Reed, R. v [2003] EWCA Crim 2667 (16 October 2003)

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Cite as: [2003] EWCA Crim 2667

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		Neutral Citation Number: [2003] EWCA Crim 2667
		Case No: 2001/03615 W5

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NORWICH CROWN COURT
HHJ Paul Downes

Royal Courts of Justice
Strand, London, WC2A 2LL

16 October 2003

B e f o r e :

LORD JUSTICE RIX
MR JUSTICE DOUGLAS BROWN
and
Sir Richard TUCKER
____________________

Between:

	Regina	Respondent
	- and -
	Adrian REED	Appellant

____________________

Mr Robin Pearse-Wheatley and Mr Dominic D'Souza for the Appellant
Miss Maureen Baker for the Crown
Hearing dates : Thursday 19th June 2003
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Rix:

The appellant, Adrian Reed, was convicted on 25 May 2001 in the crown court at Norwich before HH Judge Paul Downes and a jury on six counts of conspiracy to supply controlled drugs and on 25 June 2001 was sentenced to a total of 11 years' imprisonment. His appeal against conviction, with leave of the single judge, was dismissed at the time of its hearing, and his renewed application for leave to appeal against sentence was also then refused. These are the court's reasons for those decisions.

Counts 1 and 2 related to conspiracies to supply respectively heroin and cocaine in the period from June to October 1999. On each of those two counts Reed received a sentence of 7 years imprisonment concurrent. On 15 October 1999 Reed was arrested and charged with substantive offences relating to the supply of heroin, cocaine, amphetamine and cannabis (not the subject of his present convictions). He was released on bail. It was the prosecution case that shortly thereafter he returned to his former activities. The other counts on which he was convicted thus relate to further or continuing conspiracies to supply in the period November 1999 to 4 May 2000, when he was again arrested. Counts 4, 5, and 6 related to heroin, cocaine and ecstasy respectively, and count 7 to amphetamine. He was sentenced to an additional 4 years imprisonment on each of counts 4/6 concurrently but consecutive to counts 1 and 2, and to two years imprisonment concurrent on count 7. Thus his total sentence was one of 11 years.

He was acquitted on count 3, which charged him with conspiracy in the earlier period to supply amphetamine. Other offences charging him with doing acts tending and intended to pervert the course of justice and threatening to kill (counts 8 to 11) were allowed to lie on the file.

The indictment charged a number of others apart from Reed, but ultimately only Aaron Whitmore and Andrew Van Kerro stood trial with him. Three other co-defendants pleaded guilty and gave evidence for the Crown, namely Clair Holman, Gary Blunden and Terry Mason.

Whitmore was convicted on counts 1, 2, 5, 6 and 7 and was sentenced to a total of 4½ years detention in a young offenders' institution: his sentence was made up of 3 years in respect of counts 1 and 2, and a further 18 months in respect of counts 5/7. He was only 17 at the time of the offences. Van Kerro was convicted on count 1 only and received a 2 year community rehabilitation order; he was acquitted on counts 4 and 5.

As for the three co-defendants who gave evidence for the Crown, Holman pleaded guilty to counts 1 and 2 and received a 2 year sentence. Blunden pleaded guilty, after a change of plea, to counts 1, 2, 4 and 5 and also received a sentence of 2 years imprisonment on each count concurrent. Mason pleaded guilty only to count 1 and was sentenced to 1 year detention in a young offenders' institution.

Other co-defendants who pleaded guilty but did not give evidence for the Crown were Sarah Hammond, David Richardson, and Danny Exley. Hammond pleaded guilty to count 6 and also to another count of supplying heroin and was placed on probation for 2 years; Richardson pleaded guilty to count 4 and received 2 years imprisonment; Exley pleaded guilty to counts 1, 2, 4 and 5 and was sentenced to 18 months on each concurrent.

The Crown's case against Reed was that he was the ringleader of the others, and set out to control the supply of class A and B drugs in the Ramsay area of Cambridgeshire. He purchased drugs, and set up other defendants as dealers by supplying them. He started by giving drugs to those who were heavily dependent on them, and then maintained control of his dealers by exploiting their vulnerability, allowing them to keep a proportion of the drugs for their own use and also frequently resorting to violence. He got Whitmore and Van Kerro to make their homes available for weighing and dividing the larger quantities of drugs. His arrest in October 1999 did not curtail his activities.

In summary, three co-defendants, as well as other witnesses who were users or possibly even dealers, gave evidence against Reed. Each was cross-examined as to what inducements, if any, even immunity, they had been offered by the police to obtain their co-operation, and gave various answers which we will review below. An application was made on behalf of Reed (and his two co-defendants standing trial with him) just before the trial commenced, to stay the prosecution as an abuse of process, alternatively to exclude such evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE). The judge rejected that application. In his sentencing of the three co-defendants who had given evidence for the prosecution, he gave credit to them for their co-operation as well as for their pleas.

There is essentially a single ground of appeal, namely that in breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) Reed did not have a fair trial: in that although the critical evidence given against him at trial all came from witnesses who were either co-defendants or to a greater or lesser extent accomplices or otherwise vulnerable to inducements or threats from the police, the police lacked proper and transparent procedures to regulate the manner in which they dealt with such witnesses. As Mr Robin Pearse-Wheatley, who appeared for Reed, put it in his skeleton argument: "The issue in this case is that there are no rules and as a consequence the defendant has been prejudiced". Because the process was unregulated and unrecorded, it was not "in accordance with law", as required by article 6. Mr Pearse-Wheatley also submitted: "The real issue is not those inducements which could [be] and were identified. It was the fact that no record whatsoever was kept of the approach to the witnesses."

The grounds of appeal make reference to article 8 of the Convention as well; but no separate argument under article 8 was developed in oral submissions. In effect Mr Pearse-Wheatley accepted that article 8 was either unnecessary to his argument, if he was correct under article 6, or would not avail him, if he failed under article 6.

Similarly, the grounds of appeal also contained a complaint that the judge failed to give an adequate direction to the jury concerning the significance of the absence of any record of what the police said to potential prosecution witnesses prior to their decision to make statements. However, this ground of appeal was abandoned in oral submissions. We shall refer below to the directions which the judge did give.

Article 6 of the Convention

Article 6 provides as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty in accordance with law.

3. Everyone charged with a criminal offence has the following minimal rights:

a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b) to have adequate time and facilities for the preparation of his defence;

c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…"

Mr Pearse-Wheatley submits that the absence of rules for regulating the procedure for approaching such witnesses, and for recording and disclosing discussions between them and the police, meant that the trial was not "in accordance with law" within article 6(2); and that the absence of disclosure, which necessarily follows from the absence of any record, at one and the same time deprived Reed of information about "the nature and cause of the accusation against him", of "adequate facilities for the preparation of [his] defence, and forestalled the ability "to examine…witnesses… under the same conditions as witnesses against him", all in breach of article 6(3)(a), (b) and (d) respectively.

The prosecution case against Reed

The Crown's case at trial was that Reed was the principal offender and supplier of drugs, both to co-defendants and to other witnesses for the prosecution. He regularly purchased drugs in the Luton area and set up other defendants as dealers by supplying them with individual packaged quantities of drugs, mainly heroin and cocaine. He began by giving drugs free to users until they became heavily dependent on them. He then exploited their vulnerability by getting them to deal for him. He maintained control over them by supplying drug needs and cowing them by violence. He was not himself a drug abuser, but exploited those who were. The profits flowed to him, and he sought to disguise the proceeds of his drug dealing under the cloak of trading cars.

He sought to distance himself from the drugs by using associates and girlfriends to work for him. He used the homes of the co-defendants who stood trial with him, Whitmore and Van Kerro, for the weighing and dividing of the larger supplies of drugs. Whitmore was described as his "right hand man". He used girlfriends like Holman and Hammond as dealers and their homes as places where the paraphernalia of dealing were kept. He used others still, like Blunden, as his driver/courier, and the witnesses Carl Furnell and Paul Joy, to hire a Vauxhall Vectra which he used in his operations.

The major events within the two periods of the conspiracies of which evidence was given were as follows. On 15 October 1999 the police executed a search warrant at the home of Holman. She was in the bedroom with Reed, who had over £1000 cash in his pockets. In the bedroom wraps of cocaine and heroin were found. In the lounge were Blunden and Exley. Cannabis, and wraps, a bong, syringes and spoons with traces of cocaine were also found at the home. Parked outside was the Vauxhall Vectra. In the glovebox was found a spoon with traces of heroin. The total value of the drugs found was in the region of £1500/£2000. All four were arrested. In interview Reed said that he was just visiting a friend. He accepted that he had been driven to Holman's home in the Vectra. Holman in her interview said she was sexually involved with Reed. Reed and Holman were charged with substantive drug charges and released on bail.

On 20 October 1999 police executed a search warrant at Whitmore's home. Some cannabis and cannabis resin were found, but more significantly so was a carrier bag containing scales showing traces of cocaine and amphetamine, electronic scales showing traces of cocaine, a spoon showing traces of heroin, and a leaflet carrying Reed's fingerprint. In interview Whitmore said that the cannabis was his and that he was looking after the drugs paraphernalia for a dealer whom he refused to name (but insisted was not Reed).

These raids brought the first period of conspiracy (counts 1 to 3) to a close. The significance of these finds was only later contextualised by the evidence of Holman and others. In about December 1999, whilst remanded to Holloway (for a breach of bail), Holman was approached by another inmate who relayed threats of violence from Reed in case she was thinking of giving Queen's evidence.

In the second period of conspiracy Reed continued to work with Whitmore, Van Kerro, Blunden and Exley and now recruited Richardson. From late December 1999 he formed a sexual relationship with Hammond, who became one of his dealers.

On 20 March 2000 there was a police car chase as a result of which Blunden was arrested and found in possession of 54 grams of heroin of 57% purity. He had been driving in a Maestro in tandem with a Vauxhall Brava pickup, the two occupants of which escaped in another car. One of those two occupants was identified by police as Reed, and Reed subsequently admitted that he was indeed present. Reed's and Blunden's fingerprints were found in the Brava. Blunden had thrown the drugs out of the window in an attempt to escape detection, but they had been recovered by the police.

By 5 April 2000 Holman, now at large, surrendered herself and made a full confession implicating Reed and others for their participation in the conspiracies. Among others whom she implicated was Mason, who was arrested on 14 April 2000 and in interview admitted his part. He then made a witness statement describing the role of Reed and others in the conspiracies. Next to be arrested, on 27 April 2000, were Whitmore and Blunden. Both denied any involvement in drug dealing.

On 4 May 2000 Reed was arrested, and Hammond too. Cannabis and amphetamine were found in the caravan where they had been spending time together. At the police station during his booking process Reed made threats to kill the principal investigating officers, DC Ramsay and DC Peters.

Reed was interviewed during the following days. He denied any involvement in drug dealing and at that time specifically denied being one of the two occupants of the Brava who had made off from the scene of the car chase of 20 March 2000. He denied making threats to Holman or the investigating officers. Hammond also denied any involvement by herself or Reed in drug dealing.

On 10 May 2000 a search warrant was executed at Van Kerro's home. Traces of heroin and cocaine were found on a mirror. He accepted that his house was used for dealing, by people he would not identify but who had threatened him. He denied being a dealer for Reed.

Between 15 May and 22 June 2000 other witnesses came forward who were prepared to give evidence as to the activities of Reed and others.

The prosecution sought to prove its case with the following evidence. Apart from the police, there were ten significant witnesses, of whom the most important were the three co-defendants, Holman, Blunden and Mason.

Holman was the first witness to give evidence. She told how she had met Reed through Van Kerro, and how Reed had asked her to sell drugs for him in return for her own personal supply. At first she received her drugs already cut and packaged, but after a while she did her own cutting and bagging. Once she went with Reed to Luton where he met an Asian man and afterwards he showed her a bag with 2 kilos of heroin. She sold both heroin and cocaine for him.

Mason next spoke of how Reed had become his supplier of heroin by offering it more cheaply, but on terms that he also became a dealer for him. He became Reed's driver to pay off his debts, using the Vectra which he had got a friend (Joy) to hire for Reed. He had driven Reed to Luton, where Reed had obtained from an Asian packages in exchange for money: on one occasion he saw that one package contained heroin and the other cocaine. Holman was his "right hand man".

Blunden was another heroin addict who got his drugs from Reed and became his courier. Reed would drop off heroin and cocaine from time to time at Van Kerro's home, where Van Kerro, Reed and Whitmore would cut and bag it. Reed would also cut and bag at Whitmore's home. During a period when he, Blunden, was staying at Holman's home Reed would come every day. He too shared trips with Reed to buy drugs in Luton. He had been part of the car chase on 20 March 2000: he was in one car, and Reed in another. Reed asked him to take the drugs saying that if the police came on the scene he would get in between the police and Blunden's car: but in the event Blunden was caught and Reed made off.

In addition to these three co-defendants who had pleaded guilty and gave evidence for the prosecution, the seven other non-police witnesses were Danny Marsden, Jacqueline Seabrook, Shelley Timmins, Glen Hayden, Aimee Young, Carl Furnell and Paul Joy. Mr Pearse-Whitley submitted that these witnesses were vulnerable as drug users or possibly even dealers and were given at any rate de facto or implied immunity in return for their assistance to the police. None of them was prosecuted.

Marsden was a drug user. He too accompanied Reed in the Vectra on a visit to Luton where large amounts of money were handed over to an Asian man. He drove Reed about in the Vectra. He saw Reed, Whitmore and Holman weighing out heroin and crack cocaine. He refused to be a "gofer" for Reed although he owed him money, and as a result was beaten up by Reed and two others with a baseball bat. He obviously had no love for Reed.

Seabrook was Marsden's girlfriend. She was not a drug user, but had suspicions that Marsden had taken to dealing. She recalled an incident in February 2000 when Reed, together with Hammond, called at their home, looking for Marsden and threatening to smash the place up: he did smash car windows and punched the fridge. Later Marsden returned home black and blue from a beating.

Timmins was a user of ecstasy and a friend of Hammond, and shared her home. She spoke of Hammond dealing (speed, ecstasy and amphetamine) in the presence of Reed and Whitmore. Hammond used to pass Reed cash of up to £1000 at a time. She was present when, after Blunden's release following the car chase, Reed spoke to him on the telephone and threatened him with trouble if he grassed.

Hayden bought ecstasy and speed from Hammond and Reed. One day Reed and Whitmore called at his flat: after Reed left he found Whitmore cutting crack in his kitchen. He was told to mind his own business. He got into debt to Reed and was threatened by him. He denied dealing himself, other than sharing drugs with friends.

Young was Hayden's girlfriend. She was not herself a user of drugs, but she said Hayden took heroin, crack, speed, ecstasy and cannabis. She also spoke of the incident when Whitmore was cutting crack cocaine in the kitchen. She saw Whitmore with Reed together at Hayden's flat on several occasions.

Furnell used amphetamine, ecstasy and cannabis and bought his drugs from Reed at Hammond's flat. Once when he was late in payment Reed attacked him with punches to the head. He had never been a dealer.

Finally, Joy gave evidence about the hiring of the Vectra. He was asked to hire it for Reed, for one week, in return for £50. He did so, and Reed drove the car away. As it was, Reed kept the car for week after week.

The police evidence covered the police searches and the car chase. But of particular importance for present purposes was the evidence DC Ramsay and DC Peters gave and the cross-examination they faced regarding the obtaining of prosecution evidence from the witnesses reviewed above. We will return to that below.

The defence case

Reed gave evidence. He had never been convicted for a drugs offence. He denied the allegations against him. After the collapse of a business of reconditioning scaffolding (which he had carried on with Blunden and Richardson) he took to car dealing. He often had £1000 cash on him at a time, for the purpose of such dealing. He used addicts as a source of cheap labour, for instance he was disqualified from driving and needed drivers. He accepted that on 20 March 2000 he was in the Brava, and that he had lied in interview about that, but he had not been to Luton. At some point he had noticed Blunden in a car behind them, and the police, who chased Blunden. He had left because he was disqualified from driving, but he did not hide from the police. He had lied because he did not want to get involved in the drugs thrown out of the window, as he had nothing to do with it. He had no idea how his fingerprint came to be on the leaflet in the carrier bag found in Whitmore's home. As for the Vectra and visits to Luton, he denied hiring it, saying that the £170 per week cost of it was paid by Joy out of the proceeds of burglary. It was just a coincidence that he had been said to have been seen in the car over and over again. He had not received cash from Holman, or harmed or threatened anyone. It was just a terrible coincidence that all the witnesses spoke of him as a drugs dealer: the police had induced them to tell lies.

Whitmore and Van Kerro gave evidence to similar effect, viz denying that Reed had had any part to play in any dealing.

The question of inducements from the police and "advantage" to witnesses

Each witness was cross-examined as to how they had come to give their statements to the police and as to what if any advantage they had been promised in return for their co-operation. Moreover, in part as a result of an application made at a directions hearing on 18 April 2001, the prosecution made full disclosure of all material in its possession relating to that subject, including all transcripts of any interview, witness statements, custody records, rough notes, police notebooks, and antecedents.

It is an essential element in Mr Pearse-Wheatley's submissions that this disclosure was inadequate albeit not because of anything held back by way of defective disclosure but because no proper record of preliminary conversations had been kept in the first place, thus rendering the obligation of disclosure ineffective. However, the following material was revealed by this disclosure, and Mr Pearse-Wheatley submits that as far as it goes such material demonstrates the extent of what had been swept under the carpet by the absence of record.

Thus the co-defendant Blunden was interviewed on 8 August 2000 and the transcript shows the record as follows:

"GB: If I go against Reed how much am I going to get off my sentence?

352 [ie DC Ramsay]: A lot.

GB: How much.

352: You are looking at a third off if you plead guilty, and another third for giving evidence…

GB: If you can arrange for the prosecution barrister to liaise with my barrister that I'm going to get two thirds off my sentence…The very least I propose is to plead guilty. I'll make a full decision after the mention hearing. I am concerned about my welfare if I do give a statement. I need to discuss this fully with my legal representative.

352: All this is subject to the advice you take and what we take from barristers and solicitors and what ruling the judge may make at trial. If you do become a witness there are safeguards we can take to ensure your wellbeing and welfare."

Blunden refused to sign the record.

This dialogue had a history because as soon as it came to the notice of Ms Maureen Baker, prosecution counsel at trial and again on this appeal, she spoke directly to Blunden's counsel to correct the over-optimistic estimate given by DC Ramsay at that interview. In the event, Blunden indicated his guilty plea on 29 September 2000, after full advice from his counsel, and made his witness statement on 4 October 2000.

Mr Pearse-Wheatley submitted that this record of the Blunden interview was "the most revealing evidence" of all, because it was the only record of dialogue between the police and any of the witnesses who made statements. It is true that it is the only contemporaneous record, but disclosure also revealed a statement dated 9 December 2000 made by DC Gill (who had also been present at the Blunden interview) concerning a number of matters, including a conversation with one David Woolard on 21 November 2000 at Wellingborough prison. Woolard was a possible witness on another Indictment, but did not become a witness on this Indictment. The statement records their conversation:

"342 [ie DC Gill]: I am investigating a case of conspiracy to supply class A drugs involving Adrian REED and other people in Ramsay. Now on 28^th July this year you sent £40 to Jade WITTEN a person involved in our Conspiracy. Do you remember that?

WOOLARD: Yes

342: What was that for?

WOOLARD: A pair of trainers…

342: Now there are two way[s] of dealing with this as far as you are concerned. Either you can provide us with a Statement or you may be reported for conspiracy. Are you willing to provide a Statement?

WOOLARD: Yes.

"342: OK."

The statement then continued:

"After some minutes and whilst preparing paperwork WOOLARD stood up and said: "Hold on a minute. I wanna speak to my solicitor", with that he stormed out of the room."

At trial, the following evidence was given on the question of inducements and advantage.

Holman: It was suggested to her that she was giving her evidence "for utterly selfish reasons", and that she had blamed Reed in order to obtain bail. She denied that and said that her mother had advised her to tell the truth, and that was what she had done. When it was suggested to her that she was told that she would receive a discount of one third for giving evidence for the Crown, she said that the police had told her nothing of the kind, that it was her mother who had contacted the police and that when she met DC Peters she had her solicitor with her. She had understood that she might get out of prison sooner for her co-operation, but on the other hand she would have to uproot herself from her present home and move elsewhere: as to that, nothing had been arranged for her, although the police had said they might ring the council to let them know of her circumstances. The judge summed up this evidence, concluding – "it is fair to say that she no doubt expected to get a benefit as far as sentence is concerned in relation to giving evidence."

Mason: He was cross-examined on the basis that the police had persuaded him to give a statement, since all they wanted was evidence against Reed. He denied that, saying that he had had enough of the lifestyle he was living and pointing out that it had been his own solicitor who had advised him that if he admitted matters he could try for bail. (He did obtain bail, but breached it and was remanded in custody.) He said that the further decision to give evidence for the Crown was his own: "No, I just wanted to admit it. No one has persuaded me. It was my own decision". It was his solicitor, not the police, who advised him of the prospect of a reduction in sentence for giving evidence for the Crown. The judge commented:

"…you will have to make up your mind how you deal with it and what reliance you can put on his evidence. Wherever someone hopes for an advantage in terms of evidence you will obviously think it wise to look for supporting material, but if you are convinced that any particular witness, even one who is advantaged is telling the truth you can rely on that evidence without more, but it is wise, obviously to look for support."

Blunden: He also said that he told his solicitor to contact the police (about giving evidence against Reed). He said:

"I've given this evidence to avoid getting a heavier sentence than I deserve. It was my decision to contact the police. I was visited by the police after I asked my barrister to contact the police. DC Ramsay and DC Gill came to see me. I wanted to be clear there would be precautions. They told me I'd get a slight discount for giving evidence. I've came here to give evidence and now I'll have to look over my shoulder for the rest of my life…If I was going to put my cards on the table, I'd got to do it properly. It was a hard decision to make."

The judge said this in his summing up:

"What is said by the defence about Mr Blunden is that he hopes for a discount in his sentence. Indeed he has been told, because you will recall that it was Mr Blunden to whom Mr Ramsay said that it would be a third and a third, so to speak, although the police officers, as we will look in a minute, corrected that before long. Certainly I think before a statement was actually made. It is said that he was involved in dishonesty. He has been heavily involved in this offending and indeed he has pleaded guilty to being involved in this offending. You will decide obviously what weight you put on his evidence, but it is right to say that you will exercise great care when looking at Mr Blunden's evidence. He is perhaps a particular case where you will want to look for supporting evidence…"

Marsden: He accepted that the police had contacted him, through his mother, but ascribed his willingness to give evidence to the beating he had received from Reed. "I'm getting nothing out of it. I'm doing it because I feel justice should be done. Have you ever had a bat around your head?…Q. I want to know what else persuaded you? A. The baseball bat." It was suggested that he might be worried about charges being brought in relation to his past possession of drugs, but he denied any persuasion and said he was off drugs. The judge commented:

"If you take the view that he is in some way advantaged then you will look for support. If you take the view that he is not and there is no prospect now of anything being done against Mr Marsden, so to speak, given that he is out of the area and off drugs you will then come to whatever conclusion you think right about his evidence."

Seabrook: She was Marsden's girlfriend. She was not a drug user and it was not suggested that she was suspected of any offending. Even so, she was cross-examined on the basis that she had been induced by the police to make her statement. She said that she wanted to get out of Ramsay and had already applied for an exchange of homes, accepted that the police had said that the two of them would be moved from the area, but denied any inducement or that she had made her statement just to get relocated. While Marsden would not normally assist the police, she would. The judge commented:

"If you decide that her account is the truth then you will have to decide whether she is a lady who has any real advantage, whether the police offering to confirm her position with the housing authority amounts to an advantage or not is a matter for you to say: whether there is any real advantage and whether her evidence can be supporting material for what Danny Marsden says."

Timmins: Although she had been a drug user, she said that when she was approached by the police in May 2000 she had been getting away from drugs and had not been offered any advantage or persuasion to make her statement. She was interviewed without a solicitor, but had no desire for one. It was only after she had made her statement that she became worried about the possibility of threats and was reassured by the police that she would be offered help if any threats materialised. They did not. Again the judge commented that the jury should look for supporting evidence unless they were sure that there was no advantage

Hayden: This witness spoke of "duress" and being under pressure from the police, of having "no real choice"…"My parents had no idea the pressure the police put me under. I was 19". He also said there was a "deal with Angelika" (ie DC Peters) that he would not be charged if he helped the police with their enquiries. This was evidence much relied on by the defence at trial and again on this appeal. Hayden was a potentially vulnerable witness. He had convictions for burglary and driving with excess alcohol, as well as three cautions (for theft and carrying a knife). He abused drugs, but denied being a dealer to pay for his own supply. He gave evidence about Whitmore cutting crack in his kitchen and said he was worried about ending up in the dock with others because of the use of his house for taking and cutting drugs. It was also suggested that he was vulnerable because of his relationship with a fourteen year girl. The totality of his evidence about motivation, however, was equivocal. He said more than once that he gave his statement of his own free will, and that he was not persuaded to make it. It was rather his situation: he felt "under a little bit of pressure" because he was up to his ears in drugs. No one said: "Make a statement or we charge you"; rather "You don't have to give a statement, but it would be better if you did". As for his relationship with the girl, that had nothing to do with his making a statement. His parents or one or other of them had been with him both before and during the making of his statement, although no solicitor was present. The judge went through all this material with care, and ended with his usual direction that a prospect of advantage to the witness should lead the jury to treat his evidence with caution.

Young: Like Seabrook, she was a girlfriend (of Hayden), not a drug user herself, and not suspected of any offence. She was living at Hayden's parents' home and was there when the police called to speak to him. She was willing to give a statement. She was asked if she wanted her parents to be present, but declined the offer. Hayden's mother was with her when she made her statement. She said "Glen did not seem very worried about making a statement and nor was I". She said no advantage was offered her and no persuasion brought to bear on her. The judge said that the jury could rely on her evidence if they were sure that she was a truthful witness and there was no advantage to her in making it.

Furnell: The police approached Furnell for a statement about the assault on him by Reed. He was not concerned about being in trouble for possession of drugs and said that he met with neither persuasion nor advantage. The judge said: "Again, members of the jury, you will decide whether he has any advantage and whether you need to look for support or not."

Joy: He was asked why he had given his statement and said:

"OK, do you want to hear this? He promised it would be a week's rental and I thought the risk worth taking for £50…Then he kept it for 3 to 4 months. All the time I was more and more worried they'd come knocking on my door. I thought fuck you then. I take my own wrongdoing on the chin. I'm happy to do that, but this is not mine."

He also said that he gave his statement before he was "busted for burglaries", ie the two matters were not related.

DC Peters ("Angelika") was cross-examined and denied any coercion of witnesses and also said that no immunity had been given to any witness. Holman was bailed against police objection but in the end she asked to be remanded in custody for her own protection. She was advised by her own solicitors. The police consulted the CPS about making use of her as a Crown witness. DC Peters was of course asked about the interview with Blunden at which she had been present, and she pointed out that it had been made the subject of a record. The reference to a discount of two lots of one-third was an honest mistake and had been corrected. He had decided to make a statement because he had been advised by his own lawyers about it. As for Seabrook, she said that no offer to help was made until long after her statement had been given (which confirmed Seabrook's own evidence). All other witnesses checked with their solicitors before signing any statements. Young had had an appropriate adult of her own choice in attendance. If she was cross-examined about Hayden's evidence (about pressure and a "deal"), the passage does not appear to have been mentioned in the judge's summing-up.

DC Ramsay said that it was Blunden's own lawyers who had taken the initiative and asked him to go and see him. As for any relationship between Hayden and Young, he knew that they were boyfriend and girlfriend, but not that they were living together.

In sum, every witness was cross-examined in relation to the taking of his or her statement, and gave evidence as to whether the initial approach had come from the police or from themselves, as to the circumstances of their interview, as to the motivation for their statement, and as to the existence of any persuasion or pressure of inducement or advantage or threat, express or implied. Each witness spoke for himself or herself. The combination of all this evidence must have given the jury a shrewd insight into the realities of the case and as to whether the witness was being candid or not about their motivation. The example of Blunden, with its written record of a mistake, subsequently corrected, and the further example of Hayden, who gave oral testimony, however equivocal, of how he regarded the circumstances of his own interview with the police, may have been particularly helpful to the jury. Mr Pearse-Wheatley relied on these examples as demonstrating what had otherwise been swept as it were under the carpet; whereas Miss Baker also relied on them as showing that where there was any real matter for investigation, a combination of proper record-keeping, disclosure and cross-examination was well able to lay the situation bare. The judge's view was that ultimately it would be for the jury, with the assistance of his directions, and with the added protection of his consideration of the fairness of the proceedings, to consider where evidence and submission concerning these matters took them in their deliberations. In this connection it is necessary next to have regard to how the judge dealt with Mr Pearse-Wheatley's applications to stay the prosecution as an abuse of process or else to exclude the evidence of these witnesses under section 78.

The application and the ruling

Subject to the fact that the application was heard prior to the evidence at trial, the competing arguments then traversed the same ground as was again canvassed on this appeal. In the conclusions of his ruling the judge began by acknowledging that –

"This is a case in which the primary if not the only evidence is from witnesses whose evidence is that either of accomplice or at least possibly "tainted" in the sense of having something to gain from giving evidence."

Nevertheless, he continued as follows:

"I am assured by prosecuting counsel that all available material has been disclosed. This is not an unusual feature of cases involving the supply of drugs which is regarded as serious crime, and is sometimes a necessary course in order to combat such serious crime. Domestic law regards such evidence as admissible subject to safeguards provided by statute, and to the powers of the courts in controlling the trial.

"It will be open to the defence to cross-examine fully as to motives of witnesses, and the summing-up will contain established directions as to how the jury should approach the evidence of tainted witnesses. The prosecution are under a duty to continue to consider disclosure if matters not presently relevant should become relevant.

"In addition, since the evidence has not yet been heard, it will be open to the defence to raise objections to evidence and to make submissions in due course as to whether the case should continue in the event of the court taking the view that the evidence is unsafe.

"In my judgment these matters are for the domestic law to decide, always bearing in mind that any interference with the rights of a citizen must be proportionate to the reason for such interference. In this case, at this stage of the trial the gravity of the alleged offences is such that prima facie the interference is proportionate, and any risk to the defendants of injustice can be regulated by the trial process and by domestic law. I am satisfied that there has been nothing done which is contrary to law on the face of the papers, and nothing done which required authority in the absence of such authority. Prima facie therefore, decisions which have been made, have been according to law. The summary of findings in Baragiola is that (a) article 6 does not lay down rules of admissibility of evidence, and (b) that the evidence of a co-defendant as a basis of a case does not create an unfair trial because of the opportunity to challenge that evidence."

Accordingly the judge rejected the submission that pursuant to the Convention the cases should be stayed or the evidence excluded under section 78 of PACE. There was no further application or submission to him during the trial to renew the Convention challenge in the light of the evidence elicited from the witnesses in the course of the proceedings.

The summing-up

We have referred above to the repeated comments made by the judge in relation to the evidence of individual witnesses. We mention now the general directions given by the judge, as to which no complaint is pursued on this appeal.

First, the judge gave a direction to the jury that they should disregard the fact that some of the co-accused had pleaded guilty. It was something which they inevitably had to learn, but they should not hold it against the defendants at trial.

There was a standard direction about lies, for instance the lie that Reed had denied travelling in the Brava.

The judge dealt with the suggestion made on behalf of the defence that the police had adopted unorthodox or unusual methods in obtaining the statements from witnesses. He reminded them that the only evidence in relation to that suggestion came from the police witnesses themselves, and was to the effect that there was nothing unusual or unorthodox in such methodology.

As to the suggestion of immunity from prosecution, the judge said this:

"It is right to say this, and this was raised, I think by Mr Pearse-Wheatley in his final address to you, that no police officer has power to give immunity to a witness, only the Director of Public Prosecutions can deal with that and that has to be done in a very formal way. Of course, the prosecution say in this case nobody has been given immunity. The police, as I think you were told either by Miss Peters or DC Ramsay, the police do have discretion about some charges, whether or not to pursue charges. A custody sergeant, I think, at the police station can decide whether in, for instance, a case of simple possession of drugs whether to deal with a charge or not. Anything more serious will probably be dealt with by the Crown Prosecution Service. But there is no question, according to the prosecution, in this case of anyone being given immunity and police officers could not give it."

The judge therefore left it to the jury to give effect to their own views as to the submission that, contrary to the prosecution, immunities had been vouchsafed to the witnesses.

Next, the judge spoke of the special need for caution where, as in this case, there were witnesses who were either implicated as accomplices or at any rate had any particular reason or motive to try and spread the blame to involve other people, or had an axe to grind for some advantage or benefit for themselves:

"then you need to take particular care when considering their evidence. You may think that that is not only good law it is also common sense. Where there is a prospect of an advantage in the sense of a witness who themselves has pleaded guilty and is involved in the case and is likely to ask at least for a lighter sentence in giving evidence then, clearly, you must exercise great caution in dealing with their evidence. In this case there are people who have made no bones about it, that they, for whatever reason, expect that they may receive a lighter sentence, because they have given evidence. They have given their motives as to why they have given evidence, but there is undoubtedly in some of the cases that possibility, that possibility of advantage. There are certain types of advantage that you must be alert to identify and guard against…

"It may be that in some cases the warning will be stronger than others. It is perfectly open to you to act on the evidence of a witness whose evidence you are sure is truthful. Whether or not they have an advantage or whether or not they are a party to the charge or whether they have some other sort of advantage, provided you have taken account of the warnings. So in other words even where the warning is a strong one, if you are sure that particular witness is telling the truth then you can act on their evidence in spite of the fact that there is a possibility of advantage…

It is wise when there is a possibility of advantage…to look for supporting material. In other words, other evidence, not coming from that particular witness, but which supports that witness. That can come in several forms. It can come in the form of another witness who themselves have the possibility of an advantage and provided that you are sure they are telling the truth about it…Secondly, there may, of course, be witnesses or a witness whose evidence you are quite sure has no ulterior motive at all. Provided you are sure they are telling the truth then that obviously would be useful supporting material…"

The judge went on to give the jury some examples of matters that could be capable of supporting material: for instance, the possibility that it was not a mere coincidence that Reed in the Brava was involved in the police chase with the other vehicle being driven by Blunden; or the use of the hired Vectra, if the jury were sure that that car was hired for and used by Reed; or the presence of Reed's fingerprint on the leaflet in the carrier bag found in Whitmore's home.

The Strasbourg authorities

In considering the law we begin with the leading Strasbourg authorities to which we have been referred.

In X v. UK (1976) 7 DR 115, where complaint was made of the evidence of an accomplice who had been granted immunity from prosecution, the Commission held the application to be manifestly ill-founded. The prosecution concerned a series of armed robberies; one of those arrested on suspicion of being involved gave Queen's evidence. The background of the arrangement for an immunity reached with the Director of Public Prosecutions can also be found in R v. Turner 61 Cr App R 67. The Commission considered the circumstances of the trial as a whole and found that the applicant had a fair hearing. Among the factors stressed by the Commission were that the agreement with the DPP had been disclosed to the defence and to the jury; there was in fact no objection to the calling of the accomplice; the applicant gave no evidence himself and called no witnesses; and the judge made it plain to the jury that they could not convict unless they were satisfied that the accomplice was to be believed. The Commission concluded (at 118):

"The Commission observes in this connection that the use at the trial of evidence obtained from an accomplice by granting him immunity from prosecution may put in question the fairness of the hearing granted to an accused person and thus raise an issue under Art. 6(1) of the Convention.

"In the present case, however, the manner in which the evidence given by S. was obtained was openly discussed with counsel for the defence and before the jury. Furthermore the Court of Appeal [in Turner] examined carefully whether due account was taken of these circumstances in the assessment of the evidence and whether there was corroboration.

"The Commission concludes, therefore, that an examination of the trial as a whole does not disclose any appearance of a violation of Art. 6(1) of the Convention."

Mr Pearse-Wheatley relied on the Commission's recognition that grant of immunity "may put in question the fairness of the hearing" and submitted that this arose with greater force in the present case where grants of immunity were arrived at implicitly or in a de facto manner which defied proper investigation.

Malone v. UK (1984) 7 EHRR 14 concerned article 8 in the context of telephone tapping in the course of criminal investigations. The European Court of Human Rights (ECtHR) held that there had been a breach of article 8 because the state's powers to carry out telephone tapping were not properly defined and thus could not be said to be "in accordance with law". The case was referred to by Mr Pearse-Wheatley for its general principles as to the content of that expression. Thus the law must be adequately accessible and sufficiently precise to have the quality of being compatible with the rule of law. The ECtHR said (at para 67):

"the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence."

Mr Pearse-Wheatley sought to apply this approach to what he submitted were the obscure and unregulated circumstances in which statements were obtained from witnesses who were potentially vulnerable to arrest and prosecution.

Edwards v. UK (1992) 15 EHRR 417 concerned the consequences of non-disclosure by the prosecution. The court of appeal had concluded that the conviction was safe despite the defect in disclosure. The ECtHR concluded that upon consideration of the proceedings as a whole, including those in this court, there had been no breach of article 6.

Baragiola v. Switzerland (1993) [reference please] is a decision of the Commission denying the application. Baragiola was a Swiss national who had participated in terrorist activities in Italy. He was sentenced in absentia to life imprisonment by a court in Rome. He was subsequently arrested in Switzerland and tried in Lugano for his crimes in Italy. He was convicted on some charges but acquitted on others. The Swiss trial court based its decision in the main on the evidence of two accomplices who had co-operated with the Italian authorities. There were appeals to the Swiss cantonal cour de cassation and to the Federal Court, which were dismissed. Among other complaints raised by the application was that there had been a breach of article 6 in that the trial court had relied on the evidence of the accomplices who had received substantially reduced sentences pursuant to Italian legislation on "pentiti", ie "self-confessed criminals who had agreed to co-operate with the authorities" (at 109). It was submitted that the Italian legislation created the risk of false accusations and was contrary to Swiss procedure under which recourse to inducements, threats or other means of coercion in order to obtain statements were prohibited; that if the accomplices changed their evidence previously given to the Italian court they would have run the risk of losing the advantages they had been granted under the Italian legislation; that the Swiss court had failed to warn the jurors about the danger of the truth being obscured by such statements; and that it had wrongly refused to carry out any investigation to verify whether pressure had been brought on the "pentiti" (at 115). It appears from the judgment of the Federal Court that the accomplices had been given "extremely light sentences" as well as other advantages, such as conditional release; and also that because their credibility was much in question they had not been heard as witnesses on oath: but that their statements "had been considered credible because they were corroborated by a large body of circumstantial evidence and because no important aspect of their precise and consistent statements had been shown to be false" (at 111).

The Commission reviewed the applicable principles and concluded as follows (at 122):

"The Commission recalls that the rules governing the taking of evidence are in the first place a matter for domestic law and that it is for the domestic courts, as a general rule to assess the evidence before them. The Commission's task, under the Convention, is to ascertain whether the proceedings in their entirety, including the way in which evidence is taken, were fair (see Eur. Court. H.R., Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para 43; Edwards v. United Kingdom judgment of 16 December 1992, Series A. no. 247-B, pp 34-35, para 34).

"The Commission notes that the statements of the Italian co-defendants who had given evidence for the prosecution incriminating themselves (the "pentiti") were not, in Swiss law, unlawfully obtained evidence.

"The Commission further points out that, according to its case-law, the use during a trial of evidence obtained from an accomplice by granting immunity from prosecution may put in question the fairness of the hearing and thus raise an issue under Article 6 para. 1 of the Convention (cf. No. 7306/75, Dec. 6.10.76 [X v. UK] D.R. 7 pp. 115,118).

"It notes that in this case the sentences imposed on the co-defendants who had given evidence for the prosecution were considerably reduced and alleviated in other ways under the Italian legislation on "pentiti". As they ran the risk of losing the advantages they had been given if they went back on their previous statements or retracted their confessions, their statements were open to question. It was therefore necessary for the Swiss courts to adopt a critical approach in assessing the statements of the "pentiti".

"Although the Assize Court did not hear the "pentiti" as witnesses, but merely as persons asked to provide information and exempted from the obligation to take the oath, for the purposes of Article 6 para. 3(d) of the Convention they must be considered witnesses…In this case it should be noted that the applicant had the opportunity, at a public hearing of the Assize Court in Lugano, to challenge the statements made against him by his former co-defendants. Furthermore, it can be seen from the Assize Court's judgment that the finding of the applicant's guilt was based on a number of different items of evidence which the Assize Court carefully assessed."

As for the complaint that the trial court (the assize court) had refused to question two police officers on the subject of pressure allegedly brought to bear on the accomplices by the Italian police during their transfer to Switzerland, the Commission said (at 123):

"The Commission notes that the Assize Court gave as the reason for refusing to hear the witnesses the applicant wished to call its opinion that their testimony was not necessary to establish the truth. It does not have sufficient evidence that on this point the Assize Court's assessment of the situation was arbitrary. It further notes that the Assize Court adopted a critical approach in assessing the evidence and in particular took account of the possibility that the "pentiti" might have confirmed their previous statements in order not to lose the advantages they had been granted."

Mr Pearse-Wheatley sought to rely strongly on this authority, submitting that the Italian "pentiti" legislation referred to in it was a demonstration of just how to regulate the taking of such controversial evidence from vulnerable witnesses in a totally transparent manner – "according to law". However, other than the fact that the legislation appears to have regulated in some way or other the discount to be allowed to those who confessed their own offence and co-operated with the authorities, nothing else is known about it. It seems to us to make no difference that in England the question of such discounts is governed by (well-known) principles of common law and ultimately resides, subject to sentencing guidelines, in the sentencing discretion of the court. Moreover, it may be observed that the accomplices had neither been heard on oath, nor, as it would seem, cross-examined, and that there had been no opportunity to question the police concerning an allegation of undue pressure. However, an appreciation of the caution with which such evidence should be regarded and of the significance of corroboration is underlined in the ruling of the Commission.

Texeiro de Castro v. Portugal (1998) 28 EHRR 101 is a decision of the ECtHR concerning the limits to be placed on undercover police work: a distinction is drawn between investigation and incitement. That is not an issue in the present case: but in the course of its judgment, the Court repeated (at para 34) the general principles to be found, for instance, at the outset of the citation from Baragiola above, and also stressed (at para 36) that, "even in cases concerning the fight against drug-trafficking…the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience."

Domestic law

In connection with Mr Pearse-Wheatley's submission that the taking of the witnesses' statements in this case was unregulated and thus not "according to law", it is relevant to consider what domestic English law provides about such situations.

First, there are acknowledged principles of English law that a co-defendant can acknowledge his guilt and give admissible evidence against a co-accused, and for such co-operation could expect to receive a discounted sentence from the court. Lawton LJ referred in Turner at 80 to the "well established practice of calling accomplices on behalf of the Crown who have been charged in the same indictment as the accused and who have pleaded guilty"; and in R v. Palmer (1994) 99 Cr App R 83 Russell LJ discussed the sentencing discretion of the judge. It is similarly standard for the jury to be directed to treat such evidence with caution, seeing that it comes from an accomplice who has an interest in minimising his own role, possibly to the detriment of his co-accused, and in earning the reward for co-operation. In such cases the jury are also told to look for corroboration in evaluating such evidence.

Secondly, however, the granting of complete immunity to a witness is regarded as distasteful and hedged around with cautionary limitations. As Lawton LJ said in Turner at 80:

"Undertakings of immunity from prosecution may have to be given in the public interest. They should never be given by the police.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Reed, R. v [2003] EWCA Crim 2667 (16 October 2003) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/2667.html Cite as: [2003] EWCA Crim 2667

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 October 2003