England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		6 April 2005

1. LORD JUSTICE ROSE: It is common ground that the question for this court in the terms of section 2 of the Criminal Appeal Act 1968 (as amended by section 2 of the 1995 Act) is whether in the circumstances of this case we think the appellant's convictions are unsafe. For reasons which we shall endeavour briefly to explain, we do not think the convictions are unsafe.
2. The circumstances are that on 12 November 1996 at Croydon Crown Court (before HHJ Crush) the appellant pleaded guilty to three counts of having custody of a counterfeit currency note with intent. On 20 November he was sentenced in relation to those offences to a total of four and a half years' imprisonment. He appeals against conviction by leave of the single judge, who generously granted an extension of time of six years and 10 months, and to that extension we shall later revert.
3. The facts were that on 25 July 1995 the appellant met two undercover police officers called "Chris" and "Ian" at a public house near Tonbridge. He showed them a substantial quantity of £20 notes (to which the first count in the indictment related) and of £10 notes (to which the second count related). He was arrested. His home was searched and a further quantity of counterfeit £10 notes was there seized. He said in interview that he had been introduced to a man called "Terry" by Colin Phelps in connection with bankrupt stock and tobacco.
4. At a meeting in July 1995, Terry had started talking about some counterfeit currency and had pressed the appellant to obtain some as part of the bankrupt stock and tobacco deal. The appellant, who was a man of previous good character, had never been involved with counterfeit notes before, but he had a contact he referred to as "John", who did have dealings with counterfeit money and would be able to supply counterfeit notes. Terry introduced the appellant to men called, respectively, "Jag" and "Jazz".
5. At a meeting on 14 July 1995, Jag arrived with Chris, the undercover police officer. A large order for counterfeit currency was placed. The transcript of the tapes which had covertly recorded that meeting and a subsequent meeting were served on the defence as part of the prosecution case. In the course of the recorded conversation, the appellant seemed willing to enter into a transaction to supply counterfeit money, but he was encouraged, certainly with regard to the degree of supply, by Chris and by Jag.
6. The case as advanced by counsel on behalf of the appellant was that, while he was motivated by money to enter into the transaction to sell counterfeit currency and was indeed, as he had told the police, to be paid £2,500, he had been entrapped into committing the offences by the police officers and the participating informants involved.
7. On 11 November 1996 the appellant sought to have the proceedings stayed as an abuse of process on the ground that, by reason of the activities of the undercover police officers and/or participating informants, it was not possible for him to have a fair trial, and the moral integrity of the criminal proceedings had been so impugned that the proceedings should be stayed. An application was also made for further disclosure, including material in relation to the status of Colin Phelps, Terry, Jazz and Jag.
8. Before he made his ruling on that application to stay, the judge held, at the behest of the prosecution, a public interest immunity hearing on an ex parte basis. He in consequence made no order for further disclosure. It is to be noted that the careful and detailed submissions by reference to authority and otherwise made by counsel on behalf of the defendant included this passage:

"If your Honour came to the conclusion, for example, on evidence not before the court, that Mr Lewis was enticed initially into committing these offences and then got caught up within the transaction, so that by the time of the meeting of the 14th July he was well and truly in it, which is apparent from the transcript that we have, it is a very different situation than starting on the 14th July and reaching further conclusions on that basis. So that is the way in which the defence say it will be wrong for the Crown to be allowed to proceed without more."

9. In the light of the submissions which he had heard, the judge gave his ruling, which included the following passages:

"The defendant is indicted on three counts of having custody or control of counterfeit currency notes. He was arrested on the evening of Tuesday 25 July 1995 and was in possession of notes of the quantities mentioned in the three counts in the indictment, the majority of which was in the rear of his car and the remainder at home. He was interviewed the next day and said he knew it was counterfeit and that he had been tempted into it due to financial circumstances.

The evidence of the event of the 25th July are in themselves sufficient to found the offence in each case with which he is charged, but there is more material."

10. At page 62C, by reference to the transcript of the tape of the meeting on 14 July, the judge said this:

"It is clear from the passages to which I have referred that Chris was keen to coax the defendant to sell counterfeit £20 notes. But the way in which such persuasion was expressed does not, in my view, amount to pressure, nor did the defendant complain of pressure when he was interviewed. The transcript, which, as I say, may not be complete, shows this defendant within half an hour, a dozen sentences of being introduced to Chris at that meeting offering him the £20 notes. I am not so far persuaded that he was a man who committed offences he would not otherwise have committed."

11. A little lower down that page the judge referred to the fact that, prior to giving his ruling, he had reviewed the PII application which had been made to him. The judge having refused to stay the proceedings on the ground of abuse of process, there was an application made in the alternative that the evidence relied upon by the Crown should be excluded under section 78 of the Police and Criminal Evidence Act 1984. The learned judge refused the application to exclude the evidence, and he also ruled that the ambit of cross-examination in the course of the voir dire should be severely restricted. Those rulings having been given, the appellant pleaded guilty, as we indicated at the outset of this judgment, and was then sentenced, subsequently, as we have said.
12. At that time, junior counsel, then as now appearing for the defence, advised that there were no grounds of appeal to this court and at that time no appeal was sought to be made. However, application was made to the European Court of Human Rights in Strasbourg. They on 22 July 2003 (15 BRHC 189) held that there had been a breach of the appellant's right to a fair trial. In paragraph 52 of their judgment, the court referred to a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence:

"The right to adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, Article 6(1) requires that the prosecution authorities should disclose to the defence all material that is in their possession for or against the accused."

13. The court also went on to rehearse a passage from its earlier judgment in Jasper v United Kingdom (BAILII: [2000] ECHR 90 ), which includes:

" ... the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused ... In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.

However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1) ...

Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities ..."

14. The Strasbourg Court went on in paragraph 57 to say:

"In the present case, however, it appears that the undisclosed evidence related, or may have related, to an issue of fact decided by the trial judge."

15. At paragraph 58, the court referred to the applicant having been denied access to the evidence, and said this:

"In Mr Lewis' case, the nature of the undisclosed material has not been revealed, but it is possible that it also was damaging to the applicant's submissions on entrapment. Under English law, where public interest immunity evidence is not likely to be of assistance to the accused, but would in fact assist the prosecution, the trial judge is likely to find the balance to weigh in favour of non-disclosure.

59. In these circumstances, the court does not consider that the procedure employed to determine the issues of disclosure of evidence and entrapment complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. It follows that there has been a violation of Article 6(1) in this case."

16. The court also went on in paragraph 62 to say:

"In the present case, the applicants were in effect inviting the court to speculate as to whether the outcome of the trial might have been different had a different procedure been followed in the Crown Court.

63. It is well established that the principle underlying the provision of just satisfaction for a breach of Article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements. The court will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible ... The finding of a violation of Article 6(1) in the present case does not entail that the applicants were wrongly convicted and the court does not consider it appropriate to award monetary compensation to them in respect of loss of procedural opportunity or any distress, loss or damage allegedly caused thereby."

17. That was a decision which attracted adverse academic comment, particularly in Criminal Law Weekly. But the United Kingdom Government did not pursue a referral, which had been contemplated, to the Grand Chamber in Strasbourg.
18. Against that background, the ground of appeal in relation to which the single judge gave leave is expressed in these terms:

"The decision of the European Court of Human Rights in Edwards and Lewis v United Kingdom (BAILII: [2004] ECHR 560 ) confirms that the procedure employed to determine the issues of disclosure of evidence and entrapment breached the appellant's Article 6 right to a fair trial. The conviction of the appellant is therefore [our emphasis] unsafe."

19. Before this court, Mr Turner QC, on behalf of the appellant, and Mr Perry, on behalf of the Crown, have advanced competing oral submissions in support of the very substantial written arguments which, together with relevant authorities, were placed before this court prior to the hearing. We intend no disrespect to the arguments advanced on either side to say that we do not propose to rehearse them in detail.
20. The essence of Mr Turner's submission is that the Strasbourg Court found the proceedings were unfair. This court ought not to reach any different conclusion. If there had been abuse of process there ought not to have been a trial of this appellant. Entrapment is a species of abuse. The appellant should not have been required, by virtue of the judge's ruling dismissing the application for a stay on the ground of abuse, to plead again as he did. He was deprived, as were the defendants in Early and Ors [2003] 1 Cr App R 19, of the proper opportunity to establish entrapment because of the unfair course which proceedings took before the learned trial judge.
21. Before turning to our conclusions, it is pertinent to make three preliminary observations. First, despite Mr Turner's reliance on Mullen [1999] 2 Cr App R 143 and Early, the present case is very different from both of those authorities. It is different in many respects, of which it is necessary to identify just one. In each of those cases the prosecution had been demonstrably guilty of gross misconduct, bringing the whole prosecution process into disrepute. This had occurred in Mullen by reason of the kidnapping of the defendant in order to bring him from a foreign country within the jurisdiction of this court for trial. In Early, there had been incomplete disclosure supported by perjury.
22. In the present case, it is to be noted, in relation to the allegation of entrapment which was sought to be sustained before the learned trial judge, that, as we have indicated, on 14 July, the appellant evidenced willingness to provide large quantities of counterfeit currency. On arrest, in response to a question as to whether he had anything to say, he said, "there is not a lot I can say". On interview, he did not say that he had been set up, pressured or forced into committing the offence, but said that he had been tempted by reason of his financial circumstances and was to gain £2,500 from the commission of the offences. He had himself gone to visit the source of the counterfeit money. At no stage in the Crown Court was there any evidence from the defendant asserting that pressure had been put on him. There is no doubt that the burden of proving an abuse of process before the Crown Court judge rested, on the balance of probabilities, on the defence. There is also no doubt, as it seems to us, that entrapment of itself does not necessarily give rise to such an abuse of process as would require a stay of proceedings.
23. Secondly, in view of the House of Lords decisions in Lambert [2002] 2 AC 545; Kansal (No 2) [2002] 2 AC 65, and Lyons [2003] 1 AC 976, it is not open to the appellant to assert that his conviction at a time before the coming into force of the Human Rights Act 1998 was unsafe merely because the European Court of Human Rights found unfairness in breach of Article 6. The Act, as the House of Lords held, did not have retrospective effect. And the Strasbourg Court itself, in paragraph 63 of its judgment which we have rehearsed, rightly asserted that their finding did not establish a wrongful conviction. The Strasbourg finding is of course a factor to which this court should have regard, and it does.
24. Thirdly, it is impossible for the appellant to challenge the English PII procedures as being in themselves unfair in the light of the House of Lords decision in H and C [2004] 2 AC 134. This is certainly not, as it seems to us, a case in which it begins to be shown that, exceptionally, special counsel ought to have been instructed in relation to the PII hearing.
25. In that context, the reasons why we reach the conclusion expressed at the outset of this judgment are these. First, the trial judge's ruling on entrapment was plainly based, in part, on the tape of the 14 July confiscation, a tape which, as we have said, had been disclosed as part of the prosecution case. His conclusion on the face of it seems to us to have been unimpeachable and there is nothing before us to suggest that it was in any way tainted by anything which he had learned in the course of the ex parte PII hearing such as might lend any sustenance to Mr Turner's suggestions in that regard. The material before the trial judge, as we have said, is no longer available because of the lapse of time before consideration by this court. But it is plain from the passage in his ruling which we have already cited that the judge revisited the PII material having heard submissions by counsel on behalf of the defendant with regard to the possibility of entrapment. That being so, as it seems to us, it is inconceivable that the trial judge would not then have ordered disclosure of any material which might help the defence in relation to entrapment. Although Mr Turner relied on Looseley [2001] 1 WLR 2060, he expressly disclaimed any suggestion that that decision of the House of Lords had changed the law. His submission was that it did no more than bring together the previous authorities, all of which had been referred to by counsel for the defendant when making his submissions to the trial judge. There is, as it seems to us, no reason to believe that the learned judge did not, in his ruling, comply with the contemporary standards and approach relevant to the exercise of his discretion with regard to a stay at that time.
26. Secondly, there was, as we have briefly indicated, overwhelming incontrovertible evidence that the appellant, on arrest, was in possession of large quantities of counterfeit notes with the necessary intent; that evidence plainly, on its face, established the three offences appearing in the indictment.
27. Thirdly, the appellant, following legal advice, with full knowledge of the evidence relied on against him by the prosecution, and the judge having concluded, as he was entitled to, that, in relation to entrapment, there was no PII material which might help the defence, unambiguously pleaded guilty to offences to which, as is conceded, he had no defence - unless entrapment were viable to sustain a stay on the grounds of abuse of process. Such a plea in such circumstances, as it seems to us, affords no basis for appealing conviction: see Chalkley v Jeffries [1998] 2 Cr App R 79 at 94D to F. Accordingly, this appeal is dismissed.
28. We add this: it would, in our judgment, have been preferable had the single judge in this case referred the application for an extension of time approaching seven years to the full court. At the very least, the Crown should have been invited to make representations as to whether an extension of time should be granted by the single judge. If either of those courses had been followed, it would have been possible for the prosecution to identify the areas of potential concern to them when addressing the question of whether so long an extension of time ought properly to be granted. In that regard, we have in mind both the observations of Lord Bingham of Cornhill CJ in Hawkins [1997] 1 Cr App R 234, and the observations made by the editor of Archbold in paragraph 7-182, which, as it appears to us, correctly summarise the legal position in this regard.
29. MR TURNER QC: My Lord, may I raise another matter. What we wish to do on behalf of the appellant is to seek certification of a point or points of general public importance.
30. LORD JUSTICE ROSE: I thought your argument proceeded on the basis that this case was fact specific.
31. MR TURNER QC: No, my Lord, the case ultimately has to be decided on a fact specific basis --
32. LORD JUSTICE ROSE: I am only teasing you, Mr Turner. What is the question you want us to certify?
33. MR TURNER QC: -- but in accordance with principle. Can I hand up -- obviously we have not had the opportunity to craft a point or points in the light of the judgment that has actually been delivered. So unless your Lordships were prepared to certify the rather general points that we prepared in draft in case things went as they have, then we would seek to come back within, I think, we have 14 days within which to draft a point. But if your Lordships were prepared to certificate that general point, we would be content. We would submit that that is a point of law. We would submit that it is a point of some general importance. Whether or not permission for leave to appeal to the House of Lords is granted by your Lordships or by their Lordships in their House is quite another matter. But dealing firstly with the question of certification, we say the conditions of certification are satisfied on that point, but if they are not, we would wish to have time, as we are permitted under the rules, to craft something else.
34. Mr Perry has seen that document.
35. LORD JUSTICE ROSE: No, Mr Turner, we will not certify this question.
36. MR TURNER QC: So, my Lord, we have then the 14 days to try to come up with something which would --
37. LORD JUSTICE ROSE: You have. If you think it can conveniently be dealt with on paper, we will deal with it on paper. If you think it cannot, you will be entitled briefly to be heard.
38. MR TURNER QC: My Lord, I am grateful.
39. LORD JUSTICE ROSE: Within 14 days, or at least the application must be made within 14 days.
40. MR TURNER QC: The application point does not have to be decided within 14 days, of course.
41. MR PERRY: My Lord, may I make our position clear. We do assert that the sole issue which arose for consideration in this case was the question of safety on these facts.
42. LORD JUSTICE ROSE: I thought you might, Mr Perry, but we have crossed today's bridge. If there is another bridge, we will cross it as is or is not appropriate. Thank you.