Jersey Unreported Judgments

[2009]JRC093A

ROYAL COURT

(Samedi Division)

14^th May 2009

Before     :

Sir Richard Tucker, Commissioner, sitting alone.

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Ruling on admissibility.

J. C. Gollop, Esq., Crown Advocate assisted by Advocate D. S. Steenson.

Advocate S. E. Fitz for Welsh.

Advocate E. Le Guillou for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

Curtis Warren acting on his own behalf.

Advocate R. Tremoceiro as an amicus to the Court.

RULING

THE commisioner:

1.        I have to consider an important issue concerning the admissibility of certain evidence which the Crown proposes to call.  It relates to evidence from two teams of undercover Dutch Police Officers which, it is said, identified the defendant Welsh as being present in or near Amsterdam and as associating with another named conspirator, and possibly another man, on three days in July 2007. 

2.        The principle and fundamental question is whether the Crown should be permitted to adduce the evidence by production of written statements made by the witnesses rather than by calling live evidence and presenting the witnesses for cross examination.  A secondary question is whether witnesses should be permitted to remain anonymous and to be referred to only by code numbers and letters as at present.  Their true identity is known only to their team leaders. 

3.        This material has been obtained by Letter of Request dated the 25^th July, 2007, in accordance with the provisions set out in Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001.  There is no issue as to this.  The effect of it is to render admissible any unsworn material so obtained without need of proof that there was any specific reason for non attendance of the witness or that the witness could not reasonably be expected to have any recollection of matters contained within the statement.  It also means that it is unnecessary to apply for the Court's leave to adduce the material. 

4.        However, before this procedure can be adopted, and before a statement in a document is admissible, it is provided by Article 65 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 that certain conditions have to be satisfied.  These are, so far as it is material:-

"(a) the document was created or received by a person in the course of an occupation, or as the holder of an office; and

(b) the information contained in the document was supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with."

5.        I am assured that all the documents referred to in the present proceedings were both created and received by Dutch Police Officers or legal assistant staff, all of whom were acting in a professional or official capacity.  I have no reason to doubt, and I am sure, that the witnesses had personal knowledge of the matters dealt with and I am therefore sure that the conditions have been satisfied.  I am also sure that no procedure existed in Holland for cross-examination of the makers of the statement before they were sent to Jersey.  This has now been conceded by Advocate Haines on behalf of the five represented defendants. 

6.        However that is by no means the end of the matter because I have to consider, and if appropriate exercise, the discretion given by Articles 66 and 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 to exclude the evidence either in the interests of justice or if the admission of the evidence would so adversely affect the fairness of the proceedings that I ought not to admit it.  Article 66 requires me to have regard to all the circumstances and to a specific number of factors which I can summarise as follows:-

"(a) ... that the document is authentic;

(b) ... the statement appears to supply evidence which would otherwise not be readily available;

(c) ... the relevance of the evidence ... ; and

(d) the risk of unfairness to the accused.arising out of the non-attendance of the witness to give oral evidence.

7.        Advocate Haines did not dispute the authenticity of the document.  The specific evidence contained in the statements is not readily available from other sources, though it is said by the Crown merely to give a fuller picture of events in Holland.  I have no doubt that the evidence is relevant to an issue in the proceedings, namely the nature and purpose of the defendant Welsh's visit to Amsterdam. 

8.        The main issue on which I have been addressed by Advocate Haines, by Advocate Fitz on behalf of the defendant Welsh and by the defendant Warren in person, is the question of unfairness to the defendants by being deprived of the opportunity of cross-examining the witnesses.  This is a matter to which I must have regard under both the Articles to which I have referred.  Advocate Fitz, in an address whose cogency lost nothing by its conciseness submitted that the issue was very fundamental and concerned the manner in which trials are conducted and the basic rights of defendants.  Her argument was that in effect the Crown wishes to adduce evidence of fact in documentary form and completely unchallenged.  This, she said, was a misuse of statutory powers affording means of obtaining and adducing evidence by means of a letter of request.  Advocate Fitz observed that if the evidence was from Jersey officers they would have to be called.  She described the right of cross-examination being not so much hampered but prevented.  She conceded that technically the Crown's application fits under Article 65 but that to admit the evidence would be unfair and unjust to her client Mr Welsh in a serious trial. 

9.        I was concerned throughout the exchanges to ascertain what it was that the Defence wished to cross-examine about and how the defendants would be prejudiced by being unable to challenge the evidence.  Despite requests made previously by the Crown, no details of this had been given prior to the hearing.  I was unable to obtain any specific details from Advocate Haines.  He referred to the need to question the credit-worthiness, reliability and accuracy of the witnesses' observations without explaining how a challenge could be mounted to the type of evidence which was to be given.  Advocate Fitz also spoke of her wish to test the reliability of the observations and to challenge the credibility of the witnesses.  In particular she would want to ask the officers whether they knew what the Jersey Police had done.  Despite the persuasiveness of Advocate Fitz's advocacy I find it difficult to understand the relevance of this, or how an attack on the witnesses credibility or reliability, could realistically be mounted.  The defendant Warren is not alleged to have been present in Holland during the course of these observations.  I am advised b the amicus, Advocate Tremoceiro, that the evidence has no relevance to him, with which I am inclined to agree.  Nevertheless, Mr Warren told me that he wants the witnesses to come to Court and be cross-examined.  He said he needed to know whether the Jersey Police were concerned, that he needed to explore a number of questions and that it was not fair for him to be prevented from doing so. 

10.      Crown Advocate Gollop was, as I have said, confronted by these suggestions for the first time.  He pointed out that no-one suggests that the evidence is wrong or that what the witnesses say they observed did not occur, only that the Defence might like to ask questions.  It is to be borne in mind that the evidence of the officers is supported by other evidence, such as that relating to telephone calls and the audio recordings and the tracker surveillance.  Moreover none of this evidence actually incriminates Welsh or any of the other defendants, and it is not solely decisive.  These are not principle witnesses but merely supportive of the overall picture.  Advocate Gollop therefore submitted that credibility is not and cannot be in issue and described the objections as opportunistic.  He further submitted that any criticism of the use and effect of the letters of request, or of the terms of Article 65 is a matter for the legislature, not for this Court.  The procedure is in place and the Crown is entitled to make use of it subject to my discretion to exclude the evidence on the grounds of unfairness.  In considering the effect of the admission of the evidence on the fairness of the trial, and the approach to be adopted by a trial Judge, Advocate Gollop drew my attention to a number of authorities. 

11.      First R v Glen Williams 97/7714W2 where the Court of Appeal Criminal Division cited with approval the terms of a ruling by the Recorder of Manchester:

"I have to consider the matter in the round.  I have considered the question of the risk of the possibility of controverting the statement and indeed all the circumstances of the case here and it appears to me that exercise of my discretion in this matter, having regard to the nature of the case, the nature of this evidence and all the other factors I am enjoined to consider is in fact to admit this particular evidence.  My ruling is that this statement ought to be admitted in evidence in the interests of justice."

I accept this guidance, I have adopted the same approach in the present case.

12.      Second I was referred to the case of R v Ryan Simmonds MacDonald {2008] EWCA Crim 2902.  In that case reference was made to the need to weigh the probative value of the hearsay statement against the prejudice of not being able to challenge its maker through cross-examination.  I have conducted a similar exercise.

13.      Third the decision of the European Court of Human Rights in Haywood v Sweden where the Commission recognised that there were cases where the statement of a witness could be admitted in evidence without being made in Court.  The Commission was influenced by the fact that the information obtained was far from being the only evidence in the case and that the conviction was not based to any decisive extent on this evidence.  That is also the position in the case before me. 

14.      Returning to this case, the Crown submits that it is important to note the apparent independence of the surveillance officers from all the defendants, especially the defendant Welsh.  They are also wholly independent so far as can be seen from the prosecuting State here in Jersey or the Law Officers' Department.  I regard any suggestion that they may have been influenced or tainted by any conduct of the Jersey Police as being unrealistic and fanciful. 

15.      Therefore, applying the tests to which I have referred, and having regard to all the circumstances, I exercise the discretion given to me by Article 66 against directing that the statements should not be admitted.  In my opinion it is in the interests of justice that they should be admitted.  Similarly under Article 76 it does not appear to me that having regard to all the circumstances, including the circumstances in which the evidence was obtained, that the admission of the evidence would so adversely affect the fairness of the proceedings that I ought not to admit it.  I can see no unfairness in doing so.  I exercise my discretion in favour of admitting the evidence. 

16.      The secondary question to which I have referred concerns the anonymity of certain witnesses.  The general common law rule in England, and as I understand it in Jersey, is that a defendant should be allowed to confront his accuser.  That means that a witness should be present and identifiable so that the Defence can challenge the evidence which he gives by cross-examination, should that be necessary.  However the law has developed over the years and as crime and those who commit it have become more sophisticated and violent, the general common law rule has become more flexible.  There are now exceptions to the rule and there are instances where it has been relaxed. 

17.      The position in English common law culminated in the decision of the House of Lords in the case of R v Davis [2008] AC 1128.  It was there held that the use of anonymous evidence was not in all circumstances incompatible with the European Convention on Human Rights, but the fairness of a defendant's trial was to be assessed by reference to the proceedings as a whole, the extent to which the defendant had been handicapped in his defence by such anonymity and the extent to which the evidence was decisive.  Where a conviction was based solely, or to a decisive effect, on the testimony of anonymous witnesses, the trial could not be regarded as fair.

18.       Within a very short time Parliament responded to that decision by enacting the Criminal Evidence (Witness Anonymity) Act 2008.  The common law rules relating to the anonymity of witnesses were abolished.  Witness anonymity orders continue to be permissible provided they are made in accordance with the provisions of the statute.  Nevertheless it is clear that, save in exceptional circumstances permitted by the Act, the ancient principle that the defendant is entitled to know the identity of the witnesses who incriminate him is maintained.  That Act has not been incorporated into Jersey law and I am persuaded by arguments from Counsel that I should therefore disregard it. 

19.      Accordingly I base myself on the law as expressed by the House of Lords in Davis, though I believe that I can also look at comments made by the Court of Appeal, presided over by the Lord Chief Justice, in the subsequent case of R v Mayers, Glasgow and Others [2008] EWCA Crim 2989.  These decisions have strong, persuasive authority in Jersey.  In particular I have regard to passages at paragraphs 30-32 of the judgment in the Mayers which have special reference to the circumstances of the present case, since they refer to the position of Police witnesses working undercover:-

"[30] A specific problem arises in relation to police witnesses, particularly those working undercover.  They are usually specially trained officers, whose usefulness would dissipate and whose safety would be in danger if the truth about their activities became known.  We understand and recognise that senior police officers would be likely to order them not to give evidence if their true identities were disclosed.  In reality, we suspect that if the court ordered a senior officer to countermand the prohibition, he would think long and hard before maintaining it.  The reality, however, is that there are often sound operational reasons for maintaining the anonymity of undercover police officers, and the court would normally be entitled to follow the unequivocal assertion by an undercover police officer that without an anonymity order he would not be prepared testify...

[31] In relation to police officers the normal problem is not quite the same as that envisaged by orders for witness anonymity which were considered at the trial of Davis.  These witnesses may well be known to the Defendant by a false identity, or are using a false identity.  Knowledge of their true identities can rarely be of any importance to the Defendant, who can advance whatever criticisms of the evidence, or indeed the conduct of the officers, while they continue to be known by their false identities.

...

[32] The need to protect many of these individuals against the exposure of their personal identities is obvious.  At the most dangerous level, undercover officers who have penetrated criminal associations can face death or very serious injuries.  They operate under assumed names and identities.  It is not fanciful to expect that extreme measures might be taken to discover their identity, not merely for revenge purposes, but to prevent their future use as witnesses, and to compromise or damage sensitive covert techniques or to discourage them or others from continuing with their activities (all of which serve a valuable public interest).  For their true identities to be revealed, or for them to be re-exposed to a Defendant, or his colleagues, or indeed to anyone else in court would often create a real risk to their own safety, and that of their colleagues.  In any event, their potential for future use in similar operations would be reduced, if not extinguished, itself harmful to the public interest."

Those are the words of the Lord Chief Justice in the case of Mayers.

20.      I am told that there is no reported case of witness anonymity in the Jersey Courts.  There may well be local reasons for that.  In any event the fact that it has not occurred before in this Island is a poor reason for me not adopting the course in the circumstances of the present case if I deem it appropriate to do so, and where the practice is already available in certain circumstances in England and in Europe.  As with other common law jurisdictions the Jersey law must be flexible and capable of developing to meet changes in public policy needs or other requirements.

21.      I scrutinise the effect of the proposed evidence in order to assess the fairness or otherwise of allowing it to be given anonymously.  First, and importantly, it is not the sole or decisive evidence against the defendants.  It does not directly incriminate them.  It is in stark contrast to the evidence given by the witnesses in the case of Davis.  It is evidence given by undercover officers of the kind referred to in the passages I have cited from Mayers.  The identity of the witnesses can be of no importance to the Defence and should be of no legitimate interest to them.  They give objective evidence of observations which are supported by other independent evidence and it is difficult to understand how knowledge of their identities could give any grounds for impugning their credibility, integrity or reliability.  This case has been running for over a year, but until now there has been no request from the Defence for the identities of the officers to be revealed nor any suggestion that their anonymity would create unfairness and prejudice to the Defence.  Moreover, having regard to the regrettable extent of drug trafficking between the Netherlands and this island of Jersey, and the insistence of the Dutch authorities that the officers identities should not be revealed, there are strong operational and public policy reasons for preserving their anonymity. 

22.      In conclusion I ask myself the question whether the admission of this evidence, from anonymous witnesses, is compatible with a fair trial.  Having regard to all the circumstances of this case, to which I have referred, I have no doubt that it is.  I have already referred to the provisions of Articles 66 and 76 and I have them well in mind when considering this part of the application.  It is in the interests of justice, in my view, to admit this evidence and the conditions of Article 66(2) are satisfied.  Equally, under Article 76 I conclude that the admissibility of the evidence would not so adversely affect the fairness of the proceedings that I ought not to admit it.  It is fair to admit it, having regard to all the circumstances. 

(Application by the Defence for leave to appeal).

23.      It seems to me that these are eminently matters for the exercise of my discretion which, as I have said, I have attempted to do conscientiously.  I do not regard it as being reasonably arguable that I have exercised my discretion in any wrongful way.  Therefore I refuse leave.

24.      The defendants are remanded on the same terms for a date to be fixed.

25.      Reporting restrictions continue to apply.

(Application regarding Items 12 and 13).

26.      I rule that the two final paragraphs must be removed together with all the other passages which I detailed yesterday on the redacted version.

(Application regarding admissibility of Item 4)

27.      I rule that it is admissible but that it is not to be used without my leave.  That will depend on how things go.

(Application from Mr Warren to appeal ruling on Item 4).

28.      I am not minded to grant your application. You are not prevented from renewing your application to the Court of Appeal, but if so you must do so promptly.

Authorities

Criminal Justice (International Co-operation)(Jersey) Law 2001.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

R v Glen Williams 97/7714W2.

R v Ryan Simmonds MacDonald {2008] EWCA Crim 2902.

Haywood v Sweden.

R v Davis [2008] App C 1128.

European Convention on Human Rights.

Criminal Evidence (Witness Anonymity) Act 2008.

R v Mayers, Glasgow and Others [2008] EWCA Crim 2989.