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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 >> Tucker v Crown Prosecution Service [2008] EWCA Crim 3063 (19 December 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/3063.html Cite as: [2008] EWCA Crim 3063

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Gloucester Crown Court
His Honour Judge Tabor QC
T20057163

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2008

Lord Justice Moses :

1. On 4 November 2008 we announced our decision to allow this appellant's appeal. We quashed his conviction for robbery and ordered his release. This judgment sets out our reasons for reaching this conclusion.
2. The appellant was convicted of robbery on 28 November 2005 at Gloucester Crown Court and sentenced to seven years' imprisonment. The hearing before us consisted of an application for permission to appeal against conviction, for an extension of time in which to do so, and an application to call fresh evidence. The essential basis of the appeal related to a failure by the prosecution to disclose relevant evidence. Before considering whether to grant any of the applications or to allow the appeal, we heard evidence from the appellant's partner, Jenny Moore, and Joanne Thomas. We heard, in response, evidence from three police officers, Sergeant Fletcher (at the time a Detective Constable), Detective Constable Whittaker (whose evidence was read) and Detective Constable Edgell, the officer in the case.
3. There are few relevant facts. Sometime shortly after 4.35 p.m. on 16 July 2005 it was alleged that this appellant, with a man called Milsom, his co-accused, robbed the complainant Miles in his own home. Milsom had in the past supplied Miles with cannabis. It was alleged that he entered through a window and opened the door to allow the appellant to enter. On entry, the appellant was alleged to have punched the complainant so hard on the face that he broke his cheekbone. All that was at stake was the sum of £10, said to be owed to Milsom for cannabis, a sum which the men took in coins from Miles's house.
4. Although there was some identification evidence which suggested that the appellant was one of the attackers, the significant feature of this case for the purposes of the appeal is that the main evidence came from the appellant's co-accused, Milsom. Seven days before the trial he pleaded guilty to the lesser offence of theft. After the trial he was sentenced to six months' imprisonment. He said that he had met the appellant early in the day and that they had gone to Somerfield supermarket together to buy some cookies. Somerfield was but a few minutes' walk from the address of the attack. He said that it was the appellant who was with him.
5. The complainant described one of his attackers but did not identify the appellant at a formal identification parade. Just before the attack, another witness, Laura Triggs, living in the same block of flats as the complainant, described the man with Milsom as having a Somerfield carrier bag.
6. An Inspector McFarlane examined CCTV footage from Somerfield and saw the images of two men between 4.28 and 4.35. He recognised one of them as the appellant.
7. This led to a ground for application which, in the light of our conclusion, we can deal with shortly. It was argued that the evidence of Inspector McFarlane, should not have been admitted. He had been told that it was thought that the appellant could be seen on the CCTV and he was expecting to see him. When questioned he was unable to answer what it was about the image of the person on the CCTV which led him to conclude that it was the appellant. A mark was visible on the chest of the man seen but it was not clear what it was. The officer knew that the appellant had a tattoo on his chest and it was the mark he saw on the CCTV which convinced him that his recognition was correct. But he had not seen the appellant for at least 2-2½ years and accepted that the footage showed a heavier build than that which he associated with the appellant.
8. Reliance was placed on Code D of PACE, although it was accepted that that had no application in the instant case. Inspector MacFarlane was not asked to look at the film for the purposes of giving identification evidence. The applicant argued that none of the safeguards to which this court drew attention in R v Dean Smith and Others [2008] EWCA Crim 1342 between paragraphs 63 and 73 were adopted in this case. In particular there was no record of what the officer's reaction was as soon as he saw the CCTV or what it was about the appellant which had triggered his recognition.
9. In our judgement none of the safeguards to which Dean Smith refers has any application in this case. The officer was merely asked to see if he could recognise the appellant at a time when it was not proposed to call him to give any evidence at trial. When he did give evidence at trial the judge gave a clear reminder and warning, in his directions to the jury, that Inspector McFarlane was expecting to see the appellant when he looked at the CCTV. The jury was entitled to look at the footage to make its own assessment as to the clarity of the image which could be seen and, once it reached the conclusion that the image was sufficiently clear, entitled to see whether the defendant bore resemblance to the man seen on the CCTV. Had it been necessary, we would have refused permission to appeal on this ground.
10. But we turn to the fresh evidence and the emergence of material which was not disclosed to the defence at the time.
11. The appellant and Milsom were arrested at Milsom's address after the attack, on 17 July 2005. Milsom had initially given "no comment" answers but later implicated the appellant as "the second male" and admitted his own involvement. The appellant denied being present, when interviewed, and gave details of alibi. In a subsequent interview, when confronted with Milsom's account, he maintained his denials and stated:-

"I can't account for what or even why Terry [Milsom] has implicated me like that. I am not aware of any grievances that he has against me but I do know he is on a hell of a lot of prescribed medication. I also know he takes illegal drugs. The only thing I can think of is he knows I'm walking out of here and he's not because he's guilty of a whole host of things and I'm not and he's bad-minded in trying to drag me down."

12. Counsel on this appeal was not counsel at trial. Counsel at trial saw the appellant in conference in prison on 7 November 2005. At that conference the appellant told his barrister and solicitor that before the alleged robbery he had been providing the police with information about Milsom's drug-dealing activities. He suspected that Milsom had found out the source of that information and suggested that Milsom had named the appellant as a means of seeking revenge. The appellant named DC Fletcher as the person to whom he provided information. Counsel advised his instructing solicitor to obtain a statement from that officer, DC Fletcher, in relation to those matters. He accepts his advice was, because of what he believed to be "sensitive" material, phrased in oblique terms. It is important to note that the appellant's defence statement made no reference to these matters.
13. The trial was listed on 21 November 2005. On that day the appellant's solicitor told counsel in the robing room that a member of the solicitor's firm had contacted DC Fletcher but that she had denied having a "handler/informant" relationship with a Mr Tucker and had refused to make a statement. The solicitor and counsel visited the appellant in his cells and passed on this information. The appellant's initial reaction was that DC Fletcher should nevertheless be called and cross-examined. Counsel explained that it was not be possible to call a witness and then to cross-examine him. Counsel recalls the appellant expressing his disappointment and frustration that the officer was not prepared to support his case.
14. It was this denial which appears to have led counsel not to pursue the line of defence that the reason Milsom, the accomplice, was giving evidence against the appellant was out of revenge once he had learned that the appellant had informed against him. Counsel remarks:-

"As far as I was concerned at the time, the line of enquiry raised by Mr Tucker had been fully pursued and had not yielded fruit."

15. This decision is criticised, particularly by the prosecution. In fact the defence had available evidence which would have supported the appellant's case as to the motive the accomplice, Milsom, had for falsely accusing him. The appellant's partner, Jenny Moore had told the appellant's solicitors that she had reason to believe Milsom had a motive to blame the appellant. But, she says, she was told not to mention this because the police had denied that any information had been given to them by the appellant against Terry Milsom. Her friend, Joanne Thomas, says that she too was available to give evidence of Milsom's motive but also says she was told not to mention this at trial for the same reason.
16. After the conviction, the appellant's partner and Joanne Thomas sought to rectify the absence of any evidence of Milsom's motive to lie. In a written statement dated 12 December 2007 Joanne Thomas said that in July 2005 in the Crown Public House in Tetbury Terry Milsom told her that he had:-

"…stitched up Tucker for something he didn't do (was) (sic) because that copper Edgell had told him that Tucker had given information to another copper about his heroin dealing."

Joanne Thomas, in a statement dated 12 December 2007 gave similar evidence which she repeated in a further statement dated 4 November 2008. Both gave oral evidence to this court of the incident in the public house at which Milsom allegedly confessed to "stitching up" the appellant.

17. In a written statement made to the police, dated 16 July 2008, Jenny Moore records her contact with the police. That statement makes it clear that the officers visiting her did not wish to discuss what is described as "a previous statement I made in respect of an incident at the Crown Inn Public House in 2005". But the written statement goes on to say that Jenny Moore confirms that she attended at Stroud police station on 18 July 2005. This was while the appellant was still in custody. The statement records that she spoke to D.C. Fletcher and provided an alibi for the appellant and detail of another person who might have been with Milsom at the time of the robbery. She also confirms that she spoke to the appellant in custody. She says D.C. Fletcher made notes but she never made a statement. She confirms that she did not speak to D.C. Edgell on that date.
18. In a recent written statement signed on the date of the hearing, 4^th November 2008, Jenny Moore gives further evidence which had not emerged earlier. She now says that the contents of the statement she made to the police dated 16 July 2008 are true but adds:-

"Mr Tucker contacted me whilst I was at the police station and told me that he had overheard a telephone conversation between Milsom and his sister Ali where Milsom had told her to get ready to pick him up from the station because he had blamed everything on Tucker because Mr Tucker had been providing information to the police about Milsom's drug dealing. I understand that Mr Tucker overheard this conversation in the custody area of the police station."

This was the first time Jenny Moore had mentioned this conversation. She confirmed it in her oral evidence to us.

19. We turn then to the police evidence about this matter. The prosecution do not deny that the message, received by the defendant's solicitors, was a denial that the appellant had been an informant. They cannot do otherwise. On Monday 21 November 2005, when the trial started at Gloucester Crown Court, D.C. Fletcher was off duty. She received a phone call from D.C. Whittaker, not the officer in the case, whilst she was at home. She was told that the defence barrister for the appellant:-

"…wanted to know if I'd tasked Tucker to go undercover and provide information on Terry Milsom. I advised 'no' and was available to go to court if required."

She says she was so shocked by this question that she phoned D.C. Edgell, who, as the officer in the case, was at court. According to her statement, D.C. Edgell advised her that it was possible that the appellant might use that defence as "mitigation". She had no direct contact with the defence team and went to work for the afternoon shift at 2.00 p.m. expecting to be called to court. But she was not. She gave evidence before us and we accept her evidence. D.C. Whittaker's written statement recalls her shocked reaction at the suggestion.

20. We are not surprised that D.C. Fletcher, as she then was, should be shocked at the suggestion that this appellant was an informant. Anyone less suitable, without the most rigorous safeguards, would be hard to imagine. D.C. Fletcher would not have had the authority to make him an official informant, let alone to ask him to go "underground".
21. Unfortunately the categorical denial concealed an important and significant truth. It is now apparent that D.C. Fletcher did have conversations with the appellant. Their contact derived from the admirable system, adopted in Gloucestershire and elsewhere, by which contact between released prisoners and the police is maintained for the purposes of preventing what had hitherto been prolific offending. The appellant had recently been released from prison and saw D.C. Fletcher on 20 June, 22 June, 24 June and 28 June 2005. On 28 June the appellant provided information to D.C. Fletcher on the telephone that Milsom was involved in drug-dealing.
22. Thus, when D.C. Fletcher was asked whether the appellant had been tasked to go undercover and provide information on Terry Milsom, although the answer "no" was correct, it was not the whole story. He had given some limited information about Milsom's drug-dealing. But that message never got back to the defence with the consequence that the defence determined not to pursue a line by which they might suggest Milsom's motive to lie. Of course, the defence would have had the great difficulty of suggesting on a more than fanciful basis that someone had told Milsom that the appellant had given information about his drug-dealing.
23. At the time this appeal was launched it was D.C. Edgell, the officer in the case, who was the prime suspect. He has always denied passing any information on to Milsom. D.C. Fletcher had told D.C. Edgell of the information she said she had received from the appellant's partner, Jenny Moore. D.C. Edgell had no note of this and no recollection. He does not dispute that he spoke to D.C. Fletcher but, again in oral evidence before us, he could not recollect doing so. But there were records to show that he had at least looked on what are known as "Unity" records in relation both to Milsom and to the appellant. These records, as we have now seen, contain intelligence information but do not contain the source of that information. Those records are of the greatest significance in this case.
24. The information D.C. Fletcher received from Jenny Moore was recorded in an intelligence report. Initially we saw only a version, most of which was deleted. But we were, eventually, trusted to see the unexpurgated version. This reads:-

"At 9.30 a.m. on 18 July 2005 I spoke to Jenny Moore…at Stroud Police station. She stated that she has heard second hand from…that Dave Tucker…is being set up by Terry Milsom and his two sisters…and …(our deletions). They think that Tucker is going to try and take over Terry's drug-dealing business. She also said Terry has been using Tucker's name to collect his drugs money."

The raw intelligence also records Jenny Moore's information about the alibi, namely that on Saturday 16 July 2005, the date of the attack, the appellant took her three dogs for a walk at about 3.30 p.m. and that he returned at about 4.45 p.m. The dogs were out of breath. Tucker had a wash and changed his top and went out at about 4.55 p.m., stating that he was going to the pub.

25. As we have said, this information was not put on the Unity system in full but it does record the assertion that the appellant was being set up by Terry Milsom and his two sisters on the grounds that he was going to try and take over Milsom's drug-dealing business.
26. The prosecution and D.C. Edgell now accept that that material should have been disclosed. It was not disclosed at trial. It was not disclosed at this appeal, until we asked for it. Whilst it is true that it is not consistent with the evidence which we heard from the appellant's partner or the friend Joanne Thomas, it provides powerful evidence of a motive. Whether it be true or not, it was material which the defence were entitled to see and which they could have deployed to suggest that the accomplice was giving false evidence because he feared that his drug-dealing business was going to be taken over. We acknowledge that such a line of defence was risky but at least the defence were entitled to know what the police had been told.
27. Furthermore, the defence were entitled to be told that the appellant had given information although on a more limited basis than, no doubt, the appellant wished his legal advisers and the jury to believe. But had D.C. Fletcher's record of the information she was given been shown to the defence, together with the information that Jenny Moore was recorded as giving to the police, we have little doubt that the defence would not have so readily decided not to pursue this line of defence.
28. The prosecution have a number of trenchant criticisms of this fresh evidence. There are two particular features of the evidence on which they are entitled to rely. Firstly, the evidence which Jenny Moore now gives that the appellant had contacted her and told her what he had overheard in the conversation between the accomplice Milsom and his sister, was alleged to have been overheard before 9.30 a.m. on Monday 18 July 2005 when Jenny Moore spoke to D.C. Fletcher. But Milsom had only blamed Tucker later on the same morning, between 10.56 and 11.39. Secondly, if in truth the source of the information as to Milsom's motive was the appellant himself as a result of what he had overheard, it is odd that when interviewed at his second interview on 18 July he made no reference to it, but merely suggested that Milsom did not want him to walk out free while he remained inside.
29. We do not need reach any concluded view as to the credibility of the witnesses called on behalf of the appellant. Two facts cannot be denied. Firstly, contrary to what the defence were told at the time of trial, the appellant had given information to D.C. Fletcher. Secondly, the prosecution never revealed to the defence the record containing important information as to a possible motive for Milsom to lie about the appellant. It is now accepted that that information should have been disclosed.
30. Mr Mark Worsley, on behalf of the prosecution, rightly points out that the material on which the defence could rely to suggest a motive for Milsom to lie was in their hands. There was nothing to stop either Jenny Moore or Joanne Thomas from giving the evidence they give now as to the incident in the Crown Public House. Nor, if Jenny Moore's evidence now as to what she was told by the appellant is true, was there any reason why the appellant himself should not both at the time and subsequently speak of the telephone call he was alleged to have overheard. The prosecution fairly suggests that there was no good reason why this defence should not have been proffered at trial and asserts that defence counsel should not have been diverted by the misleading information he obtained from D.C. Fletcher.
31. Moreover, as prosecuting counsel points out, the process by which the information was obtained from D.C. Fletcher was incorrect and fraught with danger. There was no good reason why the defence statement did not properly set out the alleged motive. On the basis of that defence a request for particular discovery to support the allegation that the appellant was giving information to the police could have been sought. If there were inhibitions about broadcasting that information the application could have been made to the judge without the full glare of publicity. But since it was essential to the defence that Milsom had learnt that the appellant had given information about him it is difficult to see why secrecy needed to be maintained. In any event, it was wrong of the defence team to seek that information by so indirect a method.
32. Since the information was sought from D.C. Fletcher at home and since she properly communicated her answer to D.C. Edgell we can quite understand how it was that the full truth did not emerge. But it ought to have done. Moreover, D.C. Edgell ought, as he now fairly acknowledges, have kept a note of what he was told and communicated what he learnt from the records he investigated on Unity to the defence. It is not for this court to investigate why that did not happen. We need only record that D.C. Edgell did not strike us as being an officer who would deliberately seek to distort a trial by concealing disclosable information. Failure to reveal that which ought to have been disclosed seems as much a failure of communication as a deliberate attempt to pervert the proper course of the defence. But we need reach no concluded view as to what lay behind the lamentable failure of disclosure.
33. For lamentable it was. Significant material, important to the defence, was never revealed until the very last minute during this appeal. We still do not know why it was not revealed earlier during the preparation of the appeal. It is difficult to see that the details of those records required any secrecy whatever. It is absurd to think that the fact that the Gloucestershire Constabulary keep such records as those contained on Unity is a matter for secrecy. Surely everybody knows, not least the criminal fraternity in Gloucestershire, that records of intelligence are kept and disseminated. If a particular source needs to be concealed then it could be. But in this case the source even appeared on Unity.
34. The failure of disclosure was a significant irregularity. It is not possible to say precisely what impact it would have had on the jury. But it is likely that the information would have provided powerful support for the suggestion that the accomplice had reasons of his own for giving false evidence against the appellant.
35. There is one further aspect of non-disclosure which troubles us. We were told at the hearing of the appeal, without any advance notice, that one of the exhibits seized at the address of Milsom was a blue shirt. It was acknowledged by the prosecution that that shirt did not belong to Milsom. It was suggested that it belonged to the second man, the appellant. But there was evidence, which was never disclosed, that the shirt was subjected to DNA examination because there were spots of blood on it. The DNA examination established that the blood could not have come from the appellant. That evidence ought to have been disclosed. It never was. Indeed, it never became part of the grounds of the appeal. We allowed the applicant to amend the grounds of appeal. We regard this as another significant incident of non-disclosure. We do not know why the evidence was not disclosed but it ought to have been. Again, it was likely to have had a significant impact on the jury's view of the appellant's defence that he was not involved.
36. For these reasons, we granted an extension of time (764 days) for leave to appeal. We granted permission to appeal and, having heard the fresh evidence which we admit, and full argument, we allowed the appeal. The appellant has served most of his sentence and in those circumstances it would not have been right to order a fresh trial.