England and Wales Court of Appeal (Criminal Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mason & Ors, R v [2002] EWCA Crim 385 (13th February, 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/385.html
Cite as: [2002] EWCA Crim 385

[New search] [Printable RTF version] [Help]

Mason & Ors, R v [2002] EWCA Crim 385 (13th February, 2002)

		Neutral Citation Number: [2002] EWCA Crim 385
		Case No: 00/5407 00/4672 00/4674 00/5405

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(Crown Court Coventry) HIS HON. JUDGE COLE

Royal Courts of Justice
Strand,
London, WC2A 2LL

13th February 2002

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND & WALES
MR JUSTICE MITCHELL
and
MR JUSTICE KEITH
____________________

	R	Respondent
	- and -
	Adrian Craig Mason / Clayton Paul Wood / Eammon Terry George McClelland / John Paul Tierney	Appellant

____________________

(Transcript of the Handed Down Judgment of
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)

____________________

MR NICHOLAS WEBB
appeared on behalf of the Crown
MR ROBIN PEARSE WHEATLEY
appeared on behalf of Clayton Paul Wood and John Paul Tierney
MR NIGEL SHEPHERD
appeared on behalf of Eammon Terry George McClelland
MR PAUL WILLIAMS
appeared on behalf of Adrian Craig Mason
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Woolf CJ: This is the judgment of the Court

This appeal raises two issues of importance. It raises the question as to when a judge is required to withdraw from proceedings on the grounds of possible bias. In this case the problem arose because the judge knew the Chief Constable who was a witness for the prosecution. The other important issue which arises is as to when, if ever, it is appropriate for the police in the investigation of serious crime to devise a stratagem for obtaining evidence by covertly recording conversations between suspected offenders whilst they are under arrest and detained in police cells.

INTRODUCTION

Between 4 July 1998 and 1 April 1999, a period of approximately nine months, a series of burglaries and armed robberies took place in the Coventry area. The proceeds of the offences were not great, but the offences were ones that subject the victims to considerable distress and anxiety and make them and the general public concerned about their safety. As a result of their investigations, the police considered that there were some nine persons involved in the commission of these offences.

As is stated in a report to the Chief Constable, entitled “Operation Brassica”, the police considered that “different people from the team mix and match to carry out the offences”. The way those responsible operated was for two or three offenders to enter commercial premises wearing balaclavas and hooded jackets equipped with firearms and threaten or incapacitate the staff in order to steal money. Fortunately, only in one incident was a shot actually fired and even then nobody was injured.

The police had difficulty obtaining evidence against those who they thought were responsible. They therefore decided to seek authority from the Chief Constable for the West Midlands authority to carry out a covert operation (Operation Brassica).

OPERATION BRASSICA

In order to obtain the authority, a report was prepared (exhibit 151). It set out the reasons why the police considered such an operation was necessary. It was prepared by Detective Sergeant Michael John Fairfield. It explained the situation in which the police found themselves in these terms:

“All of (the) offences were initially investigated in isolation and most persons have been arrested on suspicion of some of the other offences and released without charge. The offenders all use the same firm of solicitors and on each occasion, where insufficient evidence has been disclosed, they have all responded “no comment” at interviews and are not amenable or co-operative with the police. It may well be that the evidence on the three mentioned offences will be sufficient to charge, but further evidence would assist in proving those offences beyond reasonable doubt, which would not only create substantial terms of imprisonment, but also cause a reduction in further offences committed. It is certainly in the public interest that we use any means available to us to detect these offences and bring the offenders before a court.”

The nine offenders who the police suspected included the present appellants, Eammon Terry George McClelland, John Paul Tierney, Clayton Paul Wood and Adrian Craig Mason. At the time that the memorandum was prepared, the police had identified three persons who were responsible for offences at two premises owned by the Victoria Wine Company and one at the Kwik Fit tyre distributors in Coventry.

It was intended that the operation should be in two phases. The first would involve the arrest, interview and charging of Wood, McClelland and Tierney. Any evidence obtained during the first phase was not to be disclosed until after the second phase. The first three offenders to be arrested would be arrested in respect of different robberies. They would then be taken to Stoney Stanton Road police station and detained in the custody suite. That custody suite would only be occupied for the purposes of Operation Brassica. Installed in the custody suite would be covert audio equipment so that the conversation of the prisoners could be recorded. It was anticipated that “in the first instance if they are arrested for three different robberies individually… this may well generate conversation between themselves as to why they have been arrested”. In relation to the Kwik Fit offence the memorandum stated:

“Information had been received that Eammon McClelland and John Paul Tierney were responsible for this offence and evidence has been taken in (the) form of witness statements of persons who know McClelland personally and saw him outside the premises just prior to the offence taking place. Also in respect of this matter the offenders executing the robbery did not conceal their identities and an ID parade is anticipated as witnesses feel strongly that not only would they be identified outside the premises but also inside the premises by the staff that were threatened.”

As to the offence at the Victoria Wine Company’s premises at Berwyn Avenue, Coventry, it is stated:

“On the 16^th February 1999 [the premises were] the subject of an attempted armed robbery.

Enquiries have been made in respect of this and from video evidence it transpires that John Paul Tierney was in the store some minutes before the robbery or attempted robbery took place. The offence is shown on the security video and it can clearly be seen that the person responsible for the attempted robbery, having concealed his identity, is still wearing the same jeans and trainers as was Tierney… some minutes before. Expert video evidence will be available to prove that these persons by way of clothing are identical. There is other circumstantial evidence that supports the suspicious nature of his initial entrance to those premises. Tierney will be arrested for this offence and interviewed and subsequently charged.”

A robbery had also taken place on 12 January 1999 at the Victoria Wine Company in Winsford Avenue, Coventry. As to the offence at these premises, the memorandum stated:

“The offenders entered the premises wearing balaclavas and coats, threatened the staff and stole monies. Again this was recorded on video equipment at the premises and one of the youths was wearing a coat which was later taken from Clayton Wood when he was arrested by Warwickshire police on suspicion of robbery at Eathorpe Post Office, Warwickshire. Again expert video evidence will prove that this is the same coat as worn by the offender for that offence.”

Prior to the offence, a figure very much like the defendant Wood could be seen on the video standing in the doorway of the premises placing a balaclava on his head. It was stated that he would be arrested on suspicion of this offence and that after reviewing all the evidence he would be charged with robbery. McClelland was to be arrested for the Kwik Fit offence and Tierney for the offence at the Victoria Wine Company, Berwyn Avenue. It was stated that the police station which was to be used was suitable for covert tape-recording.

On 17 May 1999, on the basis of the information he received, including the Operation Brassica report, the Chief Constable gave authority for Operation Brassica to take place. On 20 May 1999 Wood was arrested for the robbery at the Victoria Wine Company’s Winsford Avenue premises. On the same date McClelland was produced for interview from prison in relation to the Kwik Fit robbery and on the following day Tierney was interviewed about the other offence at Victoria Wine’s premises and told his fingerprints had been found on a gun box recovered from a car in Tavistock.

All three offenders were placed in a cell and covert taping of their conversation took place on 21 and 22 May 1999. This resulted in the May covert tapes being produced. Subsequently, on 10 June 1999, the Chief Constable signed an authority for further covert taping. Covert taping of conversations between Wood, Mason and a third person, who is not involved in this appeal, took place on 16 and 17 June and resulted in the June covert tapes being recorded. The June covert tapes contained evidence on which the prosecution relied to establish that Wood had been involved in a robbery at Huttons off-licence, Walsgrave Road, Coventry. What had happened was that on 29 December 1998 two men, one armed, had entered the premises and made the occupants lie on the floor where they were secured with tapes. The covert tapes were also relied upon to show that Wood and Mason were two of the robbers involved in the robbery on the Rowley Working Men’s Club on 19 January 1999 at about 1.30 am in the morning. This robbery was committed by a group of five robbers, all wearing balaclavas and, one carrying a gun.

The May covert tapes were relied upon in relation to a robbery which occurred at Forbuoys Newsagents on 21 January 1999. It was alleged that Wood and McClelland committed this offence. Part of the robbery was recorded on a video but the main prosecution evidence in respect of these events was based upon the May covert tapes.

The May covert tapes were also relied upon in connection with the robbery on 9 February 1999 at the post office in Eathorpe. This was committed by three men, all wearing balaclavas, one of whom carried a gun. The prosecution alleged that Tierney and Wood committed this offence. Again, the May tapes were relied upon as against Tierney and Wood in respect of the offence at the Victoria Wine premises in Berwyn Avenue. McClelland, Mason and Tierney were alleged to have been involved in this offence together with another man.

Finally there was an attempted robbery at a betting shop belonging to Stanley Racing at 176 Clay Lane, Coventry on 17 March 1999. Here the case for the prosecution depended upon the covert tapes. It was alleged by the prosecution that McClelland and Wood went into the betting shop and McClelland and Mason together had ‘cased the job’.

It can be seen from this summary of the offences that the covert tapes played a fundamental role in the case for the prosecution against the defendants.

THE INDICTMENT, CONVICTION AND SENTENCES

The counts in the indictment are in pairs. One count relates to a particular robbery, the other count to having a firearm at the time the robbery was committed. There were five pairs of these offences. In each case the earlier count in the indictment is an offence of robbery and the later count in the indictment an offence of having a firearm at the time the offence was committed. Counts one and two related to the Kwik Fit garage. McClelland pleaded guilty to these two offences and Tierney was convicted. They were both sentenced to 12 years and 5 years imprisonment respectively concurrent. Counts three and four relate to Wood. They involve Hutton’s off-licencce. Wood was found guilty and sentenced respectively to 6 and 5 years detention in a young offenders’ institution concurrent. Counts five and six concerned Mason and Wood. These offences relate to the Rowley Working Men’s Club. Both men were found guilty and Mason was sentenced to 10 years and 5 years imprisonment concurrent and Wood was sentenced to 8 years and 5 years detention in a young offenders’ institution concurrent. Counts seven and eight related to a newsagent and concern Wood and McClelland. They were both found guilty, McClelland was sentenced to 10 and 5 years imprisonment respectively and Wood was sentenced to 6 years detention and 5 years detention in a young offenders’ institution concurrent. Counts nine and ten concerned the post office at Eathorpe and involved Tierney and Wood. They were convicted. Tierney was sentenced to 10 years and 5 years imprisonment concurrent and Wood 6 years and 5 years detention in a young offenders’ institution concurrent. Counts eleven, thirteen and fourteen each alleged an offence of conspiracy. Count twelve involved an offence of having a firearm in connection with the eleventh count. Tierney was involved in counts eleven and twelve. They alleged conspiracy to rob and having a firearm at the time that the offence was committed. He was convicted and sentenced to 7 years imprisonment and 5 years imprisonment concurrent respectively. Count thirteen also involved Tierney together with Mason and McClelland. They were each sentenced to 7 years imprisonment concurrent. Count fourteen concerned Mason, McClelland and Wood, and alleged conspiracy. Mason and McClelland were sentenced to 7 years imprisonment concurrent and Wood was sentenced to 5 years detention in a young offenders’ institution concurrent. Finally, Wood was sentenced to 5 years detention in a young offender institution concurrent on count fifteen which alleged an offence of having a firearm at the time of committing a specified offence, namely count fourteen.

The result was that Mason was sentenced to a total of 10 years imprisonment, McClelland 12 years imprisonment, Tierney 12 years imprisonment, and Wood 8 years detention in a young offenders’ institution. All the appellants appeal against their convictions with leave of the single judge. The application for leave to appeal against sentence by McClelland has been referred to the full court.

POSSIBLE BIAS

The trial judge was His Hon. Judge Cole who is the resident judge at Warwick Crown Court. On 10 January 2000 he was due to commence a voir dire as to the admissibility of the covert tapes. At the commencement of the hearing, he announced that since the last hearing he had read the various skeleton arguments and he inferred from them that there was going to be some dispute as to the evidence of the Chief Constable. He added that:

“Bearing in mind the Pinochet case, I think I should disclose that I do know the Chief Constable in a formal, civic capacity in the main. I meet him, as probably all the judges in the area do, at various formal occasions. In addition there was an occasion, I think probably about two years ago, it may have been less than that, where I did write to him formally and ask if he would speak at a dinner in respect of which I was involved. He wrote and said that he would and did speak. As I say, I know him and I want to be sure that there is no objection or any argument as to whether I should disqualify myself from hearing this case.”

The prosecution raised no objection, nor did any other of the counsel then object apart from Mr Williams who appeared on behalf of Mason. Having taken instructions, he informed the judge that Mason objected. Mr Williams then addressed the judge pointing out that “there is little or no evidence against Mr Mason, save for these covert recordings. It is the Chief Constable who gave the authority for that”.

Mr Williams’ contention was not that the judge would actually be biased but that the judge could subconsciously be affected by his knowledge of the Chief Constable so that justice would not be seen to be done. The judge then repeated that the situation had gone no further than he had indicated but added that he had spoken to the Chief Constable at the dinner and on other occasions, “including dinners where we have both been present. Indeed I went to a civic dinner on Friday evening and he was there and I shook hands with him. … He has never been to my house. I have never been to his, and I know him and meet him as part of my duties as Honorary Recorder in fact of this city.” (The city in which he was sitting, namely Coventry.)

Mr Williams adhered to his objection and the judge pointed out that the case had been allocated to him by the Senior Presiding Judge and he felt that he should go back to him now “for his direction as to what I should do”. As Mr Williams had no notice that the judge was going to make the disclosure which he did, he was not able to refer the judge to any authority. However, he had in mind not only the decision of the House of Lords in Ex parte Pinochet (No. 2) [2000] 1 AC 119 but also the decision of the Court of Appeal, (Civil Division) in Locabail (UK) Ltd and another v Bayfield Properties Ltd [2000] QB 451. In particular he had in mind the statement of Lord Bingham CJ at [25] where he stated “a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge … .”

The court therefore adjourned without the judge giving any ruling on the application that he should withdraw from the trial. On 6 March 2000, the hearing was resumed. Prior to the hearing the judge had submitted to counsel for the various parties a copy of a judgment giving his decision that he intended to continue as the trial judge. On the Friday, prior to the hearing being resumed on the Monday, Mr Williams had faxed the court to say that he wished to make submissions upon the issue of the judge’s disqualification. However, Judge Cole was not prepared to hear further submissions. The judge would have been at liberty to hear further submissions and, if necessary, reconsider the judgment he had prepared since it would not take effect until read or handed down in court. Instead he read out the judgment he had prepared. In the course of that judgment he repeated his description of his relationship with the Chief Constable in very much the same terms as before. He then added:

“As the case had been allocated to me personally by the Presiding Judge of the circuit Mr Justice Astill I said that I would not give a ruling until I had had the opportunity of seeking his further directions. This I have done and I have told him that I can see no reason why I should not continue to try the case. He has asked that I do so but has suggested that if counsel for Mason is dissatisfied by my ruling he should make an urgent application for judicial review so that the trial date of the 3 July 2000 is not prejudiced.

I realise that the decision is one for me alone. As I have already indicated I propose to try the case myself for the following reasons:

1) I have made full disclosure of my connection with the Chief Constable and I am satisfied that there is no risk of bias.

2) The issues which I have to determine seem to depend upon the facts as outlined to the Chief Constable and his subsequent actions. They should not affect his credibility, but even if they do there is no risk of the defendant not having a fair trial.

3) The Chief Constable is not a personal friend of mine nor am I closely connected with him.”

The trial judge having read out his judgment added:

“Of course any matter involving the fairness of a trial will always by me be kept under close scrutiny, and at any stage of course circumstances, evidence, may differ which means that I have to take a different course. But everyone will know that who knows me, that I will always keep that situation under control and stress that I will ensure that every defendant in this case, as in any other, will get a fair trial.”

Mr Williams then sought to make submissions and refer to the Locabail decision. The judge indicated that he was already aware of the case and had read it and refused to hear further submissions.

Mr Shepherd who appeared as counsel on behalf of McClelland then indicated that, having had the opportunity to consider the Locabail decision, he would also take objection on behalf of McClelland.

Mr Williams then made an application for an adjournment of the hearing to enable an application for permission to apply for judicial review to be made. He explained that he had not made an application earlier because he thought the judgment he had received was a draft.

Mr Williams now makes submissions which are adopted by Mr Shepherd. First, he contends that the refusal of the judge to allow proper submissions as to whether he should disqualify himself from being the trial judge constituted an infringement of the defendants’ right to be heard. Secondly, he contends that the judge should have disclosed his relationship with the Chief Constable earlier and thirdly, he contends that the judge should not have tried the case because of that relationship.

Although Mr Williams feels aggrieved about the way the judge had behaved, we would not criticise the judge for not hearing further submissions before he gave his judgment. It is always unwise to assume that an advocate has nothing new to say but here Mr Williams could do no more than refer to the Locabail decision which the judge had already studied. The judge, having applied the approach which that case laid down, had come to the conclusion that he was satisfied that it was proper for him to continue as the trial judge for the time being. As the judge had come to a clear conclusion as to what should be the result, there was little purpose in his going through the motions of hearing further submissions on an issue which did not lend itself to detailed argument. If the judge was wrong in his conclusion, in reality there was no prospect of any further submissions by Mr Williams persuading the judge of this. As to judicial review, the judgment which had been sent to Mr Williams gave him the opportunity to make an application for judicial review if he considered this was appropriate. He did not do so and in these circumstances the judge was not only perfectly entitled to continue with the hearing but was right to do so. To grant an adjournment on 6 March would obviously cause considerable inconvenience to the arrangements which had been made. If the judge was satisfied that his decision was right (as he clearly was), there would have been no justification for putting the other parties and witnesses to the inconvenience which an adjournment would involve. In any event, we doubt whether Mr Williams would have obtained permission on behalf of his client to apply for judicial review, but if he wished to apply, he could still have done so. As to the delay in the judge making his announcement, we can well understand how it might not have occurred to the judge earlier that he should make the announcement. In any event the delay could not affect the outcome. More important is the question whether the judge’s decision was right.

Since the decision in Locabail there has been a further decision of the House of Lords in Magill v Porter and Weekes [2001] UKHL 67. In his speech in the latter case Lord Hope put to rest the conflicting views as to how the test in cases of apparent bias should be expressed. The approach should be:

“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 that the tribunal was biased.”

In addition to the decision of the House of Lords in Magill, there has also been the decision of the Court of Appeal (Civil Division) in Taylor v Lawrence (The Times 8 February 2002).

The trial judge was right to disclose his relationship with the Chief Constable, although no one should have been surprised that there would be this sort of relationship. As the judge indicated, this was an almost inevitable consequence of the trial taking place before a local judge. Unless special arrangements were made for a judge from a different part of the country to hear the case, it is very likely that all the judges would know the Chief Constable. But questions of convenience cannot determine issues of this nature and if necessary a judge would have to be transferred from a different area if this was the only way in which the right to a fair trial could be achieved. The question therefore remains as to whether there was any real possibility of bias.

The important feature of the test as propounded by Lord Hope is that it is necessary to consider what would be the reaction of a “fair-minded and informed observer”. Such an observer would, in our judgment, be conscious that the relationship between the judge and the Chief Constable was a formal one. It was not the “personal friendship” or the close acquaintanceship referred to by Lord Bingham in the passage from his speech which we have quoted. More importantly this is not a situation where the credibility of the Chief Constable was in issue. We have had the advantage of being able to read the relevant transcript dealing with the evidence of the Chief Constable including his cross-examination. It is clear, as is accepted by counsel, that the truthfulness and good faith of the Chief Constable were not in issue. What was in issue was what had happened in connection with the Chief Constable giving his authority for the covert surveillance and the Chief Constable’s account of this was accepted as being the basis upon which the judge should come to his decision. The relationship relied on could not affect the evidence which was not in dispute. For these reasons we reject the grounds of appeal based on the relationship between the Chief Constable and the judge.

The judge indicated that he had consulted the presiding judge. There can be no objection to this, but the decision remains that of the trial judge. Judge Cole used the word “directions”. A presiding judge may advise but not direct. Here, while the judge referred to directions, he made it clear he could personally see no objection to his sitting and he stated expressly that whether he did so or not had to be his decision. He was rightly not asked by counsel to reconsider his decision because what occurred during the evidence of the Chief Constable did not create any grounds for doing so.

COVERT SURVEILLANCE

We turn to the difficult issue which arises out of the reliance by the prosecution on the covert recordings. As to their admissibility, the judge heard extensive evidence and argument. We have before us the transcripts of the evidence given on 6, 7 and 8 March 2000. The judge gave his ruling on 13 March.

In 1984 the Home Office issued guidelines on the use of equipment in police surveillance operations. The guidelines on the Use of Equipment in Police Surveillance (1984) herein known as “the Guidelines”. It was these guidelines which the Chief Constable thought he was appropriately applying when he gave his authorisation. The Guidelines point out that these surveillance operations may involve encroachment on privacy. They recognise that most concern is directed towards the use of equipment in circumstances where the targets of surveillance might reasonably assume a high degree of privacy, for example in their homes or in a hotel bedroom. The Guidelines add that the increasing sophistication of equipment enhances the need for sensitivity. Careful consideration at a senior level in the police service therefore needs to be given.

Paragraph 4 of the Guidelines sets out the criteria which should be met before authority is to be given. The criteria are;

i) the investigation concerns serious crime;

ii) normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried;

iii) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;

iv) the use of equipment must be operationally feasible.

The Guidelines continue in paragraph 5:

“In judging how far the seriousness of the crime under investigation justifies the use of particular surveillance techniques, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. Where the targets of the surveillance might reasonably assume a high degree of privacy, for instance in their homes, listening devices should be used only for the investigation of major organised conspiracies and other particularly serious offences, especially crimes of violence.”

The guidance also requires the keeping of a central record.

In his judgment deciding that the evidence of the surveillance should go before the jury, the judge pointed out that it was the prosecution case that the defendants were players in the teams involved in the robberies, that it was not in dispute that the evidence against individual defendants was weak and on some charges non-existent without the tapes, that many forms of detection had been considered and, where appropriate, used such as identification parades, forensic tests etc, but that that had not revealed further evidence upon which particular defendants could be charged. However, he added that on the evidence which was before him the Chief Constable and Sergeant Fairfield were both agreed that forensic tests were still to be carried out and further identification parades were to take place. “Indeed the Chief Constable was very hopeful that such identification parades would lead to a successful identification”. He therefore came to the conclusion the Chief Constable could not have been satisfied that normal methods had been tried and failed.

However, the judge, while accepting that the Chief Constable could have deferred his decision, concluded that the fact that he did not do so did not mean that he had acted unlawfully or illegally. He found that no mala fides existed and that the Chief Constable acted throughout in good faith. However, the judge also found that the decision of the Chief Constable was not in accordance with a strict interpretation of the Guidelines.

The judge considered section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) and concluded that in the exercise of his discretion under section 78 he would allow the tapes to be used in evidence.

At the time that the judge made his decision, the Human Rights Act 1998 (“the 1998 Act”) was not in force. However, the judge made his decision taking into account the requirements of Articles 5, 6 and 8 of the European Convention of Human Rights.

THE ADMISSIBILITY OF THE TAPE RECORDINGS

Although the trial took place before the 1998 Act came into force, Mr Webb, for the Crown, invited the court to deal with the appeal on the basis that its provisions were in force when the trial before Judge Cole took place. As we accept the approach which the Crown invites us to adopt, we do not need to consider any issue as to whether the 1998 Act actually applied to the trial. We will assume that it did. Accordingly, it is necessary to consider whether the trial judge was wrong to come to the conclusion that he did having regard to (a) the provisions of sections 76 and 78 of PACE, (b) the common law and (c) the 1998 Act.

While the submissions of the appellants differ in their emphasis the three heads which we have identified encapsulate the arguments they advance. We will therefore evaluate their submissions under these three different heads, without forgetting that ultimately the question we have to determine is a global one, which requires us to consider the appellants’ arguments as a whole.

SECTIONS 76 and 78 of PACE

The provisions of sections 76 and 78 of PACE are well known but we should set them out because they go to the heart of the issue which is before us. Section 76 provides (so far as is material):

“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof;

the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

(8) In this section ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).”

Although section 76(8) is only an inclusive section, at first sight what occurred would not be regarded in ordinary language as being oppression, taking into account section 76(8). In R v Fulling [1987] QB 426, Lord Lane CJ made it clear that this was the way the word ‘oppression’ was to be interpreted. He cited the third definition in the Oxford England Dictionary for the fact that the word includes the “exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc., or the imposition of unreasonable or unjust burdens” (at p. 432).

We refer to this approach because it is certainly the appellants contention that the police acted in a wrongful manner. They suggest that having regard to the way that the appellants were treated, their confessions could be unreliable.

Turning to section 78 which deals with the exclusion of unfair evidence, the section provides:

“(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence …

The language of section 78(1) has been given a generous application by the courts and this has enabled the European Court of Human Rights to regard it as providing a significant protection to an accused person. (See, for example, Khan v United Kingdom [2000] 8 BHRC 310, application no. 35394-97, and the case of PG and JH v United Kingdom [2001] application no. 44787-98.) The general approach of the English courts is not necessarily to exclude evidence because it has been obtained in a way which is contrary to law or contrary to rules contained in the Codes of Practice under PACE. As is stated in Archbold, Criminal Pleading Evidence and Practice (2002) para. 15-433:

“The general approach of the courts to evidence obtained by trickery is to say that deceit which simply provides a defendant with an opportunity to confess to the offence, as opposed to trickery that positively induces a confession, will not result in a confession being excluded.”

Notwithstanding this in the great majority of situations if the evidence would be excluded under common law as being obtained in abuse of process or under Article 6 of the European Convention, it is most unlikely to be held admissible under section 78 of PACE.

The complaints of the appellants with regard to the decision of the judge are not to the relevance of the contents of the tape. They were clearly highly relevant. Instead, it is argued that the way the evidence was obtained was contrary to PACE. The submission is not so much based on a contravention of the language of PACE. The allegation is that the surveillance took place contrary to the spirit of the relevant Codes of Practice issued by the Secretary of State under sections 66 and 67 of PACE. Reliance is also placed on a failure to comply with the Home Office Guidelines, which were what the Chief Constable considered he was acting in accordance with when he authorised Operation Brassica.

A proper assessment of the appellants’ submissions raises two questions at the outset. The first is whether, if the police had not been acting in accordance with an overall strategy, it would have been lawful for them to arrest the appellants when they did for the offences for which they were arrested. As to this, Mr Webb, in submissions that it is not necessary for us to repeat, established beyond doubt that the appellants’ arrests would undoubtedly have been perfectly lawful if Operation Brassica had not been authorised. On the evidence there were proper grounds for the arrests and ignoring the fact that the police were working to an overall plan, there was nothing improper about the purpose for which the arrests took place.

The second question is whether the police were acting in good faith believing they were entitled to do what they did. As already indicated it was not suggested that the Chief Constable gave his authority other than in good faith. In addition whether or not the Guidelines applied to what happened in the police cells, the police considered they were appropriately applying the Guidelines and entitled to act as they did. This is the important distinction between this case and the recent decision of Newman J, at the Nottingham Crown Court in R v Sutherland on 29^th January 2002 to stop a trial for abuse of process. In that case the police had acted in bad faith in covertly recording conversations in an exercise yard between the accused and their solicitors. In addition the recording of the conversations would or could affect the fairness of the trial process as Newman J was of the opinion that there could not be equality of arms between the prosecution and the defence.

Here the trial judge came to the conclusion that the Guidelines had not been complied with. He did so because of the requirement in the Guidelines for normal methods of investigation to have been tried and failed or be unlikely to succeed if tried. The judge, in his ruling on the admissibility of the evidence, stated:

“In the course of the evidence before me, the Chief Constable and Sergeant Fairfield both agreed that further forensic tests were still being carried out and further identification parades were to take place. Indeed the Chief Constable was very hopeful that such identification parades would lead to a successful identification. In those circumstances, I then ruled that, on a literal interpretation of [4](b), the prosecution could not argue that normal methods must have been tried and failed, on the basis, for example, that identification parades had not taken place. Furthermore, as the Chief Constable had been very optimistic that there would be a positive identification, I could not find that normal methods would be unlikely to succeed.”

In coming to this conclusion, the trial judge may have been unduly rigorous in his approach because the object of the exercise was not to obtain evidence against one or other of the suspects in relation to a particular offence but to obtain the evidence which would enable the police to bring to justice those who were involved in the conspiracy to carry out numerous robberies in the Coventry area. Viewed in this way, it was Sergeant Fairfield’s evidence that “other policing means had failed” (evidence on voir dire, transcript, vol. III, p. 22F). As the Chief Constable made clear in his evidence, he was approaching the matter “globally”. During cross-examination by Mr Shepherd on behalf of McClelland (7 March 2000, transcript, vol. IV, p.52) as to whether normal methods of policing had been tried and failed, the Chief Constable stated that it was his view that normal methods of policing had not worked and there was reason to think that they would not work in the future. He added (p.53F) that while he did not consider that identification parades would “result in progress, my hope was that it would, but here was a further opportunity given the serious nature of these offences to gain even more evidence”.

More evidence independent of the tapes was in fact obtained against some of the appellants. The additional evidence included fingerprints and identification evidence. This resulted in McClelland pleading guilty to one offence. However, in order to establish the extent of the appellants’ alleged involvement in the robberies in the Coventry area, the prosecution had to rely upon the tapes. Without the tapes there was no overall case against the appellants which was the object of the exercise.

It is also argued that the Chief Constable and the other officers were acting unlawfully in purporting to rely on the Guidelines. It is said that the Guidelines are not intended to apply to those who have been arrested since the criterion contained in paragraph 4(c) of the Guidelines refers to the covert listening devices “leading to an arrest and a conviction”, and here the appellants had been arrested already. It is also said that the law which governs the treatment of those arrested and detained is contained in PACE and the Codes of Practice made in accordance with PACE, so at least where the Guidelines and PACE are in conflict, PACE prevails.

We are far from satisfied that when the Guidelines were formulated, they were intended to apply to surveillance of the sort that took place here of those in custody in police cells. However, even if the Guidelines were not intended to apply to suspects already in custody, as there was no alternative guidance published, we consider that it was reasonable for the Chief Constable to apply the Guidelines by analogy, unless they conflicted with PACE. Furthermore, if there was a breach of the Guidelines as identified by the trial judge, we do not regard the breach as being of any significance. This was a situation where the police were responding reasonably and proportionately to a very serious threat to the safety of the public and law and order, and so were entitled to seek evidence not only of individual wrongdoing but of a conspiracy to commit armed robbery. Without surveillance it was sufficiently doubtful whether evidence would be forthcoming of the required quality to justify surveillance as long as it did not result in unfairness to those being subjected to the surveillance.

More difficult is the issue as to whether the surveillance in cells is inappropriate treatment of those in police custody who are intended to be protected by the safeguards contained in PACE and the Codes. Together they provide substantial protection for suspects who have been arrested. We do not need to refer to each provision which provides that protection. The protection is detailed and has proved a valuable deterrent to improper practice, and has resulted in a highly desirable improvement in standards on the part of the police. On the other hand, the surveillance is not directly in conflict with any provision of PACE or the Codes. As we have pointed out Mr Pearse Wheatley is restricted to submitting that the surveillance is contrary to the spirit of PACE and the Codes, for example, because the surveillance distorts the role of the custody officer.

We have no doubt that it is highly desirable that a statutory code should be established for surveillance of the sort that occurred here if it is a practice which is to continue but in our conclusion is that it is not contrary to the spirit of PACE or the Codes for there to be covert taping of what is said in the cells. It may be unattractive but the offences we are here considering are more offensive.

As from 25 September 2000 there has been legislation, namely the Regulation of Investigatory Powers Act 2000 (“RIPA”). Part II of that Act applies to directed surveillance (section 26(2)) and intrusive surveillance (section 26(3)). Covert taping would seem to come within the category of intrusive surveillance. However, it is not clear that it does so if it takes place in police cells, since in order for it to be intrusive it must take place “on any residential premises” (section 26(3)). It is doubtful whether any other statutory provision applies.. Section 71 of RIPA provides for the issue of codes of practice. At present no code of practice has been issued but there is a consultation process taking place and paragraph 4.3 of a draft code of practice indicates that a prison cell is within the definition of residential premises. We have heard no argument as to this but even if a prison cell falls within the definition, it does not follow that a police cell is necessarily residential. Further clarification is in our judgment desirable, though we recognise that the existence of RIPA has materially improved the situation and it is certainly desirable that what happens in police cells be treated as intrusive surveillance.

Prior to RIPA this court had considered the question of covert surveillance in cells in R v Bailey and Smith (1993) 97 Cr. App. R. 365. Simon Brown LJ considered the earlier authorities. In particular he referred to Ali and Hussein [1966] 1 QB 688 and Stewart (1970) 54 Cr. App. R. 210. In both these cases evidence of covert recordings was regarded as being admissible. The same approach was adopted in Shaukat Ali (The Times 19 February 1991) to which Simon Brown LJ also referred. As to the recording of conversations in an interview room, the court stated:

“We are very firmly of the view that the police in the most serious circumstances of the investigations being conducted, whatever views some may have against eavesdropping by bugging and so on, did not act unlawfully, although the appellant by that time had been charged. There was clearly no oppression of him and no questioning at all. Even if we had formed a contrary view, we would not rule that the learned judge’s exercise of discretion was wrong.”

Simon Brown LJ pointed out that Shaukat Ali was binding upon him and went on to reject the contentions which were made that the bugging, which took place in a police cell, was unlawful or resulted in any unfairness. He regarded “as mere rhetoric”, a submission that deceitful conduct of the sort which occurred there “drove a coach and horses” though the Codes to the point where the police would in future not bother even to interview suspects. He concluded the judgment of the court in these words:

“[W]here, as here, very serious crimes have been committed – and committed by men who have not themselves shrunk from trickery and a good deal worse – and where there has never been the least suggestion that their covertly taped confessions were oppressively obtained or were other than wholly reliable, it seems to us hardly surprising that the trial judge exercised his undoubted discretion in the manner in which he did. If contrary to our view evidence of this sort is generally to be regarded as undesirable and inadmissible, then in our judgment it is for the Codes to be extended accordingly. As the legislation and Codes presently stand, we do not think it unlawful to have obtained, nor unfair to have admitted, these taped conversations.”

We find the reasoning of Simon Brown LJ highly compelling as to the current result in a somewhat different situation here. So far as the arguments based on PACE alone are concerned we accordingly reject the arguments of the appellants.

The Human Rights Act

In Bailey and Smith, it was not necessary for the court to consider the impact of the European Convention on Human Rights. Here Mr Pearse Wheatley relies upon Article 8 as being the next plank in his argument. He relies on Article 8 to establish that the covert taping of the conversations constitutes an infringement of the appellants’ right to privacy. He is right that what occurred does infringe Article 8(1). Furthermore it is now clear that the prosecution cannot rely on Article 8(2) to justify what took place because the surveillance was not conducted according to law. (See PG and JH v United Kingdom) This is because of the lack of any legal structure to which the public have access authorising the infringement. If there had been such authorisation there would have been no breach.

The non-compliance with Article 8 does not, however, mean that the tape-recordings cannot be relied upon as evidence. In the case of PG and JH v United Kingdom the European Court of Human Rights stated at para. 76:

“The court re-iterates that its duty according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Whilst Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law… … It is not the role of the Court to determine, as a matter of principle whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged ‘unlawfulness’ in question and, where violation of another Convention right is concerned, the nature of the violation found”.

Here, as we have already explained, another Convention right apart from Article 6 is involved. The right is that contained in Article 8. The fault is not having legislation like RIPA which clearly establishes what is the legal position. It is the responsibility of the Government to provide remedies against this violation of Article 8. However, the remedy does not have to be the exclusion of the evidence. The remedy can be the finding, which we have now made, that there has been a breach of Article 8 or it can be an award of compensation. The European Court of Human Rights recognises that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of Article 8 creates for the appellants. The infringement is, however, a matter which the trial judge was required to take into account when exercising his discretion under section 78 of PACE.

We turn to the next plank in the argument. The suggestion is that the covert recording breached Article 5. We reject this argument. As long as the arrest of each of the appellants was lawful then we do not accept that they have been unlawfully deprived of their liberty. The arrests here were for a lawful purpose as well as to enable the surveillance to take place. The fact that the police were operating in accordance with a strategy designed to obtain additional evidence by covert recording does not turn lawful arrests into unlawful arrests. Reliance is placed by Mr Pearse Wheatley on the case of Winterwerp v The Netherlands (1979) 2 EHRR 387 at para. 37, but we find no support for Mr Pearse Wheatley’s argument in that case. In so far as it establishes that the circumstances in which an arrest should be regarded as lawful should be narrowly construed, we agree but so construed the arrests were lawful.

Next Mr Pearse Wheatley relies upon Article 6. Article 6 for the purposes of the present case does not add anything to section 78. If there was no unfairness caused by the tapes being relied upon in evidence then there is no breach of Article 6. Mr Pearse Wheatley rightly contends that everyone charged with a criminal offence is entitled to remain silent and not to incriminate himself but this right is not contravened if a person chooses to volunteer information as to the offences which he has committed. The police did no more than arrange a situation which was likely to result in the appellants volunteering confessions. The appellants were not tricked into saying what they did even though they were placed in a position where they were likely to do so. If evidence of a satisfactory nature could be obtained by other means, it is preferable that it is obtained by those means rather than covertly. Here, it was not unreasonably considered by the Chief Constable that the evidence would not be obtained by more conventional means. In so far as we need to do so, we would here rely upon the judgment of this court in R v Perry (3 April 2000 unreported 99-2968-Y2). In that case, as in this, Mr Pearse Wheatley relied upon similar arguments to those which he relies upon here with regard to video filming at a police station. A sequence from a film taken covertly on a video was selected and used for the purposes of an identification parade, but this Court still upheld the decision of the trial judge that the evidence was admissible.

In Khan v UK the ECtHR was of the view that a finding of a violation of Article 8 was in itself just satisfaction for any damage which the applicant may have suffered. Mr Pearse Wheatley contends that the evidence which the tapes provided in this case was not reliable and the quality of the evidence was very much in question. It is on this basis that he distinguishes the case of Khan. Whether the evidence was reliable or not was very much a question for the jury. The appellants were cross-examined as to the clarity of parts of the tape and the jury heard the tapes for themselves. This evidence was supplemented by what a police officer said was on the tapes which were indistinct. The officer gave the evidence with the benefit of equipment which improved the quality of the tapes. If the appellants were suggesting that the tapes did not say what was given in evidence either at the trial or even before the present appeal, they could have had the tapes listened to by an independent expert and his evidence could then have been considered. No such evidence has been tendered. Instead the appellants adopted the tactics of not giving evidence and not subjecting themselves to cross-examination and not calling independent evidence as to what was on the tapes. As to the great majority of the tapes there was no challenge and the challenges which were made were to isolated portions. What is important is that if the tapes were to be admissible the judge should give the jury a clear warning as to how they should approach the tapes and in particular that they had to be sure that they accepted that the particular appellant who was said to be speaking was actually speaking at the relevant time. A warning as to this was given by the judge (see pages 15D-17C).

The appellants did not want the transcript of the contents of the tapes to be with the jury when they retired. We are not quite sure why the judge thought it right to agree to this but he did so and therefore was prepared to remind the jury what was on the tapes if this is what they required.

There was reason for believing that during the first stage of the covert surveillance in May one or more of the appellants may have been taking cannabis. However, there is nothing to suggest that this would have affected the reliability of the admissions which were made during that period of surveillance.

Mr Williams on behalf of Mason and Mr Shepherd on behalf of McClelland advanced parallel arguments to those of Mr Pearse Wheatley. We have those arguments in mind but they do not require separate treatment.

In giving his judgment on the objection to the admissibility of the tapes, the judge took into account Articles 5, 6 and 8 of the Convention (transcript, vol. VI p.6D). He had well in mind the arguments advanced by Mr Pearse Wheatley. He appreciated the importance of determining the lawfulness of the arrest and he perfectly properly came to the conclusion that the appellants “were not arreste[d] to create evidence but in the hope that evidence would be forthcoming” (transcript, vol. VI, p.7C).

The judge explained his approach to Articles 5, 6 and 8 in a manner which was perfectly acceptable. At the conclusion of his decision, he stated that he had exercised his discretion under section 78 and that he would allow the tapes to be used in evidence. We are satisfied that he was entitled to exercise his discretion in that way and his decision was a perfectly proper one. Indeed we would have come to the same conclusion ourselves

THE POSITION AT COMMON LAW

It is also argued that the proceedings should have been stayed as being an abuse of process at common law. But this argument depends on the submissions we have already dealt with so it is also rejected. The critical findings are that there was no bad faith on the part of the prosecution, nothing unlawful which was done and nothing unfair in admitting the tapes in evidence. We reject the arguments to the contrary individually and collectively.

Once the judge’s decision as to the admissibility of the tapes is upheld, most of the arguments advanced by the appellants fall away and subject to the remaining point as to the judge’s summing-up, we reject all the appellants’ grounds of appeal.

We turn finally, therefore, to the point taken on the judge's direction to the jury based upon the fact that no defendant gave evidence. Mr Webb has told the Court that prior to speeches and following a discussion with defence counsel, he rose at a time when the Court was about to adjourn to invite the judge to discuss any relevant aspects of the law. Defence counsel already knew, and had agreed, prosecuting counsel's stance on ‘silence’. The prosecution were not proposing to rely on any adverse inference from the silence of any defendant during interview. As far as the absence of each defendant from the witness box was concerned the usual direction on adverse inferences was appropriate. The judge declined the opportunity for discussion and accordingly these important topics were never discussed at all with counsel. Having regard to what was said in the summing-up about the evidential relevance of a defendant not giving evidence, the failure of the judge to accept the offer of assistance of counsel was a particularly unfortunate departure from what by now should be regarded as routine practice to give counsel the opportunity to discuss any issues they wish to raise with the judge at the close of the evidence and prior to speeches.

At pages 8 and 9 of the transcript the learned judge gave the following directions:

“So far as the defendants in this case are concerned, not one of them has given evidence. That does of course mean that there is no evidence from him to undermine, contradict or explain the prosecution case, and that is a matter which you may take into account. However, in this case I must direct you not to hold his failure to give evidence against him - I am sorry. I have misled you. Could I just start that again? The defendant first of all said nothing when he was asked questions about these matters, or some of them did on what you may think were the vital pieces of evidence, and I direct you that when a defendant in the course of his interview says ‘no comment’ and did so at that particular stage when advised and represented by a solicitor, that you must not hold his silence or refusal to answer questions against him. That means that it cannot by itself provide any additional support for the prosecution's case. But each one of them has not given evidence in this case and that means of course that there is no evidence from him which can undermine, contradict or explain the prosecution's case, and that is a matter which you may take into account.”

The first point to make is that no member of the Bar invited the judge to correct the direction. That this part of the summing up was deficient is really beyond argument. Quite apart from the judge being confused, the judge, having told the jury that the absence of a defendant from the witness box was something “which you may take into account”, did not go on to give the jury guidance as to how it should be taken into account.

Usually it is desirable for juries to be directed in accordance with the Judicial Studies Board specimen direction on section 35 of the Criminal Justice and Public Order Act 1994, though a judge is not compelled to follow the direction. However, although the judge did not use the words of the opening requirement of the specimen direction to tell the jury that the appellants had the right not to give evidence, he did immediately before the direction complained of say the defendants were entitled in effect to say to the prosecution; “… you brought these charges. You go ahead. You prove them. I am taking no part in this case at all”. So the spirit of this part of the specimen direction was mentioned. In addition, the judge did tell the jury that they “may” draw an inference twice so he did leave the question for them to decide as to whether or not to draw an inference. Nonetheless, it would have been preferable if he had used the clearer words of the specimen direction, “that you may draw such inferences as appear proper”.

The warning in the specimen direction to the effect that no question of holding a defendant's absence from the witness box against him can arise unless the jury are satisfied that there is a case for him to answer was certainly not given. However, in the context of this case this omission is purely technical since there was undoubtedly a case to answer in respect of all the counts of which the appellants were found guilty. Again, the judge did not invite the jury to consider whether it was fair to hold the failure of the appellants to give evidence against them. However in this case it is difficult to see why it would not be fair to hold their failure to testify against them having regard to the terms of section 35.

In R v Cowan and others [1996] 1 Cr App R 1, Lord Taylor CJ (at p. 7) highlighted 5 essentials of a good direction. The first is as to the burden of proof. This requirement was complied with both before and after the direction complained of. The second was as to the right to silence. This point we have already considered. The third is that an inference alone cannot prove guilt. This direction was not given but the prosecution had ample other evidence so this failure is of little significance. The fourth we have also dealt with. It is the need for a prima facie case. The fifth refers to how to deal with any explanation for not giving evidence, but this was hardly needed here because the appellants had no explanation.

Mr Webb submits that notwithstanding the limited direction upon what is ordinarily a very important topic, in this case no injustice could conceivably have been occasioned. This failure he suggested can be regarded as technical since there was undoubtedly a case for each defendant to answer on any possible interpretation of the evidence. The real issue in the case was whether the jury could be sure that the various confessions in the covert tapes (a) could be related to a particular allegation in the indictment and (b) could be attributed to a particular defendant. The prosecution's case was that the jury could be sure, the defence case was that they could not. Reasons relating to the quality of the tapes and the reliability of the voice identification evidence were advanced which the jury had to consider. These matters the judge made clear.

On behalf of the prosecution it is said that once the jury were sure first that defendant X had spoken the words on the tape which had been attributed to him by a witness and second that those words amounted to a confession to an offence for which X was indicted, as a matter of common sense, X's absence from the witness-box could have had no bearing on the verdict.

That may be true, but it overlooks the possibility that in deciding one or the other or each of the two basic issues we have identified the jury may have had regard to the fact that defendant X had not availed himself of the opportunity either to contradict the evidence which identified him as the speaker or to proffer an explanation for the words attributed to him which undermined the prosecution case that the words amounted to a confession.

However, it seems to us that if in the case of one or more of these appellants this was the approach of the jury it was a wholly legitimate approach. Even if the Judicial Studies Board direction had been given, the legitimacy of the approach would have been unaffected. The complaint is not that something was said which should not have been said. The complaint is about what was not said and what was not said did not bear on this issue. So we are satisfied the defendants were not prejudiced by the defect in the summing up. In our judgment the judge’s failure to give the conventional direction in the circumstances of this particular case does not render unsafe or unfair the conviction of any defendant upon any count. In each case the covert tapes provided overwhelming evidence against them.

The appeal is dismissed.

Question for Certification for the House of Lords Leave to appeal refused.

Whether evidence derived from the covert recording of conversations in police cells, which is contrary to Article 8 of the European Convention on Human Rights, can be admitted in evidence if this would not affect the fairness of the trial, when the recording took place after a defendant had been arrested lawfully but a purpose of the arrest was to provoke conversation so as to evesdrop on the defendant with a view to obtaining evidence of his participation in a serious offence.