England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Wednesday 13th June 2001

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On 2 November 2000 His Honour Judge Hawkesworth gave his ruling on applications made on behalf of the ten defendants heard on a voire dire in proceedings on an indictment of 40 counts very largely concerning drug offences. There are before this Court applications by four defendants for leave to bring interlocutory pre-trial appeals under section 35(1) of the Criminal Justice and Investigations Act 1996, and for extensions of time in which to do so. Similar applications are made in respect of a further ruling which Judge Hawkesworth delivered on 24 November 2000. The applications of a fifth defendant were abandoned during the course of the hearing before us. The applications before Judge Hawkesworth related to abuse of process and as to the admissibility of evidence under section 78 of the Police and Criminal Evidence Act 1984.
2. We understand that the procedure followed before Judge Hawkesworth was as follows. On 24 January 2000 the case was listed before him for a pleas and directions hearing. It was accepted by all parties that there should be a preparatory hearing under section 29 of the Criminal Justice and Investigations Act. The case was listed for 6 March. On 6 March the judge ordered that the hearing should be a preparatory hearing under the 1996 Act. Arraignment took place. A number of issues were raised which required determination, which were formulated as abuse of process issues and issues under section 78 of the Police and Criminal Evidence Act 1984. It was decided that there should be a voire dire to deal with those matters. The hearing of the voire dire commenced on 18 September and was treated as part of the adjourned preparatory hearing begun on 6 March. On 2 November Judge Hawkesworth delivered the ruling to which we have referred. The transcript runs to 146 pages. It was a considerable work, done with great care. The judge held that some evidence should be excluded because it would be unfair to admit it on the ground of entrapment. He ruled the balance of the evidence admissible. He rejected the submissions based on abuse of process. On 24 November he delivered a further ruling. He had heard evidence from 22 police officers (including the Chief Constable of Essex) and from one of the applicants, Roy French.
3. The case is the outcome of an under-cover police operation named 'Padstow' on a housing estate in north Essex in January, February and March 1999, which was intended to uncover major drug dealing. Under-cover test purchase officers set themselves up in a house on the estate from which they intended to make contact with drug dealers on the estate and through those dealers to obtain evidence against their suppliers in turn. The operation was unsuccessful in its main aim because it did not lead to the gathering of evidence against any major suppliers. Nonetheless ten persons have been charged with offences on an indictment of 40 counts. The offences relate to the supply or possession of heroin, cocaine and amphetamine. One defendant is also charged with an offence of incitement to commit burglary.
4. The judge summarised the issues at the voire dire:

"All the charges arise from a police undercover operation code named Padstow, which took place between January and March of 1999. All defendants have submitted through their counsel during the course of this voire dire, which began on the 18^th September, with varying degrees of emphasis, that I should stay these proceedings as an abuse of the process of the court or, alternatively, exclude the evidence obtained by the various undercover police officers who took part in the operation.

The bases of their submissions are essentially twofold. First, the operation was neither authorised nor managed in accordance with the guidelines which were in force at the time or with the law and, accordingly, I should hold that there has been a violation of Article 8 of the European Convention of Human Rights and were I so to rule, it is contended further (and in any event) that in such circumstances Article 6 of the European Convention of Human Rights would be violated were a trial to take place.

Secondly, it is contended, whatever my views may be concerning the authorisation and supervision of the operation, individual undercover officers overstepped the mark and entrapped the defendants which, at the very least should lead to the exclusion of their evidence, pursuant to the provisions of Section 78 of the Police and Criminal Evidence Act 1984 or, having regard to the nature of the breaches of Articles 8 and 6, give rise to a stay of the proceedings as an abuse of the process of this court.

This voire dire raises in stark profile the tension which now plainly exists between the need to protect the public from the ever growing problem and menace of, particularly, Class A drugs and the duty to protect the individual rights of the citizens of this country. It is a trite observation to say that the exceptional dangers created by the wide spread supply and use, particularly of Class A drugs, require exceptional measures. It is an equally trite observation to say that such measures may only go so far as the law permits and no further."

5. A working definition of a typical abuse of process is:

"... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding." (see Hui Chi-Ming -v- R. (P.C.))

Section 78 provides:

"78(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."

6. Where evidence is alleged to have been obtained in breach of the European Convention on Human Rights, that may be used to found an application to stay the proceedings on the ground of abuse process. The same alleged breaches may also be used to found an application to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984. Where an application under section 78 is successful in excluding evidence which is essential to a charge, the effect is the same as a stay on the ground of abuse of process. Where an application under section 78 is successful in excluding only some of the evidence relating to a charge, the prosecution may be left in a position to proceed with the charge. The position is the same where entrapment is relied on as a ground for staying the proceedings and also for excluding evidence under section 78. We set this out to emphasise the close relationship and potential overlap between the applications to stay on the ground of abuse of process, and to exclude evidence under section 78. This is important in considering this Court's jurisdiction to hear these applications.
7. The introductory passage quoted from the judgment of Judge Hawkesworth shows that he saw the authorisation and management points primarily in terms of abuse of process, and the entrapment points first in terms of section 78 and second in terms of abuse of process. His judgment, however, subsequently dealt with the issues in terms of section 78 with only brief references to abuse of process. Because of the overlap it is not to be faulted for that.
8. As has been stated, the appellants seek leave to appeal against under section 35(1) of the Criminal Procedure and Investigations Act 1996. Neither the appellants nor the Crown raised any question as to the jurisdiction of this Court to grant leave and to hear an appeal in the circumstances. But we were in the process of considering the question of jurisdiction as a contested issue in a case which, because of reporting restrictions, we will call "G" (unreported, Case No. 00/05614/S2). Our consideration of that case raised doubts as to the question of the jurisdiction here. Accordingly we reconvened to hear argument on the question. Both applicants and the Crown submitted that there was jurisdiction.

Preparatory hearings and appeals

9. There are now three situations provided by statute in which the Crown Court may make rulings as to law and the admissibility of evidence prior to the swearing of the jury. The first is in cases of serious or complex fraud. There sections 7 to 10 of the Criminal Justice Act 1987 –'the 1987 Act', provide that the court may hold a "preparatory hearing" and may make such rulings. The second is in cases of length or complexity other than cases of serious or complex fraud. There sections 28 to 38 of the Criminal Procedure and Investigations Act 1996 – 'the 1996 Act', provide that the court may hold a 'preparatory hearing' and may make such rulings. The third is provided by sections 39 to 43 of the 1996 Act, which provide that at a 'pre-trial hearing' the court may make such rulings. The first and second sets of provisions provide for interlocutory appeals. The third does not. Until the 1987 Act there was no right of interlocutory appeal in English criminal law.
10. There is no overlap between these provisions. This is because section 39(1) of the 1996 Act provides that a pre-trial hearing takes place between committal for trial or transfer to the Crown Court and the start of the trial. Section 39(3) provides that the start of the trial occurs when the jury is sworn. On the other hand, where there is a preparatory hearing under either the 1987 or 1996 Act, the trial starts with the hearing – sections 8 and 30 respectively. Section 39(3) is stated to be subject to sections 8 and 30. So where a preparatory hearing is held, the trial has started and there is no power to hold a pre-trial hearing. So, in cases where a preparatory hearing is held, the only statutory power to make rulings as to law and admissibility of evidence in advance of the proceedings before the jury is under the provisions relating to preparatory hearings.
11. The need for a statutory power to make such rulings in advance of the swearing of the jury arises in part from the former position which required the jury to be sworn and then released while a voire dire was held – perhaps over weeks, in order to protect the position as to appeals. In essence, if the trial had not begun with the swearing of the jury, there could be no appeal. The position is considered in paragraph 4-93 of Archbold 2001 as follows:

"In ex p. Guardian Newspapers [1999] 1 Cr App R 284, CA it was said to be well settled that a trial does not start on arraignment, unless there is a statutory provision creating this effect; it starts when a jury is sworn and the defendant is put into the charge of the jury (R -v- Tonner 80 Cr App R 170, CA) - considering a statutory provision that did not apply to a trial which 'began' before the commencement date), and that entering a plea of 'not guilty' does not mark the commencement of a trial, but merely establishes the need for a trial (Quazi -v- DPP, 152 JP 414, DC); but cf R -v- Hammersmith Juvenile Court ex p. O, 86 Cr App R, 343, DC.

The decision in Tonner left open the question whether it was necessary to put the defendant in charge of the jury before conducting a voire dire to determine the admissibility of evidence without which the Crown would be unable to open the case to the jury. The safe course was to do so even though the consequence might be that the jury would be immediately sent away for a prolonged period. The issue was important because section 2(1) the Criminal Appeal Act, 1968, as originally enacted, provided as two of the grounds for quashing a conviction that there had been a wrong decision of any question of law (para (b)) or an irregularity 'in the course of the trial' (para (c)). In R -v- Vickers, ante Scarman LJ said that (b) 'clearly contemplated a ruling in the course of the trial' (p 51). There is now only one ground for quashing a conviction, namely that it is 'unsafe' (see the text of section 2, as amended by the Criminal Appeal Act 1995). It follows that there is no longer any reason for not determining an issue of admissibility after arraignment but before the swearing of the jury."

12. As we have outlined, preparatory hearings were introduced in cases of serious or complex fraud by section 7 of the 1987 Act. As amended it provides:

"7(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from a hearing (in this Act referred to as a "preparatory hearing") before the jury are sworn, for the purpose of –

(a) identifying issues which are likely to be material to the verdict of the jury;

(b) assisting their comprehension of any such issues;

(c) expediting the proceedings before the jury;

(d) assisting the judge's management of the trial,

he may order that such a hearing shall be held."

13. Section 8 provides that the trial shall begin with the preparatory hearing and for arraignment. Section 9 gives the judges various powers that he may exercise at the hearing. By section 9(3):

"9(3) He may determine –

(a) [repealed]

(b) any question as to the admissibility of evidence; and

(c) any other question of law relating to the case."

Section 9(11) provides:

"9(11) An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal."

14. As we have again outlined, in 1996 a similar power was provided to hold preparatory hearings in complex or long cases. Section 29(1) of the 1996 Act provides:

"29(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such a length, that substantial benefits are likely to accrue from a hearing –

(a) before the jury are sworn, and

(b) for any of the purposes mentioned in subsection (2),

he may order such a hearing (in this Part referred to as a preparatory hearing) shall be held."

Subsection (2) sets out the purposes in the same terms as section 7(1) of the 1987 Act. Subsection (3) provides that no order shall be made under subsection (1) where the case is covered by section 7(1) of the 1987 Act. Section 30 is to the same effect as to the start of the trial and arraignment as section 8 of the 1987 Act. Section 31(3) mirrors section 9(3)(b) and (c) of the 1987 Act – the judge's power to makes rulings as to admissibility of evidence, and any other question of law. Section 35(1) provides for an appeal to the Court of Appeal against any ruling under section 31(3) but only with the leave of the judge or of the Court of Appeal.

15. The question as to jurisdiction in present case arises in connection with the 1996 Act. Its provisions are to the same effect for this purpose as those of the 1987 Act. The relevant authorities are applicable to the situation under either Act.
16. It is well-established by a line of authority in this Court that for there to be an interlocutory appeal to this Court there must not only be a ruling as to admissibility of evidence or law made at a hearing held pursuant to the judge's order that there be a preparatory hearing, but that the ruling must also be for a purpose covered by the purposes set out in section 7(1) or 29(2) of the applicable Act. If the ruling is not for such a purpose, it does not fall within the preparatory hearing and there is no appeal under section 9(11) or 35(1).
17. In the first of these, in re Gunarwardena [1990] 1 WLR 703 Watkins LJ stated at 707E:

"If, looking squarely at the matter, the judge comes to the conclusion that the application before him does not relate to one of those [section 7(1)] purposes, then he cannot entertain that application within the ambit of 'the preparatory hearing'".

18. In Moore, unreported 4 and 5 February 1991, Lord Lane stated, at pages 10 and 11 of the transcript:

"Can it be said that the matters sought to be raised by the defendants in the present case fall within the ambit of section 7(1)?

The quashing of the count of theft which is alleged against the defendant Moore: it is perfectly true that indirectly, if the count was quashed, it might have resulted in an expedition of the proceedings before the jury, because there would be much less material to go through. But that was not the purpose of the motion to quash. The object was to prevent Moore being faced with a charge of theft, or perhaps to put right an error in the procedure in that the count had been wrongly concluded when there was no evidence on the committal documents to justify it.

Similarly with other matters under (a) to (d). In each case it is possible that the quashing of the indictment might indirectly have had the results which are detailed in those sub-paragraphs.

However it seems to us that the fact that a possible incidental effect of the purposes of the application does find itself within those sub-provisions (a) to (d) is not one of the purposes of those provisions. It is the word 'purpose' by which the situation is governed. In our judgment it is improper and misconstruction to substitute some such word as 'consequences' for the word purpose'. In so far as the motion to quash is concerned, it does not, in out judgment, come within those four sub-provisions."

19. In Hedworth [1997] 1 Cr App R 421 at 430 Evans LJ summarised the position:

"… two conditions must be satisfied before the Court of Appeal can have jurisdiction [to hear an appeal under section 9(11) of the 1987 Act]: first there must be an issue of law or evidence within section 9(3); secondly the order appealed from must have been made under the ambit of the preparatory hearing, that is to say, within the scope of section 7(1).

20. These authorities and the outcome of each in summary, are as follows:

a) re Gunarwardena [1990] 1 W.L.R.703 – no appeal lay under section 9(11) of the 1987 Act from a refusal to stay on the ground of abuse of process arising from delay, as the application to stay was not within a section 7(1) purpose.

b) Moore & Others, unreported, 4 and 5 February 1991 – no such appeal lay from a refusal to quash a count in an indictment, as the application to quash was not within a section 7(1) purpose, likewise no appeal lay from a ruling as to whether the Crown should be required to elect between a charge of conspiracy and substantive charges. We will revert to a further aspect of this appeal and its bearing on questions of evidence.

c) Jennings [1994] 98 Cr. App. R 308 – no appeal lay from a refusal to sever an indictment , as the application to sever was not within a section 7(1) purpose.

d) Maxwell, unreported, 9 February 1995 – an application for discovery was not within a section 7(1) purpose, and no interlocutory appeal lay.

e) Hedworth [1997] 1 Cr. App. R 421 – an application to quash a count in an indictment on the ground that it was not supported by the evidence, was not within a section 7(1) purpose, and no interlocutory appeal lay.

f) R, unreported, 22 February 2001, No 2000/00375/S1 – abuse of process, no interlocutory right of appeal. We will revert to this decision and its consideration of an appeal concerning section 78.

21. As to purpose, in Maxwell Swinton Thomas LJ stated :

"As Mr Jones rightly submitted, it is not the purpose of the defence which governs the operation of section 7. The relevant purpose is that of the court or judge."

22. In accordance with these authorities, the question for us is therefore whether the hearing which Judge Hawkesworth conducted and the rulings which he made were for a purpose within those set out in section 29(2) of the 1996 Act. If they were not, there can be no appeal at this stage.
23. It is clear from re Gunarwardena and from R. that there is no right of appeal under section 35 of the 1996 Act against the rulings of Judge Hawkesworth in so far as they were concerned with abuse of process. It would therefore be at first sight surprising if his rulings under section 78 could be subject to appeal under the section. For, as we have pointed out, there was at least a substantial overlap between the two grounds of application: they were effectively two routes to the same end. If, in so far as the applications were formulated in terms of abuse of process, they were outside the section 29(2) purposes, it might seem that in so far as they were formulated in terms of section 78 they should also be outside those purposes.
24. Yet that was the situation in the case of R. That also was a case involving a drugs test purchase operation. We have been referred to it as binding on us. The test purchase operation was run by a participating police informer and a test purchase officer. It was clearly an exercise on similar lines to our case. There too the application was that:

".. the evidence of the test purchase officer ... should be excluded under the provisions of section 78 of PACE and/or the proceedings should be stayed as an abuse of process."

The judge rejected the submissions, the defendant appealed and the Crown submitted there was no jurisdiction in this Court to hear the appeal. The appellants conceded there was no jurisdiction to hear appeals in relation to the stay of proceedings. This concession acknowledges Gunarwardena, and reflects that section 29(2) can only be used for the better management of the trial (ie a non-terminating ruling) as opposed to a stay for abuse (a terminating ruling).

25. There Tuckey LJ set up the jurisdictional question in paragraphs 3 and 4 of his judgment:

"3 The first question which arises is one of this Court's jurisdiction. The Crown submit that we have no jurisdiction to hear this appeal at all. The relevant statutory provisions are identical to those for serious fraud cases contained in the Criminal Justice Act 1987. Section 29(2) of the 1996 Act enables the judge to hold a preparatory hearing for the purposes of: (a) identifying issues which are likely to be material to the verdict of the jury; (b) assisting their comprehension of any such issues; c) expediting the proceedings before the jury; and (d) assisting the judge's management of the trial. For these purposes section 31(3) enables the judge to make a ruling as to (a) any question as to the admissibility of evidence and (b) any other question of law relating to the case. Section 35 provides for an appeal against any such ruling.

4 Previous decisions of this Court make it clear that these provisions only give a right of appeal against a ruling made for section 29(2) purposes. They do not therefore allow appeals from all rulings on questions of law made before trial. More specifically they do not permit an appeal against a judge's refusal to stay proceedings as an abuse of process: R v Gunarwardena (1990) 91 Cr App R 55. In so far as this appeal is against that part of the judge's ruling we therefore have no jurisdiction to hear it as counsel for the appellants conceded yesterday. It is also clear from the authorities that there can be no appeal from a judge's refusal to quash an indictment on the basis that the evidence does not support the charges made: see R v Hedworth [1997] 1 Cr App R 421."

26. Tuckey LJ then moved on to the section 78 issue:

"5 Counsel for the Crown submits by analogy that wherever the effect of the application is that there should be no trial at all there is no jurisdiction to appeal from a judge's ruling. Only rulings at preparatory hearings which are designed to facilitate a trial which is to take place may, he submits, be appealed under those provisions.

6 We are unable to accept these submissions. They ignore the clear language of the statute which permits an appeal against a ruling as to:

'Any question as to the admissibility of evidence.'

7 That is precisely what the judge's section 78 ruling in this case is. The meaning of the statute cannot be affected by the consequences of the ruling. Some rulings on admissibility will have little or no effect on the conduct of the prosecution's case. Others, such as the ruling sought in this case, would or might have the effect that the prosecution cannot proceed, but such a consequence cannot alter the character of the ruling, namely that it was a ruling as to the admissibility of evidence. Such a ruling made in the course of a preparatory hearing can be the subject of an interlocutory appeal."

27. This omits, in our view, the essential step of identifying a purpose within section 29(2). There are, however, a number of cases in which questions as to the exercise of discretion under 78 have been the subject of appeal to this Court, and in some instances of further appeal to the House of Lords. But in none of them save R has the question of jurisdiction been argued.
28. The first and perhaps most important is Moore & Others, to which we have already referred. The application to quash was not the only application which this Court was asked to consider on appeal.

"There were three applications: first, on the ground that certain evidence was inadmissible at the trial; secondly, to quash one count of the indictment; and thirdly, that the prosecution should elect whether to proceed with a conspiracy charge or with various substantive charges. It was held that there was a right of appeal as to the inadmissibility application but not in relation to either of the other applications, including the application to quash the indictment." – per Evans LJ in Hedworth [1997] 1 Cr. App. R. at 426.

In his judgment delivered on 4 February 1991 the Lord Chief Justice dealt with the evidence point shortly. He said, at page 2 of the transcript:

"There are three points in issue before this Court. The first is the judge's ruling that certain evidence relating to what is called 'venture capital' was to be admissible at trial. There is no doubt that this is the proper subject of an appeal."

29. It can be seen from his judgment delivered the next day dealing with the merits of the appeal on the admissibility point that the issue was whether evidence should be excluded on the ground that it went to propensity rather than to proof of guilt. The power to exclude such evidence under section 78 on the ground of an adverse effect on the fairness of the proceedings was referred to. So this is a case where jurisdiction and the question of purpose was plainly in the mind of the court in relation to the section 78 application and the court held that there was jurisdiction. It does appear that the contrary was not argued.
30. In Smith [1994] 99 Cr. App. R. 233 the Court was concerned with questions as to the admissibility of evidence arising under sections 76 and 78 of the Police and Criminal Evidence Act 1984. Leave to appeal had been refused under section 9(11) of the 1987 Act by the trial judge. It was granted by this Court at the start of the hearing before it. There was no discussion of the jurisdictional question.
31. In Radak, unreported, 10 July 1998, the judge had given leave to appeal. The application had been one by the prosecution under section 23 of the Criminal Justice Act 1988 to read a witness's statements. If the evidence was not adduced, that would have been likely to have been the end of the case. The Court heard and allowed the appeal. There was no discussion of jurisdiction.
32. In Sawtell, unreported, 13 September 2000, this Court refused leave to appeal against a ruling that certain evidence was admissible. It did so on the basis that the ruling of the judge that the evidence was admissible was correct. There was no discussion of jurisdiction.
33. The appeal of P [2001] 2 WLR 463, House of Lords, was concerned with the admissibility of intercepted telephone conversations. The judge had declined to exercise his discretion under section 78 to exclude them. This Court heard and dismissed an appeal under section 35 of the1996 Act, and the House of Lords dismissed the further appeal. It does not appear that any point was taken as to jurisdiction.
34. In Y (Sexual offence: Complaint's sexual history), 15 January 2001, the Times 13 February 2001, this Court considered on an appeal under section 35 of the 1996 Act whether a defendant to a charge of rape could adduce evidence as to his recent consensual sexual activity with the complainant. The judgment of the House of Lord's on appeal from the decision of this Court was given on 17th May 2001 - as yet unreported. It does not appear that any point has arisen as to jurisdiction. The appeals particularly demonstrate the usefulness of the interlocutory appeal process.
35. There are likely to be further examples which have not come to our attention.
36. In the present case and in all of these cases concerning evidence save that of Y it can be said that the object of the hearing was for the limited purpose of securing a fair trial by excluding or admitting evidence, usually within the context of section 78. That is not a purpose listed in sections 7(1) and 29(2).
37. It is however clear that Parliament intended by section 9(3)(b) of the 1987 Act and by section 31(3)(a) of the 1996 Act to empower rulings concerning questions of admissibility of evidence to be made at preparatory hearings in fraud and other complex cases and for such rulings to be subject to appeal if leave is given. Such questions pre-eminently arise under section 78. So it would largely emasculate the provisions of those sections if rulings given under section 78 were outside them. There are, we think, grounds for thinking that Parliament intended the contrary. Part 1 of the 1987 Act, which includes the provision for preparatory hearings in cases of serious fraud was passed as a result of the Roskill Commission's Report. Part III of the 1996 Act was a consequence of the Runciman Commission. Both reports emphasised the need for pro-active judicial case management in order to streamline and speed up proceedings before the jury. At the second reading of the Bill in the House of Lords, Baroness Blatch said:

"[The judge in the preparatory hearing] may exercise a range of powers to narrow the issues in dispute and to assist the jury's understanding of the case. For example he may make a ruling on the admissibility of evidence or any point of law."

38. We have concluded that it must have been the intention of Parliament that, in fraud or other complex or long cases where it was thought appropriate to hold a preparatory hearing under the appropriate Act, the court should have power to decide as part of the preparatory hearing before the jury part of the trial, questions of evidence such as typically arise under section 78 and have to be decided in the absence of the jury. As we have set out, there is no statutory power otherwise to deal with such matters before the jury is sworn. We are satisfied that the making of such rulings should be treated as being for the purpose of "expediting the proceedings before the jury" – sections 7(1)(c) and 29(2)(c). That is in the sense that, if they are not decided during the preparatory hearing, then there is no statutory provision enabling them to be decided prior to the swearing of the jury. We accept that this does not fit well with the approach to "purpose" adopted in re Gunarwardena and the cases which have followed it, but we can see no other way to give effect to the intention of the legislation as we perceive it to be. When Moore & Others was decided, the problem of having to hold voire dire hearings after the jury was sworn would have been much more in the court's mind: it is now largely a historical problem. We think it very likely that the reasoning which we have set out in this paragraph must have been behind the approach of this Court in that case to the evidence question before it.
39. We are also conscious that we are giving a broad construction to "... expediting the proceedings before the jury" despite certain dicta in Moore which might encourage us to regard that as the "consequence" of the voire dire, and not the "purpose". We think that in the earlier days of the introduction in serious fraud cases of the interlocutory appeal the courts were fearful of last-minute delays to trials. But the requirement of leave to appeal seems to have met that fear, as the section 78 cases where jurisdiction has never been in issue demonstrate.
40. We conclude therefore that Judge Hawkesworth did have power to determine the section 78 issues within the context of the preparatory hearing, and so his rulings are to that extent subject to appeal. We accept that following re Gunarwardena his rulings as to abuse of process would not be subject to appeal. A logical resolution of this position must be left to a higher court.

The authorisation and management of the operation

41. The applicants alleged that there was abuse of the court process arising in connection with Operation Padstow (and therefore grounds also to exclude evidence as to the operation under Section 78):

a) that there was no extant statutory basis for the test purchase operation, with its covert recording of conversations and telephone calls;

b) that the operation was not properly authorised;

c) that the operation was not properly supervised;

d) that the operation was not carried out in good faith, in that there was a "subtle conspiracy" to entrap;

e) that the police taking part in the operation had conspired to commit perjury.

The nature of the proceedings

42. The Crown called all the officers involved in the authorisation and management of the operation, from a very junior level to the Chief Constable. One witness gave evidence over six days. The judge had an unparalleled opportunity of assessing the credibility of the police witnesses. The abuse of process application depended on raising doubts as to that credibility at every level. Insofar as it related to authorisation and management of the operation, the defence allegation was that there was some "subtle conspiracy". Of this the judge said (33B-C):

"It is, frankly, inconceivable, given the input to this operation that an unjustifiable operation was simply rubber-stamped for some undisclosed and dishonest motive."

At 32F-G he said:

"In short, I am satisfied that in matters of authorisation and renewal, officers at all levels were acting ethically and with integrity, having regard to the somewhat inadequate guidelines which applied at the time."

At 136C-E he said:

"Thirdly, for reasons that are already outlined, senior officers sought to live within the spirit of the guidelines which were themselves ill-adapted for governing this particular sort of operation and errors which took place were in effect, errors of form rather than substance."

As to the operations in the field, the judge found (at page 70A-B):

"In this case I have come to the view that there is no instance of a test purchase officer concocting a conversation or deliberately lying about its contents."

43. The judge's findings, in the order in which they appear in his judgment were:

"In truth, there were no guidelines tailor-made to apply to this sort of test purchase operation. Notwithstanding this, I am quite satisfied that the senior officers in charge of this operation sought to apply the spirit of these guidelines, insofar as they sought to protect citizens from unwarranted intrusion." (12C)

"I am quite satisfied that the seeking of authority for the use of test purchase officers in this case was properly launched and granted. ... I am quite satisfied, largely on the evidence of Detective Sergeant Davis, that in fact and in truth, this was a justifiable operation, properly authorised." (24G - 25A)

"Meanwhile, in the normal way, applications were made to the Chief Constable's authority for the use of covert video and audio recording equipment. Authority was granted by the Chief Constable on 25^th January 1999. The Chief Constable gave evidence that he only authorised the use of such equipment having satisfied himself of four criteria: that the offences being investigated were serious; other methods had been tried and failed and/or there were reasonable grounds to believe that they would not be successful; that evidence garnered would assist in the arrest and conviction of suspects and the use of such equipment was technically feasible. ... In short, once again, I am quite satisfied that the use of covert equipment, extending to covert audio and video equipment, was properly authorised and considered ... insofar as it related to individuals." (25E-26A, and 27F)

a) The judge was impressed by evidence of officers of great seniority and experience showing a determination to scrutinise the application with the greatest care and to play it by the book. (28B).

b) The judge was critical of a sentence in the operational objectives stating that:

"It is unlikely the operations as planned will lead to collateral intrusion."

By the time that statement was made, it was clear that the operation would lead to such collateral intrusion, for if deals were to be done in other people's homes, it was likely that partners and families might be present, or innocent visitors. However, the judge was satisfied that the police were only too aware of the potentially intrusive effect of an undercover operation, and the judge found this to be an error of form rather than of substance. (30D - 31E)

"Again, I am satisfied the operation was properly reviewed and renewed. In short, I am satisfied that in matters of authorisation and renewal, officers at all levels were acting ethically and with integrity having regard to the somewhat inadequate guidelines which applied at the time. I would add further, for the sake of completeness at this stage, that as well as the other officers I have mentioned, other senior officers were consulted in relation to the feasibility of this operation and gave their support to it [and those officers are then listed] .... All of these officers were very familiar with the area because of past service and experience." (32F-33B)

"Of course, the Crown concede that a violation of Article 8 of the European Convention on Human Rights has occurred, since the operation itself was not statutorily based. ... I shall bear in mind that the evidence obtained by the test purchase officers was, in that sense, obtained unlawfully which, in my judgment, is a factor, not a determining factor, in deciding whether the evidence obtained is admissible." (33C-E)

"Having thus, by way of background and introduction, set out the procedures for the authorisation and renewal of the operation as a whole, I shall in a moment return to the law and review it so as to set out in my judgment the framework with which I have to determine the nub of this voire dire; namely, the admissibility of the evidence of the test purchase officers themselves, having regard to the tactical management of the operations and the things said and done by test purchase officers."

c) First, the judge considered "... a considerable shift in tactics ...". This was when the test purchase officers instead of purchasing stolen goods themselves, were purporting to sell stolen goods in exchange for drugs. The judge concluded:

"This seems to me to have been a purely tactical decision. It does not seem to me to have been a matter which needs to be separately and specifically authorised. It is, of course, a matter highly relevant to my decisions as to whether specific evidence should be excluded, but I make it clear that, in my judgment, the provision of apparently stolen goods as payment for drugs by undercover police officers is not, per se, objectionable, either ethically or in terms of the operation which had been authorised. ... The issue in relation to this change of tack ... is whether, in fact in relation to the individual concerned the proffering of stolen goods amount to an inducement to commit a crime which he or see would not otherwise have committed. In other words, I must assess very carefully whether there is evidence that, having regard to a particular individual, the proffering of stolen goods was what tipped the balance and turned a user into a supplier or whether it amounts simply to the provision of opportunity to commit a particular crime which the individual freely accepts." (34D - 35C)

d) Secondly, the judge dealt with the point where

"... a test purchase officer may suddenly and unexpectedly be led down a path quite different from that anticipated and in order to preserve his or her cover, no immediate objection may be made. This in turn will inevitably lead into intrusion in someone's life which has not been specifically authorised; in particular, with the covert equipment, if any, being worn by the test purchase officer. Even if it could not be practical to seek authority for the first intrusion ... should the test purchase officer return to base and seek authorisation?" (35D - G)

The judge set out the pros and cons of the argument and concluded that the duty was restricted to:

"... informing officers in tactical control of the events and to obtain authority to proceed further." (36E)

e) Thirdly, permission for the use of equipment in such circumstances. The Chief Constable had expressed the view that it would have been necessary to return to base and seek authorisation for it before proceeding further. The court concluded:

"That being so, I proceed in this voire dire on the basis that on occasions, covert equipment was used without proper authorisation. Once again, however, I do not take the view that any evidence thus obtained is per se inadmissible. It is simply a factor that I shall take into account when it comes to the individual concerned. In other words, I shall carefully consider the quality of the particular intrusion and consider whether, in the particular case, the lack of authority contributes to contributes to the possibility that a fair trial of the individual would not be possible, or to admit evidence would have no adverse effect on the fairness of the proceedings. I stress, however, that in my judgment, this lack of authority did not arise out of any deviousness or dishonesty on the part of the officer, but rather from a failure to think this particular issue through." (37A - D)

f) The judge then dealt with certain general criticisms of the operation and the records kept. First there was no separate note of the briefings and debriefings of test purchase officers on each day of the operation. He concluded:

"In my judgment, this was not done to conceal anything. The operation remains to be judged on what actually took place on the ground, the vast bulk of which was recorded, thus providing an independent record. Secondly, criticism is made of the fact that test purchase officers were provided with mobile 'phones which were 'pay as you go 'phones'. No records were kept of who used which 'phone to telephone suspects and because at the time Detective Sergeant Davis did not think itemised billing could be obtained for such 'phones - which I accept - no efforts were made to retrieve information which could corroborate the test purchase officers about the use of some of the 'phones until it was too late. No independent record of the use of the 'phones exists, certainly in relation to Collette Claydon, against a background where, for instance, on her behalf it was asserted she was bombarded with and harassed by continual calls. This could have been a serious problem, but in the event I find that all calls were, in fact, accurately recorded in test purchase officers notebooks and the frequency of calls did not amount to improper pressure or harassment, having regard to the particular facts which confronted the test purchase officers at that time. Finally, the criticism is made that because tape recorded conversations were not reviewed daily, it is impossible now to recall whether test purchase officers relayed particular information back to the management team which is not contained in their notebooks, which are of themselves, by necessity, very brief accounts of the days events. Again, in the vast bulk of events, the test purchase officers can be judged on the independent record. I accept from Bob and Alex, two special operations unit officers, their evidence in general terms that the test purchase officers acted with integrity." (41G - 43A)

g) The judge then accepted that there had been isolated breaches of guidelines in instances of the authorisation and use of covert equipment, which he had already indicated he would take into account. He referred to the evidence of alleged entrapment. He accurately summarised the law in saying that it was not a defence, but the court had a discretion to exclude it if unfair. He made it clear that he would consider whether each person was entrapped, as defined by the Lord Chief Justice in the case of Nottingham City Council -v- Amin. There he dealt with the necessity of looking at the credibility of the test purchase officer's evidence as a whole.

"Where there is a recording, does it tally with the notes made? Do the recorded conversations lend weight and support to the test purchase officer's account of the unrecorded event, or do they contradict it? In this case, I have come to the view that there is no instance of a test purchase officer conducting a conversation or deliberately lying about its contents. There is sufficient recording material to make that clear, in my judgment, but seeing, as I have, a number of discrepancies between recorded conversations and notes made by test purchase officers of such conversations, I am equally clear that, in many cases, the notes alone are not a reliable guide of what was said because of the omission of certain things said and changes of emphasis. I make it clear that this is a difficulty caused by the wholly undesirable frailties of human recollection, rather than any deliberate attempt to distort the evidence. I wholly reject suggestions that have been made that there is a clear pattern to the failure to record in this case, that is has been devised to conceal the reality of the test purchase officers from this court." (69G - 70E)

44. In the event, the attack on the credibility of the police failed totally. The overarching issue was one of fairness, and the arbiter of fairness was the judge in the exercise of his discretion. That creates a mountain for the applicants to climb. As Roch LJ said in R -v- Looseley (unreported 13^th April 2000, paragraph 33):

"It will, in our judgment, be a rare case where this Court, who have not heard the undercover office give evidence, nor listened to the tapes ... nor heard the accused, if the accused had chosen to give evidence, will depart from the findings of fact made by the trial judge following a voire dire or the trial judge's conclusions based upon his findings of fact."

45. As to authorisation and the use surveillance equipment, the prosecution accepts that in so far as there were interferences with defendants' rights to privacy under Article 8 of the European Convention on Human rights, there was a breach of the Article. The reason for that lay with the legislature and perhaps the executive: for there was no legislation authorising such interference - the Home Office and ACPO Guidelines had no statutory authority. The hearing fell in the period before Part III of the Police Act, 1997 came into operation. This does not have the effect that the evidence is to be automatically excluded. The breaches of Article 8 of the Convention are to be taken into account under section 78 of the Police and Civil Evidence Act which in this respect runs in harness with Article 6. We refer to R. v Khan [1997] AC 558 and Khan v United Kingdom, ECHR, application number 35394/97, 12 May 2000. The judge rightly stated at page 33D of the transcript:

"I shall bear in mind that the evidence obtained by the test purchase officers was, in that sense, obtained unlawfully which, in my judgment, is a factor, not a determining factor, in deciding whether the evidence so obtained is admissible."

46. The position if there were breaches of the non-statutory guidelines which applied in the present case is similar. As the judge rightly concluded, such breaches were to be taken into account under section 78.
47. The general point that was advanced that the operation had not been properly authorised under the ACPO (Association of Chief Police Officers) Guidelines of 1996 as adapted by the Essex force and under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations of 1984. The judge concluded at page 25A of the transcript that Operation Padstow was a justifiable operation properly authorised. Having considered his reasons and the material to which we were taken by Miss Jill Evans (who appeared for Collette Claydon), we agree with that conclusion. We also agree with his conclusion at page 27F that the use of covert equipment was properly authorised and considered. The judge found that the authorisation and the carrying out of operation Padstow were performed in good faith in a situation of some difficulty regarding the application and interpretation of the guidelines. That was important, and we have no reason to question his conclusion.
48. We do not consider that the judge's approach on this aspect of the applications is to be faulted.

Entrapment - the law

49. The law relating to situations of entrapment such as may exist where a covert test purchase officer purchases drugs is comprehensively stated in the judgment of Lord Bingham CJ in Nottingham City Council v Amin [2000] 1 Cr. App. R. 426 at 430:

"In their approach to this case the parties have found significant common ground. It is, first, common ground between them that entrapment is not a defence to a criminal charge in England and Wales. The authority for that is the well-known decision of the House of Lords in R v Sang (1979) 69 Cr.App.R. 282, [1980] A.C.402, [1979] 2 AER. 1222, HL. It is furthermore, however, common ground that the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow evidence to be given on which the prosecution proposes to rely 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. It is plain from that provision that, in exercising its discretion, the court has to make a judgment whether the admission of the evidence would render the trial unfair. If the court concludes that the admission of the evidence will render the trial unfair, it will exclude it. If it concludes that it will not have that adverse effect, then it is likely to allow the evidence to be admitted. If the case is near the borderline then the court has to exercise a judgment, taking account of all the relevant circumstances of the case. Although at the time when R v Sang was decided section 78 of the 1984 Act had not been passed, it is important to note nevertheless that all members of the House of Lords, as one would expect, accepted that a trial judge is empowered to rule against the admission of evidence if the effect of admitting it would be to render a trial unfair.

Our attention has been crucially drawn to Article 6 of the European Convention on Human rights. It is unnecessary in my judgment to cite the terms of that familiar article. It directed to ensuring that a defendant has the benefit of a fair trial and the European Court has on more than one occasion emphasised that it is the fairness of the whole proceedings which must be looked at and not the fairness of any subordinate procedure in isolation.

There have been a series of cases in this country where the commission of a crime has involved the participation not only of the party charged as a defendant but also of the person acting in a law enforcement role. Such a situation can give rise to difficult questions concerning the reception of evidence, in particular questions as to whether it would be fair or unfair to the defendant if such evidence were admitted. It seems to me that the Court has adopted a fairly consistent line. 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 and 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."

50. Lord Bingham continued his judgment with a review of a number of judgments of the European Court of Human Rights ending with Teixeira de Castro v Portugal (1998) 28 E.H.R.R.101. We have also considered those cases. It does not seem to us that they require any modification to the law derived from the English authorities and we do not understand that Lord Bingham did either.
51. We should also set out the well-known passage from Smurthwaite and Gill (1994) 98 Cr. App. R 437 at 440 Lord Taylor CJ listed a number of factors which the court might take into account under section 78 in connection with an undercover operation:

"Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence which he would not otherwise have committed? What was the nature of any entrapment? Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence? How active or passive was the officer's role in obtaining the evidence? Is there an unassailable record of what occurred, or is it strongly corroborated?"

52. There were some occasions here when recording equipment was not used. We will need to revert to this in considering the position of the relevant individuals.
53. In Looseley, unreported, 13 April 2000, the Court was concerned with another under-cover drugs operation. Roch LJ stated the law and then went on to consider the role of this Court where it is sought to challenge a trial judge's ruling under section 78. He said:

"In our judgment the law is clear, and the law is consistent with the European Convention of Human Rights and the judgment of the European Court of Human Rights, namely that if an accused person's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by law enforcement officer, than the evidence of that law enforcement officer should be excluded by the trial judge exercising his power under section 78 of the 1984 Act. In many cases were such a ruling to be made the case against the accused would not be able to proceed further. On the other hand, if the law enforcement officer has done no more than give an accused the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else, then there is no reason why the officer's evidence should be excluded and the accused's trial should proceed with that evidence being admitted. No doubt there will be cases, of which this was one, where such a ruling will lead to a change of plea.

On which side of that line evidence of a law enforcement officer will fall is primarily a question of fact for the trial judge to decide when making his ruling. It is of significance that in the Teixeira case in the judgment of the European Court at paragraph 34 this appears:

'The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.'

It has, of course, to be remembered that in making a ruling under section 78 of the Police and Criminal Evidence Act 1984, it is part of the court's duty to consider whether the evidence should be excluded because the admission of the evidence would have such an adverse effect on the fairness of the proceedings, and one of the matters of which the court has to take account in resolving that issue is the circumstances in which the evidence was obtained.

It will, in our judgment, be a rare case where this Court, who have not heard the undercover officer give evidence nor listened to the tapes, if there are tapes, nor heard the accused, if the accused had chosen to give evidence, will depart from the findings of fact made by the trial judge following a voire dire of the trial judge's conclusions based upon his findings of fact."

54. And the judge fairly concluded that:

"If I find entrapment, I shall exclude the evidence. In other words, I shall adopt an approach which is largely favourable to the defendants."

55. Again, we see nothing wrong with the judge's approach. Accordingly, we will take the cases advanced on behalf of the four remaining applicants in the order in which they appear on the indictment.

Roy French

56. Roy French was one of the named targets of the operation. Contact was quickly made with him by the test purchase officers and he had considerable communications with them. He faced 16 counts on the indictment. One of these, count 40 – incitement to burgle, was not the subject of submissions. Judge Hawkesworth ruled in respect of count 9 that the evidence of test purchase officer Mick was inadmissible because of the reward that he was offering French ('a good handshake'). He ruled that the remainder of the evidence against French was admissible.
57. A summary of the case for French can be taken from Mr Rush's skeleton argument:

"The primary submission of Mr French is that he was entrapped into the commission of the 14 drug offences remaining against him. …. These can be broken down into two discrete areas. Counts 1 and 2 relate to the supply of heroin; here the Applicant submits that he was entrapped into the commission of these offences by the use of sympathy inducing cover stories which caused him to commit offences that he would not otherwise freely have committed. The remaining counts, with the exception of count 8, relate to the supply of amphetamine sulphate to Test Purchase Officer Mick. Here the Applicant submits that he was induced into the commission of these offences by the offer to supply goods stolen to order in exchange for drugs. Count 8 alleges the supply of cocaine, the argument here being the same although with the added refinement of a link between the supply of cocaine by the applicant with the supply of stolen goods of specific interest to the Applicant."

58. French was the only defendant to give evidence on the voire dire, which he did at some length. So the judge had the advantage of seeing him and assessing his character and motivation. He said of French, at page 71F of the transcript:

"... he is a braggart, he is indiscreet, he is proud to be on the fringes of crime and does not mind anyone knowing it, he is extremely sociable and friendly, he is keen to ingratiate himself, especially if there is something in it for himself and, above all, he is keen to help in any way he can, whether it be with legal or illegal activity, provided as I say, he sees something in it for himself. ... He has supplied amphetamine in the past, but not at quite the level he suggests to the test purchase officers. Above all (and over all) he is a keen and enthusiastic salesman."

59. Count 1 involved the supply of a wrap of heroin to test purchase officer Holly on 30 January 1999. Count 2 alleged that French was concerned with Ashley Hall in an offer to supply heroin to Holly. Holly was one of the undercover occupants of the empty house on the estate, which the officers were using. Kate was another. Kate was posing as a heroin user who was suffering withdrawal and badly needed heroin. French had seen her in the house lying on a mattress on the floor.
60. At page 80D of the transcript there is a passage which suggests that the judge was looking at the test for entrapment on the basis of the propriety of the officers' conduct, rather than asking whether the effect of that conduct was to cause French to commit an offence which he would not otherwise have committed. If that is the right reading, then the wrong test was posed at that point of the ruling. For, whether or not Kate and Holly's cover required Kate to pose as an addict in great need, if the result was entrapment, the evidence should not be admitted. But in a passage which followed shortly the judge answered the right question in terms which we find conclusive of this part of the application. He stated at page 80F:

"In effect, it is suggested by Kate's pose as an addict, Kate and Holy were acting as agent provocateur. I do not agree. Mr French demonstrates by his own actions, actions he freely takes having offered to help with alacrity and by his persistence and by his expressed knowledge of the drug scene, that he is freely willing to help.

I am quite satisfied that these two offences, so far as they relate to French, were not brought about by any unfair or improper activity. He was given an opportunity, namely to help a fellow drug user in difficulty, and freely availed himself of the opportunity."

61. The further reference in the second paragraph to unfair or improper activity does not detract from the finding that French acted freely and offered to help with alacrity. The same point is to be made in respect of a similar passage at 81D.
62. The amphetamine counts raise the question of stolen goods offered by test purchase officer Mick in exchange. In respect of two other defendants, Glen Sainsbury and Christina Hermitage, the Crown offered no evidence after the judge had raised his concern that they had been entrapped by the an offer of stolen goods. In the general part of his ruling, at page 60, the judge referred to undercover officers offering to buy drugs with stolen goods. He there made a distinction between offering an offer simply of stolen goods and an offer to steal goods to order by a professional gang. In the latter case he thought that it would be difficult to say that there was not entrapment.
63. Before he came to relate the dealings between Mick and French which relate to the amphetamine counts the judge stated, at page 83:

"What did follow is characterised by the same eagerness on the part of Mr French to assist in any way he can and by his readiness to act with alacrity, to provide help and support to persons he believed were thieves, who could provide some things he wanted, some of whom, at least, were attached to a drug which he purported to dislike.

I derive the strong impression that if French believed there was something in it for him, whether gaining status or contacts within the criminal fraternity or direct financial benefit or even a relationship with a female test purchase officer, he was prepared to go along with things and would have done so whatever the real characteristics of those approaching him were.

The fact that the test purchase officers had access to the sort of goods he might be interested in was less important to him than, for instance, it was to Glen Sainsbury and Christina Hermitage. There is clear evidence on the face of the transaction which followed that he was prepared to help out supplying drugs, either by obtaining from people that he knew or at least putting the test purchase officers in contact with drug suppliers, irrespective of the volume or quantity of goods that he could obtain from the test purchase officers."

64. The judge concluded that in French's case the offer of goods, blank tapes for the recording of pornographic films, did not amount to an entrapment. For French was willing to supply the drugs without the offer: he was a man waiting for the opportunity. We consider that this was a conclusion which the judge was fully entitled to reach on the evidence which he had heard. We should not interfere with it.
65. Mr Rush raised the point in connection with these charges that on 9 February there was a conversation between Holly and French which was not recorded. There was no apparent reason why it should not have been. We bear in mind that in Smurthwaite and Gill one of the factors mentioned is the need for an unassailable record. Mr Rush submitted that at this meeting Holly put improper pressure on French by telling him that Mick ran a gang of shoplifters stealing to order. The judge rejected this. It would be difficult for us to interfere with that holding. But in any event it seems to us that what is more important is what happened when Mick and French discussed between themselves what might be done. The judge made a full analysis of that, and reached the conclusion we have mentioned.
66. That leaves count 8, supply of 470 mgs. of cocaine to Mick on 13 February 1999. The judge reviewed the evidence and concluded at page 93F:

"In short, Mr French's conduct is consistent with a pre-existing willingness to supply cocaine and is driven by his own greed and self-interest rather than the actions of the test purchase officers."

67. We have no reason to interfere with that conclusion, and should not do so.

Ashley Hall

68. Ashley Hall was not an original target of the operation. He is involved in three counts, 2, 3 and 39. Count 2 alleges that he was concerned with Roy French in an offer to supply heroin to test officer Holly on 1 February 1999. Count 3 alleges that he was concerned with Collette Claydon in an offer to supply heroin to test purchase officers Holy and Kate between 2 and 14 February. Count 39 alleges possession of a small quantity of heroin on 12 March 1999, and is not the subject of any application.
69. Because Hall was not one of the original targets of Padstow, a question arose whether authorisations were required in respect of him once he became a target. The police witnesses had different views on the point. The Chief Constable thought yes, and the others no. The judge's view was that, where contact with a target – here French, led to contact with another individual who then became a target, it was enough to inform the officers who were in tactical control of the operation and to obtain permission from them to succeed. The guidelines were silent. It is therefore our tentative view that, as the operation had been authorised in a general form, there was no need for further authorisation where persons not originally to be targeted were unexpectedly drawn in. But the real point is the effect on the fairness of the proceedings for the purpose of section 78. We consider that, even if it is the better view that a further authorisation was required, the lack of it can carry no real weight in the particular circumstances here.
70. On 29 or 30 January French took Holly to Mr Ashley's home, but he was out. On 1 February French took Holly there again with Kate. There was a discussion. As a result Hall made telephone calls in an attempt to locate heroin, including one to Collette Claydon who was not in. This was the basis of count 1.
71. On 3 February Holly and Kate went to Hall's house. He gave them Collette Claydon's telephone number as that of a potential supplier of heroin. On 4 February there was a conversation between Collette Claydon and Kate in which Collette mentioned the possibility of using Hall as a runner. The judge referred to this as potentially admissible evidence against Hall. We deduce that he meant that it would be open to the jury to conclude that she and he were working together.
72. On 9 February Holly met Hall in the street while she was on the way to his house. There was a conversation which was not recorded. It was not known why Holly was not wearing recording equipment on this occasion. The substance of the conversation was a matter of dispute. The judge dealt with it on the basis that, if what Hall said was said was said, it did not amount to improper pressure: page 112G. What Hall alleged was that Holly asked Hall to get heroin for her, that is, as we understand, for Holly, that she told him Kate was manic, and that she told him that she, Holly, was a thief. It appears undisputed that during the conversation Hall offered to get some heroin for Kate.
73. On 11 February Holly and Kate visited Hall again. Again there was no recording, this time because the device was not working properly. There was a discussion about Collette Claydon and a reference to Hall running for her. But it was unclear whether he was prepared to do so. They had some supposedly stolen tee shirts which he offered to buy for cash. He offered to get some heroin for Kate on Saturday.
74. On 13 February there was a telephone conversation which was recorded. It was consistent with what had gone before. Later he bought two tee shirts for cash, declining to provide heroin for them.
75. That concluded Hall's involvement with the test purchase officers. The events which we have summarised form the basis of count 3.
76. The judge concluded in respect of Hall, at page 115G of the transcript:

"In my judgment, it is perfectly clear throughout that Ashley Hall was not wheedled or pressurised into assistance. This was something he would have done for someone he had become acquainted with. The failures to record in his case were either justified or took place on occasions when I am satisfied that the test purchase officers have accurately noted the gist of what occurred, having regard to the material that was recorded, a phone number that was indubitably handed over and the lack of challenge.

The situation that Hall was confronted with, an addict in need, was in no sense an improper posture by the test purchase officers and I can find no reason for concluding that a fair trial of Ashley Hall would not be possible or that to admit the evidence against him would have an adverse effect on the fairness of the proceedings.

The decision to persist against Ashley Hall after the obtaining of the phone number was plainly set in motion by Collette Claydon's comments in the phone call on 4^th February and was not such an unjustified extension of the operation, although the chief constable's views on specific authorisation were not sought, as to justify a stay. I accordingly rule the evidence admissible."

77. We have questioned whether the evidence on and after 9 February concerning conversations with Hall should be excluded. Hall alleged that during the unrecorded conversation on 9 February Holly told him that Kate was manic. In the context that can only have meant that she was desperate for heroin. The importance of an unassailable record in such a context is rightly emphasised in Smurthwaite and Gill. The question is not whether, if Holly did say that, it was in some way improper: it is whether by that appeal, proper or not, Hall was pressurised into committing an offence which he would not otherwise have committed. In our view the answer is to be found in what had gone before. We see no reason for criticising the judge's conclusion in respect of the events which found count one, nor of the conversation with Hall on 3 February. Hall showed there that he was willing to be involved in the supply of heroin. The words we have cited from Looseley are apt: '… the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else'. If Hall was already freely willing to supply, the fact that he was later subjected to further inducements, is immaterial.

Marina Costall

78. Marina Costall was at this time living at 60, Brick Kiln Lane with Trevor Greer, who abandoned his appeal before it was called on. She is charged with three counts of supply of Class A and B drugs. Holly met her on three occasions. First, on 8th May, when she went to No 60 and met Greer and Costall for the first time. The meeting was fully recorded: according to Holly, Greer and Costall were both smoking heroin (though she conceded she did not "directly see" this). There was a "cheerful exchange". On a second recorded visit on 11th March, Holly ascertains the price of amphetamines she has been asking for. Christina Hermitage gave the price, and told her to go and collect them. When she got to No 60, Marina Costall was alone, and handed over both the amphetamine and 180mgs of heroin. In an exchange of pleasantries, they each said what a pleasure it was to do business with the other. Marina was brief and matter of fact. The occasions when the drugs were handed over were recorded. The basic facts are not denied.
79. As the judge's summary of Costall's involvement makes clear, no direct pressure was put on her to help the drug dealing in any way. But the defence argue that indirect pressure was put on her by Glen Sainsbury and Christina Hermitage. But there is no evidence of this, and Marina Costall chose not to give evidence herself. All the crucial moments of the handover of the drugs were recorded.
80. The judge noted that there was no express authorisation of intrusion into the accused's life, nor authorisation for the use of recording equipment in relation to her, but he did not find that those matters caused procedural unfairness to her.
81. He accepted for the purposes of the submission that the evidence against Greer and Costall was obtained indirectly because of "improper actions" towards Glen Sainsbury and Christina Hermitage, but again emphasised the complete absence of "... wheedling or instigation ..." by the test purchase officers. Dealing with collateral intrusion, he concluded:

"In the absence of any evidence from her at the voire dire, I have to look with great care at what she said and did during the various exchanges. If, for instance, I took the view that she had been pressurised to act I the way she had by Trevor Greer, then I would find that [the] actual intrusion that took place would have had, unconsidered as it was, a significant impact which could lead me to the view that it would be unfair for the evidence to be adduced against Marina Costall.

Try as I might, I cannot find any indication of reluctance, hesitation, anger or concern on the part of Marina Costall at having been assigned this role by her partner. In such circumstances, therefore, whilst I note the invasion of privacy with unauthorised equipment and the collateral intrusion on Marina Costall, it does not lead me to the view that a fair trial would not be possible, nor that it would it might be the case that to admit the evidence would have an adverse effect on the fairness of the proceedings against her. Accordingly, I rule the evidence in relation to Trevor Greer and Marina Costall admissible on the counts that I have indicated."

82. Lastly, counsel complains that Marina Costall would be handicapped by not being able to cross-examine Glen Sainsbury and Christina Hermitage. The judge had indicated that he was concerned as to the counts following the introduction of the stolen goods to these two defendants, on the basis that there had been entrapment of both. The judge rejected this. It was his view that the absence of those two witnesses would assist and not handicap the defendant, who might well have to call them herself to get them into the witness box. That was plainly a make-weight application.

Collette Claydon

83. Collette Claydon is the sister of Vincent Claydon, who more than any other person was the reason for this operation being set up. The police had a mass of information as to her selling heroin from her home address before the operation began.
84. She is only concerned with two counts - Count 3 (with Ashley Hall: an offer to supply a Class A drug) and Count 15 (possession only of heroin, relating to the day of her arrest).
85. The background to the first count against her is Holly's search for heroin on behalf of Kate. On 1st February Holly approached French (unobjectionably, as the judge found), and later Hall telephoned Claydon, telling French and Holly that he has been asked to ring back later.
86. Then were there telephone conversations with her on 3rd, 4th, 5th and 6th February. Claydon never said no, but said she was awaiting supplies. She talked of Ashley Hall being the intermediary. She checked with Holly was that is not "the Old Bill". Kate got more insistent, Claydon is audibly in a bad way while awaiting the drugs. Subsequent meetings between Ashley Hall, Kate and Holly secured a further promises from Hall to help. On 11th February he told the test purchase officers that Claydon is not happy about being telephoned, but he will do the running. In the event, he does not, and that is the end of the matter.
87. The judge correctly asked himself whether Kate's persistence in telephoning was "wheedling" amounting to entrapment. He found not:

"My answer to these questions is a simple negative. The vital calls are recorded. Although Collette is audibly in a bad state, enough is said to satisfy me that she is not making an offer simply to get rid of Kate. She is prepared to help if she obtains a supply. Putting colloquially, she is prepared to help if she gets it together.

The fact that she does not and Hall does not succeed in running for her, does not lead me to the view that she would not have been prepared to offer to help out, but for improper pressure. At all times, Collette leaves it open and significantly, although according to Ashley Hall whose observation on this would be prima facie admissible against Collette Claydon, Collette is unhappy being phoned, she is still prepared for Hall to act as her runner."

He was entitled so to find, and in our judgment was right to do so.

88. Next, counsel complains that the unauthorised ingenuity of recording Collette's replies by fastening a microphone to the exterior of a mobile 'phone by a rubber band was unfair, as was the choice of a female test purchase officer. Her pretending to be a desperate heroin addict improperly exploited Collette's vulnerability. The judge's response to these points were:

a) there was abundant, specific and convincing evidence against the defendant;

b) the fact that her brother was in prison over the period of the test was no reason not to target her;

c) senior officers sought to live within guidelines ill-adapted for this sort of operation, but the errors were errors of form, rather than substance;

d) the operation against the defendant was fully justified: the test purchase officers wished to investigate the accuracy of the suggestion that she supplied Class A drugs - her answers recorded on the telephone fully supported that contention;

e) that the test purchase officers in the field did not themselves have to check that the information against her was accurate;

f) that the microphone attached to the mobile 'phone was a recording device, and neither a listening device nor an intercept. In fact it was properly authorised.

The judge concluded:

"I find therefore that [counsel's] arguments on authorisation and management, in so far as they affect Collette Claydon, take the matter no further than the concession already made by the Crown of a violation of Article 8 because the operation was not statutorily based.

As to her arguments on the facts alleging entrapment, I have no doubt that the frequency of Kate's calls irritated Collette Claydon, but from what she herself said, it is plain Collette Claydon laid on Ashley as a runner to obviate the problem. She never said no. She always explicitly left open the possibility of supply to Kate, subject to her obtaining necessary supplies. I simply reject any suggestion that her failure to supply in the end is any evidence of unwillingness. That would fly in the face of plain English.

What Operation Padstow revealed in the event is that for whatever reason (and this remains unclear), Collette Claydon was having difficulty obtaining supplies, sufficient to supply others, at the material time. To suggest, however, by a process of hindsight, that this invalidates the operation is simply wrong and it by no means indicates that it was the actions of the test purchase officers which pressurised her to try and keep her markets open in times of difficulty. That I find (and I am sure about) was something she was prepare[d] to do to anyone who approached her. Accordingly, I rule this evidence admissible against her."

The judge was entitled to make those findings and reach those conclusions, and was right to do so.

Conclusions

89. We conclude that each of these applications fails on its merits, and we refuse leave. We would not however have held that the applications for leave were out of time was a bar in itself.
90. We reiterate that it will by the nature of the discretion be "a rare case" where this Court will depart from either the judge's findings of fact or his conclusions based on them. The case for leave must be properly made out. The judge made no error of law, and was entitled to make the findings of fact he made. There was never a real chance of success for these appeals.

The ruling of 24th November 2000

91. After delivery of his main judgment on 2^nd November 2000, the judge was requested to rule on a point of law: namely

"The question raised is as follows; is it permissible to advance by way of defence to the jury in any forthcoming trial of their clients that, firstly, the Crown has conceded during the course of the voire dire that in mounting an operation which was not statutorily based there has been a violation of the rights of their clients, namely a violation of Article 8? Secondly, that in the cases of some defendants, and in particular in the case of Costall, that violation has been aggravated, as I found in the voire dire, by a failure to consider collateral intrusion in her case and failure to obtain authorisation for the use of covert equipment in possible breach of the Home Office guidelines (I would add, by way of parentheses, that in the case of Collette Claydon I did not find any violation of Article 8 beyond the concession by the Crown) and, thirdly, that arguable entrapment has occurred by test purchase officers.

In short, both Mr Bailey and Miss Evans are in effect seeking this court's sanction to reopen the issues aired before me in the voire dire with a jury in any forthcoming trial. In essence they assert that a jury could, if it was so minded, acquit their clients on the basis that, in effect, the whole trial process was unfair because it resulted from an operation which involved breach of their right to privacy. They assert that the fact that the Human Rights Act has now force of law, and has done since 2^nd October of this year, has made a difference to the position that would have existed prior to its implementation."

92. The judge refused the application. As his judgment makes clear, he was following (and was bound by) the cases of Khan -v- UK, Amin, Looseley and the entrapment cases in what was a detailed and closely reasoned exercise in ensuring that the trial process was fair. If there were doubts, then the evidence was excluded. He made the point that he was

"... following a procedure entirely familiar since the introduction of the Police and Criminal Evidence Act, 1984, and in certain limited respects for centuries as part of the common law."

93. As Khan demonstrated, questions of admissibility of evidence are a matter generally left to national law and it was only in exceptional cases that the European Court would interfere provided the domestic procedures were properly followed and worked. Section 78 was enacted with the European Convention in mind, and was properly put into practice by the trial judge. He, and not the jury, is entrusted with the task of preserving the fairness of the trial by the judicial exercise of his discretion.
94. To assert against this background that general questions of overall fairness and of entrapment are for the jury is unsupported by any authority and is plainly wrong. That is not to say that in proper cases specific breach of, say, the Police and Criminal Evidence Act Codes, cannot be relevant to the credibility of the police officer or to the guilt or innocence of the accused: such evidence may then be admissible. The judge dealt appropriately with the United Kingdom's failure to have in place in time the statutory basis for all surveillance could be relevant to cases of entrapment or the like. It follows that the judge was right to rule that it was not permissible to leave to the jury for their consideration as a defence that the operation was in breach of Article 8, or that that breach was arguably in breach of the guidelines, or that the accused were arguably entrapped. This ground of appeal also fails.