England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/10/2008

Lord Justice Pill :

1. Mr Martin Edwards seeks judicial review of a decision of the Criminal Cases Review Commission ("The Commission"), dated 28 February 2007, not to refer his conviction to the Court of Appeal (Criminal Division) under the power conferred by Section 9 of the Criminal Appeal Act 1995 ("the 1995 Act"). The Commission concluded, under Section 13 of the 1995 Act, that there was no real possibility that the conviction would be overturned.
2. On 7 April 1995, the claimant was convicted of possessing a controlled drug of Class A (diamorphine) with intent to supply. He was sentenced to 9 years imprisonment. An appeal against conviction was dismissed by the Court of Appeal (Criminal Division) on 18 July 1996. As stated in written submissions on his behalf, the claimant confines his application for judicial review to a single question:

"Is the Commission correct in its analysis that because the claimant had a substantive defence to the allegation he could not, as a matter of law, argue that the proceedings ought to be stayed (or have the evidence excluded) on the basis of "entrapment"?"

Other grounds of challenge included in the claim for judicial review are not now pursued.

3. At the hearing of the appeal in 1996, Simon Brown LJ, giving the judgment of the court, considered the evidence at the trial in detail and summarised the case in this way:

"On Tuesday 9th August 1994, as a result of a surveillance and undercover operation, the appellant was arrested in a van in the company of an undercover police officer known only as "Graham". In the van was a briefcase containing five packages containing a total of 4.83 kilogrammes of heroin of 50% purity. It was the prosecution case that the appellant was involved in arranging the supply of that amount of drugs to the undercover officer Graham. It was the appellant's case that he had been used by the suppliers of the drugs as part of a chain to supply drugs to the undercover officer, whether they were genuine drugs dealers who had evaded arrest or were police informers or agents. The appellant believed that the transaction involved jewellery, not drugs. He disputed ever having possession or control of the drugs found in the bag and said he did not know that they were drugs."

At interview, the claimant had exercised his right to silence.

4. Two points were taken on the appeal. Complaint was made of the trial court's refusal "to order disclosure of various material in the Crown's possession, material which would have illuminated the nature and role in all this of the four people to whom we have referred: Geoffrey Lerway, Jim Humphries, Terry and Carol." These were people allegedly involved in the transaction. The court held that it was "wholly unreal to suppose that any handicap was suffered [by the claimant] by not having these documents." The second submission, which was also rejected, was that conversations between the claimant and Graham ought not to have been admitted in evidence.
5. Though not material to the determination of this application, it is appropriate to mention that the claimant's case was subject to a reference to the European Court of Human Rights ("ECtHR") (Edwards and Lewis v United Kingdom 40 EHRR 593). The ECtHR held that the procedure then employed to determine the issues of disclosure of evidence and entrapment did not comply with article 6.1 of the Convention. The House of Lords subsequently gave guidance to courts in R v H [2004] 2 AC 134.
6. The claimant's case at trial was that he was unaware of the contents of the packages and believed he was involved in a transaction involving jewellery. The police evidence that the key to hotel room 153, where the goods had been, was found in the back seat of the police car in which the claimant travelled following arrest, was untruthful. He said he had given the key to Graham earlier.
7. When the claimant sought at the trial to exclude his oral statements to Graham, the question of entrapment was raised. The Recorder ruled that he had heard nothing and seen no material which would have assisted an argument that evidence should be excluded under Section 78 of the Police and Criminal Evidence Act 1984 "on the grounds that the [complainant] may have been led into committing an offence, or become involved in the commission of an offence which he would not otherwise have done or committed". The Recorder had considered the prosecution witness statements. He noted that he was invited to conclude that there was a possibility of entrapment on the basis that "Terry was in command" but there was no evidence that Terry was an informant or an undercover police officer. The evidence "seemed to indicate that Terry was a customer", the Recorder stated. The Recorder saw "no factual basis for concluding that the defendant may have been entrapped".
8. Against that background, it is claimed that the Commission have erred in declining to refer. For the claimant, Mr Clegg QC submits that the Commission have erred in law in failing to investigate whether there was any element of entrapment in this case. Of those known to be involved in the transaction, only the claimant was charged. Moreover, the failure to take witness statements from the others involved led to the inference that they were participating informants, it is submitted. It is now known that Lerway was sentenced in April 1995 for his part in a drugs operation that also involved a police officer and that, in 1977, Humphries has been involved in a case in which a number of police officers were convicted of corruption. The background of others involved in the transaction should have been further investigated, it is submitted. What led the Commission to err, it is submitted, was the Commission's erroneous belief that by advancing a positive case of innocence, the claimant disavowed any question of entrapment.
9. The test to be applied by the court in present circumstances was stated by Lord Bingham of Cornhill, Chief Justice, in R v Criminal Cases Review Commission, Ex parte Pearson [1999] 3 All ER 498, at page 521:

"The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere."

On the facts of that case, the court found: "The question lay fairly and squarely within the area of judgment entrusted to the Commission."

10. While entrapment is not a defence to a criminal charge, courts may employ their abuse of process jurisdiction to ensure that the criminal process is not brought into disrepute. In R v Looseley [2001] 1 WLR 2060, Lord Nicholls of Birkenhead stated, at paragraph 1:

"Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen."

11. In the course of his comprehensive analysis, Lord Nicholls stated, at paragraph 10:

"But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. Entrapment assumes the defendant did the proscribed act, with the necessary intent, and without duress. But when entrapment occurs, the commission of the offence by the defendant has been brought about by the state's own agents. This is the crucially important difference between cases of entrapment and other cases of instigated crime."

12. Lord Nicholls added, at paragraph 16:

"A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way."

13. And at paragraph 17:

"Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstances in which it was committed."

And at paragraph 19:

"As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly."

14. Mr Clegg submits that the courts should not tolerate a situation in which entrapment can only arise where a defendant is otherwise guilty of the offence charged. For example, he submits, there could be a case where evidence of entrapment is overwhelming but the defendant decides to advance a bogus case of alibi. The claimant should have an opportunity to claim alibi without losing his right to claim abuse of process by reason of entrapment. The Commission should now be required to investigate the possibility of entrapment.
15. There are other circumstances in criminal trials, he submits, where the court considers possible defences inconsistent with the defence advanced. In murder trials, provocation is often left to the jury where the defences raised are alibi, self-defence or accident. A jury may also be directed in any case of alleged violence to consider self-defence where the defence is one of alibi.
16. Mr Clegg relies on the decision of the United States Supreme Court in Mathews v United Stated 1987 485 US 58 and the decision of the Supreme Court of Canada in R v Mack 1988 2 RCS 903. Mathews must be read in the context of a jurisdiction in which entrapment is a substantive defence to a criminal charge. Rehnquist CJ, delivering the majority opinion, referred, at page 63, to the prosecution case:

"The Government insists that a defendant should not be allowed both to deny the offense and to rely on the affirmative defense of entrapment. Because entrapment presupposes the commission of a crime, Russell, supra, at 435 [(1973) 411 US 423], a jury could not logically conclude that the defendant had both failed to commit the elements of the offense and been entrapped."

The Court concluded, at page 66:

"We are simply not persuaded by the Government's arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject."

17. In relation to the possibility that the risk of perjury may be increased, the Court cited the decision of the Court of Appeals in United States v Demma, 523F. 2D 981, at 985:

"Of course, it is very unlikely that the defendant will be able to prove entrapment without testifying and, in the course of testifying, without admitting that he did the acts charged . . . When he takes the stand, the defendant forfeits his right to remain silent, subjects himself to all the rigors of cross-examination, including impeachment, and exposes himself to prosecution for perjury. Inconsistent testimony by the defendant seriously impairs and potentially destroys his credibility. While we hold that a defendant may both deny the acts and other elements necessary to constitute the crime charged and at the same time claim entrapment, the high risks to him make it unlikely as a strategic matter that he will choose to do so."

18. In Mack, the court concluded that the average person in the position of the appellant might also have committed the offence. On the evidence, the police conduct in the case was unacceptable and the doctrine of entrapment applied to preclude the prosecution of the appellant. The trial judge should have entered a stay of proceedings for abuse of process.
19. A primary concern of the court in Mack was the relevance of the effect of police conduct on the accused's state of mind. The court held that an objective assessment of the conduct of the police was required. Lamer J, giving the judgment of the court, concluded, at page 951: "the true basis for allowing an accused the defence of entrapment is not culpability . . . The real problem is with the propriety of the states' employing such law enforcement techniques for the purpose of obtaining convictions. If this is accepted, then it follows that the focus must be on the police conduct". (Emphasis in original)
20. That issue does not arise in the present case. However, the court considered the relationship between a defence to the charge and entrapment and stated, at page 972:

"Finally, I am of the view that before a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment. This protects the right of an accused to an acquittal where the circumstances so warrant. If the jury decides the accused has committed all of the elements of the crime, it is then open to the judge to stay the proceedings because of entrapment by refusing to register a conviction. Because the guilt or innocence of the accused is not in issue at the time an entrapment claim is to be decided, the right of an accused to the benefit of a jury trial in s. 11(f) of the [Canadian Charter of Rights and Freedoms] is in no way infringed."

(In the context of England and Wales, where criminal procedures are different, a procedure whereby proceedings are stayed only after the jury's verdict of guilt, presents obvious difficulties).

21. Mr Clegg relies on Mathews and Mack to support the proposition that contesting a criminal charge on the merits should be no bar to a finding of abuse of process by reason of entrapment. An application to stay for abuse of process in England and Wales will normally be made before the trial begins. In some cases a defendant may be able to rely on the material before the court but there will be cases in which the defendant needs to give evidence to support a claim of entrapment. If the claim fails, procedural difficulties arise for a defendant who then wishes to deny the offence by reliance, for example, on an alibi. It is unlikely that the same counsel would be able to defend him, he having admitted committing the offence. In some circumstances, the two issues could be run together: the defendant was entrapped into doing the acts he did but nevertheless did not have the intent required to commit the offence charged.
22. The possibility of an abuse hearing following a finding of guilt by the jury, as it appears may happen in Canada, would be a novelty difficult to justify in this jurisdiction. If evidence of entrapment arises in the course of a trial, it is of course open to a judge to direct a not guilty verdict on the ground of abuse of process.
23. In many situations it is accepted that a jury should have the opportunity to assess a defendant's conduct, as they find it to be, in relation to the ingredients of the offence charged even if he has put forward a different case. What Mr Clegg seeks, however, is an opportunity to put forward two different accounts of events, possibly on different occasions, which is to extend the principle considerably. The question has arisen in cases where, on appeal in murder cases, it has been sought to adduce evidence of diminished responsibility where the issue was not raised at the trial. In R v Ahluwalia [1993] 96 Cr App R 133, Lord Taylor of Gosforth, Chief Justice, stated the general principle at page 142:

"Ordinarily, of course, any available defences should be advanced at trial.  Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial.  It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here [in the Court of Appeal] if the option had been exercised at trial not to pursue it.  Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences.  Nothing could be further from the truth".

24. In R v Neaven [2006] EWCA Crim 955, the Court of Appeal (Criminal Division), Rix LJ presiding, was prepared to admit fresh evidence in the context of diminished responsibility but stated, at paragraph 47:

"As stated above, we have no doubt that the principles in favour of one trial and against changing tactics remain of paramount and fundamental importance."

25. Entrapment is not a substantive defence but it may lead to a finding of abuse of process and the principle stated by Lord Taylor appears to me to be of considerable relevance in the present context.
26. For the Commission, Mr Perry QC submits that the question whether it is ever possible to allege entrapment while also running a substantive defence does not arise because, having made appropriate enquiries, the Commission had found no evidence that the claimant was induced into participating in the drugs transaction through entrapment. There was no real possibility that the Court of Appeal would hold that there had been an abuse of process on that ground.
27. In its provisional statement of reasons, the Commission stated, at paragraph 28, that it had reviewed the CPS and Court of Appeal files, material submitted by the Office for Criminal Justice Reform (Home Office) and had made enquiries with the police and considered available material relating to the original investigation. At paragraph 40 the Commission stated:

"The Commission has also made appropriate enquiries and has found no evidence to support Mr Edwards' defence that he was falsely implicated in a drugs deal or that he was induced into participating in the drugs deal through entrapment."

When considering the evidence, the Commission stated, at paragraph 37:

"However, there was no evidence available at trial to support Mr Edwards' belief that "Graham" had acted unlawfully (by falsely implicating Mr Edwards in the drug deal)".

28. In its final statement of reasons, the Commission stated, at paragraph 40:

"In Mr Edwards' case, the Court of Appeal has already viewed the material which was withheld on the basis of public interest immunity and indicated that the material which was not disclosed was adverse to Mr Edwards (see paragraph 26 above). The Commission has also made appropriate enquiries and has found no evidence to support Mr Edwards' defence that he was falsely implicated in a drugs deal or that he was induced into participating in the drugs deal through entrapment."

That statement was repeated at paragraph 60:

"In this regard the Commission relies on the indication at paragraph 40 above that it has made appropriate enquiries and found no evidence to support Mr Edwards' defence that he was falsely implicated in a drugs deal or that he was induced into participating in the drugs deal through entrapment."

The trial judge and the Court of Appeal in 1996 took the same view.

29. The Commission did also state, at paragraph 59, that the claimant's defence was inconsistent with any submission that he was entrapped. That, submits Mr Clegg, does not relieve the Commission of its duty to investigate entrapment. Such a duty may arise but only, in my judgment, in a case where there is some evidential basis for a finding of entrapment. The material available in the present case provides no such basis. There is nothing to suggest that Graham (the undercover officer) induced the claimant to commit a drugs offence or organised the whole operation. It is submitted that the Commission could reasonably have decided to make further investigations and, had they been made, no one can know for certain what the outcome would have been. That is wholly speculative. It is no more than fanciful, on the evidence, to assert that the drugs transaction was set up by all those involved, acting as State agents, in order to entrap the claimant into committing a drugs offence. The association, of Lerway (in 1995) and Humphries (in 1977), with police officers who were convicted of corruption, provides no basis for a finding that the claimant was set up by state agents to commit the offence.
30. At the trial, the Recorder ruled on what he referred to as an entrapment submission. His ruling cannot, on any basis, be challenged, but I doubt whether the submission made to him was truly one of entrapment. It was that Terry was in command. There may arguably have been a case that Terry and others conspired to pervert the course of justice or, as the Commission put it, that the claimant was implicated in the drugs deal "falsely", but there is no basis for a finding of entrapment as defined by Lord Nicholls in Looseley or for further investigation of that issue. The application fails for that reason.
31. The Commission were justified in not referring the claimant's case to the Court of Appeal, Criminal Division. The legitimacy of alleging entrapment at the same time as running a substantive defence, and the procedure to be followed if that arises, is best decided in a case where appropriate facts are present. In deference to the submissions of counsel, I have referred to some of the issues which may arise, but do not propose to make further comment in this case.
32. I would refuse the application.

Mr Justice King :

33. I agree.