REGINA v NICHOLAS ROBERT NEIL MULLEN [1999] EWCA Crim 278

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[1999] EWCA Crim 278Case No No: 9704978/Z3Venue Royal Courts of Justice, The Strand, London WC2
Between
REGINANICHOLAS ROBERT NEIL MULLEN
Before
The Vice PresidentLord Justice RoseMr Justice ColmanMr Justice Maurice KayMR C MACKAY QC and MISS C LLOYD-JACOB appeared on behalf of the AppellantMR N SWEENEY appeared on behalf of the CrownDate 4 February 1999
[1]THE VICE PRESIDENT: On 8th June 1990, at the Central Criminal Court, the appellant was convicted following a trial before Mr Justice Hidden of conspiracy to cause explosions, likely to endanger life or cause serious injury to property. He was sentenced to 30 years' imprisonment.[2]Initially he applied for leave to appeal only against sentence and, following refusal by the Single Judge, the Full Court refused leave in March 1991. Seven years after the trial, a differently constituted division of the Full Court granted his application for an extension of time and leave to appeal against conviction following refusal by the Single Judge. The grounds argued before this Court, in support of his appeal, relate solely to the circumstances of his deportation from Zimbabwe to England prior to his trial. No challenge is sought to be made to the conduct of the trial itself and the appeal has proceeded on the basis that, if it was fair to try him, the appellant was properly convicted.[3]It is unnecessary to refer to the facts of the case save in the briefest outline. Following a shooting incident in Battersea, in the early hours of 21st December 1988, the police searched a flat at 8, Staplehurst Court, Battersea. They found over 100lbs of Semtex, timing and power units for detonating various types of bomb, a number of ready made car bombs, blasting incendiary devices, mortar bomb equipment, firearms and ammunition. The prosecution alleged that the appellant was responsible for renting those and several other premises used by the bomb makers and for supplying them with false birth certificates and driving licences. He also obtained a number of cars for them and arranged banking facilities at two building societies. He wrote an inventory of bomb making equipment which was found at Staplehurst Court. Traces of Semtex were found in two of the cars which he had bought.[4]The defence was that the appellant had arranged the premises, banking facilities and false documentation for two men whom he believed would use them in a credit card fraud. He was unaware of IRA involvement until 14th December 1988 when, having been informed by them of that involvement, he sought to withdraw from the scheme. He claimed that they had fired a gun at him and made threats in relation to his girlfriend and child. He had written the inventory under duress at their dictation.[5]On 20th December 1988 the appellant, his girlfriend and their daughter flew to Zimbabwe. In circumstances which we shall consider in more detail later he was brought back to the United Kingdom from Zimbabwe on 7th February 1989 by a Zimbabwean immigration officer. At Gatwick Airport English police boarded the plane, arrested the appellant and took him for interview. When interviewed, in the presence of his solicitor, the appellant admitted some matters and explained others but did not say much and many of his explanations were qualified. In evidence before the jury he denied that he had ever been a member of the IRA or any other terrorist organisation and said that he had not knowingly helped the IRA. He had English and Irish passports and a lengthy criminal record. He described meeting a man called Martin in May 1988 who had been running a successful credit card fraud in Ireland. The appellant agreed to rent a house for him to facilitate a similar enterprise in England. He described renting a number of properties, opening building society accounts and acquiring cars. He gave an account, in support of his claim, that until 14th December 1988 he was not aware of IRA involvement and claimed duress, both in relation to the list of terrorist equipment which he had written and otherwise. He flew to Zimbabwe on 20th December on a ticket bought, for the 21st December, the previous month. He did not, in interview, tell the police about the events which he claimed had occurred on 14th December.[6]Before coming to the rival submissions in relation to this appeal, it is convenient to rehearse the relevant parts of material which has been disclosed to the defence for the purposes of this appeal in the form of a Summary for Disclosure, following a PII hearing before this Court. It is conceded by Mr Sweeney, on behalf of the Crown, that, in the light of the House of Lords decision in R v Mills [1998] AC 382 , as the common law now stands and must therefore be taken to have been in 1990, this material ought voluntarily to have been disclosed by the prosecution, to the defence, at the time of trial.[7]The Summary for Disclosure ordered shows that on 29th December 1988 the London police contacted the Zimbabwe Central Intelligence Organisation (CIO), and on 6th January 1989 there was a meeting between the police and the secret intelligence service (SIS) in London to see if the appellant could, secretly, be summarily deported from Harare to London. On 10th January there was ample evidence to suggest that he had acted as a facilitator for an active service unit; and, on 19th January, an SIS officer was "asked to discover whether, and if exactly how, Mullen could be returned from Zimbabwe into police custody and to discover whether he could be expelled direct to the UK....and what steps were needed to expel him"; the aim was "foolproof return of Mullen to London". On 20th January the CIO indicated they "did not want to get involved in extradition which was likely to get bogged down. However the SIS officer was informed that it should be possible to obtain approval for Mullen's deportation direct to the UK but it was not certain at present that the evidence was sufficient". On 20th January the SIS in London indicated that every SIS step would require the utmost care "with a constant eye on any subsequent legal proceedings in London". The CIO were provided by an SIS officer with a draft paper recommending deportation for illegally using false identities in Zimbabwe, misrepresenting his occupation, illegally trafficking in precious stones and using Zimbabwe as a safe haven for activities in support of international terrorism. The appellant was described as a violent man, with a knowledge of firearms and explosives. At a meeting in London, the police indicated that "it could be detrimental to any future legal proceedings in England if it appeared that his return was by means other than official channels". Any move by the Zimbawean authorities to exclude Mullen must be based solely on his activities in Zimbabwe. Any action taken must at all costs be capable of withstanding close judicial scrutiny in England. On 23rd January, a second draft, adding a fifth ground for deportation, namely that Mullen was conducting business in Zimbabwe, contrary to the conditions attached to his temporary employment permit, was prepared by the SIS and delivered to the CIO. By the same date it had been agreed that extradition would be likely to fail for political reasons. The Zimbabwean authorities' "normal procedure in a deportation case was for the person to be deported to the country that he had originally departed from and such cases were normally acted upon before the subject had time to secure the services of a lawyer. If the process after Mullen's arrest became protracted for any reason and he obtained a lawyer there would be a risk that Zimbabwean authorities would be pressured into deporting him elsewhere". On the same day, the SIS in London indicated that "we do not want to appear to be the demanders" at a meeting the following day which was to take place between the Deputy Director General of the CIO (the DDG) and a SIS officer.[8]At that meeting, on 24th January, after indicating that the pursuit of the IRA and its active supporters was a matter of the highest priority for the UK government, the SIS officer told the DDG that, if at all possible, they wished to avoid "becoming involved in complicated extradition proceedings". The DDG indicated his agreement that the United Kingdom should be going for deportation. On 27th January, at a meeting in London between the SIS and the police, it was agreed that the best way forward was for any deportation to be based upon Mullen's declaration that he had had no previous convictions when applying for a permanent residence. It was believed that this alone would be "adequate for Mullen to be seized in Zimbabwe (with timing stage-managed shortly before a direct flight to London) and deported to the UK in short order". On 30th January the SIS agreed that Mullen's criminal record "ought to clinch the case for deporting him".[9]On 1st February, at a meeting in London attended by officials from the police, the SIS, the security service, the Foreign & Commonwealth Office and the Home Office, eight matters were minuted: the police were not in a position to apply for extradition; Mullen's own activities had brought him to the note of the Zimbabwe authorities; the Zimbabwe authorities had asked the British police for details of his criminal record as a result of his residency application; the implication of his Irish citizenship needed to be considered carefully; the government had to be ready to respond with indisputable evidence that any deportation had been entirely at the instigation of Zimbabwe for breach of local laws; if Zimbabwe decided to deport there would be considerable advantage in not telling Mullen until shortly before he was put on a flight "in order to minimise the risk of him trying to appeal against deportation"; it would be important to ensure that the High Commissioner and all Zimbabwe departments were aware that the UK government was not involved in any way; Mullen should be put on a plane quickly and the line for media and parliamentary enquiries should be that "the deportation proceedings were not in response to any request from the UK government and that there should be no action which might be construed as evidence of collusion between the two governments".[10]On 2nd February the SIS agreed that the cardinal principle "must be that no official request has at any time been made to the authorities of Zimbabwe by the authorities of the UK. This is crucial". Reference was specifically made to "the Mackeson case" and "considerable anxiety was expressed .... that witnesses might subsequently be found in Zimbabwe who would be prepared to tell it like it is." There was agreement on a line said to be "sustainable, true and non prejudicial to the legal case which may follow" which, among other things, falsely claimed that the Zimbabwean authorities had routinely verified Mullen's personal particulars and in so doing consulted the UK police as to whether he had a criminal record. The view was expressed that "the ideal would be for Mullen to be arrested shortly before the departure of a direct flight and put aboard it. A stage manager's skills would be essential here. .....If Mullen claimed rights as an Irishman not to be sent to the UK a suggested line is that the CIO had uncovered evidence locally of false documents and the use of false identities and cannot take any claim by Mullen at its false value. His Irish passport may or may not be genuine." On the same day the decision was taken not to comply with the normal practice of informing the Irish embassy in Lusaka about Irish citizens in trouble in Zimbabwe. The SIS officer in Zimbabwe recorded that his objective was to 'lean on' the DDG of the CIO "as hard as I deemed prudent in order to achieve the right decision over Mullen". The officer made a personal appeal to the DDG to help secure deportation to the UK. The SIS officer in Zimbabwe sought guidance as to whether he should arrange for Mullen's deportation to be reported on FCO channels "as this would provide an answer in subsequent court proceedings as to how the police in the UK were alerted in advance of Mr Mullen's arrival".[11]On 6th February the DDG of the CIO issued instructions that "no indication whatsoever be given to Mullen of CIO's knowledge of his IRA activities .....and no hint or suggestion must be imparted to avoid future arguments being used by him in court". He further instructed "that he be allowed no access whatsoever to his lawyers". When he was arrested on 6th February the appellant said that the Zimbabwean officials were acting on behalf of the British security services and that he was being picked up not for what he had done in Zimbabwe but because he was a member of an Irish Socialist organisation. On 8th February the DDG said he had taken the decision to deport Mullen himself without consulting ministers in advance.[12]In making immigration declarations to the Zimbabwean authorities in November 1988, the appellant falsely said he had not been convicted of any crime in any country; falsely gave his occupation as journalist and gave as his permanent home address an address in London from which he had moved some weeks earlier. Similar false declarations were made in his application for a residence permit and he obtained temporary employment on the basis of a false reference he wrote on his own behalf.[13]The relevant parts of the Zimbabwean legislation current at the time can be readily identified. Section 14 (1)(f) of the Immigration Act 1979 classifies as a prohibited person any person convicted of any offence specified in Part 1 of the First Schedule to the Act (which it is common ground applied to the appellant) and under (j) any person entering or remaining in contravention of the provisions of the Act, which, it is common ground, would have applied to the appellant in the light of his false statements. Section 8(1) empowers an Immigration Officer to arrest a person suspected on reasonable grounds of having entered in contravention of the Act and confers on an Immigration Officer power to remove a prohibited person. Section 8(3)(a) requires written notice to the appellant that he was a prohibited person. By section 8(4) the power of removal did not extend to the holder of a temporary permit until it was cancelled; the appellant had a temporary permit which was cancelled on 6th February 1989. Section 16 confers on the Minister a power to exempt persons from the category of being a prohibited person. By section 21, the appellant had three days in which to appeal to a magistrate against a notice made under section 8(3)(a) that he was a prohibited person and by section 23 a right to make representations to the Minister within 24 hours of a section 8(3)(a) notice being served on him.[14]On behalf of the appellant, Mr MacKay QC, who did not appear at trial, submitted, first, that the disclosure now made demonstrates that the English prosecuting authorities, knowing that extradition was available, instigated and, in collusion with the Zimbabwean authorities, procured the appellant's deportation in circumstances in which he was denied access to a lawyer, contrary to Zimbabwean law, and internationally-recognised human rights. He should have had three days grace. He could have appealed against deportation relying on the Zimbabwean authorities (eg Mackeson v Minister of Information 1979 Rhodesian LR 481 and Rondon v Minister of Affairs 1990 Zimbabwe LR 327) where powers under section 14 were exercised for an ulterior motive, and he could have applied to the Minister under section 16 to exempt him from the category of prohibited person on the basis that his convictions were old and he wanted to go to Ireland where he was a citizen. The facts of the present case are very similar to those in R v Bow Street Magistrates, ex p Mackeson 75 Cr App R 24 where the Divisional Court quashed committal proceedings for abuse of process. Mr MacKay accepted that the burden of proving abuse of process is on the appellant and that knowledge on the part of the English authorities that local or international law was broken must be shown. He relied on R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 , [BAILII [1993] UKHL 10 ]. At page 62G Lord Griffiths said:
"In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party."
[15]At page 67G Lord Bridge said:
"When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance... Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted."
[16]At page 76C Lord Lowry said:
"...the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused."
[17]At page 76G Lord Lowry said:
"It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law."
[18]In Latif [1996] 1 WLR 104 at page 112H Lord Steyn said:
"The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Ex p Bennett . Ex p Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex p Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."
[19]Mr MacKay next submitted that, although a decision was taken by the defence at trial not to invite the trial judge to rule on abuse of process, this is not fatal to the point being canvassed in this Court, particularly in the light of the disclosure which has now taken place and ought to have been made before trial. Not only was that information withheld but R v Plymouth Justices, ex p Driver [1986] 1 QB 95, which was subsequently disapproved in Bennett, provided an obstacle to the success of a submission to the trial judge. This Court, he submitted, is in just as good a position as the trial judge would have been to assess the material now disclosed and carry out the balancing exercise which Lord Steyn identifies in Latif .[20]Finally, Mr MacKay submitted that, if abuse of process is proved, the conviction is unsafe within the meaning of section 2(1)(a) of the Criminal Appeal Act 1968 as amended.[21]In its original form, section 2 of the 1968 Act provided for an appeal against conviction to be allowed if the verdict of the jury was unsafe or unsatisfactory, or a wrong decision had been made on any question of law, or there was a material irregularity in the course of the trial with the proviso that the appeal might be dismissed if no miscarriage of justice has actually occurred. By the Criminal Appeal Act 1995 there was substituted a provision that the Court of Appeal:
"(a) shall allow an appeal against conviction if they think that the conviction is unsafe and (b) shall dismiss such an appeal in any other case."
[22]In Attorney-General's Reference No 1 of 1990 95 Cr App R 296, this Court disagreed with a trial judge's order for a stay where there had been prejudicial but non-culpable delay and, at page 303, Lord Lane CJ, giving the judgment of the Court, having emphasised the exceptional nature of the jurisdiction to stay proceedings on the ground of delay, said: "In the event of an unsuccessful application to the Crown Court on such grounds, the appropriate procedure will be for the trial to proceed in accordance with the ruling of the trial judge and if necessary the point should be argued as part of any appeal to the Court of Appeal Criminal Division".[23]In R v Heston-Francois [1984] 1 All ER 785 at 791b,

Lord Justice Watkins, giving the judgment of the Court, said:

"Where there has been oppressive conduct savouring of abuse of process it seems clear that the Court of Appeal Criminal Division may quash a conviction on the ground that it is unsatisfactory or unsafe: See section 2(1)(a) of the Criminal Appeal Act 1968."
[24]Such a course was taken in R v Mahdi [1993] Crim LR 793, decided prior to the amendment of the Criminal Appeal Act and where the judgment of the Court was given by Lord Taylor CJ and in R v Bloomfield [1997] 1 Cr App R 135 , following amendment to the 1968 Act and without the Court addressing the question of whether unsafe permits the quashing of a conviction for abuse of process when no challenge is made to the conduct of the trial or to the correctness of the jury's verdict. Mr MacKay referred to R v Chalkley [1998] QB 848 , [BAILII [1997] EWCA Crim 3416 ], and R v Martin [1998] AC 917 , which both contain dicta which appear to be contrary to his submission and to which we will return later.[25]On behalf of the Crown, Mr Sweeney presented careful arguments of impeccable propriety. He accepted, as we have already indicated, that there was, in the light of present-day standards, a duty on the prosecution voluntarily to have disclosed, at the time of trial, the material disclosed in connection with this appeal. But, he submitted, that non-disclosure does not avail the appellant in the absence of an explanation as to why he chose not to take the abuse issue before the trial judge. This Court, he submitted, should be slow to exercise a discretion which the trial judge was not asked to exercise. Mr Sweeney stressed that the conspiracy of which the appellant was convicted began in May 1988, when he started renting addresses in false names and acquiring the other means to facilitate the activities of an active service unit. Thereafter, the appellant made short trips to Zimbabwe where he committed a variety of other offences apart from failing to disclose his convictions; he had taken computers there and intended to take photocopiers to sell on the black market so that, with the proceeds, he could purchase gems which could be smuggled from Zimbabwe into the United Kingdom. He said, in interview, that he regarded himself as both English and Irish and, in evidence, that he intended to return to England eventually. The whole basis on which he had presented himself to the Zimbabwean immigration authorities was false, and he used false documents to hire motor vehicles in Zimbabwe. In consequence there were numerous breaches of the Zimbabwean legislation going well beyond his mere failure to declare his previous convictions. The chance of success in any application to the Minister or any appeal against deportation was minimal if not non-existent. The Zimbabwe Supreme Court had ruled in the Mackeson case that the authorities can deport to a country of origin notwithstanding that the deportee is wanted with a view to prosecution there. There were here five grounds for deportation before the failure to disclose convictions came to the fore. Although Mr Sweeney conceded that, on the balance of probability, there was a prima facie case of aiding and abetting a conspiracy to cause explosions, this, he said, is not necessarily the same as a case for extradition, because the Attorney General's consent to prosecute would not be forthcoming unless there was a realistic prospect of conviction. Accordingly, Mr Sweeney did not concede that those seeking not to extradite were acting in bad faith. He conceded that extradition was legally available as a concept and that further investigation might have provided such evidence as to enable an application for extradition to be made. He further conceded that, on the disclosed material, the UK authorities had initiated the deportation process and that the appellant had been denied access to a lawyer and the legal processes in Zimbabwe and the opportunity to petition the Minister to exercise his discretion under section 16. He referred to Bennett and Ex p Nangle (unreported, Divisional Court transcript, 2nd December 1997) and the judgments of Lord Bingham at page 14-21 and Mr Justice Hooper at page 23 as requiring participation and positive collusion on the part of the prosecuting authorities before abuse can be established. He accepted that a court determining abuse of process must carry out the balancing exercise identified by Lord Steyn in Latif at page 112H-113. Abuse of process depends on the facts - see per Lord Lloyd in Martin at page 926C. He sought to distinguish Ex p Mackeson,[26]R v Hartley [1978] 2 NZLR 199, Bennett and Ebrahim [1991] 95 IL 417 on the basis that they were all cases of detention at whim and return at whim, whereas, in the present case, there were good grounds for detaining the appellant in Zimbabwe and for returning him to England whence he had come. He accepted that the English authorities, in the present case, sought to avoid their involvement with the Zimbabwean authorities becoming known; but they also took great care to ensure that only Zimbabwean matters were taken into account by the Zimbabwean authorities who were acting at their own pace in investigating matters which would have been shown to be correct if the investigation had been completed. The English authorities had been informed from the outset that it was the normal Zimbabwean practice to deport to the country from which the deportee had come and to do so without permitting recourse to legal advice. There was nothing to indicate that the English authorities knew that the Zimbabwean authorities were acting in breach of their normal practice, or encouraged them to do so.[27]As to the meaning of 'unsafe', Mr Sweeney adopted what he described as a non-partisan stance. He submitted that the word can refer either to guilt or innocence of the crime convicted or it can refer to a miscarriage of justice in the round, including such abuse of process as would have prevented proceedings. He took the Court in detail to the article by Professor Sir John Smith QC in [1995] Crim LR 920 which in[28]R v Graham [1997] 1 Cr App R 302 at page 308, Lord Bingham CJ referred to as "a penetrating analysis". For present purposes, Sir John's views expressed in that article can be summarised in this way: The amendment was intended to be a codifying provision and as no obvious answer can be given to the scope of unsafe, Bank of England v Vagliano [1891] AC 107 at page 144 permits the court to look at the previous state of the law; the parliamentary debates provide clear evidence of what the new provision is intended to do, namely to re-state existing practice; it is unlikely that the Crown would argue for a narrow meaning; the section has no substantive effect and the ultimate question of whether there has been a miscarriage of justice is the same as whether the conviction is unsafe. "The effect of the amendment is simply to concentrate the mind on the real issue in every appeal from the outset". In R v Jones [1997] 1 Cr App R 86 at page 94D Lord Bingham said:
"It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe."
In R v Graham [1997] 1 Cr App R 302 at page 309C Lord Bingham said:
"That our sole obligation is to consider whether a conviction is unsafe. We would deprecate resort to undue technicality."
[29]In R v Simpson [1998] Crim LR 481 , [BAILII [1998] EWCA Crim 392 ], Court of Appeal transcript dated 5th February 1998, Garland J giving the reserved judgment of a division of this Court over which the Lord Chief

Justice presided said at 19E:

"...we would wish to leave open for argument the proposition that in a case where a fair trial was possible but it was, nevertheless, unfair that the Defendant should have been tried, a verdict of 'guilty' could properly be regarded as safe."
[30]In the light of these authorities, Mr Sweeney invited the Court to adopt a broad interpretation of the word 'unsafe'. He accepted that the practice of the court prior to the amendment of the 1968 Act was that exemplified in Attorney-General's Reference No 1 1990 and Weston-Francois . Accordingly, he invited the Court to say that, in a case where such abuse of process occurs that a trial should not have taken place unsafe should be construed as permitting this Court to quash the conviction. His final submission was that, even if this court finds abuse of process as a matter of fact in the present case, and even if it accepts a wide construction for unsafe, it does not follow that the present conviction is unsafe because, as we understand his submission, there is no miscarriage of justice as the abuse point was not taken before the trial judge.[31]We turn first to consideration of the facts and the balancing exercise identified by Lord Steyn in Latif . Having regard to the fact that the appellant, as he now concedes, was properly convicted, this Court must approach the exercise of its discretion on a rather different basis from that which would have been appropriate if an application had been made to the trial judge. In particular, there is before this Court no question of consideration of the strength of the evidence of the defendant's guilt of the offence charged. However, as appears from the passage already cited from the speech of Lord Lowry in Bennett at page 76G, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.[32]As a primary consideration, it is necessary for the Court to take into account the gravity of the offence in question. In the present case, the substance of the offence was the facilitating of a bombing campaign in the United Kingdom, which, but for the discovery by the police of the Battersea explosives and armaments cache, might well have caused loss of life and injury to members of the public and, more probably, substantial damage to property in this country. The sentence of 30 years' imprisonment reflects the gravity of the offence. Although it was not at the very top of the range of seriousness of criminal activity, it was undeniably at a very high level in that range.[33]Secondly, although the appellant had lent his assistance to an active IRA unit, there is no evidence to suggest that, unless he were at once apprehended and brought back to this country, he would pose, whether in Zimbabwe or elsewhere, an immediate and continuing security threat to life and property here. Once the Battersea operation had been thwarted, as it had been some six weeks before his deportation, his activities in Zimbabwe do not appear to have presented an imminent security threat.[34]Thirdly, it is necessary to consider the nature of the conduct of those involved in the deportation on behalf of the British Government.[35]As appears from the Summary for Disclosure:(i) although by 10th January 1990 the police considered that there was ample evidence that the Appellant had acted as a facilitator, and could therefore appropriately be the subject of an application to Zimbabwe for extradition, the SIS's mandate was to explore the prospects for and subsequently to procure deportation;(ii) the SIS took active steps to persuade the CIO that there existed grounds for deportation and provided evidence, including, crucially, evidence of previous convictions, as well as draft documents recommending grounds for deportation;(iii) the steps taken by the SIS were directed to evading the effect of and the principles expressed by the Divisional Court in Mackeson ;(iv) the SIS was aware from the CIO that, both on the grounds of the appellant's lies in his applications for entry into Zimbabwe and for a temporary employment permit and of his previous convictions, the Zimbabwean authorities had strong grounds for his deportation;(v) however, the SIS was also determined to ensure, if possible, that, if his deportation were ordered, he should not be able to challenge it in the courts of Zimbabwe or to make representations to the Minister that his deportation should not be to Britain from where he had entered Zimbabwe but should be to Ireland of which he was a national: if he had the opportunity to challenge the order or make representations, there was clearly a substantial risk that, if he were deported at all, it might be to Ireland;(vi) to accomplish this purpose the SIS recognised the need for stage-management of the timing of his detention by reference to an immediately available flight to London;(vii) the SIS specifically considered and suggested to the CIO how to deal with any last-minute claim by the Appellant to be deported to Ireland;(viii) in order to achieve an order for deportation the local SIS officer was very persuasive with the DDG;(ix) it is to be inferred that the SIS was made aware of the instructions issued by the CIO on 6th February that the appellant be allowed no access whatsoever to his lawyers.[36]This Court is firmly of the view that it must have been appreciated by the SIS, and probably by the police in Britain, that the vital element in the operation - the insulation of the appellant from any legal advice following his detention - was in breach of specific provisions of the law of Zimbabwe, or, at the least, was contrary to the appellant's entitlement as a matter of human rights.[37]In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the appellant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of Public International Law.[38]Finally, the events leading to the deportation as now revealed in the Summary for Disclosure were concealed from the appellant until last year.[39]In all these circumstances, can it now be said that the conduct of the British authorities in causing the appellant to be deported in the manner in which he was, and in prosecuting him to conviction was - to use the words of Lord Steyn in Latif at page 113 - "so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to succeed?"[40]This Court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the Appellant in the manner which has been described, represents, in the view of this Court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy, to which, as appears from Bennett and Latif , very considerable weight must be attached.[41]Mr Sweeney has submitted on behalf of the Crown that, even if the appellant had been given the opportunity prior to deportation of consulting a lawyer and even if his deportation had been delayed for the period of 3 days required by section 21 of the Immigration Act to enable him to appeal to a magistrate or for 24 hours so as to enable him to make representations to a Minister, as permitted under section 23 of that Act, he had acted so flagrantly in breach of Zimbabwean immigration law and his record of previous convictions was so poor, that, in the end, he would almost certainly still have been deported to Britain. Accordingly, this Court's discretion should not be exercised in favour of declaring the trial and conviction to have been unlawful.[42]We cannot accept that substantial weight should be given to this consideration. First, the stark fact remains that the appellant was denied any opportunity to challenge deportation under the Act by judicial review or to make representations to the Minister. Secondly, even if there were good grounds for his deportation as a prohibited person, a request by him would almost certainly have been made to be deported to Ireland or to some other jurisdiction. Whereas it was certainly within the powers of the Zimbabwean authorities to ignore such request, whether they would have done so must remain a matter of speculation. This Court cannot say that deportation to Britain would have been inevitable if he had been dealt with in a lawful manner.[43]In these circumstances, the discretion has to be exercised on the basis that, but for the unlawful manner of his deportation, he would not have been in this country to be prosecuted when he was, and there was a real prospect that he would never have been brought to this country at all.[44]Additionally, the need to encourage the voluntary disclosure before trial of material and information in the hands of the prosecution relevant to the defence is a further matter of public policy to which it is also necessary to attach great weight. Omission to make such disclosure clearly is a matter to be taken into account, on the exercise of this Court's discretion following a conviction.[45]In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed.[46]In as much as that discretionary exercise now falls to be carried out by this Court, we conclude that, by reason of this abuse of process, the prosecution and therefore the conviction of the appellant were unlawful.[47]In arriving at this conclusion we strongly emphasise that nothing in this judgment should be taken to suggest that there may not be cases, such as Latif, in which the seriousness of the crime is so great relative to the nature of the abuse of process that it would be a proper exercise of judicial discretion to permit a prosecution to proceed or to allow a conviction to stand notwithstanding an abuse of process in relation to the defendant's presence within the jurisdiction. In each case it is a matter of discretionary balance, to be approached with regard to the particular conduct complained of and the particular offence charged.[48]The next question is as to the impact on this appeal of the failure to argue abuse of process before the trial judge.[49]Generally speaking, all matters affecting a trial should be canvassed with the trial judge. This is particularly so in relation to matters within his or her discretion. If no ruling is sought on a matter within the trial judge's discretion, this will usually be fatal to any subsequent attempt to rely on that matter by way of appeal to this Court.[50]In the present case, the appellant apparently expressed to those representing him at trial, his concerns as to the circumstances in which he had been deported to England. But, before us, it is conceded on his behalf that a deliberate decision was made by the defence that no ruling on abuse would be sought from the trial judge. The reasons for that decision are unknown to this Court and no useful purpose would be served by speculating on them.[51]What is clear, however, is, first, that the law at the time of trial was not as favourable to the defence as it has since become by virtue of Bennett and, secondly and more importantly, that at trial the defence were unaware of the documentary material disclosed before this Court as to the involvement of the English prosecuting authorities in the appellant's deportation.[52]Furthermore, although abuse of process, unlike jurisdiction, is a matter calling for the exercise of discretion, it seems to us that Bennett -type abuse, where it would be offensive to justice and propriety to try the defendant at all, is different both from the type of abuse which renders a fair trial impossible and from all other cases where an exercise of judicial discretion is called for. It arises not from the relationship between the prosecution and the defendant, but from the relationship between the prosecution and the Court. It arises from the Court's need to exercise control over executive involvement in the whole prosecution process, not limited to the trial itself (see Connelly v DPP [1964] AC 1254: per Lord Morris at 1301:
"A court must suppress any abuses of its process and ...defeat any attempted thwarting of its process"; and per Lord Devlin at 1354: "
The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused."[53]See also the passages in Bennett already cited from the speeches of Lord Griffiths at page 67G, Lord Bridge at page 64G and Lord Lowry at page 76C).[54]Having regard to these considerations, namely the combined effect of lack of disclosure at trial and the special nature of Bennett -type abuse, we do not consider that failure to seek the trial judge's ruling on abuse is fatal to this appeal. We do not, however, wish anything which we have said to be construed as encouraging applications for leave to appeal to be made long after trial, solely on the basis that there has been a change in the law. For the reasons set out in the judgment of Lord Bingham of Cornhill CJ in R v Hawkins [1997] 1 Cr App R 234 at pages 238G-240F this Court continues to be very reluctant to extend time in such cases.[55]We turn to the meaning of the amendment to the Criminal Appeal Act.[56]This Court's jurisdiction is statutory and depends for present purposes on the meaning properly to be attributed to the word "unsafe". In particular, is it apt to confer jurisdiction to quash a conviction when no complaint is made about the conduct of the trial and the sole ground of appeal is that no trial should have taken place, because of the prosecution's abuse of the process of the court prior to trial?[57]In Chalkley at page 859 Auld LJ, giving the judgment of the Court, referred to the amended test as being much simpler than the old test in the 1968 Act prior to amendment. At page 869E he expressly agreed with a passage in the 3rd supplement to Archbold, Criminal Pleading Evidence and Practice 1997 page 857 para 7-45 which contains the following: "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... 'Unsafe'... 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)".[58]At first blush, this passage in the Court's judgment might be understood as precluding this Court from regarding the present conviction as unsafe. But it is to be noted that Bennett was not referred to and, in R v MacDonald (unreported, 1st May 1998), Auld LJ giving the judgment of a differently constituted division of this Court said this at page 11:
"Before parting with the matter we express some reservation about the jurisdiction of the Court to quash a conviction where there has been an abuse of process of the Ex p Bennett kind, that is, where a fair trial was possible and in the event resulted in a safe conviction, but where, on a proper view of the matter, the prosecution should have been stayed as an affront to justice. The question does not arise for our determination in the light of our conclusion that a fair trial was possible and took place, that it was not unfair to try the appellants and that safe convictions resulted. And the matter was only touched on briefly in argument. However, if our view had been that it was an abuse of the Ex p Bennett kind, we do not know where we could have found the power to quash what we regard as a safe conviction. The Court's jurisdiction is entirely statutory, and the single criterion for interference with a conviction is now - since the recent amendment of Section 2 of the Criminal Appeal Act 1968 - its unsafety. The Court seems to have assumed such jurisdiction in R v Bloomfield (1997) 1 Cr App R 125 and R v Hyatt (1997) 3 Archbold News 2 , but as the Editors of Archbold News comment in their Issue 02 of 1998, it is far from obvious as to why this should be so."
[59]See the observation of Lord Lloyd in R v Martin (Alan) [1998] 2 WLR 1 , HL, at page 8H and the judgment of this Court in R v Chalkley & Jeffries [1998] 2 All ER 155, CA, at 173D-174C. It may be that a conviction in a trial which should never have taken place is to be regarded as unsafe for that reason. It may be that, despite the statutory basis of the Court's jurisdiction, it has also some inherent or ancillary jurisdictional basis for intervening to mark abuse of process by quashing a conviction when it considers that the court below should have stayed the proceeding. Or it may be that the recent amendment to the 1968 Act has removed the supervisory role of this Court over abuse of criminal process where the affront to justice, however outrageous, has not so prejudiced the defendant in his trial as to render his conviction unsafe. All that is for decision by another court in an appropriate case.[60]In the light of these observations Chalkley cannot, in our judgment, properly be regarded as having concluded the matter. On the contrary, it is apparent from what he said in the passage cited in MacDonald that Auld LJ regarded the point as still open. A similar view was expressed in Simpson , by Garland J at page 19E in the passage cited earlier.[61]However, in Martin , (which was referred to in MacDonald but not in Simpson ), Lord Lloyd at page 928H said: "Even if the Courts-Martial Appeal Court had been satisfied that there was an abuse of process, it would still have been necessary for the court to dismiss the appeal unless persuaded that the conviction was unsafe. For the Courts-Martial Appeal Court is a creature of statute and has no power to allow appeals save in accordance with section 12(1) of the Courts-Martial Appeals Act 1968 as substituted by section 29(1) and paragraph 5 of Schedule 2 to the Criminal Appeal Act 1995." (These provisions are identical to those amending section 2 of the 1968 Act in relation to this Court).[62]Lord Browne-Wilkinson and Lord Slynn both agreed with Lord Lloyd's reasons for dismissing the appeal. Lord Hope at page 930G said:
"I do not think it can be doubted that the appeal court - in this particular case the Courts-Martial Appeal Court - have power to declare a conviction to be unsafe and to quash the conviction if they find that the course of proceedings leading to what would otherwise have been a fair trial has been such as to threaten either basic human rights or the rule of law."
[63]It seems plain that these conflicting observations by Lord Lloyd and Lord Hope were obiter and formed no part of the reasoning which led to the decision in Martin . Furthermore, it does not appear that their Lordships were invited to consider what was said in Parliament when the 1968 Act was amended or what the pre-amendment practice of this Court was, as exemplified by Heston-Francois and Attorney-General's Reference No of 1990 at page 303. It is also pertinent that Sir John Smith's article in [1995] Crim LR 920 was not before the House of Lords in Martin .[64]In our judgment the conflicting views expressed in Martin in themselves afford a sufficient demonstration of the ambiguity of unsafe to permit this Court, in accordance with Pepper v Hart [1993] AC 593 , to have recourse to Hansard. Furthermore, if the construction of Lord Lloyd is correct, it will, with respect, lead to absurdity, which provides a further reason for recourse to Hansard: in relation to a minor offence triable by justices, abuse arguments can lead to redress by judicial review in the Divisional Court, but, in relation to a serious offence tried at the Crown Court, abuse arguments could not lead to appellate success.[65]Accordingly, we turn to Hansard, the relevant passages from which are conveniently set out at page 924 in Sir John Smith's article. It is unnecessary to rehearse what was said on Second Reading and in Standing Committee. But it is apparent that the amended form of section 2 was intended by the Home Secretary, by Lord Taylor of Gosforth, Chief Justice and, crucially, by Parliament, to restate the existing practice of the Court of Appeal; although there is nothing to suggest that express consideration was then given by anyone to whether unsafe was apt to embrace abuse of the Bennett or any other type. It is common ground that Heston-Francois and Attorney-General's Reference No 1 of 1990 show the pre-amendment practice of this Court, namely that abuse can be a ground for quashing a conviction.[66]Furthermore, in our judgment, for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed the Oxford Dictionary gives the legal meaning of "unsafe" as "likely to constitute a miscarriage of justice".[67]Sir John Smith's article to which we have referred does not deal with unsafe in relation to abuse, though his commentary on Simpson in 1998 Crim LR 482 raises directly pertinent questions. But, for the reasons which we have given, we agree with his 1995 conclusion that "unsafe" bears a broad meaning and one which is apt to embrace abuse of process of the Bennett or any other kind.[68]It follows that, in the highly unusual circumstances of this case, notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the appellant's conviction quashed.[69]MR MacKAY: I mention the matter of costs, prior to the grant of a legal certificate, which was at the same time as legal aid was given, the appellant's solicitor had been acting on a private basis, his counsel had been acting on a pro bono basis. There is no application, obviously, in respect of counsel's position.[70]So far as the solicitor's outlay, could I ask your Lordship to consider making a defendant's cost order out of Central Funds for that period?[71]THE VICE PRESIDENT: We do, Mr MacKay.

Cited in 55 later judgments

and 41 more of the most senior

Showing the 50 most senior of 55.