Jersey Unreported Judgments

 2002/19

ROYAL COURT

(Samedi Division)

 

22^nd January, 2002

 

 

The Attorney General

-v-

Lee Thomas Buckley;

Trevor Daniel Croke,

Aimée Crook,

Michael John Breen

 

­Lee Thomas Buckley

 

2 counts of:	possession of controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978 Count 1: heroin Count 3: heroin
2 counts of:	possession of controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978 count 2: heroin count 4: heroin

 

 [On 26^th October 2001, the defendant pleaded not guilty to all four counts; on 21^st January, 2002, the defendant pleaded guilty to counts 1 and 3, counts 2 and 4 were withdrawn and the defendant was retained in custody until 20^th March, 2002, for sentencing by Superior Number of the Royal Court]

 

Trevor Daniel Croke

 

2 counts of:	possession of controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978 count 1: heroin count 3: heroin
2 counts of:	possession of controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978 count 2: heroin count 4: heroin
1 count of:	being knowingly concerned in the fraudulent evasion of the prohibition on importation of controlled drug contrary to Article 61 of the Customs and Excise (Jersey) Law 1999: count 6: heroin

 

[On 26^th October 2001, the defendant pleaded not guilty to all counts; on 22^nd January, 2002, after delivery of present judgment, the defendant pleaded guilty to counts 1,3, and 6, counts 2 and 4 were withdrawn and the defendant was remanded in custody until 20^th March, 2002, for sentencing by Superior Number of the Royal Court]

 

Aimée Crook

 

1 count of:	possession of controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978 count 5: cannabis resin
1 count of:	being knowingly concerned in the fraudulent evasion of the prohibition on importation of controlled drug contrary to Article 61 of the Customs and Excise (Jersey) Law 1999: count 6: heroin

 

[On 26^th October, 2001, the defendant pleaded guilty and the prosecution in respect of her was adjourned until after date of trial of co-accused]

 

Michael John Breen

 

1 count of:

being knowingly concerned in the fraudulent evasion of the prohibition on importation of controlled drug contrary to Article 61 of the Customs and Excise (Jersey) Law 1999: count 6: heroin

 

[On 26^th October, 2001, the defendant pleaded not guilty to the count laid against him].

 

Application by Michael John Breen and Trevor Daniel Croke for an Order declaring evidence to be inadmissible on the ground that it was obtained by intrusive surveillance.

 

 

Advocate B.H. Lacey, Crown Advocate;

Advocate C.J. Scholefield  for T.D. Croke;

Advocate M.L. Preston for M.J. Breen

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.        This is an application by Trevor Croke and Michael John Breen to exclude evidence of conversations in Croke's car and in his home obtained by means of intrusive surveillance, i.e. by means of recording equipment placed secretly in Croke's car and home by the police.

2.        Although there are some alternative charges of possession it suffices to say that Croke faces one count, count 1, of possession of 17.8 grams of heroin with intent to supply at Upper Kingscliffe, St. Helier on 27^th February 2001, and a second count, count 3, of possession with intent to supply of 19.35 grams of heroin at the premises of the Jersey New Waterworks Company Limited, Westmount Road, St. Helier, on 18^th March, 2001.   He and Breen face a further charge, count 6, of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug.   This relates to the importation on 24^th June, 2001, by one Aimée Crook of 188.71 grams of heroin with a street value of between £56,000 and £84,000.   The prosecution case is that Aimée Crook was the courier in a drug run organised by Croke and Breen.

3.        The prosecution wishes to adduce in support of its case transcripts of conversations between Croke and Breen and between Croke and others at various times between 28^th February and 26^th June, 2001.   These conversations were secretly recorded by the police.   The prosecution say that they provide compelling evidence that the two defendants are guilty of the offences with which they are charged.

4.        It is necessary to recount briefly how the evidence was obtained.   In February, 2001, Detective Inspector Bonney made an application to the Chief Officer for permission secretly  to insert a listening device into the house of Croke and his common law wife and their two children, and into Croke's car.   The application was granted by the Chief Officer after review and recommendation by the Deputy Chief Officer.   Thereafter the necessary equipment was installed and the evidence which the prosecution wishes to adduce consists of conversations, recorded by this equipment, which took place in Croke's home and in his car.  

5.        Mr. Scholefield on behalf of Croke and Mr. Preston on behalf of Breen submit that this evidence should be excluded on the grounds that it was obtained illegally and that it would lead to an unfair trial if the evidence were to be admitted.

6.        There is no statute in Jersey which permits intrusive surveillance and property interference of this nature.   The Crown accepts that the police committed a civil trespass when they gained access to Croke's home and to his car in order to install the equipment.  

7.        In the absence of legislation it is accepted that the Jersey police have followed the code of practice on intrusive surveillance issued by the Home Office under s.101 (3) of the Police Act 1997 of the United Kingdom.   It is therefore necessary to review briefly the history of the law in England.   Prior to 1997 the law of England was the same as it remains in Jersey, namely, that there was no legislation governing the ability of the police to obtain evidence of this nature.   There was a set of guidelines issued to police forces by the Home Office but these guidelines were not publicly available.   In R -v- Khan (Sultan) (1997) 3 All ER 289, the House of Lords had to consider whether evidence from a listening device installed secretly in a person's home in circumstances where a trespass was therefore committed by the police was admissible and if so whether it ought nevertheless  to be excluded under Section 78 of the Police and Criminal Evidence Act 1984.   That provision provides:         

" 'In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.' "

8.        The decision of the House of Lords is summarised in the head note as follows:

"(1) Under English law, there was in general nothing unlawful about a breach of privacy and the common law rule that relevant evidence obtained by the police by improper or unfair means was admissible in a criminal trial, notwithstanding that it was obtained improperly or even unlawfully, applied to evidence obtained by the use of surveillance devices which invaded a person's privacy.   Accordingly, even if the right to privacy for which the appellant contended did exist (which was doubtful) the tape recording was, as a matter of law, admissible in evidence at the trial of the appellant subject, however, to the judge's discretion to exclude it in the exercise of his common law discretion or under section 78 of the 1984 Act.

 "(2) The fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of the 1984 Act.  The judge's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair, and the use at a criminal trial of material obtained in breach of the rights of privacy enshrined in Article 8, did not of itself mean that the trial would be unfair.  On the facts,  the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of Article 8, were not such as to require the exclusion of the evidence.

9.        That case subsequently went to the European Court of Human Rights, under the name of Khan -v- United Kingdom application No: 35394 of 1997. The Court held that there had been a breach of Article 8 of the European Convention of Human Rights, ("Right to Respect for a Private and Family Life"), on the grounds that there had been an interference with Khan's right under Article 8, and that such interference had not been in accordance with the law, as there was no statutory system to regulate the use of covert listening devices.

10.      However, importantly for our purposes today, the court went on to hold that there had not been a breach of Khan's right to a fair trial under Article 6.1 of the Convention, even though the material had been obtained in breach of Article 8 and was the sole evidence against him.

11.      The Court reiterated what it had said in Schenk -v- Switzerland (1988) 13 EHRR 242 namely that questions of admissibility of evidence were primarily for regulation under national law.   The question which had to be considered under Article 6(1) was whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.   This involved an examination of the unlawfulness involved in obtaining the evidence in question, and, where violation of another convention right was concerned, the nature of the violation found.

12.      As I have already said, the European Court held that the admission of the secretly recorded evidence in Khan's case did not result in his trial being unfair.

13.      The European Court of Human Rights reached a similar decision in P.G and J.H. -v- The United Kingdom 25^th September, 2001, application No:44787 of '98, where again evidence was obtained from covert listening devices placed in the defendant's flat, pursuant to the same Home Office guidelines.   The Court again found a breach of Article 8, but no breach of Article 6(1) merely because evidence obtained in breach of Article 8 was used in evidence.

14.      Following the House of Lords decision in Khan, the United Kingdom enacted the Police Act 1997 which gave a statutory frame work to the obtaining of such evidence.

15.      I draw the conclusion that if our law is the same as English Law, the fact that the evidence in this case was obtained unlawfully, in that it involved a trespass on the part of the police, and a breach of Article 8 of the Convention, does not mean that the evidence must be excluded in order for the defendant to have a fair trial.  Such unlawfulness and breach of a convention right are simply important factors for the Court to take into account when considering whether admission of the evidence would be unfair.

16.      But Mr Scholefield, supported by Mr Preston, argues that Jersey law is different.  In the first place, Mr Scholefield, not in this case supported by Mr Preston, argues that such evidence is not even admissible, because it was obtained unlawfully.   As to that I can do no better than say that I respectfully concur with the decision of the House of Lords in Khan to the effect that such evidence is not inadmissible just because it was obtained by means of trespass and in breach of the defendant's right to privacy encapsulated by Article 8 of the Convention.

17.      But both counsel argue more strongly that Jersey case law suggests a tougher approach to the discretionary decision to admit evidence improperly obtained than exists in England.   The leading case is Clarkin -v- The Attorney General (1991) JLR 232 CofA.  The problem a Court faces in such cases was summarised by the Court of Appeal at page 242, as follows:

"the conflicting interests of the State in securing evidence of the commission of crime, and of the individual in being protected from an unauthorised invasion of his rights of privacy were addressed in a passage in the opinion of Lord Cooper (Lord Justice General) in the Scottish case of Lawrie -v- Muir which was cited by Lord Hodson in King -v- R and which seems to us to illuminate the problem in words which we are happy to adopt."

18.      The judgment then quotes from that passage as follows:

"From the standpoint of principle, it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict. (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground.  Neither of these objects can be insisted upon to the uttermost.  The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high handed interference, and the common sanction is an action of damages.  The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law.  On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish and of offering a positive inducement to the authorities to proceed by irregular methods."

19.      Having considered the matter, the Court of Appeal in Clarkin went on to give its decision on the correct principle to be applied on page 246:

"In those circumstances we must ask ourselves whether there is any compelling reason why that discretionary principle of fairness to the accused should not be recognised as part of the law of Jersey.   We are satisfied that there is no such reason.  We doubt whether the discretion to exclude evidence under the common law of England was ever restricted to the narrow limits encapsulated in the principles which the Royal Court extracted from R -v- Sang; but even if that was so, we do not think that there is any principle that requires us to hold that the discretion exercisable by courts in Jersey is subject to the same restriction.  In our view, we are at liberty to hold that the law in Jersey is more truly reflected in the Privy Council cases of Kuruma -v- R and King -v- R and in the English cases of Jeffrey -v- Black  and Fox -v- Chief Constable of Gwent.  We are encouraged in this view by the consideration that the principles to be extracted from those cases are consistent with those applicable in Scotland, and are also consistent with the present position in England following the 1984 Act.  

It follows that the Royal Court was wrong, in our judgment, to regard its discretion to exclude the evidence of possession as being exercisable only if it was satisfied that the prejudicial effect of that evidence outweighed its probative value.   The correct principle is that a discretion to exclude evidence otherwise admissible should be exercised when, having regard to all the circumstances (including the circumstances in which the evidence was obtained), the trial court is satisfied that the use of that evidence would undermine the justice of the trial.   The power to exclude evidence on that basis is a necessary incident to the overriding duty of the trial court, which is to ensure that the accused has a fair trial".

20.      It is clear that the Court of Appeal considered that this was the same test as existed in England pursuant to section 78 of the Police and Criminal Evidence Act 1984, to which I have referred earlier.   I do not therefore consider that the case of Clarkin  suggests that a different test is to be applied in Jersey from that which is applied in England.

21.      But in support of his submission, Mr Scholefield relies strongly on the case of Hill -v- Attorney General (1999) JLR 296.  In that case the appellant had crashed her car.  She left the car and went home without reporting the accident to the police.  On her own evidence, when she got home she drank a considerable amount of alcohol and then fell into a deep sleep.  The police knocked on the appellant's door some two hours after the incident but received no reply.  A further two hours later the police returned to the flat and made a forced entry.  After the appellant was awakened she was arrested, breath tested, and found to have an alcohol level in excess of the limit.  A back calculation suggested that she had been over the limit at the time of the accident.  She was convicted before the Magistrate's Court and appealed on the grounds that the entry to her flat was unlawful.   The  court agreed, and went on to say, having cited the extract from Clarkin referred to earlier:

"It would therefore in our view, be invidious to allow the evidence obtained thereafter to be used against her.  It was tainted".

22.      No other reasons were given.  Mr Scholefield sought to draw from this a general principle that the court will rule out tainted evidence, i.e. evidence obtained unlawfully.   I do not think that the case will bear that weight.  It was not purporting to lay down any general principle; on the contrary the court was purporting to apply the Clarkin principle.  

23.      In my judgment it is hardly surprising that the court in Hall concluded that to allow the breath test evidence in those circumstances would indeed be unfair.  The unlawful entry by the police allowed them to arrest her, and to compel her to provide evidence by way of breath test.   If no unlawful entry had been made she could not have been arrested.  If she had not been arrested she could not have been compelled to provide a specimen of breath.  An unlawful act by the police, allowing the State to force a person by law to provide evidence upon which that person is subsequently convicted is something which could properly be said to be unfair.  In my judgement Hall is merely an example of the Clarkin principle in action, and lays down no principle or guidance as how the discretion is to be applied in wholly different circumstances. 

24.      Mr Scholefield also referred to the dissenting judgement of Judge Loucaides  in Khan -v- United Kingdom in the European Court of Human Rights, and of Judge Tulkens in the subsequent case of P.G. and J.H. -v- United Kingdom.  He argued that these were more consistent with Jersey law as he took it to be from Hall than were the decisions of the House of Lords in Khan and the majority judgments of the European Court of Human Rights in Khan and P.G and J.H.   Judge Loucaides was of the view that a trial could not be fair if a person's guilt was established through evidence obtained in breach of Article 8.  Such evidence had, therefore, to be automatically excluded.

25.      I do not agree that Jersey law is different from English law in relation to the nature of the discretion; indeed Clarkin made clear that it was not.   I prefer the reasoning of the House of Lords in Khan and the majority judgments of the European Court of Human Rights in Khan and P.G and J.H. as well as the decision in Schenk to the dissenting judgment of Judge Loucaides and the subsequent dissenting judgement of Judge Tulkens.

26.      Counsel for the defendants referred to two other cases.  The first was Mayo -v- Anagram  (1995) JLR 190.   That was a case in which, following the obtaining of an Anton Piller order allowing the plaintiff to enter upon the defendant's premises to obtain documents etc, the plaintiff's agent used the opportunity to plant a covert listening device in the defendant's premises.  The Court of Appeal upheld the decision of the Royal Court to discharge various Mareva injunctions granted to the plaintiff because of the plaintiff's abuse of the court's process.

27.      In my judgment that was a wholly different case.  The plaintiff's agent had deliberately abused the power conferred by the Anton Piller order issued by the Court in order to use it for a wholly different purpose.  It is not analogous to the present case. 

28.      Finally Mr Preston referred to the decision of the Privy Council  in Mohammed -v- The State of Trinidad and Tobago (1999) AC 111, and in particular the head note which reads:

"That a voluntary confession obtained in breach of a suspect's rights under the constitution of Trinidad and Tobago was not automatically inadmissible, and the trial judge had the discretion to admit it; that the discretion was not to be exercised on the basis that such a confession was prima facie inadmissible, but the contravention of a constitutional right was a cogent factor in favour of exclusion; that the judge had to balance the interest of the community in securing relevant evidence relating to the commission of serious crime against the interest of the person whose constitutional rights had been infringed, taking into account  the nature of the particular constitutional right, and of the particular breach; that where police officers had deliberately frustrated a suspect's constitutional rights a confession should not generally be admitted; but that since the judge had been entitled to find that the police had acted in good faith, and he had taken into account the relevant considerations before exercising his discretion to admit the defendant's second statement, there were no grounds for interfering with his decision."

29.      Mr Preston emphasised that contravention of a constitutional right was a cogent factor in favour of exclusion, and he argued that the right to privacy enshrined in Article 8 of the Convention was a right akin to a constitutional right.

30.      In my judgment the test which I must apply is that laid down in Clarkin. The defendants argue that it would be unfair to admit evidence obtained illegally, in the sense that it involved a trespass to Croke's property and a breach of the defendants' right to privacy under Article 8 of the Convention.   I agree that the obtaining of the evidence did involve a trespass and it also involved a breach of the defendants' right under Article 8 of the Convention on the basis that the procedure for obtaining such evidence in Jersey is not prescribed by law, although the Convention is of course not yet part of Jersey's domestic law.  However, I hold, applying the principles laid down in Khan, both in the House of Lords and in the European Court of Human Rights, and in P.G and J.H and in Mohammed that the fact that the evidence was obtained by means of a trespass and in breach of the defendants' right of privacy, does not mean that the evidence must necessarily be excluded if the trial is to be fair.  Nevertheless, as is made clear by the House of Lords in Khan  and the Privy Council in Mohammed, the fact that the evidence was obtained unlawfully and in breach of the right of privacy, is a highly material factor in exercising my discretion.

31.      Having carefully considered the submissions I have concluded that it would not render the defendants' trial unfair to admit the evidence in this case.  My reasons are as follows:

(i)        The police did not act in bad faith.  In the absence of any Jersey legislation, they applied the standards and procedures laid down by the code of practice under the Police Act 1997, of the United Kingdom.

(ii)       Thus the detective inspector in charge of the investigation made a detailed application for authorisation to the Chief Officer.  He made clear that the investigation concerned serious crime, where a sentence of three years for an adult of good character could be expected.   In my judgement he was clearly entitled to reach that conclusion.   He went on to address the issues of whether the proposed action was necessary, and whether evidence could be obtained by other means.  He also addressed the issue of collateral intrusion.

(iii)      The application was first considered by the Deputy Chief Officer, who concluded "I agree that the action proposed is proportional to the problem to be solved, I recommend approval." He was therefore clearly bearing in mind the need for proportionate action.   The application was subsequently approved by the Chief Officer but only for three months. Thereafter further justification was provided for extensions granted by the Chief Officer, and on one occasion by the Deputy Chief Officer in his absence.

(iv)      The right to privacy conferred by Article 8 of the Convention is not unqualified.  Thus Article 8(2) provides that the right may be interfered with for the prevention of disorder and crime.  It follows that actions of this sort by the police are not by their nature intrinsically inconsistent with Article 8.  The sole problem in this case is that they are not prescribed by law, as required by the Convention.   The action undertaken in this case could have been perfectly lawful and consistent with Article 8 if the Island had the necessary statute.

(v)       There is no question here of remarks made by the defendants in the house or in the car being made involuntarily or as a result of any entrapment or inducement.  The defendants said what they did quite independently of any action by the police.

(vi)      Neither Mr Scholefield nor Mr Preston was able to point to any additional reason for the admission of the evidence being unfair in this particular case, other than that it was illegally obtained because of the trespass and the breach of Article 8.   As Khan makes clear, this fact alone does not necessarily render it unfair for the evidence to be admitted.  Mr Scholefield did suggest that the fact that the police did not inform Croke right at the outset of his police interview, that they had recordings of his conversations was something which amounted to trickery or misleading on their part, because, if Croke had known this, he might have refused to speak at all at interview even to the extent of saying "no comment", thereby denying the police the opportunity of a voice comparison for the tape recordings.  I am unable to accept that argument. If the police have a statement from a witness putting a suspect at the scene of a crime the police do not have to announce this fact  at the very beginning of an interview with the suspect; they are entitled to ask the suspect where he was at the time, or whether he was at the scene, thereby giving the suspect the opportunity of telling the truth or telling a lie.  I see no difference in this case.

(vii)     Mr Preston argued that the actions of the police were not consistent with the position in Jersey of the professional police.  They should have sought the authority of the Attorney General or of a centenier on the grounds that only a centenier has the customary power of search.   I do not agree.  This was a highly sophisticated and sensitive police investigation which was properly being carried out by the professional police.  I see no justification for requiring the police to consult the Honorary police, who are not trained in such matters, nor the Attorney General, who is responsible for prosecuting, not investigating cases.

(viii)    The fact that in the case of Breen the transcripts provide the sole evidence against him, and the fact that in the case of Croke they provide a very important part of the evidence against him does not in itself mean that it would be unfair to adduce the evidence (see the decision in Khan).

(ix)      For the purposes of this argument the defendants admit that it is their voices on the tape and therefore no question arises in this respect.

32.      In summary, undertaking the balancing of interests referred to by the Privy Council in Mohammed and by the Court of Appeal in Clarkin I am in no doubt that it would not be unfair to the defendants, or contrary to the interests of justice to admit the product of the listening devices in this case, and I so rule. 

33.      I would add just this.  I said yesterday that I had not looked at the material in respect of which the Crown sought public interest immunity.  I said that because I felt at that stage that it would be preferable for me to be looking at the matter from the same perspective as the defendants.   On reflection overnight I considered that it would be preferable that I should look at the material in order to ensure there was nothing there which I felt would be of assistance to the defendants and which might weaken the Crown's case, or otherwise affect my decision on the question of admissibility.  I have therefore reviewed that material.  In my judgment there is nothing in it which could in any way affect the submissions made or the decision which I have reached.

 

  

 

Authorities

R. -v- Khan (Sultan) (1997) 3 All ER 289 HL.

Khan -v- United Kingdom (2001) 31 EH RR 45.

Clarkin -v- The Attorney General (1991) JLR 232 CofA

Hill -v- The Attorney General (1999) JLR 296 CofA

Mohammed -v- The State of Trinidad and Tabago [1999] A.C. 111.

Mayo -v- Anagram (23^rd June, 1995) Jersey Unreported; [1995] JLR 190.

Snooks -v- The Attorney General [1997] JLR 253 CofA.

Police Act 1997: s.101(3).

Police & Criminal Evidence Act, 1984,

Schenk -v- Switzerland (1998) EHRR 242.

P.G. & J.H. -v- United Kingdom (25^th September, 2001) Application No. 44787 of 1998.