Chalkley & Anor, R v [1997] EWCA Crim 3416

EWCA-Crim

Chalkley & Anor, R v

[1997] EWCA Crim 3416 · 1997-12-19

LORD JUSTICE AULD:

In late October 1996, before His Honour Judge Crane in the Crown Court at Peterborough, the appellants Jeffries and Chalkley stood trial on their pleas of not guilty to a charge of conspiracy to commit robbery between 1st January 1993 and 9th December 1994. The evidence that the prosecution proposed to adduce in support of its case consisted of police observations of the movements of the two men, covertly obtained tape-recordings of their conversations during the period of the alleged conspiracy, the finding in their possession of firearms and other paraphernalia of robbery and certain admissions to prosecution witnesses.

At the start of the trial Mr Richard Benson QC and Mr Timothy Cassel QC, counsel for the appellants, asked the Judge to exclude the tape recorded conversations from the evidence to be put before the jury. They were highly damaging to the defence case, consisting of many discussions planning robberies and referring to past robberies. Mr Benson and Mr Cassel did not challenge their authenticity, content or effect. However, they maintained that they had been obtained unlawfully and in breach of the two men's right to privacy enshrined in

Article 8 of the European Convention

of Human Rights. They said that the Judge should exclude the evidence under Section 78 of the Police and Criminal Evidence Act 1978 because it would be unfair to them to admit it.

On 24th October 1996 the Judge, having heard evidence about the obtaining of the recordings and surrounding circumstances, rejected the defence submission. Jeffries was so dismayed by the ruling that he failed to surrender to his bail on the following day. However, he did surrender on the next working day, and on 30th October he and Chalkley changed their pleas to guilty. They clearly did so because the Judge's ruling had made hopeless on the facts any defence that they might have sought to advance. And they did so on a basis that was apparently accepted by Mr Howard Morrison, counsel for the prosecution, namely that they had planned robberies with the use of firearms, that they had had firearms, that they had not committed or attempted any robbery, that they had not threatened anyone with the firearms and that they had not been violent to anyone. Mr Benson and Mr Cassel then addressed the Judge in mitigation on that basis and the Judge sentenced each of them to 10 years' imprisonment.

They now appeal against conviction by leave of the Single Judge.

The Issues

The appeal raises four main issues of importance.

The first is whether appellants who have pleaded guilty because the Judge rejected their application to exclude evidence which they considered to render their defence hopeless on the facts, can challenge their convictions by way of appeal, irrespective of the correctness or otherwise of the Judge's ruling.

If they can go behind their pleas of guilty in that way, the second issue is whether it is appropriate for a judge, when deciding under Section 78 whether it would be fair to admit evidence, to conduct a balancing exercise of the sort applicable in applications to stay proceedings for abuse of criminal process.

The third issue is whether an otherwise lawful arrest is unlawful because the motive for it is to enable investigation and/or prevention of other serious crime by the arrested person.

The fourth issue is whether the Court of Appeal can quash a conviction which it considers to be safe but which it regards in some other respect as "unsatisfactory".

The Facts

The circumstances giving rise to the making of the covert recordings, as revealed by the voir dire and found by the Judge, were as follows. On 17th March 1994 watching officers of the Cambridgeshire Police Force saw Jeffries and Chalkley and others set out in the early hours of the morning obviously dressed and equipped to commit robbery. They went to a post office sorting house at St Neots where, on the arrival of a post office van, they made a move towards attacking it. However, they abandoned the attempt and made off when they became aware of the presence of the police. Chalkley later told a prosecution witness of the plan and of its abandonment for that reason.

In June 1994 there was a robbery at a supermarket in Eaton Socon. The Regional Crime Squad, who had just become involved, believed that the appellants were involved and that they were planning more robberies, involving the use of firearms, in the area.

The Squad decided that the threat was so serious that they would only be able to forestall it and bring the two appellants and others to conviction by placing a hidden battery-powered listening and recording device in one of their homes. They decided on Chalkley's home and on a plan to install the device inside it when he and the woman with whom he lived, Shani Carter, and their two young children were absent. The plan was to arrest Chalkley and Carter in connection with another matter and to remove them and their children temporarily from the house. The Judge accepted, on the evidence before him, that the arrest of both in that way was "the only practicable method" of successfully installing the device.

Detective Constable Harrison of the Regional Crime Squad applied to the Chief Constable of Cambridgeshire for authority to install the device in Chalkley's home, making plain how he and his fellow officers intended to go about it. This is how

the Judge described this part of the story, at page 5 of the transcript of his ruling:

"... Detective Constable Harrison told me that when he saw the Chief Constable to obtain the authorization they discussed how a listening device might be placed in the home of Mr Chalkley, which was what was desired, and Mr Harrison told me that he mentioned that an enquiry into a credit card matter might be used; the implication is to effect the arrest of adults in the house and enable the police to get in.

It is not suggested by anyone that the Chief Constable specifically authorised that, but he plainly gave his mind to the question of possible methods, according to Mr Harrison, and I accept Mr Harrison's evidence on that point."

On 21st June 1994 the Chief Constable authorised the operation.

The plan to arrest the two in connection with "a credit card matter" did not depend on a "trumped-up" allegation. An officer in the intelligence bureau of the Cambridgeshire Constabulary, WDC Fletcher, had much earlier - in March 1994 - received information that Chalkley had been fraudulently using someone else's Barclays Bank credit card to obtain goods and that Carter had been in some way involved. However, such enquiries as she and other Cambridgeshire officers had made into the matter at that time had not gone far, and it had been allowed to lapse without arrest or even interview of either of them. No doubt, police interest in it was overtaken by their investigation of Chalkley's suspected role in the series of armed and planned robberies in the area.

However, in June 1994 DC Harrison and WDC Fletcher decided to resurrect the matter by re-opening their investigation of it with a view to using it as an excuse to arrest both Chalkley and Carter and remove them from the house for long enough to enable the Regional Crime Squad officers to install the listening device. WDC Fletcher initiated some enquiries by Cambridgeshire officers into Chalkley's suspected use of the credit card. The result of the enquiries convinced her and DC Harrison that there were grounds for arresting Chalkley and Carter on suspicion of conspiracy to defraud Barclays Bank, the credit card issuer. WDC Fletcher briefed three officers of the Cambridgeshire force telling them, as the Judge accepted, that she had information of matters that, in her view, gave reasonable grounds for arresting the pair, but told them nothing of the Regional Crime Squad's plan behind it.

On 8th July 1994, early in the morning, those officers arrested Carter in the house and took her to the police station, arranging for a neighbour to look after the children for the day. Shortly afterwards they arrested Chalkley when he finished work at the end of his night-shift and took him also to the police station. The officers informed each of them on arrest that they, the officers, had reasonable grounds for suspecting them to be guilty of conspiracy to defraud Barclays Bank. They also seized Chalkley's keys to the house and to his car and took possession of the car. Shortly afterwards officers from the Regional Crime Squad] used the seized house key to enter the house and install the device. They also arranged the cutting of a copy of the key for their later use.

Meanwhile, at the police station, the Cambridgeshire officers put Chalkley and Carter into custody while they made further enquiries about the alleged credit card offence. Two of them obtained a witness statement from an employee of one of the chain stores concerned. Later in the day - between 4 and 5 p.m. - they interviewed each of them. Chalkley made no comment and Carter denied any involvement. It was not until the evening that they were allowed to return home - Carter at about 6.30 p.m. and Chalkley at about 9.15 p.m., when the police returned to him his keys and his car. The police did not charge them, but released them on bail subject to a condition of reporting at the police station.

Over the next six weeks the listening device produced, as we have indicated, a wealth of evidence, in the form of conversations between Jeffries and Chalkley, of their involvement in the planning of past and future robberies. At the end of that period, on 24th August, the officers of the Cambridgeshire police interviewed Chalkley and Carter again when they reported at the police station in accordance with the condition of their bail. In the interviews the officers touched briefly on the matter of the fraudulent use of the credit card, but nothing further emerged. They were not then or ever charged with any offence in connection with it. However, during the interview an officer or officers of the Regional Crime Squad used the duplicate key that they had made on their first visit to Chalkley's home to re-enter it to renew the battery on the listening device.

Chalkley and his girl-friend returned home still unaware of the presence of the device, and for another month until Jeffries' and his arrest in late September 1994, it continued to yield much highly incriminating evidence against both men. During that period the officers of the Regional Crime Squad again entered the house clandestinely to renew the battery.

The Judge's Findings Of Fact

The Judge, in deciding whether to admit or exclude the evidence, considered the factors that the Chief Constable should have had in mind when authorising the installation of the listening device and also the means, the arrest of Chalkley and his girl friend, by which it was to be achieved.

As to the first, there was no statutory provision governing the use by the police of such a device, but there were and are Home Office Guidelines. Those guidelines recognise that the use of surveillance equipment may encroach on the privacy of others, in particular of the person under surveillance. For that reason no doubt they provide that the authorising officer, before sanctioning its use, must be satisfied that it meets certain criteria. The material criteria are: that the investigation concerns serious crime; that normal methods of investigation have been tried and have failed, or must from the nature of things be unlikely to succeed if tried; that there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction; that the use of the equipment must be "operationally feasible"; that in judging how far the seriousness of the crime under investigation justifies the use of particular surveillance techniques the authorising officer should satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence; and that where the targets of the surveillance might reasonably assume a high degree of privacy, for example in their homes, this means should be used only for the investigation of major organised conspiracies or other particularly serious offences, especially crimes of violence.

As we have mentioned, DC Harrison gave evidence about his request to the Chief Constable for authorization to install the device and of the Chief Constable's grant of authorization on 21st June 1994. There was no evidence before the Judge from the Chief Constable on the matter, but there appears to have been no dispute that he had followed the Guidelines, save possibly in relation to the guidance that he should be satisfied that the operation would be "operationally feasible". Counsel for the appellants suggested that those words required him to consider what, if any, unlawfulness was involved as well feasibility in the sense of practicability. The Judge was satisfied, as the passage from his ruling we have quoted makes plain, that the Chief Constable did have regard to the proposed means of achieving the installation. He also expressly found that it was the only operationally feasible or practicable method. This is how he expressed that finding, at page 6A-E of the transcript of his ruling:

"Mr Harrison tells me that the [sic] other methods of entry were considered but ultimately the removal of the adults was considered to be the only feasible method. I did not require him to discuss in evidence other possible methods, but I have no difficulty in accepting that the installation of a device inside the house was considered best. And I have no difficulty in accepting that it could not be installed unless the adults were guaranteed to be elsewhere. Indeed, if one thinks about it there had to be not only an absence of the adults but some reason that might be apparent to those concerned ... [for] the police being in the premises or being seen going to the premises.

I accept therefore that by the 7th of July, the day before the installation took place, the possibility of an arrest of both Mr Chalkley and his partner Shainee Carter was the only practicable method."

As to the circumstances of and reasons for the arrests,

the Judge found:

- that, despite conflicting descriptions of the person or persons who had fraudulently used the credit card, the Cambridgeshire officers were entitled to rely on WDC Fletcher's instructions to them of her information and on certain of their own enquiries as grounds for suspecting Chalkley and Carter of conspiracy to make fraudulent use of the card;

- that those officers were ignorant of the Regional Crime Squad's intention to take advantage of the arrest as a means of enabling them to install the device; and

- that they had no reason to think, when they made the arrests, that there was no possibility of charges following, as had been the case in Plange v. Chief Constable of South Humberside Police

(1992) TLR 137

The Judge's Ruling On The Lawfulness Of The Arrests

The Judge, in reliance on those findings of fact, held, at pages 24E-25B of the transcript of his ruling, that the arrests were lawful:

"I take the view that the officers who carried out the arrests had reasonable grounds for suspecting those they arrested, so did Mrs Fletcher and Mr Harrison. ... The true situation is this: that the police were [not] acting in bad faith in the sense that anyone knew that there were no grounds or that there was doubt about the grounds, or that the grounds did not exist. I think all those things were true. The question is what difference does it make that the arrests would not have taken place, in other words the matter would not have been revived had it not been for the wish to get Mr Chalkley and Miss Carter out of the house. I regard Mr Harrison as having been perfectly frank with the court that although it was not a device in the sense [that] it was a bogus reason for arrest the true motive was to get them out of the house and he has made no bones about that ..."

The Judge's Approach To Section 78

The Judge went on to consider the effect of that conclusion on the decision he had to make under Section 78(1) on the fairness of admitting into evidence the recorded incriminating conversations of the appellants. It provides:

"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it,"

The Judge considered first R v. Sang

[1980] AC 402

, HL, which concerned an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur - the leading pre Section 78 authority on the limits of a trial judge's common law discretion to exclude evidence obtained by improper or unfair means. He also considered R. v. Khan (Sultan)

[1996] 1 WLR 162

, HL, which concerned an unsuccessful application to exclude evidence obtained from a covert listening device fixed to the outside of a private house - the House of Lords' re-affirmation of the Sang principle and its application to the Section 78 test of fairness, in particular as to "the circumstances in which the evidence was obtained".

The Judge concluded that Section 78 had clarified the basis on which a judge could exercise his discretion to exclude evidence so as to include consideration of the circumstance in which it was obtained, and that Khan (Sultan) had put that beyond doubt. However, he looked to two abuse of process authorities, R v. Horseferry Road Magistrates Court, ex p. Bennett

[1994] AC 42

and R. v. Latiff & Shahzad

[1996] 1 WLR 104

, HL, for guidance on how to exercise that discretion. He drew from those authorities an indication that he should conduct a balancing exercise of the countervailing circumstances to enable him to decide whether the balance favoured the effective prosecution of crime or, given the defence submissions about the police conduct, the public interest in discouraging abuse of power. In conducting that exercise he acknowledged that he should have regard to the individual's right to privacy enshrined in

Article 8 of the European Convention

of Human Rights. At page 31D-E he neatly summarised, in the following words, the effect of the judicial balancing act upon which he was embarked:

"... The principles that I derive from those cases, particularly the recent cases in the House of Lords, is that the end does not justify the means, and depends on what the end is, and what the means are."

Adopting that approach, he considered that the following circumstances were relevant to his decision: the evidence amounted to confessions of serious crime and of conspiratorial discussions evincing an intention to commit robbery and the possible use of firearms; there was no suggestion of improper inducement or incitement by the police officers or anyone in authority to commit the offence; the police's conduct in installing the device did not induce Jeffries or Chalkley to talk of their criminal past and future when otherwise they would not have done so; there was no dispute about the content of the conversations; the prosecution and the police had been frank with the Court; the decision to install the device was made in accordance with the Home Office Guidelines; and, though the arrest in each case was instigated "for a purpose other than the one it was designed for", namely to secure entry to the house and to install the device there, the arrests themselves were lawful and the motive was not improper. It was, as the Judge put it, "to enforce the law to protect the public in a case where firearms were alleged to be involved".

He held, however, that there had been breaches of the provisions of PACE and/or of the ordinary civil law and of

Article 8 of the European Convention

of Human Rights in the temporary seizure of Chalkley's car and his keys, in the making and use of a copy key to effect a trespass in the house, in the actual installation of the device there and in the further two clandestine visits to renew the battery.

Having set out all those factors the Judge concluded that the evidence should be admitted. He said, at pages 38E-39B:

"It [the installation of the device] was undertaken in relation to very serious offences and not merely very serious offences that were alleged to have occurred previously, they were being investigated, but to very serious offences possibly involving public danger which might be going to occur in the future and which needed if possible to be proved or detected.

Plainly ... the unlawful actions by the police must not be seen to be condoned. There are standards to be upheld ... in the criminal justice system. The criminal justice system though must be effective in detecting serious crime. It doesn't seem to me that any right thinking person who knew the facts as I have outlined them would find their conscience disturbed by the use of the methods, admittedly unlawful to the extent that I have indicated, by the police in this case. And nor, apart possibly from the taking of the car, which in a sense is a side issue, did the police go further down the avenue of unlawfulness than [w]as necessary to carry out this operation."

The Effect Of The Pleas Of Guilty

The first and possibly determinative issue is whether the Court can quash a conviction where the appellant has changed his plea to guilty because of the trial judge's refusal to exclude evidence which is so damning to his case that he and his advisers consider his conviction is inevitable.

All save one of the authorities on the issue have been governed by the old formula of Section 2(1) of the Criminal Appeal Act 1968 or its predecessor that, subject to the proviso of no miscarriage of justice, an appeal against conviction should be allowed (a) if the "conviction" [1] was "unsafe or unsatisfactory"; or (b) if "the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law"; or (c) if there was "a material irregularity in the course of the trial". The sole test in the new Section 2(1), substituted from 1st January 1996 by the Criminal Appeal Act 1995, is whether a conviction is "unsafe".

This much simpler form is in essence much the same as the intertwined and overlapping provisions of the old test, as was intended by the Royal Commission in recommending it, the Government in promoting it, the Senior Judiciary in supporting its parliamentary passage and Parliament in enacting it. See the current edition of Archbold, paragraph 7-46. In R v. Graham (HK) & Ors.

[1997] 1 Cr App R 302

, CA, Lord Bingham CJ, giving the judgment of the Court, considered the general effect of the new provision, albeit in a wholly different context from this. At page 308 he said:

"The new provision, the subject of a penetrating analysis by Sir John Smith QC in [1995] Crim. L.R. 920, is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the Court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal. ... Where the condition in section (1)(a) as it now stands is satisfied, the Court has no discretion to exercise."

Section 2(1) in its old and new forms respectively entitled and entitle the Court of Appeal to quash as unsafe a conviction based on a plea of guilty where the plea was mistaken or without intention to admit the truth of the offence charged. In the case of the old form, it was commonly said, in reliance on a passage from the judgment of Woolf LJ in R v. Preston

(1992) 95 Cr App R 355

, at 381, drawing on an observation of Robert Goff LJ in R v. Hunt

(1986) 82 Cr App R 244

, at 249, that it might also do so where it was "founded upon" a material irregularity or, as Mr Cassel submitted, upon an erroneous ruling on a point of law.

As we have said, the test now is simply whether the conviction is "unsafe". But, in order to understand the role of the pre 1st January 1996 jurisprudence in applying that test it is important to understand what was meant by a plea of guilty being "founded upon" such a ruling. There are two possibilities.

The first is where, in the light of the admitted facts, the erroneous ruling left the defendant at trial with no legal basis for a verdict of not guilty. Put the other way round on appeal when the error is corrected, it is "[t]hat upon the admitted facts" the appellant "could not in law have been convicted of the offence charged". That is how the test was seen in the early part of this century by Avory J. in R v. Forde

(1924) 17 Cr App R 99

, at 103. In our view, it is what Viscount Dilhorne had in mind in DPP v. Shannon

(1974) 59 Cr App R 250

, HL, at 264, when he said that the court had power to quash a conviction on a plea of guilty "if either there had been a wrong decision on a question of law or a material irregularity in the course of the trial". See also per Lord Morris at 256. It was undoubtedly what Robert Goff LJ intended in his use of the expression "founded upon" in Hunt, because there the Judge's ruling of law had left the defendant with no legal escape from conviction.

The second and broader meaning of the expression "founded upon" in this context is "influenced by" - that is, where a plea of guilty was influenced by an erroneous ruling of law. This is seemingly the meaning of Woolf LJ in the following passage in his judgment in Preston when, after referring to the words of Viscount Dilhorne in Shannon and Robert Goff LJ in Hunt he said, at page 381:

"In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling on a point of law or a material irregularity, he must show that his plea was 'founded' upon the erroneous ruling or the material irregularity. In this case, although we do not know precisely what passed between counsel and his client, we accept that the appellant's decisions were possibly influenced by the rulings which the judge made." [our emphasis]

The rulings in question were made in chambers in the absence of the defendant and his solicitors and imposed restrictions on what defence counsel could inform the defendant and his solicitor.

The second, and broader, meaning is the one Mr Cassel urged upon the Court. And it is how the Court of Appeal and the House of Lords were apparently content to apply it, in the absence of the point being taken, in Khan (Sultan). See also Sang, per Roskill LJ, giving the judgment of the Court of Appeal at 405G-406H.

An authority arguably in support of that submission is the Ordtec case, R v. Blackledge & Ors

[1996] 1 Cr App R 326

, CA. There, the defendants were charged with conspiring to export goods to Iraq in breach of Government prohibition. They pleaded not guilty, their defence being that in truth there was no prohibition because the Government had determined to turn a blind eye to such exportations. They sought a stay of the prosecution as an abuse of process because the prosecution had failed to produce witnesses or to disclose Government policy and guideline documents that might support their case. The prosecution said that there were no such witnesses or documents, incorrectly as was later revealed in the Matrix Churchill case and the Inquiry of Sir Richard Scott, and the judge rejected the applications to stay the proceedings. Had such witnesses been produced or documents disclosed, they would have assisted the defence case. Their absence was prejudicial, but not necessarily fatal, to it. However, as a result of the judge's ruling and of indications from the prosecution and him respectively that pleas of guilty would result in a sympathetic presentation of the prosecution case and in suspended sentences, the appellants changed their pleas to guilty.

This Court held on appeal that the prosecution's failure of disclosure was a material irregularity. Lord Taylor, CJ, gave the judgment of the Court. He referred, at page 338A-B, to Woolf LJ's test in Preston, of the appealability of a conviction based on a plea of guilty where it is "founded upon" an erroneous ruling or law or a material irregularity, and said, at page 338G, that "even without the documentation the appellants could have run their defence and given evidence in support of it". He then continued, at page 338G, as follows:

"It is stressed, however, that in addition to being deprived, so to speak, of ammunition, the appellants were put into a difficult dilemma. For the offences charged, they could have been sentenced to a substantial period of imprisonment. At the time of the trial, after the second Gulf War, they had an understandable fear as to what sentence a court might consider properly reflected public disapproval of assistance to Saddam Hussein. In those circumstances, the prospect of a muted presentation of the facts by the prosecution, followed by a suspended sentence, put pressure on the appellants to go quietly. ... There must understandably have been concern that conviction after a trial might have attracted an immediate prison sentence in contrast to a suspended sentence on a plea.

We have considered the aggregate of all the unusual circumstances of this case - the material irregularity, the judge's ruling based on an unawareness by him and by prosecuting counsel of the undisclosed documents, and finally the pressure added to those factors by the discussions leading to the changes of plea.

We consider the pleas of guilty were 'founded on' the material irregularity and the judge's ruling coupled with the pressure to which we have referred. In the result, we cannot regard the convictions as safe and satisfactory. Accordingly, the appeals must be allowed."

In our view, the early authorities to which we have referred and others to which we are about to refer demonstrate the logical imperative of the first, narrow, construction of the expression "founded upon" in this context. It is only where an erroneous ruling of law, coupled with the admitted facts, makes acquittal legally impossible that a plea of guilty can properly be said to have been "founded upon" the ruling so as to enable a successful appeal against conviction. The fact that an erroneous ruling of law as to the admissibility of certain prosecution evidence drives a defendant to plead guilty because it makes the case against him factually overwhelming will not do. It does not make it impossible for him to maintain his innocence as a matter of law or of fact, it merely makes it harder.

That distinction was clearly drawn by this Court in R v. Vickers

(1975) 61 Cr App R 48

, where, before arraignment, the judge heard submissions of law on admitted facts. The judge ruled that if those admitted facts were proved or admitted in the forthcoming trial they would amount to an admission or conclusive evidence of the accused's commission of the charged offence. The accused, on the advice of his counsel and in the light of that ruling, pleaded guilty. Scarman LJ, giving the judgment of the Court, dismissed his appeal against conviction. In doing so he commented on the dangers of seeking the judge's ruling before arraignment, but at pages 51-52, expressed the view that Sections 1 and 2(1)(b) of the 1968 Act, as they then were, entitled the Court to consider whether there had been "a wrong decision of any question of law" and required it to allow the appeal if "the agreed facts disclosed no offence known to the law". At page 54 he said:

"... the agreed facts disclosed a case to answer. We doubt if the judge was entitled to go so far as to say there were conclusive of guilt - not because we disagree with the view of the facts formed by the judge but because we believe the question was, upon correct analysis, one of fact even though there was a question of law - namely, the meaning of the statute. No point, however, turns on the judge expressing the view that the admitted facts were conclusive. The appellant pleaded guilty because, upon advice, he had no answer if the agreed facts disclosed a case to answer." [our emphasis]

The key to proper understanding of Scarman LJ's reasoning in those two passages lies in his reference to "the agreed facts". And it is in that sense that his remarks, at page 52, on the desirability of conducting the exercise after arraignment should be regarded:

"If a ruling is later given, which in the view of himself and his advisers is fatal to his defence, the accused can then change his plea."

There was thus a clear distinction between the case of a plea of guilty on undisputed facts where, following a judge's ruling of law, he was not in law entitled to an acquittal and that of a plea of guilty following a ruling where the facts alleged to constitute the offence were in dispute and the ruling, though damaging to his case on the facts, left it open to him to argue them before the jury. This distinction has been sharply drawn by this Court in three recent decisions, only the last of which fell to be considered under the new wording of Section 2(1).

The first case was R v. Eriemo

[1995] 2 Cr App R, 206

, CA, in which the applicant, who was indicted jointly with others for burglary, pleaded guilty after the judge had lawfully refused his application for separate trial. The Court of Appeal refused his application for leave to appeal. Glidewell LJ, giving the judgment of the Court, said at page 210D-G:

"There are a number of decisions of this Court in cases where the lower court has decided an issue of law in a way which is conclusive on the established facts as to the guilt of the particular defendant. If the decision on a question of law is wrong that can constitute a material irregularity in the course of the trial .... But in our view where what has happened is that the judge is asked to exercise a discretion, it being agreed that he has a discretion, and he has exercised it one way or the other, then the result of that exercise of discretion cannot be said to be - to use Lord Scarman's phrase [in Vickers ] -'so fatal to the defendant's defence that it effectively concludes the trial.'

The only proper course in those circumstances, and the one that should be followed if this situation arises in the future, is for the defendant who has made the application to continue with his plea of not guilty. If he then be convicted, of course, he can seek leave to appeal in the ordinary way. But if he pleads guilty this plea is an admission to the facts with which he is charged. The question which arose before the judge in the present case as to whether he should properly be tried ... with another young man, can make no difference to the effect of his plea of guilty. Accordingly, in our view, the argument that is sought to be raised in the present case is not one which is open to this applicant at all, he having pleaded guilty and thus admitted the facts charged against him." [our emphasis]

We have some reservations as to the distinction made by Glidewell LJ in that passage between a wrong decision on a question of law and, inferentially, a wrong exercise of discretion. The latter, if not exercised in accordance with law or if it is perverse, may have constituted a wrong decision on a question of law. But that is not the distinction of importance which we believe lay at the heart of Glidewell LJ's reasoning, namely the conclusiveness of a ruling against a defendant on undisputed facts as distinct from evidential strengthening of the prosecution case where material facts remain in dispute. Note his use of the words "established facts" in the first sentence of the passage.

The second case was R v. Bhachu (unreported) 18th November 1994, in which the defendant pleaded guilty after the judge had wrongly allowed the prosecution to adduce evidence of admissions he had made to the police as a result of an inducement. McCowan LJ, giving the judgment of the Court, dismissed his appeal, stating at pages 20A-E of the transcript of his judgment:

"... how does the matter stand after the judge's ruling? If it is that on the admitted facts there is no defence, then the proper course for the defendant is to plead guilty. Indeed he can do nothing else. If he does he retains his right to appeal on the ground that that was a wrong ruling in law. But that was not this case. The judge was not saying that the defendant was guilty on the admitted facts. It was fully open to the defendant ... to continue fighting the case. All that had happened was that his chances of acquittal had been reduced. ... That is to be contrasted with the situation where the judge has ruled that on the admitted facts the man is guilty. The defendant there is in the position that he has to accept the ruling and cannot argue otherwise before the jury."

The third case is R v. Greene (unreported) 8th April 1997, decided under the new Section 2(1), in which the defendant changed his plea of not guilty to guilty following the judge's ruling that evidence of a confession was admissible. His appeal against conviction was dismissed. Astill J, giving the judgment of the Court, the other members of which were Rose LJ and Stuart White J, said at page 2D-H:

"The crucial event was the change of plea to guilty. If a defendant submits that admitted facts do not in law amount to the offence charged and the trial judge rules otherwise, then it is not difficult to see how an appeal against conviction can lie after a plea of guilty. In those circumstances there remains no issue of fact for the jury to try. But where the admissibility of a confession is in issue and the trial judge rules that it should be admitted, as he did in this case, the truth of the contents of the confession, although having no relevance in the voir dire, remains a matter to be tried by the jury. A plea of guilty in those circumstances serves as an admission of the truth of the contents of the confession. It is not a plea entered where there is no remaining issue to be tried by the jury because it remains open to the defence to invite the jury not to rely on the truth of the confession despite the fact that, contrary to submissions, the trial judge ruled that it was admissible."

How applicable is the reasoning in those three authorities to the test of safety under the new Section 2(1) where there is a plea of guilty following an erroneous ruling, whether or not categorized as a ruling on a question of law? As Lord Bingham CJ said in Graham, the test of unsafety in its present form or as part of the old formula may be satisfied whether or not there has been a wrong decision on a question of law or a material irregularity. In that respect, the new provision does not, in substance, change the law. However, the single word "unsafe", uncluttered by other similar notions serving the same end, should, as Sir John Smith put it in his article in [1995] Crim. L.R. 922, "concentrate the mind on the real issue in every appeal from the outset".

In appeals against conviction following a plea of guilty, the somewhat mechanical test of whether a change of plea to guilty was "founded upon" a particular feature of the trial, namely a wrong direction of law or material irregularity, gives way to the more direct question whether, given the circumstances prompting the change of plea to guilty, the conviction is unsafe. However, even when put that way, the good sense of preferring the narrower interpretation, which we have identified, of the expression "founded upon" linger on. Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognizes that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.

We qualify the above propositions with the word "normally", because there remains the basic rule that the Court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the truth of the offence charged.

Here, Mr Cassel and Mr Brown have informed the Court that, following the Judge's ruling, they advised the appellants to plead guilty with a view to challenging the ruling on appeal and to save the time and expense of a long trial. They say that, in giving that advice, they had in mind the authorities of Shannon, Ordtec and Khan (Sultan), and were in ignorance of Bachu and Greene (the latter had yet to be decided). Mr Cassel relied, in particular, on the similarly expressed approach of the accused and their advisers in Khan (Sultan), and on the absence of any point taken about it in that case. He and Mr Benson said that the appellants pleaded guilty on that basis and did not thereby intend to admit their guilt.

However, as they have also told us, that is not the way in which they put the matter to the Judge when they addressed him in mitigation. In their submissions to him they acknowledged the guilt of the appellants of the conspiracy charged, urging only that their involvement and intentions were not as serious as the prosecution case, particularly the evidence of the tape recordings, might have suggested.

Mr Morrison, for the Crown, acknowledged that it was plain that the Judge's ruling of the admissibility of the tape recorded conversations had prompted the changes of plea to guilty. He said that that evidence, unchallenged as to its authenticity, content or effect, was overwhelming evidence of the appellants' guilt of conspiracy to rob. He maintained that the pleas of guilty amounted to an admission that the tape recorded conversations established their involvement in that conspiracy. He also relied upon the appellants' counsel's speeches in mitigation as a plain indication that the pleas were an acknowledgement of guilt, albeit prompted by the Judge's ruling. He produced for the Court transcripts of those speeches. They show that counsel, having indicated that the pleas flowed from the ruling, went on to advance various matters of mitigation amounting to plain admissions of guilt based, not only on the tape recorded conversations, but also on the other prosecution evidence of police observations and the discovery of the firearms.

Thus, Mr Benson, for Jeffries, invited the Judge to give him good credit for his plea of guilty, explaining that it had not been tendered earlier because he (counsel) had advised Jeffries not to plead guilty until he had a ruling on the admissibility of the tape recorded conversations. He went on to minimize the seriousness of the conspiracy, adding that Jeffries' record of previous convictions was such that he was "totally out of his depth when involved in this conspiracy". Mr Benson then sought to make good that proposition by describing what Jeffries had and had not agreed and done in pursuance of the conspiracy. He emphasised his involvement with Chalkley and his excitement in the planning of the robberies and the obtaining of the firearms and other equipment for them, and acknowledged his part in at least one overt act, the abortive raid on the St. Neots Post Office. Before turning to Jeffries' personal circumstances, Mr Benson said this:

"One thing that has impressed me is that since he decided to plead guilty - I will come to that again in a moment, because it was a voluntary plea - he has not expressed one word of self pity. His main considerations have been for his mother and his children and the hurt that he has caused those close to him and his family. ... He knows now that the moment of judgment has come and that there is not anybody to put in as much time as he had been putting in to help his mother. That is another reason why he feels particularly ashamed of his activities and fearful of the obvious lengthy prison sentences that your Honour is going to have in mind. It is for those reasons ... he is not expressing one word of self pity. He acknowledges that he has brought that harm and hurt to the people around him."

Finally, Mr Benson said this about Jeffries' failure to surrender to his bail on the day after the Judge's ruling:

"... he was dismayed and frightened if your Honour ruled the admissibility of those covert tapes. He realised that the game was up. He needed time to think. He was surrounded by his co-accused. He needed some sanctuary to come to terms with what was inevitably going to happen. He telephoned his solicitors ... and was given the obvious advice. He thought about it ... When he turned up he had already decided to plead guilty on the terms that your Honour knows and he has maintained that resolve since then."

Mr Cassel adopted on behalf of Chalkley what Mr Benson had said about "the pleas of guilty tendered" and added some comments of his own. These included the following:

"... I am sure that there is no question here of any violence having been committed on anybody or any guns used in relation to attempted or actual robbery that took place during the course of this conspiracy.

... it is not often in a conspiracy case that a judge in passing sentence knows quite so much of the circumstances of the planning of robbery. Your Honour has had the opportunity not only of hearing Mr Morrison today open various extracts from the taped conversations, but your Honour will have had the opportunity also of reading of [sic] whole of those taped conversations. We would submit this on behalf of Mr Chalkley: that it is plain from those taped transcripts and from the police observations that Mr Chalkley was not the prime mover in this conspiracy. We would put it in this way: that he joined a conspiracy which had been put to him by another or by others. That is plain, we submit, on the face of the taped conversations."

There is nothing in the transcript of those submissions to support Mr Cassel's suggestion that he and Mr Benson put the matter to the Judge on the basis that the plea was not a true acknowledgment of guilt, but merely a tactical and expedient way of enabling them to challenge the ruling in the Court of Appeal whilst saving everybody the time and expense of a long trial [2] - quite the contrary. Even if they communicated that intention to the Judge in some other way, we confess to some surprise that leading counsel of such experience could advise lay clients to plead guilty and mitigate to the court on the basis of their guilt if their instructions were to the contrary.

We can only proceed on the basis that Mr Benson and Mr Cassel, in their advice to the appellants and in their submissions to the Judge, acted in accordance with the instructions of the appellants. Such a stance is consistent only in the circumstances of this case with the appellants' clear recognition that the tape recorded evidence against them was so powerful a demonstration of their guilt that their continued denial of it would be hopeless.

We are not impressed with the suggestion, whether or not expressed at the time, of expediency as a justification for their change of plea, that is, the claimed saving of the time and cost of a possibly abortive trial. If that were a justification in itself, it would be open to any defendant, who having unsuccessfully sought to exclude evidence against him, to change his plea to guilty because of its damning nature with a view only to seeking to over-turn his conviction on the point of admissibility on appeal. If he were allowed to go behind his plea of guilty in such a way, it would deprive the trial jury of determining his guilt or innocence on the evidence ruled admissible by the judge. And, in the event of success or failure of the appeal on the point of admissibility, it could enable him to encumber a second jury with the task. In our view, the proper course would have been that indicated by Glidewell LJ in Eriemo in the passage that we have set out. The appellants should have maintained their pleas of not guilty, if that was truly their stance, fought the case and, in the event of conviction, then sought leave to appeal.

This is not, therefore, a case in which the appellants can succeed on the basis that their convictions are unsafe because their pleas of guilty were, in the proper sense of the old test "founded upon" the Judge's ruling.

There are two other possibilities.

The first is that the appellants misunderstood the effect or object of their pleas of guilty as the result of counsel's advice to them, namely that their pleas were induced by mistake of law or fact; see R v. Emmett, 13th November 1997, HL, per Lord Steyn at 6, and per Sir John Smith in his commentary on Greene [1997] Crim. L.R. 659. However, even if counsel advised them that they could challenge their conviction notwithstanding their admission of guilt by way of pleas of guilty, they cannot rely on such a procedural or tactical error to go behind pleas which their counsel on their instructions put to the Judge in mitigation as genuine acknowledgments of guilt. Wrong advice or no as to their prospect of a successful appeal, they pleaded guilty because they were guilty and because, having regard to the Judge's ruling, they knew that they had no practical chance of acquittal.

The other, and final, possibility is Mr Cassel's suggestion, which overlapped with his argument on the issue of the admissibility of the evidence, that the appellants' pleas of guilty were induced by oppression and/or that the circumstances of the ruling and their reaction to it, taken as a whole, entitle the Court to go behind those pleas. It should be noted that the oppression of which Mr Cassel complained was not oppression by the Judge or any special circumstances in the conduct of the proceedings, but that of the police in obtaining and relying on evidence which, he submitted, the Judge had wrongly admitted.

Such a suggestion necessitates a return to the removal of the word "unsatisfactory" from Section 2(1) of the 1968 Act as a ground of appeal against conviction. The new provision, in confining the test to one of safety of the conviction, may be, in this respect, narrower than before, depending on whether the word "unsatisfactory" signified an additional and independent ground for quashing a conviction or merely another way of saying "unsafe".

There are only one or two reported instances of the former interpretation (see e.g. R v. Llewellyn

(1978) 67 Cr App R 149

; R v. Heston-Francois [1984 QB 278, CA). However, more often than not the Court appears to have used the formula "unsafe or unsatisfactory" conjunctively or the two words interchangeably, most notably and recently in the Birmingham Six case, R v McIlkenny & ors

(1991) 93 Cr App R 287

, at 313 and 318, per Lloyd LJ, giving the judgment of the court. A similar problem arises with the removal of the apparently separate ground for quashing a conviction, the presence of "a material irregularity in the course of the trial". Has their disappearance, along with the catch-all proviso directing the Court to the presence or absence of a miscarriage of justice, removed its ability to quash a conviction where, for example, although it is satisfied that the conviction is safe, it is of the view that justice has not been seen to be done, thereby preventing it from resort to Lord Hewart CJ's famous axiom in R v. Sussex Justices, ex p. McCarthy

[1924] KB 256

, DC? See e.g. R v. Winston Smith

(1975) 61 Cr App R 128

, CA. and the commentary of Sir John Smith on R v. Dann in [1997] Crim. L.R. 46, CA, at 47-48.

In our view, whatever may have been the use by the Court of the former tests of "unsatisfactor[iness] and "material irregularity", [3] they are not available to it now, save as aids to determining the safety of a conviction. The Court has no power under the substituted Section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial. The editors of the third supplement to the current edition of Archbold refer to this as a "minor, but important, respect" in which the 1995 substitution has done more than just change the wording of the 1968 Act. Whilst we agree that it is an important change, it may not be "minor", particularly in those cases where, although the Court is of the view that justice has not been seen to be done, it is satisfied that it has been done - that is, that the conviction is safe. All of this is, however, subject to what the Court will make of

Article 6(1) of the European Convention

of Human Rights, entitling everyone charged with a criminal offence to a fair trial, when it becomes part of our domestic law. Such ECHR jurisprudence on the point as there is [4] suggests that procedural unfairness not resulting in unsafety of a conviction may be marked in some manner other than quashing the conviction.

An early case under the new statutory formula is R v. Bloomfield

[1997] Cr App R 135

, CA, where the accused sought a stay of prosecution on the ground of abuse of process because the prosecution had reneged on an indication to the court that it intended to offer no evidence against him. His application failed and he thereupon pleaded guilty. On appeal against conviction, the Court (Staughton LJ, Ian Kennedy J and HHJ Crane) quashed the conviction on the ground that, whether or no he had suffered prejudice:

"it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was."

The Court appears to have acknowledged the unsure jurisprudential basis for the decision because it went on to express the following caution, expressly referring to a similar approach of the Court (Lord Taylor LCJ and Pill and Sedley JJ) in the unreported case of R v. Mahdi, 15th March 1993:

"Of course the circumstances of each case have to be looked at carefully, and many other factors considered, As the Court said in the Mahdi decision, we are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this appellant. In those circumstances the appropriate course is to allow the appeal and quash this conviction."

In our view, whatever may have been the legal justification for such a flexible approach in Mahdi, when Section 2(1) included the possibly separate notion of an "unsatisfactory" conviction, there is no room for it now when the single test is one of "unsafe[ness]" of the conviction. We respectfully agree with the following reasoning and criticism of the decision by the editors of the third supplement to the current edition of Archbold, at paragraph 7-45:

"Whilst the prosecution's conduct, viewed as a whole, was undoubtedly unbecoming (and may have constituted grounds for granting a stay ...), this is a questionable basis for quashing the conviction. Apart from being misled into thinking that he was going 'to get away with it', it is difficult to see what injustice the accused had suffered. Neither the misconduct of the prosecution, nor the fact that there has been a failure to observe some general notion of 'fair play' are in themselves reasons for quashing a conviction. Section 2(1) of the 1968 Act is quite specific that the only ground for quashing a conviction (since the amendment by the Criminal Appeal Act 1995) is that the court thinks the conviction is 'unsafe'. This it is submitted, is clearly intended to refer to the correctness of the conviction (i.e. a conviction is unsafe if there is a possibility that the defendant was convicted of an offence of which he was in fact innocent). Unfortunately, the Court of Appeal, in their judgment, do not address this point."

Accordingly, we are of the view that there is no statutory scope now for the Court to consider, on appeal against conviction on a plea of guilty, circumstances of the Ordtec, or even the Mahdi or Bloomfield, nature where they do not go to the safety of the conviction. Even if there were, the circumstances of this case would not qualify for such unusual treatment.

We hold that the appellants' appeals against conviction fail because, by their pleas of guilty, they intended to admit and have admitted their guilt, and that their convictions are, therefore, safe.

The Fairness Of Admitting The Evidence

Mr Cassel and Mr Brown have attacked what Mr Cassel called the Judge's "purported exercise of his discretion" to admit the evidence of the tape recorded conversations. Mr Cassel's submission, which Mr Brown adopted, was that the Judge based his decision on an erroneous ruling of law that Chalkley and Carter were lawfully under arrest when the Regional Crime Squad officers installed the listening device in their home. He argued that the Judge should have found their arrest to have been unlawful and that such illegality, together with the other unlawful behaviour that he did identify, amounted to oppressive conduct requiring the exclusion of the evidence produced by the device. Mr Cassel said that the effect of the Judge's reliance on such an error of law in reaching his decision meant that it was no decision at all or - as he put it - no "exercise of his discretion" at all. He said that, therefore, he was not asking the Court to rule that the Judge's decision was so unreasonable that the Court should intervene, but that the Court should intervene anyway and exercise its own discretion in the matter.

Mr Cassel submitted initially that the Court, in deciding on the question of fairness in admitting this evidence, had to undertake a balancing act of the sort conducted by the Judge by reference to Bennett and Latiff & Shahzad. He put in the balance in favour of the appellants the arrests, which he maintained were unlawful, and the other unlawful conduct of the police, all of which he described as "oppression". He put in the balance in favour of the Crown the public interest in the apprehension and conviction of dangerous criminals. On that approach he maintained that the conduct of the police, in particular, the unlawful deprivation of liberty of Chalkley and Carter, was so oppressive that it outweighed the countervailing public interest in bringing allegedly dangerous criminals to justice. However, towards the end of his submissions he hardened his argument to maintain that where, as here, there was "oppression" of any kind, there was no need for a balancing exercise at all. He said that, if the proper view of the police conduct is that it was "oppressive" in any respect, the Court must exclude evidence obtained by means of it, however much in the public interest the oppressive conduct may have been.

The first matters for consideration are whether the Judge was correct on the facts as he found them to rule that police had lawfully arrested Chalkley and Carter, and whether, in the circumstances of the case, it matters. As to the lawfulness of the arrests, the question is whether it was sufficient for the Judge to rely, as he did, on his finding that all the officers concerned had reasonable grounds for suspecting their fraudulent use of the credit card, when he also found that that was not their real motive for making the arrests.

Section 24(6) of the Police and Criminal Evidence Act 1984 empowers a police officer to arrest without warrant a person for an arrestable offence if he has reasonable grounds for suspecting that he is guilty of that offence. The period of arrest continues until the arrested person has been released without charge or is remanded in custody or on bail by a magistrate. See Holgate-Mohammed v. Duke

[1984] AC 437

, HL, per Lord Diplock at 441G-H.

The fact that the Cambridgeshire police officers who made the arrests may have been ignorant of the real motive for them does not entitle the Court to focus just on their role and understanding of the matter -- and the Judge did not do that. He clearly treated the Cambridgeshire Police Force, acting through its Chief Constable and WDC Fletcher, and in cooperation with DC Harrison of the Regional Crime Squad, as having a "corporate" state of mind for the purpose of testing the legality of the arrests. As to satisfaction of Section 24 of the 1984 Act, "reasonable grounds for suspecting" Chalkley and Carter to be guilty of an arrestable offence, we cannot fault the Judge's conclusion that all the officers concerned had such grounds. In particular, we agree with him that WDC Fletcher's information, which she passed to DC Harrison and to the Cambridgeshire officers who were to make the arrests, constituted reasonable grounds for suspecting the involvement of the two in the credit card fraud. And we can see no basis for rejecting the Judge's conclusion that they did not know or believe, when making the arrests, that there was no possibility of charges for those offences following, as in Plange v. Chief Constable of South Humberside Police

(1992) TLR 137

But what about the real or main purpose of the arrests? Is it enough to avoid illegality, as the Judge found, that, although that purpose had nothing to do with the suspected offences the subject of the arrests, it had all to do with the laudable motive of securing the appellants' apprehension for, and the prevention of further, far more serious crimes?

Mr Cassel submitted that the answer is "No" for a number of reasons.

First, he argued that, however laudable the purpose might have been, it was irrelevant to the decision whether to exercise the power of arrest in the circumstances. He referred to the following passage from the speech of Lord Diplock in Holgate-Mohammed, at 443D-E:

"... the discretion [to arrest] must be exercised in good faith. ... 'He [sc. the exerciser of the discretion] must exclude from his consideration matters which are irrelevant to what he has to consider.'"

Second, Mr Cassel submitted that the arrests were illegal because the arresting officers had not informed Chalkley and Carter of the true reason for their arrest. Whilst, on a narrow view of the matter, they may have told them of the ground, in the sense of a valid legal ground for the arrests, as required by Section 28(3) of the 1984 Act, they did not tell them the true reason for their ostensible reliance on that ground. He referred to the celebrated authority of Christie v. Leachinsky

[1947] 1 All ER 567

, and, in particular, to the following two of a number of propositions of Viscount Simon at page 572:

"1. If a policeman arrests without warrant on reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

2. If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment."

Lord Simonds also expressed the same principle in broad but, as we shall see, not unqualified, terms. He said, at pages 576H and 575A-E:

"a man is not to be deprived of his liberty except in due course and process of law." and "... if a man is to be deprived of his freedom, he is entitled to know the reason why."

Accordingly, Mr Cassel submitted, the unlawful means by which the police had obtained the tape recorded evidence included the unlawful arrests of Chalkley and Carter, and that illegality, coupled with the deceit, amounted to oppressive conduct. He maintained that the Judge's ruling that the arrests were lawful was wrong in law and that, therefore, he had not exercised a proper discretion in the matter. He said that it followed that this Court could look at the matter anew and make its own decision as to the fairness of admitting the evidence.

Mr Morrison submitted that the arrests were lawful in that the police officers had reasonable grounds for suspecting Chalkley and Carter to have committed the credit card fraud. He maintained that the fact that the real reason for the arrests was to enable the police to bring the two appellants to justice for far more serious offences and to stop them committing them did not make the arrests unlawful. In the alternative, he submitted that, even if the arrests were unlawful, the police did not behave oppressively; they did all that they could to minimize such illegality as there was and they did what they did in a good cause and as the only practicable way of achieving it. On that approach, he maintained that the Judge conducted properly the balancing exercise described by Lord Steyn in Latiff & Shahzad and that his view as to the lawfulness of the arrests did not vitiate his decision. In short, he submitted that, although the possibly wrongful deprivation of liberty was a serious matter, the reality is that it was only for a short period and was far outweighed by the public benefit of ultimately removing persons from society bent on a course of serious robberies, involving the use of firearms and possible serious injury or death to innocent people.

In our view, the Judge correctly held that the arrests were lawful. We acknowledge the importance of the liberty of the subject. It is a fundamental right of which he may only be deprived by the due process of law, which process includes an entitlement to be told why he is being deprived of it. However, a collateral motive for an arrest on otherwise good and stated grounds does not necessarily make it unlawful. It depends on the motive. That is clear from the materially different facts of Christie v. Leachinsky and the qualified manner in which the Members of the Judicial Committee expressed the important principle for which the case is famous.

First, as to the facts, there, the police informed Leachinsky of a ground of arrest which was not a valid ground for it; here the suspected credit card fraud was a valid ground for the arrests. There, there was an alternative and valid ground for arrest of which the officers had not informed him; here there was no alternative ground or reason, valid or invalid, for arrest as distinct from the object of removing Chalkley and Carter from their house for a while to enable the installation of the device.

Second, Viscount Simon, Lord Simonds and Lord Du Parcq, with whom Lords Thankerton and Macmillan agreed, were all of the view that there were qualifications and possible exceptions to the general principle that the police, in making an arrest, should be motivated only by matters relevant to the suspected offence and should tell the subject the true reason for it. Viscount Simon said at page 573B-C:

"There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter."

Lord Simonds and Lord Du Parcq, at pages 575F-H and 581H-582A respectively, allowed for the legality of arrest and detention by the police of a man on one charge on which they have reasonable grounds for suspecting his guilt, but with the real or main purpose of enabling them to investigate another, possibly more serious, offence of which they have as yet no such grounds and with a view to preventing his escape from justice. As Lord Simonds observed:

"In all such matters a wide measure of discretion must be left to those whose duty it is to preserve the peace and bring criminals to justice."

The reasoning for that well-known and respectable aid to justice, "a holding charge", seems to us equally appropriate to circumstances where, as here, the police have, and have so informed the subject(s) when arresting them, reasonable grounds for doing so, but were motivated by a desire to investigate and put a stop to further, far more serious, crime. Accordingly, we agree with the Judge's ruling that the arrests were lawful.

However, even if, contrary to our view, the arrests were unlawful because the reason for them was irrelevant to the stated grounds for them and/or because the police did not tell Chalkley and Carter the true reason, we do not consider that our approach to the Judge's decision should be any different. On the facts as he found them, the categorisation of the arrests as unlawful would not change the quality of the police conduct that he went on to consider. Even though we are concerned with the citizen's fundamental right to freedom, it does not seem to us that the label of unlawfulness in the circumstances makes that conduct any more or less oppressive or deceitful, or whatever pejorative adjective is in play, so as to unbalance or render incomplete or improper the Judge's reasoning or "exercise of discretion" on the matter.

We also say here, though it is strictly more relevant to Mr Cassel's submission about the balancing exercise undertaken by the Judge, that we reject as contrary to the wording of Section 78 and the authorities that any conduct which may be typified as "oppressive" automatically requires exclusion of evidence obtained thereby. Just as the labelling of conduct as unlawful does not necessarily change its character for this purpose, nor does the application to it of the epithet "oppressive" automatically override the fundamental test of fairness in admission of evidence. Oppressive conduct, depending on its degree and/or its actual or possible effect, may or may not affect the fairness of admitting particular evidence. The test for the Judge was what was fair "having regard to all the circumstances", and the single criterion for this Court is the safety of the convictions.

But for the way in which the Judge, fortified by his ruling as to the lawfulness of the arrests, framed his reasoning as part of an exercise in balancing countervailing circumstances, as is done in abuse of process cases, we would see no basis upon which the Court could substitute its own decision for his. There can be no doubt that, in his recital of the various circumstances, he dealt fully and reasonably with all those going to the question of fairness of the admission of the evidence. And it may be that we could say that his decision was not unreasonable in a Wednesbury sense by a process of "filleting" his reasoning to confine it to matters relevant to that question. However, his treatment of all those matters and others as part of a balancing exercise has given us some reason to pause.

We have put the words "exercise of discretion" in this context in quotation marks because, as the Court said in R v. Middlebrook & Cogill (unreported), 18th February 1992, the task of determining (in)admissibility under Section 78 does not strictly involve an exercise of discretion. It is to determine whether the admission of the evidence:

"having regard to all the circumstances, including the circumstances in which the evidence was obtained, ... would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

If the Court is of that view, it cannot logically "exercise a discretion" to admit the evidence, despite the use of the permissive formula in the opening words of the provision that it "may refuse" to admit the evidence in that event.

The determination of the fairness or otherwise of admitting evidence under Section 78 is distinct from the exercise of discretion in determining whether to stay criminal proceedings as an abuse of process. Depending on the circumstances, the latter may require consideration, not just of the potential fairness of a trial, but also of a balance of the possibly countervailing interests of prosecuting a criminal to conviction and discouraging abuse of power. However laudable the end, it may not justify any means to achieve it. See Ex p. Bennett, per Lord Griffiths at 61H-62C; and R v. Latif & Shahzad

[1996] 1 All ER 353

, HL, per Lord Steyn at 360g-361g.

At first sight, the words in Section 78 "the circumstances in which the evidence was obtained" might suggest that the means by which evidence was secured, even if they did not affect the fairness of admitting it, could entitle the court to exclude it as a result of a balancing exercise analogous to that when considering a stay for abuse of process. On that approach, the court could, even if it considered that the intrinsic nature of the evidence was not unfair to the accused, exclude it as a mark of disapproval of the way in which it had been obtained. That was certainly not the law before the 1984 Act. And we consider that the inclusion in Section 78 of the words "the circumstances in which the evidence was obtained" was not intended to widen the common law rule in this respect as stated by Lord Diplock in Sang. That is that, save in the case of admissions and confessions and generally as to evidence obtained from the accused after the commission of the offence, [5] there is no discretion to exclude evidence unless its quality was or might have been affected by the way in which it was obtained. See Sang, per Lord Diplock at pages 434D-437E, especially at page 437E. As we have said, the House of Lords in Khan (Sultan) has applied the same test to Section 78. All their Lordships were of the view that, regardless of a possible impropriety in the form of an apparent infringement of the right of privacy declared in

Article 8 of the European Convention

, the critical test under Section 78 and at common law is whether the impropriety affected the fairness of the proceedings. It was in that sense that Lord Nolan, with whom all their Lordships agreed on this point, acknowledged at page 450C-D the trial judge's common law and Section 78 jurisdiction to exclude evidence otherwise admissible. He said:

"Your Lordships' House in R v. Sang and the many decisions which have followed it make it plain that as a matter of English law evidence which is obtained improperly or even unlawfully remains admissible, subject to the power of the trial judge to exclude it in the exercise of his common law discretion or under ... Section 78...."

Mr Cassel sought to rely on this passage as an acknowledgment that Section 78 entitles a trial judge to embark on the sort of exercise appropriate in applications for a stay for abuse of process even where he is of the view that there is no unfairness in the evidence itself. That Lord Nolan had no such intention is apparent from the following passage from his speech at page 455A-B:

"... if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings."

LORD JUSTICE AULD: Just allow us to read them for a moment. Yes, thank you.

MR CASSEL: My Lord, your Lordships having read them it is not necessary, I do not think, for me to go through them one by one. My Lords, each of those questions, we would submit, is of importance and each of those questions is a live question which arises as a result of your Lordships' draft judgment. In those circumstances I would invite your Lordships to certify them under section 33?

LORD JUSTICE AULD: Miss Litherland?

MISS LITHERLAND: My Lord, yes. I apologise, Mr Brown is too ill to come to court today.

LORD JUSTICE AULD: I am sorry to hear that. Not seriously, I hope?

MISS LITHERLAND: I hope not, my Lord. As I understand this case has largely been conducted by Mr Brown on behalf of Mr Jeffries who has endorsed and reiterated all that my learned friend has said on behalf of Chalkley and I do the same today.

LORD JUSTICE AULD: Mr Morrison?

MR MORRISON: My Lord, like you I have only recently had an opportunity to look at these questions. I anticipate that these are essentially matters for the court. They turn on the basis of the ruling the court has already made.

LORD JUSTICE AULD: Thank you, Mr Morrison. Mr Cassel, we would like to consider which, if any, of the questions we should certify and, if so, in what terms, and also to consider in addition whether we grant leave. But thank you for drawing them up.

Now there is in addition, as I said, a reference to this court by the single judge of both application for leave to appeal against sentence, is there not?

MR CASSEL: Yes.

( The court was addressed on behalf of each appellant in relation to applications for leave to appeal against sentence )

LORD JUSTICE AULD: The appellants' applications for leave to appeal against sentence have been referred to this court by the single judge. As we have said, the Judge sentenced each of the appellants to 10 years' imprisonment for the offence of conspiracy to rob. In addition he imposed a concurrent sentence on Jeffries of three months' imprisonment for absconding -- i.e. in breach of his bail -- for a short period during the course of the trial.

We have set out the circumstances of the offence in our judgment on the appeals against conviction. This was a deadly serious conspiracy in which these two men, sometimes with others, made elaborate and costly plans to attack and rob with loaded firearms supermarkets, postal vans and/or post offices. We say elaborate and costly because the plans included the tuning-in to police radio wavelengths, diversionary measures to distract the police while the proposed offence or offences were to be committed, and measures to obstruct or slow the access of police vehicles that might come to the scene. A particular example is that of a metal bar with spikes found on a road near the scene of one of their activities. They were equipped with all the familiar paraphernalia of those who plan robberies of large-scale commercial premises involving the use of firearms. Between them this included sawn-off shotguns, a full-length shotgun, ammunition for them, CS gas canisters, a radio scanner tuned to police frequencies, balaclava helmets and boiler suits.

Both appellants are in their mid-thirties and both have previous convictions, though none of this seriousness. Both, through their counsel today, maintain that the sentences are manifestly excessive, first, because the Judge failed to have sufficient regard to their pleas of guilty to conspiracy as distinct from the commission of any overt acts in the furtherance of it. They both maintain that the Judge failed to give them sufficient credit for their changes of plea to guilty during the course of the trial. They both emphasise their lack of any previous convictions of such seriousness. In addition Mr Cassel, on behalf of Chalkley, maintained that the Judge should have treated him less severely than Jeffries because Jeffries was the prime mover, had more and more serious previous convictions than him and had absconded during the trial. Miss Litherland on behalf of Jeffries advanced certain matters of individual personal mitigation.

The Judge in his sentencing remarks said this about the offence itself:

"In my view this was persistent, careful and detailed planning. It involved the proposed carrying of firearms and the determination and the attitudes to those who might be involved as victims, mentioned on the tapes, make at times chilling reading.

The targets discussed were a supermarket and a postal van or possibly a sorting office. It is plain there was a detailed reconnaissance. On 17 March 1994 I am satisfied that you actually set out with others to commit an armed robbery, but it did not in law or in fact go so far as an attempt, but it was, as you yourself described it on 31 August, a brilliant plan which could have worked if too many people had not known of it and caused it to go wrong."

A little later he made this observation:

"This activity, the planning, the talk was spread over a period of about six months. Having read the conversations carefully and considered the rest of the evidence and what was said, I am satisfied that if you had not been arrested on 20 September 1994, the matter discovered and the kit taken there would, sooner rather than later, have been an attack on one or more of the proposed targets."

As to their pleas of guilty, he said that he gave them substantial credit, though not quite as much as he would have done if they had acknowledged their guilt from the outset. It is plain from the rest of his sentencing observations that the appellants' previous records of comparatively minor offences had little, if any, significant effect on the fixing of sentence for an offence of this gravity. It is also plain that, having listened to the tape records of a number of the appellants' conversations, and having read the transcripts of others, he formed the view that they were equally culpable.

Despite the submissions made today by Miss Litherland and Mr Cassel, we cannot fault the Judge's reasoning or the sentences that he imposed. This was, as we have said, a deadly serious conspiracy -- literally so because, if it had not been stopped, it could well have ended in serious injury or death to one of their intended victims. In an offence of such a nature and gravity, previous convictions of a lesser and different nature are of little significance, certainly not for the purpose of fine-tuning of the treatment of the would-be robbers. As we have said, the Judge, having heard their tape-recorded conspiratorial plotting and planning, was in the best position to judge whether their conduct merited the same sentences. Accordingly, we dismiss both of these applications.

Mr Cassel and Miss Litherland, thank you for preparing the draft of the questions for certification. We shall, as I have said, consider them, consider whether to settle and certify any question or questions and in what form and, if so, whether to grant leave, and we will notify the parties in writing.

MR CASSEL: I am obliged, my Lord.

LORD JUSTICE AULD: Should you wish to address the court on any matter arising out of that, then of course we will make arrangements for you to do so. But we have to have regard to the running of time certainly in the new year. Thank you all for your great assistance in this case.

[ ] 1 substituted for "verdict" by the Criminal Law Act 1977, section 44.

[ ] 2 as had been made plain in Khan (Sultan) , see per Lord Nolan at 444G-445C.

[ ] 3 See the penetrating and engaging analysis of Sir Louis Blom-Cooper QC in "The Birmingham Six" and other cases, Victims of Circumstance, 1997, Cap. V

[ ] 4 See Murray v United Kingdom

[1996] 22 EHRR 29

; Saunders v United Kingdom

[1996] 1 Cr App R 463

(1996) 22 EHRR 313

, 342, para 86; R v Morrissey The Times 1 May 1997 and Coyne v United Kingdom 26 September 1977. For a helpful summary of these recent authorities and the light that they may shed on the notion and effect of unsatisfactoriness of a conviction regardless of its safety, see Sir Louis Blom-Cooper QC, op. cit. pp 74-77.

[ ] 5 e.g. R v. Payne (1963) 47 CAR 122; Callis v. Gunn (1964) 48 CAR 36, per Lord Parker CJ at 40. It is in that light that Woolf LJ's observations in Matto v. Wolverhampton Cr. Ct. (1987) RTR 337, DC, at 346 should be read.

Cited in 31 later judgments

and 22 more of the most senior

Chalkley & Anor, R v [1997] EWCA Crim 3416

LORD JUSTICE AULD:

The Issues

The Facts

the Judge described this part of the story, at page 5 of the transcript of his ruling:

The Judge's Findings Of Fact

the Judge found:

The Judge's Ruling On The Lawfulness Of The Arrests

The Judge's Approach To Section 78

The Effect Of The Pleas Of Guilty

The Fairness Of Admitting The Evidence

See also the observations of Lords Slynn and Nicholls at pages 444B and

LORD JUSTICE AULD: Just allow us to read them for a moment. Yes, thank you.

LORD JUSTICE AULD: Miss Litherland?

LORD JUSTICE AULD: I am sorry to hear that. Not seriously, I hope?

LORD JUSTICE AULD: Mr Morrison?

LORD JUSTICE AULD: Thank you, Mr Morrison. Mr Cassel, we would like to consider which, if any, of the questions we should certify and, if so, in what terms, and also to consider in addition whether we grant leave. But thank you for drawing them up.

The Judge in his sentencing remarks said this about the offence itself:

LORD JUSTICE AULD: Should you wish to address the court on any matter arising out of that, then of course we will make arrangements for you to do so. But we have to have regard to the running of time certainly in the new year. Thank you all for your great assistance in this case.

Cited in 31 later judgments