England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at Snaresbrook
HHJ King
T20077614

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/02/2010

LORD JUSTICE HOOPER

1. On 15 February 2008 before HHJ King in the Crown Court at Snaresbrook, the appellant, whose family name is "Mukim", changed his pleas to guilty of rape and conspiracy to pervert the course of justice. Seven co-defendants also pleaded guilty to conspiracy to pervert the course of justice. There is no evidence to suggest that the appellant and his co-defendants are innocent of the offences to which they pleaded guilty.
2. As Mr Birnbaum QC accepted at the outset of the hearing, Abdul Mukim ("Mukim") could not succeed in the appeal unless there was such gross misbehaviour on the part of the police officers involved in the investigation and prosecution of the case that this court was entitled to and should quash the conviction.
3. Mukim had been given leave to appeal on four grounds. They related to:

i) the decision to charge the alibi witnesses, a decision said to deprive the appellant of his right under Article 6 to call them as defence witnesses;

ii) a ruling said to have been reached by the trial judge that the appellant had no Article 6 right to call evidence that is "demonstrably false";

iii) the decision of the trial judge after a ruling adverse to the defendants not to recuse himself;

iv) the Goodyear indication given to the co-defendants, said to constitute an "overwhelming incentive" to plead guilty.

4. Mr Birnbaum accepted, as he had to, at the beginning of the proceedings that he could not succeed on these grounds alone. He was refused leave by the single judge on two other grounds, originally numbered 1 and 2. Those related to alleged serious misconduct on the part of police officers involved in the investigation and an allegation that some of those officers had lied on a voir-dire. Having informed Mr Birnbaum at the conclusion of the arguments on grounds 1 and 2 that we refused to grant leave to appeal on these two grounds, Mr Birnbaum asked us to consider the grounds on which he had been granted leave, albeit accepting that the grounds were now "academic". We declined to do so. It is sufficient to repeat that the Full Court thought it appropriate to give leave to appeal on the basis of the four grounds ([2009] EWCA Crim 499). Given that we are refusing leave to appeal on grounds 1 and 2, we shall give only brief reasons for that refusal.
5. It is not necessary to refer to the facts except in so far as relevant to grounds 1 and 2. On 16 October 2005, the complainant was forcibly raped. The attacker ejaculated, leaving semen on the victim. On 12 October 2006, police officers searched the appellant's house pursuant to a warrant alleging an offence against section 1(1)(a) of the Protection of Children Act 1978, the making and distribution of indecent photographs of children. Indecent images were found and the appellant was arrested. DNA was extracted from mouth swabs taken from him. That DNA matched the DNA of the rapist. Interviewed in connection with the rape, the appellant said that he had had sexual intercourse but with consent.
6. The trial date was fixed for 28 March 2007.
7. In the period leading up to the trial the appellant was interviewed by counter terrorism officers.
8. On February 19 2007 the appellant served a defence statement alleging an alibi- namely that he was in the East London Mosque in Whitechapel during the material period, that he had witnesses to support his alibi and that the allegation of rape was a set up instigated by the counter terrorism police. From about that time the investigation was taken over by DCI Nolan of the Counter Terrorism Command ("CTC").
9. A second defence statement was to a similar effect. Seven alibi witnesses were then or subsequently named. The seven witnesses were interviewed and made statements. An adjournment of the trial date was obtained by the prosecution and the alibi witnesses were all arrested and their homes searched under warrants which alleged the offence of conspiracy to pervert the course of justice (and firearms offences in the case of two of the alibi witnesses).
10. Before the pleas of guilty, the judge had to deal with a number of applications from the defendants. On behalf of the appellant the arguments put forward in the grounds of appeal were made to the judge on an application to stay the proceedings. The co-defendants also submitted that their interviews and the statements made should be excluded because they had not been cautioned before making the statements. It was said that such was the strength of the evidence against the co-defendants at the time the interviews were conducted, they should have been cautioned.
11. Evidence was called on the voir dire. The judge ruled against all the submissions. The co-defendants then all pleaded guilty followed a day later by the appellant.
12. We start with the first allegation of serious misconduct. It is submitted that CTC officers used warrants under the Protection of Children Act for the search of the appellant's home and PACE for the search of the homes of the co-defendants as a cover for searches in relation to suspected terrorism, where no application for a TACT warrant would have succeed.
13. In the case of the appellant, Mr Birnbaum relied upon the fact that, in addition to the officers executing the Protection of Children Act warrant, a CTC officer was present acting as a specialist terrorism exhibits officer. Her name was not included on the list of those conducting the search. The interview of the appellant after the search of his house made it clear, so it is said, that items had been taken which were of no interest to the officers investigating the alleged Protection of Children Act offences. The search was much longer and more thorough than the usual Protection of Children Act search. It was clear that the CTC officers were investigating the appellant for terrorism offences prior to the search.
14. In the case of the co-defendants Mr Birnbaum relied on the fact that the searches were carried out by CTC officers, so he claims, in an intimidating manner. Items were uplifted which were more obviously connected with a suspicion of engagement in terrorism offences than the offences alleged on the warrants. A decision note dated 29 March 2007 stated that: "Terrorism searches can be done after search for conspiracy evidence is over". The searches started at 4.30 in the morning and were, so it is said, of a heavy handed nature which one would not expect if the only aim of the officers was to investigate a conspiracy to pervert. For example officers broke down doors to gain entry rather than obtain entry in the normal way. The defendants were handcuffed.
15. Mr Heywood brought to our attention section 16(8) of PACE 1968, which provides that: "A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued."
16. Mr Heywood submitted that the officers did not enter the premises covered by the search warrants intending to carry out a search in connection for terrorism purposes but were ready to exercise their powers under section 19 (power to seize items reasonably believed to relate to other offences) should they need to do so.
17. In our view it is arguable that there was a breach of section 16(8) and that the officers entered the various premises intending to search for items unconnected with the alleged offences. However, in our view, even if this is so, it comes no where near the gross misconduct which could lead to this court intervening. It is clear that the officers were carrying out a search for the offences alleged in the warrants. We also note that, although in the case of the search of the appellant's home, the name of the CTC officer appointed an exhibits officers was not revealed on the list of those searching, it was clear from a witness statement served for the trial that the lap top seized had been sent to officers unconnected with the Protection of Children Act investigation for the purpose of their enquiries.
18. In the case of the co-defendants it was clear that CTC officers were carrying out the search.
19. We return below to the evidence given at the voir dire about these searches.
20. It is submitted that DCI Nolan "arbitrarily" took over the rape investigation when he ought not to have done and this shows gross misconduct. DCI Nolan gave as his reason for taking over the investigation that an allegation of set up by counter terrorist officers had to be investigated by those with proper clearance. Mr Birnbaum argues that the obtaining of proof of the continuity of the exhibits destroyed any suggestion of set up and therefore terrorism officers did not have to be involved at all. We are not convinced by either DCI Nolan's reasons for taking over the enquiry or by Mr Birnbaum's argument that any allegation of set up was comprehensively proved to be wrong by proof of continuity. Nonetheless we have no doubt that the fact that DCI Nolan took over the enquiry cannot amount on the facts of this case to gross misconduct.
21. Complaint is made of the failure to caution the alibi witnesses before the interview in the light of evidence suggesting that any alibi put forward was false. That evidence included the original defence of consent, the DNA evidence, the covertly recorded conversations suggesting that an alibi was to be fabricated and cell site evidence tending to show that the appellant was not in the mosque at the critical time. Whilst not accepting that the alibi witnesses should have been cautioned at the outset of the interviews, we can see a respectable case for saying that they should have been cautioned at some point during the interview. But the failure to caution, on the facts of this case, comes no where near the kind of gross misconduct which could lead to the case against the appellant being stayed.
22. Complaint was made about the search of the appellant's cell. We see no merit in that complaint in so far as it is said to support the submission of gross misconduct.
23. We turn to the complaints made particularly about the evidence of DCI Nolan on the voir-dire the effect of which appears to be was that he was denying that the searches of the appellant's home and that of his co-defendants were for terrorist related items as well as the items covered by the warrants. We shall assume only for the purposes of this application for leave that DCI Nolan was not being as frank as he ought to have been. That said, any lack of candour on his part in the context of a terrorism investigation comes nowhere near the kind of gross misconduct which would lead to a stay of proceedings.
24. For these reasons the appeal and the application for leave to appeal are dismissed.