UKSC 48
On appeal from:  EWCA Crim 2552
R v Maxwell (Appellant)
DECISION GIVEN ON
17 November 2010
JUDGMENT GIVEN ON
20 JULY 2011
Heard on 19 and 20 July 2010
Patrick O'Connor QC
(Instructed by Harrison Bundey)
David Perry QC
(Instructed by Crown Prosecution Service)
"Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried"
Outline of the facts
Retrials following prosecutorial misconduct
"The law is settled. Weighing countervailing 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 the criminal proceedings to be stayed: Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett  1 AC 42 Ex parte Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex parte 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."
"The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely "pour encourager les autres".
"48. We are not unanimous on what should happen in cases of malpractice, ranging from serious breaches of PACE to fabricating a confession, where there is nevertheless other strong evidence of the defendant's guilt. Two of us think that if the pre-trial irregularity or defect is sufficiently serious materially to affect the trial but not to render the conviction unsafe, the Court of Appeal should retain the power to order a retrial or to quash the conviction depending on its view of the gravity of the defect. The rest of us believe that the Court of Appeal should not quash convictions on the grounds of pre-trial malpractice unless the court thinks that the conviction is or may be unsafe.
49. In the view of the majority, even if they believed that quashing the convictions of criminals was an appropriate way of punishing police malpractice, it would be naοve to suppose that this would have any practical effect on police behaviour. In any case it cannot in their view be morally right that a person who has been convicted on abundant other evidence and may be a danger to the public should walk free because of what may be a criminal offence by someone else. Such an offence should be separately prosecuted within the system. It is also essential, if confidence in the criminal justice system is to be maintained, that police officers involved in malpractice should be disciplined .."
Appellant's criticisms of the Court of Appeal's decision
"62. Grant is not a case in which, to use Lord Brown's words in Basdeo Panday, 'but for an abuse of executive power, he would never have been before the court at all.' Putting the misconduct to one side, the appellant could have a fair trial (and probably did). Whilst helpful to the appellants, it should be remembered that Grant involved, as Laws LJ said a deliberate violation of 'a fundamental condition on which the administration of justice as a whole rests'.
"There a good reasons why a retrial should not be ordered. They are:
(i) the nature and scale of the prosecutorial misconduct;
(ii) the fact that the misconduct infected both the trial and the first appeal;
(iii) the fact that the prosecution case was based more or less entirely on the evidence of Chapman and the appellants would not have been charged or tried in its absence;
(iv) the strong possibility that the trial would not have proceeded (being either aborted by the prosecution or stayed by the judge) if the circumstances of Chapman's treatment by the police had been made known to the prosecuting team;
(v) the circumstances in which Maxwell's admissions were made, namely:
(a) the first admission (to his solicitor) would not have been made had it not been for the conviction obtained by prosecutorial misconduct. Having been made, it would never have come to light had it not been for the fact that, due to prosecutorial misconduct, the appeal failed and a subsequent investigation by the CCRC was necessary, in the course of which Maxwell waived privilege;
(b) the admissions made subsequently would not have been made had it not been for the unsuccessful appeal and (in the case of admissions to the North Yorkshire Police) the CCRC investigation necessitated by the prosecutorial misconduct;
(vi) both appellants have served 12.5 years in prison, a longer term than they would receive if they were found guilty of manslaughter, the offence which Maxwell is admitting."
"Dear Mr Steele,
We met some time ago at armley prison when you came to eliminate me from enquiries into the death of isabel grey.
As you are no doubt aware I am currently serving a life sentence for the murder of Joe Smales and the robbery of Joe's brother Bert. I initially denied these offences, however I now fully admit my guilt.
I watched you on television last night and decided to write and offer any help that I can give you, in your Quest to protect the old and vulnerable I have no ulterior motives for doing this and want nothing in return.
If you could compile a detailed Questionaire I will willingly supply you with detailed answers.
"Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried."
In the course of a thoughtful and thorough reserved judgment given by Hooper LJ the Court of Appeal:
"reached the conclusion (not without difficulty) that the public interest in convicting those guilty of murder outweighs the public interest in maintaining the integrity of the criminal justice system. This was a shocking case and if there is new and compelling evidence untainted by the prosecutorial misconduct revealed by the findings of the North Yorkshire Police and the CCRC, we should order a new trial. In particular we bear in mind that the new and compelling evidence relied upon by the respondent as against Maxwell consists of admissions made to the North Yorkshire Police by Maxwell with the benefit of legal advice during the course of an investigation into the safety of his convictions and that Maxwell said to the police that he would like a retrial and that he would plead guilty to the robberies and manslaughter." (para 67)
The Court of Appeal accordingly ordered that the appellant be retried and meantime remain in custody. No such order was made in respect of Mansell (who had made no post-conviction admissions of guilt and against whom, therefore, there was no new and compelling evidence) and he was accordingly set free.
"May the Court of Appeal order a retrial having quashed a conviction on the grounds of serious executive or prosecutorial misconduct, and, if so, in what circumstances?"
In reality what the Court must now decide is whether, having regard to all the circumstances of this case, the Court of Appeal could properly reach their conclusion that the interests of justice require this appellant's retrial based substantially upon his post-conviction admissions of guilt.
The two robberies
The February 1998 trial and conviction
"Now, he knows what date he is due to be released and that that will happen whether or not he gives evidence in this case. He has got his date in the year 2000. That cannot be delayed beyond that time. He says he has nothing to gain by giving false evidence against the defendants." (Chapman was, in fact, released in August 1999.)
"The what's-in-it-for-him line was pursued and I will remind you again of it briefly . . . He says, 'There's nothing. I am putting myself at risk for the rest of my life.'
"He was then taken through the privileges that he had enjoyed as a supergrass, and what the wing was like. Well, there is no suggestion that he was accorded privileges that were any greater than those accorded to other supergrasses."
The 1999 appeal
The CCRC Report
". . . really glad you enjoyed 'the night'. Truth to tell I quite enjoyed it myself. Little bit of this, little bit of that. Variety, they say, is the spice of life. What a spicey night! Let's hope there is a second leg in March. I am demob happy now and disinclined to dip out on any good times that may be up for grabs. . . . BT [another officer] told me to tell you that if you were serious about a literary venture at some time in the future he can put you in touch with some top class author types who can assist in ghost writing."
Sometime later, Dunham having mentioned the brothel outing to the female police officer with whom Chapman was enjoying sexual relations, Chapman wrote to her apologising: "I was drunk and stoned on weed, they paraded a dozen beautiful women in front of me and said take your pick."
"North Yorkshire Police found that the information provided to the court at trial and appeal did not accurately reflect the financial benefits and rewards given to Mr Chapman by the police or his expectations when he gave evidence at the trial of Mr Maxwell and Mr Mansell."
The fact is that large sums had been expended on Chapman, far exceeding his entitlement under the rules governing the treatment of informants and prisoner witnesses. Luxury items had been purchased for him and substantial sums from time to time handed to him in cash (for example £475 on the occasion of the December 1996 brothel visit with DC Dunham, less than £7 remaining on Chapman's return to the police station at 1 a.m. the following morning). This expenditure, totalling several thousand pounds, was financed by claims on a variety of police funds, with no proper records, accounting, supervision or control and various steps taken to conceal the level of payments made. None of this was disclosed either at trial or on appeal.
"In the Commission's view those benefits may have acted as an inducement and their non-disclosure denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial.
The omission of [certain of these benefits] from Mr Chapman's custody records ensured that those records offered no hint of the reality of his treatment whilst in police custody. The circumstances in which Mr Chapman provided information to the police in the murder investigation were therefore obscured.
The failure to reveal what could reasonably have been considered inducements surrounding Mr Chapman's evidence left the prosecution unable to assess his reliability as a witness and precluded appropriate disclosure to the court and the defence. It also caused the trials involving Mr Chapman as a prosecution witness to proceed on the incorrect basis that he had not been the recipient of favours or privileges.
In contrast to the appearance of legitimacy in his treatment, the undisclosed information would have supported an argument that Mr Chapman's evidence against Mr Maxwell and Mr Mansell was tainted by a sustained catalogue of improper inducements and an ongoing expectation that he would be favourably treated in every aspect of his relationship with the police. Those representing Mr Maxwell and Mr Mansell were denied the opportunity to deploy this material in support of a tenable argument that the proceedings against them were an abuse of process and to have this issue determined by the court."
The appellant's post-conviction admissions
"To my great surprise Paul confessed that he and his brother did do the murder . . . He explained that at no stage did he ever anticipate any injury would be caused to Mr Smales. At the time of the murder, he was in fact inside the house, whilst his brother carried it out in the garden. . . . I told Paul that on the basis of what he had told me, I felt that he could have a possible appeal on the authority of R v English and R v Powell."
"accepts the guilty part he played but states the deceased did not die at his hands and indeed admits that he used as much violence on the victim who survived as his brother did on the victim who died."
In February and March 2000 the Home Office sponsored a research project into offences committed against the old and vulnerable by offenders pretending to be officials. In the course of this research, whilst Detective Chief Superintendent Steele of West Yorkshire Police was interviewing a number of convicted offenders, the appellant wrote to him on 9 February 2000 offering to assist the project and stating:
"As you are no doubt aware I am currently serving a life sentence for the murder of Joe Smales and the robbery of Joe's brother Bert. I initially denied these offences, however I now fully admit my guilt."
When the appellant was interviewed by Mr Steele and other officers on 2 March 2000, he admitted his involvement and explained how in relation to the October robbery he had used violence against Bert Smales whilst his brother had used violence against Joe.
"Maxwell admitted, for the first time outside confidential counselling, that he admitted the offence openly and despite finding it difficult to talk about, accepted culpability for the death of the victim. He claims that he did not attack the victim who died, but in no way tried to minimise his role in the offence saying that he planned the robbery and was co-perpetrator, so that made him just as guilty of the murder as his co-accused. This was a violent attack and Maxwell finally admits he attacked the surviving victim, probably more viciously than his co-defendant attacked the murder victim."
A prison report dated 23 May 2001 noted that the appellant continued to accept "responsibility for his crimes".
"Mr Maxwell told me he is ashamed of what he did and although he claims not to have assaulted Joe Smales he admits to assaulting his brother. He does not deny that his actions were instrumental in the death of Mr Smales and admits to planning the burglary and involving his brother in the crime. Mr Maxwell told me he is appealing the conviction, not because he does not accept responsibility for the death of Mr Smales but because he does not think he and his brother were given a fair trial. It is his hope he will be able to enter a guilty plea to manslaughter at a re-trial."
"I now admit the robberies of the Smales brothers in June and October of 1996. My brother was with me on both occasions. No one else was present. I was not involved in the death of Joe Smales and had no intention to cause serious injury to either of the brothers."
In a statement dated 23 September 2004 the appellant said: "I would like a retrial and I would plead guilty to robbery and manslaughter."
"In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. " (Lord Griffiths at pp 61-62)
"[T]he court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused." (Lord Lowry at p76 C-D)
"It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law." (Lord Lowry at p76 G)
"The law is settled. Weighing countervailing 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 the criminal proceedings to be stayed . . . The speeches in ex parte 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. . . . 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."
Just how that approach should apply in any particular entrapment case was further considered by the House of Lords in R v Looseley  1 WLR 2060 which decided that to lure, incite or pressurise a defendant into committing a crime which he would not otherwise have committed would be unfair and an abuse of process but not so if the law enforcement officer, behaving as an ordinary member of the public would behave, had merely given the defendant an unexceptional opportunity to commit a crime of which he had freely taken advantage. Although sometimes in such circumstances a stay is said to be on abuse of process grounds, Lord Hoffmann thought with Lord Griffiths in Bennett that the jurisdiction was more broadly and accurately described as "a jurisdiction to prevent abuse of executive power". (p2073E)
"It is a matter of crucial importance to the administration of justice that prosecution authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. . . . When inadequate disclosure is sought to be supported by dishonest prosecution evidence to a trial judge, this Court is unlikely to be slow to set aside pleas of guilty following such events, however strong the prosecution case might appear to be."
He then added, however, in the very next paragraph:
"In the ordinary way we would have ordered a retrial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. However, as the appellant has already served his sentence and it is nearly six years since the offence is alleged to have taken place, we make no such order, as it would not be in the interests of justice to do so."
Those passages in the judgment related specifically to Early's appeal; the other appellants' appeals, however, were similarly disposed of.
"True it is that nothing gained from the interception of solicitors' communications was used as or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court." (para 54)
"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." (para 56)
"We are quite clear that the deliberate interference with a detained suspect's right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers' unlawful conduct." (para 57)
It may be noted that the Court of Appeal later certified the following point of law of general public importance in the case:
"Where an accused person has been properly arrested and brought before the court but during the course of the investigation there is significant impropriety by some or all of the investigating officers in relation to the accused person, but the evidence that will be presented to the court is untainted by such impropriety so that the accused person can have a fair trial, when considering the interests of all parties, including the victim of the crime, is the greater public interest in having the accused person tried, it therefore being fair to try him, or in staying the indictment which is therefore a method of disciplining the investigating authority thereby overriding the rights of the victim?"
Whether the House of Lords then refused leave to appeal or the Crown chose not to pursue an appeal we have not been told. But I have to say that for my part I have the gravest doubts as to the correctness of the court's decision in Grant. True it is that Lord Taylor of Gosforth CJ had described legal professional privilege in R v Derby Magistrates' Court, Ex p B  AC 487, 507 as "much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests." But that is not to say that its every violation must result in a quashed conviction. The law against perjury may equally be described as fundamental to the whole administration of justice but no one has ever suggested that perjury by a prosecution witness (even a police officer) must in all circumstances, irrespective of whether it prejudices the defendant, necessarily preclude a defendant's conviction or, if discovered later, result in its quashing. Deeply regrettable though police perjury must always be, the law reports are replete with examples of convictions nonetheless being upheld on appeal on the basis that, the perjured evidence (sometimes in relation to purported confessions statements) aside, ample evidence remains to sustain the conviction's safety.
"It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place, but, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law."
In that case, however, there was no question of the appellant not having been properly before the court at all. As we said: "the quashing of his conviction restores the defendant to the position he was in before the unfair trial. Why should his success gain him immunity from what is conceded to be the position he now faces under the Court of Appeal's order: a fair trial upon charges properly brought?" We therefore upheld the order for a retrial.
"The courts would appear to have left the matter at a general level, requiring a determination to be made in particular cases of whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. Implicitly at least, this determination involves performing a 'balancing' test that takes into account such factors as the seriousness of any violation of the defendant's (or even a third party's) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged."