England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
MR JUSTICE TREACY
T20067220, T2006721, T20067222, T20067356

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/07/2012

Lord Justice Hooper:

1. The respondent did not seek to uphold the convictions. At the conclusion of the hearing and having considered both the written and oral submissions of Mr Whittam QC on behalf of the respondent, we announced that the appeals would be allowed and the convictions quashed. The respondent rightly did not seek a new trial.
2. We are very grateful to Mr Whittam and his junior Mr Grieves-Smith for all the work they have done to assist the Court. Much of the judgment is derived from their written and oral submissions. Neither was involved in the trial.
3. We are also very grateful to the Criminal Cases Review Commission ("CCRC") staff who dealt with this case and, in particular, to Mr John Weeden (Commissioner) and Mr Dean Orme (Case Review Manager). Their assistance to the Court has been invaluable. The CCRC were appointed to investigate this matter in July 2009. The CCRC oversaw the appointment of the investigation team and acted as liaison between the Court and the investigation team in what has been a wide-ranging and protracted investigation. The investigation team was headed by Mr Mick Creedon, the Chief Constable of Derbyshire Constabulary assisted by up to 30 officers selected from Derbyshire and Leicestershire Police. The team has dealt with this matter both expeditiously and with great efficiency.
4. The CCRC have provided the Court with regular updates on the progress of the investigation and have lodged a number of helpful reports. CCRC staff have attended a number of directions hearings, giving assistance to the Court on each occasion. The work of the CCRC and the investigation team has played a large part in the early conclusion of this appeal.
5. On 11 January 2008 after a trial lasting some three months Owen Crooks, Adam Joof, Antonio Christie, Levi Walker and Michael Osbourne were convicted of the murder of Kevin Nunes on 19 September 2002. On 14 January 2008 they were each sentenced to life imprisonment with minimum terms of 25, 28, 28, 27 & 27 years respectively.
6. Mr Whittam sets out in his Note to the Court a summary of the allegations against the appellants:

"Kevin Nunes was murdered on the evening of 19 September 2002 at Pattingham, just outside Wolverhampton. He was a drug dealer. He trusted few people. One person he did trust was Owen Crooks.

The appellants were members of two separate gangs; Owen Crooks and Michael Osbourne were members of the Heath Town Gang, also known as the Uken Demolition Crew or UDC. Adam Joof, Antonio Christie and Levi Walker were members of the Raiders. Those two gangs joined forces to eliminate Kevin Nunes because he was dealing in drugs in competition with them.

On the day of the murder Adam Joof and Antonio Christie had been released from custody. They had faced allegations of kidnap and rape made against them by Jodie Pitt, a former girlfriend of Adam Joof. She had withdrawn her allegations after a campaign of intimidation.

Adam Joof and Antonio Christie were seen gathering with others at Levi Walker's address. Jodie Pitt was staying at Hopeton Falconer's address which was opposite. She saw what was happening. Adam Joof and Antonio Christie left.

Owen Crooks, under the direction of Michael Osbourne with whom he was in telephone contact, lured Kevin Nunes into a car. He was taken to the Fox Inn, where he was handed over to Adam Joof and Antonio Christie. Levi Walker had driven Antonio Christie to the Fox Inn.

Kevin Nunes was taken at gunpoint by Adam Joof and Antonio Christie in a car driven by Simeon Taylor to a remote spot. Levi Walker followed in the car he had used to drive Antonio Christie to the Fox Inn.

Adam Joof and Antonio Christie shot Kevin Nunes repeatedly with two firearms. He was then attacked with sufficient severity to have been likely to have killed him without having been shot. Antonio Christie then sought to get Simeon Taylor to inflict further injury on Kevin Nunes as a test of loyalty. Adam Joof said that was not necessary. Simeon Taylor drove Adam Joof away; Levi Walker drove Antonio Christie.

The firearms were given to Hopeton Falconer later that evening.

Save for the recovery of Michael Osbourne's DNA profile on a SIM card found in a phone that was taken from Kevin Nunes, there was no relevant scientific evidence.

Michael Osbourne later made a 'cell confession' to Garfield McLean. The evidence was that he confessed to shooting Kevin Nunes. It was not the prosecution case that Michael Osbourne had been present or shot Kevin Nunes. The prosecution relied on that admission as indicative of his complicity in the murder, supported by the phone calls to Crooks and the DNA evidence in relation to the phone. It was asserted that the confession to shooting was simply an example of someone 'bigging up' their role in an attempt to gain respect amongst fellow criminals.

Adam Joof, Antonio Christie and Levi Walker all denied that they were present at the Fox Inn or the scene of the murder. Owen Crooks accepted that he was at the Fox Inn, but he did not know that the events would lead to the death of Kevin Nunes. Michael Osbourne denied that he was involved in the murder."

7. The prosecution case was dependent upon the evidence of: Simeon Taylor, Jodie Pitt, Hopeton Falconer and Garfield McLean.
8. The trial was presided over by Treacy J. at the Crown Court sitting at Leicester. All the defendants, save Michael Osbourne, gave evidence.
9. The applicants, as they then were, raised various grounds of appeal. On 27 July 2009 the Court of Appeal directed the CCRC pursuant to section 15 of the Criminal Appeal Act 1995 to investigate issues raised in the applications for leave to appeal by the appellants.
10. On 14 June 2010 Mr Weeden of the CCRC wrote to the Chief Constable of the Derbyshire Constabulary requiring him to appoint an investigating officer pursuant to section 19 of the Criminal Appeal Act 1995. As a result Chief Constable Creedon accepted the role of investigating officer and assembled a team under the name of Operation Kalmia. That investigation has culminated in three strands:

i) Strand 1 is an investigation into Simeon Taylor.

ii) Strand 2 is an investigation into former DC Mark Morgan who subsequently pleaded guilty to misconduct in public office.

iii) Strand 3 is a comprehensive investigation into the Staffordshire Police Sensitive Policing Unit and the role of DI Anderson, who was the manager of the Unit when it was responsible for handling Simeon Taylor. DI Anderson was concerned that the systems in place were insufficiently robust to withstand scrutiny. He sought to make the Unit more accountable and attempted to introduce systems that were transparent. That brought him into conflict with others on the Unit and into conflict with Simeon Taylor and his mother, Patricia Nunn.

11. At a directions hearing the Court directed that that the appeal which was then listed for hearing in the week of 25 June would be concerned with Strand 3 only, the other Strands to be considered only if the appeals were unsuccessful on Strand 3.
12. Mr Whittam's Note explains how the prosecution put their case and expresses concerns about the way that Simeon Taylor was handled as a prosecution witness. We share these concerns.

"THE WAY THE PROSECUTION PUT THEIR CASE

38. The prosecution case was dependent on the evidence of Simeon Taylor. He was an essential witness. He was present when Kevin Nunes was handed over to Adam Joof and Antonio Christie. He drove them to the site of the murder and witnessed them both shoot him. He was the only prosecution witness who saw what happened.

39. It is difficult to fully reconcile the role of Simeon Taylor. If Simeon Taylor knew what was to happen to Kevin Nunes when he drove him away with Adam Joof and Antonio Christie then he was party to the joint enterprise. If so a decision should have been made as to whether he should be charged with murder.

40. Further, the evidence given by Simeon Taylor was that he drove Adam Joof away from the scene after the murder. He does not appear to have a defence to the potential offence of assisting an offender. It is unclear what consideration was given to 'cleansing' his offending, or whether he should be prosecuted for any offence.

41. One issue that did arise at the trial was whether he was given immunity; the parties were informed that he was not given immunity and worked on the basis that it was not granted. It is difficult to understand how he came to give the evidence he did unless something was said to him at some stage. That may not have any impact on the safety of the convictions, but it may be an indicator of the attitude taken towards Simeon Taylor and the culture of reliance upon him in this serious prosecution.

42. The potential criminality of Simeon Taylor to one side, the prosecution case was that Owen Crooks had lured Kevin Nunes, his friend, to Adam Joof and Antonio Christie, who then shot him.

43. It was the prosecution case that Levi Walker knew Adam Joof and was associated with him. He was a close and willing associate of Adam Joof and Antonio Christie and a willing participant in the events. Based on the evidence of Simeon Taylor it was alleged that he drove Antonio Christie to the Fox Inn. He then followed the car which contained Kevin Nunes, Adam Joof and Antonio Christie to the scene of the murder. There he got out of the car and witnessed what happened. He then drove Antonio Christie away from the scene ... . It is difficult to discern any real difference between his actions and those of Simeon Taylor, save for the fact that Simeon Taylor was treated as a witness."

13. It is important to note that no attack was made during the trial by counsel for the defendants on the manner in which the police had handled Simeon Taylor nor was there any suggestion of misconduct on the part of those handling him. There was at the trial no material to support such an attack.
14. We turn to Strand 3.
15. On 4 January 2006, Staffordshire Police Professional Standards Department ("PSD") received a letter dated 23 December 2005 from Simeon Taylor and his mother Patricia Munn. The letter raised issues concerning their treatment whilst on the witness protection scheme. In April statements were taken from them in which serious allegations were made against DI Anderson who was the manager of the Sensitive Policing Unit, including an allegation of racism.
16. On 10 May 2006, Inspector Hood sent a report to the Superintendent in charge of the PSD recommending that the complaint made against DI Anderson should be deemed "sub judice" and the investigation delayed pending the outcome of the imminent Kevin Nunes murder trial. Inspector Hood observed that there were possible disclosure issues relating to the complaints that could affect the Kevin Nunes murder trial. In the words of the Note:

"59.6 It should be noted that whilst the trial was said to be imminent in fact it was fixed [at that time] for January 2007. It might be thought therefore there was ample time to investigate and reach a conclusion. On any basis the reason given indicates that the police knew how he was being handled as a protected witness was capable of being discloseable to the defence at trial.

59.7 On 15 June 2006, Inspector Hood and the Superintendent met with the CPS lawyer Mark Sheppard to discuss the sub judice rule regarding the complaint made against DI Anderson by Simeon Taylor and Patricia Munn.

59.8 Mr Sheppard agreed that this should be deemed as sub judice but wanted to seek advice from counsel. Whilst awaiting clarification Superintendent Sawyers made the decision that the complaint investigation would remain sub judice.

59.9 On 27 June 2006, a note was sent by the CPS to prosecuting counsel, Christopher Millington QC. A number of documents were enclosed, including the complaint statements from Patricia Munn and Simeon Taylor regarding their allegations against DI Anderson.

59.10 On the note was the following relating to Patricia Munn and Simeon Taylor: '…the prosecuting lawyer has recently been visited by officers who have been tasked to deal with the complaint, they are concerned that any investigation into this matter could undermine the evidence of Simeon Taylor thereby making it disclosable to the defence. Given the potential that the defence will argue inducement and perhaps seek to examine what arrangements have been made to care for Simeon Taylor, the prosecuting lawyer takes the view that any investigation is sub judice and consequently no further investigation should take place until after the conclusion of the trial. Counsel is asked for his opinion on this matter'.

59.11 On 11 July 2006, a conference was held regarding the Kevin Nunes murder investigation. Present was Mr Millington; junior prosecution counsel Richard Atkins [as he then was]; Mark Sheppard, DI Andy Spiers and a number of unnamed Staffordshire Police officers. ...

59.12 One of the points discussed was the complaint made by Patricia Munn and Simeon Taylor. Mr Millington indicated that the most important thing was 'to keep Simeon Taylor on board. He asked whether the problems referred to in the complaints had been addressed' ...

59.13 Mr Millington was asked for his views on disclosure regarding the complaint to the defence, if it undermined the prosecution's case. 'The complaint process was explained to Mr Millington. MBS expressed the view that the complaint should be dealt with following the trial as it had the potential to be sub judice. Mr Millington agreed with this course of action, that Simeon should be told that the complaint would not be swept under the carpet. It was agreed that this should be explained to Simeon' ...

59.14 Mr Sheppard was of a view that the complaint should be dealt with after the Kevin Nunes murder trial as it had the potential to be sub judice. Mr Millington agreed with this course of action. It was felt that the best course of action in the continued care for Simeon Taylor was to provide intensive support. This does not accord with the recollections of Mr Millington and Mr Atkins.

59.15 On 7 August 2006, Inspector Hood wrote to Mr Sheppard to ask if any decision had been made with regard to the sub judice ruling concerning the complaint against DI Anderson. Whilst waiting for a reply it was decided by the Superintendent that the complaint would be deferred and recorded as sub judice.

59.16 On 11 December 2006, Mr Sheppard wrote to Inspector Hood at Staffordshire Police PSD. Mr Sheppard stated that he had forwarded the two complaints made by Patricia Munn and Simeon Taylor to counsel for his views. He stated that it was not felt appropriate to continue with the investigation into the complaints until the murder trial had concluded: 'The effect of continuing the investigation at present could have the potential to impact upon the trial'. He concluded that the complaints in his view were sub judice. ...

59.17 DI Anderson was told that the complaints made against him would not be investigated until after the trial 'on the basis that it was deemed to be sub judice.' ...

17. Like Mr Whittam, we are very concerned about the decision not to investigate the complaints in case the investigation turned up something which had to be disclosed. The responsibilities imposed by the Criminal Procedure and Investigations Act and by the Attorney-General's Guidelines cannot be sidestepped by not making an enquiry. A police officer who believes that a person may have information which might undermine the case for the prosecution or assist the case for the suspect or defendant cannot decline to make enquiries of that person in order to avoid the need to disclose what the person might say.
18. The decision to categorise the complaints as sub judice (whatever those words may mean in this context) was quite wrong.
19. As Mr Whittam says, it might be that there was a concern about what DI Anderson might say in response and that this influenced the decision not to investigate. If so, that makes matters even worse.
20. We now turn to an even more important failure to comply with the obligations of disclosure.
21. On 1 November 2006 Superintendent Costello and Chief Inspector Prince were requested by Assistant Chief Constable Davenport to conduct a Management Review of the Staffordshire Police Sensitive Policing Unit. The decision to conduct the Review followed a report made by Detective Inspector Anderson to a senior officer that there was corruption, falsification and dishonesty within the Sensitive Policing Unit of which he had been the manager since 26 September 2005. The Unit was responsible for witness protection and certain covert human intelligence sources. Simeon Taylor had joined the witness protection scheme on 4 March 2005. On DI Anderson's arrival in the unit, he expressed concerns about the way in which Simeon Taylor was being treated and handled. He took action to make changes. In his report to the senior officer DI Anderson gave a specific example of apparent dishonesty on the part of Simeon Taylor and said that there was an unwritten understanding that Simeon Taylor would be retained on the witness protection scheme and give his evidence "at any cost".
22. The 73 page "Costello Report", as it came to be known, was released in February 2007, many months before the start of the trial which led to the appellants' convictions. Much of the Report concentrated on the handling of Simeon Taylor. The Report was not disclosed and there is no doubt that it should have been (if necessary in a redacted form). If it had been disclosed the defence would have been made aware that Inspector Anderson was in a position to give evidence which would have seriously undermined both the credibility of Simeon Taylor and the integrity and honesty of Simeon Taylor's handlers both generally and in respect their handling of him. Without the Report the defence were in no position to attack the integrity and honesty of the system put in place to handle Simeon Taylor. Counsel for the appellants worked on the entirely false basis that the record keeping in respect of Simeon Taylor was accurate. With the Report the defence could have shown that the Sensitive Policing Unit was a dysfunctional organisation fractured by in-fighting, containing officers whose honesty and integrity were open to question and whose documentation in respect of Simeon Taylor could not be trusted.
23. It is of note, in that respect, that the Report refers to DI Anderson's personal integrity as a core quality for which he is respected.
24. Paragraphs 2.4 and 2.5 read as follows:

"2.4 The review team have investigated the issues raised by DI Anderson, however they could not deal with each issue in isolation as many of them are inter related and symptomatic of deficiencies within the structure, operating practices and management regime within the Sensitive Policing Unit.

2.5 As a consequence the review team have examined the background of the Unit and expended a great deal of time interviewing current and previous post holders.  Through necessity, they have also concentrated in particular on the Sensitive Policing Unit's involvement in the NUNES investigation, which was the main reason why DI Anderson decided to approach Supt Sawyers, Head of Professional Standards."

25. In the words of the 2 November Interim Report to the CCRC from the investigation team:

"6.9 These two paragraphs highlight that there were serious problems within the SPU and its working practices should have been disclosed pursuant to CPIA 1996."

26. One of the issues examined in the Report related to a theft committed by Simeon Taylor. The Report examined evidence which showed that Simeon Taylor had dishonestly obtained a refund of £320 which had been paid to permit him to stay in a hotel. The Report also examined evidence which showed that there was good reason to believe, and DI Anderson did believe, that the officers concerned had deliberately not recorded the incident in the appropriate document intending thereby to prevent disclosure to the defence.
27. In respect of the consumption of alcohol by Simeon Taylor's handlers whilst handling him, the Report noted:

"8.20 A defence lawyer may also think it inappropriate and it could lead to undue inference being made as to the integrity and closeness of the relationship of the witness with the police."

28. That and other parts of the Report show that the authors of the Report expressed their concerns about non-disclosure. It is therefore even more surprising that the decision was made not to disclose the Report.
29. The Report reveals that one of the officers handling Simeon Taylor had arranged for a female officer to stay with him in a hotel room whilst he was on duty engaged in witness protection duties involving Simeon Taylor. That second officer was the disclosure officer on this case. They denied having stayed at the same hotel as Simeon Taylor and she denied having met Simeon Taylor. The authors of the Report conducted no further investigations to see whether these assertions were true. The Report stated:

"DC [S] is the disclosure officer on the NUNES investigation and had there been an admission or evidence that she had met Simeon Taylor her position as disclosure officer would have been untenable.  Her actions could have also seriously undermined the integrity of the prosecution case.

Having taken into consideration the importance and sensitivity of the prosecution case and the position these two officers held within the enquiry, their conduct can only be considered as totally unprofessional."

30. The respondent's note to the Court for this appeal states:

"DC [N] one of the handlers of Simeon Taylor, was having an affair with the disclosure officer. They met where Simeon Taylor was being housed. Its potential impact is obvious. Had it been disclosed it could have been utilised by the defence to prove that Simeon Taylor's knowledge of the circumstances of the offence had not been acquired by being present when the offence was committed but by having information passed to him by someone handling him.

102. It is of note that when Simeon Taylor gave evidence he said he knew that the enquiry team had no forensic evidence. He was unable to say how he knew that. ... He knew about the absence of cell-site evidence. He knew what Joof had told the police."

31. This information was obviously discloseable. In the respondent's words:

116. ... Further the prosecution said that there was support for the evidence of Simeon Taylor in the fact that two shots were fired, the injuries suffered, the clothing that Kevin Nunes was actually wearing and the lack of scientific evidence to contradict him. On the evidence at trial they were powerful points. However the validity of this argument must now be doubted in light of the affair between the disclosure officer and DC [N]. It is a feature of Simeon Taylor's evidence that he knew of the detail of the prosecution case such as the absence of cell-site or forensic evidence: the disclosure officer was visiting where he was housed and in an intimate relationship with an officer responsible for his welfare. Although there is no evidence information was actually passed, that relationship should have been disclosed and would have been utilised."

32. One officer told the authors of the Report that it was the view of senior officers that Simeon Taylor should give evidence "at all costs". Whatever that may have meant, this information should have been disclosed.
33. Following the decision by this Court to ask the CCRC to investigate, DI Anderson came forward to express his concerns about what had happened and later made a lengthy statement for the purposes of the investigation. DI Anderson is to be congratulated for his willingness to come forward and reveal that justice had not been done. We hope that he will be formally recognised by the Chief Constable, if it has not already been recognised.
34. The respondent's note to the Court summarises the statement in this way:

"64. The key points from his statement are as follows. The way that Simeon Taylor was allowed to join the witness protection scheme was irregular. [Pages 42-43] The way he was treated by police officers was irregular; for example drinking and going to nightclubs. [Page 45, see also page 67] Simeon Taylor took drugs into Patricia Munn's house and introduced his young brothers into criminality. [Page 46]

65. There was a belief that there was an 'at any cost' culture in relation to Simeon Taylor. There is no evidence of someone actually using those words. What matters is there was this perception. [Page 49]

66. 'On joining the SPU there was clearly an understanding amongst staff that Simeon Taylor expected to be paid the £20,000 reward money…Staff went further than this and suggested Simeon Taylor had been given assurances by staff from the Major Investigation Department that he would receive the money in return for giving evidence against his former associates.' [Page 76]

67. DC [A], who had been paired with DC [N] as the handlers of Simeon Taylor said he had discussed the reward with Simeon Taylor. [Page 76] DS [N] shared the view that Simeon Taylor had been promised the reward. [Page 77]

68. There was an incident at an hotel in location 1 that is dealt with in detail in his statement. Cash was used to make the reservation. Simeon Taylor then booked out and took the money. The crucial point is this; the officers who had care of Simeon Taylor during that weekend were prepared to falsify records in an attempt to cover up the criminality of Simeon Taylor. [Pages 99-101] The appellants conducted the case at trial on the basis that the records were accurate.

69. DI Anderson had made serious complaints about the running of the SPU. The investigation into his complaints was called a 'management review.' That review was headed by Superintendent Costello [The Costello Report]. DI Anderson used the words 'corruption, dishonesty and falsification.' The statement deals with the circumstances in which the Costello report came to be written. [Pages 108-112]

70. It is clear from the summary of the initial meetings attended by Superintendent Costello and DCI Prince that he was making serious complaints including that relating to the hotel at Location 1. [Appendix 5 Page 4] This document makes it clear they knew of the failure to maintain proper documentation in respect of this. [See Page 5] It is a feature of this document that in the summary it reads that DI Anderson has no evidence of corruption or dishonesty but highlights undisciplined conduct of individuals [Page 8]. ...

71. DI Anderson states that there was a decision to deliver Simeon Taylor to Court to secure his evidence. He believed that Simeon Taylor was promised a substantial cash reward in return for his co-operation. He believed it amounted to an inducement. Those involved in this included those responsible for the handling of Simeon Taylor. [Page 177] He alleges that there was a deliberate cover-up about the incident at the hotel at Location 1. [Page 177]

72. He also states that he was told Garfield McLean [another prosecution witness] was provided with financial support for no apparent legitimate reason. [Page 178]"

35. If, as should have happened, DI Anderson's ability to give evidence about the Sensitive Policing Unit had been disclosed, the information which DI Anderson was to give to the investigation would have been available to the defendants at trial. If it had been available then it may well be that the prosecution would not have proceeded with the trial or the judge would have stopped the proceedings on the grounds that there had been gross prosecutorial misbehaviour.
36. As to the issue of a reward, the respondent's note states:

"123. Any material that went to his motive to give evidence was of significance. One of his handlers gave evidence to the effect that he had not offered him immunity or offered him a reward. There had been a stage later on in the process when Simeon Taylor had asked if there was a reward. That conflicted with what is now known; DI Anderson thought that he had been promised a reward before he made a statement and DS Neil and DC Andy thought there had been a promise of reward."

37. It would be inappropriate for this Court to apportion responsibility for the non-disclosure of the material to which we have referred. On the face of it the decision not to disclose the fact that complaints had been made against DI Anderson was made or concurred with by the prosecution as well as the police. The decision not to reveal the Costello Report or the availability of DI Anderson appears to have been one made by the police and not by the prosecution.
38. This is a very bad case of non-disclosure. It bears similarities to Maxwell [2011] 1 WLR 1837, [2010] UKSC 48, [2011] 2 Cr App Rep 31.
39. It is to be hoped that the appropriate measures will be taken against those responsible for what appears to us to be a serious perversion of the course of justice, if those measures have not already been taken. It is to be hoped that lessons will be learnt from this shocking episode.