England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HH JUDGE MOWAT
IN THE CROWN COURT AT READING
T20047081

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th May 2006

Lord Justice Moses :

Introduction

1. These are appeals against convictions for conspiracy to contravene Section 170 of the Customs and Excise Management Act 1979. The convictions followed earlier applications by both these appellants to the trial judge, HHJ Mowat, that all of the counts on the indictment against them should be stayed because of the unlawful activities by way of entrapment of three undercover police officers. On 17 June 2005 HHJ Mowat ruled that three counts of supplying a Class A controlled drug, alleged against the appellant Harmes and a co-defendant, should be stayed but that the count of conspiracy, the subject matter of this appeal, was not tainted by any unlawful activity on the part of the police. The issue in this appeal is whether the conduct of the police officers was such that the judge ought to have stayed the conspiracy count (count 3 on the indictment).

The facts

2. The facts which it is necessary to outline for the purposes of this appeal relate, in the main, to the operations of three undercover officers. The operation was triggered in August 2002 by intelligence relating to activities at the Happy Landings public house in Staines. The appellant Harmes ran the public house, although the licence was in the name of his wife and daughter. The intelligence which triggered the operation was to the effect that:-

"Harmes is the ring-leader of the gang. Currently the gang is suspected to be engaged in the distribution of multi-kilos of Class A drugs including cocaine and heroin from the pub. Harmes, who has frequented Cancun, Mexico, is suspected to have obtained the property in Spain as a result of proceeds from crime including drugs offences and that the pub itself is a vehicle for laundering drugs money. Indeed, during a police operation to combat crime in the area, a vehicle was stopped coming from the direction of the pub and an occupant found to be in possession of a fifth of a kilo of cocaine as well as cash."

3. The undercover operation which this intelligence triggered ran from 26 September 2002 until 2 December 2003. It will be necessary to examine the detail of authorisations given for this operation, reviews and renewals pursuant to the Regulation of Investigatory Powers Act 2000 ("RIPA") and the Covert Human Intelligence Sources Code of Practice ("the Code of Practice") made pursuant to Section 71 of RIPA. But it is convenient to highlight certain key events. In June 2003, one of the undercover officers, known as Martin, offered to supply Harmes cheap soft drinks. It was in that context that the question of drugs first arose. It was indicated that Martin and another undercover officer, Andy, were using cargoes of soft drinks to disguise drugs which they were importing in lorries from Belgium and Holland. Following that conversation, the first load of drinks was delivered two days later on 25 June 2002.
4. On 15 July 2003 the undercover officer, Martin, asked Harmes's associate, the co-defendant, Hopkins, if they could be paid in cocaine. On 22 July 2003, in return for a delivery of 9,600 cans of soft drinks, Hopkins, at the direction of Harmes, supplied an ounce of cocaine worth about half the cost of the soft drinks. It was that exchange of soft drinks for an ounce of cocaine which appears to have been the trigger for an important disclosure by Harmes. On that occasion, on 22 July 2003, Harmes told another undercover officer, John, that he was able to import cocaine through Heathrow from any country so long as the point of departure was not in Jamaica.
5. On 25 July 2003, at a meeting suggested by the undercover officer, John, Harmes revealed more of the system whereby cocaine could be imported and disclosed that it was with the assistance of his fellow accused and brother-in-law, Crane, who worked at Heathrow.
6. Harmes revealed on that occasion the profits made from such importation and that he could import 44 kilos every other day.
7. There were further discussions about the importation of drugs. On 23 September 2003 a meeting took place in Cyprus. On 26 November 2003 the appellant, Crane, who was by now also a target of the undercover operation, handed the undercover officer, John, a piece of paper containing details of two flights due to arrive at Heathrow from South Africa. A test run for the importation of 200 kilos of cocaine was planned. On 27 November 2003 the test run was successfully undertaken. Crane met two of the undercover officers at Hatton Cross car park and handed over a bag containing telephone directories.
8. On 2 December 2003 a dummy package was loaded onto an aircraft in Johannesburg by police. The undercover officers were unable to make contact with Crane. That same day, Harmes and Crane were arrested. After caution Harmes replied that he was on his way to the police station at Staines and said:-

"I've been set up".

Later, Crane said:-

"It's a joke gone wrong".

9. Both appellants declined to comment in police interviews but Harmes made a written statement saying that he had not taken the undercover officer seriously when they had mentioned importing drugs into Britain but that he had gone along with the apparent friendship so that further soft drinks could be supplied. When he heard from the undercover officer, John, that he had 20 kilos of cocaine, he and Crane became worried and decided to tell the police. He had never intended to conspire with anyone to supply or import drugs. In evidence he said that during the conversations, particularly with John, he had not believed what he had said about importation of drugs. But after the test run it became apparent that John and his friends were capable of loading something onto the plane and he was very frightened. He took advice from a friend who spoke to a solicitor. The advice was to go to a police station and both were on their way when they were arrested. The appellant Crane gave similar evidence.
10. After hearing evidence on a voir dire and submissions, the trial judge ruled that the three counts of supply of cocaine should be stayed. She concluded that the supplies would never have taken place had not the undercover officers asked that the soft drinks be paid for with one ounce of cocaine. She pointed out that the initial application for authorisation had envisaged the possibility of what were described as "non-evidential purchases". In other words, purchases to maintain the credibility of the undercover officers but not designed to lead to prosecution. It was for that reason that she stayed three of the counts.
11. She went on to consider those transactions of supply in the context of the behaviour of the undercover officers as a whole and the relationship of that conduct to the conspiracy. She concluded that the supply of cheap drinks was part of a legitimate and proportionate strategy. Further, the appellant, Harmes, had not become involved in the importation of cocaine in the hope of more cheap drinks being supplied but rather in the hope of a large profit. Further, the revelation by Harmes, and subsequently Crane, as to an available system for smuggling cocaine was legitimate evidence properly obtained and was not merely evidence of past illegal conduct analogous to a predisposition to commit drugs offences. The appellants offered a service and demonstrated that they were willing and eager to take the opportunity offered by the undercover team. In those circumstances she rejected the suggestion that they had been induced to commit "a state generated crime". She concluded:-

"The defendants, on my view of the evidence, have willingly taken the opportunity to participate in drug smuggling, when offered, for their own substantial gain."

12. The essence of this appeal is that the conduct of the officers in agreeing to supply soft drinks in exchange for cocaine was so seriously improper as to bring the administration of justice into disrepute (see Lord Nicholls in R v Looseley [2002] 1 Cr. App. R. 360 at 369). It was that conduct which led to Harmes's revelation of a system by which cocaine could be imported into Heathrow and, with his brother-in-law Crane's assistance, removed from aircraft. To permit a prosecution based upon the undercover police officers' use of that system would be to condone such seriously improper treatment. In support of that essential submission, Mr Roberts QC, on behalf of Harmes, draws particular attention to the lack of proper authorisation in breach of RIPA and the Code. Those breaches underline the impropriety of the undercover officers' conduct.
13. The appellant contends that the judge gravely underestimated the extent and seriousness of police impropriety. Had she properly appreciated how improper the undercover operation was, she would have concluded that the transactions of supply of drugs in exchange for soft drinks could not be viewed separately from the conspiracy. It tainted the whole of the undercover operation and thus should have led to the conclusion that the conspiracy charge should have been stayed.
14. In order to assess this submission it is necessary to analyse the process of authorisation in relation to this undercover operation in the light of the statutory scheme and the Code.

Statutory scheme and the Code

15. By Section 26 of RIPA, Part 2, dealing with surveillance and covert human intelligence sources applies to the conduct and use of covert human intelligence sources (see 26(1)(c)). By Section 26 (7):-

"In this Part –

(a) references to the conduct of a human intelligence source are references to any conduct of such a source which falls within any of the paragraphs (a) to (c) of subsection 8 or is incidental to anything falling within any of those paragraphs; and

(b) references to the use of the covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source or to obtain information by means of the conduct of such a source.

(8) For the purposes of this Part a person is a covert human intelligence source if –

(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b) he covertly uses such relationship to obtain information or to provide access to any information to another person;"

The statute sanctions the legality of the conduct to which it applies by reference to authorisation. Section 27(1) provides:-

"Conduct to which this Part applies shall be lawful for all purposes if –

(a) an authorisation under this Part confirms an entitlement to engage in that conduct on the person whose conduct it is;

(b) his conduct is in accordance with the authorisation."

Section 29(1) confers power on the persons designate to grant authorisation. Section 29(4) provides:-

"The conduct that is authorised by an authorisation for the conduct or the use of covert human intelligence source is any conduct that

(a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;"

Section 43(1)(b) requires authorisation to be in writing save that it might be granted or renewed orally in urgent cases. Section 43(3)(b) limits time for authorisation to twelve months but authorisation may be reviewed pursuant to Section 43(4). However, renewal is not permissible unless the person renewing the authorisation:-

" (a) is satisfied that a review has been carried out of the matters mentioned in subsection (7) and (b) has, for the purpose of deciding that he should renew the authorisation, considered the results of that review.

(7) The matters mentioned in subsection (6) are –

(a) the use made of the source and the period since the grant or, as the case may be, latest renewal of the authorisation; and

(b) the tasks given to the source during that period and the information obtained from the conduct of the use of the source."

16. Section 72 of RIPA requires a court to take into account a code of practice issued and revised pursuant to Section 71 in so far as it is relevant to a question which arises. Chapter 2 of the Code emphasises that authorisation pursuant to RIPA will only ensure that the authorised use or conduct of a source is a justifiable interference with an individual's Article 8 rights if it is necessary and proportionate for the source to be used (see paragraph 2.4). In order to achieve that objective the use of a source must be carefully managed and sources must not be used in an arbitrary or unfair way (see paragraph 2.5).
17. Paragraph 2.15 of the Code requires records to be kept of the circumstances in which tasks were given to the source. Paragraph 4.2 provides that undercover officers fall within Section 26(8) of RIPA. Paragraphs 4.8 and 4.9 impose the responsibility for ensuring that the use and conduct of the source is necessary and proportionate on the authorising officer. By paragraph 4.12 authorising officers are not to be responsible for authorising their own activities. They are, accordingly, to be distinguished from those in charge of an operation. By paragraph 4.14 an application for authorisation for the use or conduct of a source should be in writing and record the nature of what the source will be "tasked" to do. Paragraph 4.19 requires regular reviews of authorisations to be undertaken to assess the need for the use of the source to continue. Paragraph 4.22 requires annual renewals, although in this case, they took place every three months. Each application for renewal must record any significant changes to the information given on the original application pursuant to paragraph 4.14 and the previous use made of the source, tasks given to that source since the last renewal. Paragraph 4.30 provides:-

"It is not the intention that authorisations be drawn so narrowly that a separate authorisation is required each time the source is tasked. Rather, an authorisation might cover, in broad terms, the nature of the source's task. If this changes, then a new authorisation may need to be sought."

By paragraph 4.31:-

"It is difficult to predict exactly what might occur each time a meeting with a source takes place, or the source meets the subject of an investigation. There may be occasions when unforeseen actions or undertakings occur. When this happens, the occurrence must be recorded as soon as practicable after the event and if the existing authorisation is insufficient it should either be updated and re-authorised (for minor amendments only) or it should be cancelled and a new authorisation should be obtained before any further such action is carried out."

By paragraph 4.32:-

"Similarly where it is intended to task a source in a new way or significantly greater way than previously identified, the persons defined at Section 29(5)(a)or (b) of the 2000 Act must refer the proposed tasking to the authorising officer who should consider whether a separate authorisation is required. This should be done in advance of any tasking and the details of such referrals must be recorded."

18. The statutory scheme and the Code, thus, emphasise the importance of authorisation to ensure that the requirements of necessity and proportionality are achieved and to provide a proper system for close scrutiny. That is particularly of importance where, as the Act envisages by Sections 71 and 72, the court may need to assess the legality of the operation. Inadequate compliance with the Code frustrates the essential task of the courts in assessing the legality of an undercover operation by reference to the provisions of the Code (see in particular paragraph 66 in the speech of Lord Hoffmann in Looseley (qv supra)).

Authorisations in the instant case

19. The procedures adopted in the instant case were hampered by the fact that these were early days in the operation of RIPA and the Code. The forms used were inadequate for the tasks required by the statute and by the Code. The original authorisation, dated 30 September 2002, granted by ACC Clarke on ADI Wight's application, authorised conduct described as:-

"infiltration of the subject and relevant criminal associates and gather intelligence and evidence and supply of Class A drugs and other offences."

The operational objectives and plan of action merely referred to an initial stage of introduction of an undercover officer and continued as stage two:-

"once the capabilities of the subjects have been confirmed, the undercover officer will progress negotiations to a stage where a further undercover officer can safely be introduced…This may include the non-evidential purchase of drugs and/or relevant property in order to maintain credibility and help with source protection and to further infiltrate the criminal conspiracy."

Later in that paragraph the plan of action continued:-

"As each stage develops, the operational methods will be tailored to meet requirements accordingly and the subject of constant review by the Operational Head."

20. Under the heading of "Ethical Risks" the application referred to Looseley as being authority for the propriety of police tactics such as the deployment of undercover officers to investigate serious offences and contained the elliptical comment:-

"A degree of activity by the officers may be appropriate."

The ethical risks referred to the need to be mindful of obligations under Article 8 of the Convention. The operational risks referred to training in relation to the Convention and what is described as…"Agent Provocateur". The authorisation itself required the undercover officers to be aware that:-

"(1) He does not actively engage in planning and committing crime.

(2) He is intending to play a minor role.

(3) His participation is essential to enable police to frustrate the principal criminals and to arrest them (albeit for lesser offences such as an attempt or conspiracy to commit crime or carry offensive weapons before injury is done to any person or serious damage to property)."

Paragraph 3 of these three "constraints", as they were described by the judge in her ruling, makes little sense until one understands that it was included as a standard form in relation to the use of participating informants.

Authorisation

21. The authorisation led to little productive activity. It was renewed on 19 December 2002 and again on 18 March 2003. During that period little seems to have been achieved save that the undercover officer, John, became accepted as a regular at the Happy Landing pub and came to know the appellant, Harmes, and his co-defendant, Hopkins. Once he had become accepted, Andy and Martin, the two other undercover officers, were introduced as friends. They were told that Harmes had a property in Cyprus worth £500,000. Conversations were recorded and transcribed by means of concealed devices.
22. However, the operation changed once it was decided to offer cheap soft drinks for sale by Harmes at a considerable profit. It appears that this plan had been hatched by 3 June 2003 when Detective Inspector Perry, who took over the operation from Detective Inspector Wight, discussed funding for soft drinks with the undercover officers. The renewals had merely accepted that the operation would last a considerable time but otherwise had not condescended to any further detail. On 20 June 2003 the undercover officers discussed the plan to offer to supply Harmes with soft drinks in order to establish their criminal credentials. The plan was to pretend that drugs were being imported in lorries from Belgium and Holland, concealed in loads of soft drinks which could be sold to Harmes at 10p per can, less than half the normal cost. It is important to note that at that stage the most recent application for renewal, dated 12 June 2003, contained no reference to this plan. The authorisation was renewed on 17 June 2003 but did not authorise the plan to offer soft drinks or to explain that they were designed to conceal an importation of drugs.
23. On 23 June the undercover officers discussed the proposal to sell soft drinks to Harmes who wanted to see what the officers had. The undercover officer, Martin, suggested that after purchasing them at 10p per can Harmes could sell them on at 80p per can. Later the same day he was shown samples and agreed to buy 4,800 cans for £500. The undercover officer, Andy, asked him whether he wanted spirits. Harmes replied that he would be interested in anything which he could sell on.
24. On 25 June 2003 the first soft drinks were supplied, consisting of 200 trays in exchange for cash. On 10 July 2003 the officer supplied twelve bottles of Teacher's whisky at a reduced price. On 14 July 2003 the undercover officer, Andy, asked the co-defendant, Hopkins, whether they were ready for another load and was told that they would have "the lot". Andy appreciated:-

"from their point of view, it is pure gold."

The officers were well aware how valuable the soft drinks were to Harmes.

25. On 15 July 2003 an important change was made to the plan. The officers told Hopkins that they were going to Belgium and would probably have double the amount of soft drinks that they had been able to bring over before. The undercover officer, Martin, asked to be paid in cocaine rather than cash. Hopkins asked whether they wanted "a grand's worth of Charlie?". Martin agreed and Hopkins said he would ask. It is important to appreciate that at this stage, although the original authorisation authorised the purchase of drugs, no authority had been given to offer drinks at a dramatically reduced price in exchange for drugs worth far less than the soft drinks supplied.
26. On 22 July 2003 the undercover officers delivered 9,600 cans of soft drinks and were paid with one ounce of cocaine by the co-defendant, Hopkins, at the direction of Harmes. It appears that the cost of the 9,600 cans was £2,247, whereas the value of one ounce of cocaine was £1,000. In other words, the officers were not only supplying cheap soft drinks but asking, in return, half the value of those drinks.
27. This transaction is of particular significance. It appears to have triggered Harmes's revelation that he was able to import cocaine through aeroplanes landing at Heathrow. During the course of conversation, when the undercover officer, John, asked what else Harmes was interested in, Harmes said:-

"Anything I can get, I can sell."

He then boasted he could get cocaine off aeroplanes at Heathrow and continued:-

"It's Thiefrow isn't it? It ain't Heathrow. Yeah. I can get loads of fucking gear. I can get loads of Charlies through. Hey, I can get loads of Charlie through, easy peasy."

He then explained he could off-load drugs from anywhere save Jamaica. He said he charged a third of the parcel. The undercover officer, John, then suggested that they should talk about it another time where it was quieter.

28. On 23 July 2003 Andy offered Hopkins another load and a day later, 24 July 2003, a further 400 trays of soft drinks were delivered in return for another ounce of cocaine.
29. On 25 July 2003 the undercover officer, John, and Harmes continued their previous discussion about the importation of drugs through Heathrow:-

"Harmes: "So what do you want to do then, John?"

John: "What can you do for us, Ray. I mean at the end of the day?"

Harmes: "If you can get a suitcase put on, right, anywhere apart from Tobago, yes, I can get it off this end."

John: "Right, obviously it has to come to Heathrow."

Harmes: "It has got to come to Heathrow and it has got to be transferred on to another flight, BA say, that is easy. Just get a ticket or, if you have got people out wherever it is, just rip the ticket off one bag and put it on your bag, or I can have it put on the plane. I can give my brother-in-law (Crane) to tell you where to put it on the plane and he will get it. If you have a cleaner. That is how we used to do it… He will tell me when the plane is due in for a service and that is when we bung something on." "

John subsequently asked how much and Harmes told him that they were bringing in 44 kilos every other day. Harmes told John they could place 22 kilos in each case so long as it was "good one" and was not a Samsonite. John asked him what he was selling the "best gear" for. Harmes told him that they usually get £28,000 but maybe more…"but I was getting 36's a couple of years ago, but everything goes down…"

30. On the same day, 25 July, the renewal of authorisation recorded Harmes's revelation identifying his brother-in-law, Crane, but there was no reference at that stage to the exchange of soft drinks for drugs which had apparently triggered that revelation. On 11 August officers arranged to buy an ounce of cocaine from Harmes for £1000 through the co-defendant, Hopkins. On 14 August 2003 authority was granted to deploy officers in Cyprus where the officers had learnt Harmes had a substantial house. The objectives recorded that Harmes had told the officers that he was willing to meet their "principals" in Cyprus. It was thought that the strategy presented the best opportunity to obtain necessary evidence of the criminal activity. Again, there was no reference to the trigger for the revelation as to the importation of drugs via Heathrow.
31. On 20 August 2003 Martin passed on a message from John to Harmes that John's "bosses" approved the scheme. There was further discussion about soft drinks.
32. On 27 August 2003, during a discussion with John, Harmes revealed that he earned up to £200,000 in a week:-

"Well, three of us, £600,000 we had. We was getting 12 out of each parcel. On two different suitcases, we would do a 44 key Two cases, it was coming in three times a week. Can't go wrong."

33. On 2 September 2003 John met the appellant, Crane, for the first time. Harmes was there at the meeting at the Happy Landing. Crane explained where items could be placed on aeroplanes so that they could not be found. He said:-

"It will go on for fucking three or four years, mate, I am telling you. We was getting fucking ones and twos a week, mate…"

On 4 September 2003 Crane provided photographs to show where the drugs could be concealed on an aeroplane. He said:-

"I ain't done it for ages…It is one of those things they take ages to plan, ages to set up, and then all of a sudden, suddenly I will get a phone call…it is on, let's go…"

34. On 23 September 2003 John and other officers met Harmes in Cyprus. The conversation was not recorded. Again, Harmes explained that he could bring cocaine in through Heathrow and had done it before at 44 kilos a week. He described the methods and the use of baggage handlers which would cost a third of the load or of hiding packages on the aircraft which would be retrieved by Crane which would cost a quarter of the load. According to the officers in evidence, the purpose of the meeting was to show that they were "in the same league" as the appellant Harmes.
35. On 30 September 2003 Harmes told the undercover officers that the drugs would only be imported with the assistance of Crane since two baggage handlers had been arrested in possession of a substantial amount of cocaine. On 3 October 2003 Crane again explained how to conceal cocaine on the aeroplane so that he could retrieve it on landing. A further review of authorisation, dated 29 September 2003, noted that discussion in Cyprus. A review of authorisation, dated 5 November 2003, described in detail a plan of action designed to show the ability of Crane to by-pass security measures with the aid of a package which would not in fact contain contraband. The plan was to treat the package as if it were a real delivery. It was then proposed that there should be a meeting with both the appellants to discuss "a real" delivery of cocaine within a period of a few days from the date of the test run.
36. This plan of action, approved on 5 November 2003, may be contrasted with the absence of detail in previous applications and authorisations.
37. On 7 November 2003 the undercover officers set up a meeting at the Marriott Hotel, Langley. It is important to note, for the purposes of the argument advanced on behalf of the appellant, Crane, that one of the undercover officers suggested that the amount to be imported would be 200 kilos from Johannesburg. Crane replied that he could handle 40 kilos at a time. They agreed to do a test run.
38. On 26 November Crane handed John a piece of paper containing details of two flights due to arrive at Heathrow from South Africa the following morning. They discussed the test run for the importation of 200 kilos of cocaine.
39. The test run took place on 27 November 2003. Crane was told by John to retrieve a bag which had been concealed on the plane. The same morning Crane handed over that bag to two of the undercover officers. Thereafter, the undercover officer, John, discussed the success of the test with Harmes. Later he spoke to Harmes about the importation of the 200 kilos of cocaine for Christmas, starting with 20 kilos the following Tuesday.
40. After further conversation on 1 December 2003, the following day, 2 December 2003, police arranged for a dummy package to be loaded onto the aircraft in Johannesburg. Crane did not remove the package from the plane as had been expected. John tried but failed repeatedly to contact Harmes. The same day, Harmes and Crane were heard to discuss the likelihood that they were going to prison. They were both arrested in a car in Ashford. Harmes, as we have recalled, said that he was on his way to a police station at Staines.

Absence of authorisation

41. At the heart of the appellants' appeal lies the submission that the judge failed to appreciate the extent of the officers' breach of RIPA and the Code or the importance of those breaches. In her careful and thorough ruling the judge concluded:-

"The instructions given to the undercover officers in our case were sufficient; the authorisations were appropriate and gave sufficient instruction to them and were not vitiated by any ambiguity or unclarity (sic) arising from the inclusion of the three constraints."

The judge noted on the next page that there was no sequential description of tasks. ACC Clarke had taken the view that that had been done in the original application. All the judge says is:-

"Anyway, there it is, it was not done."

42. In our judgment there were serious breaches of the Act and the Code in the process of authorisation. The importance of compliance with the Act and Code in the procedure to be adopted for authorisation should not be underestimated. Absent careful compliance with the requirements of the Act and of the Code, the purpose of the Act is frustrated. Without a careful record of that which is proposed and approved, a court is deprived of the opportunity of assessing whether the undercover actions of officers are necessary and proportionate (see paragraph 18 above).
43. In the present case there is no reference at all to the plan to supply soft drinks, to the plan to explain the availability of such soft drinks as part of a plan to conceal smuggled drugs or to turn the supply of soft drinks into a plan to exchange such drinks for drugs. Nor is there any reference to the extent of the inducement presented by the opportunity to buy soft drinks of a far greater value than the cocaine for which they were exchanged. In short, the prosecution could not answer the defence's question of who authorised tactics adopted in this case and when they were adopted. Mr St. John-Stevens sought to answer these points by referring to oral evidence in which authorisation was sought. It should not, generally, be necessary to rely upon such oral evidence. Either the plans should have been authorised in advance or, if circumstances were too urgent, there should be some proper record subsequently on a review. No such records are present here.
44. Mr Roberts QC, on behalf of Harmes, was able to identify a number of breaches of the Code, in particular the provisions of paragraphs 4.14, 4.19 and 4.30. The reviews and renewals did not disclose the nature of the plans which appear to have triggered Harmes's revelation that he had access, through his brother-in-law, to a means of importing cocaine. For example, in the authorisation, dated 12 August 2003, for the journey to Cyprus, three purchases of drugs are recorded. But there is no reference whatever to the fact that the ounce of cocaine was in exchange for the soft drinks. The original authorisation permitted infiltration of the criminal conspiracy. It also permitted what was described as "non-evidential purchase of drugs and/or relevant property". But the actual inducement used in the instant case and the extent of that inducement, namely high value soft drinks for low value cocaine, were never authorised. In our judgment they should have been. It is true that the documents used in this case were prepared before RIPA came into force. The operation took place in the early days of that Act and the Code. But it required no great foresight nor analysis to appreciate the necessity to authorise, in advance, the plan to exchange soft drinks for drugs in circumstances when the disparity in values presented a powerful inducement.
45. Moreover, we take the view that the judge erred in concluding that there was no breach of the restriction, described as a restraint on "actively engaging in planning and committing crime". The judge took the view that restraint envisaged what she described as:-

"somebody committing a real crime. Committing crime means what it says, somebody taking part with actus reus and mens rea as a participating criminal informant does, arguably. Pretending to commit crime does not mean committing crime."

The suggestion, which admittedly came from the officers, that they should be supplied with cocaine in exchange for the soft drinks, was a crime. It was not authorised. That it was merely a small part in infiltrating what was suspected to be a gang of drug smugglers maybe relevant to the question of the proportionality of the operation viewed as a whole. But the judge misdirected herself as to the criminal nature of the officers' activities at this point in her ruling.

46. We conclude that, for the reasons we have given, there were substantial defects in the process of authorisation in the instant case. There is no evidence that it was impracticable to obtain authorisation for what was done in advance. Such authorisation was not obtained.

Conclusions as to entrapment

47. Mr Roberts QC contends that had the judge properly appreciated the nature and extent of the breaches of the rules relating to authorisation, she would have stayed the prosecution. But he accepts, as he must, that the mere fact of breaches of the Code will not dispose of the issue as to whether the prosecution should be stayed. The essential issue in this case is whether the undercover officers' declared willingness to deal in drugs and the officers' own criminal conduct was such that the prosecution for conspiracy should have been stayed. The breach of the Code is an important factor but not dispositive.
48. In the instant case the use of the expression "entrapment" is misleading and tends to obscure focus on the essential issue. The officers' suggestion that they should be supplied with drugs in exchange for the soft drinks did not trap the defendants into the agreement to import substantial quantities of cocaine. Before the jury, the defendants had contended that they had only pretended to go along with the plan in order to obtain further supplies of soft drinks. The jury rejected that argument and it plays no part in the arguments before this court. The judge correctly concluded that it was not the supply of cheap drinks or the hope for more cheap drinks that persuaded the defendant, Harmes, to become involved in the supposed importation. It was, as she said:-

"the hope of big returns for himself that did that."

At the time of the ruling she was entitled to reach that conclusion and there was ample evidence to support it. At the time the plan to import drugs was being put into effect soft drinks had long ceased to be supplied and there were no further cheap drinks in the offing. Moreover, the recorded conversations of the defendants established their interest in the importation of large amounts of drugs.

49. The boasts of Harmes as to his ability to import substantial amounts of drugs did not offend the principle that predisposition is irrelevant to whether a stay should be granted or not (see paragraph 68 in the speech of Lord Hoffmann in Looseley). As Lord Nicholls pointed out, evidence of past crimes, usually in a defendant's criminal record, is unlikely to be relevant unless it can be linked to other factors grounding reasonable suspicion (see paragraph 29). In the instant case, as the judge ruled, the evidence of Harmes and Crane as to the available methods of smuggling cocaine and their experience in that field was merely part of the evidence that they offered their services to the undercover officers (see paragraph 36D-E of her ruling). It was not evidence of predisposition.
50. The essential argument on behalf of the defendants is not so much that the offer to exchange cheap drinks for drugs trapped the defendants into a major conspiracy to import cocaine. It was the trigger for the revelation, by the defendants, of the existence of the system for importation. It was argued that the conduct of the officers in suggesting they should be supplied with cocaine in exchange for soft drinks was so seriously improper as to bring the administration of justice into disrepute (see paragraph 25 of Lord Nicholls' speech in Looseley).
51. We have already concluded that the officers' conduct was criminal and it was not properly authorised. Nonetheless, we take the view that it should not be regarded as so seriously improper as to require the court to intervene to prevent the prosecution for conspiracy. It was conduct which merely exposed, for the purposes of the undercover operation, the undercover officers' interest in drugs and eagerness to receive a small quantity. That was, in our judgment, no more than might be expected of any criminal willing to engage in illicit dealing in drugs. Looseley emphasised the importance of analysis of the behaviour of the undercover officers in comparison with that which might be expected of those committing criminal offences (see for example paragraph 55 in the speech of Lord Hoffmann in Looseley). Undercover officers, seeking to expose drug dealers, must show enthusiasm and a degree of persistence to provide protection for their undercover activities. As Lord Hoffmann accepts, a good deal of active behaviour may be acceptable (see paragraph 69).
52. In our judgment the conduct of the police officers was not exceptional and did not go beyond that which was necessary to show their willingness to deal in drugs. An exchange of a small amount of cocaine triggered the revelation that these defendants were not only happy to import very substantial quantities of cocaine but had the ability to do so. The officers' activities pale into insignificance in comparison to the offers made by Harmes to import, on their behalf, large amounts of cocaine of a high value.
53. Mr Banks, on behalf of Crane, contended that the officers' suggestion that 200 kilos of cocaine should be imported was a wholly impermissible inducement which tricked the appellants into committing the conspiracy. We reject that argument in the context of the conversations which were recorded. Both the appellants made it clear that they had substantial experience of importing drugs of just such an amount as suggested by the officers in separate trips of about 40 kilos a time. Since the offer made by the appellants was to import drugs obtained by others, it was not surprising that it was left to the officers to state the amount which they wished to import. That inevitably followed from the nature of the offer advanced by the appellants. In short, as Mr St. John-Stevens submitted, the role the officers played had been defined by the appellants.
54. It was accepted by both prosecution and defence that unlike consideration by a trial judge of issues which arise under Section 78 of the Police and Criminal Evidence Act 1984, this court was entitled to exercise its own judgment as to whether the prosecution should be stayed. It was not limited to reviewing the exercise of the trial judge's judgment. But in our judgment, the trial judge, whilst underestimating the breaches of the Code, correctly concluded that the prosecution for conspiracy should not be stayed. The officers' conduct, viewed as a whole, did not stray beyond that which was permissible to investigate and prosecute crime. In the instant case, that which had originally been suspected, namely, that the appellants were members of a gang engaged in the distribution of large amounts of cocaine, proved to be only too true. These appeals are dismissed.