England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
(HHJ PRENDERGAST)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2000

LORD JUSTICE HENRY:

1. This case has been referred to the Court of Appeal by the Criminal Cases Review Commission ("the Commission) under S9 Criminal Appeal Act 1995, showing that the Commission consider that there is a "real possibility" that the convictions will not be upheld by this Court. Section 9(2) provides that the reference shall be treated as an appeal against conviction under Section 1 of the Criminal Appeal Act, 1968. The Crown Prosecution Service also referred the case to the Commission. This was not a statutory reference, but reflects the Crown's practice to do so whenever they consider that a conviction should be referred to the Commission for their consideration.
2. Here, by reason of fresh evidence since the trial of the appellants, the Crown no longer seeks to uphold the convictions, nor does it ask for a retrial n any case. However, whether to quash the conviction and whether to order a retrial are matters for this Court, as the Crown, represented by Mr Kelsey-Fry QC, recognise, and they are here to assist the Court with such arguments as are properly available in support of the safety of the conviction.
3. In July 1995 the 3 appellants were tried in the Crown Court at Inner London by His Honour Judge Prendergast and a Jury on an indictment containing 2 counts, and each convicted of robbery (Count 1) and possession of a prohibited weapon - a stun-gun (Count 2), and each sentenced to a total of ten years' imprisonment.
4. The basic facts are these. Security camera video footage reveals that three men carried out a lightning raid on a jewellers and pawn-brokers in London. They were in and out in 90 seconds. One of the men carried and used a stun-gun on the shop owner, Mr Baker. The men escaped with property worth approximately £6,000.
5. The case fell to be investigated by what is colloquially known as the Flying Squad ("the Squad"). DC McGuinness was the officer in the case, and also responsible for the exhibits. Some two to three weeks after the robbery, the security cameras' video footage of it was twice shown on national television, first on the Crimestoppers programme. Several members of the Squad watched the programme. Five of them said they recognised one or more of the appellants. The shop owner, Mr Baker, and an assistant, Mr Sullivan, attended identification parades held 15½ and 20½ months after the robbery. Mr Baker picked out the appellants Taylor and Brown. Mr Sullivan also picked out those two men, but his identification evidence was abandoned by the Crown after he had to concede that from where he was he could not have seen the robber who the Crown alleged was Taylor.
6. The robber the Crown says was Brown carried a stun-gun. Some nine months after the robbery, the third appellant, Martin, was arrested. His flat was searched, and under a cushion on the sofa the stun-gun was found. He denied any knowledge of it, and complained, formally and informally, that it had been planted on him. It would be curious if so incriminating an item were to be found so ill-concealed by a surprise raid nine months after the alleged use of that weapon (though there was no forensic evidence linking the gun found with that used in the raid). A good palm print of Martin's was also lifted from the staff side of the counter in the shop, but this was not matched to him for some seven months. He denied that he had ever been there, and consequently said that his palm print must have been covertly taken from another source (eg his parked car) and switched with the print taken from the counter, hence the delay in producing the evidence. He was the only appellant to give evidence.
7. All appellants were convicted at trial. All appealed. On appeal, they complained of prejudice to them caused by the delay in arresting them as creating an abuse of process, and against the weakness of the identification evidence, on the basis that the judge should have stopped the case. It is apparent from the judgment that neither submission came close to success, unsurprisingly in the circumstances then known.
8. But everything changed when a Police Complaints enquiry investigating the Squad revealed massive corruption within it. In the early part of 1998 there was an investigation into allegations of dishonesty, corruption and perverting the course of justice by Squad officers. Since those enquiries started, two officers, namely DC McGuinness (the officer in the case) and Garner have pleaded guilty to offences of aggravated burglary, conspiracy to steal Class B drugs, conspiracy to pervert the course of justice, conspiracy to steal, doing acts intended to pervert the course of justice, and handling stolen goods. McGuinness has been sentenced to nine years' imprisonment, and Garner is awaiting sentence. Both have been granted resident informant status, and are proposed Crown witnesses in prosecutions of their former colleagues which are soon to take place.
9. Approximately 25 other officers have either been charged with criminal offences or are suspended from duty pending investigation, or would have been suspended had they not already retired. The allegations against them include corruption, dishonesty and perverting the course of justice. Three officers who contributed significantly to the evidence against these three appellants are members of this group. To preserve the integrity of their trials, we identify those officers by number. The Crown do not think it proper to rely on the evidence of any of that group in respect of a trial in which their evidence had been in issue.
10. Officer 1 was suspended from duty and investigated in connection with allegations of handling stolen goods and perverting the course of justice. He has since been charged with these offences and is awaiting trial. At the trial of this case he claimed to have watched the Crimestoppers programme and to have recognised the three appellants on it. Officer 2 is being investigated for allegations of perverting the course of justice, assault, and illegal possession of sensitive information. He attended the search of Mr Martin's address during which the stun-gun was found, and it was alleged that he had commented to Mr Martin that he

"... had stitched up guys like [you] all day long".

Officer 3 has been charged with conspiracy to steal, conspiracy to handle stolen goods, and doing acts tending to pervert the course of justice, and is awaiting trial. He also attended the search of Martin's address where the stun gun was found.

11. Of the two officers now convicted, McGuinness was present during the arrest of Martin, and the "search" during which the stun-gun was found. He was the Exhibits Officer, and was the officer in the case. It was Garner who claimed to have found the stun-gun . In the light of what is now known, the Crown Prosecution Service accept that the evidence given at trial of the search for and discovery of the stun-gun cannot be relied on.
12. In judging the safety of convictions in cases of this kind the Court has consistently applied the test set out by Beldam LJ in R -v- Maxine Edwards [1996] 2 Cr App R 345 at 350G:

[Are we] confident that had the jury which convicted this appellant known the facts and circumstances, in the other cases in which [these officers] had been involved, they would [nonetheless] have been bound to convict ..."

13. That is the test, but in practice the precise surgical division between impugned and unimpugned evidence is seldom possible once the jury have experienced what advocates have called the "stench of corruption". We remind ourselves of what Beldam LJ said in the paragraph preceding that quoted above:

"Once the suspicion of perjury starts to infect the evidence and permeate the cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed."

14. Mr Kelsey-Fry QC for the Crown referred us to the leading case of R -v- Edwards [1991] 93 Cr App R 48, a case concerning corruption in the West Midlands Serious Crime Squad. There the Court (presided over by Lord Lane, Chief Justice) considered (at page 56) the position of officers in the following categories. First, those against whom complaints had been made, but not yet adjudicated upon. Second, general discreditable conduct by other officers in the squad. Third, where the officer has given evidence, but the defendant was acquitted or his conviction quashed on appeal. In such cases the Court said:

"This is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the Court should exercise its discretion. The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' credibility, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he presents himself to be, but bearing in mind on the other hand the fact that a multiplicity of complaints may indicate no more than what was described before us as the 'band-wagon' effect. We do not consider that it would have been proper to suggest to the officer in the present case that he had committed perjury or any other criminal offence by putting to him that he had been charged but not yet tried. Nor do we think that complaints to the Police Complaints Authority which have not been adjudicated upon would properly be the subject of cross-examination. It would not be proper to direct questions to an officer about allegedly discreditable conduct of other officers, whether or not they happened to be serving in the same squad."

15. The Crown took the view that strict application of the suggested course of action in Edwards would work injustice, in that if appeals based on discovery of apparent corruption had to be postponed until lengthy investigations and proceedings were completed, then the delay would not be fair to the victims of the perversion of the course of justice.
16. For those reasons, the Crown submits to us that the evidence of McGuinness and Garner and all the other 25 against whom the allegations are unresolved, including the three numbered officers in this case, should be treated as tainted and unreliable where it was in issue in any trial. To examine this proposition it is necessary to consider the second Court of Appeal hearing in R-v- Ellis and Zomparelli, also a case involving this investigation of the Squad.
17. In the original trial, Zomparelli was convicted of robbery, and sentenced to 12 years' imprisonment. He appealed against conviction. The case was a Flying Squad case. The allegation was that the named officers in the Squad had framed him. But there was also a body of independent and untainted evidence implicating Zomparelli. The Court, presided over by the Vice-President, allowed the appeal, quashed the conviction, but ordered a retrial on the untainted evidence.
18. On retrial, Zomparelli was again convicted. Again, he appealed. The appeal came before the Lord Chief Justice, Lord Bingham. By then the investigation into the Flying Squad had gone further, and involved other officers. The way that the trial judge sought to deal with the situation was to exclude all evidence from those in the first group who were named and seriously implicated. In relation to the second and larger group, who were not the subject of the unresolved specific allegations but only of an unresolved "general taint" allegation that they must have known what was going on, they would be permitted to give their evidence with no cross-examination permitted of the corruption and perversion of the course of justice disclosed by the prosecution. The appellant resisted this suggestion:

"It prevented the appellant from fully deploying what had always been his case: it left the jury with a false impression that there was no reason to question the professional integrity of the officers involved in the case."

Therefore, it was submitted that there could be no fair trial, even on the untainted evidence. The Crown disagreed.

"[Counsel for the Crown] points out that the three officers who were seriously implicated in misconduct have been simply excised from the case. He reminds us that no criminal conduct and no disciplinary charge has been established against any of the six officers who gave evidence. None of them, he argues, was open to cross-examination on strict application of the rules laid down in R -v- Edwards. It would, he argues, be a violation of that principle to allow cross-examination on the lines suggested to be opened up. He further submits that there was a very strong case against this appellant independently of any police evidence ...."

19. The Court decided that there could be no fair trial on this basis. They gave their reasons as follows:

"This case affords in our judgment a striking demonstration of the malign, far-reaching and poisonous effect of misconduct on the part of police officers. But for that misconduct the verdict of the first jury would not have been disturbed. But for that misconduct there would be no ground to challenge the present convictions which there was on any showing evidence to support. But police misconduct is unfortunately an element in the present case. It led to the quashing of the first conviction by the Court of Appeal. It prompted the prosecution decision to place no reliance at all on the three officers in the first group who participated in this investigation. Following the judge's ruling the case proceeded. The appellant, through counsel, challenged the officers who gave evidence, and the experts also, as in effect a party to a conspiracy to frame him. One can imagine the jury viewing that defence with some scepticism, as it would appear from their verdict they did. But the jury were obliged to make their decision in complete ignorance of the matters which had led to the Court of Appeal quashing the first conviction, without hearing any evidence from the three witnesses involved in the investigation, whom the Crown were unable to put forward as witnesses of truth, and without knowing that six officers from whom they did not hear were the subject of official suspicions which, although no substantiated, had not been dispelled.

Had all this material been before the jury, it may well be that the jury would have been satisfied that the officers were telling the truth and were guilty of no malpractice in relation to this appellant. As it was, however, the appellant was denied the opportunity to advance his challenge to individual officers in the full context known to him and the jury were denied the opportunity to resolve the issue between the prosecution and the appellant in the full context of the matters which the Crown had disclosed. Thus the jury only saw part of the picture and did not see the part which the appellant was most anxious that they should see. The result was in our judgment to deny the appellant a fair trial. We reluctantly conclude that we must regard the resulting convictions as unsafe. That leaves us with no choice but to quash them."

20. Accordingly, we apply those principles to this case. We agree with Mr Kelsey Fry that this is not a case for the application of the strict approach in Edwards (above). We are indebted to Mr Kelsey-Fry for the accurate and economical analysis in his skeleton argument of the impact of the new material on the case against each appellant. Counsel for each of the appellants adopted that analysis, we agree with it and set it out (with minor editorial changes) in relation to each appellant.
21. Martin

a) The evidence against Martin was as follows:

i) the video;

ii) recognition by Officer 1 of the defendant from an extract of the video broadcast on "Crimestoppers";

iii) Martin's palm print being found on the window of the counter, consistent with being left by the robber as he clambered through;

iv) the stun gun found at his home address and later identified by the victim Baker;

v) Photographs recovered from his Volkswagen car proving association with Taylor.

b) At trial the finding of the stun gun was challenged, the defendant alleging "plant". The relevant witnesses were Garner, McGuinness, Officer 2, Officer 3 and Hickson. The evidence of the first four must be considered tainted/unreliable. Hickson's evidence is not so tainted. However:

"The decision illustrates a fairly consistent approach by the Court of Appeal in cases where police officers from a particular squad or force have been proved to have misconducted themselves. If one of these officers has given incriminating evidence, then the conviction has frequently been quashed whether or not that evidence appears to be supported by other officers whose credibility has not bee impugned in the same way." (per Judge LJ in R -v- Guney - [1998] Cr App R 242 at 253)

The logic is clear; the jury in assessing whether the untainted officer was telling the truth may have been swayed by the evidence of the tainted officer. Consequently, the evidence of the finding of the stun gun must be regarded as unreliable.

c) Officer 1's recognition of Martin likewise falls (Officer 1 being one of the 25).

d) The palm print evidence was challenged to the extent that it was suggested to McGuinness (the officer in the case) that the palm print had been "... wrongfully introduced by the police against this defendant" (transcript 13.07.95 24F-G). The Volkswagen car has been canvassed as "... a source of forensic evidence ... where palm prints or fingerprints of Kevin Martin may be found" (transcript 13.07.95 23A-E). The history of the palm print is surprising in that it was not until August that a match was made with Martin, notwithstanding the fact that his prints were on file in January when he was named as a suspect. Nevertheless it is not easy to divine the precise nature of the police misconduct in respect of the palm print alleged by the defence.

e) The fact remains that the evidence was challenged and the jury were invited to consider whether McGuinness was involved in bringing this false evidence against Martin. Had the jury known what is now known about McGuinness they are likely to have examined this issue with a much more critical eye.

f) When the jury were asked to assess whether Martin was one of the robbers on the video, they were invited to take into account the palm print, the stun gun and Officer 1's recognition. The new material would clearly be capable of affecting the jury's assessment of those three planks of the prosecution's case, and consequently once could not be confident that the jury would be bound to come to the same conclusion as to whether Martin was shown on the video - in relation to the video, we were told by Mr Kelsey-Fry that its quality was not good enough to recognise the features of strangers, but was good enough to recognise, say, mannerisms of acquaintances.

22. Taylor

a) The evidence against Taylor was as follows:

i) The video;

ii) recognition of the defendant on the video by Officer 1, Goscomb, Beech and Galbraith;

iii) Identification by the victims Baker and Sullivan on identity parades;

iv) Photographs recovered from Martin's Volkswagen proving association with Martin.

b) Officer 1's recognition falls (as above). Goscomb was with Officer 1 whilst watching the Crimestoppers programme and, because of Officer 1's support for the joint recognition of Taylor, Goscomb's recognition likewise falls. Galbraith's recognition was inherently dangerous bearing in mind he claimed to have recognised the robber alleged to be Brown as a man called Christian, a claim he persisted with until the day of trial, when he suddenly claimed to be sure it was Brown.

c) Beech's familiarity with Taylor was based on having encountered him three of four times over a two-three year period. His recognition was, of course, apparently supported by Officer 1 and Goscomb whose evidence now falls.

d) Sullivan's identification of both Taylor and Brown was abandoned by the Crown as being unreliable once a raft of inconsistencies was exposed at trial (see eg Summing-up 28B).

e) Baker's identification of Taylor was a parade on 27th April 1994, 15 months after the robbery. At trial it was suggested to both Baker and McGuinness that McGuinness had shown Baker photographs of Taylor prior to the parade. Both denied the allegation. If the jury had known of the new material in respect of McGuinness they may well have found the defence suggestion very much more attractive. Whilst Baker remains untainted as a witness, his evidence is tainted by support from McGuinness.

f) It follows that the new material would be capable of affecting the jury's assessment of Baker's identification and the question of whether Taylor was shown on the video.

g) It should be noted that the Crown reliance on the photographs from Martin's car to prove association between Martin and Taylor means that the appeal of each is fortified by the grounds of appeal for the other. The association of one with the other is only relevant if the other was one of the robbers. Thus if the new material affects the safety of Martin's conviction, it has a like effect on Taylor's and vice versa.

23. Brown

a) The evidence against Brown was as follows:

i) The video;

ii) recognition from the video by Officer 1, Goscomb, Galbraith and Beech;

iii) Identification by Baker and Sullivan.

b) What is said above in respect of Martin and Taylor applies equally to Brown.

24. For those reasons, the Crown did not think it proper to argue that the jury at trial would necessarily have reached the same conclusions had the new material been known to them. We agree with their conclusion, and the appeals against conviction are accordingly allowed.
25. We next consider whether there should be a new trial. Two major factors here come into play. First, the more of the sentences that have been served, the less the overall interests of justice require a new trial. Second, it is plainly futile to order a new trial if, for reasons spelt out by Lord Bingham LCJ in Zomparelli the new trial itself may be unfair despite all efforts at case management. Here we need not go beyond the first ground. Each of these appellants has served a considerable part of their sentences, and are not far from the date of their first consideration for parole. In the circumstances, justice does not require a retrial.