England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Neil Denison QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2017

Lord Thomas of Cwmgiedd, CJ:

The background

1. On 17 June 1988, at the Central Criminal Court before HH Judge Neil Denison QC, both applicants were convicted of counts of arson arising out of serious fires at Debenhams stores in Harrow, Luton and Romford which occurred in the early hours of 12 July 1987. The damage caused by the fires was estimated at £4.38m with consequential loss of £4.91m. The case against the applicants was that they had planted incendiary devices to further their aims as members of the Animal Liberation Front. Clarke was sentenced to 3½ years imprisonment and Sheppard to 4 years imprisonment with 4 months consecutive in respect of a suspended sentence for an earlier offence.
2. When allegations came into the public domain from about 2011 in respect of the methods of operation of undercover police operations in respect of political activists, names of police officers that were widely publicised included Robert Lambert. In December 2014, some 26 years out of time, both applicants sought leave to appeal against their convictions on the basis that there had been no disclosure of the position of Robert Lambert as an undercover officer and, if there had been, the applicants would have advanced a defence that he had acted as an agent provocateur. The fact that Robert Lambert was an undercover officer at the material time is not disputed but there is a dispute as to the role he played in relation to the applicants.
3. Sheppard was convicted of another offence in 1995. A similar issue arises out of the involvement of another person who is said to have been an undercover police officer at that time.
4. In March 2015 the then Home Secretary established, under the chairmanship of Sir Christopher Pitchford, an Inquiry under the Inquiries Act 2005 into undercover policing (the Inquiry). It is evident that the progress of the application for leave to appeal by these applicants has already been affected by the course of the Inquiry and by on-going police investigations by the Metropolitan Police.
5. The applications were referred to the Full Court by the Single Judge. The Full Court has held two preliminary hearings, one on 19 July 2016 (Lord Thomas of Cwmgiedd CJ, Openshaw and Holgate JJ) and the second on 29 November 2016 (Lord Thomas of Cwmgiedd CJ, Wyn Williams and Holroyde JJ). At each hearing the parties have sought directions aimed at facilitating the future progress of the applications. The court has been greatly assisted by the parties and by counsel representing the Inquiry. The Full Court has adjourned the applications for leave to appeal for a further preliminary hearing later in 2017.
6. The timing of the hearing of the applications for leave to appeal and the consideration of the fresh evidence which it is accepted exists is uncertain; to a considerable extent the timing will be affected by the course of the Inquiry, the evidence given to the Inquiry and the extent to which the Inquiry conducts an examination of the role of Robert Lambert, other officers and the applicants; it is also affected by the ongoing investigation by the Metropolitan Police into the original offences. The hearing of the applications will not take place before 2018 and there is a real prospect it may be delayed beyond that time.

The disclosure issues

7. The applications to this court are based entirely on fresh evidence. No issue arises as to the disclosure at the trial as nothing was disclosed in relation to the undercover policing operation. The status of Robert Lambert and other undercover officers and other matters were not, we are told, brought to the attention of trial counsel.
8. It is evident, however, that in relation to the application to adduce fresh evidence there is likely to be disclosure of a very substantial number of documents. A significant volume of material has been compiled by the Crown. It was supplied to the court in March 2016. A redacted version of that material has been provided to the applicants, public interest immunity (PII) being invoked in respect of the redactions and the withholding of other material. It is highly likely that a very significant quantity of further documentation will emerge in the course of work being undertaken by the Metropolitan Police and by the Inquiry.
9. In addition to the issues that will need to be determined on the Crown's claim for PII in respect of the documentation so far made available, it is clear that other issues will arise as to the scope of the disclosure: Robert Lambert was involved in other undercover operations; it is also said that he was involved with a body or group that attempted to supervise the undercover operations. No doubt, if further material is relevant and has to be disclosed, there will be claims for PII in respect of that further material.
10. Therefore this court faces unprecedented procedural issues in these applications arising out of:

i) the historic nature of the underlying events which occurred nearly 30 years ago;

ii) the timescale of the appeal where two years have already elapsed since the making of the applications for leave and no date can be fixed for the hearing;

iii) the significant scope and scale of the issues in respect of disclosure relating to fresh evidence; it is again uncertain when the determination of the issues can usefully commence.

11. At the second preliminary hearing, the court, therefore, raised with the parties how the court should be constituted for the determination of the issues relating to disclosure. If all three members of the court were to be required to determine all of the issues of disclosure in relation to the fresh evidence, it would be necessary to fix the constitution of the court so that all three judges would be available to hear the disclosure issues as and when they arose and for a considerable amount of the court's judicial resources to be used as each judge would need to read all the documentation and then be present at the hearing and determination of the issues.
12. The court is greatly indebted to counsel for their written submissions on these issues submitted to the court on 16 December 2016. They have, as throughout, conducted the matter with the greatest skill, courtesy and learning.

The generally applicable principles

13. In R (Nunn) v Chief Constable of Suffolk Constabulary & another [2014] UKSC 37, [2015] AC 225 the Supreme Court held that a common law duty of disclosure exists in addition to the statutory duty under ss.3 and 7A of the Criminal Proceedings and Investigations Act 1996 (CPIA 1996). The statutory duty under CPIA 1996 ceased when the trial ended, but the common law duty, governed by the principle of fairness, continued to exist but in a modified form to meet the needs of the particular stages of the proceedings. As applied to disclosure after conviction, paragraph 72 of the Attorney General's Guidelines state:

"Where after the conclusion of proceedings, material comes to light that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material."

Lord Hughes summarised the continuing duty at paragraph 35:

"There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. Simple examples might include a new (and credible) confession by someone else, or the discovery, incidentally to a different investigation, of a pattern, or of evidence, which throws doubt on the original conviction. Sometimes such material may appear unexpectedly and adventitiously; in other cases it may be the result of a re-opening by the police of the inquiry. In either case, the new material is likely to be unknown to the convicted defendant unless disclosed to him. In all such cases, there is a clear obligation to disclose it. Paragraph 72 of the Attorney General's guidelines … correctly recognises this. This is, however, plainly different from an obligation not to reveal something new, but to afford renewed access to something disclosed at time of trial, or to undertake further inquiries at the request of the convicted defendant."

14. Where the prosecution wish to claim PII to justify the non-disclosure of otherwise disclosable material, it is for the Court and not the Crown to decide whether disclosure must be made: R v Ward [1993] 1 WLR 619; (1993) 96 Cr App R 1.
15. Save in exceptional circumstances, the procedure for determining issues in relation to PII at the trial court and on appeal is that the prosecution must (a) give notice to the defence that they are applying for a ruling by the court, (b) indicate the category of the material they hold and (c) the defence must have the opportunity to make representations to the court. In an exceptional case, the Crown must notify the defence that an application to the court is to be made, but the category of material need not be specified and the application will be heard in the absence of the defence. Having heard the application in this way, the court may rule that the normal procedure should have been followed or may rule on the application as made. In a highly exceptional case, the prosecution may apply to the court directly without notice to the defence: see R v Davis Rowe & Johnson (1993) 97 Cr App R 110 and for the procedure in trial courts: Crim PR 15.3.
16. In Davis Rowe & Johnson, the court made clear that where the court decides in favour of non-disclosure before the hearing of a case begins, that decision is not necessarily final as the situation may change in the course of the hearing. The court further said:

"It will therefore be necessary for the court to continue to monitor the issue. For that reason, it is desirable that that the same judge or constitution of the court which decides the application should conduct the hearing. If that is not possible, the judge or constitution which does conduct the hearing should be apprised at the outset of the material upon which non-disclosure was upheld on the Crown's earlier application."

17. In R v H & C [2004] 2 AC 134; [2004] UKHL 3; [2004] 2 Cr App R 10, the House of Lords considered whether the procedure for dealing with claims for PII in criminal proceedings was compliant with Article 6 of the ECHR. The House of Lords held that there would be no violation of Article 6 if scrupulous attention were given to the governing principles and continuing regard had to the proper interests of the defendant. Derogation from the general rule of full disclosure might be justified on grounds of PII, but such derogation must always be the minimum necessary to protect the public interest and must never imperil the fairness of the proceedings. A template was provided by which the court was to make PII decisions. Where it is determined that material does attract PII, the court must consider whether the interests of the defence can be protected while giving adequate protection to the public interest in question, which may be achieved by ordering limited disclosure. Exceptionally, the appointment of Special Counsel may be necessary to protect the defendant's right to a fair trial. Where limited disclosure would render the whole trial unfair, the court should order fuller disclosure, even if to do so leads the prosecution to discontinue the proceedings.

The determination of issues of disclosure in the CACD in relation to disclosure issues which have arisen in the Crown Court

18. Following the House of Lords ruling in H and C, the Court of Appeal in R v McDonald [2004] EWCA Crim 2614 considered the procedure for applications where this court has to review a PII exercise conducted in the Crown Court. The Court set out at paragraph 25 the principles that should generally guide the conduct of appeals which raise issues as to the trial judge's conduct of a PII hearing:

"1. The approach should be the same whether the ex parte PII hearing before the trial judge was or was not on notice. The principles in relation to the appointment of Special Counsel, or the need for the judge to recuse himself or herself are the same in both cases.

2. The Court of Appeal (Criminal Division) will have to review ex parte with the prosecution present all the material which was before the trial judge. A prosecution summary will not usually suffice, but is always desirable and, in a complex case, essential.

3. It will be necessary for that review to be carried out by the same constitution which is to hear the appeal.

4. The review will have to take place sufficiently in advance of the substantive appeal hearing to permit, in those exceptional cases where this is necessary, Special Counsel to be appointed and suitably prepared.

5. In the majority of cases, where the Public Interest Immunity material can be read in an hour or two, this should present no listing difficulty and the Public Interest Immunity hearing can take place, as frequently happens now, in the first week of a constitution sitting with the appeal being heard in the third week.

6. In the minority of cases, where the PII material is unusually voluminous, special listing arrangements will have to be made over a longer time scale."

19. The process has been followed in a number of cases: see for example R v Austin [2013] EWCA Crim 1028 at paragraph 79.
20. The present appeal is very different, as it does not involve any review of the trial judge's decision. There was no disclosure issue before the judge.

The general jurisdiction of the Criminal Division of the Court of Appeal

21. The jurisdiction of the court is set out in the Senior Courts Act 1981 (SCA 1981). S.55 provides that a court is duly constituted for the purpose of exercising any of its jurisdictions if it consists of an uneven number of judges, not less than three (s.55(2)). However s.55(4) provides that a court of two judges is duly constituted for every purpose except determining an appeal against conviction, a verdict of not guilty by reason of insanity and various other decisions which are not material.
22. We see no reason why a two-judge constitution cannot act for all purposes in preparing an appeal against conviction, even though a three-judge constitution is required to 'determine' the appeal.
23. The court also has inherent or implicit powers to avoid real injustice in exceptional circumstances: see R v Yassin [2016] QB 146, [2015] EWCA Crim 1277 at paragraphs 36-44. We do not consider that the circumstances that have arisen in the present appeal give rise to any consideration of the use of the inherent powers of this court.

The relevant powers under s.23 of the Criminal Appeal Act 1968

24. Under s.23 of the Criminal Appeal Act 1968 (the 1968 Act) which governs the admission of fresh evidence and which is therefore the principal provision in relation to this application, the court has two relevant powers conferred by s.23(1)(a) and (b) under which it may:

"(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;"

"(b) order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies."

s.23 (1A) makes clear that the power under (a) can be exercised so as to require the production of any document to the court, to the appellant and to the respondent.

The exercise of the power under s.23 (1)(a) by a single judge

25. The Court of Appeal may under s.23(4) of the 1968 Act order the power under s.23(1)(b) be exercised by a single judge:

"the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1) (b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court."

26. This power was exercised in R v Erskine [2010] 1 WLR 183, [2009] 2 Cr App R 29 where the court made observations on the benefits of utilising the procedure: see paragraphs 7-10

"7 The powers under this subsection were used in R v Stafford [1972] 1 WLR 1649 and in R v Saunders (1973) 58 Cr App R 248, but have rarely been used since then. In the present appeals, although it was clear that there were differences in the opinions of the experts, none of the differences turned on issues of credit. It was desirable to hear these two appeals together, but very difficult to find a time when all the experts and counsel were available. It was therefore proposed that the evidence of the expert psychiatrists be heard in each case by one of the judges who was to hear the appeal on separate days at a time that was convenient to those in each case. The evidence in relation to Williams was heard before Thomas LJ on 16 March 2009 and in relation to Erskine on 21 April 2009.

8 Ahead of the hearings of the evidence, and indeed when the evidence was heard, and then again, in advance of the hearing of the argument before the full court on 6 and 7 May 2009, the areas of disagreement between the experts were clearly identified and then refined. At the appeal transcripts of the evidence were made available to counsel and the court. Thus the hearings took place with a much clearer focus on the evidence actually before the court and its relevance to the submissions and were comfortably concluded within two days rather than the four to five days which would otherwise have been needed.

9 Counsel in both appeals stressed the advantage to them of being able to consider the expert evidence in advance of the legal argument. They accepted that in future it would sometimes be helpful to allow an interval between the hearing of the expert evidence and the listing of an appeal, thus providing an opportunity for reflection. In appeals involving complex and lengthy expert evidence we agree that such an opportunity would be sensible.

10 We therefore suggest that when directions are given in a case involving expert evidence that the court should consider, apart from the usual directions regarding the exchange of expert reports and a meeting of experts, whether the expert evidence should be heard on commission before one of the judges who will sit on the appeal, or whether it should be heard in advance of the legal argument by the full court that is to hear the appeal, or whether it should be heard immediately prior to the legal argument as part of one continuous hearing. The considerations that the court may wish to take into account will include whether any significant issues of credit are involved, the nature of the evidence, its complexity, its length, the scope of the dispute, its relative importance in the appeal and the availability of the experts."

27. In Saunders, the evidence of an accomplice was heard by James LJ on commission; he sat on the subsequent appeal with the then Lord Chief Justice and Geoffrey Lane CJ. The court observed:

"We would not, I think, in this case have consented to take [the accomplice]'s evidence in the form of a simple written statement, although the powers of this Court extend to doing such a thing. Instead, his evidence was taken on commission, that is to say, on oath, and it was taken by Lord Justice James, a member of this Court on behalf, as it were, of the Court as a whole."

28. It may be that the court will consider the exercise of this power in due course in these appeals, but that is an issue for the future. However, the cases of Saunders and Erskine both show that the court will exercise such powers in respect of important evidence in an appeal and how the receipt of evidence in this way provides benefits to the parties and to the court.

The exercise of the power under s.23 (1) (a) by a single judge

29. The power under s.23(1)(a) of the 1968 Act may be exercised by a single judge of the court by reason of s.31(2)(i) of the 1968 Act. The power is among the specific powers which can be exercised by a single judge of the court. A safeguard is provided to the appellant by s.31(3):

"If the single judge refuses an application on the part of an appellant to exercise in his favour any of the powers above specified, the appellant shall be entitled to have the application determined by the Court of Appeal."

30. The question which arises is whether the power of the court in respect of the provision of documents pursuant to a common law duty imposed on the Crown is a power within s.23(1)(a) which applies to circumstances where the Crown contests the relevance of the documents or seeks to withhold documents on the basis of PII and these documents have never been the subject of any ruling by the trial judge.
31. It seems to us that in circumstances where the court will be resolving such issues, it will be doing so by ordering or not ordering the production of documents. This use is entirely consistent with the judgment of Lord Bingham at paragraph 35 of the decision in R v H where he frames the questions for the court in terms of what the court should order or not order when considering the PII application.
32. Thus where on an appeal the disclosure issue before the court does not involve any review of the trial judge's decision, it is not generally necessary for that review to be carried out by the same constitution which is to hear the appeal: the Full Court, Single Judge or the Registrar may direct that a Single Judge should consider the application. The Single Judge generally might, but does not have to be, part of the constitution which will hear any appeal.
33. It the Single Judge does not order disclosure, it will be open to the applicants to challenge any adverse decision under the specific power under s.31 (3). The Single Judge can always protect the position of the Crown by adjourning any application where the Crown wishes to argue the matter further to the Full Court. Where the Single Judge is to be part of the constitution, which will hear the appeal, the remaining two-judge court would be properly constituted to consider any challenge under s.31(3) as noted in paragraph in paragraph 22 above.
34. In this case it is understood that the Single Judge will be part of the constitution hearing the appeal. Given the experience and seniority of the Single Judge to whom the Full Court will direct that the applications will be made, namely Holroyde J, we are sure that the circumstances in which the Full Court will be required to exercise the powers in place of the Single Judge, if any ever occur, will be very rare.
35. The process set out in McDonald involved a very different position as it provided specifically for cases where the Court is invited to review and, potentially, overrule the determination of a Crown Court judge. Where no PII application was made at the Crown Court, and the exercise is being conducted for the first time in relation to post-trial disclosure, the procedure we have outlined is entirely appropriate and provides the necessary safeguards and flexibility.