IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON A reference by the Criminal cases Review Commission
Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE TOMLINSON
and
SIR HUMPHREY POTTS
____________________
R v Isidore Jack LYONS Anthony Keith PARNES Gerald Maurice RONSON Ernest Walter SAUNDERS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
M/s Clare Montgomery QC & Mr Julian Knowles (instructed by Peters & Peters) appeared for Parnes
Mr Nicholas Purnell QC & Mr Alex Cameron (instructed by Mishcon de Reya) appeared for Ronson
The Hon Michael Beloff QC, & Mr Murray Hunt (instructed by DJ Freeman) appeared for Saunders
Mr V B A Temple QC & Mr James Eadie (instructed by the SFO) appeared for the Crown
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
The Vice President :
This is the judgment of the court, to which all have contributed.
Heron (counts 1,3,4,5, 6 and 7)
Consultations et Investissements S.A. (C&I) (counts 9 and 10)
The Margulies Companies (counts 11,12 and 13)
We now turn to those counts which concern the appellant Lyons.
Z Bank (counts 14,15 and 16)
Konsultat (counts 19 and 20)
Count 21
M.A.C (counts 22 and 23)
The MAC invoice formed the basis of count 22 (false accounting) and the payment the basis of count 23 (theft).
“(3) An inspector may examine on oath the officers and agents of the company or other body corporate, and any such person as is mentioned in subsection (2), in relation to the affairs of the company or other body, and may administer an oath accordingly….
(5) An answer given by a person to a question put to him in exercise of powers conferred by this section (whether as it has effect in relation to an investigation under any of sections 431 to 433, or as applied by any other section in this Part) may be used in evidence against him. ”
By virtue of s436(2) and (3) a refusal to answer questions by an inspector can be punished as contempt of court. Saunders was arrested on May 6, 1987, at that stage solely on a charge of destroying documents. Lyons was arrested on October 8, 1987, Ronson on October13 1987 and Parnes on March 24, 1988, after returning from California.
The interviews conducted by the DTI inspectors with each of the appellants were admitted in evidence, despite objection, and formed a significant part of the prosecution case. The prosecution spent 3 days reading the interviews to the jury, Saunders was cross examined about them and the judge, in his summing-up, made many references to their potential importance.
The defence cases
“The test which this court is required to apply is to approach the issue in the round. In doing so it can only apply the standards which this court adopts today. No one can be criticised for applying standards which were current at the time of any trial. If, however, as a consequence of doing that the trial is properly regarded by this court as unsafe, this court must intervene.”
There is also the highest authority for the proposition that a trial which is unfair by reference to Article 6 will generally result in a conviction which is unsafe. In Togher [2001] 1 Cr App R 457 Lord Woolf CJ said at 467 paragraph 30
“If a defendant has not had a fair trial and as a result injustice has occurred, it would be extremely unsatisfactory if the powers of this court were not wide enough to rectify that injustice. If, contrary to our expectations, that has not previously been the position, then it seems to us that this is a defect in our procedures which is now capable of rectification under s3 of the Human Rights Act…..We would expect…that the approach of this court applying the test of lack of safety would produce the same result as the approach of the European Court of Human Rights applying the test of lack of fairness. We would suggest that, even if there was previously a difference of approach, since the 1998 Act came into force the circumstances in which there will be room for a different result before this court and before the European Court of Human Rights because of unfairness based on the respective tests we employ will be rare indeed.”
That passage was approved by Lord Bingham in Forbes [2001] 2 WLR 1 giving the unanimous opinion of the committee at 13G. Those passages of course reflect the position since the implementation of the HRA.
“If the court were to rule here that this evidence should be excluded it would be obliged to exclude such evidence in all such cases. That would amount to a repeal or a substantial repeal of an English statutory provision which remains in force in deference to a ruling which does not have direct effect and which as a matter of strict law is irrelevant. It is significant that this issue has already been before this court when Mr Saunders challenged the admission of this material in the Court of Appeal before his application in Strasbourg. In giving the judgment of this court in Saunders [1996] 1 Cr App R 463 Lord Taylor CJ at page 475A noted Mr Saunders’ acceptance that by the relevant statutory provisions:
“Parliament has in this context overridden the principle against self-incrimination”
At page 477G he continued:
“However that may be, English courts can have recourse to the European Convention on Human Rights and decisions thereon by the European Court of Justice only when the law of England is ambiguous or unclear. Saunders has taken his case to Europe on this issue and the European Convention on Human Rights has referred it the European Court in Strasbourg. Should Saunders succeed there our treaty obligations will require consideration to be given to the affect of the decision here. But our duty at present is to apply our domestic law which is unambiguous. Parliament has made its intentions quite clear in s434(5). It cannot be right for a judge to exercise his discretion to exclude evidence of interviews simply on the ground that Parliament ought not to have countenanced the possibility of self-incrimination...In our view the admission in evidence of answers which Parliament have said may be admitted cannot be regarded as unfair per se under s78 simply because of inherent features of the statutory regime under which they were obtained.”
Lord Bingham went on to consider Khan [1996] 2 Cr App R 440, on which these appellants place reliance in relation to the exercise of discretion under s78. As Lord Bingham pointed out, in Khan’s case a breach of Article 6 was not alleged and the argument was about Article 8. At 443C Lord Bingham went on
“The vital distinction, in our view, is that the section here expressly authorises the use of evidence so obtained and that, as we see it, amounts to a statutory presumption that what might otherwise be regarded as unfair is, for this purpose and in this context, to be treated as fair, at any rate in the absence of special features which would make the admission of the evidence unfair. ”
It is to be noted that Staines’ subsequent complaint in Strasbourg was declared inadmissible on 16th May 2000 although the case had proceeded before the CACD on the assumption, unduly favourable to the defendant as it turned out, that Strasbourg might well find a breach of Article 6. We reject the contention that Lord Bingham and the other members of the court in Staines & Morrisey misunderstood the position. They concluded, and we respectfully agree, that unfairness for s78 purposes could not arise merely from the use of compelled answers, because Parliament had expressly permitted such use.
“Whilst engaged at The Serious Fraud Office on 18.5.90 i/c DC Perry of that office I received a phone call from RIDGELY who was updating me on a meeting he had had with Patrick MAGUIRE aka MAGOO the previous evening. The purpose of their meeting was to discuss the current dispute between himself and James WARDEN concerning the profits on the Wine Bar and the sale of some Drugs. The meeting revealed a serious rift between them that may result in violence.
During the meeting MAGUIRE had told RIDGELY that he (MAGUIRE) had a relative, who was a Publican, who was on the Jury in the Guinness Trial at Southwark C.C. and who was open to large money offers in return for his assistance on the Jury. The purpose of mentioning this to RIDGELY was the probability that he would know who to approach with a view to arranging such a “deal”. (This may not be as far from the truth as it may seem).
Realising the seriousness of any such possibility I spoke with DC Perry who is working with Officers on the said Trial: following further contact with RIDGELY and the best questioning of him that the phone allowed the info. Was considered serious enough to contact at once the Officer in the Case, Detective Chief Superintendent Botwright, at the Court. We then together were put in touch with and met with Commander McSTRAVICK at the Holborn Fraud Offices – the information was relayed to him and he in turn appraised Commander PENROSE. At 6pm that evening I informed Det.Insp. NORTH of all that had passed. It was decided that at this stage nothing further could usefully be done and come Monday 21.5.90 further enquiries could usefully be done and come Monday 21.5.90 further enquiries would follow.
The identity of MAGUIRE has been confirmed: he is Paul MAGUIRE DOB 4.8.49 CRO 89340/67 his previous involves armed robbery, burglary and involvement in a Murder Enquiry. He uses the name MAGOO”.
It is to be noted that it is common ground that, on the same day, 18th May 1990, there were widespread media reports of the arrest of a man called Lucas for attempting to blackmail the appellant Ronson for £20 million.
“RIDGELY phoned me this morning and stated that he had an arrangement to see MAGUIRE last night but he failed to show. As soon as further approaches are made I will be told. RIDGELY has been advised to exercise caution and to promise nothing if the subject of GUINNESS comes up again.
He went on to say that C & W have been “buzzing” over the weekend due to a delivery made to them of Cocaine earlier. This may be connected to the phone call RIDGELY overheard last week concerning O’CONNELL? Enquiries continue.”
“RIDGELY contacted me on Sat. 26.5.90 to pass on the following information:
On Friday he had a meeting with MAGUIRE in his (M’s) room above Gladstones Wine Bar – as RIDGELY walked in he saw on the table at ;east 2 kilos of “rock” cocaine which was in the process of being cut. In the room also was WARDEN’s sister, Sally Ann. It is strongly believed that CHRISTIAN would have been MAGUIRE’s supplier. MAGUIRE made some reference to RIDGELY about its presence in his room.
With regards to the Guinness Trial information RIDGELY says that the only reference made to it by MAGUIRE was that the person they had previously mentioned had been “placed”. RIDGELY took this to mean that the Juror had found someone to pay him. I am expecting further contact from RIDGELY to day when hopefully he will be able to tell me more on Sat. he was not well placed to talk.
RIDGELY contacted me again today to add the following to the above:
Whilst in MAGUIRE’s room he saw also a set of scales (kitchen type) and a couple of black credit card type pieces of plastic – he is now not certain that this substance would have come from C & W as he may have his own independent supplier. MAGUIRE is sharing the upstairs of GLADSTONES with LEONARD.”
(1) Michael and Maguire give conflicting accounts of their contact with each other and what passed between them;
(2) Allam and Perry give accounts which conflict with those of Botwright and McStravick; and
(3) in any event, the material does not establish any kind of link between the publican juror and Maguire.
Given this last conclusion, it seems to us unnecessary to investigate in detail the discrepancies in the evidence. We merely observe that, on their accounts, neither Maguire nor Michael had, or knew of anyone who had had, any dealings with the juror. As to the police officers, we accept that Perry and Allam received the information set out in the contact sheets and that that information passed through the Drug Squad to North and Todd. We recognise that Perry, in particular, gave detailed evidence concerning his report to Botwright and McStravick as well as about his contact with senior officers on the evening of 18th May. However, we are satisfied that an officer of Botwright's experience, in charge of the police enquiries in the Guinness case, would, if he had received the information in question, have immediately notified counsel for the Crown, who was in the same building and with whom he was working closely, with a view to the judge being advised. This approach would have been in accordance with general proper practice. In any event, it was not in the interests of Botwright to fail to inform prosecuting counsel that a member of the jury was soliciting bribes from defendants he was seeking to bring to justice. We agree with Miss Montgomery’s submission that it is unlikely that Botwright, had he received the information, would have done nothing. But we regard it as equally unlikely that he would, unilaterally, have taken action which might well have come to the attention of the juror, if not of all the jurors, and which on one view extended to letting the juror know that the police knew what he was up to.
“We would summarise the principles to be derived from this line of cases as follows.
(1) If a judge is shown to have been influenced by actual bias, his decision must be set aside.
(2) Where actual bias has not been established the personal impartiality of the judge is to be presumed.
(3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside.
(4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court.
(5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.
This approach comes close to that in R v Gough [1993] AC 646. The difference is that, when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular tribunal under review was in fact biased.
When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R v Gough, had the truth of the juror’s explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded onlooker would not necessarily find the juror’s explanation credible”.
(1) because of the fear of bias on the part of the juror in the sense defined in Re: Medicaments and
(2) because of the failure on the part of the police to make disclosure of the contact sheets so that the appellants were deprived, at trial, of the opportunity of a proper investigation by the judge and the benefit of a warning by the judge to the jury not to get involved in discussions about money.
THE VICE PRESIDENT: For the reasons given in the judgment handed down, these appeals are dismissed.
For the benefit of those members of the public without the opportunity or inclination to read the full judgment, it amounts to this: the single ground on which the Criminal Cases Review Commission again referred this case to this Court became unarguable because, after the Reference, the House of Lords ruled that the Human Rights Act is not retrospective in a way benefiting the appellants. Without such retrospectivity, the appellants cannot rely on the United Kingdom's obligations in a treaty which was not incorporated into English law until 10 years after their trial.
Nor can they rely on the findings of the European Court of Human Rights made before incorporation that their trial was unfair because of the use of answers they had been compelled to give to the DTI inspectors. Parliament, by whose enactments this Court is bound, specifically permitted the use of such answers at the time of trial. There was and is, in any event, substantial evidence against each appellant, quite apart from their compelled answers.
As to the juror, on the evidence we have heard, no informed, fair-minded person could conclude that the foreman of the jury was tainted by bias or the possibility of bias. If the trial judge had been informed, as he ought to have been, of the material before us, there is no reason to believe that he would or should have discharged the juror or the jury. Accordingly the convictions of these appellants are safe.
THE VICE PRESIDENT: Yes Mr Temple?
MR TEMPLE: On behalf of the respondent, I have an application for costs. In order to assist your Lordships, I have prepared a short note on the statutory provisions and the breakdown of the costs we seek. Perhaps, through your usher I can ask for those to be handed up and copies of course have been distributed to my friends.
This application is under the provisions of section 18(2)(a) of the 1985 Prosecution of Offences Act. The terms are set out. I have no doubt that they are more than familiar to your Lordships and your Lordships will also recollect that the amount is required to be specified in the order. For the sake of completeness, I have also added the principles to be applied where there are multi appellants and the costs are to be divided. I suspect in this instance there will be no difficulty should the application be granted in principle but the costs will simply be divided between the four.
With regard to the computation of costs themselves, your Lordship will see the breakdown.
THE VICE PRESIDENT: Have you got them?
MR TEMPLE: I think Sir Humphrey will be favoured of the three. Your Lordship will see the breakdown; it is entirely self explanatory. It covers counsel and other costs. Your Lordships will also note that some costs have been estimated. May I say, in no uncertain terms, on any view the figure asked for is a very conservative figure. For the sake of the record, that is £235,088.
THE VICE PRESIDENT: You are asking for an order for that sum in relation to all the appellants?
MR TEMPLE: We are my Lord, yes.
MR ELLISON: Mr Temple was kind enough to give us notification of the application at 9.55 am. As a result it has not been possible for any of the appellants to carry out any check or research in relation to the amount claimed. Nobody is suggesting that it is inaccurate. But in accordance with our duty with our clients, it does seem to us that we really must ask for an opportunity to investigate the overall sum. If there is any authority required for that being a fair way of proceeding this Court has, in the past, indicated that the prosecution must give advanced notice and as much advanced notice as is possible in order that that sort of investigation can be carried out.
THE VICE PRESIDENT: I quite see the point at 9.55--
MR ELLISON: Without seeking to persuade your Lordships that there might not be costs clearly to be paid in principle, may we adjourn the apportionment of a particular figure until investigations have taken place between the parties, and on the basis that it will either be presented to the court as an agreed figure, in due course, or that the parties will indicate to the court that a hearing is required.
THE VICE PRESIDENT: Are you speaking on behalf of all the appellants for this purpose?
MR ELLISON: I think so yes, I see the nodding of heads.
THE VICE PRESIDENT: Yes.
MR ELLISON: We have a further application to make.
THE VICE PRESIDENT: Let us deal with costs first. Mr Temple there cannot be any objection to that can there?
MR TEMPLE: None at all, my Lord, no.
THE VICE PRESIDENT: We shall adjourn the question of costs until such time as either there is agreement as to the figure, or it becomes necessary for an adjudication to be made upon it. But as to the principle, there will not appear to be any objection in principle to an order that the appellants pay costs in a sum to be identified in due course.
MR ELLISON: My Lord, we will be applying to the Court to certify a point of law and to grant leave. But due to the availability of leading counsel, we do not apply today for the point to be certified or to be dealt with. Your Lordships will be aware that the 14 day period is capable of being extended at the appellant's request. May I simply ask for the Court's consideration of extending it by seven days, in order that every opportunity can be taken to liaise amongst the appellants, to arrive at draft certified questions which represent all parties' applications, given the period--
THE VICE PRESIDENT: The issues in this case have not been obscure for some time. The judgment was available to counsel two days ago.
MR ELLISON: It was, it was not available due to the availability of those leading to all leading counsel.
THE VICE PRESIDENT: The advantage of having juniors is that often they are extremely diligent and able to present their leaders with proposals.
MR ELLISON: I accept that of course. Nevertheless the practical situation we are in is that one or other leading counsel is out of the jurisdiction for some time from today. We ask the Court whether an extra 7 days could be granted to the 14, otherwise we of course comply with the 14 days.
THE VICE PRESIDENT: When is the one counsel who is leaving the country today, and who presumably had the opportunity of looking at the judgment before he left returning?
MR ELLISON: He left before today and has not seen the judgment but returns on 27th December. I can only make the application.
THE VICE PRESIDENT: We shall not extend the usual period. (Pause).
The Registrar has raised the point that, at the moment, there is no timetable in relation to the costs aspect and clearly there should be a time within which either a figure is agreed or it is not. What do you have to say about that?
MR ELLISON: Would your Lordship allow a month? It depends very much on the information provided of course, the detail and whatever may be discussed between the parties. But realistically it seems to me a month is a realistic figure for that negotiation, if it is negotiation to take place.
THE VICE PRESIDENT: Again the quantum of cost cannot come as a great surprise to those involved in the case but....
MR ELLISON: The quantum came as a surprise at 9.55 am.
THE VICE PRESIDENT: I understand that.
Twenty-one days. Is there anything else? Thank you.