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

EWCA-Crim
Chalkley & Anor, R v
[1997] EWCA Crim 3416 · 1997-12-19
[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."
See also the observations of Lords Slynn and Nicholls at pages 444B and 456A-B respectively, in particular Lord Nicholls who said:
"... the discretionary powers of the trial judge to exclude evidence march hand in hand with article 6.1 of the European Convention of Human Rights. Both are concerned to ensure that those facing criminal charges receive a fair hearing. Accordingly, when considering the common law and statutory discretionary powers under English law the jurisprudence on article 6 can have a valuable role to play. English law relating to the ingredients of a fair trial is highly developed. But every system of law stands to benefit by an awareness of the answers given by other courts and tribunals to similar problems. In the present case the decision of the European Court of Human Rights in Schenk v. Switzerland (1988) 13 EHRR 242 confirms that the use at a criminal trial of material obtained in breach of the rights of privacy enshrined in article 8 does not of itself mean that the trial is unfair. Thus the ECHR case law on this issue leads to the same conclusion as the English law."
The exercise for the Judge under Section 78 is not the marking of his disapproval of the prosecution's breach, if any, of the law in the conduct of the investigation or the proceedings, by a discretionary decision to stay them, but an examination of the question whether it would be unfair to the defendant to admit that evidence. Because of our unease about the possible effect on the reasoning of the Judge of his adoption of the balancing appropriate to abuse of process cases, we consider that the proper course is to make our own decision about the fairness of admitting this evidence. We have no doubt whatever about the fairness of doing so. As we have said, there was no dispute as to its authenticity, content or effect; it was relevant, highly probative of the appellants' involvement in the conspiracy and otherwise admissible; it did not result from incitement, entrapment or inducement or any other conduct of that sort; and none of the unlawful conduct of the police or other of their conduct of which complaint is made affects the quality of the evidence. In the circumstances, we can see no basis for concluding that the admission of this evidence would, in the words of Section 78, have had such an adverse effect on the fairness of the proceedings that the Judge should not have admitted it. Accordingly, we would dismiss the appeals on that ground also. Mr Cassel, Miss Litherland there are also applications for leave to appeal against sentence. MR CASSEL: My Lord, before we reach that point, in anticipation of your Lordships' judgment I have drafted six questions which I would invite your Lordships to certify as points of law of general public importance. My Lord, may I hand up three copies, one for each of your Lordships? Can I take your Lordships through them? 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. © 1997 Crown Copyright

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