England and Wales Court of Appeal (Criminal Division) Decisions

DEAN RONALD LANGLEY, R v. [2001] EWCA Crim 732 (21st March, 2001)

Case No: 2000/01788/W2

Neutral Citation Number: [2001] EWCA CRIM 732

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL APPEALS) ON APPEAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 21^st March 2001

LORD JUSTICE POTTER:

1. This appeal was heard on 26^th February 2001 when we stated that the appeal was allowed and ordered a re-trial. We indicated that our reasons would be given later. They now follow.

2. On 23^rd February 2000 in the Crown Court at Croydon before HHJ Devonshire and a jury, the appellant was convicted of a single count of wounding with intent to do grievous bodily harm, contrary to s.18 of the Offences Against the Person Act 1886 and was sentenced to 5 years imprisonment. He appeals against conviction by leave of the single judge.

3. The short facts are that, on 2 April 1999, just before 2 am, Richard Lowe, aged eighteen, left Langtry's night club and saw a number of youths fighting in the street, whereupon he tried to assist an unknown male from being beaten up. Lowe was then struck in the region of the right ear and neck with what was believed to be a bottle, causing serious injury requiring more than seventy stitches in hospital shortly after. Shortly afterwards, a young man called Paul Page was arrested at the scene which he was leaving with a friend in a red BMW. The arresting officer was PC Thackeray. Later, Teresa Attwood who had been present outside the night club described Page hitting a male with a bottle who, for a time, the police assumed to be Lowe. However, other witnesses were subsequently traced who had also seen Page hitting a male with a bottle. It was apparently the same incident, but they identified the victim as someone other than Lowe. In fact there had been a confused scene outside the nightclub with fighting going on in various places over an extended period of time. The incident had been partially captured on the CCTV which showed the appellant as being Lowe's attacker, although the quality of the video was such that it did not show whether, at the time, he had anything in his hand. Following his arrest the appellant made a `no comment' interview, but later signed a short confession in respect of the interview in circumstances to which we shall return. His case at trial was that he admitted punching Lowe but denied having a bottle in his hand at the time he inflicted the blow. He said his confession had been obtained by means of a trick or inducement by DC Evans, the officer in whose notebook it was recorded, who had told him he would be rewarded and get bail if he signed the confession. The immediate issue in the case was whether or not the appellant had a bottle in his hand at the time he struck Lowe.

4. The prosecution evidence at trial was as follows. Richard Lowe said that he saw someone being punched and kicked and went to intervene. He felt a blow to the side of his face, looked around and saw a man in a red Puffa jacket with black trousers (Page) and another person wearing a beige jumper (admitted to be the appellant) with his arms outstretched. He got the impression that it was the appellant who had struck him but he did not see the blow and he was not sure. His twin brother, Jonathan Lowe, also gave evidence. He described two fights within the extended melee outside the nightclub. The first in which his brother was involved. He (Jonathan) had not been involved in it, but said that his brother had come back towards him from a scuffle with blood running onto his shirt. He and a friend took his brother on one side from which position he saw a further fight involving Page going on by the BMW, in which his brother was never involved.

5. DC Long viewed one of the two video tapes and pointed out the appellant at a stage well before the incident holding a bottle in his hand. He said the video showed the appellant later approaching and striking Lowe in the region of the left side of the face with an object he held in his right hand. Following defence counsel's objection to DC Long having been asked if he could see something in the appellant's hand at the time of the incident, the judge ruled that, apart from identifying people on the tape, DC Long could not give evidence as to what he saw on the video since it was real evidence it was for the jury to assess what they saw.

6. In cross-examination, DC Long said he took a statement from Teresa Attwood who could not be seen on the video. He denied counsel's suggestion that he was being selective in his production of the video tape in a desire to have the appellant convicted of a crime he did not commit, saying it was clear from other witnesses who had come forward that the description of someone hitting a man with a bottle related to a second assault on another victim who had not reported it to the police, nor had his identity been established. He agreed that whilst waiting for the proceedings to commence in court he had spoken to the appellant in the dock telling him that he was `likely to get 5 years for this'. The officer then said he was willing to give his reasons for that comment to which the judge responded he did not wish to hear them and it was a grossly improper remark for the officer to have made.

7. There then followed discussion in the absence of the witness and the jury in which it became apparent that defence counsel had complained to counsel for the Crown, Mr Dawes, of the behaviour of DC Long prior to the proceedings in which, as counsel complained, he had shown hostility to and goaded both the appellant and defence counsel individually with observations that the appellant would expect a sentence of 5 years if he pursued his plea of not guilty, coupled with the suggestion that it would be better for him to plead guilty as the video clearly demonstrated that he was. Following the complaint of defence counsel, Mr Dawes had spoken to DC Long and had then returned to defence counsel to tell him that the remarks had been made because the appellant had been `offered a script' i.e. letter to the judge that he had been helpful providing information of use to the police. Defence counsel had then taken instructions from the appellant who denied it and was apparently bemused by the suggestion that he was an informer. Defence counsel told the judge that he took the view that DC Long's explanation to counsel was untrue and simply a ruse by a hostile officer who wished to avoid an attack on his methods and integrity by defence counsel in the course of cross-examination, knowing that nobody wishes to be disclosed as an informant.

8. When cross-examination was resumed, defence counsel, acting on that assumption, again taxed DC Long with making vindictive remarks to the appellant prior to the proceedings. The officer denied any improper motive, stating that he had been approached by the appellant in relation to supplying information, which he subsequently did, but that the situation in the relationship deteriorated and it was not progressed. He said that, in making his remark, he had merely been meaning to convey to the appellant that `you have chosen that route [i.e. to plead not guilty], it could have been a different route'. Asked by the judge what he meant by that DC Long observed: "If he had supplied information, then there was the possibility that he would have been given a text at Court, which was explained to him at the time he undertook the relationship". In re-examination he explained the machinery by which a registered informant may be assisted in terms which referred to a person `on bail for a serious offence', adding that, `in fact that particular situation deteriorated and wasn't progressed to that point, but he was left in no uncertain terms when he made the approach to the police that the text was a viable proposition as the outcome for him which would go some way to reduce his sentence'. The judge than asked whether he understood DC Long to be saying that, because the defendant had pleaded not guilty, he would not now be getting the benefit of any assistance that he had given to the police. DC Long denied it. However, the judge observed that it struck him that was what he was suggesting and asked the jury to retire. He then indicated to Crown counsel that he was rising `because I think that the Crown should consider its position over the weekend. I cannot but say that I am dismayed at the behaviour of this officer'.

9. DC Long's cross-examination was resumed on the following Monday. He stated, that, when arrested, the appellant said `I was there but I don't remember too much about it' and, when told he would be taken to the police station and interviewed, said `OK, I've been caught. I just want to get it over with'. During interview, however, the appellant was represented by a solicitor and made no comment. In cross-examination DC Long first dealt with the course the investigation had taken in relation to the involvement of Page. He agreed he got no answers from the appellant in interview and said that, at the time he was charged (12.34 p.m.), he was charged solely on the basis of the content of the video. DC Long only later learned that, at abut 2 p.m., the appellant had made a full admission of the offence to DC Evans. He said he did not then interview the appellant again because of the limitations placed upon him by the Police and Criminal Evidence Act.

10. DC Evans then gave evidence. He had been present when the appellant was interviewed following which he said he was kept in custody. He said that the appellant's admission arose in this way. After the interview, and in the absence of the appellant's solicitor, he went to see the appellant at the appellant's request and took him into the fingerprint room. The appellant expressed remorse and made a spontaneous unsolicited comment which he (DC Evans) recorded in his notebook as he was speaking. He then asked the appellant to read over what he had written to make sure that it was what he wished to say and invited him to write in his own hand underneath the words that it was an accurate record of what had been said, asking him to sign it. It was then signed and time stamped.

11. In cross-examination it was put to DC Evans that, far from being voluntary, the statement of the appellant had been obtained by inducement, in that the appellant was anxious to get bail and he was told that he would get bail of he admitted the offence. DC Evans said the confession was spontaneously offered but that, after signing it in his book, the appellant had asked if there was any way in which he could help himself (which DC Long took to mean by passing on information of assistance to the police). He told the appellant he would need him to return to his cell while he got another officer to attend which he did. Challenged with the fact that this did not appear on the custody record (the only recorded visit being that referred to in paragraph 10 above), he said it was not a matter which could be recorded in the custody record, but that a record had been made on a secure computer system. He said that the appellant later provided some sketchy information about drug dealing and receiving of property which was followed up. Without being asked to do so, DC Long then produced from his pocket, in support of his evidence, a copy of a computer record which he said was instigated by the information provided by the appellant and contained other information added by way of further investigation. However, he accepted that the information was not on its face linked in any way to the appellant or that there was any way which he could prove that the information shown on the document was that which had been disclosed to him. He said the entry of the information was only made a week later after the appellant had failed to come back with further information. He said that, at the time of the appellant's original offer of assistance he had made a note recording it, but that had been destroyed.

12. At the close of the prosecution case, defence counsel made a half-hearted submission of no case. He submitted (and the judge agreed) that the evidence recorded by the video was not clear and was not sufficient to go before the jury. However, he acknowledged his difficulty that the confession, if accepted by the jury, was clear evidence of guilt. However, he complained that, if he had had advance knowledge of DC Long's evidence and the existence of `informant material' so closely linked to the timing of the confession, he would have sought to challenge the confession on a voir dire and, as he put it, `to that extent I have not given informed consent to what might have been a crucial decision in the case'. The judge stated that he understood defence counsel's position but that it had been open to the defence to make an application to exclude the confession if they thought it was right and the matter would now have to go before the jury to decide. He observed that in his view the evidence of the video alone was not a sufficient quality to justify the conviction of the defendant and that he would tell the jury so, unless Mr Dawes could convince him otherwise.

13. The appellant gave evidence and said that he had been at the scene and, at an early stage, had had a bottle in his hand. Later, however, he had abandoned it. He assisted his friend Page who was involved in a fight and threw a punch at Lowe which connected, but he denied that he had any bottle or glass in his hand at the time. He accepted that, when arrested, he said he could not remember much about it, but denied saying `I've been caught, I just want to get it over with'. He stated that his `confession' was not true and that he had signed it because DC Evans told him that if he did so he would get bail. He also said that DC Evans had told him he would get £10,000; however, he denied that he had ever suggested that he wished to be an informer.

14. In conducting the appeal on behalf of the appellant, Mr Tomassi, who appeared below, submits, and it is accepted by the Crown, that in the circumstances of this case, the broad content (though not the details) of the information report entered onto the police computer by DC Evans on 20^th July 1999 and the earlier existence of his contemporary note (subsequently destroyed) relating to the appellant's original offer of information should have been disclosed to the appellant. It is Mr Tomassi's submission that had that been done, rather than matters emerging in the attenuated form which they did, he would not have taken at face value his own client's denial that he was a police informer. Further, had he been aware that the assertion that he was an informer related to an offer of information said to have been made immediately following his confession and unrecorded, as it should have been, in the custody record, he would undoubtedly have sought a voir dire to challenge the voluntary nature of the confession and, in particular, the assertion that there had been no discussion in that respect before the confession was given.

15. Thus, he puts the case in this way. Non-disclosure of the existence of records suggesting that the defendant had provided information deprived the defence of an opportunity properly to assess the approach to be made to the holding of a voir dire and/or the making of a submission under s.76(2) and (3) of PACE.

16. In that respect, he submits that the judge might well have ruled in the appellant's favour bearing in mind (i) it is not suggested that the appellant assumed, or offered to assume, the role of an informer otherwise than in the conversation on the day of his arrest; (ii) thus the information must have been given within a short time of his alleged spontaneous confession, whether before or after; (iii) the custody record was wholly silent as to the alleged further visit of DC Evans and another officer to the defendant and there was no other record of the alleged visit; there was therefore no objective evidence i.e. independent of the officer's (or the appellant's if he gave evidence) account as to the alleged visit and, if that was in doubt, then the `informer' conversation must have taken place at or about the time when the confession was made; (iv) if there was reason to think that there may have been discussion as to the defendant becoming an informer as part of a package in relation to his confession and subsequent release on bail, then the whole thrust of PACE, which is to protect an appellant from unauthorised covert visits whilst in custody from investigating officers, would have been subverted.

17. Mr Tomassi further submits that, if the defence had known of the above matters and in particular the existence of a record to support the police assertion that he had been offered a text, the defence tactics would probably have been wholly different, even if the appellant had maintained his denial that he had been an informer.

18. We accept the force of those submissions. We do not attach blame in any way to the judge for ruling that there was a case to answer on the basis that the confession had not been the subject of a voir dire. He did not have before him the benefit of developed submissions from Mr Tomassi or the concession of the Crown as to its failures in respect of disclosure. He had already expressed concern at the conduct of one of the police officers and was, as appears from his dialogue with Mr Tomassi in the course of his ruling, somewhat uncomfortable about the position which had developed. Nonetheless, as it seems to us, the failure to disclose in advance the matters which only emerged in the course of cross-examination of DC Evans, deprived the defence of an informed opportunity to decide whether or not to seek a voir dire. Had the defence done so, we are by no means convinced that the judge would have admitted the confession. Had he not done so, because it was plainly his view that the video afforded insufficient evidence to go to the jury the submission of no case would almost certainly have succeeded.

19. That being so, we cannot be satisfied as to the safety of the conviction and the appeal is allowed.