England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/05/2015

JUDGMENT : DISCLOSURE & DIRECTIONS

Mr Justice Sweeney :

Introduction

1. On 20 February 2014 (see [2014] EWCA Crim 735) this Court, then comprised of Rafferty LJ, Sweeney J and the Common Serjeant, granted permission to appeal on three grounds - each concerned with the admissibility of evidence of communications between alleged conspirators by a particular method. The methods involved were respectively:

i) Prison PIN telephone calls made from HMP Lowdham Grange (which were recorded).

ii) Mobile telephone calls (which were intercepted by the Dutch authorities).

iii) A Yahoo email account with the address slimjim25@ymail.com.

2. In relation to a further Ground raised by Hadley, the Court invited the Criminal Cases Review Commission ("CCRC") to conduct any necessary inquiries to discover whether the individual seen by Hadley's solicitor outside HMP Lowdham Grange some time after the trial was one of the jurors and, if so, whether he had any connection with the prison. The decision on permission on that Ground was deferred until the completion of those inquiries.
3. Since then a number of steps have been taken by the parties, and the CCRC has provided a report.
4. On 19 May 2015 we held a Disclosure and Directions Hearing. Following that hearing the Respondent disclosed further material; the Appellants served a Note on Further Disclosure dated 21 May 2015 in relation to that material; we delayed handing down our judgment to enable the Respondent to reply to the Appellants' Note; and the Respondent thereafter served a Reply dated 28 May 2015 - which was accompanied by a further witness statement by John Biggin dated 21 May 2015 and a letter from the Dutch Prosecutor Mrs de Boer dated 26 May 2015. This is our judgment on the various issues raised.

Background

5. The broad factual background is set out in the previous judgment of the Court – including an outline of the evidence, said to be expert, then relied upon by the Appellants.
6. In its Note, dated 7 May 2015, dealing with what was sought, resisted and agreed for the purposes of the hearing on 19 May, the Respondent invited the Court to proceed, in due course, as follows:

i) To take the evidence served by the Appellants at its highest, to make the assumption (contrary to the case advanced by the Respondent) that the evidence in connection with each method of communication was unlawfully obtained, and then to determine whether (on that basis) the convictions may be unsafe.

ii) Only if so, then to give directions as to the further service of expert and other evidence and to set a timetable leading to the ultimate hearing of the appeal - to be decided upon the merits of the evidence and argument ultimately advanced.

7. At the outset of the hearing on 19 May we made clear that we were not minded to accept this invitation, and it was not pursued. It was and remains the Respondent's case that the evidence about communications by each method was lawfully obtained.
8. The disclosure sought by the Appellants, and the Respondent's stance in relation to each item of it, is helpfully set out in a Table prepared on behalf of the Appellants - which we append to this judgment marked Appendix A.
9. Whilst, at one point, it appeared that the Respondent took a different view, there was no dispute at the hearing that, at this stage, the Respondent is subject to the common law duty delineated by the Supreme Court in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] 3 WLR 77, namely to:

i) Disclose any relevant material, not already known to the relevant Appellant or Appellants, which might assist in relation to their appeal.

ii) Make further inquiries if there is a real prospect that those inquiries might reveal such material.

10. We make clear that in ordering, or not ordering, the Respondent to disclose items or to make further inquiries we must not be taken to be expressing any concluded view as to whether the Respondent has or has not complied with its overall duty of disclosure. If relevant, that will be a matter for the constitution that hears the appeal itself in due course.
11. In its Note, also dated 7 May 2015, dealing with requests of third parties since February 2014, the Respondent sets out the material that it has sought and disclosed in connection with the evidence of communications by each method.

Prison PIN telephone calls

12. Appendix A makes clear that inspection of exact copies of the "BN" exhibits, which contain recordings of the relevant calls, has been agreed.
13. The argument concentrated on Item 1b in Appendix A – namely a request that Mr John Biggin (now the Governor of HMP Doncaster) should make a witness statement confirming that he had the permission of the Secretary of State pursuant to s.47 of the Prison Act and Rule 35A of the Prison Rules to record prisoners' calls, and that he made arrangements for the recordings to be made in accordance with the Secretary of State's approval and the relevant related Prison Rules – specifically Rule 35A (2).
14. As already indicated, the Respondent's case is that the evidence of communications by this method was lawfully obtained – i.e. in accordance with the relevant legislation and rules. The Respondent asserted that there was nothing to disclose that might assist the contrary assertion. The Respondent pointed out that Mr Biggin has already made two witness statements since February 2014, and argued that the second of them (dated 11 November 2014), combined with all the other evidence now available, demonstrated compliance with the relevant legislation and rules – including the giving of appropriate permission by the Secretary of State.
15. On the Appellants' behalf Mr Owen QC recognised the difference between the Respondent's duty (which the court could enforce) to disclose material that might assist the Appellants as to lack of lawful authority on the one hand, and on the other hand an unsuccessful attempt by the Respondent, as he argued it to be, to prove a positive case of lawful authority (which the court, he accepted, had no power to direct the evidential content of).
16. As touched on in paragraph 4 above, after the hearing Mr Biggin made a further witness statement which the Respondent has served. In the statement Mr Biggin asserts that the arrangements that he made under Rule 35A(2) of the Prison Rules 1999 were in compliance with the directions that the Secretary of State had given for the interception of communications under Rule 35A, and that disclosure and retention of the intercepted material was in compliance with Rules 35C and 35D. In its Reply the Respondent indicated that it will provide other material relevant to Prison calls as soon as it is finalised.
17. Given the Respondent's insistence that it has complied with its duty of disclosure in regard to these calls, the absence of any apparent material to the contrary, the provision of the further witness statement from Mr Biggin, and the indication of the provision of further material, we decline to give any disclosure directions in relation to them.
18. Having chosen to do so, it is a matter for the Respondent how it goes about seeking to prove the existence of lawful authority. Examples of the ways in which that can readily be done can be found by reference to Abiodun [2005] EWCA Crim 9 and Mahmood [2014] 1 Cr. App. R. 31. By way of forewarning, Mr Owen indicated that any (continued) failure to prove the existence of lawful authority would result, in due course, in the Appellants inviting the Court to draw adverse inferences.

Dutch telephone intercepts

19. Appendix A shows that save for exact copies of exhibits PS/142-145 and a witness statement producing the originals, all the disclosure sought is resisted. At the hearing the Respondent disclosed a Dutch Police Report dealing with the request for the relevant interception.
20. Argument at the hearing concentrated on the provision by the Respondent of, in particular, the Court Order(s) signed by the relevant Examining Magistrate and the provision of the relevant BOB file.
21. In paragraphs 11-14 of its Note dealing with requests of third parties since February 2014, the Respondent summarised email communications with the Dutch authorities in the period between 17 February 2014 and 7 November 2014. The communications, as summarised, were emphatic as to the existence of Court Orders and thus of lawful authority. However copies of the emails were not provided at that stage,
22. On behalf of the Appellants Mr Owen reminded the Court of its observation in granting leave that the Appellants' expert Mr van de Ven had highlighted what he had said to be the unusual fact that the Court Orders said to have been made had never been produced. Mr Owen asserted that it was a matter of great concern that the Court Orders had still not been produced. He further asserted that there were multiple anomalies and contradictions which undermined the Respondent's explanation for the manner in which the evidence was obtained – four examples of which were set out in the Appellants' Supplemental Submissions dated 12 May 2015.
23. In the fourth example it was asserted that the Respondent had misled the trial judge, but Mr Owen accepted in argument that at that stage at first instance there would not have been the concentration, as there is now, on the difference between the Order(s) made by the Prosecutor and any necessarily preceding Order(s) made by the relevant Examining Magistrate. Mr Owen also accepted that, at the relevant hearing, counsel had made specific reference to the prosecution being in possession of the Prosecutor's file (as opposed to the Court file). He submitted, however that, absent the production / proof of the documents sought, the Respondent had failed, thus far, in its objective of proving lawful authority.
24. On the Respondent's behalf it was asserted that there was nothing to disclose that might assist the defence, and that all the available evidence showed that the interception had been lawfully carried out by the Dutch.
25. At the conclusion of the hearing the Court required the email communications referred to in paragraph 21 above to be provided to the Court and disclosed to the Appellants. That was done.
26. Having seen the emails, the Appellants, in their Note on Further Disclosure dated 21 May 2015, made a number of criticisms of the Respondent, including asserting that there had been a material omission by the Respondent to mention that in her email of "4 May 2014" (in fact 14 April 2014) the Dutch Prosecutor had stated that she still had "the documents of the examining judge in storage and you are welcome to come over and have a look at them", and that that was inconsistent with the content of a letter from the Respondent to the Criminal Appeal Office dated 5 December 2014.
27. In the Respondent's Reply dated 28 May 2015, the Appellants' criticisms are rejected, and the history of communications between the Respondent and the Dutch authorities is rehearsed. We note that in her letter of 26 May 2015 Mrs de Boer asserts that "…..Any and all wiretaps in this investigation were ordered by me after the necessary warrants from a (sic) examining judge. All requests for warrants were only submitted after I was both satisfied there was enough probable cause to justify the use of the said measure and that there was a pressing need for it…..All evidence was gathered in accordance with Dutch law…". Mrs de Boer also indicates that she is in possession of the relevant court order(s) or authorisation(s) and that if this Court orders the provision of copies she will comply.
28. We have taken the content of the impugned emails fully into account. However, it seems to us that the position in relation to the Dutch telephone intercepts is, in principle, the same as that in relation to the Prison PIN telephone calls. The Respondent insists that it has complied with its duty of disclosure, but has also chosen to prove the existence of lawful authority. At this stage, we do not regard the failure to date to produce a copy of the Examining Magistrates Order(s) and/or the BOB file as giving rise to the inference that there is material in existence which might assist the Appellants and which we must order the disclosure of.
29. As with the Prison PIN telephone calls, having chosen to do so, it is a matter for the Respondent as to how it goes about seeking to prove the existence of lawful authority. That said, given the indication in Mrs de Boer's letter of 26 May 2015 and for pragmatic reasons, we do order the provision of copies of the relevant court order(s) / authorisation(s).

The slimjim email account

30. Appendix A shows that disclosure of all the material sought is resisted.
31. In paragraphs 5-10 of its Note dealing with requests of third parties since February 2014, the Respondent summarised its dealings with the United States authorities and, via them, Yahoo in California. Those dealings have included the obtaining of a Letter of Request in April 2014; the provision in June 2014 of a four page statement from Michelle Lai (a Custodian of Records and the Operations Manager of the US Law Enforcement Response Team for Yahoo Inc); and, following the receipt of Addendum expert reports from the Appellants, the making of further informal inquiries via the US Department of Justice and the receipt of a response (which was summarised in paragraph 10 of the Note).
32. At the hearing, Mr Owen accepted that the requests made by the Respondent for the provision of copies of particular technical records were an accurate reflection of what was sought on behalf of the Appellants. His complaint was that only some of the records had been produced and that they did not permit the Appellants' experts to appropriately examine the authenticity of the claim that there had been no unlawful live monitoring of the account.
33. Mr Owen also referred us to Austin [2009] EWCA Crim 1527, but we do not regard that case as providing any assistance on the issues that confront us at this stage.
34. The Respondent asserted that its extensive dealings with the US authorities, as summarised in the Note, demonstrated that there had been full compliance with the duty of disclosure.
35. As we have already noted, following the disclosure, after the hearing on 19 May, of the communications referred to in the Note dealing with requests of third parties, including the response to the further informal inquiries of the US authorities, the Appellants made a number of criticisms of the Respondent's conduct of its duty of disclosure in their Note on Further Disclosure dated 21 May 2015 – in particular that there had been a lack of formality and appropriate vigour.
36. The Respondent's Reply dated 28 May 2015 draws attention to paragraph 60 of the Attorney General's Guidelines on Disclosure which provides that:

"Where it appears that there is relevant material, the prosecutor must take reasonable steps to obtain it, either informally or making use of the powers contained in the Crime (International Co-operation) Act 2003 and any EU and international conventions. See CPS Guidance 'Obtaining Evidence and Information from Abroad' ".

37. The Respondent asserts that the lack of formality asserted by the Appellants is thus not a valid criticism, and rejects the suggestion that there has been a lack of appropriate vigour.
38. We are conscious that the outstanding material sought by the Appellants is said to be relevant to complex technical issues. It is broadly accepted that the Respondent has requested disclosure of that material via the US authorities. Other material has been provided, including strong assertion in evidential form that there was no live monitoring of the type suggested. We are not persuaded that we should order the Respondent to repeat the exercise in any respect. As with the other types of communication, having chosen to assert that there was no live monitoring, it is a matter for the Respondent how it goes about seeking to prove that. Nor is it necessary for us to make a specific order as to disclosure by the Respondent of communications with third parties. The normal rules will continue to apply.

The CCRC

39. We are most grateful to the CCRC for its clear and concise report dated 16 September 2014.
40. In their Response to the Report dated 3 November 2014, and in their Addendum Response dated 6 May 2015, the Appellants raise some further issues which we conclude require further investigation.
41. We order that both documents be provided to the CCRC and that they be invited to:

(1) Make specific inquiries of the juror identified in the Response, to ascertain if he was at HMP Lowdham Grange on 12 April 2013 and if so why.

(2) Make specific inquiries of Serco to ascertain if any members of staff ("works") from any other prisons were brought over to HMP Lowdham Grange on 12 April and, if so, whether one was a juror at the trial.

Timetable

42. We are grateful to the parties for providing a suggested timetable in the event of no further disclosure being ordered. We have made some modest amendments to it.

(1) The CCRC to complete the further inquiries in relation to the juror by 31 July 2015.

(2) The Respondent to serve any non-expert evidence on which it intends to make an application to rely at the full hearing by 31 July 2015.

(3) The Respondent to serve any expert evidence upon which it intends to make an application to rely at the full hearing by 9 October 2015.

(4) The Appellants to serve any evidence in reply, including any further expert evidence, on which it intends to make an application to rely at the full hearing by no later than 20 November 2015.

(5) The Appellants to serve their consolidated skeleton argument by 4 December 2015, and the parties to provide an up-to-date estimate of the length of the full hearing.

(6) The Respondent to serve its skeleton argument by 8 January 2016.

(7) Agreed appeal bundles to be served on the Court by no later than 15 January 2016.

(8) The full hearing to be listed on the first available date after 29 January 2016.