COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Hon Judge Denison QC, Common Serjeant of London
London, WC2A 2LL
B e f o r e :
MR JUSTICE HUNT
MR JUSTICE PITCHFORD
|- and -
|David Andrew Howell
Eamon Francis Harris
Frederick Malcolm May
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Michael Wood QC for David Howell
Anthony Arlidge QC and Christopher Campbell-Clyne for Eamon Harris
Mukul Chawla QC for Frederick May
Crown Copyright ©
Lord Justice Judge:
The Crown's case – in summary
The defence case – in summary
"What you make of Hector Harvey is entirely for you to say. He is, on any view at all, a big-time villain. He is a man who will lie to further his own interests, and he has done so throughout, certainly, the first part of this investigation. He has a motive for giving evidence, namely to achieve or hope to achieve a reduction in the long sentence he will undoubtedly receive…"
He went on to remind the jury of the defence contention that they could not "rely on a single word Harvey says", and that his evidence should be dismissed out of hand. He also drew the attention of the jury to the Crown's contention that, although they should hesitate "long and hard before accepting his word, on the essential elements…he is telling the truth". Having himself reminded the jury of the care and caution needed in their approach to Harvey's evidence, bearing in mind his background and the lies he had told, as well as the inconsistencies, he told the jury that they must, "having taken all those matters into account and having done so against the background of all the other evidence in the case, decide whether Hector Harvey is a witness upon whom you can safely place reliance".
"make up your minds whether you can rely on the evidence of Kevin Garner. He was a corrupt police officer engaged in serious criminality to which he has pleaded guilty and for which he awaits sentence. He knows that, by cooperating with the authorities and by giving evidence, he may well get his sentence reduced by a significant amount. Bear those matters in mind, but bear in mind also that he has admitted the full extent of his then criminality…and then having taken all those matters into account, decide whether he is giving or may be giving wholly untruthful evidence against these defendants, or whether he is giving a truthful account of what occurred on 21 January 1995."
"Basically, I mean, all through this I have always said what I did, but I have been protecting, not necessarily Paul Smith, but Eamon Harris, but I couldn't say Paul Smith without involving Eamon Harris. There had been some phone calls to Dwyer's, Kevin Dwyer's, black Kevin, while I was there. It was Eamon Harris, and I spoke to him and I have been denying that to sort of protect him. Everything else I said was the truth, it was just that one point, and the other involvement was when I said, that when Fred May and Davie Howell took all the bags, they didn't. They left two with me and I took, that was Eamon Harris's bag and Paul Smith's bag, and I took that and gave that to Eamon Harris. That's the only difference, like what I been not saying."
"on his own account, [Dwyer] was looking after money which, you may think, he must have known was stolen, and therefore in a sense he is an accomplice in the robbery. If only for that reason, you should approach the evidence with care and caution, and you should not necessarily assume that every single thing that he says is correct."
The grounds of appeal
(a) Pre-trial issues
Public Interest Immunity (PII)
Abuse of process / exclusion of evidence under s78 of the Police and Criminal Evidence Act 1984 / Criminal Procedure and Investigation Act 1996 / Article 6 of the European Convention of Human Rights.
"Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust…In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: First, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."
We do not believe that these observations were intended to be confined to cases where the issue under consideration was delay. As Lord Lane pointed out earlier in his judgment, allegations of abuse "may arise in many different forms", including complaints about the methods used to investigate the offence. The passage we have just quoted emphasises the exceptional nature, for any reason, of the imposition of a stay. Notwithstanding the developing jurisprudence, and indeed the implementation of the Human Rights Act 1998, these principles are unchanged.
(b) Trial rulings
Surveillance or observation log
The summing up
The evidence of Harvey, Garner and Dwyer
"We accordingly would wish to discourage the attempts being made, with apparently increasing frequency, in applications and appeals to this court to rely on Percival (BAILII:  EWCA Crim 2012 ) as affording some sort of blueprint for summings up in cases of delay. It affords no such blueprint. Indeed, in this area, as in so many others, prescription by this court as to the precise terms of the summing up is best avoided. Trial judges should tailor their directions to the circumstances of the particular case."
General criticism of the summing up
Jury in retirement
The Watson direction
(e) Fresh evidence
Terence McGuinness, Duncan Hanrahan, Neil Putnam
LORD JUSTICE JUDGE: In this case copies of the judgment in draft have been sent for each of the appellants and counsel for the Crown. We are grateful to counsel for looking through the draft. As a result of observations from counsel, there have been some minor amendments, mainly by way of typing but, in particular, a rewriting of paragraph 154 to deal with statements from Mr Raison. They do not effect the judgment in any way.
What we propose to do is not read out this judgment, which would take a great deal of time and which in any event is subject to reporting restrictions, but we shall say that for the reasons in the judgment, which have been handed down, and subject to the amendments which are now included in the judgment, the appeals against conviction and sentence will be dismissed. Copies of the judgment will be made available to anyone who has a particular interest in or indeed a general interest in the case.
There are a number of aspects of the judgment which we require assistance about. As, at present, there is a passage in the judgment which deals with the position of the media. So, if we can take it in stages. Can copies of the judgment be supplied to representatives of the media. I am doing this, in particular, because this passage is of particular significance to the media.
We go to paragraph 193. You will see there that we record the issue that arose at the conclusion of the argument. At paragraph 195, because of the way in which the issue had developed at the very end of the hearing, we record the indications we have given and we then went on, having reflected on what we regarded as essential principles, to express what, at that stage, would have to be a conclusion which was open to the contrary argument in due course. We now have been supplied with respondent's skeleton argument on disclosure to the press, for which we are grateful, and just now, a submission on behalf of the appellant, Harris, on this issue. Subject to the detail to which we shall come in a moment, having read those two skeleton arguments, we see nothing in them that serves in any way to change our view, whether by way of emphasis let alone by way of principle. So the judgment will stand as at paragraphs 193 - 197. We shall indicate that, it seems to us that, and I shall read this from paragraph 197:
"...the principle of open justice leads inexorably to the conclusion that written skeletons arguments, or those parts of the skeleton arguments adopted by the counsel and treated by the court as forming parts of his oral submissions, should be disclosed if and when a request to do so is received."
I hope Mr McLagan, if I may address you, that deals with the point you want to raise. It seems to be a matter of principle that the issue should have been decided and has now been decided.
There are some details which we need help about. As it seems to us, the whole of the judgment, if it were not for the contempt of court issue, the whole of the judgment would now be in the public domain. We have a submission, Mr Campbell-Clyne, about the statement of Hanrahan and the transcripts of the tapes that he has produced. We do not have a final view about this. Equally, we do not have a final view about witnesses in the Witness Protection Scheme but as at present we need to be satisfied why the material that was included in the skeleton argument should not be disclosed.
MR CAMPBELL-CLYNE: If I can deal with the witness in the Witness Protection Scheme first, I simply raise that as a possibility, in a sense the Crown are in a much better position to decide whether or not there is anything there that may cause them any harm. If, as I understand it, my learned friend does not seek to persuade your Lordship that anything contained in it could harm them then I would not seek to stand in the way of disclosure.
MR BROWN: If it were ever to be the case that the statement signed, or unsigned were to be passed over to the rest of the Crown, we would have representation, a skeleton argument. We have none, in our submission they should go.
LORD JUSTICE JUDGE: Thank you. What about Hanrahan?
MR CAMPBELL-CLYNE: Maybe I have misunderstood the situation and that all that is being sought is disclosure of the skeleton argument would not be with the witness statements attached. Since, what is contained in the skeleton argument is what Mr Arlidge referred to in Open Court, I do not think there is a sensible argument I could advance against it.
LORD JUSTICE JUDGE: Mr Arlidge referred, in the course of argument, to the passages in the statements of Mr Hanrahan. I can remember him reading parts of them out or drawing our attention to them.
MR CAMPBELL-CLYNE: My Lord, yes. The concern was in relation to disclosure of statements principally and precisely because Mr Alridge read out passages in open court which are reflected in the skeleton argument. I do not think I can argue that the skeleton argument should in any way be redacted to remove the references to Mr Hanrahan.
LORD JUSTICE JUDGE: Are there any other issues that you want to raise?
MR CAMPBELL-CLYNE: Only in relation to the Contempt of Court Act order.
LORD JUSTICE JUDGE: We will come to the Contempt of Court Act.
MR CAMPBELL-CLYNE: No my Lord.
LORD JUSTICE JUDGE: Mr Brown, subject to any public interest immunity issues which we have already dealt with, as it seems to us, the contents of the skeleton argument should all be disclosed, if sought. In relation to Moore and McGuinness, there is nothing for us to say; we are not ordering disclosure of statements. We are ordering of course the judgment to be disclosed and the skeleton arguments in relation to them. So far as Hanrahan is concerned, we deal with Hanrahan's evidence in the judgment, and part of that was referred to in the course of the skeleton argument or in the course of oral argument. It seems to us that that must be disclosed. So we will make the orders accordingly. The principle is as set out in the last paragraph of the judgment.
The next issue is contempt of court. There is a trial due to start in April and plainly publication of some of this material and indeed probably all the factual evidence might prejudice the fairness of the trial that lies ahead. For ourselves at the moment, we need some persuasion that publication of the material under public interest immunity paragraph 75 - 77 should not be published. Indeed, we think that we would like that published. Mr Brown needs to be modest about this, not least because we express our views about the way in which Public Interest Immunity applications should be conducted and that is a matter of general interest to the profession. Is there any reason why anyone could think publication of those passages 75 - 77 should not be permitted. Obviously 78 onwards is Public Interest Immunity material itself.
MR BROWN: My Lord, looking over paragraph 75 - 77, I could not see any reason why it should not be public.
MR CAMPBELL-CLYNE: My only concern is that those paragraphs by themselves would effect Mr Harris. My concern is that, if it is linked to an appeal in which it is reported his conviction was upheld, that would prejudice the trial.
LORD JUSTICE JUDGE: It is to be reported as R v H. Then abuse of process 87 - 103 (Pause). Now, in that section of the judgment we deal with the abuse of process arguments and the non admissibility and so on, and obviously the names are mentioned, in particular, the names of Gardiner, Garrett and Bridger - and excuse us for not giving them their full titles 103. Ignoring the details of the case, is there any possible justification for maintaining the contempt provisions in relation to paragraphs 97 - 103? Again, we are dealing with points of principle and, if the case is reported as H, we need some persuasion that those paragraphs, that it is necessary to maintain confidentiality of those paragraphs in the judgment.
MR CAMPBELL-CLYNE: My Lord, for my part no objection.
LORD JUSTICE JUDGE: You are focussing on 97-103. Mr Brown?
MR BROWN: The only matter that has crossed my mind, and I do not know whether Mr Campbell-Clyne can help, the detail, as my Lord has said to Garner, Garrett and Bridger, those characters will play a part in the next trial. It may be that, if it is known that Garner has given evidence before, it may be that a link could be made to Rigg Approach previously and other corruption.
LORD JUSTICE JUDGE: It will be made if Garner has given evidence. I cannot see any possibility of him not being cross-examined about his evidence in this trial.
MR BROWN: I can see the practical reality, but I do not know how the case will run.
LORD JUSTICE JUDGE: Let us go back to 87 - 96. Reported under the letter H. At the moment, it is difficult for us to see any basis on which the subsequent trial of Harris could be prejudiced. We obviously have an open mind about it and we want to hear submissions about those paragraphs because they introduce and make slightly more sense from what follows from 97 onwards.
MR CAMPBELL-CLYNE: My Lord, could I make this suggestion, that it might be possible to publish those paragraphs initially simply referring to Messers Harvey, Garner and Garrett, simply by their initials at this stage and then concern, in any event rightly raises.
LORD JUSTICE JUDGE: There are two aspects of this reporting. One is newspapers and television, who will be wanting to report this today or tomorrow or the next day. The others, law reporters who are at slightly more leisure and can put J and B and so on, without anybody being in any difficulty in understanding. A report that goes out on the television saying that the judge examined a vast amount of written material capable of use to attack the credibility of H and G does not have the ring of authentic journalism about it. Is there a problem about using the names in this context?
MR CAMPBELL-CLYNE: My Lord, no, save that, if there is a risk of potential jurors hearing the name and making association in 2 months' time, when Mr Harris is tried, that risk is averted by using the initials.
LORD JUSTICE JUDGE: At the moment we need some persuasion. Anything more than an a theoretical possibility of a potential juror reading about this material tomorrow or the next day, and then being effected by it when he or she comes to be a juror in a trial, that is going to start at the end of April.
MR CAMPBELL-CLYNE: It is an unusual case, police corruption cases are unusual. If they are reported in the press it is something that is likely to catch the attention of potential jurors. There is always the danger that albeit, without discourtesy to the members of the press, today's newspaper finds itself at the bottom of the dustbin tomorrow. But nonetheless - I say I hope without discourtesy but what I mean things are readily forgotten - nonetheless a report of a case involving police corruption, among Flying Squad officers might ring a bell and particularly when witnesses are to give evidence. But I would put it this way, is there a public interest at this stage in the public knowing the names of the individuals concerned, as opposed to publication of their names being delayed to the outcome of the trial in April. I would submit not.
LORD JUSTICE JUDGE: At the moment, there is a blanket embargo on the publication of the fact that the appeals failed and who they are by and who they involved. Paragraphs 1 - 86 are not included in the opening up of the contempt provision.
MR CAMPBELL-CLYNE: Nonetheless, there would have been reporting of, if this passage is to be reported, it will become evident that they have given evidence in a trial. I accept, of course, even if the juror, the potential juror were to recall the fact they have given, even though the outcome of time, nonetheless they would record the trial, the defendants had been tried before in a case in which these witnesses have given and of course it would be plain that they had been convicted, otherwise the matter would be the subject of an appeal in the form of R v H rather than the Attorney-General's Reference. (Pause).
LORD JUSTICE JUDGE: We give a short ruling.
The principle is that a contempt of court order has to be justified. We reflected on your submissions, Mr Campbell-Clyne. As it seems to us, the chances of a trial involving your client in April, being in any way prejudiced by publication of the material from paragraphs 87 - 95 onwards is so remote as to be negligible. In those circumstances, there is an insufficient case made out for maintaining contempt of court order.
So too, with the headline, Abuse of Process, then 87 onwards to 103. The last point is paragraphs 193 - 197 which I suppose are of no significant interest to the media. We need some very compelling argument to say contempt of court should be maintained in relation to those paragraphs.
MR CAMPBELL-CLYNE: My previous arguments were not compelling and since there is no mention of witnesses, or defendants, I do not think I could say anything which your Lordships seek to rule this passage is not reported.
LORD JUSTICE JUDGE: The contempt of court order will not apply to paragraphs 193 - 197 inclusive. If I may summarise it, the front of the judgment refers to the Contempt of Court Act. It will be seen that no report of the judgment should be published until the reporting restrictions are lifted or without our express authority or after the conclusion of the forthcoming trial of Harris & Ors at the Central Criminal Court. We will now expressly say that paragraphs 75 - 77, 87 - 103 and 193 to 197 are removed from that restriction order. We invite the law reporters to consider reporting those paragraphs.
As to the media, we have no commendation or otherwise to make. Is there anything else in relation to contempt of court? Mr Brown the trial is going ahead at the end of April is it.
MR BROWN: As far as we understand it. If the trial does for any reason - I am not hinting or suggesting anything about it - if for any reason that trial does not go ahead, once a decision is made, we have to go to open court anyway or when the trial is concluded, this judgment then may be published in full. Very well.
LORD JUSTICE JUDGE: Mr McLagan, is there anything else you want to say?
MR McLAGAN: I take your point of view, you said earlier about Mr Alridge selecting passage from the statements. Not having seen the statement, I do not know how selective he was, so....
LORD JUSTICE JUDGE: I think you have made very good progress. I think you have probably everything you want but we do have to maintain some degree of control, simply because of other cases. Very well. The case may be reported by the law reporters under the letter H. Is there anything else anyone wants to raise? I think that we will spare Mr Brown's embarrassment, but this is obviously not of great interest to the media but we take the view that we should re-express our gratitude to him for the way in which the Public Interest Immunity Issue has been handled and we hope that our judgment will be sufficiently reported for it to be clearly understood that, in our judgment, it was a model of how these things should be done. We are very grateful, Mr Brown. We are grateful to all counsel for their assistance.