If the facts had been known, there could not have been a robbery at all, and accordingly it was for that reason that the Court substituted the only verdict apt on the facts which was open to it, namely a verdict of larceny. There is of course no harm in not revealing the fact that there is an informer, but it is quite another thing to conceal facts which go to the quality of the offence. Secondly, it is vitally important to ensure so far as possible that the informer does not create an offence, that is to say, incite others to commit an offence which those others would not otherwise have committed. It is one thing for the police to make use of information concerning an offence that is already laid on. In such a case the police are clearly entitled, indeed it is their duty, to mitigate the consequences of the proposed offence, for example, to protect the proposed victim, and to that end it may be perfectly proper for them to encourage the informer to take part in the offence or indeed for a police officer himself to do so. But it is quite another thing, and something of which this Court thoroughly disapproves, to use an informer to encourage another to commit an offence or indeed an offence of a more serious character, which he would not otherwise commit, still more so if the police themselves take part in carrying it out.
In the result, this appeal is allowed and the sentence reduced to one of three years.