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
		8th November 2002

Lord Justice Pill:

1. On the 18^th of January 2001 in the Crown Court at Bristol before His Honour Judge David Smith QC and a jury Timothy Morgan Robinson was convicted of conspiracy to defraud. On 20 April 2001, Robinson was sentenced to 7 years imprisonment. He was made subject to a confiscation order in the sum of £532,275 with four years imprisonment consecutive in default. Robinson was in receipt of legal aid and was ordered to pay the sum of £500,000 to the Legal Services Commission as a contribution towards his costs. He appeals against conviction by leave of the single judge. There were two co-defendants, both of whom were convicted of the same offence. Errol Pitter was sentenced to 2 ½ years imprisonment and Patrick Price to 1 year imprisonment.
2. The appellant was the senior partner of a solicitors’ practice based in Cheltenham and with offices at Bristol, Gloucester and Swindon. The co-defendants were both clerks in the office at Cheltenham.
3. The prosecution case was that the appellant operated, at least from 1989 to 1995, a large fraud upon the legal aid fund. Under the Green Form scheme, a solicitor could give preliminary legal advice to clients and claim a fee from the fund. It was alleged that a large number of false claims was made; clients were requested to sign a number of blank green forms which were then completed by employees of the firm. It was claimed that advice had been given on topics for which advice had neither been sought nor given. Seventy clients or former clients gave evidence for the prosecution and many gave evidence to that effect. In some cases, the purported advice duplicated advice for which claims for fees were made on another basis. Many employees of the firm were alleged to be involved. The prosecution case was that many employees were either bullied or tempted by the appellant to become parties to the fraud. It was alleged that pink forms were also used to obtain money dishonestly. On these forms, excessive hours were claimed to have been spent on preparation for Crown Court cases. In the course of investigations, the work records of employees were analysed and it was alleged that impossible hours were claimed. It was alleged that employees of the firm were strongly encouraged to increase their performance by way of chargeable hours. Following conviction, the judge assessed the benefit of fraud upon the fund to the appellant at £897,000.
4. The central issue in the trial was whether the fraud was a fraud by clerks employed by the firm or, as the appellant’s counsel put it, whether the clerks were simply tools of the appellant. When charged, the appellant supplied a signed statement in which he said: "I utterly deny and refute the allegations made against me. I believe there is no foundation or proper basis in truth or in justice for these allegations other than spite, malice and personal animus". Later in the statement, the appellant claimed that "the sole and real purpose of the allegations is to prevent me and the firm continuing in practice". He added that the allegations "are just another attempt by the Chief Constable to take me out of the game". The denial was maintained but that line of defence was not pursued at the trial, the case being that the appellant was unaware of a fraud being practised by his clerks.
5. Reference must also be made to Richard Hill who was a managing clerk with the firm, having first been employed as a minor clerk. Hill had another role to which it will be necessary to refer. On 16 April 1999, Hill had pleaded guilty to the offence of conspiracy to defraud and on 8 March 2001 was sentenced to 14 months imprisonment. He gave evidence for the prosecution in the trial of the appellant
6. The appellant accepts that a fraud was practised by some of the clerks employed by the firm, though the extent of the fraud and the amount of money involved were disputed. It was contended that the appellant had no knowledge of the fraud at the time it was being practised save that Hill was believed to have forged a small number of green forms. The appellant dismissed him when he discovered that conduct. It was Hill who later went to the Legal Aid Board in December 1992 to tell of his knowledge of the alleged fraud. He did that after his employment with the firm had finally ended and it was alleged by the appellant that he was motivated by spite. The appellant had attempted, on the basis of a restrictive covenant, to block Hill’s employment with another solicitor.
7. We agree with Mr Etherington QC, for whose submissions on behalf of the appellant we are much indebted, that a more detailed review of the underlying facts is unnecessary for the purpose of considering what counsel described as the narrow grounds of appeal. A feature of the long trial was the good relations between counsel which undoubtedly promoted the fairness of proceedings. The trial lasted for 114 hearing days spread over a period of seven months. In the course of the trial, a number of applications were made to discharge the jury.
8. Eleven other employees of the firm have pleaded guilty to conspiracy to defraud and three have been convicted at subsequent trials. Sentences of imprisonment have been imposed, suspended in some cases. The trial of four other employees is now in progress and five others are awaiting trial.

The anonymous letter

9. The first submission on behalf of the appellant is that upon receipt of an anonymous letter the judge ought to have discharged the jury. The letter was received by the learned judge by ordinary mail at Bristol Crown Court. It was postmarked 13 October 2000 and bore the local postmark which covers a wide area. It is submitted that the letter came from members of the jury and reveals that two members of the jury had pre-determined the issue in the trial so that there could be no fair trial. The question, as stated by Lord Hope of Craighead in Porter v Magill [2002] 2 WLR 37, at paragraph 103, is "Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". That test was adopted by Lord Phillips of Worth Matravers MR in Lawal v Northern Spirit Ltd (Transcript 9^th August 2002 at paragraph 46), following his earlier analysis in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700. Counsel both submit that no distinction need be attempted in this case between the judge’s view and that of the informed observer. The judge should apply the test as a reasonable observer, it is submitted.
10. On 17 October 2000, day 66 of the trial, the judge mentioned and read the letter in court, in the absence of the jury. The co-defendant Price was not present on that day through illness and further discussion was adjourned until the following Monday. Mr Etherington, having considered the contents of the letter, sought the discharge of the jury and was supported by counsel for Pitter. Mr Harrington QC, for Price, did not support the application.
11. In order to consider the contents of the letter and the submissions upon it, it is necessary first to refer to earlier events involving one of the jurors. Much earlier in the trial, concern had been expressed by a juror, M, who had been appointed by the jury as their foreman, about a fellow juror, S. He was the juror with whom she was sharing the voluminous documents provided for the use of the jury, six bundles having been prepared for the use of the twelve jurors. On day 23, she expressed concern that he was sleeping. Concern was also expressed by counsel for the prosecution, Mr Glen QC, on day 26. Counsel also reported that he had observed that there was some friction between the two jurors. On day 27, the judge raised the point, in court, with S who said: "I just closed my eyes for concentration, Your Honour".
12. Much later on 9 October, day 60, it came to the attention of the judge that the juror had written a letter to his fellow jurors. The letter was disclosed to counsel. It stated:

"Dear Fellow Jurors

When the doctor I was going to at that time gave me the confirmed diagnosis of my condition and told me there would be periods of time that I would feel like this, she said there will be long stretches of time where you will have hot and cold flushes, you will get upset and angry for no reason, your senses will be highlighted including your hearing you will have periods of long depression and likened it to the female menopause but she also said unlike their condition yours is incurable you will have to live with it, so if I have caused any upset or grief with my attitude it is purely down to my position, not only do I have arthritis in my fingers knees toes ankles and spine which tend to make me rather cranky but I have recurrent bouts of malaria but if I have caused any upset I AM SORRY.

So if you see me first thing in the morning and I ignore you it is not because I don’t like any of you it is because I am exhausted and I am waiting for the medication to kick in.

Normal life for me is calculation I cannot do things on the spur of the moment I can’t ride on a bus or even in a car the pain is too much for me to bear apart from the drugs I have taken in the orange juice I carry with me there are dissolved painkillers enough to knock a normal person flat on their back but all it does with me is dull the pain it does not kill it just dulls it that is the real reason why I am not attached because if somebody were nice enough to put up with me and there are many I have wanted to I tend to give up and let them do everything for me. That would not be fair on them, so I tend to keep everybody at arms length, but it is not because I don’t like people. I do. We all have our own eccentricities, like you, lovely M, very loud and aggressive, and P loves to moan about everything, but I understand every member of this jury I could liken to a friend of mine and as for me, I am cynical, bombastic and sarcastic and love every second of my pain-filled life."

13. Following submissions, and with the agreement of counsel, the judge, having referred to the jurors severe medical medial problems, discharged him and proceeded with a jury of eleven.
14. The anonymous letter was posted four days after that discharge. It was in typescript and stated:

"To Judge Smith

We are members of your Jury and because of the Notice in our Room we want to be anonymous. We think that you should know that S was picked on for weeks by two ladies and he wrote the letter because he was Provoked. There had been a big row before he wrote the letter as the ladies had said that they had made their minds up about 2 defendants and his opinion, which we agree with, was that we should hear from all the defendants before we made our minds up. He got angry and then wrote the letter to apologise. Some of us are under pressure from the ladies to agree with them but we dont think that is what juries are meant to do."

15. No complaint is made on behalf of the appellant about the procedure followed by the judge and no complaint was made at the trial. The submission is that the judge’s conclusion first, as to the genuineness of the document and, second, as to its effect were incorrect.
16. The judge’s first reaction as expressed in court in the absence of the jury, was that the letter was "clearly genuine" and also that the trial could not proceed having regard to the evidence the letter contained of the attitude of two female members of the jury. The first reaction of the prosecution, expressed in what is accepted as having been only a background paper for the consideration of the judge, was that further investigation was not necessary or desirable. The judge expressed an intention to discharge the jury. Mr Glen suggested, however, that enquiries should first be made as to who wrote the letter. He raised the possibility that it had come from an outside source: "That possibility is something that is obviously on my mind and I would be interested just to have confirmation".
17. Mr Etherington noted the spirit of co-operation in which this part of the case had been conducted between the parties and did not oppose the proposed enquiry but he made the observation he was not sure it would get the court anywhere. That exchange, of course, took place in the absence of the jury. A document to be supplied to members of the jury was drafted. It provided:

"This is an enquiry authorised by His Honour Judge Smith

And your reply will remain anonymous to your other jury members.

‘Are you the author of, or have you been party too, the sending of an anonymous letter dated 12 October 2000 to His Honour Judge Smith?’

Please answer YES if you have been involved in the drafting of that letter.

YES NO"

18. Before handing the pieces of paper containing the question to the jury, the judge told them:

"Members of the jury, I feel sure that at least two of you, and possibly more, have quite a good idea about what has been happening these last few days and what we have been discussing. The fact is that I have received a letter from some members of the jury who did not want to be identified. They did not want to be identified for the very good reason that the Contempt of Court Act, about which there is a notice in the jury room, says that it is an offence to reveal anything about the jury’s private discussions, and the letter does do that.

Now, I want to make it plain that those jurors are not in any kind of trouble, and I am grateful to them for having done so because I think the matters that were raised in the letter are of very great importance. I am quite convinced it is a genuine letter, but lurking at the back of our minds is a suspicion that perhaps it was not, after all, from the jury and there is only one way in which we could find out and that is by asking."

19. The members of the jury then completed the form in Court under the supervision of the judge. No complaint is made about that though we do not commend the procedure, which has overtones of the junior schoolroom. In the event, the first replies (in which none of the eleven remaining jurors admitted having been involved in the drafting) were not determinative of the issue because of the further enquiries made and we need not set out the judge’s direction. It would have been better if the procedure used for the second questionnaire had been thought of earlier.
20. In further submissions, in the absence of the jury, Mr Glen, now adopting a more robust attitude, referred to the "frustration of those jurors if indeed none of them wrote that letter to think it was discharged because of a forgery". He spoke of the "shocked" appearance of the jury about the anonymous letter. He added that "It would be a very unusual thing for a jury to do, would it not, to send a letter by post rather than to hand it to the usher or to express a concern to the usher. It is not a normal form of communication at all". Mr Harrington, for Price, supported Mr Glen’s submission that further enquiries should be made. While submissions were being made in their absence, the jury sent a note to the judge: "Please will you let us know what is in this letter, we are all very upset". The note was signed "the jury". The judge declined to disclose the contents of the letter to the jury.
21. A further questionnaire was devised and supplied to members of the jury with instructions to take the form away from the court unfilled, fill it in at home, and return it on the following morning. The form provided:

"This enquiry in authorised by His Honour Judge Smith QC

Last week a letter was received by His Honour Judge Smith QC which appears to have been written anonymously and posted by one or more jurors.

The purpose of this enquiry is to satisfy the court that the letter is genuinely from one or more jurors. We do not want to know the identity of the author(s) or those having knowledge of it. There is no question of the author(s) or those having knowledge of the letter being in any trouble at all.

Please answer the following questions by circling "YES" or "NO".

1. Did you write, send or take part in the writing or sending of the letter? YES NO

2. Were you aware of it before the Judge mentioned it?

YES NO

To keep your identity secret please put this completed form in the envelope provided and seal it."

All eleven members of the jury returned the form on the following morning with negative answers to both questions.

22. On receipt of that information, the judge stated:

"I am sure that I was wrong to conclude that the letter we have been considering came from the jury. It is now clear to me that it did not and I am sure about it and I am confident that the notional independent observer in the public gallery would come to the same conclusion. There is therefore no basis on which it would be right to discharge the jury and the trial proceeded this morning."

23. The judge gave a reasoned ruling in which he stated that he was wrong "To jump to the conclusion that this note must be genuine". The judge referred to the earlier letter of S stating, that "If he was being given a hard time for not pre-judging the case, it does seem a bit strange that none of that is mentioned in the two page letter". The judge continued:

"Secondly, there was in fact no complaint from any member of the jury, or indeed from S himself, and had it not been that we were aware of the existence of the letter we I think would not have been led to ask to read it, but the jury had been told, I think on more than one occasion, that it was really for them to resolve their problems and if they could not be resolved they should write me a note, and nobody did write a note at that stage.

Then it is, as I have already said, it seems incredible to me that two or more jurors would go to all the trouble of writing an anonymous letter and then remain silent."

24. The judge added:

"What I have been invited to do is to conclude that there must be two jurors who have written ‘No’ on documents twice and I am invited to conclude that two of them are lying, or indeed there is a risk – I have not to conclude that they are; I have only got to conclude that there is a risk – that they are lying, or a danger of their lying, or that the impartial observer would think that they may be lying, and I find that impossible to do.

I conclude that the jury, having taken an oath to decide the case upon the evidence, if he really was upset with the way that the Foreman was behaving, which is quite unacceptable, I find it impossible to believe that such a juror would not say ‘Yes’."

25. Later the judge stated:

"If the jury did not write the note then there are other candidates. S of course is another candidate. I think we have got to be frank and say obviously the three defendants in the dock are candidates. There are 5 defendants awaiting trial and in the second case I think there are 17 defendants awaiting trial, and Mr Glen reminded me of a fact which I had forgotten, that the LiveNote is available, and indeed I said it was to be available – I made an order to that effect – to the defendants who are awaiting trial, and therefore it is access to everything that is going on here and indeed the full text of all the notes, the letter from S, for example, the full text is on the LiveNote, and all those persons are either solicitors or solicitors’ clerks in a firm doing almost wholly criminal work. The fact that a notice is, as far as I know, in every jury room in the land would be well-known to many if not all of those defendants."

26. The judge went on to consider how the note should be dealt with, if at all, in the summing-up. No complaint is made about his decision not to refer to it.
27. For the appellant, Mr Etherington submits that the fair-minded and informed observer would at least have concluded that it was reasonably possible that the anonymous letter originated from members of the jury. Observations about other candidates for authorship (except S) were unreasonable. The contents of the letter revealed knowledge of the jury room by its reference to the notice to jurors. The judge’s decision to make enquiries of the jury was pointless and its likely reliability poor. Moreover, a juror who had answered ‘no’ on the first questionnaire would feel committed to maintaining that denial, notwithstanding the assurance given by the judge. A juror might also deny out of a sense of loyalty to the other jurors who had co-operated in sending the letter.
28. As to the effect of the note, if genuine, Mr Etherington submits that it reveals a more than provisional view by the two members of the jury alleged to have made their minds up and brought pressure. The information revealed a pre-determination of guilt and a proselytizing attitude by the two women. The jurors who wrote the letter were sufficiently concerned to write to the judge himself.
29. The notice mentioned in the anonymous letter appears in jury rooms throughout England and Wales. It provides:

"NOTICE TO JURORS

YOU MUST NOT TELL OR SHOW ANYONE DETAILS OF:

Statements made

Opinions expressed

Arguments advanced or votes cast

By, you or any other juror during the deliberation of the jury.

IF YOU DO YOU WILL BE IN CONTEMPT OF COURT.

Contempt of Court may be punished with a fine or imprisonment."

A printed notice, in similar terms, is handed to all members of the jury panel when they commence their duties.

30. In our judgment, the judge was entitled to reach the conclusion that the letter was not genuine and his decision was the correct one in the circumstances. The reasons he gave were sound and substantial and, in restating them in our own words, we do not intend to diminish them:

(1) The picture given, in the letter, of life in the jury room is totally at odds with the admittedly genuine letter of S written a few days earlier. That letter refers, somewhat movingly, to S’s ill-health and his attitude to his fellow jurors. M probably did not feel flattered by his description of her but it does not suggest that she is corrupt or has a manner beyond what one would expect from at least one member of any group of 12 people kept in close company. His letter is self-critical but does not suggest either that he was picked on or that some members of the jury had put others under pressure. Eccentricities such as these to which S refers are likely to emerge when any group of people have been together for 66 days, as this jury had. (These factors do also suggest that S was not the author of the letter.)

(2) There is every reason to believe from the record of the trial that the jury were conscientious and determined to do their duty. Aware as they were of other procedures which could be followed, it is extremely unlikely that they would write anonymously, and through the Royal Mail, to the judge. The notice in the jury room does not prevent or discourage notes to the judge being submitted via the court usher.

(3) The contents of the notice in the jury room would be very widely known amongst members of the public and reference to them in the letter gives little support to the authors being members of this jury.

(4) Plainly there are people, as the judge stated, who might have an interest in disrupting what was the first of a series of criminal trials. To someone with such an attitude, the temptation to attempt to make capital from the S incident, which had occurred only a few days before, would be considerable.

(5) In addition to the circumstantial evidence, this was a situation in which enquiries were made of the jury, properly so and without objection (save as to their value). The answers received from the members of the jury are powerful evidence that the note did not originate from them. Especially given the assurance the jury were, reliance can be placed upon their answers. The circumstantial evidence does not support conduct in the jury room of the kind suggested in the note and there is no evidence to support the existence of the pressure mentioned in the letter.

31. Having formed that view, we do not need to consider the effect of the letter had it been genuine. Indeed, it is not possible to do so because the entire circumstances of the jury’s deliberation would have been different if it had been genuine. We do however consider that the judge was too ready to conclude, when he gave his ruling that "It seems to me, on any sensible reading of it [the anonymous letter], that these two ladies, one of whom we know is the foreman, are continuing to act in a wholly improper way". The judge presumably had in mind words that they had "made their minds up about two defendants" and "some of us are under pressure from the ladies to agree with them". It would be surprising, in the context of this case, if views had not been formed by members of the jury when the case had been going on for 66 days. The jury had heard considerable evidence of large scale fraud in the office of a firm of solicitors of which the appellant was senior partner. They had heard that Hill, who had given evidence for the prosecution, and others had pleaded guilty to conspiracy to defraud. It would be surprising if there was not lively discussion in the jury room about the effect of the evidence to date.
32. What is of fundamental importance, however strong the prosecution case may appear to be, is that the defence have a sufficient opportunity to put their case, by way of evidence and submission, and that in his summing-up the judge puts it fairly and sufficiently to the jury. The jury must be reminded that they decide the case upon the evidence as a whole. That is their duty, according to the oath they have taken. It does not necessarily follow from remarks made in the course of the trial that the members of the jury will not carry out their duty. Even the anonymous letter writer, by the words used at the end of the letter, appears to recognise the duties upon jurors.
33. Jurors can be expected to apply the directions they are given complying, as they do, with basic concepts of fairness. Even jurors who have expressed strong views in the course of the trial, can be expected to listen to and have regard to the defence evidence and submissions when they deliberate upon the case as a whole. We do not consider that a trial must necessarily be considered unfair if evidence should emerge that in the course of the hearing jurors have expressed strong views one way or the other. Indeed, jurors may often have strong views when they retire to consider their verdict. The strength of a trial by (eleven or) twelve jurors is that there will be active discussion about the evidence between jurors with differing personalities and varying experience of life who will, by means of such discussion, reach a true and usually unanimous verdict. Having made those general observations, we need not reach a conclusion upon a situation which in our judgment did not exist save that the same considerations apply to some extent to the traffic census issue to which we now turn and upon which the judge gave further directions.

Traffic Census Disclosure

34. On 7 November 2000, a solicitor Mr Michael George Hawks, was driving to Bristol Crown Court where he was involved in another case. He was stopped in a traffic census. At this stage of the trial the appellant was giving evidence. Mr Hawks having disclosed that he was a solicitor on his way to Bristol Crown Court, the census officer, had a short conversation with him in the course of which the trial of Robinson was mentioned. The short conversation came to light because, later that morning, Mr Hawks spoke to the barrister he was instructing at Bristol Crown Court in another case, Mr Nicholas Timothy Fridd. Mr Fridd told Mr Glen and also junior counsel for Mr Robinson. The defence received a letter from Mr Fridd, dated 8 November 2000, which stated that "My recollection of George Hawks’ story about meeting the man at the traffic census is that the man said that they were all guilty and that Robinson was ‘throwing a wobbly to try and throw the trial’ – or get rid of the jury or words to that effect". The contents of the letter were made known to the judge. On 8 November, Mr Hawks, was called by the judge to give evidence in the absence of the jury. He stated that the census officer said that his wife was on the jury in the Robinson case and used words "to the effect that he was as guilty as hell".
35. The judge was satisfied that the census taker was the husband of a member of the jury. It was not M. The judge accepted that a juror had been speaking about the case to her husband in defiance of his instructions. The judge’s interpretation of the remark which Mr Hawks said had been made to him was it was simply "that it means the case look very strong at the moment", a point considered in the previous section of this judgment. He declined to seek information from Mr Fridd and ruled that the Court must rely upon Mr Hawks. The judge declined to discharge the jury.
36. Having given the jury another warning about not discussing the case with anyone outside their number, the judge told them that he would in due course sum up the case and remind the jury of the evidence and arguments. He added:

"But I just remind you of the vital importance of keeping an open mind and not coming to a conclusion until you have heard all the evidence, and the speeches and the summing-up. That is the time when you can validly come to a conclusion in accordance with your oath, because you have sworn an oath to try the case in accordance with the evidence and that means in accordance with all the evidence, and, although it does not say so, it really means in accordance not just with the evidence but what people say to us about it, and then, when you have given it mature reflection, you can conscientiously, in accordance with your oath, return a verdict.

But you have to keep an open mind until we get to that final stage, and I am sure if I put it in that way you will say [see?] why am I saying this. It is perfectly obvious, but I am afraid it is often my task to say things to jurors which are perfectly obvious, and I am doing it every day and I get paid for it, but there you are,.

As I say, you may think that is all perfectly obvious but I am reminding you of it because it is important."

37. Mr Etherington submits first that the judge was wrong not to consider the account of the conversation between Mr Hawks and Mr Fridd disclosed by Mr Fridd. The judge should in any event have treated the juror’s remarks as a final and concluded view that the appellant was guilty of the offence. The fact that the juror told her husband showed the reality of the way her mind was working at the time.
38. Application is made that Mr Fridd be called to give evidence before this Court. Mr Fridd signed a statement on 26 April 2002, that is 17 months after the event. In his statement, Mr Fridd stated that Mr Hawks "Went on to say that the census officer had told him that they were all guilty" and that "Mr Robinson was throwing a wobbly to try to throw the trial".
39. In that statement, Mr Fridd said that after Mr Hawks had given evidence, he was told by junior counsel for the appellant that Mr Hawks had not in his evidence "said anything about Mr Robinson throwing a wobbly to try and throw the trial". In his statement, Mr Fridd added that: "The next thing that happened to the case was on 22 December. This was the last working day of 2000. Mr Hawks and I had arranged to have lunch". Mr Fridd said that over lunch Mr Hawks said that he thought he had told the Court about medical evidence being used to try to get the jury discharged, though in fact he had not. This information was passed on to the appellant’s junior counsel. Mr Fridd also stated that in about June 2001, when Mr Hawks was driving him home, Mr Hawks agreed with what was then a draft statement, in its entirety, including the reference to "throwing a wobbly". That comment, on which Mr Etherington seeks to rely, had been included in Mr Fridd’s letter of 8 November, of which the judge knew when giving his ruling.
40. It is submitted that the Court should have the best evidence of the conversation between the census officer and Mr Hawks. In view of the fact that Mr Hawks has been inconsistent, the best evidence of that (apart from the possibility, which nobody wanted to follow, of interviewing the census officer) was Mr Fridd’s account of his conversation with Mr Hawks the same morning. Mr Hawks was discredited by his inconsistencies; the judge should have heard Mr Fridd and the Court should hear him.
41. The only additional comment of possible relevance to the appellant’s case which Mr Fridd can mention is the census officer’s reference to the appellant "throwing a wobbly to try to throw the trial". For the prosecution, Mr Glen questions the admissibility of Mr Fridd’s evidence in any event. It was hearsay. The judge had heard Mr Hawks himself and he was thoroughly cross-examined on behalf of the appellant. The judge was correct to take it no further. As to the present hearing, it would not in any event be right to hear Mr Fridd without hearing Mr Hawks as well.
42. In our judgment the learned judge was correct in the conclusion he reached. He made sufficient enquiry by calling Mr Hawks and allowing him to be cross-examined.
43. In analysing the position further, regard must be had to the jury’s knowledge of the interruptions to the trial and to the ill-health of the appellant. Some, though not all, of the reference to his ill-health were known to the jury. He was absent due to diverticulitis on day 3 and on day 27 he left the dock with severe stomach pains. On day 52 he appeared to collapse in the dock and was taken to hospital. There was an adjournment for several days. Both parties instructed doctors and on day 56 the defence cardiologist agreed that the appellant was fit to resume the trial. It cannot be assumed that the jury were aware that an application to discharge them had been made on the grounds of the appellant’s ill-health on 30 October.
44. Even if a juror did make a comment to Mr Hawks about the appellant "throwing a wobbly" that would not in the circumstances require the discharge of the juror or the jury. We bear in mind the points made in the previous part of this judgment and the directions given by the judge. Taking the potential evidence about the conversation at its highest, the trial could properly continue.
45. In the course of the hearing we rejected the application to call Mr Fridd. We did not think it necessary or expedient in the interests of justice to do so. It did not appear to the Court that the evidence could afford any ground for allowing the appeal (section 23 Criminal Appeal Act 1968).
46. We make two further comments. The juror should not of course have spoken to her husband and her husband ought not to have spoken to Mr Hawks. However, in the circumstances, and given the judge’s further directions and reminders, the trial could properly be allowed to continue. Secondly, while our decision does not depend on this further consideration, we do comment that, while the good faith and good intentions of Mr Fridd are not in question, if he was to consider and comment on the evidence on November 8 of Mr Hawks, a discussion over a Christmas lunch and a further discussion six months later during a lift home was hardly the best way to do it.

Disclosure of documents in relation to Hill

47. Richard Hill, managing clerk in the firm’s Cheltenham office, gave evidence strongly adverse to the appellant. It was he who had "blown the whistle", to adopt the expression used in the trial, by telling first the Legal Aid Board and then the police of the fraud in the Cheltenham office. He requested, and was denied, immunity from prosecution.
48. When giving evidence about Robinson, Hill stated: "I had my snout in the trough but he was the pig farmer". It was important that the appellant should have proper opportunity to challenge Hill’s credibility and reliability. Hill attributed to the appellant knowledge of and participation in the fraud. Before Hill gave evidence, the defence were told that he was a police informant, or in the current terminology a covert human intelligence source. At a hearing attended by the prosecution alone, the judge considered what disclosure of documents to the defence in relation to Hill’s informing was appropriate. It is accepted there is a public interest in not disclosing the activities of police informants. The defence knew that such a hearing had taken place. A similar hearing was held in this Court. The Court considered the same documents as had the judge and concluded that no further disclosure was appropriate. We had in mind that if the undisclosed material may prove the defendant’s innocence, or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosure (R v Keane 99 Cr App R 1 at 6) and the principle that public interest immunity may be overridden and evidence admitted "in order to prevent a miscarriage of justice and in order to prevent the possibility that a man may, by reason of the exclusion, be deprived of the opportunity of casting doubt upon the case against him". (R v Hallett [1986] Crim LR 462). The defendant must be allowed to put forward a tenable case in its best light (R v Agar [1990] 90 Cr App R 318).
49. When Hill gave evidence, the jury were given information about him and this was subsequently reduced to writing in a document dated 19 December 2000 and headed "Admitted facts relating to Richard Hill".

"1. Richard Hill acted from time to time as a police informant.

2. Richard Hill received payment on occasions for information he passed to the Police.

3. On occasions, the information passed to the police by Richard Hill when he was acting as a police informant necessarily involved some of the clients of Robinsons Solicitors.

4. When clients of Robinsons Solicitors were involved, Richard Hill, necessarily, breached the duty he owed both to Robinsons Solicitors and to clients of the firm.

5. On occasions, Richard Hill has informed on clients of Robinsons Solicitors to the police,

without their knowledge and/or consent,

and not with the intention of assisting those clients,

and not with the knowledge or approval of Timothy Robinson."

Hill’s conduct in disclosing the fraud, in which he was involved, to the police was of a quite different character from the informing there admitted and unconnected with it.

50. Mr Etherington’s submission is that his cross-examination of Hill could have been better conducted if he had had further particulars of the scale, degree and timetable of Hill’s informing. Had such detail been put to Hill, his credibility would have been further weakened. Moreover if Hill was informing without Robinson’s knowledge (as was admitted) on a large scale, it would be a good example of what Hill could do without Robinson knowing. The further submission is made that, armed with detail, counsel could have persuaded Hill to give further evidence about his activities as an informant and thereby further damage his credibility.
51. When cross-examined, Hill accepted his duty of confidence, as a solicitor’s clerk, to the clients of the firm. He claimed that he was always the honest broker between the firm and the police. When it was suggested to him that he was an informant, he replied "I don’t want to discuss the matter further". When asked whether on occasions he received payment, he replied "I am not going to answer these questions". When Mr Etherington pursued the matter, Hill gave the same or a very similar answer on three further occasions. He was a police informant and had an obvious motive not to speak about his activities. To do so would put him in peril at the hands of those upon whom he had informed, whether clients of the firm or not.
52. The judge then intervened to explain the ruling he had given against the disclosure of "dates, clients, the identity of police officers or the nature of the information". Counsel recognised that, in the light of the judge’s ruling, there was no point in further questions.
53. We reject the submission that Hill may have answered further questions had it been possible to put detailed information, or a hard example as counsel put it, to him. Hill had made clear that he would not answer further questions. He had a strong motive for taking that stance. We have no doubt that he would have persisted in that refusal whatever detail had been put to him. It does not make Hill’s conduct any the better but that refusal would have been maintained whatever disclosure of detail there had been.
54. There remains the question whether the appellant’s case was prejudiced by the lack of detail about the informing. Having regard to the scope of the admissions made by the prosecution, the defence was not in our judgment prejudiced. The admissions were fulsome and Hill would not have been seen in a worse light in relation to Robinson had further detail been made available. The terminology used in the admissions document shows that this was not a case of informing on a single isolated occasion. Hill was seriously in breach of his duty to his employers and to clients of the firm. His activities were admitted to have been conducted without the knowledge or approval of the appellant. The further admission was made and, counsel tell us, was fully brought home to the jury, that Hill lied when giving evidence that he had acted only has a "honest broker".

The summing-up

55. It is accepted that, in his summing-up, the judge dealt entirely fairly with Hill’s evidence, along with that of the appellant. Points made on both sides were set out. The section of the summing-up concluded with the direction:

"Now it is for you, then, to consider Hill’s evidence with all those faults and decide whether you can rely on it. Is he a liar trying to bring others down to improve his position, or is he telling the truth, willing to accept his share of the blame, but keen that others who are to blame should also be convicted?"

56. Where the summing-up is criticised is in a reference, in the course of that section, to assessing whether or not the appellant’s lie in relation to his informing was an understandable lie. The judge stated:

"Well, members of the jury, I remind you of that because it is an important part of the case; important for the defence because you will bear that fact in mind, that that was a lie, in assessing his evidence, and the fact that he told a lie about an aspect of his case. On the other hand, I would suggest to you that only a saint or a liar can say they have never told a lie. I will say it again, only a saint or a liar can say they have never told a lie and there are not many saints about, and it is for you to assess whether or not that was an understandable lie that he gave, not wanting to give further details and it is to decide whether you can accept the main thrust of his evidence in the light of the warning I have given you, and you will of course bear in mind that the particular lie was a lie on oath in court."

Mr Etherington submits that the reference diminishes the significance of Hill’s lie.

57. The judge had directed the jury that "It was quite improper for Hill to act in this way, whatever his motives may have been and, insofar as he was informing on his clients, he was grossly in breach of his professional duty to the clients. Now I am sure that that behaviour is something you will take into account in assessing him as a person and in assessing his trustworthiness and you will also remember he was cross-examined about his informing ...". The jury were told that Hill had lied and it is in our judgment fanciful to suggest that the jury would not have accepted that the admission by the prosecution of Hill’s lying was a true admission.
58. What the judge was doing when referring to an assessment of whether the lie was understandable, and what he would have been understood to be doing, was to highlight the obvious motive for lying, namely a desire by Hill to protect himself from retribution. The judge was stating the obvious and the jury cannot have been unaware of that motive. It does not mitigate the lying but it may provide the reason for it. It may be that Hill was not entitled even to that degree of consideration from the judge but the comment cannot in our judgment have prejudiced or influenced the jury’s consideration of Hill’s evidence in relation to the conduct of Robinson.

Use of solicitors’ clerks as informants

59. At the beginning of the hearing, the Court indicated its concern about the use of Hill, the managing clerk of a firm of solicitors in substantial criminal practice, as a police informant. That appears to have been treated by the police as a perfectly routine matter. We do not know how general the practice was at the material time, or indeed, whether there were any other cases. It must be repeated that his report to the police of the alleged frauds in the solicitors’ office, described at the trial as "whistle blowing", was unconnected with Hill’s activities as an informant. We were concerned to know whether it was sought to justify the practice and, if so, on what basis. We stated that we may well comment on the practice in our judgment but, before doing so, the prosecution, and the Chief Constable of Gloucestershire, should have the opportunity to make submissions.
60. In R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Lord Bingham of Cornhill, at page 537, stated the surviving rights of a person in custody:

"Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."

61. Those rights are enjoyed equally by a person under investigation for or charged with a criminal offence. The right is severely curtailed if the solicitor, or solicitors’ clerk from whom he seeks legal advice, is telling the police what passes between them. It is not only a serious breach of duty by the solicitor, or clerk, to the client but, on the face of it, and if encouraged by the police, an infringement by the police of those rights. The police would be inducing or encouraging breaches of the right to legal professional privilege. The mischief may be on a considerable scale in the case of a solicitors’ firm with a large criminal practice which inevitably has considerable contact with criminals, those associating with them and those accused of crime. In saying that, we are giving no indication of the scale of the informing in this case, beyond what appears from the statement of admissions set out in paragraph 49 of this judgment, and no assumptions should be made about it.
62. Our concern was about the practice in general and, save as appears from the judgment, did not bear upon the points raised in the appeal. For the prosecution in this case, conducted by the Serious Fraud Office, Mr Glen did not seek to justify the practice of using solicitors’ clerks as informants. The Court heard Mr Freeland QC on behalf of the Chief Constable of Gloucestershire. He produced to the Court a Code of Practice, entitled Covert Human Intelligence Sources, issued by the Home Office. We were told it came into effect on 25 September 2000. It is stated to be prepared pursuant to section 71 of the Regulation of Investigatory Powers Act 2000. That section empowers the Secretary of State to issue codes in relation, amongst other things, to the conduct and use of covert human intelligence sources (section 26). Mr Freeland referred to paragraphs 3.5 and 3.6 of the Code:

"3.5 The 2000 Act does not provide any special protection for legally privileged information. Nevertheless, such information is particularly sensitive and any source which acquires such material may engage Article 6 of the ECHR (right to a fair trial) as well as Article 8. Legally privileged information obtained by a source is extremely unlikely ever to be admissible as evidence in criminal proceedings. Moreover, the mere fact that use has been made of a source to obtain such information may lead to any related criminal proceedings being stayed as a abuse of process. Accordingly, action which may lead to such information being obtained is subject to additional safeguards under this code.

3.6 In general, an application for the use or conduct of a source which is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstance. Full regard should be had to the particular proportionality issues such a use or conduct of a source raises. The application should include, in addition to the reasons why it is considered necessary for the use or conduct of a source to be used, an assessment of how likely it is that information subject to legal privilege will be acquired. The application should clearly state whether the purpose (or one of the purposes) of the use or conduct of the source is to obtain legally privileged information."

63. Mr Freeland stated that the Code was observed and adhered to by the Chief Constable. In today’s climate, it is said, Hill would not be registered as an informant. It is most unlikely that any solicitor’s clerk would be used as an informant. Mr Freeland went on to refer to the "risk assessment" which would be conducted and to such use being "fraught with danger", as indeed paragraph 3.5 contemplates. We trust, and are assured, that such language does involve recognition of the need to respect the rights stated by Lord Bingham in Daly and not merely recognition of the consequences for the police if inappropriate action is taken. It is a necessary ingredient of the rule of law that members of the public are able to obtain legal advice without the police obtaining access to what passes between lawyer and client.
64. We add that the Court is not unmindful of the principle stated in paragraph 3.4 of the Code that "legal privilege does not apply to communication made with the intention of furthering a criminal purpose". Decisions which lawyers and police officers have to make in this area of the law may be very difficult ones.
65. We note the recognition of duties and assurances now expressed on behalf of the Chief Constable. We do not consider our duty extends to conducting further enquiry into past practices and events unrelated to the grounds of this appeal. The Chief Constable has given assurances in relation to a Code, issued by the Secretary of State under statutory powers, the lawfulness of which is not in issue in this appeal.

Result

66. It is for the reasons now given that the appeal was dismissed.