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Cite as: [2000] EWCA Crim 48

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STONE, R v. [2000] EWCA Crim 48 (19th July, 2000)

Case No: 2000/01299S2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON INTERLOCUTORY APPEAL FROM THE
CROWN COURT AT CROYDON
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19 July 2000

B e f o r e :
LORD JUSTICE HENRY
MRS JUSTICE BRACEWELL
and
MR JUSTICE RICHARDS

	REGINA
	- v -
	MARK STONE

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr A Jennings and Mr D Friedman (instructed by Hatten Wyatt Solicitors) for the Applicant
Mr M Gadsden (instructed by the Crown Prosecution Service) for the Respondent

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Judgment
As Approved by the Court
Crown Copyright ©
Mr Justice Richards:
1. This is the judgment of the court on an appeal under s. 35(1) of the Criminal Procedure and Investigations Act 1996 against a ruling by HH Judge Devonshire under s.31(3) of the Act in the course of a preparatory hearing at the Crown Court at Croydon. By his ruling, during a voir dire in respect of defence submissions that the proceedings should be stayed for abuse of process or that evidence should be excluded under s.78 of the Police and Criminal Evidence Act 1984, the judge refused a defence application for the issue of a witness summons against an alleged informant. The issue is whether the judge was wrong in law to refuse the application. Leave to appeal was granted by the single Judge. A separate issue in respect of which leave was also granted has not been pursued before us.
The factual background
2. The defendant is due to stand trial on an indictment charging him with two counts of conspiracy to supply prohibited weapons, one count of conspiracy to supply ammunition and one count of conspiracy to supply firearms and ammunition. The charges arise out of a police undercover operation in the latter part of 1998. The appellant had been identified as a supplier of firearms, but not as a primary source. Undercover officers were therefore deployed with the objective of discovering the identities of the persons supplying the appellant. A series of meetings with the appellant took place from at least mid-September 1998 onwards. They were covertly recorded. They led to the supply of weapons and ammunition between 23 October 1998 (when a sub-machine gun was delivered) and 22 April 1999; and that is the period encompassed by the various counts of conspiracy. The supplies were all made to an undercover officer called Martin. It is unnecessary to go into the details of the deliveries or of the meetings during that period. The focus of attention for the purposes of this appeal is the period prior to the first delivery. The case advanced on behalf of the appellant is that he was unlawfully entrapped into agreeing to supply the weapons and thereby into participating in the conspiracies charged, and that the origins of that unlawful entrapment lay in the first encounters between the appellant and those involved in the police operation.
3. The first reference to the question of entrapment was in the defence statement under s.5(5) of the 1996 Act, which was served on 13 September 1999. The prosecution's primary disclosure had included material relating to Martin's role during the period covered by the conspiracy counts. The defence statement included the following:
"The Prosecution have failed to disclose evidence of how the undercover officer 'Martin' came to meet the Defendant in the first place and what passed between them prior to the meeting dated 23 October 1998, which is the first meeting referred to in the prosecution papers.
It is abundantly clear from the papers that previous meetings and dealings had occurred before this date and that a relationship of trust had been built up between the undercover officer 'Martin' and the Defendant, e.g. ....
As a result of this position, the question of entrapment/agents provocateur is one that potentially arises out of the disclosed papers in this case ...."
The request for additional disclosure included a general request for "evidence relating to the issue of whether the Defendant Stone may have been entrapped into committing the offences alleged against him ...." and, in relation to the period before 23 October 1998, a specific request for evidence as to "whether there was an informant in this case and if so who".
4. After service of the defence statement the appellant changed his counsel. We are told that his new counsel, Mr Jennings and Mr Friedman, who have appeared for him on this appeal, took the view that the defence statement was inadequate but agreed with prosecution counsel that the matter could be dealt with by setting out the defendant's case in an intended application by the defence for additional disclosure under s.8(2) of the 1996 Act.
5. There followed a s.8(2) application dated 17 December 1999 for disclosure of, inter alia, "(ii) copies of transcripts relating to previous as yet undisclosed meetings and/or telephone conversations" and "(iii) statements of any informants and/or police officers who participated in any events in relation to (ii)". The notice of application contained a section headed "defence case", which included the following:
"3.1 The defence was introduced to a man called 'Ted' by a man called 'Bill'. Bill was a man to whom the defendant owed a substantial favour. Following a previous incident the defendant's wellbeing was at extreme risk. Bill intervened in order to ensure the defendant's ongoing personal safety. Thereafter the defendant felt indebted to him. The purpose of the introduction was for the defendant to discharge the favour by working for Ted. Ted introduced the defendant to 'Martin' as his business partner. The defendant did some car re-possession work with Martin. Martin asked the defendant to provide his home address and personal photographs for an identification card. The defendant did so. Martin later asked the defendant to supply him with a hand gun and gave him £500 to do so. Mr Stone said he would but he did not do so until after 23 October 1998 ....
3.2 As time went on the defendant became convinced that Ted and Martin were serious criminals and that if he did not agree to their requests then he and his family would be at serious risk. Ted and Martin exploited the obligation Mr Stone was under to Bill. Moreover the defendant had an overemphatic need to comply with Ted and Martin in order to obtain paid work. It was in such circumstances that the defendant agreed to try and obtain weapons for Martin ....
3.3 It is therefore submitted that any material which assists the defence case of entrapment must be disclosed. The clear impression is given in the prosecution papers that not only was the defendant pre-disposed to commit these offences but that he willingly responded to the first request from a virtual stranger. Material that undermines this impression and shows that the defendant's involvement on 23 October 1998 came about from a more complex relationship and different background than the prosecution seek to portray is disclosable. Furthermore, material that shows that the defendant's agreement came after a relationship in which he had worked for the undercover officer and the informant assists in establishing entrapment prior to October 23, 1998. The defence are also assisted by material that shows the police/informant had created circumstances from which fear could be inferred by the defendant .... It is averred that Martin made most of the running and in that context overstepped the mark of a predominantly passive intelligence gatherer as is envisaged by the Home Office guidelines and the case law ...."
The notice identified a number of issues as arising in relation to entrapment. With regard to informants in particular it was submitted that their evidence was relevant to (i) whether the defendant was improperly induced to commit offences at the outset of the investigation, (ii) whether the conspiracy which formed the basis of the indictment was markedly different from the type of offences that were discussed at the outset, and (iii) whether the defendant was improperly induced to participate in the conspiracy that formed the basis of the indictment.
6. A further s.8(2) application dated 28 January 2000 contained an additional request for further disclosure but did not expand on the defence case.
7. The preparatory hearing started on 7 February 2000. For the purpose of the hearing, the appellant's counsel had put in very lengthy written submissions dated 31 January 2000. A summary of the grounds advanced in relation to primary entrapment (prior to October 1998) referred back to the s.8(2) notice dated 17 December 1999 with regard to the case that the appellant was endeavouring to discharge his obligations to a man called Bill who was an associate of Ted. It was said that prior to his being targeted by "the participating informant" Ted and the undercover officers in the period between August and October 1998, there was no independent evidence to show that the appellant was involved in an on-going criminal enterprise to supply firearms; and that in that period the appellant was improperly induced and incited to commit firearms offences both by the informant and by the undercover officers who acted as agents provocateurs. Complaint was again made that the disclosed material contained references to earlier meetings transcripts of which had not been disclosed. We give examples of the way in which the defence case, so far as is material, was set out in the development of the submissions:
"2.6 It is the defence case that prior to 23rd October 199[8], he was induced and incited to supply arms to Ted, a man that subsequently introduced him to Martin ....
2.16 The defence case is that a man called Bill introduced him to Ted and that Ted induced him to become involved in supplying firearms in conjunction with Martin ...."
8. At the beginning of the preparatory hearing the judge ordered disclosure of transcripts of certain meetings and telephone conversations from 25 September 1998 onwards. He then gave a ruling rejecting a defence submission that the activities of undercover officers were contrary to the European Convention on Human Rights because there was no statutory control of their activities. There followed the voir dire on the question of entrapment.
9. The voir dire commenced with evidence from three prosecution witnesses: Martin, a second undercover officer and the supervisory officer in the case. Martin gave evidence on Wednesday 9 February. As a result of his evidence the judge ordered disclosure of three edited transcripts previously withheld on grounds of PII: (1) a transcript of a meeting between Martin and the appellant in the morning of 18 September 1998, (2) a transcript of a further meeting between them in the afternoon of the same day, and (3) a transcript of a meeting between them on 23 September 1998. Martin was recalled for further cross-examination in the light of those transcripts. He agreed that he and Den had in effect been working together as partners. He also agreed that prior to his meeting with the appellant on the afternoon of 18 September, the appellant had met with Den and had agreed with Den to supply the weapon that was eventually delivered on 23 October (though there was an issue as to whether the agreement had been to supply Martin or to supply Den and Martin as partners).
10. There was then a defence application for disclosure of a full transcript of the first meeting on 18 September. This was the subject of oral argument and further written submissions. In submissions taking the form of a further s.8(2) application dated 10 February 2000 the defence expressly sought disclosure of material relating to involvement of "the participating informant" and asserted that "the informant was used on a number of occasions as a means, at the very least, of encouraging and procuring the defendant's involvement in Martin's legitimate and illegitimate activities." It was submitted that the informant was present on at least three occasions prior to the date pleaded in the indictment and that the indictment had been pleaded in such a way as to avoid having to make a concession that the informant was a known participant in the first stage of the conspiracy.
11. On the morning of Friday 10 February the judge ordered disclosure of the full transcript of the first meeting on 18 September, subject to further PII editing. The edited transcript, referred to as "transcript 4", was disclosed later that day.
12. Transcript 4 shows that Den was present from the outset of the meeting on the morning of 18 September and that the meeting continued between the appellant and Den after Martin's departure. What is of principal interest is the conversation between the appellant and Den following Martin's departure. We do not propose to set out the detail of that transcript, but have reached the following conclusions in relation to it:
(1) The transcript clearly evidences an earlier meeting between the appellant and Den. It is equally clear that that earlier meeting was concerned at least in part with drugs, but there is nothing in the transcript to exclude the possibility that other matters were also discussed.
(2) It is also clear from the transcript that the subject of the sub-machine gun which was eventually delivered on 23 October was first raised during the meeting on the morning of 18 September. Moreover it was first raised by the appellant who, after an inaudible remark by him, made the first reference during the meeting to weapons of any kind. He stated:
"I got some other bits about, some other bits about and all .... [inaudible] ... nice little snub guns 32's and, erm, sub machine guns."
He then responded to detailed questions from Den about the sub-machine gun, before the conversation moved on. The conversation came back to the sub-machine gun some time later, when, in response to further inquiries from Den, the appellant gave details of its price, ammunition and packaging. (We have borne in mind that counsel for the appellant have not heard the tape and that caution needs to be exercised about the inaudible remark attributed to the appellant at the beginning of the relevant part of the conversation. But looking at the transcript as a whole we are sure about the conclusion that we have expressed.)
(3) The conversation about the sub-machine gun ended in an agreement for the supply of the gun by the appellant:
"Den: We'll have one of them off you, one of those little machine guns.
Appellant: Yeah, yeah ... [inaudible] ... I prefer moving things at night less risk at the end of the day ...."
That accords with the acceptance by Martin, to which we have already referred, that agreement to supply had been reached between the appellant and Den prior to the meeting between the appellant and Martin on the afternoon of 18 September.
(4) The transcript shows the appellant as a willing and knowledgeable supplier of weapons and explosives. It contains nothing to support the suggestion that he may have been entrapped by Den, Martin or anybody else into participation in the conspiracies alleged against him.
13. Following disclosure of transcript 4 there was no cross-examination of prosecution witnesses about it and no application to recall Martin. On Monday 14 February, after conclusion of the prosecution evidence, the defence indicated that the appellant would not be called to give evidence on his own behalf and that no other defence evidence would be called. (In the course of argument in this court we enquired of Mr Jennings why the defence did not call Bill, the man who was said by the defence to have introduced the appellant to Ted, who (whether or not he was the same person as Den) was said to have introduced the appellant in turn to Martin. Mr Jennings told us that Bill would have been a hostile witness and was in any event unavailable.)
14. After conclusion of the evidentiary stage of the voir dire, the status of transcript 4 was raised with the judge. The prosecution indicated that it placed no reliance on the transcript (indeed, that it placed no reliance on any actions of the defendant before 23 October when the first weapon was delivered). The transcript was not served material, but unused material, and the judge should not take it into account as evidence. It was not the prosecution's intention to call Den and it would be unfair to rely on the transcript without calling him. Defence counsel submitted, by contrast, that the transcript should be taken into account but that it would not be fair to consider it without calling Den.
15. Only at that point did defence counsel make an application for the issue of a witness summons to require the attendance of Den to give evidence at the voir dire. The judge refused the application. We do not have a transcript of the judge's ruling (to which he refers only briefly in his final ruling, on 17 February 2000, on the s.78 application). Prosecuting counsel's note of his remarks, however, indicates that the reasons given were in substance these: the officer in the case had not been cross-examined about transcript 4 and there had been no application for Martin to be recalled to answer questions about it; the transcript therefore did not become part of the evidence for the prosecution; defence counsel had said that the defendant would not give evidence at the voir dire and that no evidence would be called on his behalf; defence counsel now sought to call Den; there was no evidential basis for that; Martin had said in evidence that agreement was reached before he saw the defendant alone, and that was not challenged; the judge had ordered disclosure of transcript 4 because he thought the material might assist the defence; but it appeared to him that it was not of assistance, because it had not been used; the transcript was disclosed material and could remain as unused material; he could see no reason for issuing a witness summons.
16. The voir dire continued and the judge gave his ruling on 17 February, refusing the application to stay for abuse of process or to exclude the evidence of the covertly recorded conversations relied on by the prosecution. He held that from the evidence he had seen he could infer that the appellant was a willing participant and would have committed the specific charges in the indictment without encouragement. The appellant was an established dealer with considerable knowledge of the products he was selling, a man who was very ready to deal with the undercover officer once he was satisfied of his bona fides. The judge was satisfied on the evidence that there was no entrapment. He held that the evidence on which the prosecution proposed to rely should not be excluded under s.78 and that its admission would not prejudice the fairness of the appellant's trial in terms of Article 6 ECHR.
The legal issues
17. There is no challenge to the conclusion reached by the judge on the evidence before him. Nor is there any challenge to his rulings as to disclosure or non-disclosure of documentary material. The sole challenge is to his refusal of the defence application for the issue of a witness summons to secure the attendance of Den to give evidence at the voir dire. In effect it is said that the evidence on which the judge's decision was based was incomplete by reason of the absence of oral evidence from Den. Accordingly the narrow question for decision is whether the judge was wrong in law to refuse the application to issue the witness summons.
18. The issue of a witness summons is governed by s.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, as amended. The material provisions of s.2 are these:
"(1) This section applies where the Crown Court is satisfied that -
(a) a person is likely to be able to give evidence likely to be material ... for the purpose of any criminal proceedings before the Crown Court, and
(b) the person will not voluntarily attend as a witness ....
(2) In such a case the Crown Court shall, subject to the following provisions of this section, issue a summons (a witness summons) directed to the person concerned and requiring him to -
(a) attend before the Crown Court at the time and place stated in the summons, and
(b) give the evidence ....
(3) A witness summons may only be issued under this section on an application; and the Crown Court may refuse to issue the summons if any requirement relating to the application is not fulfilled.
....
(7) An application must be made in accordance with Crown Court rules ...."
19. The rules referred to in s.2(7) are contained in rule 23 of the Crown Court Rules 1982, the material parts of which provide:
"(2) Subject to paragraphs (8) to (10), the application shall be made in writing to the appropriate officer of the Crown Court and shall -
(a) contain a brief description of the stipulated evidence ...;
(b) set out the reasons why the applicant considers that the stipulated evidence ... is likely to be material evidence;
(c) set out the reasons why the applicant considers that the directed person will not voluntarily attend as a witness ....
....
(8) In the case of an application for a witness summons which it is proposed shall require the directed person to give evidence but not to produce any document or thing, that application may be made orally to a judge or in writing and, in such a case -
(a) paragraphs (3) to (7) shall not have effect; and
(b) the application shall, in addition to the matters set out in sub-paragraphs (a) to (c) of paragraph (2), specify -
(i) any charge on which the proceedings concerned are based; and
(ii) the grounds for believing that the directed person is likely to be able to give the stipulated evidence."
20. It is common ground that in assessing whether evidence is "likely to be material evidence" within the meaning of s.2(1) of the 1965 Act, likelihood involves a real possibility, not necessarily a probability: see the summary of principles in R v. Reading Justices, ex p. Berkshire County Council [1996] 1 Cr App R 239 at 246F-G. The same principle must apply in assessing whether a person is "likely to be able to give" such evidence.
21. Evidence is "material" for these purposes if it is relevant to an issue in the case: ibid. In the case of documentary evidence there is an additional requirement that the document is admissible as such in evidence, but we do not need to consider that requirement since we are concerned in this case only with oral evidence. Similarly we do not need to consider the test of materiality approved in R v. Keane (1994) 99 Cr App R 1 in relation to the disclosure of documents by the prosecution to the defence.
22. In the course of his submissions for the prosecution, Mr Gadsden appeared at times to suggest that Den's evidence would be material only if it was relevant and assisted the defence case. In our view that is to conflate two separate points. The first point is whether the materiality condition for the issue of a witness summons is met, which depends on the relevance of the evidence. The second point would arise if there were an objection to the witness summons, or to the giving of evidence pursuant to it, on grounds of PII. At that stage it would be necessary to consider, as part of the balancing exercise predicated in the authorities on PII, whether and to what extent the evidence would assist the defence. Although a PII issue might well arise if a witness summons were served on Den, the present case did not get to that point. Counsel's note of the judge's ruling does not suggest that PII played any part in the reasons for the refusal of the application.
23. Likewise we reject Mr Gadsden's submission that the conditions of s.2(1) were not met because it had not been shown that Den was in any different a position from Bill, who was said not to have been called at the voir dire because he was hostile and unavailable. There is nothing in s.2(1) to preclude the issue of a witness summons against a potentially hostile witness. Indeed, the requirement in s.2(1)(b) is that the person will not voluntarily attend as a witness. Nor do we think that s.2(1) requires the court to be satisfied of the witness's availability to give evidence. What matters is the evidence that the person is likely to be able to give if his attendance is secured. The fact that a potential witness is making himself unavailable does not deprive the court of its power to issue a summons. It may still be appropriate to issue such a summons with a view to securing the person's attendance in the event that he can be found. On the other hand, there is in the present case a distinct issue about the artificiality of applying for a witness summons against a person whose true identity and whereabouts are wholly unknown to the party seeking the summons and upon whom it is therefore impossible, on the face of it, to serve the summons at all. That is a matter to which we will have to return.
24. Mr Gadsden also pointed out that the application for a witness summons was not in accordance with rule 23 of the Crown Court Rules 1982. Although an oral application was permissible, there was no attempt to meet, for example, the requirement to give a brief description of the stipulated evidence or to specify the grounds for believing that Den was likely to be able to give such evidence. The judge, however, did not refuse the application for mere failure to fulfil the relevant requirements and Mr Gadsden did not contend that the application should have been refused on that ground. But he did rely on the deficiencies in the application in support of his submission, considered below, that the defence had failed to make out a proper case to justify the issue of a summons.
25. Having dealt with various of Mr Gadsden's secondary submissions, we focus on what seems to us to be the primary question: whether, on the material before him, the judge ought to have been satisfied that Den's evidence, if given, was likely to be relevant to an issue in the case. As to that, Mr Jennings submits that the defence had raised the issue of whether the appellant had been entrapped by Den, before the meetings on 18 September 1999, into agreeing in general terms to supply firearms to Den and/or to Martin. Although a specific agreement to supply the weapons charged in the indictment was not made until 18 September, the genesis of the agreement lay in an earlier meeting or meetings. This was not a case where the informant had simply effected an introduction and then abstained from further involvement. There was a nexus between his involvement and the criminal activity alleged in the indictment. Even if Martin had behaved with complete propriety, the evidence concerning his dealings with the appellant could be excluded under s.78 if those dealings were built on the foundations laid by Den acting as agent provocateur: see R v. Smith [1995] Crim LR 658 and commentary thereon. Undercover operations are generally structured in such a way as to create free-standing conspiracies that do not involve the material participation of the informant. The operation against the appellant did not work in that way. The informant's role was crucial. Thus Den's evidence about what happened at any meeting or meetings between himself and the appellant was of direct relevance to the issue of entrapment, and without it the picture was incomplete.
26. The opposing submission by Mr Gadsden is that there was simply no evidential basis for the suggestion of entrapment by Den, nor was any particularised case advanced in support of the suggestion; and in those circumstances the judge was entitled to reach the conclusion he did.
27. Entrapment is not a defence to a criminal charge, but evidence obtained by entrapment may fall to be excluded in the interests of fairness in the exercise of the court's discretion under s.78 of the Police and Criminal Evidence Act 1984. The general approach of the courts was summarised by Lord Bingham of Cornhill in Nottingham City Council v. Amin [2000] 1 Cr App R 426 at 431C-D:
"On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else" (emphasis added).
28. Had the defence raised an issue that Den had "instigated, persuaded, pressurised or wheedled" the appellant into committing the offences charged in the indictment? By that we mean an issue of substance - not a mere speculative possibility of generalised assertion, but a particularised case with some evidential foundation to it. The circumstances of the present prosecution show why that must be so. To require the giving of evidence by informers in the absence of such a case on the part of the defence would be to open the way to mere fishing expeditions and to putting pressure on the Crown to drop prosecutions in order to protect sources. A similar point was made in R v. Agar (1990) 90 Cr App R 318, 324, in the context of withholding evidence on grounds of PII:
"Now it is certainly not the case that a defendant can circumvent the rule of public policy so as to find out the name of the person who had informed on him, for his own future reference and possible reprisal, simply by pretending that something is part of his case, when in truth it adds nothing to it. And it may be - we emphasise 'may' - that if the defence is manifestly frivolous and doomed to failure the trial judge may conclude that it must be sacrificed to the general public interest in the protection of informers. We do not see the present case in this light. There was a strong, and absent contrary indication, overwhelming public interest in keeping secret the source of information; but as the authorities show, there was an even stronger public interest in allowing a defendant to put forward a tenable case in its best light."
29. The most obvious way of raising an issue in the circumstances of this case would have been by the appellant himself giving evidence in the voir dire to the effect that he had been entrapped by Den. The voir dire was his primary opportunity to do so, if not his only opportunity, since the case on entrapment was directed towards the exclusion of evidence of the covertly recorded conversations. The appellant chose, however, not to give evidence at all.
30. Nevertheless we accept that an issue can be raised in other ways as well. It can and should be raised in a sufficiently detailed defence statement under s.5(5) of the Criminal Procedure and Investigations Act 1996. It may be raised through counsel for the purposes of the specific application, as in the context of PII. For example, in R v. Yrtici (an unreported judgment of the CACD on 12 July 1996), in order to assist the judge in deciding on the materiality of documents for which PII had been claimed, defence counsel provided the judge with the contents of his brief, including the defendant's proof of evidence. In R v. Keane (supra) the defence case for the purposes of the PII balancing exercise was apparent from what the defendant himself had said in interview as well as from counsel's detailed submissions to the court.
31. In the present case one sees a gradual adjustment of the defence case over time in the light of disclosed material. What is conspicuously absent at any time, however, is any particularised case as to entrapment of the appellant by Den. The defence statement under s.5(5) of the 1996 Act did not raise the issue. It did not refer to Den or to any informant, stating little more than that the issue of entrapment "potentially arises" out of the disclosed papers. The notice of application dated 17 December 1999 for further disclosure under s.8(2) of the 1996 Act put forward a more detailed case on entrapment but did not give any details as to alleged entrapment by Den (even if he is the same person as Ted), whether on or before 18 September 1999. Nor did the very lengthy written submissions on entrapment dated 31 January 2000. The further notice of application dated 10 February 2000 asserted that the informant was used on a number of occasions "as a means, at the very least, of encouraging and procuring the defendant's involvement in Martin's legitimate and illegitimate activities" and referred to the informant being present at meetings between the appellant and Martin, but did not make any specific allegation concerning any meeting between the appellant and Den prior to 18 September.
32. As to the evidence, Martin accepted in cross-examination that an agreement to supply the first gun had been reached between the appellant and Den before he, Martin, first saw the appellant alone; but there was nothing in his evidence to support a case of entrapment by Den. Transcript 4, although evidencing an agreement to supply the first weapon delivered and also evidencing at least one previous meeting between the appellant and Den, provides no support for a case of entrapment by Den. There is no other material to support any such case.
33. Taking all the material into account, we are satisfied that the judge was entitled to reach the conclusion that he did. There was no evidential basis for a case that Den had "instigated, persuaded, pressurised or wheedled" the appellant into committing the offences charged in the indictment. Nor had any particularised case to that effect been raised. At no time did the defence put forward a positive case as to anything said or done by Den, whether on or prior to 18 September, which could amount to entrapment of the appellant. It advanced nothing beyond speculative possibility and generalised assertion. The mere fact of a meeting or meetings between Den and the appellant prior to 18 September, and the absence of a clean break between Den's involvement and that of Martin, are wholly insufficient in themselves to raise an issue of entrapment that might justify the calling of Den. Thus the defence had failed to show that Den was likely to be able to give evidence that was likely to be relevant to an issue in the case. The conditions for the issue of a witness summons were not satisfied.
34. So far as concerns the detailed reasons that the judge gave for his ruling, it appears to us that the essence of the matter was the absence of any evidential basis for a case of entrapment of the appellant by Den. Although the judge went on to observe that transcript 4 did not appear to have assisted the defence, he was not introducing an erroneous test of whether Den's evidence would assist the defence. He was merely observing that the transcript did not in the event appear to have assisted the defence - an observation that is entirely borne out by consideration of the transcript itself. The fact that the judge ordered disclosure of the transcript does not in any way justify the conclusion that he ought to have issued a witness summons against Den.
35. There was in any event a high degree of artificiality about the defence application for the issue of a witness summons against Den. As already mentioned, the defence did not know his true identity or whereabouts and had no way of securing the service of a summons on him. Further, although Mr Jennings submits that the mechanics of Den giving evidence are immaterial and would have fallen to be sorted out once his attendance at court had been secured, it seems to us that they tend to reinforce the artificiality of the application. If the defence had succeeded in securing Den's attendance at court and there had been no PII obstacle to his giving evidence, it would then have been for the defence to call him and examine him in chief. He would not have been a Crown witness available for cross-examination by the defence. In the light of the material that we have seen, it is difficult to understand what possible value his evidence could have had to the defence in those circumstances. That consideration lends a degree of legitimacy to the submission by Mr Gadsden that the application was a disguised attempt to put pressure on the Crown to drop the prosecution in order to protect the informant.
36. We have not lost sight of the case-law under Article 6 of the European Convention on Human Rights, to which extensive reference was made in the appellant's skeleton argument. In our view, however, Article 6 adds nothing in the circumstances of this case. The authorities on agents provocateurs, e.g. Teixeira de Castro v. Portugal (1998) 28 EHHR 101, do not add materially, for present purposes, to domestic law concerning the exclusion of evidence obtained as a result of police incitement. Nor do the authorities on the principle of equality of arms, including those relating to the calling and questioning of witnesses, e.g. Barbera, Messegue and Jabardo v. Spain (1988) 11 EHRR 360. The reasons for our conclusion that the judge was entitled to refuse a witness summons against Den lead us also to the conclusion that the refusal does not prejudice in any way the appellant's right to a fair trial. Article 6 does not require the attendance of every witness whom the defendant wishes to call, but leaves it to the national court to assess whether it is appropriate to call a witness: see Vidal v. Belgium (decision of the European Court of Human Rights, 22 April 1992, para 33). The decision that it was not appropriate to require the attendance of Den caused the appellant no unfairness.
37. Accordingly this appeal is dismissed.