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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Turner v R. [2013] EWCA Crim 642 (09 May 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/642.html
Cite as: [2013] EWCA Crim 642
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ON APPEAL FROM QUEEN'S BENCH DIVISION
Mrs Justice Dobbs
T2011/7162
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ROYCE
and
MR JUSTICE GLOBE
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| Elliott Vincent Turner |
Appellant |
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| - and - |
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| R |
Respondent |
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T Mousley QC and S Jones for the Crown
Hearing dates: 24th April 2013
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Crown Copyright ©
- We now provide our reasons for our decision on 24 April. This is an appeal by Elliot Turner against his conviction on 21 May 2012 in the Crown Court at Winchester before Dobbs J and a jury of the murder of Emily Longley, his girlfriend. On the following day he was sentenced to life imprisonment with a minimum term of 16 years. He also appeals against the minimum term.
- The appellant was convicted on his own guilty plea during the trial of doing an act tending and intended to pervert the course of justice. His father, Leigh Turner, and his mother, Anita Turner, were convicted by the jury of the same offence. They were sentenced to 27 months imprisonment, and the appellant was sentenced to a custodial term of 9 months, to run concurrently with the sentence for murder.
- The single ground of appeal against conviction arises from the rejection of Dobbs J of the submission that the indictment should be stayed as an abuse of process arising from the use of intrusive covert surveillance in the appellant's home; alternatively, that the evidence derived from that surveillance was unfairly admitted in evidence, when it should have been excluded under s.78 of the Police and Criminal Evidence Act 1984. It is therefore unnecessary to recite the evidence in detail.
- On 7 May 2011 at 9.50a.m. as a result of a telephone call made by Anita Turner, an ambulance was driven to the appellant's address. There the appellant's girlfriend, aged 17 years at the time, was found lying on a double bed with two pillows under her neck. She was dead at the scene and rigor mortis had already set in.
- On that day a post mortem was carried out. The cause of death was unascertained, although the pathologist concluded that, given the physical findings of haemorrhaging to the deceased's eyes, and a red line to her neck, there was a possibility of asphyxiation involving neck compression. The physical findings recorded by the pathologist were reviewed. The findings were consistent with pressure being applied to the neck of the deceased by manual application or forearm pressure, and the absence of any marks indicative of a struggle suggested that her ability to resist was limited in some way, for example, by restraint or as a result of the consumption of alcohol.
- At the scene itself, a pillowcase was found on the bed and make up suggested that the deceased's face had been imprinted on it. Indeed there appeared to be a "face mask", with marks left on the pillow by the mouth, nose, cheeks and eyelids of the deceased. Later a DNA "match" with the deceased's saliva was found in the "mouth area" of the mask and make up and mucus from the deceased were found on the shirt worn by the appellant that evening.
- The appellant told the ambulance crew that he had had a violent argument with the deceased before they went to sleep, but that she had drunk a glass of water at about 4.30a.m. before falling asleep with a headache. He said that the deceased never woke up. In the immediate aftermath of the arrival of the police he said that he had defended himself and fended her off. Anita Turner also said that she had seen the deceased fetching herself a glass of water at about 5a.m.
- The relationship between the appellant and the deceased was short, but turbulent, and it was steadily deteriorating, with the appellant keener on the continuation of the relationship than the deceased. She visited New Zealand, her home country, between 5 and 29 April 2011. It is clear from text messages that the appellant believed that she may have been unfaithful to him and on her return that led to quarrels. The case for the prosecution was that the appellant was possessive, jealous and violent and that he murdered his girlfriend because she was not sufficiently interested in him and had made a fool of him publicly by associating with other men. Based on his language in his own text messages and voice messages to his family and friends, the Crown suggested that the appellant's anger with the deceased arose from self centred concern about how his reputation would suffer if she ceased to be interested in him rather than any particular affection for her.
- The deterioration in the relationship, and his violent reaction to it was well established. For example, on 30 April 2011 the appellant left a voice message, stating that "out of every single bird, I'm gonna fucking mess this one (the deceased) up. I'm gonna fuck her off soon. Absolutely fuck her off soon. Definitely". And that evening he was seen to hold her up against a wall by her neck and forcibly to bang her head on a table in a bar.
- On 6 May he sent a text message to his mother stating that he would not live without the deceased and apologising to his family and saying goodbye. On the night before the murder he pretended to his friends that he had killed the deceased. He said, "she's never going to have a family. She'd pushed me to it. She knew what she was letting herself into. She pushed me. She is never going to have kids. I would always have been her boyfriend". On the same evening he threatened to smash her face in, saying "I'll kill her. I'll go to prison. I'll still be a millionaire. I'll do 10 years. It won't bother me. I'll still be a millionaire". Earlier that day the appellant demonstrated what is described as a "sleeper hold", a wrestling/martial arts move which restricts the victim's ability to breathe. Together with the use of a pillow, this would cause asphyxiation.
- Having spent the evening and night of 6 May together with friends, in the early hours of 7 May, the deceased and the appellant left together to go to his home shortly before 1.00a.m. They were still arguing.
- The defence case statement put the prosecution to proof that the deceased had been unlawfully killed or that the appellant had caused her death. However if he were responsible for her death, he relied on self defence, and loss of control. At trial he gave evidence in his own defence that during the evening before the deceased went to sleep, she attacked him in his room. Her violence was completely out of character. He used reasonable force to restrain and calm her and after the altercation she was still alive. In the event the loss of control defence was not advanced to the jury.
- The appellant was arrested. During interview on 8 May he made no comment. By then he was legally represented and had discussed his defence with his legal advisors. His parents were interviewed as potential witnesses on the previous day.
- This was a case of the utmost gravity in which a young woman had died while staying overnight with the appellant in the home of his parents. The post mortem evidence did not conclusively exclude the possibility that she had died from natural causes, but she was a very young woman, in apparently good health, and there was no apparent reason why she might have done. When interviewed, the appellant had not offered any comment on or about the circumstances of her death in his bedroom.
- On 17 May at 9.28a.m. the Chief Constable of Dorset authorised the use of intrusive surveillance in the appellant's home. At 12.25p.m. the authorisation was approved by the Surveillance Commissioner, Sir William Gage. It was valid for three months. Covert surveillance began on 18 May and lasted until 14 June.
- In due course the approval form was disclosed to the judge. The available content of the recordings made on the basis of the approval was similarly disclosed to the defence in accordance with prosecutorial disclosure obligations. No disclosure was made of the documentation relied on by the Chief Constable and the Surveillance Commissioner in the authorisation and approval processes, but it is clear that the prosecution remained alert to their disclosure obligations throughout the trial, and in particular, in the context of the submission that the content of the recording should be excluded on fairness grounds.
- The covert recordings provided clear evidence that the appellant had killed the deceased, and that he and his parents attempted to pervert the course of justice. Among the extracts the appellant was recorded on 21 May, saying, "I felt this angry for about a month before. I felt it in me, felt the aggression. Like I felt it every day. Then she just hit me in the face and I was putting up with it. I contained myself for about 20 seconds. She kept punching me and kicking me. I just fucking grabbed her as hard as I could. I just flipped. Grabbed her as hard as I could and went fucking hell. Grabbed her liked that and pushed her like that". His mother intervened to say "No Elliot. You didn't do that". He said "I knew something was wrong at that moment. My mind knew something was wrong. Couldn't do anything. I went to sleep" and he then described the deceased as a "fucking manipulative cunt".
- On 29 May he looked up the law relating to self defence on his father's computer. On 1st June the appellant was talking to his brother. He said "I was looking yesterday on-line. Death by strangulation. … typed in, death by strangulation, death by suffocation, manslaughter trial, how to get off innocent, how to get away with serious crimes". Later that day he said that there was no proof that Emily was killed, and the question was, how did he kill her?
- On 14 June he said that on the Tuesday, Wednesday and Thursday before 7 May the deceased was a cunt. He talked about the violent thoughts going through his head. He was going "psycho". No girl had ever pushed him that far and there was nothing he could say to frighten her.
- Without setting out all the references, the appellant made significant admissions of his responsibility for the death of the deceased. The surveillance also revealed strong evidence that he and his parents were conspiring together to pervert the course of justice. That is the background to the issues raised in the appeal.
- The single ground is that Dobbs J's decision was wrong and that the submissions made to her on behalf of the appellant should have found favour with her. The prosecution should have been stopped as an abuse of process: alternatively, none of the evidence derived from the covert surveillance should have been admitted.
- The foundation for this submission is legal privilege. We agree with Mr Anthony Donne QC that legal privilege is an essential ingredient of the common law system, and indeed the jurisprudence of the European Court of Human Rights. The importance of the principle and its impact on the administration of justice, both as a substantial right and as an evidential rule, has been emphasised in numerous judgments in the House of Lords and the Supreme Court. We need not repeat them. In the present context, it is perhaps more important to underline that the process of covert surveillance by the authorities is intended to be and should be controlled so that it is subject to proper safeguards against misuse and legal privilege, if and when covert authorisation is granted, is properly protected. When granted, and exercised in accordance with the grant, covert surveillance is lawful.
- The processes are governed by the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. Neither statutory provision addresses questions about the admissibility of evidence at any criminal trial. Nevertheless, as Mr Donne pointed out in argument, considerable attention is paid to the potential danger of interference with legal privilege. The relevant Code of Practice, deriving from the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) (Order 2010) permits the use of covert surveillance even when the surveillance may result in the acquisition of knowledge of matters subject to legal privilege as defined in s.98 of the 1997 Act. Nevertheless the fact that this result may follow requires to be addressed when an application for covert surveillance is being made. Indeed if covert surveillance is likely to result in the acquisition of knowledge and matters subject to legal privilege, the appropriate authorisations or approval cannot be made unless there are exceptional and compelling circumstances justifying it. although it is permissible for covert surveillance to be authorised even if the result may involve the acquisition of legally privileged matters, the risk should be recognised, and so far as possible removed entirely. Unless the risk can be entirely removed, it is necessary for steps to be taken and for the application to explain the steps which will be taken to ensure that any such information will not be used, either for the purposes of further investigations or during the course of any subsequent criminal trials.
- Without a laborious exposition of all the relevant provisions, it is clear that arrangements for covert surveillance must focus meticulous attention on a need to preserve legal privilege, and where, for one reason or another, the relevant precautions have failed, to ensure that the interests of the potential defendant during the course of the investigation itself, or at any other subsequent trial, are not prejudiced in consequence. Thus the arrangements for authorised covert surveillance recognise the sensitivity and importance of legal privilege.
- The covert recordings which took place in accordance with the approval granted by the Surveillance Commissioner covered something very close to 300 hours of recorded conversations between the appellant and his parents, his grandmother, and a friend. If the appellant had known about the surveillance neither he nor his parents would have said anything which would potentially incriminate them. Presumably, too, he would not have said anything about his discussions with his lawyers. At trial, the judge allowed the Crown to adduce potentially incriminating admissions made by the three defendants, as recorded during the covert surveillance. She was not invited to, and she did not admit, any evidence which might have been subject to legal privilege, or which repeated or reflected anything said by the appellant and his legal advisors to each other, or indeed what the appellant said to others he had said to or been told by his legal advisors. Moreover there is nothing to suggest that any information which might have been subject to legal privilege was disclosed to investigating officers, and none of the evidence adduced against the defendants by the Crown reflected evidence obtained as a result of communications to investigating officers of material subject to legal privilege.
- An issue relating to possible waiver was advanced by the Crown before Dobbs J. Mr Donne suggested that any argument to the effect that the appellant had waived privilege should be rejected. We are inclined to agree, but need not decide, that waiver of legal privilege extending to the world at large, including an unsuspected listener, is unlikely to follow from a conversation between a man and his immediate family in which he and they may reasonably discuss the legal advice he has received about a problem which will or may have a dramatic effect on his and indeed their lives. If Mr Donne's submission based on legal privilege were otherwise well founded, we should assume that waiver was not apt to describe anything overheard by any member of the surveillance team.
- Mr Donne drew careful attention to a number of instances which he contended showed, first, that privileged material was recorded; second, that officers in charge of the recording process switched the recording equipment off, yet continued to listen in to privileged material; and third, the barrier designed to keep the investigating officers separate from those responsible for surveillance was not fully maintained. We examined the relevant passages in the material during the hearing in open court. There were indeed limited brief references by the appellant to his solicitor and what was said by him. Occasionally, for very brief moments the officers continued to listen to the conversation after the recording equipment was disconnected from the audio feed. Nevertheless what a study of the material as a whole reveals is that those responsible for the surveillance used their best efforts to comply with the principles relating to legal privilege, and to implement covert surveillance so as to avoid any infringements. We cannot discern any basis for suspecting that there was any deliberate or intentional breach of legal privilege or that any of the officers responsible for covert surveillance acted otherwise than in good faith. What is more, having examined the evidence as a whole, it is entirely apparent that nothing which became known to the surveillance officers resulted in any further or wider investigations, or produced a single item of incriminating material to strengthen the case against the appellant, other than properly recorded observations he made to his parents.
- We can now place Mr Donne's submissions in their proper context. The lawfulness of the approval to surveillance granted by the Commissioner cannot be impugned. (Section 91(10) of the Police Act 1997). The surveillance was lawful. The relevant disclosure took place. The record of incriminating conversations was unchallenged. We understand that there may be extreme cases in which the prosecuting authorities (using the words in a comprehensive way) may interfere so significantly with the legal privilege of a defendant that the very integrity of the administration of justice may be undermined. That, however, did not happen here. Lawful covert surveillance produced damaging evidence against all three defendants. The process worked lawfully: any flaws were minor and short, and inconsequential. There were no grounds to justify a stay.
- Mr Donne suggested that this material must, at the least, give rise to concern whether or not the application for authorisation and subsequent approval of covert surveillance may have been flawed. Therefore Dobbs J should have examined the material on which these different processes were based. She declined to do so. The prosecution assured her that they had given proper thought to their disclosure obligations, and there was no relevant material in their possession which would be of assistance to the appellant. That was a sufficient basis for the application by Mr Donne to be refused. In any event given the provisions of s.91(10) of the 1997 Act we wonder what might have followed if the material sought by Mr Donne had indeed been disclosed to him. He suggested that it would have reinforced his application to exclude evidence under s.78 of the 1984 Act. To that question we can briefly turn.
- The s.78 application (which for present purposes encompasses Article 6 and 8 of the European Convention of Human Rights) was doomed to failure. As to the authorisation and approval, it seems clear that the prosecution would have disclosed any material helpful to Mr Donne. From the fact that none was disclosed, we deduce that there was none. In any event none of the evidence of the conversations between the appellant and his family adduced in evidence was tainted by unfairness falling within s.78. The only unfairness was that the appellant chose to say the things that he did because he did not realise that they were being recorded. The object of covert surveillance of the kind deployed in this case was to discover the truth, and, the evidence of what the appellant said about the death of the deceased was put before the jury while anything containing even a whisper of conversations protected by legal privilege was excluded. That was not unfair.
- Having examined the ground of appeal, we are satisfied that the appellant was convicted on overwhelming evidence after a fair and proper trial. This conviction is safe and the appeal was accordingly dismissed.
- The judge carefully addressed the relevant factors bearing on sentence. She acknowledged that the deceased was a lovely girl, brought up in a close knit family, whose life had been extinguished suddenly and needlessly. The appellant did not understand the meaning of love and his attitude to the relationship had been entirely self focussed. She noted his lack of remorse and his behaviour and the boasts he had made about how he would be a millionaire even after doing 10 years in prison. The contents of an interview he had had with a newspaper in New Zealand were galling and breathtaking. His attitude to the deceased after he had killed her demonstrated that he did not have the slightest glimmer of remorse for what he had done or its impact on the deceased and those who loved and knew her.
- No credit was appropriate for a guilty plea.
- In accordance with statute the agreed starting point but, we emphasise, the starting point, was a minimum term of 15 years, but on examining the evidence, and the cross-examination of the appellant, the judge concluded that there was an element of pre-meditation in the defence which was committed against a background of bullying, harassment and violence. Despite Mr Donne's submission, we can discern no basis for criticism. The evidence does not suggest that the killing was planned in the sense that the appellant had decided that he would kill her that night in the precise circumstances in which he did kill her, but it is clear that for some time, because of wounded pride, he entertained murderous thoughts, which culminated in her death. The judge was prepared to allow for an element of mitigation, bearing in mind that the appellant was not quite 20 years old at the date of the offence. She made some allowance for his relative youth.
- In essence Mr Donne submitted that however the sentencing decision was approached, there was no justifiable basis for departing from the statutory starting point. We disagree. Dobbs J reflected on all the relevant issues. With the starting point clearly in her mind, she carefully considered all the relevant features bearing on her decision. At the end of a trial in which she had ample evidence from the appellant's own mouth, both in the form of texts, and in the form of conversations during the covert surveillance, and in his evidence at trial, to assess the appellant's criminality and his attitude to the dreadful crime he had committed. No basis for interfering with her decision has been shown.
- Accordingly the appeal against sentence was dismissed.
The Lord Chief Justice of England and Wales:
Covert evidence
Sentence