Jersey Unreported Judgments

[2008]JRC050

ROYAL COURT

(Samedi Division)

20^th March 2008

Before     :

Sir Richard Tucker, Kt. Commissioner (sitting alone).

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Ruling on an application for a stay of proceedings on the grounds of abuse of process.

Crown Advocate J. C. Gollop

Advocate D. M. Cadin for Warren

Advocate S. A. Pearmain for Welsh

Advocate D. J. Hopwood for O'Brien

Advocate D. Gilbert for Woodward

Advocate M. J. Haines for Hunt

Advocate M. L. Preston for Lucas

JUDGMENT

THE commissioner:

1.        I have before me an application to stay the proceedings on the grounds of abuse of process, on the basis that the Prosecution's conduct is an affront to justice.  The abuse is said to arise from wrongful conduct and deception at the highest level by the Executive in an international context.  It is submitted that the case is about the public interest in the Crown upholding the rule of Law and maintaining the integrity of the Court and the criminal justice system.

2.        The application is made on behalf of all six defendants but has been advanced by Advocate Cadin acting for the first named defendant, Curtis Warren.  Advocate Cadin had filed a skeleton argument on behalf of all the defendants which I read and considered with care prior to the oral hearings of submissions and evidence.  I also considered, with equal care, the skeleton argument prepared by Crown Advocate Gollop.  I have since had the advantage of receiving full written, detailed submissions from both Counsel.  If I do not refer to them in detail it does not mean that I do not have them in mind.

3.        It is important to observe at the outset that this is not, or was not originally, an application to exclude evidence which has been improperly obtained, but a submission that the entire proceedings are so fundamentally flawed that it would be an abuse of the process of the Court if they were allowed to continue.  I say not originally because at a late stage the Defence sought, as a last resort, to persuade the Court to exclude the evidence, I shall come to that topic in due course.  It is submitted that the integrity of the criminal justice system of the Island must be maintained by the Court expressing its disapproval of what occurred and that the ends which it is said were sought to be achieved cannot be justified by the means which were adopted.  The principles applicable to the Court's jurisdiction to stay criminal proceedings and the power to exclude evidence are not the same, nevertheless there is a considerable overlap.  (See Lord Steyn in R v Latif [1996] 2 Cr. App. R. page 92.)

4.        The Defence submission centres on the unlawful deployment of audio surveillance equipment in a hired car driven on the continent by John Welsh, one of the alleged conspirators, with the intention of using any evidence thereby obtained as part of the Prosecution case.  However it also includes advice given by the Advocate then advising the Crown, Advocate Jowitt, the unlawful conduct of the Police, and the conduct of the Crown in prosecuting the case.  It is asserted that the unlawful conduct by the Police was encouraged, condoned and supported by law officers.  It is further alleged that the unlawfulness of the conduct is confirmed by subsequent misleading and incomplete disclosure and by the disguised redaction of documents.

5.        This is a case where close attention has been rightly paid to the question of disclosure by the Prosecution of any material in their possession which might reasonably be considered capable of undermining the case for the Crown against the defendants or of assisting the Defence cases.  I have conducted several hearings on this topic, either in open Court or, with the consent of the defendants, by means of a telephone conference with all Counsel present.  I have made rulings then and subsequently which should ensure, and I hope have ensured, that proper disclosure has been given on all relevant issues. 

6.        The facts which it is said give rise to these allegations are to some extent undisputed.  The Defence complaint rests in large part upon advice which Crown Advocate Jowitt gave to two investigating police officers of the States of Jersey Police, Detective Inspector Pashley and Detective Sergeant Beghin, on 11^th July, 2007, and subsequently.  It is alleged that the effect of this advice was, as I have said, to authorise, solicit or encourage the officers to act unlawfully abroad.  It is further alleged that the officers, acting on this advice, installed a bug or listening device in the car which was hired by the defendant Welsh from a French car hire company in St Malo, knowing that the French authorities had refused permission for this to be done.  It is admitted that the Jersey Police did so and that they deceived the French Police and acted contrary to French Law and therefore unlawfully in doing so.

7.        The Crown have tendered a number of witnesses for cross-examination by the Defence.  These include the persons I have already referred to i.e. Detective Sergeant Beghin, Detective Inspector Pashley and Crown Advocate Jowitt, and also Chief Officer Power, Superintendent Du Val, Detective Inspector Megaw, Detective Chief Inspector, now Acting Superintendent Minty and Howard Sharp, from the Law Officers' department.  In addition the Crown have disclosed statements made by a number of police officers and others.  It has been agreed that some of these can be read as part of the evidence.  The Defence have called Professor Wladimirof, who is expert on Dutch Law.

8.        Because, as I have said, many of the underlying facts are undisputed it is unnecessary for me to review them in detail. 

9.        Suffice it to say that the States of Jersey Police received intelligence which lead them to suspect that the defendants were planning to import a large amount of cannabis into Jersey.  It was believed that the defendant Welsh was intending to drive to Amsterdam to collect this consignment and to bring it to a port in Normandy whence it would be shipped to this island.  The original plan was for Welsh to take his own car by ferry to St Malo and to drive it to Amsterdam. 

10.      The police wished to deploy two surveillance devices in this car, first a tracking device which would enable them to follow its progress.  Second an audio recording device which would enable them to listen to and record conversations of any occupants in the car. 

11.      The Jersey Police and the Law Officer's Department realised that authority would have to be obtained from foreign States for the installation of these devices and that this would have to cover not simply the vehicles use in the Island but also its use abroad.  This meant that permission would have to be obtained from the French, Belgian and Dutch authorities.  As to the tracking device, there was no difficulty; all countries agreed to its use, save perhaps the Dutch who would have imposed conditions on its use.  The audio device gave rise to problems.  Although the Attorney General for Jersey authorised its use in this island, the other countries refused permission for its use within their jurisdictions.  This was because of the element of intrusion and violation of privacy, contrary to Article 8 of the European Convention on Human Rights, which has been incorporated into Jersey Law by the Human Rights (Jersey) Law 2000.

12.      Another problem then arose because Welsh, for reasons which can only be surmised, decided not to use his own car but to hire a car in St Malo for his journey to Amsterdam.  Therefore if the police were to proceed with their proposed investigations, different arrangements had to be put in place and additional authorisations had to be obtained.  All this had to be done quickly.

13.      Instead of the devices being installed in the car in Jersey belonging to the defendant, this now had to be done in France in a car belonging to the hire car company (Alamo) and subject to the rules of the French jurisdiction and that of other countries through which the car would be travelling. 

14.      Despite letters of request issued to these other countries permission for the installation of the audio monitoring equipment was refused.  States of Jersey Police had sought the assistance of SOCA (Serious Organised Crime Agency) in the United Kingdom who were unable or unwilling to assist. 

15.      So an operational decision was taken by the States of Jersey Police that the two devices would be deployed, notwithstanding the refusal of the foreign powers for the use of one of them.  This was done on the 18^th July.  The car hire company were cooperative in that they consented to the installation of the tracking device and the French Police were informed, though not of the true nature of the operation.  They were not told of the intention to deploy the listening device in the car, but were lead to believe that it was only to be a tracking device.  Moreover a Jersey Police Officer was instructed by Sergeant Beghin, in the presence of Inspector Pashley, that if the French Police raised any questions she was to lie to them.  This was of course most reprehensible conduct which was unlawful, and to say the least most regrettable.  The Court wishes to express its disapproval of what took place. 

16.      In consequence, after Welsh collected the car and drove it through France and Belgium into Holland, his conversations with various people were monitored and recorded.  The Crown submit that this provides crucial evidence in the case against the defendants and intend, if possible to rely on it in any ongoing trial of the defendants. 

17.      Advocate Cadin condemned the conduct in much stronger terms and has been unsparing in his criticism of many Jersey officials, from the Attorney General downwards.  I must deal with these complaints.

18.      I come first to the part played by Crown Advocate Jowitt, a senior member of the Law Officers' Department.  He gave evidence before me for a considerable time and was subjected to rigorous cross-examination.  I had ample opportunity to observe his demeanour in the witness box.  I found him to be an honest witness and I deem him to be an Advocate of integrity.  Some of the advice which he gave Detective Inspector Pashley and Detective Sergeant Beghin on the 11^th July might, as he now accepts with hindsight, have been more carefully and felicitously expressed, and he should have considered and researched the Law more carefully than he did.  However I have no doubt that his advice was honest and well intentioned and I acquit Crown Advocate Jowitt of any impropriety or criminality or of acting recklessly or in disregard of the law.  According to Detective Sergeant Beghin he asked Advocate Jowitt what would happen if permission was not given and told him that the Dutch were unlikely to consent to the audio equipment being fitted.  Advocate Jowitt said he didn't see a Jersey Court ruling any evidence which was obtained inadmissible, it would be a matter for the Court to decide.  He said that it was an operational decision for the officers to decide, he added "If it was me I'd go ahead and do it, but don't quote me on that."  Advocate Jowitt didn't give any advice about audio equipment or the need to obtain authority.  According to Detective Inspector Pashley's recollection Advocate Jowitt said that no Court in the island would be likely to exclude the evidence but it was an operational decision for the Inspector to take whether to adopt any course of action.  The Detective Inspector said that the advice which he received was what led him to take the decision.  If Advocate Jowitt had advised him not to go ahead he would not have done so.  The officers informed Detective Inspector Minty of Advocate Jowitt's advice. 

19.      Advocate Jowitt gave evidence as follows.  His impression was that the officers were not asking to be advised on whether they should or should not do something because it was unlawful, that they already had that operational avenue well in mind and wanted to know, or to be advised, on whether it would prove a waste of time in the sense that if they did it and it was unlawful would the evidence ever see the light of day in a trial?  He said he gave advice to the effect that if it was simply an issue of unlawfulness it was unlikely that the Court would exclude the evidence because that was his understanding of the principles in English case law.  Advocate Jowitt admitted that if he said "I'd do it if I were you" it would have been a foolish and inappropriate thing to say.  He agreed that inevitably his advice would have served to persuade them that this was an appropriate and good operational decision to take, but it was advice that he was entitled to give.  He denied that the effect of his advice was to give a "nod and a wink" to the police to breach foreign law.  He told them that he could not advise them to bug without consent from the Dutch authorities.  He did not say "don't quote me" as meaning don't mention my advice, it was his way of saying that it was his personal advice don't rely on it.  I have already expressed my views on Advocate Jowitt and the advice he gave.

20.      I next consider the role of the Attorney General in the case.  The Defence criticised the Attorney General particularly in two respects.  First that he misled the Dutch authorities in a letter of the 7^th September by telling them that he had directed the Jersey Police that the bugging device should be switched off when the suspect entered a jurisdiction which had refused permission for its use.  This was a mistake and misleading, though it has not in my view been shown to be deliberately so, since the direction had been given not in relation to a car entering Holland, but to a boat entering French territorial waters.  This mistake was never corrected.  The second matter of complaint is that the Attorney General gave an undertaking to the Dutch authorities not to proceed with the case without their clear consent.  Basing themselves on the evidence of Professor Wladimiroff the Defence submit that the Dutch authorities cannot give that consent and have not done so, nevertheless the Crown are pursuing the Prosecution against the defendants.  Mindful of the allegation that there was wrongful conduct and deception at the highest level, I note the reference in the Defence skeleton argument to the Chief Officer and the Attorney General as people of integrity, an observation with which I agree, but which does not sit easily with the alternative allegation.  I further note that in the Defence detailed submissions there are references to the Attorney General and the Chief Officer being deceived or misled, which suggests that neither of them are being accused of complicity in any unlawfulness. 

21.      I turn next to the evidence of Superintendent Du Val.  He said that he was of a mindset that all the legal authorities were in place.  When a query developed about that, after the deployment of the equipment, he took the view that there was very little that could be done about it and that he remained reassured in terms of proportionality and necessity of the operation and that they would continue to gather the evidence and its admissibility or otherwise would be a matter for the Court to decide on.  He went on to say that there was no definitive position that what they were doing was in any way unlawful.  Looking at it on balance, taking the advice of the Crown and considering the proportionality and necessity in terms of the subjects they were dealing with, the potential damage to Jersey of the alleged conspiracy to import, they decided that it was proportionate and necessary, so they decided to go ahead with continuing to gather evidence that if it so chose a Court could either admit or not.  Superintendent Du Val emphatically disagreed with the suggestion that the ends justified the means.  Detective Chief Inspector, now acting Superintendent, Minty said he was aware before any recording took place that the Dutch had not given approval.  He attended a meeting on the 18^th July to discuss the admissibility of evidence.  He thought it would have been mentioned that Advocate Jowitt had said he could not see a Jersey Court excluding the evidence.  Superintendent Minty did not recall being aware of any instructions to lie to the French officers.  I also heard evidence from Howard Sharp, from the Law Officers' Department, who took the same view as that expressed by Advocate Jowitt, that the fact that evidence had been obtained unlawfully did not, as a matter of law, mean that it could not be admitted in Court.  In his opinion there had been no prejudice and no one (referring to the defendants) had been tricked or conned. 

22.      I now turn to the Law.  I have been referred to a great number of authorities.  I start with the Vienna Convention Against Illicit Traffic in Narcotic Drugs 1988, which in Article 7, paragraph 1 calls for the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to criminal offences.  Then paragraph 13 prohibits the use of certain information or evidence other than stated in a request, without prior consent from the requested party.  Article 9 provides for the facilitation of effective coordination between competent agencies.  It is alleged that the Crown breached certain of the provisions of this Convention and therefore the Law of Jersey.  I have already referred to Article 8 of the first schedule of the Human Rights (Jersey) Law 2000, which provides for the right to respect for private and family life, but which is qualified so as to allow interference in accordance with the law if necessary for the prevention of crime.  It is conceded by the Crown that Article 7(1) of the Law was breached.  That provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention Right.  The practical effect of these provisions and the tension to which they give rise has been resolved by the Regulation of Investigatory Powers (Jersey) Law 2005 referred to under the acronym Ripple and the Codes of Practice issued thereunder.  I gratefully accept and adopt the summary of the law prepared by Advocate Cadin:-

(i)        Authorities need to be in place for intrusive surveillance such as tracking and bugging a vehicle;

(ii)       In the case of the hire car there should have been Jersey authorities in place.

France, Holland and Belgium have also adopted the European Convention, they have also enacted laws and procedures to ensure that privacy of individuals within their respective territories.  In France foreign Police cannot take any action on French soil, the French authorities can act, but only in accordance with properly issued directions and requests under the appropriate Convention.  Those requests will be dealt with by the appropriate judicial authorities.  Evidence obtained in breach of these requirements would be excluded.  In Belgium judicial authorities are once again involved, no surveillance measure can take place without the prior reasonably sustained consent of an examining Judge.  In Holland covert monitoring and/or the recording of conversations by means of a technical device in locations other than a home, enclosed premises or room is not allowed and is criminal.  Coercive measures such as monitoring and tracking, on the request of a foreign authority, can only be executed on the basis of a treaty between the requesting state and the Netherlands.  However if a properly issued request were actioned such coercive measures could not have been done from Jersey or by the Jersey Police.  The Dutch judicial and Police authorities would have had to have implemented the coercive measures, and the Dutch Court would have scrutinised any request to hand over the product of such coercive measures.

23.      I have noted the allegations of breaches of other Jersey Laws but doubt whether they add significant weight to the Defence submissions. 

24.      I next examine the cases bearing on the topic of abuse of process and I look to see what guidance I can derive from them and for examples of situations where the Court has been persuaded to intervene.  The first of these is the R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42.  This case concerned the forcible return of a defendant to England in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found.  The House emphasised the responsibility of the judiciary in the maintenance of the Rule of Law.  Lord Bridge said that "no principle is more basic to any proper system of law than the maintenance of the rule of law itself."

25.      I have already referred to the case of Latif.  That was a case where a defendant had been incited to commit and offence and had been lured into the jurisdiction where he met the Appellant, a drugs dealer.  In the course of his speech, Lord Steyn referred to observations of Lord Griffiths in another case:-

"It is notoriously difficult to apprehend those at the centre of the drug trade, it is only their couriers who are usually caught.  If the Courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process, it would indeed be a red letter day for the drug barons."

At page 101, letters A-E, Lord Steyn continued:-

"The Court has a jurisdiction it has to perform a balancing exercise, if the Court concludes that a fair trial is not possible it will stay the proceedings, that is not what the present case is concerned with, it is plain that a fair trial was possible and that such a trial took place.  In this case the issue is whether, despite the fact that a fair trial was possible the Judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system.  The law is settled, when counterveillencing considerations of policy and justice it is for the Judge, in the exercise of his discretion, to decide whether there has been an abuse of process which amounts to an affront to the public conscience and requires that criminal proceedings to be stayed."

26.      He referred to the case of R v Horseferry Road Magistrates' Court ex parte Bennett:-

"Bennett was a case where a stay was appropriate because the defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws.  The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the Judge's discretion, not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system, that a trial should take place.  An infinite variety of cases could arise.  General guidance as to how the discretion should be exercised in particular circumstances will not be useful, but it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the Court will adopt the approach that the end justifies any means.  In my view the Judge took into consideration the relevant considerations placed before him.  He performed the balancing exercise.  He was entitled to take the view that Shahzad was an organiser in the heroin trade, who took the initiative in proposing the importation.  It is true that he did not deal with arguments about the criminal behaviour of the Customs Officer; that was understandable since that was not argued before him.  If such arguments had been put before him I am satisfied that he would still have come to the same conclusion and I think he would have been right.  The conduct of the Customs Officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.  Realistically, any criminal behaviour of the Customs Officer was venial compared to that of Shahzad.  In these circumstances I would reject the submission that the Judge erred in refusing to stay the proceedings"

27.      Therefore, it is clear both that I have a discretion and that I have to perform a balancing exercise in the public interest. 

28.      Helpful guidance is provided by two decisions of the Court of Appeal presided over by Lord Justice Rose.  The first of these is R v Mullin [1999] 3 WLR 777.  In that case the security services of both England and Zimbabwe had colluded in order to procure the defendant's deportation from Zimbabwe, in circumstances in which he was denied access to a lawyer, contrary to Zimbabwean Law and International recognised human rights. 

29.      This conviction was held by the Court of Appeal to be unsafe.  However at page 790 of his judgment Lord Justice Rose said :

"In arriving at this conclusion we strongly emphasise that nothing in this judgment should be taken to suggest that there may not be cases such as Latif in which the seriousness of the crime is so great relative to the nature of the abusive process that it will be a proper exercise of the judicial discretion to allow a prosecution to proceed, notwithstanding an abusive process in relation to the Defendant presence within the jurisdiction.  In each case it is a matter of discretionary balance to be approached with regard to particular conduct complained of and the particular offence charged."

30.      I derive great assistance from another decision of the Court of Appeal also presided over by Lord Justice Rose delivered by Mr Justice Hughes, as he then was, in the case of R v Hardy [2003] 1 Cr. App. R. page 30.  This was a case concerning the tape recording of telephone calls and I quote from the judgment:-

"The application to stay proceedings was altogether misdirected.  The circumstances in which this Court will stay a prosecution on the grounds of abusive process and thus interfere with the conduct of a prosecution which is in the hands of the prosecution authorities are very exceptional.  They include cases in which the Court comes to the conclusion that it is impossible for a fair trial to take place.  They also include cases in the category exemplified by R v Horseferry Road Magistrates' Court and in Mullin where it is contrary to the public interest by reason of some abuse by the Crown of its executive powers for the defendant to face trial at all.  Neither of these situations even arguably exist in the present case.  If the surveillance undertaken by the Police or some part of it was illegal then the proper remedy is to apply for the Judge to exclude it under section 78 of the Police and Criminal Evidence Act 1984.  He would at that stage decide whether or not to do so, according to the effect that the evidence would have on the fairness of the trial.  He would not necessarily exclude it.  In evidence obtained illegally is not ipso facto inadmissible, see R v Sand [1979] 69 Cr. App. R. page 2, [1980] AC 402.  But it would be excluded if its submission would make the trial unfair, that is the test required by section 78.  Legality or illegality would be a very material consideration to that question.  Nor does the passing of the Human Rights Act 1998 alter that position on the facts of a case such as this.  Since that Act the Court's duty to ensure that a trial is fair is underscored by the direct application of Article 6 of the European Convention, but the Court's powers to regulate the admission of evidence pursuant inter alia to section 78 and its inherent jurisdiction represent means of ensuring that Article 6 is not infringed.  The admissibility of evidence is generally regarded by the European Court of Human Rights as a matter for the domestic Court, see Shenk v Switzerland.  Moreover the jurisprudence of the European Court of Human Rights expressly recognises, as does English Law, that unlawfully obtained evidence may be inadmissible, but is not ipso facto so, nor is a trial in which it is relied upon necessarily unfair.  The evidence in Shenk consisted of the recording of the Defendants telephone call, which it was conceded was unlawfully obtained according to local law, but given the Court's control of its admissibility that did not render the trial unfair.  The Court expressed itself similarly in Kahn in the United Kingdom.  Both those cases also demonstrated that although surveillance may in some circumstances be a breach of Article 8 of the Convention, if not conducted according to Law, that breach even if established does not necessarily import a further breach of Article 6, provided that the Court has power to regulate admission of evidence in such a way as to ensure that the trial is fair.  For those reasons it follows that in this case the arguable admissibility of all or part of this surveillance, if it could not be shown to have been lawfully carried out, by no means carries with it the conclusion that the proceedings were an abuse of process."

31.      A further case relating to abuse of process is that of the R v Grant [2005] 2 CA Reports 409.  This was where the Police had deliberately eavesdropped upon and recorded privileged conversations which took place in the exercise yard of the police station between the Defendant and his Solicitor.  I quote from the Judgment of Lord Justice Laws at page 429, so far as material to this present case:-

"It is unnecessary to multiply authority to demonstrate the importance which the law attaches to legal professional privilege ... Now it is not in general the function of criminal courts to discipline the police.  Not every misdemeanour of police officers in the course of an investigation will justify a stay on grounds of abuse and plainly there are cases where prejudice or detriment to the defendant must be shown.  Indeed the case where the defendant is denied a fair trial by the prosecutors act or omission may be thought a paradigm of abuse of process.  Where a fair trial remains possible, faced with an application of stay on the grounds of abuse, the Court has a balance to strike.   On the one hand, public confidence in the criminal justice system has to be maintained and where misconduct by the police or prosecution is shown that will favour a stay of the proceedings.  On the other hand, it is the Court's duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay.  Where the Court is faced with illegal conduct by police or state prosecutors which is so grave as to threaten or undermine the rule of Law itself, the Court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case."

32.      Another Judgment of Lord Justice Laws to which my attention was drawn was that given in the case of A and Others v The Secretary of State for the Home Department [2004] EWCA 1123.  This case concerned the admission in evidence of statements obtained from the defendants by torture.  At paragraph 250 of the Judgment of the Court of Appeal Lord Justice Laws said this:-

"It follows that were the Secretary of State to rely before the Special Immigration Appeals Commission on a statement which his agents had obtained by torture or which had been procured with his agents connivance of torture, SIAC should decline to admit the evidence, and this is so however grave the emergency.  The principles should be stated and stated clearly."

33.      The learned Lord Justice then cited a passage from a decision on the Israeli Supreme Court, which I have read, and continued at paragraph 251 in these terms:-

"State power is not only constrained by objective law, that is the imperative that it be exercised fairly, reasonably and in good faith and within the limits of any relevant statute.  More than this the imperative is one which cannot be set aside on utilitarian grounds as a means to a further end.  It is not in any way to be compromised."

34.      Lord Justice Laws then referred to the observations of Lord Steyn in Latif in holding:-

"That in any given case it is for the Judge to decide whether there has been an abuse of process amounting to an affront to the public conscience."

35.      An appeal in that case came before a committee of seven Lords of Appeal in the House of Lords.  I have read the speech of Lord Bingham, particularly between paragraphs 18 and 22.  I was at a late stage referred to a decision of Mr Justice Curtis in a case I'm told involving associates of the First Defendant at Nottingham Crown Court in September 1998, R v Glennan, which it has said is very similar to the present case.  The learned Judge was persuaded to stay the proceedings on the grounds of abuse of process.  I have read a transcript of this ruling.  I observe that when setting out his conclusions the learned Judge said this:

"What concerns me more is the misleading of or the lack of frankness to the Dutch Court, which goes in my Judgment to the root of this matter.  Namely, whether this particular evidential material would ever be handed over to the British."

36.       Therefore there is a very clear and important distinction between the two cases.  In any event I am not bound by that decision, being that of a first instance Judge.  Whatever else can be said in criticism the present case does not involve a deception on the Court. 

37.      Confident that I have a discretion, but conscious that I must exercise it judicially and along proper lines, I now consider how I should carry out the balancing exercise which I am required to undertake. 

38.      I start with the admitted facts that the prosecuting authorities acted unlawfully in the jurisdiction of three foreign states and also of Jersey.  That this was done knowingly and over a period of time and that the States of Jersey Police deliberately deceived their French counterparts.  I find that this course of conduct was known to, and approved of, by police officers of at least Inspector level and probably higher and was known or should have been discovered in the Law Officers' Department.  The evidence does not persuade me that there was any deliberate or knowing wrongful conduct or deception at the highest level, as is alleged, and I take the view that some of the Defence submissions were couched in extravagant terms and are unfounded.  I have already exculpated Crown Advocate Jowitt.  I take the same view of the part played by the Attorney General.  I think it was unfortunate that the offending letter was written in the way it was, but the evidence does not persuade me that it was a deliberate attempt to deceive the Dutch authorities.  The Chief Officer has not been expressly criticised. 

39.      In my opinion this case falls into an entirely different category from the other cases to which I have been referred, where the Courts were persuaded to stay the prosecution.  Here there is no suggestion of torture, coercion, procurement or entrapment or any breach of legal professional privilege or deception of a foreign Court or of the Defendants themselves.  There has been no suggestion of prejudice or unfairness to the Defendants or that a fair trial cannot take place.  The Crown submit that the case concerns a serious and organised international drug trafficking conspiracy which was focused on the small Island of Jersey.  If evidence was to be gained it had to be obtained quickly.  The unlawful actions which directly resulted in the gathering of the crucial evidence were a short lived infringement of Welsh's right to privacy, approximately half an hour's conversation was recorded in total.  They were not disproportionate.

40.      In these circumstances I have no doubt where the balance lies.  It would not be an affront to justice to allow this prosecution to continue, quite the reverse.  This is a case which can properly be pursued and I refuse the application.

41.      Following the oral hearings which occupied four days, I have been provided at my own request with detailed submissions by both sides, each running to 23 pages of closely argued propositions.  Some of this material has been helpful.  However, I did not derive assistance from what has been described as a blizzard of legislation, which in my opinion adds little or nothing to the central issue in the case.  And I regret that it was found necessary to criticise some of the witnesses and in particular Advocate Jowitt in such immoderate terms.  The purpose of skeleton arguments and submissions is to assist the Judge in focusing on the central issues.  This purpose is not achieved by the use of hyperbole or by using skeletons or submissions as a vehicle for making debating points.

42.       I am conscious that I have not dealt with every detail or nuance of the arguments on either side, that does not mean that I have not considered them.  I bear in mind a passage in Archbold at chapter 4, paragraph 53, and I quote:-

"When giving judgment on an application to stay proceedings a few sentences showing the Judge's command of the Law on the topic will usually suffice, followed by a summary of the reasons for rejecting or granting the application."

43.      That I hope I have done.  However, there remains the late application relating to admissibility.  When I requested detailed submissions I did not envisage or intend that they should be used to cover new grounds not already advanced during the oral hearings.  Indeed I note that the titles to both sides submissions refer only to the application to stay the proceedings.  Yet I find in the Defence submissions that the question of admissibility is raised.  This question had only previously appeared in a three line paragraph towards the end of a short skeleton argument prepared for the final day of the hearing of oral submissions and not developed in any detail in argument.  Advocate Cadin agreed with me that it was in the nature of a long stop.  That acceptance is not surprising in a case where there is no suggestion of prejudice or unfairness to the defendants.  If on mature reflection it is decided to pursue this application I direct that it should be listed before me for hearing of oral submissions on a date to be fixed.  This is a matter upon which I need further argument and that I must be given proper time to consider.  If it comes before me I direct that the existing submissions contained in the detailed submissions will stand as the skeleton arguments, unless it is desired to present further grounds before me.

Authorities

R v Latif [1996] 2 Cr. App. R.

European Convention on Human Rights.

Human Rights (Jersey) Law 2000.

Vienna Convention Against Illicit Traffic in Narcotic Drugs 1988.

Regulation of Investigatory Powers (Jersey) Law 2005.

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