REGINA v (1) CHRISTOPHER DRURY (2) ROBERT CLARK (3) THOMAS REYNOLDS (4) TERANCE O'CONNELL (5) THOMAS KINGSTON [2001] EWCA Crim 975

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2001] EWCA Crim 975Case No Case Nos:2000/01310 Z3; 2000/01312 Z3, 2000/04911 Z3; 2000/04911 Y3, 2000/05145 Y3; 2000/05146 Y3Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
REGINA(1) CHRISTOPHER DRURY (2) ROBERT CLARK (3) THOMAS REYNOLDS (4) TERANCE O'CONNELL (5) THOMAS KINGSTON
Before
Lord Justice PotterMrs Justice HallettMr JUSTICE GIBBSOrlando Pownall Esquire, Michael Holland Esquire and Jonathan Rees Esquire (instructed by the Crown Prosecution Service)Roy Amlot QC and Michael Egan Esquire (instructed by Messrs Russell Jones & Walker, London, for the first defendant)Alun Jones QC and Peter Doyle Esquire (instructed by Messrs Russell Jones & Walker, London, for the second defendant)Anthony Evans QC and Sean Enright Esquire (instructed by Messrs Martin Murray and Associates, London, for the third defendant)Michael Wood QC and Miss Johanna Cutts (instructed by Messrs Kingsley Napley, London, for the fourth defendant)Anthony Glass QC (instructed by Messrs Russell Jones & Walker, London, for the fifth defendant)David Perry Esquire for the Home OfficeDate 11 April 2001

LORD JUSTICE POTTER :

INTRODUCTION

[1]These appeals against conviction and sentence in the case of Drury and Clark who were tried together at the Central Criminal Court and the applications for leave to appeal against conviction by Reynolds, O'Connor and Kingston who were tried there on a later occasion, are linked together in that all were police officers serving with the South East Regional Drug Squad at the time of the offences alleged against them and the convictions of all depended in large measure upon the evidence of another officer serving in that squad, Neil Putnam, who had become an informer and who pleaded guilty to various charges contained in the indictments on which Drury and Clark were convicted. At the outset of the hearing, we granted the application of Reynolds, O'Connor and Kingston and proceeded to hear all the appeals together. However, for ease of exposition in this judgment, we deal first with the appeals of Drury and Clark. DRURY AND CLARK – APPEALS AGAINST CONVICTION[2]On 3rd February 2000, at the Central Criminal Court before Mr Justice Blofeld and a jury, after a forty-eight day trial ('the first trial'), Drury and Clark were each convicted by a majority of 10-2 and sentenced as follows. Drury: Count 10: Conspiracy to supply Class B drugs: 4 years imprisonment Count 12: Perverting the course of public justice: 7 years imprisonment consecutive. Count 13: Perverting the course of public justice: 5 years imprisonment concurrent. Total sentence: 11 years imprisonment. Drury was acquitted on Count 5 which charged conspiracy to supply a controlled Class A drug, namely raw Opium and on Count 8, a similar charge relating to cocaine.[3]Clark: Count 1: Conspiracy to supply Class B drugs: 3 years imprisonment Count 2: Perverting the course of public justice: 7 years imprisonment concurrent Count 10: Conspiracy to provide Class B drugs: 4 years imprisonment concurrent Count 11: Perverting the course of justice: 8 years imprisonment consecutive to Count 10. Total sentence: 12 years imprisonment.[4]Clark was acquitted on Count 3 which charged conspiracy to supply Class B drugs; Counts 4 and 9 which charged perverting the course of justice; Counts 5 and 8 which charged conspiracy to supply raw opium and cocaine respectively; and Count 7 which charged corruption.[5]There were two co-accused, namely Peter Lawson who was charged and acquitted on Counts 6 and 15 and Roger Pierce who was charged and acquitted on Count 13.[6]It is appropriate at this point to refer to certain other relevant convictions relating to Putnam and Evelyn Fleckney, another informant, both of whom gave evidence at the trial. Putnam had pleaded guilty to a first indictment containing five counts of corruption, three counts of perverting the course of justice, two counts of conspiracy to supply Class B drugs and one count of conspiracy to supply Class A drugs. He also pleaded guilty to a second indictment containing three counts of handling stolen goods, one count of conspiracy to steal and one count of theft. At a pre-trial hearing, the judge had ruled that Fleckney and Putnam would be sentenced at the end of the appellants' trial.[7]The original grounds of appeal of Drury and Clark had two out of three grounds in common. First, for reasons which appear hereafter, it is asserted that it was an abuse of process for the Crown to call Fleckney to give evidence at the trial in the light of an 'undertaking' previously given by the Crown at an aborted first trial, that she would not be called. Second, it is asserted that the evidence of Fleckney and Putnam was obtained as a result of a combination of wrongful detention, inducement, oppression and a variety of contraventions of the Police and Criminal Evidence Act 1984 (PACE). These together amounted to an abuse of process which, despite the absence of any complaint or objection by Fleckney or Putnam themselves, should have led the judge to exclude such evidence. Third, it is contended in the case of Drury that the guilty verdicts of the jury upon various counts on the indictment were inconsistent with their acquittal of the appellants on other counts. The single judge gave leave to appeal on the first ground but referred the second and third grounds to the full court. We indicated at the outset of the appeal that leave was granted to advance those grounds. We also gave leave in respect of a fourth ground not originally advanced, but later added, complaining of non-disclosure by the Crown of relevant material relating to Putnam and said to go to the safety of the convictions. The Procedural Background and History of the Trial.[8]Fleckney's conviction and sentence to 15 years imprisonment in March 1998 related to various offences of dealing in controlled drugs committed mainly in 1996. Between 1991 and October 1995 she had been a registered police informant whose 'handler' for most of the period was Clark. At her trial in early 1998 her defence had been that, to the extent that she bought and sold drugs, she had done so only in her capacity as an informant, understanding that it was permissible to deal in drugs in this way to catch criminals. She said that Clark had been her handler on these occasions and would arrest the persons with whom she dealt. She did not allege at her trial that he had been corrupt. However, she did state that she had had a sexual affair with him over a number of years, he denying this allegation when called as a witness for the prosecution.[9]Within weeks of receiving her sentence, Fleckney was removed from prison into police custody in early April 1998 by officers of the Metropolitan Police ostensibly under an order for the production of inmates at the request of the police pursuant to s.29 of the Criminal Justice Act 1962 ("CJA 1961"). Thereafter, while in custody over a period of six months, she made detailed allegations to CIB3 of crimes allegedly committed by her with Clark and other officers of the South East Regional Crime Squad. She was in custody in two covert police establishments, both within police stations, during this period but she was permitted out and about, always under guard, for purposes of entertainment, shopping trips, welfare visits, etc. She was questioned about her general involvement in the drug scene and in particular her alleged corrupt involvement with police officers. In the course of questioning she admitted participation in a number of offences which had not been the subject of previous charges. On 3 November 1998 she pleaded guilty to a further indictment in relation to those offences.[10]Following Fleckney's early allegations, Putnam's home was searched in July 1998 under the direction of DCS Yates. Although he had not apparently been implicated by Fleckney, it was indicated to Putnam that he was considered to be involved in corrupt activities and he was suspended from duty. Shortly after the search he admitted two acts of corruption to officers of CIB3 in which he said he had engaged with Clark, Drury and their co-defendants, Lawson and Pierce. He was charged with these offences and remanded in custody to Brixton prison. Shortly thereafter, he too was removed from prison by police officers and detained (on the same basis as Fleckney) in various police stations, where between July and September 1998 he admitted participation in more offences also implicating Clark, Drury and others. He was periodically brought back before the Magistrates Court and further remanded in custody. He, too, was from time to time removed from the police station under guard for social and welfare visits and entertainment. In October 1998 he pleaded guilty to 16 offences over the period Autumn 1991 to July 1997 which were the subject of two indictments. He was awaiting sentence at the time of the appellants trial. In February 2000, following the trial of Drury and Clark, Putnam received a total of 3 years 1 months imprisonment. He had been released on licence by the time the trial of Reynolds, O'Connell and Kingston took place in August 2000.[11]As a result of Fleckney's allegations, John Cudworth, a frequently convicted trafficker in drugs, known as 'Guildford John', was seen in prison and renewed allegations against Clark and Drury which he had previously made in 1996, but which had not then resulted in prosecution.[12]As already indicated, in October 1998 Fleckney and Putnam were charged with various further criminal offences which they had admitted over several months, but which had not yet been the subject of charge and were taken to court. Putnam had by then signed witness statements in relation to the participation of Clark and Drury in various offences; however, Fleckney had prepared statements but had not signed them. Putnam was granted bail after his court appearance. Putnam and Fleckney each pleaded guilty to various offences on 3 November 1998, when the Recorder of London postponed sentence at the request of the prosecution without opposition from the appellants.[13]On 4 October 1999, it was argued before Blofeld J. that Putnam and Fleckney should be sentenced before the trial of those pleading not guilty. The judge, after reference in argument to the relevant authorities, ruled on 5 October 1999 that there was no rule of law requiring that co-accused who were to give evidence for the prosecution should be sentenced before they gave that evidence, it being a matter for the discretion of the judge. While recognising that, where sentence is left outstanding, there may in principle be a motive or inducement to incriminate a co-accused, he stated that, in his view, the main factor operative was that, at the end of the whole trial, he would be in a better position to assess the relevance of all the evidence in relation to any particular defendant. Accordingly, he rejected the appellants' application.[14]The trial commenced on 4 October 1999. On 14 October 1999, Fleckney was called as a witness and took the oath but declined to answer all but the most general questions about her background. She said in open court in front of the jury that she had learned only that morning of the limited character of any restrictions that could be made for her protection and that, as she had a family she did not wish to give evidence. She broke down crying, and appeared to be in fear. In the absence of the jury she stated that she had always understood, from the first day she started to make a statement, that the hearing would be in camera. On 15 October 1999, following further argument before the judge, he made orders to the effect that there should be(a) no publication of the name and address of the prison in which she was detained or at which she had previously been detained,(b) no publication of her home address or any previous address or the names and addresses of the relatives and(c) that the publication of any material elicited in the trial which disclosed or may have disclosed the identity of any person about whom it was admitted or alleged that Fleckney gave information to the police was prohibited, save that those names already disclosed relating to a specific count on the indictment were excepted.[15]On 25 October 1999, having received a letter from Fleckney requesting that her evidence be heard in camera, and following further argument, Blofeld J. further ruled that she should be allowed to give her evidence in camera. However, that ruling was overturned by this court on 29 October 1999.[16]Upon so learning, Fleckney wrote to ask for clarification as to whether the questions to be asked of her were to be restricted to the indictment. In particular she did not wish to be asked if she was an informer or about any pseudonyms she may have had. She said she was willing to answer questions about information she gave on matters referred to as Cocaine, Rose Cottage, Opium and Guildford John (see further below) which were the subject of charges, but if her questioning could not be so limited, she would "give up".[17]At a hearing in Chambers before the judge on 1 November 1999, he was apprised of the situation. In discussions beforehand, Mr Pownall for the Crown indicated to the defence that, if Fleckney unjustifiably declined at some stage during her evidence to answer questions, then the Crown would not oppose the anticipated application by the defence for the jury to be discharged. He made this position clear to the judge at the outset of the hearing.[18]Mr Pownall then turned to the necessity for an order under s.4(2) of the Contempt of Court Act in the light of any subsequent re-trial and stated:
'Publicity relating to the evidence that she has given would potentially prejudice such a re-trial because she would not be a witness in any circumstances .'
(emphasis added) Again, in the context of publicity, the judge turned to Mr Jones and the following exchange took place: JUDGE: If this present trial ceases, I think I really ought to find out, before hearing you, whether the Crown then would intend to carry on with the prosecution, having a re-trial, without Miss Fleckney … MR JONES: Certainly. My Lord, I understand the first position is, yes, my learned friend does propose to go ahead… JUDGE: So I will work on the basis that should she, for one reason or another, not complete her evidence, the defendants will face re-trial without her evidence. MR JONES: Yes. Mr Pownall did not demur.[19]The judge then called Fleckney before him in Chambers and made clear to her that the court had no power to limit her evidence to particular topics or to deny the right of the defence to cross-examine on a wider basis. Having fully explained the situation to her, he asked her whether she would either agree to give evidence in full, or to say that she would not. She indicated that she would not. Following her refusal, Mr Jones duly made an application for the discharge of the jury, supported by counsel for Drury and unopposed by the Crown. After further submissions, the following exchange took place between the judge and Mr Pownall: JUDGE: Before we get the jury back, clearly I shall discharge the jury, but it has relevance to the Contempt of Court Act. Are you intending to proceed again? MR POWNALL: Yes. … JUDGE: In those circumstances, I think the appropriate thing is to say there should be no publicity relating to Miss Fleckney. You are not going to intend to call Miss Fleckney in another case? MR POWNALL: No. Accordingly, the judge recalled the jury. He explained to them that although they had heard Fleckney start to give her evidence, she no longer wished to do so and that, in those circumstances, they would be discharged. The Judge's Ruling of 11 November 1999[20]Notwithstanding this position, on 11 November 1999, at a Directions Hearing prior to the commencement of the second trial, the Crown informed the court that Fleckney had reconsidered her position and was willing to give evidence. She had so stated in a witness statement dated 10 November. Mr Pownall for the Crown acknowledged that he had earlier stated that there would be no circumstances in which the Crown would call Fleckney, but indicated that the reasoning underlying that statement was that Fleckney appeared to have made up her mind unequivocally that she would not give evidence, and the Crown had no intention of seeking to try to change her mind or influence her to do so. He stated, however, that he now felt bound, in the circumstances of her having volunteered to give evidence without restriction, to call her if permitted. For the appellants, it was argued that the informal exchanges of counsel, and the clear statement of intention by Mr Pownall for the Crown in the face of the court, that Fleckney would not be called had raised a legitimate expectation in the defendants that, if the trial proceeded, her evidence would not be given and it was unfair now to admit her evidence, either under s.78 of PACE or at all.[21]Mr Jones QC for Clark stated that it was not accepted that the Crown had not been active in getting her to change her mind. In this respect, he relied upon an undated letter from Fleckney to DCS Yates, the officer in charge of the case, written from prison just after the abortive trial of 1 November, in which she explained why she had felt that her life was in danger following the opening of the case and in which she appeared to maintain that view. This contrasted with her later statement of 10 November. Mr Jones submitted that, in any event, in the light of what the Crown had stated, it needed more than simply a change of heart on the part of the witness to justify the Crown's resiling from its previously stated position. He said that the court should only allow Fleckney to be called after asking her for 'a proper evidential explanation' and permitting her to be cross-examined in the absence of the jury. Mr Jones's arguments were shortly supported by Mr Amlot for Drury, who did not pursue the suggestion of a voir dire.[22]The judge accepted it had been made clear to him by Fleckney that she would not give evidence because of fears for the safety of herself and her family. He also accepted that the Crown had made clear that it would not be calling her at a second trial. He did not expressly rule upon the suggestion of a voir dire, though he observed that he did not treat Fleckney's undated letter as indicating that anyone had been putting improper pressure on her. He stated that he did not consider that it would render the trial unfair under the provisions of S.78 if she were called; nor, in his view, was it an abuse of process for Fleckney to be called in the second trial because(i) the indictment remained the same and there had been no indication, or undertaking that any of the counts would be dropped;(ii) it was always recognised that there would be a second trial;(iii) the evidence of Fleckney was relevant, admissible and probative. The judge accepted that stress must have been caused to the appellants by the uncertainty, but observed that if serious crimes had been committed, it was necessary also to consider the public interest in having the matter fully ventilated. In those circumstances, he would permit Fleckney's evidence to be called. The Judge's Ruling of 15 November 1999[23]On 15 November 1999, at the outset of the second trial, there was an attempt by Mr Jones QC for Clark to persuade the judge to re-open the matter. Before addressing the judge, Mr Jones had lodged in advance a detailed written argument headed 'Renewed application for the First Defendant to exclude the evidence of Evelyn Fleckney' in which he asserted that, to receive Fleckney's evidence would be a blatant abuse of process as well as a breach of Article 6 of the European Convention of Human Rights ("ECHR")), and that the evidence should be excluded under s.78 of PACE. The argument re-canvassed the history of the proceedings at length, asserting that Fleckney was a manipulative witness. It expressly requested the judge to hold a voir dire so that the defence could cross-examine Fleckney as to her motives in changing her mind and to explore the question of whether there had been police pressure upon her for that purpose.[24]Despite the length of the written argument, the only topic which had not been touched upon before the judge on the occasion of his earlier ruling was a witness statement from Clark dated 13 November 1999, submitted with the argument in response to an observation of Mr Pownall before the judge on 11 November that it was absurd for Mr Jones to have suggested that Clark would have considered continuing with the original trial after Fleckney's refusal to give evidence, had he been aware of the chance that she might be re-called in future. In that statement, which was placed before the judge with the consent of the prosecution, Clark set out the pressure and stresses which he had suffered over the period of the investigation and prosecution and the present strains on himself and his family. He confirmed that, because of what the Crown had stated, he had considered the matter at all times simply upon the basis that Fleckney would not be called at any re-trial and that, if he had been aware that she might again change her mind and be called, his decision would have been to continue with the original trial. He particularly complained of being deprived of the opportunity to seek and receive informed legal advice as to his decision in the matter.[25]The judge did not hear Mr Jones at any length. Having read the written argument, he observed that all of the points raised had been covered on the occasion of his previous ruling and that, in the absence of reference to some authority which indicated that ruling to be wrong, it was not appropriate for him to re-open the matter, on which he had given a judgment before dismissing the jury in the first trial. The judge stated that he had been well aware of the decision in Bloomfield and of the necessity to take into account European decisions. Having read the authorities referred to in the argument, he was not aware of anything in them which might lead him to conclude that he had ruled in error and he did not propose to alter his ruling or add to his earlier judgment. The Prosecution Evidence[26]By way of general background to their evidence on the individual counts, to which we turn in more detail below, Fleckney and Putnam gave evidence on the following matters.[27]Fleckney described her relationship since 1991 with Clark, both as informer and handler and in relation to their sexual relationship. She spoke of spending the night with him at various hotels in 1991 and 1992, of having an abortion of a child conceived by him in 1992 and of a week which he spent with her in Spain. She said she had given him valuable information informing on drug-dealing arrangements. She had dealt in drugs with Cudworth (Guildford John). She said that she and Clark fell in love and that in 1995 she had been five months pregnant when she lost her second child. Their relationship ended in October 1995. In October 1996 when she was arrested for the matters on which she was subsequently sentenced to 15 years in prison, she was the leader of a group of ten small-time drug dealers. She was then involved in an abusive relationship with a man who had received a substantial number of Ecstasy tablets for which he had not paid and it had been necessary for her to sell other drugs to pay for them. She had gone along with it, partly out of fear of the suppliers and partly out of fear of her partner. She had not mentioned at her earlier trial that Clark was corrupt. He had not persuaded her to commit those offences. She also said that the police had told her that, if she assisted them in relation to the maters now being tried, the appeal court would look on it favourably and she got the impression that if she did not help them she could kiss parole goodbye.[28]Putnam said that he had transferred to the Regional Crime Squad from the Drug Squad in 1981. He transferred to Surbiton in 1995, then in 1996 to Orpington and in June 1998 became a beat officer in Penge. In July 1998 his house was searched on suspicion of corruption and possession of drugs. Some days later he met Superintendent Yates at a secret location and told him of matters involving others. He stated that no evidence was found during the search of his house and he had not been threatened, but he had had an off the record discussion with Yates who said he was after the 'meat-eaters', not the 'grass-eaters'. The main reason he had given himself up was because he had become a christian and decided to admit offences he had committed alone as well as with others. He said he was in the police cells from 13 July to 18 October 1998 for the purpose of 'debriefing', interview and formal statements. He was not told what Fleckney had said and the police did not put specific allegations to him before making his statement. He said he was not giving evidence principally for a reduction in sentence but for freedom from guilt. He said that Clark and Fleckney were very friendly together and that once in Kings Road, Clark had pointed out to him a hotel in which he had spent the night with Fleckney. During his examination and cross-examination a number of matters emerged in relation to his dealing with the police while in custody during July-October 1998, which, together with the treatment of Fleckney over a similar period, formed the subject of a defence application to stay for abuse of process at the end of the prosecution case (see paragraphs 74 to 76 below).[29]We now turn to the evidence relating to the various counts. In order to deal later with submissions made on behalf of Drury it is necessary not only to give an account of the evidence in relation to the convictions on counts 1 and 2 (Clark), 10 (Drury and Clark), 11 (Clark), 12 and 13 (Drury), but also to describe the evidence upon counts 3-9 on which the appellants and their co-defendants were acquitted. Counts 1 and 2: 30th September 1991 (the "Nutley" counts)[30]There was agreed evidence that on 30 September 1991, a supply of cannabis from Spain was dropped from an aeroplane in the village of Nutley. The cannabis was tied up in eighteen-inch square packages, tied together. The man who put the cannabis out of the plane was called Scalley. After the plane had landed at Biggin Hill, he met a man named Gaffney, who took him to Nutley to meet another conspirator. They and others were arrested. 118.4 kilograms of cannabis with a street value of £345,000 were taken to the police station. Scalley later pleaded guilty to importing it and was sentenced to 4 years imprisonment. Nutley residents described finding broken packets in two separate areas and the owner of the land contacted the police.[31]Fleckney said she was in contact with a drug dealer named Vivien. She said that on an occasion at a Happy Eater in Croydon two police officers were there with Vivien and there was talk of cannabis being thrown out of a plane. One of the officers and Vivien left together. Later that day, or next day, Clark told her that they had some cannabis left over from the Nutley consignment and asked if she would sell it. He had a few 9-ounce bars of cannabis which she sold for £400 - £500 per bar, giving some of the money to Clark. She stated that her involvement with Nutley was a complete fluke. Clark had gone to the Happy Eater to talk to Vivien and the two police officers and had rung her whilst she was in the car and they had talked about the matter.[32]Putnam said he had been at court on the day of the drop. He got a pager message and drove to Addington. At Nutley, which was close to Addington, he came across a convoy of unmarked police vehicles and was told to fall in behind. The driver of the vehicle being tailed was arrested. Normally Customs and Excise would have dealt with the importation. In the evening Clark asked him if he had a bag which he could lend to him, and he did. After some days, Clark handed him £300 which he accepted because he wanted to be part of the team. Some time later he found his bag on the floor with bits of cannabis in it. He was angry because the bag should have been returned to him. He admitted he had received a corrupt payment from Clark but said he had himself done nothing corrupt at Nutley that day. Counts 3 and 4 (the "Skipsley" counts)[33]On the 28 January 1992 as a result of a tip-off, police stopped a man called Skipsley as he drove home. They found in the back of his van a large quantity of cannabis. Putnam maintained that after Skipsley had been arrested and taken off to the police station, he remained at the roadside with Clark and the cannabis. Clark suggested they went somewhere quiet. Whilst Putnam kept watch, Clark took some of the cannabis and placed it in a bag belonging to Putnam. Clark then drove off with that bag, Putnam returned to the station with the rest of the cannabis amounting to some 74 kilos in all. Later Clark handed to him an envelope containing £2,000 in cash "for his trouble". Counts 5, 6 and 7 (the "Opium" counts)[34]In the autumn of 1993 the police mounted an operation on a man called Brian Smith. He sold some opium to an undercover officer called Frank and buried the remainder of his supply in his back garden. He claimed that there were four or five boxes of opium in all, in a black bag. Shortly afterwards, police officers including Lawson, (a co-defendant), Putnam, Clark and Drury arrived to search his house. Putnam said that he saw Lawson retrieve from the back garden a white bag containing something the size of a brick. Clark had left by this time. According to Putnam, Lawson looked in the bag and put it down. He was not sure whether Lawson said there was a box or boxes inside the bag. He never saw the bag again. He claimed that he was later approached by Drury. He handed him a white bag containing a box. Drury told him to drive around with it for a couple of hours. This he did. Weeks later he said that he went to a retirement party for a colleague at a restaurant in Lordship Lane, south-east London. On the way he said he withdrew some money from a nearby cash machine. When they were alone Clark handed Putnam £80 said to be for "running around last week". Counts 8 and 9 (the "Cocaine" counts)[35]On 27 October 1994, Putnam and other officers went to search the home of a Mr Keller and his partner. In the bathroom there was a false ceiling underneath which Putnam said he saw Clark standing on a stool. Drury announced to a number of officers present that they had found some cocaine. Putnam insisted that the bag of cocaine was shown to the occupants of the house who looked shocked and frightened. They were both of good character and they denied that they were shown any such thing. Putnam said he never saw the bag again. Counts 10 and 11: 30th January 1995 (the "Guildford John" counts)[36]Putnam stated that the Regional Crime Squad had received information that Guildford John (Cudworth) was an extensive cannabis dealer. He was investigated for some 12 months with Clark in charge of the operation (Operation Bream). Fleckney said she had known Cudworth as a friend for some time. They use to supply each other with cannabis. In 1995 she went with her then partner to meet Cudworth who was going to supply her with a kilo of cannabis resin. Whilst they were waiting, she noticed Drury waiting at a bus stop. She rang Clark and told him her partner was getting suspicious about the man at the bus stop and a black Alfa Romeo going by. Drury was picked up by the Alfa Romeo. Cudworth arrived and offered her 2 kilos of cannabis which she agreed to take. She saw he had about 8 kilos left in his boot after supplying her. She spoke to him by telephone later that evening. He then told her he had been robbed of his cannabis by the police. He could not understand why they had not also taken his money. Later that evening she saw Clark who had about 5 kilos of cannabis which had been stolen from Guildford John. He gave it to her and she passed it to someone else to sell, sharing the proceeds with Clark. In cross-examination she was adamant that she had seen Drury there on that occasion. She did not know where Guildford John had got his cannabis from. In prison he had written her a letter and she had gone to visit him. He had wanted her to tell the police about Clark because his drugs were stolen.[37]Cudworth's evidence was that, on 9 March 1996, he had been arrested for possession of a large quantity of cannabis. On the way to the police station he told the arresting officers that the last time he had been caught with cannabis, the police officers had taken it from him. He made a statement to the Police Complaints Bureau about the theft, describing what had happened on 30 January 1995. He had collected 10 kilos of Moroccan cannabis from a supplier, ringing Fleckney and arranging to meet her on the way. He sold her 2 kilos and went home with the remaining 8 kilos in his car. Outside his house he saw a man named Armstrong. After leaving him he had driven to a safe house, intending to leave the drugs there but, en route, he was rushed at by four people, police officers, who told him to drop the bag of cannabis. Two officers had got into the car with him and, after talking to him, they left. By this time the other two officers had gone off together with the 8 kilos of drugs. He remained well disposed to Fleckney who had seen him in prison and spoken to him about corrupt police officers.[38]Armstrong, a fellow drug-dealer, gave evidence supportive of Cudworth's story. The officers concerned with the arrest of Cudworth in 1996 and who had taken statements from him in relation to his complaint, also gave evidence in support. Counts 12 and 13: 10th April 1995 (the "Briar Cottage" counts)[39]Lawrence Burns lived in an old derelict camper van in the garden of a house called Briar Cottage, the tenant of which (Cheila Rose) did not tolerate his cannabis habit. He purchased cannabis from Cudworth who used to hide his stocks in the woods nearby. On 10th April 1995 two cars with four policemen raided the cottage. One whom he knew as Green (whose description corresponded with Drury) and Putnam went to the back. Two officers (Lawson and Pearce) went to the front. The police told him they were there in connection with a drugs search. He said he was not the occupier, that the van was his home, and that he would hand everything to them. He gave them a briefcase containing 8 or 9 ounces of cannabis, scales, plastic bags and other paraphernalia. Drury opened it and spoke to Putnam. Burns thought that the two who went to the front door were coming into the hallway as this occurred. He agreed that they might have been elsewhere in the house when the contents of the briefcase were examined. Burns said there were two lots of money in the house, £250 in the sitting room and £800 in the music room drawer. Putnam miscounted the money and he (Burns) recounted it correctly putting it back in the drawer. In a conversation in the garden, Drury told Burns that he (Drury) had various options, namely to go down to the police station with the cannabis; to inform the landlord of the cottage; to get a JCB to dig up the garden; or to take the envelope containing the money and go away. Burns agreed that he could take the money. He asked if they had to take all of it and Putnam said 'yes'. He jotted down the car registration number as he was not certain whether it was a genuine police raid or whether the visitors were criminals.[40]Cheila Rose and Howard Andrews (a friend) gave evidence generally corroborative of the visit. Cheila Rose confirmed that she was aware of the amounts described in the sitting room and music room. She described Burns giving his briefcase to a man whose description matched Drury, who was with an officer whose description matched Putnam. She then spoke of two officers arriving from the front door after the briefcase had been handed over. She also said that Howard Andrews stated that, after the police left, Burns told him he still had his cannabis but it had cost him £800. Cudworth also described his use of the woods and stated that he had visited Burns who had told him that the police had come round to his house and taken money from him. Burns had showed him the search warrant, which Cudworth had retained and produced. Other neighbours reported the complaints of Burns and Cheila Rose.[41]Finally, Putnam described the raid. He confirmed that inside the desk in the music room there was £800 in cash which Burns counted out in front of him. Burns said that it was only a bit of cannabis and asked if he could be cautioned and let go. In the garden Putnam spoke to Drury who, on being told of the money, asked if it could be nicked. Putnam said he thought Burns wanted to do a deal. Drury spoke to Burns, but was beating about the bush, so Putnam told him that if he gave them the £800 he could keep the cannabis and all would be forgotten. Burns agreed, Putnam took the money and, on the way back in the car, it was divided between the officers. In February or March 1996, after a formal complaint was served on them, Drury rang Putnam and told him to meet Drury at the Cricketers' pub in East Croydon where he, Drury, Clark and the others concerned discussed what they were going to say when they were interviewed. They were going to tell the truth except to say that no drugs and no money were found. In cross-examination, Putnam agreed that he had said in his initial interview that he did not remember seeing the cannabis. That was untrue. He agreed there was a difference between what he had said then and in evidence. The treatment of Putnam and Fleckney[42]DCS Yates who had overall control of the investigation gave evidence. He said that he was in the difficult position of having two long-term "resident informers" in police custody which created difficulties as none of the Home Officer circulars covered the practical problems arising in such a situation.[43]The procedure and system of recording in relation to the interviewing of Fleckney and Putnam was as follows. A distinction was drawn between 'debriefing' sessions, which related to investigatory matters in which the interviewee was acting as an informant giving general and specific information about corrupt activity in which he or she may or may not have been directly involved, and subsequent formal interviews in relation to specific matters. So far as the former were concerned they were not tape-recorded and, although notes were taken in the course of the interview which were preserved, they were not verbatim. In particular, they did not record the questions which were asked and they were only a partial record, by way of summary, of what was said. At a later stage, once matters had been clarified and refined by the debriefing sessions, a formal interview would be conducted in accordance with the provisions of PACE, Code C, for the purpose of embodying relevant evidence into section 9 statements for the purposes of proceedings. During the period in custody, a custody record was kept at all times; however, the custody record times did not always coincide with the timings on the debriefing notes.[44]DCS Yates said it would have been impracticable to have recorded every conversation with the two witnesses. He would have exceeded his budget. At no stage was Fleckney given access to any of the information Putnam had given to the police. After several weeks she was shown relevant papers but none of the interviewing officers were shown any of the information relating to Putnam or any of his statements. Putnam was not allowed access to papers at all; he was not shown the statements of Cudworth or Burns. DCS Yates saw Fleckney regularly for welfare reasons but not to interview her. He was present at the house search of Putnam on 9 July 1998 and told him he was investigating carnivores (the aggressively corrupt) and grass eaters (who nibble around the edges). It was not a threat. After talking to Putnam on 12 July, when Putnam talked about Briar Cottage and another allegation in general terms, he considered Putnam was holding back. On 21 July he made it clear to him that Putnam was going to have to decide what he was going to do. He would either have to co-operate fully or not be a resident informer.[45]DCS Yates said Fleckney was kept in two different locations where she was the only detainee. He said that he had done his best to keep to the spirit of PACE in order to protect her rights. The applicable Home Office circulars did not cover the situation. However, a custody officer and custody record were provided and she was represented by a solicitor to whom she had access for advice whenever she wished. So far as Putnam was concerned the position was the same. DCS Yates said that, while Putnam was in police custody, he should not have been taken to a pub and given beer; nor should he have been taken by way of recreation to test drive a sports car, as had happened on one occasion. DCS Yates said he had only learned about those breaches of rules when he was cross-examined about them and would deal with them. He denied putting pressure on either Fleckney or Putnam. He agreed that sentence had been discussed with Putnam but denied that it was capable of consisting of an inducement or threat, it being standard knowledge that anyone who assisted the police would get a reduction in their sentence. He said Mrs Putnam had been paid money to enable her to remain in her house as it was cheaper than having to house her elsewhere. The position on Putnam's pension was unclear until after he had been sentenced, when DCS Yates would write to the Pensions Board who would probably accept his recommendation as to whether to repay his contributions or to give him a portion of his pension.[46]Various officers were called who had contact with Fleckney during her time with the police. They said that she had never been told she could kiss parole goodbye if she did not co-operate. One of them, Sergeant King, made the point that nothing he could have said would have had the slightest influence on someone as seasoned as she was. The officers confirmed that she had concerns about giving evidence in relation to dangerous people and was anxious about what would happen to her in the future, in connection with which they said she had repeatedly stated that she wanted to give evidence in camera. So far as Putnam was concerned, Detective Inspector Murrell stated that he had bought beer for Putnam on their way to a secret location, but not as part of any carrot and stick policy by CIB3. Detective Sergeant Walsh who looked after Putnam said food was brought in, the only cooking facility being a baby Belling which Putnam had in his cell. He said that it was he who had taken Putnam on an outing for exercise and they had gone for a ride in an Alfa Romeo. He knew it was against the rules and he should have reported it, but again denied that the breaches were part of any carrot and stick policy. Defence Evidence[47]It is not necessary for the purpose of this appeal further to detail the prosecution evidence. Nor is it necessary to refer to the defence evidence at any length. Suffice it to say in that respect that Clark and Drury denied all the corrupt and criminal activity put against them and dealt with their innocent role in the various operations with which they had been concerned. Clark also denied completely Fleckney's evidence of their longstanding sexual relationship. He said he had contact with her as an informant, as to which she was very reliable, and some social contact which was permissible under the rules, but that was all. Drury supported him in that regard. Both attacked the reliability and honesty of Putnam. Both called character evidence. Abuse of Process – Breach of Undertaking in respect of Fleckney The Judge's Rulings of 11 November and 15 November 1999[48]The first main ground of appeal has been argued at length by Mr Jones QC for Clark, whose arguments have been adopted by Mr Amlot QC for Drury, with some added observations of his own.[49]Mr Jones has submitted that the judge was in error when, on 11 November 1999, he permitted Mr Pownall for the Crown to go back upon his statement made first in private to defence counsel and then in court, prior to the discharge of the first jury, that Fleckney would not thereafter be called as a witness by the Crown. Mr Jones submitted that Blofeld J should have found that the change of heart and subsequent decision by the Crown to call Fleckney at the second trial amounted to an abuse of process. He developed three 'tiers' of argument in this respect.[50]Mr Jones' first submission was that the statement amounted to an unequivocal undertaking 'coram judice' which fell into the same category as the undertaking given by counsel and the Crown Prosecution Service in R –v- Bloomfield (1997) 1 Cr App R 135 in respect of which this court stated that 'whether or not there was prejudice it would bring the administration of justice into disrepute' if the crown were permitted to go back on an earlier stated decision to offer no evidence. Second, Mr Jones submitted that if, in order to establish abuse of process, it is necessary for him to demonstrate prejudice, such prejudice was suffered in this case by the appellants' being deprived of the opportunity, had they been aware of the possibility that Fleckney might be called at the re-trial, to submit to the court that the first trial should continue so as to avoid that possibility. Third, relying upon the authorities of R –v- DPP ex parte Kebilene and others [1999] 3 WLR 972 and R –v- East and North Devon Health Authority ex parte Coughlan [2000] 2 WLR 622 Mr Jones submits that the undertaking gave rise to a 'legitimate expectation' on the part of the appellants that it would be honoured. In this context he submitted that the legitimate expectation was of a benefit which was 'substantive not simply procedural' (see Coughlan at 645 D-E) namely that of a re-trial without Fleckney being called as a witness. That being so, the subsequent decision of the Crown to call Fleckney as a witness amounted to an 'abuse of power' which, in this context, Mr Jones equates with abuse of process.[51]Leaving aside for a moment any consideration of the concept of 'legitimate expectation' as developed by the civil courts in the field of public law generally, the jurisdiction of the judge in a criminal trial to stay proceedings for abuse of process independently of the question of whether or not a procedurally fair trial is possible, is well established. As observed in R –v- Latif [1996] 2 Cr App R 92 at 101 ( [1996] UKHL 16 at page 7):
"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: R –v- Horseferry Road Magistrates Court, ex parte Bennett (1994) 98 Crim App R 114, [1994] 1 AC 42 …. The speeches in 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 that are charged with grave crime 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."
See also R –v- Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42 .[52]While the remarks in Latif were made in the context of a case where the appellant had been lured to this country for the purposes of prosecution, they demonstrate the nature of the discretion and that its touchstone is the public interest in the integrity and proper operation of the criminal justice system, and the need to avoid any affront to the public conscience in this respect. It has been elsewhere stated that an abuse of process is 'something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a fair proceeding': see DPP –v- Hussain , The Times, 1 June, 1994.[53]It was on the basis of an affront to public justice that the case of Bloomfield was decided. In that case, the indication given by the prosecutor was that the Crown would offer no evidence, i.e. would not proceed with the prosecution, because it was accepted that the defendant had been the victim of a set-up. That having been stated in open court, there was a public acknowledgement by the Crown that it would be improper, or at least unjust, for the defendant to face trial and the case was adjourned 'for mention' purely for the convenience of the prosecution, rather than being dealt with that day by the dismissal of the proceedings. Thereafter there was a change of prosecution counsel and, without any explanation for the change in heart, the matter proceeded, the trial judge having refused to stay the proceedings as an abuse of process. The appellant pleaded guilty. Even on appeal no explanation was provided for the change of heart by the prosecution, nor any attempt made to show that the original decision not to proceed was wrong. The court was simply told that it was unauthorised. In those circumstances this court stated:
"Looking at the case in the round it seems to us that this is an unusual and special situation. The decision to defer the trial on December 20 was taken for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice, in the presence of the judge. It seems to us that whether or not there was 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."
[54]However, the court went on to make clear that:
"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."
[55]Mr Jones has referred us to a number of other decisions in relation to abuse of process, where the question has been whether or not, in the light of the conduct of the prosecution, it is an abuse of process for proceedings to be brought, or a particular trial to take place, at all . However, such decisions are of scant assistance in relation to a case where there is no suggestion the Crown ever acknowledged or indicated that the trial of the appellants would not, or should not, proceed; the only issue for Blofeld J was whether it was an abuse of process for the trial to proceed with, rather than without, the evidence of Fleckney, simply because of the Crown's earlier indication that she would not be called.[56]As to Mr Jones' first submission, we reject any argument that, simply because Mr Pownall's original statement of intention was given in open court, it should be regarded as an undertaking 'coram judice' of the type referred to in Bloomfield, from which (for whatever reason) the Crown should not be permitted to depart. As made clear in that case, the court's decision was not intended to establish any precedent or general principle in regard to abuse of process and was expressly put on the basis that, in the wholly exceptional circumstances of that case, to allow it to proceed meant that an injustice would be done to the defendant.[57]Nor, do we think this case is any way analogous to the circumstances in Bloomfield . It seems to us that, in a case where the question arises whether or not it is an abuse of process to call a witness who is willing, available, and able to give relevant evidence as to the commission of the offence charged, one starts with the obvious proposition that it is in the interests of justice that such a witness should be called unless there is good reason to the contrary. This must particularly be so in a case where the charges involved are serious charges involving police corruption on a wide scale in relation to which the evidence of the witness concerned goes to the heart of the case. If the Crown seeks to adduce the evidence of such a witness contrary to an indication previously given that the witness would not be called, the question whether or not an abuse of process is involved will depend upon the following considerations.(1) The nature and circumstances of the indication.(2) The reason for the indication and the decision underlying it; was the decision taken bona fide and for good reason? Was it based on a view as to the credibility of the witness or some other reason? Was the indication similarly given bona fide and without any intention to trick or mislead the defence or to place it at a disadvantage?(3) The explanation for the change in the original decision; was it no more than a change of view as to the desirability of calling the witness or the quality of his/her evidence, or because of some change in circumstance not contemplated by the Crown at the time the original indication was given?(4) Regardless of the reasons and bona fides of the Crown in relation to its original decision and its subsequent change of view, has the Crown's statement of intention resulted in any substantial detriment or irremediable prejudice to the defendant in the conduct of his defence or otherwise rendered a fair trial impossible.'[58]As to consideration (1). The nature and circumstances of the indication were as follows. On 1 November, there had been discussions between counsel before the position was raised before the judge (see paragraph 17 above). In those discussions there had been a common assumption that, because the stage had already been reached in the trial in which Fleckney's evidence had been commenced and she had broken down in apparent fear, and because her role and likely evidence were already before the jury, they would have to be discharged if she persisted in her refusal to continue. Mr Pownall had made clear that any application to discharge would not be opposed. Upon appearance before the judge, Mr Pownall informed him that, if Fleckney declined to give further evidence, the Crown would not oppose any application to discharge. The matter then proceeded as set out at paragraphs 17 and 18 above.[59]It is apparent from those paragraphs that the indication of the Crown upon which the defence acted in applying to discharge the jury was in fact that given prior to appearance in court, the parties thereafter acting on the basis of a common assumption that discharge of the jury would be necessary, the statement in open court as to the Crown's future intention emerging in the manner we have described. Thus while there is no doubt (and Mr Pownall has accepted) that the defendant received a clear indication that Fleckney would not be called in any future proceedings and matters proceeded on that basis, the indication was in terms which lacked the formality or solemnity of the Crown's statement in Bloomfield; in particular, of course, it involved no recognition or acknowledgement that it would be wrong to proceed even if Fleckney were a willing witness.[60]As to consideration (2), the reasons for the indication and the decision underlying it are clear. Following the earlier difficulties over Fleckney's willingness to give evidence and the judgment of this court quashing the judge's earlier order that her evidence should be heard in camera , the Crown formed the view that, if Fleckney persisted in her refusal to give evidence, there was no likelihood of her changing her mind in the future. That view was formed, and the indication based upon it given, entirely bona fide. In the light of the history, the likelihood of a change of heart was simply not foreseen and there is no suggestion that the indication given involved any intention to trick or mislead the defence or place it at a disadvantage. Indeed, no such suggestion has been made by Mr Jones. His criticism has been directed at the unequivocal nature of the intention expressed and is in part based on the suggestion that the Crown should have foreseen a further change of heart on the part of Fleckney. He asserts that she was a manipulative witness whose actions were dictated by a desire to secure protection from publicity if possible, but who, if her bluff were called, might well decide to co-operate in the event of a fresh trial.[61]We can say at once that we consider it most unfortunate that the indication given by Mr Pownall as to the Crown's intentions was given in a form which indicated that in no circumstances would the Crown seek to call Fleckney. However, we see no reason to doubt that, at the time those intentions were expressed, the Crown was bona fide of the view already stated and that, as Mr Pownall has assured us, it came as a complete surprise when, on the 10 November, the Crown was informed that Fleckney was willing to give evidence. It is certainly clear from the comments of Blofeld J that he had formed a similar view and was similarly surprised. Nor did the defence indicate to the Crown that the defence harboured concerns that there was a realistic possibility that Fleckney might change her mind. No doubt, if this particular concern had been brought to the attention of the Crown it would have considered and addressed it.[62]As to consideration (3), the explanation for the Crown's change of stance was the sudden change in circumstance that Fleckney expressed an unqualified willingness to give evidence, of which the Crown had received no preliminary indication and which it had no reason to anticipate. We do not think that, in those circumstances, it was in principle discreditable or undesirable for the prosecution to seek to call a key witness who now appeared willing, and whose earlier reluctance gave no reason to suggest that her evidence, if given, would not be worthy of belief. We consider that the real question for the judge was whether, under consideration (4), the defence had suffered real prejudice by reason of the Crown's original indication or some irremediable disadvantage which would render it unfair and unjust to permit Fleckney now to be called.[63]In that respect, the appellants submit that, in reliance upon the Crown's expression of intention, they applied for and/or acquiesced in the discharge of the jury without having the opportunity to exercise an informed choice as to whether to adopt the alternative course of pressing for the continuation of the trial against the possibility that Fleckney might have a further change of heart if it were aborted. Neither Mr Jones, nor Mr Amlot, has suggested that either of them would in fact have advised his client that the trial should continue so as to avoid that possibility. However, they have submitted that the choice was one which their clients should have had the opportunity to exercise and, if they wished, to give instructions to their counsel to submit to the judge that the trial should proceed on the basis of a direction by the judge as to the need to put the role and evidence of Fleckney out of their minds. Mr Amlot has not suggested it is likely that his client would have done so. Mr Jones, however, has placed reliance upon the statement obtained from Clark for the purposes of submission to the judge when Mr Jones renewed his application for the exclusion of Fleckney's evidence at the start of the re-trial (see paragraph 24 above).[64]In our view the suggestion of substantial prejudice and/or real disadvantage to the appellants is illusory for two reasons.[65]First, we are bound to say that we regard the statement obtained from Clark with considerable reserve, given as it was in the light of the Crown's unexpected volte face whereby it now appeared that Fleckney would be giving evidence after all. It seems to us likely that, albeit unconsciously, the statement is influenced by the benefit of hindsight. However, taking it at face value, it is clear to us that, even had Mr Jones been instructed on 1 November to apply to the judge that the trial continue, it is inconceivable that the judge would have acceded to that request. It is the task of the judge to ensure that a fair trial takes place and that the jury only come to their conclusions upon the basis of evidence directly given before them, rather than on a basis of speculation or bias. The role and anticipated evidence of Fleckney had been given a high profile in the opening by Mr Pownall and the question of her role had recurred in the course of proceedings, in particular in the cross-examination by the defendants of the other accomplice witnesses. Further, the jury had seen Fleckney break down in apparent fear in the witness box. The likely prejudicial effect of those events in the minds of the jury, whatever directions they might receive from the judge in the course of summing-up, inevitably dictated a need for the trial to be re-started and we can see no realistic likelihood whatever that the judge would have permitted it to continue.[66]Mr Jones has attacked the decision of the judge on the basis that he should not have made his ruling on 11 November without having required a voir dire in respect of Fleckney's change of heart and/or that he should have acceded to the application to hold a voir dire in order to reconsider the matter which Mr Jones made on 15 November 1999. We do not accept that criticism. The judge had himself witnessed Fleckney's original refusal, which he made clear he accepted was genuine and on account of fear for her situation, as confirmed by her undated letter written shortly afterwards to DCS Yates. As to her subsequent change of heart, the judge had before him her statement of 10 November, which made clear that she had decided to give evidence after all as a result of the advice and support of friends in prison. He also had the benefit of skeleton arguments on both sides in advance of submissions. Assuming, as was clear, the judge found the statement of 10 November to be prima facie credible, in the absence of any concrete suggestion of improper pressure by the Crown, it was open to the judge to make his decision on the material before him and upon Mr Pownall's assurance that there had been no effort by the Crown since 10 November to encourage Fleckney to give evidence. No doubt, he also paid regard to the general principle that a witness as to fact should be examined and cross-examined in front of the jury.[67]By way of parallel, it is generally undesirable for a judge to hold a voir dire to decide an issue as to whether evidence is fabricated, as it usurps the function of the jury: see R-v- Stevenson and others [1970] 55 Cr App R 171 at 173-4 and R –v- Beveridge [1987] 85 Cr App R 255 at 257-8, quoting R –v- Walshe [1982] 74 Cr App R 85. It is apparent from the last-mentioned decision that a distinction is to be drawn between those cases where the Crown has the burden of proving admissibility, e.g. the voluntary nature of a confession, and a matter where the burden rests upon the defence to resist the admission of a statement prima facie admissible (as in this case). It is also the position that, in a case where it is apparent that a witness may prove hostile if called, it is entirely a matter for the discretion of the judge whether or not he holds a voir dire to explore the position: see R –v – Honeghon and Sayers [1999] Crim LR 221. In our view, the question of whether a voir dire was necessary or appropriate for the judge to decide the question before him was entirely a matter for his discretion.[68]We would add that, in the event, although Fleckney was cross-examined at the trial about her change of heart, no material was forthcoming to support Mr Jones' contention that she had been pressurised by the police or the Crown to that end. Accordingly, and because it was never suggested to the judge that a procedurally fair trial was not possible if Fleckney gave her evidence, we find no evidence or realistic suggestion of disadvantage or irremediable prejudice to the appellant under consideration (4).[69]While the expression 'legitimate expectation' may in the lay sense be an apt description of the appellants' state of mind as to the course the trial would take following the indication by the Crown that Fleckney would not be called, we have not derived assistance from Mr Jones' 'third tier' argument, based on the concept of legitimate expectation as developed in the field of public law in the context of judicial review.[70]In the case of ex parte Kebilene , the Divisional Court certified as a point of law of general public importance whether, pending the coming into force of its substantive provisions, the enactment of the Human Rights Act 1998 gave rise to an enforceable legitimate expectation that the Director of Public Prosecutions would exercise his prosecutorial discretion in accordance with the ECHR. The Divisional Court and the House of Lords had no difficulty in dismissing such a suggestion in terms which give no comfort to the argument that public law principles applicable to general policy decisions are apt to be applied in relation to particular decisions on procedural and evidential matters taken by the prosecution and communicated to the defence in the course of a criminal trial. In our view, if and insofar as such a decision or communication is said to amount, or give rise to, an abuse of process, it falls to be decided in accordance with the line of authority to which we have already referred. When the House of Lords made it clear in Kebilene , in relation to the ambit of s.59(3) of the Supreme Court Act 1891 and the availability of judicial review, that it was open to the applicants to raise their complaint about the Directors' decision in the Crown Court by way of an abuse of process application (see per Lord Steyn 984H-985A and Lord Cooke at 987H-988A), they did not in our view intend to suggest, nor should their remarks be read, as suggesting otherwise.[71]As to Mr Jones' reliance upon the observations of the Court of Appeal in ex parte Coughlan [2000] 2 WLR 622 at 645D-E, again we see nothing to detract from our view. It is true that, in the course of reviewing the doctrine of legitimate expectation in that case, in a passage at 645G-646A, the court referred in passing to three criminal cases in relation to the question of whether the expectation induced was of a benefit which was substantial (i.e. sufficient, in an appropriate case, to found relief) or simply procedural (insufficient). The first, R –v- Grice [1977] 66 Crim App R 167, concerned an expectation as to sentence induced in a defendant by a plea bargain; the second R –v- Reilly [1982] QB 1208, involved a discussion by Kerr LJ in relation to the power and propriety of a judge belatedly amending a sentence to include a criminal bankruptcy order; and the third, R –v- Dover Magistrates' Court, ex parte Pamment [1994] 15 Crim App R(S) 778, concerned the committal by magistrates of a defendant to the Crown Court for sentence in respect of a matter with which an earlier bench had decided should be dealt with before the magistrates. In none of those cases did the appellate court address consider the matter in terms of abuse of process, or address itsmind to any argument in terms of the modern understanding of 'legitimate expectation' in the public law field. Accordingly, in the context of this abuse of process application, the observations in Coughlan do not in our view advance the appellants' case. Even if we accepted (as we do not) the relevance of the public law principle of legitimate expectation in a case of this kind, and even if (which we doubt) the appellants' expectation can be characterised as one of a substantive, rather than merely procedural, benefit, we also note the statement in Coughlan at 645E that:
'Here, too, the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.'
Pausing only to observe that the expression 'abuse of power' in that passage is not the same as 'abuse of process' in criminal proceedings, the approach referred to does not seem to us very different from that required of the court when weighing the countervailing considerations of policy and justice articulated in R –v- Latif (see paragraph 51 above). That was essentially the approach of the judge in this case. In our view he correctly weighed in the balance the issue of the requirement of fairness to the appellants on the one hand and the 'overriding' interests of justice relied on by the prosecution, namely that the evidence of a key witness, formerly unwilling through fear, had now become available in a case of high public importance.[72]For the reasons above, we do not consider that the judge erred in ruling as he did, or that abuse of process has been established in relation to the calling of Fleckney as a witness. Nor does the judge's decision lead us to question the safety of the convictions. S.78 PACE; Article 6 of ECHR[73]It was submitted to the judge, and it has been re-submitted to us, that the judge should have excluded the evidence of Fleckney under s.78 PACE and/or on the grounds that, under Article 6 of the ECHR, admission of her evidence in the face of the earlier indication that she would not be called would result in an unfair trial. However, the arguments made were those we have already addressed. It is clear that the appellants had prepared for the original trial on the basis that such evidence would be available and, in that respect, it is not suggested that anything happened as a result of the Crown's statement of intention which placed the defence at any disadvantage or additional difficulty in meeting and dealing with her evidence on the occasion of the second trial. While no doubt the appellants experienced disappointment when she was called on the second occasion (and the judge took into account the arguments of stress which have been advanced in respect of Clark), they did not experience any procedural unfairness as a result. Save for the argument of abuse of process to which we have already adverted, it has not been suggested that the calling of Fleckney would render the trial unfair. These grounds therefore add nothing to the first main ground (abuse of process) and likewise fail. A separate and wider argument of abuse of process was raised at the end of the prosecution case and to that we now turn. The detention and questioning of Fleckney and Putnam; the conduct of the Investigating Officers. The abuse of process application at the close of the prosecution case: The Judge's ruling of 20 December 1999[74]Clark and Drury put forward grounds of appeal based on the conduct of the investigating officers in detaining Fleckney and Putnam and their subsequent dealings with them. The matters argued before us were the subject of an unsuccessful application made to the judge to stay the proceedings for abuse of process at the close of the prosecution case.[75]Both Fleckney and Putnam gave evidence against Clark and Drury; Putnam only gave evidence against the remaining appellants. Mr Jones, for Clark, assumed the burden of arguing this head of appeal for Clark. Drury and the other appellants adopted his arguments for the purpose of their appeals, adding viewpoints of their own. In the various grounds, it is alleged that Putnam and Fleckney were illegally detained for the purpose of questioning in relation to the offences; that they were subject to threats and inducements in the course of their interrogation; and that their treatment involved numerous breaches of PACE and the Criminal Procedure & Investigations Act 1996 ("CPIA"), as well as their associated codes, which do not recognise exceptions where the persons who are being interviewed and interrogated are informers. Mr Jones has submitted that the judge should have ordered that the proceedings be stayed at the end of the prosecution case because of the various irregularities in the treatment of Putnam and Fleckney which had been revealed and explored in the evidence of the prosecution witnesses. His submissions may best be considered under the following heads which (save insofar as they rely on the CPIA) were also advanced before the judge:(a) the proceedings should have been stayed for an abuse of process because of what Mr Jones terms the 'executive lawlessness' of the detention and the officers responsible for it; in the respects mentioned; he submits that the police and prison authorities acted in a deliberate, or at any rate a collusive, manner to avoid and outflank the requirements of PACE;(b) the proceedings should have been stayed for abuse of process because the defendants were denied a fair trial in that they were deprived of material with which they could have cross-examined the witnesses;(c) the evidence of Putnam and Fleckney should have been excluded under s.78 of PACE, having regard to all the circumstances, including the circumstances in which their evidence was obtained;(d) the judge was in error in ruling that PACE did not apply to Putnam or Fleckney during the relevant period of detention. The effect of his ruling was to limit the extent to which counsel for the appellants could urge upon the jury that the witnesses had been dealt with unlawfully.[76]In making the above submissions, Mr Jones has acknowledged that most of the matters of which he complains, in particular that the detention of Putnam and Fleckney was illegal and that various breaches of PACE had occurred in the course of their interrogation, relate to provisions designed to protect the detainees themselves, who have at no stage complained or sought any remedy in respect of such breaches. However, he submits that they nonetheless represent matters of which the appellants may properly complain as a source of prejudice in their own trial under heads (b) and (d) above. The legality of the Production Orders pursuant to which Putnam and Fleckney were detained.[77]At the time of the production orders pursuant to which Fleckney and Putnam were delivered from prison into the charge of officers in CIB3, Fleckney was a serving prisoner and Putnam had been remanded into custody by the Magistrates' Court. s.41 of the Crime (Sentencing) Act 1997 ('the 1997 Act') provides that:
"Schedule I of this Act (which makes provision with respect of the transfer of prisoners within the British Isles) shall have effect."
[78]The relevant part of Schedule I is paragraph 3(1), which provides; "If the Secretary of State is satisfied, in the case of – a person remanded in custody in any part of the United Kingdom in connection with an offence; a person serving a sentence of imprisonment in any part of the United Kingdom; a person not falling within paragraph (a) or (b) above who is detained in a prison in any part of the United Kingdom, that the attendance of that person at any place in that or any other part of the United Kingdom or in any of the Channel Islands is desirable in the interests of justice or for the purpose of any public enquiry, the Secretary of State may direct that person to be taken to that place"[79]S.41 and Schedule 1 of paragraph 3 of the 1997 Act replaced equivalent provisions in s.29 of the Criminal Justice Act 1961 ("the 1961 Act") which was repealed on 1 October 997 by virtue of the coming into force of Schedule 6 of the 1997 Act. The production orders relating to Fleckney and Putnam purported to be made pursuant to s.29 of the 1961 Act. However, in the light of the similarity of the provisions, that fact does not in itself invalidate the production orders in question.[80]S.33 of the 1961 Act, as amended by the Criminal Justice Act 1982 explicitly gave the Secretary of State the power to delegate his authority under s.29 to any 'authorised officer'. There is no equivalent provision in the 1997 Act. However, applying the principle in the case of Carltona Limited and Commissioners of Work and others [1943] 2 All ER 560, we consider that it is clear from a consideration of the number and extent of his duties that the Secretary of State can delegate his power under Schedule 1, paragraph 3(1) to a prison governor if he sees fit.[81]The Prison Service Headquarters Instruction to Governors (IG/18/1996 'Production of Prisoners at the Request of the Police within England and Wales – Section 29, Criminal Justice Act 1961', stated to be issued on 28 March 1996, with an expiry date of March 2001, instructed Governors as to their delegated authority to approve the production of prisoners at the request of the police and appears to have contained the provisions pursuant to which the production orders in this case were made. Paragraph 6 of the instruction states that it devolves to Governors decisions on the production of prisoners to the police for various purposes, including:
"vi) to be interviewed in connection with the investigation of a serious arrestable offence as defined by Section 116 of the Police and Criminal Evidence Act 1984."
[82]Paragraph 4 of the instruction further states: "Section 29(1) Criminal Justice Act 1961 enables, but does not require, the Home Secretary to direct that a prisoner attend at any place in the United Kingdom if he is satisfied that such attendance is desirable in the interests of justice or for purposes of any public enquiry. Removal to police station where that is desirable in the interests of justice can be ordered under Section 29 of the 1961 Act but the prisoner's consent is not required. Paragraph 5 reads: When a prisoner is removed to a police station under Section 29, he is in the legal custody of the police, the authority for custody stemming from Section 35 of the 1961 Act. He is no longer in the legal custody of the governor under Section13 of the Prison Act 1952 and Prison Rules do not, therefore, apply. However the police in every case should be asked to ensure that, as far as possible, prisoners be given the benefit of any Prison Rules which would be to their advantage. Paragraph 9 reads: Before there is any discretion to produce a prisoner under Section 29…the governors must be satisfied that the production is genuinely desirable in the interests of justice. The governor is not under any obligation to automatically meet these requests. Each case must be considered on its merits and requests for production should not be unreasonably refused. The deciding factor must be in the interests of justice. Paragraph 12 reads: The governing governor should approve the production. In the absence or non-availability of the governing governor, the production must be ordered by the person for the time being in charge".[83]There is, by paragraph 7, an exception to the delegated authority in respect of Category A prisoners and protected witnesses, in relation to whom a request for production must first be referred to a particular Section at Headquarters (Police Advisors Section). It is not clear from the evidence whether Putnam or Fleckney came within that category of exceptions. However, it is unlikely that either had been granted of the status of protected witness at the time of their first production.[84]The evidence regarding the procedure employed in the granting of the production orders for Putnam and Fleckney was not entirely clear. However, when giving evidence, DCS Yates told the court that, in seeking production orders, he had relied on the advice of DCS Daisley, who had been on secondment from the Metropolitan Police to H.M. Prison Service as Deputy Police Advisor. Mr Buckenham, a Governor grade officer from H.M.P. Holloway said that the request to produce Fleckney came via the legal advisors at Headquarters. Thus there was evidence to suggest that, if Putnam and Fleckney came within the exception in IG/18/1996 which we have mentioned, the requests were referred to the correct quarter.[85]The Deputy Governor of H.M.P. Brixton, where Putnam was initially taken following remand, gave evidence that he would have relied upon the authorisation of the Senior Police Officer who made the request, and any subsequent requests for renewal of the order, whether the test was satisfied.[86]Mr Jones has submitted on the basis of the above, that it is clear that in respect of both Putnam and Fleckney the relevant prison governors were allowing the prisoners to be detained by the police by a process of automatic release and extension on request, without the exercise of their independent discretion. If so, it would appear that, so far as the prison authorities were concerned, no more than lip service was paid to the instruction in paragraph 9 of IG/18/1996. However, so far as legality is concerned, the governing provision is that contained in Schedule 1 to the 1997 Act.[87]In that respect, we do not regard this case as a necessary or suitable occasion on which to investigate and rule in general terms upon the extent to which, in satisfying himself under paragraph 3(1) that the attendance of a prisoner at a police station is desirable in the interests of justice, the Secretary of State or his delegated prison governor is entitled simply to rely upon the view and authorisation of the Senior Police Officer requesting such attendance. If the legality of a governor's decision or the lawfulness of a prisoner's production or detention is to be tested in an individual case, it is appropriately done by proceedings for habeas corpus or some other remedy pursued by or on behalf of the individual prisoner concerned, in which the protagonists are represented. We would merely observe that in the light of the many requests for production (albeit in more run-of-the-mill cases) to which the Secretary of State and, indeed, the Governor of a busy prison, are required to address their attention, it must be impractical for them to give detailed personal consideration or analysis to the facts of each particular case. Provided there is no reason to suspect bad faith or ill-judgment on the part of the police, and provided the Secretary of State or Governor himself acts in good faith, we think it unlikely that in such circumstances authorisation of a production order could be shown to be unlawful. Suffice it to say for the purposes of our decision in this case that the appellants have failed to show: a) that is was other than in the interests of justice that the police should be permitted to interview Fleckney and Putnam at length, with a view to establishing the extent of police corruption on the part of others and the commission of serious arrestable offences in connection therewith and that production orders should be made for that purpose; or b) that the police, in applying for production orders and the relevant Governors, in complying with such requests, acted otherwise than in good faith and in accordance with what they believed to be their powers.[88]In this connection, it appears that there is still regarded as current and applicable to prisoners produced under Schedule 1 to the 1997 Act a Home Office Circular 9/1992 relating to prisoners produced under s.29 of the 1961 Act described as 'Resident Informants'. It states that it 'offers guidance to Chief Officers on the handling and supervision of resident informants (referred to in the Prison Service as "protected witnesses") and on procedures for securing their temporary release from prison, where appropriate'. It further states that it has been 'prepared in consultation with the Association of Chief Police Officers [and] the Crown Prosecution Service'. It describes a resident informant as 'an active participant in a serious crime or a succession of serious crimes who, after arrest or conviction, elects to identify/give evidence against and provide intelligence about fellow criminals involved in those or other offences' and states that 'unsentenced informants will be dealt with by the courts but would anticipate receiving a reduced sentence as a result of their actions'. Attached to the circular are Best Practice Guidelines in relation to the conditions to be provided in police stations. In paragraph 4 there is reference to 'the need to proceed with resident informants in a way in which later allegations of inducement can be rebutted.' Paragraph 16 requires uniformed staff to be responsible for the custody of the informant 'to prevent the possibility of familiarity developing between operational officers and the informant and subsequent accusations about the integrity of the evidence given by the informant'. Elsewhere there is reference to the principle that the treatment which informants receive 'should not differ markedly from that which they would have experienced had they been held in prison', and best practice guidelines set out details of the recommended conditions of supervision to that end, including keeping and inspection of a custody record. There is no reason to doubt that the officers involved in this case regarded themselves as dealing with Fleckney and Putnam as resident informants as described in that circular. The application of Part IV of PACE[89]An integral part of Mr Jones' attack upon the conduct of the police in relation to the detention and questioning of Putnam and Fleckney is an allegation that there was a wholesale disregard by the police of the provisions of Part IV of PACE and the codes of practice made under S.66 of PACE. He submits that those breaches were significant and substantial breaches which would have led to the rejection of the statement made by Fleckney or Putnam if, at their own trial, they had sought to have evidence of their admissions and assertions excluded under s.78 of PACE. Mr Jones submitted, as he submitted to the judge, that Part IV of PACE relating to the conditions and duration of persons in police detention applied to Fleckney and Putnam throughout, as did the provisions of Code C made under s.66. The judge held that they did not. So far as Part IV of PACE is concerned, we consider the judge was correct to do so.[90]At this point, it is important to draw a distinction between the provisions of Part IV of PACE and the provisions of the Codes. That is because it is the failure by the police to apply to Putnam and Fleckney the provisions of Part IV in s.34 (limitations on detention), s.37 (duties of custody officers before charge), s.38 (duties of custody officer after charge), s.39 (responsibilities in relation to persons detained), s.40 (review of police detention), s.41 (limits of period of detention without charge), s.42 (authorisation of continued detention), or to recognise the statutory requirement to obtain from a Magistrates' Court warrants of further detention and/or extension of such warrants under s.43 and s.44, which are relied on in support of Mr Jones' complaint of executive lawlessness on the part of the police. He submits that, in effect, Putnam and Fleckney were illegally held and questioned over a period of months under an improper regime designed to ensure that they gave the evidence the police wanted.[91]The Long Title of PACE describes it as an "Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline sand complaints against the police….." (emphasis added).[92]Part IV of PACE contains the framework, which governs the conditions and duration of police detention. S.34(1) provides that "a person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act."[93]Police detention is defined in Section 118(2), the material part, which is in the following terms: "a person is in police detention for the purposes of this Act if – a) he has been taken to a police station after being arrested for an offence… b) he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it".[94]We do not consider that this definition includes, or was intended to include, the situation whereby a person is taken to a police station under the authority of a Production Order pursuant to Schedule 1, paragraph 3(1) of the 1997 Act. Whereas Part IV of PACE is concerned with the treatment of persons in police detention following and pursuant to arrest, Schedule 1 of the 1997 Act is essentially concerned with persons who are in custody pursuant to an order of the court whether on remand or as a serving prisoner (as Putnam and Fleckney respectively were). These situations are distinct and, as a matter of statutory construction, having regard to the purposes of both Acts, a person remanded in custody or a person serving a sentence of imprisonment is not a person in police detention.[95]For this purpose, it is necessary to distinguish police detention as defined in S.118(2) of PACE and the term 'custody': see S.67(1A) of the Criminal Justice Act 1967 (Computation of Sentences of Imprisonment whilst in England and Wales) , as amended by PACE as well as other enactments. The 1967 Act similarly distinguishes between 'police detention in connection with the offence for which the sentence was passed' and 'any period during which [the offender] was in custody…by reason only of having been committed to custody by an order of a court'. In Part IV of PACE, the word 'custody' appears as part of the appellation Custody Officer, the officer appointed at each designated police station who has various duties relating to persons in police detention. It also appears in s.34(1), in the requirement for 'immediate release from custody' of a person in relation to whom 'the grounds for the detention of that person have ceased to apply'. Under S.39(1)(a) and (b) the responsibilities of the Custody Officer specifically relate to the treatment of, and records in relation to, all persons 'in police detention', and s.40 relates to the required periodical review in respect of each person 'in police detention' in connection with the investigation of an offence.[96]Thus it is clear that, read in context, s.118 of PACE is designed to cover the situation of a suspect who is in police detention solely by reason of his arrest at, or in order to be taken to, a police station. Indeed, s.118 itself emphasises that limitation by making it clear that 'a person who is at court after being charged is not in police detention for the purposes of the Act'. Thus once a person has been remanded in custody by a court, he is no longer to be regarded as being in police detention for the purposes of Part IV of PACE. Application of Code C.[97]The position under Code C is different. Code C is a code of practice issued by the Secretary of State pursuant to his powers under s.66 and s.67 of PACE. The matters provided for within it are not circumscribed by the statutory provisions as to police detention which appear in Part IV of PACE and as defined in s.118. Its title 'Code of Practice for the Detention of Treatment and Questioning of Persons by Police Officers' adopts the wording of s.66(b). By C:1.10 'Subject to paragraph 1.12 [not applicable to Putnam and Fleckney] this code applies to people who are in custody at police stations…whether or not they have been arrested for an offence'.[98]Notwithstanding the wording of C.1.10, however, there are parts of Code C which appear to apply only to a person in 'police detention'. For example, the wording of C:2.1 (opening of a separate custody record) and C:3.1 (information by the Custody Officer as to the rights of the person under arrest) is such that those paragraphs will only apply to those in 'police detention' as defined by Section 118(2). However, other parts of Code C clearly have wider application. C:8 (Conditions of Detention) is applicable to persons held in categories of custody other than police detention. Nor does an individual have to be in police detention to be afforded the protection of C:10 (Cautions), which by necessary implication applies to persons elsewhere than in police stations. (see the references to questioning in relation to ownership of vehicles and the proper and effective conduct of a search). Further, C:11 (Interviews – General), clearly contemplates interviews outside a police station in the circumstances set out in 11.1 and C:11.5 expressly requires the keeping of the appropriate record 'whether or not the interview takes place at a police station'. In contrast, however, C:12 (Interviews in Police Stations), is expressly drafted to deal with interviews conducted with 'a detained person'. Equally, it is clear, that on a proper construction of Code C, read in conjunction with PACE, the provisions of C:15 (Reviews and Extensions of Detention) and C:16.1 (Charging of Detained Persons), relate to detained persons as defined in PACE and do not apply to an individual in the position of Putnam or Fleckney who has already been charged and remanded in custody and is brought to the police station for the purposes of the investigation of offences by others.[99]Whatever the position under Code C, as the Crown concede, the provisions of Code E (Code of Practice on Tape Recording of Interviews with Suspects), are apt to apply to all interviews at police stations with suspects, irrespective of whether the interviewee is in 'police detention'. Having regard to the definition of 'interview' in C:11.1A and the wide interpretation afforded to that word by this court ('normally any discussion between a suspect or prisoner would amount to an interview, whether instigated by the suspect or prisoner or a police officer': R v Matthews Voss & Dennison (1990) 91 Crim.App.R.43), all or virtually all of the discussions between the police and Fleckney and Putnam in relation to their own involvement and the involvement of others in corrupt activities would have been subject to the provisions of Code E, so that all those interviews and discussions should have been recorded. Application of the CPIA Code.[100]The Criminal Procedure and Investigations Act 1996: Code of Practice under Part II applies to all criminal investigations conducted by police officers. Section 4 (Recording of Information) requires:
"4.1 If material which may be relevant to the investigation consists of information which is not recorded in any form, the officer in charge of an investigation must ensure that it is recorded in a durable or retrievable form (whether in writing, on video or audio tape, or on computer disc). ……. 44. Where information which may be relevant is obtained, it must be recorded at the time it is obtained or as soon as practicable after that time."
[101]These provisions were not relied on before Blofeld J in the course of submissions below and he did not deal with them. However, they have been relied on by Mr Jones before us and it is conceded by the Crown that the provisions applied to the investigating officers who dealt with Fleckney and Putnam. The concessions of the Crown[102]In addition, the Crown concede that the 'debriefing' notes (see paragraph 43 above) were an incomplete record and, insofar as they omit from the record the questions asked, significant answers given, or substantial qualifications made by the interviewee, they involve a breach of the CPIA code and PACE Code E. The more so, if conversations of significance or relevance in relation to the substance of the corrupt activities took place which were not recorded at all. The Crown also concede that remarks made to Putnam which had a potential to be construed as a threat or inducement should have been recorded as part of the relevant material. It is also conceded that code C:10.1 was applicable to the 'debrief' interviews and, consequently, the failure to caution at the beginning of each debrief constituted a breach of that provision. The substance of the complaints: Breaches of the Code. Inducements.[103]Before turning to the matters complained of, it is important to note what material was available to the defence by way of disclosure prior to the trial. In addition to the 'custody logs' (which were opened 'in the spirit' of PACE though not under its legal requirements), copious 'debrief' notes, the taped interviews and section 9 statements, the appellants had a wealth of material disclosed by the Crown which catalogued the treatment of Fleckney and Putnam during the time they were in the hands of the investigating officers. In particular, in the case of Putnam, he had kept a diary of his treatment throughout the relevant period which provided an intimate detailed and frank account of all the events which he viewed as significant as well as his emotional reactions to them. That diary records the events itemised at paragraph 105(i)-(v) below. Putnam said in evidence (as there is no reason to doubt) that, at the time of writing the diary, he had no idea it might later be disclosed.[104]In addition to the diary, following waiver by Putnam of his privilege, there was disclosed to the defence the substantial file kept by Putnam's solicitor, who was advising him throughout that period. The file contained detailed attendance notes and other material recording the conferences and correspondence between Putnam and his solicitor, as well as other correspondence between the solicitor and, for example, DCS Yates and the representatives of the CPS. In the case of Fleckney, the Crown disclosed the relevant parts of a number of letters which she wrote to a variety of people during the relevant period recording her own troubled state of mind and concerns in respect of her dealings with the police and her motives for co-operating with them and giving evidence. It was the disclosure of these letters which gave rise to cross-examination about remarks that officers had made about the possibility of parole. Thus the defence had available, in the case of Putnam, a record of the substance of any inducements or conversations which acted upon his mind and, in both his and Fleckney's case, reliable contemporary evidence as to their innermost motives and feelings in relation to their situation, including Fleckney's concerns about her role as a result of what the police had said to her.[105]The particular matters of significance, which the records kept by the police failed to reveal but were referred to in the disclosed material, mainly relate to Putnam. They were as follows:(i) the remark made by DCS Yates concerning 'carnivores and grass eaters';(ii) a further remark made by Yates to Putnam on 21 July 1998 to the effect that Putnam would be dropped from the witness protection scheme unless he told the police everything;(iii) indications from DS Walsh and others regarding a possible two-third reduction in sentence should Putnam plead guilty and give evidence for the Crown;(iv) an indication from Yates that if Putnam told the full story he could reduce an expected sentence of 15-20 years by three-quarters;(v) remarks from Yates suggesting he would get bail if he 'gave it all';(vi) comments made by Putnam to the debriefing officers regarding his belief that O'Connell may not have been a knowing participant in the 'amphetamine job'.[106]In addition to those matters, of which all but item (vi) were recorded in Putnam's diary, complaint is also made of conduct which it is said amounted to inducements and/or breach of the Best Practice Guidelines in Home Office Circular 9/1992: (vii) the agreement of DCS Yates to make representations in connection with the recovery of Putnam's past pension contribution if he 'came up to proof'; (viii) the taking of Putnam on outings (under guard outside the confines of the police station, including trips to the beach and a test drive in an Alfa Romeo car); (ix) the apparent fact that the debriefing officers became over-familiar with Putnam; and (x) the provision of food which a normal remand prisoner would not receive.[107]While it is not suggested that failure to record all of these matters necessarily amounted to breaches of the Codes, they nonetheless amounted to breach of the Home Office Guidelines in respect of resident informants/protected witnesses and the general injunction to treat them in a way in which later allegations of inducement can be rebutted: see paragraph 88 above.[108]Having considered the arguments as advanced before him, which did not involve the concessions which had been made by the Crown on this appeal as set out in paragraph 99 above, Blofeld J made his ruling. The Judge's Ruling[109]The judge gave a detailed and reasoned written ruling, some 16 pages long. He considered the factual history relating to the production orders and the subsequent dealings of the police with Fleckney and Putnam. He reviewed the documents and statutory provisions to which we have already referred and rejected the submissions made to him in support of the allegations of the unlawfulness of Fleckney's and Putnam's detention. He recited the arguments which had been put to him and concluded, as we have, that, being in a police station by virtue of a Home Office Production Order made under the provisions of s.41 and Schedule 1 of the 1997 Act, neither was in police detention as defined by s.118 of PACE. On that basis he held, rightly, that: "If they were not in police detention then the parts of the Act including codes of Practice under PACE relating to detention would not apply". (emphasis added).[110]He went on to hold, again rightly, that what he called the 'detention provisions' of Code C did not apply, for the same reasons that s.37 of PACE did not apply. He observed that the notes for guidance in Code C anticipated that persons at police station 'voluntarily to assist with an investigation' should be treated with no less consideration than the provisions set out in Code C and in particular should enjoy absolute right to obtain legal advice or communicate with anyone outside the police station'. He observed that this indicated that the code envisaged people might be at police stations to whom the code would not apply but they should still be treated properly and stated that he found it unsatisfactory that parts of one code should apply but not others. He went on to say that regardless of the precise provisions of PACE:
"Now that the PACE has been in operation for a number of years the common law has moved on. If a person in their [Fleckney's and Putnam's] circumstances wishes to make an application in their own case for the court to exclude evidence I would expect that court to approach the matter broadly in the same way as it would approach the matter if the relevant provisions of PACE applied. I would also expect the court to decide whether to operate its inherent right to exclude evidence in much the same way as is laid down in s.78 of PACE. So there is protection for people like F and P in those circumstances."
[111]Having held 'after some hesitation' that PACE did not apply, he went on to say that, in considering the admissibility of evidence under s.78 of PACE and in particular whether the evidence 'had such an adverse effect on the fairness of the proceedings that the court ought not to admit it' he considered the test under common law was identical and moved on to consider this aspect. He stated that, in this connection, he was bound to take into account that at all relevant times Putnam and Fleckney were each represented by solicitors who were in regular attendance and kept closely informed as to what was happening to them. Further it was clear that both were at all times willing to be at the police station and to assist the police. He went on to refer to the observation of Lord Nolan in R –v- Khan (Sultan) [1997] AC 558 at 582:
"It is the effect of the behaviour of the police on the fairness of the proceedings that is important rather than the legality of their conduct."
[112]He observed that he considered it most unlikely that if the various matters had been raised directly by Fleckney and Putnam in their own cases the evidence would have been excluded, though he could go no further than that as it was a hypothetical situation, he having heard no submissions from counsel on their behalf. He stated that in his considered judgment the behaviour of officers of CIB3 in all the circumstances of the case did not bring the matter within the principles stated in ex parte Bennett . He regarded Fleckney and Putnam both as voluntary witnesses who had been prepared to come forward and give evidence in the case. The behaviour of CIB3 had not been such as to taint their evidence irrevocably. He stated:
"I consider it is perfectly proper for the jury to receive their evidence and give it such weight as they think fit. When considering this matter they are of course entitled to consider the reliability of that evidence taking into account any pressure which may have affected them. But that is a long way from saying that the evidence should not be received by this jury. I have therefore come to the conclusion that this application fails. I should add that although this application could have been made earlier, I have considered it without reference to that. As the application has been made, it is the duty of the court to consider it on its merits. I have also considered Mr Amlot's discrete point that this matter might have influenced the decision of the court to allow Evelyn Fleckney to give evidence in this second trial. I have considered that point and come to the conclusion for the reasons given above that, even if the circumstances had been argued at the beginning of the trial, my decision to allow Fleckney to give evidence in the second trial would have been the same. Consequently, that application is also refused …"
[113]It will be apparent from our discussion and observations above that we consider the judge was incorrect if (and this is not wholly clear) he held that Code C of PACE was not applicable in any respects to the position of Fleckney and Putnam. He also did not have drawn to his attention, or consider, the CPIA Code.[114]Nonetheless, we do not think that correction of that error and that omission would or should have made any difference to the judge's ruling. He was prepared to assume in relation to his common law discretion that the provisions of PACE were applicable and relevant to the manner and treatment of Putnam and Fleckney. Further, he was fully informed on those matters from the evidence by the time he heard the application. He was plainly of the view that it was a case where it was appropriate as well as fair that the evidence should be considered by the jury, and that the police treatment should be taken into account as a matter going to the weight to be afforded to such evidence. In our view the judge was right to take the view that the court was not here concerned with a deliberate flouting of the rules of the type encountered in ex p. Bennett or R –v- Mullen, which was to be regarded as so unworthy and shameful that it would be an affront to the public conscience if the prosecution were allowed to proceed. We do not consider that it has been shown that the investigating officers were deliberately trying to circumvent the law. They were faced with individuals who wished to assist the police in order to alleviate their own position, rather than persons who were pressurised into giving such assistance. The police initiated a procedure which was apparently authorised by and which they shaped to have regard to the Home Office Circular 9/92. DCS Yates believed (correctly) that Part IV of PACE did not apply to their position as prisoners (willingly) produced in order to be interviewed in connection with the investigation of serious offences. Because he and they anticipated that they would themselves be charged, when it came to conducting formal interviews upon which the police would rely as against the defendants and the preparing of s.9 statements the police went through full PACE procedures. So far as the CPIA was concerned, records were kept of the 'debriefing' sessions, albeit in insufficient detail. DCS Yates also instituted a custody record in respect of both Putnam and Fleckney. Officials from their respective prisons were invited to make visits, as anticipated under Circular 9/92 and an independent senior officer was kept abreast of the situation. Furthermore, and importantly, the procedure adopted in relation to both witnesses was undertaken with the consent not only of the witnesses but also their legal representatives, who were kept fully informed throughout and allowed unlimited access to their clients. In those circumstances, even had the Crown made the concessions as to the irregularities in respect of cautioning and recording which it has made before us on this appeal, we have no doubt that the judge's decision would have been the same, dictated as it was by his view of the position as to the procedural fairness of the trial, and the full opportunity available to the defendants to explore, and the jury to assess, the motivation of Putnam and Fleckney as a result of the disclosed material.[115]We have received vigorous and detailed submissions from Mr Jones under the heads of complaint which we set out at paragraph 75 above, adopted and/or supported by counsel for the various appellants, whereby they have sought to persuade us that the decision of Blofeld J was wrong. We are not so persuaded. This ground of appeal therefore fails. Inconsistent Verdicts: Drury[116]In his original grounds of appeal, Clark attacked the rationality and consistency of the jury's verdict as between various counts upon which they acquitted and convicted the various defendants, asserting that his conviction on Counts 1, 2, 10 and 11 could not be regarded as safe in the result. That ground of appeal was abandoned. However, Mr Amlot, on behalf of Drury, has made a submission to similar effect in respect of the verdicts in relation to him. In so doing, he accepts that the burden rests upon the appellant to establish that no reasonable jury who had applied their minds to the facts in the case could have arrived at the conclusion expressed in their inconsistent verdicts: See R v Hunt [1968] 2 QB 433 and R v Durante 56 Crim.App.R.708. In this connection, the fact that two verdicts may be logically inconsistent, does not make the verdict complained of unsafe, unless the only explanation for the inconsistency must or might be that the jury was confused or adopted the wrong approach: See R v McCluskey 98 Crim.App.R. 216, also the commentary following the report of R v Harrison [1994] Crim L.R. 359 at 860. Finally, the fact that different counts all depend on the evidence of the same witness, whose evidence is uncorroborated and whose credibility is in issue, will not of necessity render different verdicts on different counts inconsistent for this purpose: R v Van Der Molen [1997] 1 Crim LR 604 .[117]Mr Amlot seeks to overcome these hurdles in the following manner. He submits that Putnam had given important and unambiguous evidence on all the counts save 10 and 11 (Guildford John) on which counts his evidence was merely peripheral. His evidence of criminal activity on the part of the defendants was clear, particularly in the case of Drury and there has to be some logical basis therefore for the jury's acceptance of Putnam's evidence on some counts and not on others.[118]On Mr Amlot's analysis of the verdicts, the jury did not simply convict where there was support for his account and acquit in the absence of supporting evidence. He submits that the jury convicted on Counts 1 and 2 (Nutley) where Putnam's evidence was not clearly supported. We note in parenthesis that the submission seems to ignore the evidence of Fleckney. On the other hand he points out that, on Count 5 (Opium), there was an acquittal despite the apparent support for Putnam from the witness Smith. The jury also acquitted on Count 8 (Cocaine) despite a graphic account by Putnam of wrongdoing by Drury. Mr Amlot further submits that the conviction of Drury and the acquittals of Pierce and Lawson on Counts 12 and 13 (Briar Cottage), cannot be reconciled. He makes his submission on the basis that Putnam had described in clear terms the division of the money and proceeds of the raid amongst the three defendants; the fact that the jury acquitted two of them must be a further indication of the fact that they approached their task on a false basis or became confused in their deliberations.[119]We disagree with these submissions. Careful analysis of the jury's verdicts reveals a rational and consistent pattern to their verdicts. It seems to us plain that they carried out their duties conscientiously with full regard to warnings in respect of various matters, which they had received, from Judge and Counsel. They rightly approached Putnam's evidence with considerable caution; no doubt they were conscious of Putnam's incentives to lie. They plainly looked for support or for evidence consistent with his account, being prepared to convict where it existed. Where it did not, or where they found clear evidence that was inconsistent with his account, they did not rely upon him.[120]Thus, on Counts 1 and 2 there was clear and unequivocal evidence from both Putnam and Fleckney as to Clark's involvement in the Nutley enterprise. We need say no more. On Counts 3 and 4 (Skipson) there was documentary evidence in the form of the custody record which showed Putnam as the arresting officer which contradicted his account that, at the time Skipson was being presented to the custody officer at the police station, he (Putnam) was out in the country with Clark dishonestly disposing of drugs. This must have raised a doubt in the jury's mind about his reliability in relation to that allegation. Hence the acquittal.[121]Turning to Counts 5, 6 and 7 (Opium), the Crown's case depended upon establishing that Lawson found more than one box of opium in Mr Smith's back garden. The Crown no doubt hoped that the evidence of Mr Smith would support Putnam's evidence that more opium was recovered. Nonetheless there was ample scope for criticism of Mr Smith's evidence. At his own trial, he had given a vague account of how much opium there was and he was wrong, or he lied, about the amount of money taken from the premises by the police. The jury may well have felt, therefore, that they could not rely upon Smith's estimate of the amount of opium removed. So far as Lawson was concerned, the judge expressed the opinion that the evidence against him was 'pretty weak'. Putnam could not remember whether Lawson said he had found a box or boxes, which left Putnam's evidence that he had been handed something by Drury (which he said was 'gear') and he was told to drive around Box Hill with it. Putnam also claimed there was a subsequent meeting with Clark at a retirement party when money was handed over. In fact it appears there was no such party. Putnam also described withdrawing cash from a cash machine near the party, when the bank's records show that he had not. The jury was thus well entitled to conclude that Putnam's evidence for removal of opium from the raid of Mr Smith's house was not sufficiently supported by the other evidence and was in some respects inconsistent with it. They may also have been influenced, as one of the many factors to be taken into account, that the incident was only added to Putnam's allegations after the so-called Yates 'threat': see paragraph 105(ii) above.[122]As to Counts 8 and 9 (Cocaine), brief facts are set out at paragraph 35 above. There was no other evidence than Putnam's, which may well have been undermined in the eyes of the jury by the evidence of the occupants themselves, who were both of good character and said in terms that no cocaine was shown to them.[123]So far as Counts 10 and 11 (Guildford John) are concerned, it was accepted by Mr Amlot there was ample evidence from a number of quarters upon which a reasonable jury could convict and the counts did not depend upon the jury's assessment of Putnam.[124]In relation to Counts 12 and 13 (Briar Cottage), the evidence came not just from Putnam but from the occupants of the house and their neighbours. Contrary to the defence that, no drugs were found and no money taken, Burns' neighbours confirmed that he had complained the same day as the search took place that the drugs and/or money had gone missing. There was clear evidence from Burns, Rose and Andrews from which the jury were entitled to conclude that, during the search, Drury was masquerading as someone called Green. Burns said he gave that man his briefcase and according to both Burns and Putnam, Drury was involved in the negotiations with Burns about taking his money and ignoring the discovery of the drugs. Thus there is considerable support for Putnam's evidence against Drury. On the other hand, so far as the acquittal of Lawson and Pearce is concerned, the evidence was far from clear that they were present when Burns handed the briefcase containing the drugs to the man 'Green', or that they were present when the contents of the briefcase were examined. The evidence of the witnesses at the scene left open the real possibility that Lawson and Pearce may not have been aware of the discovery of any drugs. Putnam gave the only evidence that they received any money sometime after they had left the premises. He accepted they might not have known what the money was for. He also confirmed that Lawson made remarks sometime later consistent with his ignorance of any wrongdoing. That evidence coupled with the timing and the circumstances of Putnam's first allegation against Lawson and Pearce no doubt left the jury uncertain as to their role and, hence, led to their acquittal.[125]Thus, we are satisfied that the jury approached their task in a logical and sensible way, apparently looking for support of Putnam's account, or at least consistency with other evidence before being prepared to convict. We would only add that, even if Putnam's evidence had stood alone and unsupported, the jury were entitled to accept his evidence on some counts and reject it on others. Mr Amlot's submissions were based on the premise that they were obliged to accept or reject Putnam's evidence in its entirety. In our judgment that is a false premise, being contrary both to reality and the authorities. The judge gave an impeccable summing up in this regard, making clear to the jury their duty to consider each count of each defendant separately. This ground of appeal also fails. REYNOLDS, O'CONNELL AND KINGSTON The Nature of the Case[126]On 4 August 2000, in the Central Criminal Court before H.H.J. Paget QC and a jury, Reynolds and Kingston were each convicted by a majority of 10-2 of Conspiracy to Supply a Class B Controlled Drug (Amphetamine) and were each sentenced to three years six months' imprisonment. O'Connell was convicted by a majority verdict of 10:2 of doing an act tending and intended to pervert the course of public justice and was sentenced to two years' imprisonment. Verdicts of 'not guilty' were entered under S.17 of the Criminal Justice Act 1967 in respect of a count alleging conspiracy to steal against Reynolds and Kingston. In respect of Kingston only, a count of theft and a count of handling stolen goods were ordered to remain on the file on the usual terms. In respect of O'Connell, a verdict of 'not guilty' was entered at the judge's direction in respect of the count of conspiracy of which Reynolds and Kingston were convicted. Putnam was the main witness in the case against each appellant.[127]The incident leading to the relevant offences occurred on 7 July 1995 when Kingston and O'Connell took part in a raid at Cedar Road, Clapham with Putnam and other officers. Four kilos of Amphetamine were seized in four packages contained in a holdall found in the kitchen. The occupier of the premises, James Jones, was arrested and later convicted of possession with intent to supply Amphetamine and other drug-related offences. A suspected courier, Ronald Peeman, was also arrested, but later released without charge.[128]In fact, there had been six packages of Amphetamine at Cedars Road and it was not disputed that two of the packets had gone missing. It was alleged against the appellants that, in the kitchen at Cedars Road, Kingston handed a bag containing two 1-kilo packages to Putnam saying something like 'Will you run with the bag?'. Putnam left with the packages and took them to Reynolds who later gave him £500. It was alleged that O'Connell must have seen and heard what Putnam and Kingston were saying and doing in the kitchen, yet turned a blind eye and willingly allowed it to happen, concealing that fact in both his report and later witness statement. It was not suggested that any plan had been made in advance to take the drugs and, on the evidence, such plan (if any) must have been hatched on the spur of the moment.[129]The case depended essentially on Putnam's evidence. In relation to Reynolds, there was some evidence of circumstances consistent with Putnam's account, such as pager messages to Putnam to telephone 'TR', and the fact that Reynolds was not on duty on 7 July and 10 July when Putnam asserted that money had been handed over to him off-duty. However, those circumstances did not relate to Kingston or O'Connell and in respect of them, as the judge remarked, 'the prosecution case begins and ends with Putnam.'[130]At trial, Putnam admitted having originally lied about the incident when he first mentioned it to the police, trying to minimise what had happened; however, he said that he had now told the unvarnished truth. He also admitted having given perjured evidence in other matters in the past (though nothing to do with police corruption); 'noble cause' lying as he called it, on six or seven occasions. He said he had now served his sentence, but he was still on licence and the question of his pension remained unresolved. He was cross-examined at length in relation to his treatment at the hands of the police, as he had been at the earlier trial, his diary being admitted in evidence and made the subject of detailed cross-examination as to any threats or inducements which he might have received,. Application to exclude evidence and to stay for abuse of process. The Ruling of Judge Paget[131]At the start of the trial, counsel for each of the appellants made application to the judge to exclude the evidence of Putnam and/or to stay for abuse of process. They had available to them the various materials relied upon at the first trial, including Putnam's diary which they had had greater opportunity to study. They also had the benefit of, and re-deployed, the arguments advanced before Blofeld J. The judge analysed the matter and, like Blofeld J, came to the conclusion that the provisions of PACE were not applicable. However, he accepted the further argument of counsel, which he observed had not been advanced before Blofeld J, that there had been a breaches of paragraph 4.1 of the Code of Practice under CPIA 1996. He said that it was clear from Putnam's diary that there must have been conversations about the offences which had not been recorded and he would so assume for the purpose of his ruling. He said that any breaches could, and no doubt would, be the subject of cross-examination of the officers concerned but that they went to the weight and reliability of Putnam's evidence rather than to its admissibility. He said that he did not consider that the failure to record all the conversations was one which required him to stay the proceedings for abuse of process or that the defendants would be unable to be tried fairly as a result. He went through the ruling of Blofeld J at some length, and indicated that he agreed with it on the basis of the arguments which had been put; he said that the additional matters put before him were not such as to lead to a different conclusion in the instant case. The Prosecution Evidence[132]Putnam, having briefly outlined the circumstances of his own arrest and subsequent treatment, described the events which formed the subject of the charges. He said he had been briefed about mid-morning on 7 July 1995 about the operation, which was being run by DC Copperthwaite. He thought Drury had also been present but was apparently mistaken. He assisted in detaining Peeman, then went inside with his Asset Confiscation Kit. He saw Copperthwaite in the lounge with the occupier, Jones. Kingston was in the kitchen. Putnam heard a commotion upstairs and went to assist in calming Jones' teenage son. He heard someone shout that they had 'got the gear' and went downstairs. He stood in the hall and the kitchen door was closed. He tapped on the door, identified himself to Kingston and was allowed in.[133]Kingston and O'Connell were in the kitchen, O'Connell kneeling on the floor rummaging in a cupboard while Kingston was standing over a bag with a number of carrier bags on the floor. Kingston took two parcels from the holdall and put them in a Sainsbury's carrier bag, then looking at Putnam and saying 'will you run with the bag?' Putnam took this to mean would he steal the drugs for sale. Putnam asked how they would explain his absence, Kingston said they would make up a story and someone would be told to take the bag to 'TR', meaning Reynolds. (In re-examination Putnam said he was 98% sure that it was Kingston and not O'Connell who had said that).[134]Putnam said he drove off to a phone box from where he telephoned Reynolds on his mobile phone asking if he could get rid of some gear. Reynolds said he should give him ten minutes, but nonetheless keep driving in his direction because he was waiting for his wife to go out. Reynolds then paged Putnam, who called him from a telephone box. Reynolds said he had sorted it and Putnam should come over, once his wife had left. When Putnam arrived at Reynolds' house in Bromley, the car was not there so he rang the bell and Reynolds let him in. Putnam showed him the bag. Reynolds put on rubber gloves and asked Putnam if anyone had touched the bag. He swore when Putnam told him that Kingston had touched it. Putnam took out two bags of drugs and Reynolds took a sharp knife and stuck it in one bag, withdrawing it and rubbing a sample of the powder onto his gums, declaring that it was not Cocaine and was probably Amphetamine or 'whiz'. Outside, Reynolds put the parcels amongst some cardboard near the bin in the alley, throwing the bag in the bin. They then had a drink and Reynolds said he would be in touch. According to Putnam he received a pager message before he left, telling him that the others were back at Kennington. (No such message appeared on the pager records however).[135]Putnam returned to the police station to deal with the asset interview, most of the other officers being present. Someone said 'domestics all right?' which Putnam assumed to be a reference to some story devised to explain his previous absence. After interviewing the suspects and the debriefing, Kingston said to him 'what did you do with it?' and Putnam told him 'TR has it'. Jones was charged and Putnam prepared the statement about his assets, including a valuation of the Amphetamine, which was 98% pure, average street purity being between 5-12%, with a kilo worth £16-20,000. On that basis the consignment might have fetched up to £250,000 when adulterated and sold in little parcels. Kingston later asked how much they had got and whether TR had been in touch. Putnam told him he had not and that, if Kingston was worried, he should get in touch himself.[136]Putnam said that the day before he was due to go on holiday, he rang Reynolds in response to a message and Reynolds said he had something for him. Later they met at a public house where Reynolds said he had managed to get rid of the Amphetamine and sought some money for Putnam. They went to Reynolds' car, (which Putnam stated (wrongly) was a red Escort, and Reynolds gave him £500 in £10 and £20 notes. Putnam took the money on holiday and, when he returned, Kingston asked him if TR had 'sorted' him and he said 'yes'.[137]Putnam was cross-examined at length about his background and lifestyle, and the history of the offences which he had admitted he participated in. He admitted that, in an interview in June 1997, following a complaint relating to the missing Cannabis, he had lied, by agreement with the other officers. He said he heard no more about it until the search in July 1998 and his suspension, after which, following the meat-eater/grass-eater conversation with Yates, he had decided to give himself up, being aware of the advantages to be derived from confessing and implicating others. He said that in his first interview he was trying to protect himself and others and had only told some of the truth. He did not mind implicating Clark and Drury, but did not want to implicate Lawson and Pierce. He gave evidence in relation to the various matters revealed in his diary and about the various pressures and inducements involved. He was cross-examined in relation to various matters concerning Reynolds' involvement, which it is not necessary to set out. He confirmed that the evidence he had given against O'Connell was true and that O'Connell had been kneeling by the cupboard under the sink when Kingston asked Putnam if he could run with the bag. He agreed that there were a couple of occasions when he had told investigating officers that he did not think O'Connell was involved, although no note had been made. He could not be sure whether O'Connell actually heard or saw what was happening. When in police custody, his position, as at the end of September when he made his statement, was that O'Connell must have been aware and involved. However, some time later, he took the view that, in the absence of any corroborating evidence, there was insufficient evidence to charge O'Connell, although he remained adamant that O'Connell was in the kitchen throughout the material time. He said he had always believed O'Connell was an honest officer. He had assumed O'Connell must have known what was going on, but he had changed his mind afterwards.[138]DCS Yates, DI Morrell and DC Shippard each gave evidence about Putnam's 'debriefing'. They conceded there were breaches of the Home Office Circular dealing with resident informants.[139]Evidence was given by James Jones, the occupier of Cedars Road, a petty thief who had pleaded guilty to possession with intent to supply of the 4 kilos of amphetamine recovered. He was sentenced to 3½ years imprisonment. He was released from prison in May 1998 and, on 1 September 1998, made a statement to DCS Yates' team. Putnam's name meant nothing to him except in relation to this investigation and Jones had nothing to gain by giving evidence. Jones said he received the drugs from Peeman who arrived at Cedars Road and left them with him to look after. When he left, Jones emptied the bag containing six packets onto the floor when his son alerted him to men outside and a banging on the door. He pulled out the black holdall and put two packages in it, leaving two on the floor and two in a blue plastic bag. He threw the drugs into the kitchen cupboard and opened the door. Initially, he stayed in the living room and then an officer (he thought Lawson) shouted that they had found the drugs.[140]Jones was taken into the kitchen and found two officers there. He was shown the drugs and one officer took him back to the living room. The white bag was empty behind the kitchen door. The blue bag was on the floor with two big lumps inside. The black bag containing two packages on the floor and the other two packages loose on the floor. He conceded he might have been wrong in this and that all six packages were in the holdall but he was in any event sure that six packages were in the kitchen when the officers were present. One officer (he thought Lawson) both smelt and tasted the cocaine which was present. At some point Jones was arrested and quite a few officers seemed to vanish. Jones remained in the house for about half an hour but never went back into the kitchen. At the police station he saw some of the officers involved but the only name he could recall was Copperthwaite who had been with him, but not in the kitchen. His description of one of the officers in the kitchen appeared to be Lawson. At the police station he saw only 4 kilos of amphetamine. At first he thought he had been lucky that two had been left behind. He agreed he had told some lies to his solicitor following the event in order to minimise his involvement; however, he had written the number six in relation to the packages upon a piece of paper found on or with him and exhibited at his trial.[141]Jones said that two officers had taken him into the lounge and upstairs and they may have been the same two who interviewed him (i.e. O'Connell and Kingston). He identified Lawson as the officer who had shouted that he had found the drugs but could not say how much time was spent in the lounge. In re-examination he said he thought that two officers had sat with him in the lounge while others searched, but he did not know which two. Two officers were searching in the kitchen when he came in. After that he was led back into the lounge by Kingston and O'Connell while the two officers remained in the kitchen. His best recollection now was that there were two packages in the black bag, two on the floor and two in the blue bag and that the same officers took him into the kitchen as took him back to the lounge. Mr Jones having waived privilege, his solicitor produced his file which confirmed that Jones had told him that there had been six packages rather than four at the time.[142]Once again, it is not necessary for us to summarise the evidence for the defence which was again a circumstantial denial by the appellants of corrupt or criminal conduct. Insofar as it is necessary to set out the defence of O'Connell so far as count 2 is concerned, that sufficiently appears when considering his individual ground of appeal at paragraphs 148 to 157 below. Application and ruling re no case to answer: O'Connell.[143]On application by counsel for O'Connell that there was no case to answer against him, the Crown conceded that, in the light of Putnam's evidence, O'Connell might not have been party to a conspiracy to supply Amphetamine (Count 1), but asserted that none the less there was evidence that he must have been aware of what Kingston and Putnam were doing and condoned it in the three ways mentioned in the particulars under Count 2 of the indictment, namely(i) allowing Putnam to remove two packages, which were believed to contain Amphetamine Sulphate;(ii) giving an account in the Incident Report book which concealed the removal of the two packages;(iii) giving a similarly inaccurate account in a witness statement.[144]The judge ruled that he was satisfied that there was a case to answer on Count 2. He stated that the gravamen of the offence lay in (ii), the giving of the statement in (iii) being really part and parcel of the same act of concealment.[145]It had been submitted to the judge that, in the event he held that there was a case to answer, the jury should be discharged and O'Connell tried alone, largely for a reason which does not require exposition here. Counsel for Kingston and Reynolds supported this application on the ground that acquitting O'Connell on Count 1 might lead the jury to conclude, for reasons which are somewhat difficult to follow, that Putnam was a reliable witness. The judge disagreed, considering that, in reality, the acquittal of O'Connell on Count 1 could only benefit all three defendants, each of whom alleged that Putnam's evidence was untrue. He stated that Mr Pownall would tell the jury that in the light of Putnam's evidence, he could not ask the jury to convict O'Connell on Count 1, and the judge would tell them that, since Putnam was the only witness then, even if he was telling the truth, they could not properly be sure that O'Connell was a party to the conspiracy; he would emphasise that all three defendants said that Putnam was not telling the truth, and that that issue was entirely for them to judge at the end of the evidence. There was no conflict in O'Connell's or Kingston's case over what actually happened in the kitchen, both of them saying that Putnam's evidence about it was untrue. Thus, he would discharge the jury from giving a verdict against O'Connell on Count 1 and direct that a verdict of 'not guilty' be entered, emphasising to the jury that the end of the case against O'Connell on Count 1 did not mean that Putnam was to be regarded as a truthful witness, that being a matter entirely for them. That procedure was followed. The Grounds of Appeal. Common Grounds:Abuse of Process/s.78 of PACE[146]The two main grounds of appeal relied on are essentially the same for each appellant, namely that, in rejecting the application to exclude Putnam's evidence and/or stay the proceedings for abuse of process, Judge Paget erred in ruling that code C did not apply to the debriefing process and in failing to exclude the evidence of Putnam under s.78 of PACE. Alternatively, it is argued that he should have stayed the proceedings as an abuse of process for 'routine breaches' of paragraph 4.1 of the CPIA Code requiring the recording of all relevant information. It is said that the judge gave insufficient weight to the conduct of the debriefing interviews in breach of that duty, with the effect that there may have been undisclosed inducements as well as unrecorded remarks going to the reliability of the statements later signed by Putnam.[147]In advancing their arguments, the appellants have adopted the arguments of Mr Jones in relation to Clark and Drury and there is no utility in our repeating them. However, it is pertinent to observe that the appellant potentially most affected by the failure of the police to record the 'debriefing' sessions is O'Connell. That is because Putnam stated in evidence that, he had at one point (unrecorded in the debriefing notes) told the investigating officers that he did not think O'Connell was involved in the theft of the two kilos of amphetamine. On another occasion, he said he had re-considered what he had said in interview (namely that O'Connell was fully aware of what was going on) and he could not say whether O'Connell saw or heard anything when searching the kitchen cupboard. Finally, he expressed the view that the evidence against O'Connell was lacking and, without corroboration, would prove insufficient. It is said for O'Connell that, if recorded the actual terms and emphasis of such remarks would have been valuable for cross-examination purposes.[148]That is plainly so. However, the decision whether or not to exclude the evidence of Putnam under s.78 of PACE arose for the determination of the judge at the beginning of the trial at which Putnam was to give evidence against all three defendants on a number of matters. The judge, although aware at the time of the ample material available to the defendants for the purposes of a general and specific attack on the credibility of Putnam, was not aware of the admissions to come in respect of O'Connell, which were not recorded in his diary. The judge properly approached the matter on the basis of the submissions he received on matters previously canvassed before Blofeld J or otherwise to be found in the disclosed materials. In his overall assessment of the matter to which we have already referred at paragraph 131 above we do not think that the judge can be faulted in the way he exercised his discretion and, in particular, for making no distinction between the defendants at that stage.[149]The same is true of his decision in relation to abuse of process, which he reached for the same reasons as those we have already set out when considering the appeals of Clark and Drury. The nature of the attack upon the investigating officers and Putnam was virtually identical and so were the reasons of the judge, though he recognised the validity of the point raised before him (though not before Blofeld J) that detailed record keeping was necessary under the CPIA. He gave that matter his separate consideration and plainly took the view that it added little to the weight of the points already made. Like Blofeld J, Judge Paget was plainly of the view that, in broad terms, the police had not acted in bad faith and there was ample material available from Putnam's own records in the form of his diary and solicitor's file with which to test the weight and credibility of his evidence. In the event, of course, Putnam freely volunteered and/or admitted the doubt he had expressed about O'Connell's role. As with all the points made in argument in respect of Putnam's treatment, the judge dealt fully and fairly with those admissions when summing-up to the jury, and encouraged them to bear such matters in mind when assessing the evidence of Putnam. In our opinion, the common grounds of appeal are not made out. O'Connell (Count 2): No Case to answer/Insufficiency of evidence[150]In the case of O'Connell it is submitted that the judge erred in rejecting the submission of no case to answer on Count 2, it being submitted that no reasonable jury, properly directed, could properly convict upon the evidence. It is further submitted that the verdict is in any event unsafe. Mr Wood QC, for O'Connell, has argued that both the counts against him should have been withdrawn from the jury at the close of the Crown's case. The fact that Putnam's evidence had been regarded as sufficient to exculpate O'Connell in relation to count 1, meant that count 2 also was fatally flawed. That is because count 2 depended upon O'Connell having seen or heard what took place in the kitchen and in relation to that matter the Crown apparently accepted that O'Connell's evidence was insufficient. In our view that is an over-simplification of the position. As the judge put it in making his ruling:
"Count 2 was included because, even before Putnam's cross-examination, it was recognised that the jury might not be sure he was a party to the conspiracy, although there was evidence that he must have been aware of what Kingston and Putnam were doing and condoned it in the three ways mentioned in Count 2. That is how the case was opened, even before Putnam's concession [that O'Connell "may not have been involved"]."
[151]That is the basis on which the judge, rightly in our view considered the submission. The question still remains, however, whether there was sufficient evidence on Count 2.[152]In relation to Count 2, although the Crown particularised three acts as tending to pervert the course of justice, they relied principally upon the second act, namely the completion of the incident report book in relation to the raid at Jones' home. In that report, O'Connell made no reference to the removal of drugs from the kitchen by Kingston and Putnam. He could, of course, only include such a reference if he had been present and aware of the removal. In the incident report book, which O'Connell stated he started to write at the scene, he described entry to the premises followed immediately by the discovery of a holdall containing packages. Jones was then arrested. A further search of the kitchen took place and Jones was taken upstairs for a search of the bedroom.[153]Thus, the Crown had to satisfy the jury that drugs had been wrongly removed from the house, that Kingston and O'Connell were together in the kitchen, that Kingston handed drugs to Putnam with the words "Will you run with the bag?" and that O'Connell either saw or heard what happened but deliberately omitted any reference to it from his report book and his later statement. It seems to us clear that Putnam's evidence was evidence from which a jury could properly infer that, as a matter of common sense, O'Connor must have been aware of what was going on.[154]The Crown also relied on the evidence of Jones to support Putnam's account that drugs had been taken. At the time Putnam first made the allegations in respect of this incident it was very much in his interest to tell the truth. He could not have known, as the Crown argued, that Jones would support his account or that there would be contemporaneous evidence of Jones' complaint to his Solicitor that two bags had gone missing. The Crown further relied on the fact that Putnam was able to remember years after the event that Reynolds was off duty that day and for some reason he was in contact with Reynolds by pager. Again, he could not have known that a record of his pager messages from Reynolds would still be available, as it was.[155]Both the Crown and Mr Wood relied on submissions before us relating to the evidence of Jones to establish the whereabouts of various parties during the course of the search. In giving evidence, Kingston and O'Connell maintained that Putnam had fabricated his account in that, in fact, they had both been with the occupier, Jones, throughout the period they were inside the house. They said that, after Jones' arrest following their entry, they went to the sitting room for a very short period before accompanying him to the kitchen where the drugs were discovered. From the kitchen they returned with Jones to the sitting room and then went with him upstairs. On their case, there was no opportunity for the two of them to be in the kitchen with Putnam as he described.[156]Jones gave an account of his movements in evidence which the judge described as having "a degree of vagueness" about it. He described his arrest and then being taken to the living room where he remained for 10 to 15 minutes, hearing the same shout described by Putnam that the drugs had been found, when he said he was taken to the kitchen by an officer he thought was called Copperthwaite. He said that, after that he was taken back to the living room by an officer or officers who he said may have been the same officers who interviewed him (who were in fact O'Connell and Kingston). He said he remained in their company thereafter. If the officers were O'Connell and Kingston there would have been no opportunity for them to remove any packages as alleged by Putnam.[157]Mr Woods submitted that this evidence supported the defence contention that the drugs were still in the kitchen when Jones was taken back to the living room by (as they said) O'Connell and Kingston. However, in the light of the uncertainty of Jones' evidence as to the numbers and identity of the officers who dealt with him and the sequence of events, the jury may well not have attached much importance to it. Equally they may have attached a significance to the fact that, while O'Connell claimed at trial that he was in the living room with Jones for several minutes, he had failed to mention that fact in the Incident Report Book as well as in his statement. Whatever criticisms could legitimately be made of Putnam's evidence, he never wavered in his assertion that O'Connell was there, in the kitchen when the drugs were given to Putnam.[158]That being so, it was for the jury to determine whether or not O'Connell knew what was going on and deliberately concealed it. As already indicated, Putnam himself said that he had expressed doubts as to what O'Connell knew and whether there was sufficient evidence to prosecute him. However, that was not a matter for him. We have carefully considered the question of whether there was sufficient evidence upon which a reasonable jury could have concluded that O'Connell knew what was happening. There was no direct evidence of his reacting to the events in the kitchen, Putnam accepting that he could not say if O'Connell saw or heard Kingston. However, the Crown relied on the evidence that Kingston spoke to Putnam in a "normal voice" in a small kitchen, and argued that Kingston would not have run the risk of doing or saying what he did in front of O'Connell unless he could rely upon his silence. We consider that these were matters which fell fairly and squarely within the province of the jury who were entitled, if they saw fit, to draw the proper inference from all the evidence that O'Connell did know what was going on and deliberately failed to record it as a matter of conscious 'cover-up'. In our view, this ground of appeal must also fail.[159]We should add as a footnote that, in reviewing the safety of O'Connell's conviction, we have borne in mind the forceful submissions made by Mr Wood as to the effect upon O'Connell's case of the late admission from Putnam that he had told the interviewing officers he did not think O'Connell was involved. That led to further cross-examination of Putnam by Mr Evans, which in turn led to the emergence of a number of matters damaging to O'Connell's case. We have considered carefully the effect of that sequence of events on the fairness of the trial. However, Mr Woods does not argue before us that the appellants should not have been tried together or that the jury should have been discharged. Nor does he submit that the judge was wrong to allow Mr Evans to ask further questions. Cross-examination by Counsel for a co-accused at any stage of the proceedings does on occasion have unfortunate consequences for others in the dock. It was legitimate cross-examination, because it went to undermine Putnam's credibility generally on a matter Mr Evans had not otherwise had an opportunity to pursue. In summing-up, the judge very fairly reminded the jury of all the evidence in O'Connell's favour and the context in which Mr Evan's further questions were asked. While Mr Wood was naturally dismayed by the turn of events, it does not in our view amount to an irregularity, nor are we persuaded that it can be regarded as rendering O'Connell's conviction unsafe. For the reasons we have stated, this ground of appeal must also fail. ADDITIONAL GROUND OF APPEAL BY ALL APPELLANTS: NON-DISCLOSURE[160]Since the original grounds of appeal were lodged, additional matters have come to light which quite properly the Crown has thought it right to disclose. They are matters concerning Putnam of which the police were aware, at any rate to a substantial degree, at the time of the appellants' trials. Mr Pownall has conceded on the Crown's behalf that the matters should have been disclosed before those trials, on the basis that they were at least potentially relevant and might have provided a line of enquiry which in turn might have enabled the defence further to attack the credit of Putnam. The Crown and the appellant are, however, at odds on the question of whether the non-disclosure was, in the context of the case as a whole, of any real significance and whether it affects the safety of the verdicts. The Crown submit that the failure to disclose is of little or no significance in the case as a whole; the appellants each contend, albeit putting their cases in rather different ways, that the non-disclosure was material and had the potential to affect the outcome of the case, whether on its own, or when added to the other grounds.[161]The incident giving rise to the obligation of disclosure took place on 2 December 1995 when the police visited a house at 95, Clay Lane, Mitcham, Surrey. They executed a search warrant and recovered a number of foreign bonds which, according to their face value, were worth several hundred thousand pounds. (In fact the bonds were worthless, or of little value, because the Belgian company which issued them had already been declared bankrupt in Belgium). The police believed the bonds to have been stolen, arresting the householder, David Ford, following the search. Amongst the four police officers who carried out the search were Putnam, the appellant Reynolds, and an officer called Grayston, who was shown by the custody record to have been the arresting officer. The records further showed that, at some stage, Putnam took possession of the recovered bonds. Putnam and Grayston interviewed Ford at the police station. In his signed interview record, Ford said he knew nothing about the bonds; he had simply looked after them for a friend. The police had recorded the number of bonds as 54 and had arrested Ford on suspicion of stealing or handling that number. Further, Ford had signed the custody record which recorded receipt by the police of 54 bonds without query or protest that the number was incorrect.[162]Nonetheless, shortly after these events, Ford complained that the bonds were his and, on 7 March 1996, he began civil proceedings against the police claiming their return and asserting that there had in fact been 92 bonds present in his house and removed by the police, the implication being that the balance of 38 over the 54 recorded in the custody record had been misappropriated. By their defence in those proceedings, the police denied any wrongdoing, asserting that the bonds did not belong to Ford and that there were only 54 of them, which had been lawfully seized and retained. A statement had been made by Putnam to the police solicitor on 18 June 1998 for the purposes of the civil proceedings, in which he said that he had been involved in the search, the recovery of the bonds and the subsequent interview but denied any misappropriation or wrongdoing. That statement was made within two or three weeks before his arrest in respect of his corrupt activities.[163]There is no evidence as to whether the matter of the bonds was ever raised with Putnam during the period when he was released into police custody from remand for the purpose of enquiry into the offences with which we are concerned. However, on 27 October 1999, in relation to a separate enquiry into police corruption, a corrupt police officer called Hanrahan, who was subsequently sentenced to imprisonment and became an informer, gave information to police investigators about the Ford incident. He said that Grayston had told him that less than 50% of the bonds taken had been entered on the custody record and, in an interview on 21 March 2000, he said that he understood (because Grayston had told him) that Putnam had been involved in efforts to cash the bonds. Later in a statement dated 9 May 2000 he elaborated on what Grayston had told him.[164]On 27 September 2000, an intelligence report now disclosed shows that DCI Buttivant asked Putnam about this allegation. Putnam said that Kingston and Reynolds had asked him to assist in the search of a private address in a job which he believed had originated via Grayston. He said he was present at the search but took no part in any further enquiries which he believed were undertaken by Reynolds or Kingston.[165]The appellants submit that, had all this material been available at trial, it would have enabled them to cross-examine Putnam about it, with the possibility that he would have admitted it, he having been prepared to admit under cross-examination previous offences, including perjury. He further submitted that, even had Putnam denied involvement, his credit would have been further damaged. It was submitted for one of the appellants that the evidence about the incident might be admissible against Putnam on the 'similar fact' principle, since it fitted into the known pattern of his dishonest activities at the scene of searches.[166]We would accept that material such as that in relation to the search of Ford's home might well in some cases have considerable influence on a jury. In the case of an ostensibly honest police officer or ex-police officer it would plainly do so. However, in relation to the evidence of an officer such as Putnam, who was presented to the jury as a disgraced, corrupt and dishonest person, the situation seems to us quite different. Thus, even if he had admitted corrupt involvement in the seizure of the bonds (which we consider most unlikely: see next paragraph), it would have added nothing significant to his discredit.[167]We are quite satisfied that the new material could only go to a question of credit. It was otherwise wholly irrelevant to the charges faced by the appellants. The alleged misbehaviour bore some resemblance to Putnam's misconduct on other occasions; but he was not denying the latter and the question of adduction of evidence by the defence to rebut any denial by Putnam would simply never have arisen. In any case, as it seems to us, the evidence revealed by the disclosed material is of very dubious quality. What Hanrahan had to say was only hearsay. In interview after his arrest, Ford had claimed to know nothing of the bonds, and he had been prepared to sign the custody record without reservation or complaint. Thus, his allegedly clear subsequent recollection of the number of bonds (which we note was not consistent with the information imparted by Hanrahan) and his claims to ownership of them, on the face of it carry very limited weight. In any event, since Putnam denied wrongdoing in connection with this episode both before and after being arrested and charged, we think it highly improbable that he would have made any adverse admission in relation to it if he had been cross-examined on the topic at trial. Since such cross-examination would have been as to credit only, the questioner would have bound by his answers.[168]Finally, on this aspect, it seems to us that the pattern of the jury's verdicts, which we have already analysed, makes it clear that they were sceptical of Putnam's evidence and were certainly not prepared to act upon it uncritically in spite of his claims that he was now motivated by a desire to tell the full truth. After careful consideration, we have concluded that, had the material relating to the bonds and the search of Ford's home been disclosed prior to trial, it would have made no difference to the verdicts of the jury on any of the counts against any of the appellants. We do not consider that its absence renders the verdicts unsafe. DRURY AND CLARK – APPEALS AGAINST SENTENCE.[169]Clark was convicted of two conspiracies to supply Class B drugs, namely cannabis. The first was in September 1991 arising from the Nutley "drop" of a large assignment of cannabis from Spain (Count 1). This involved Clark in handling, and passing to Fleckney for sale and a share in the proceeds, a number of nine-ounce bars which were sold for £400 - £500 per bar. Further, although he was a policeman, ostensibly responsible for enforcing the law in respect of the entire importation with a view to its eventual destruction, he covered up its full extent and concealed the criminal activities of himself and his colleagues, thereby perverting the course of justice (Count 2). The second conspiracy, some 5 years later, involved obtaining for himself and certain of his colleagues some 8 kilos of Cannabis stolen from Guildford John of which his share was 5 kilos, again marketed through Fleckney (Count 10). Those activities were similarly concealed and justice thereby perverted (Count 11).[170]Both conspiracies involved the exploitation of a corrupt relationship with a police informant (Fleckney) over a substantial period of years. The judge stated that, having heard the evidence, he was satisfied that Clark was the prime mover in the criminal activities of a group of officers in the South East Regional Crime Squad at East Dulwich. The judge said he was a manipulator of his superiors, in a vacuum of supervision, and of Fleckney, whose personality and affections he manipulated to his own ends.[171]The judge performed a sentencing exercise based upon his view that the offences of which Clark had been convicted warranted a total sentence of 12 years, absent any discount earned by the plea, and with no particular mitigation based on his personal circumstances. The judge's approach was to impose consecutive sentences in respect of the more serious pair of offences i.e. 4 years on Count 10 (conspiracy) and 8 years on Count 11 (perverting the course of justice) and to impose lesser concurrent sentences on the other counts.[172]In relation to Drury, whom he regarded as Clark's "enthusiastic lieutenant" and a similarly skilled manipulator of his superior officers, the judge took a similar approach in relation to the two separate incidents underlying his convictions. On Count 10 (the Guildford John conspiracy) he imposed a similar sentence of 4 years and on Count 12 (perverting the course of justice in respect of the Briar Cottage incident) a sentence of 7 years to run concurrently. He imposed a concurrent sentence of 5 years on Count 13, it being part and parcel of the conduct in Count 12.[173]For Clark, Mr Jones has urged that the total sentence of 12 years was excessive in respect of crimes involving Class B drugs rather than Class A drugs. He also points out that the judge's starting point in relation to Clark was the same as that which he adopted when sentencing Putnam, i.e. 12 years. Mr Jones has not sought to submit that the 66% discount on 12 years awarded to Putnam was inappropriate: one-third for his plea and a further one-third for his role as informant. But he does submit that, bearing in mind the number of offences to which Putnam pleaded, including one involving theft of a Class A drug (Opium), the judge should have started with a lower total figure in mind for Clark. He also demurs at the judge's remark that he regarded Clark as the prime mover among his colleagues at East Dulwich. He points out that Clark had been found guilty only in relation to two diverse transactions in 1991 and 1995, and suggests that the judge must have had in mind a wider spread of corrupt activity on the part of Clark than was justified by the verdicts of the jury.[174]We do not accept the validity of that last point. It is the duty of a judge to limit himself to sentencing for the crimes to which the defendant has either pleaded guilty or been found guilty upon indictment. However, he is equally entitled to sentence the individual defendant before him on the basis which reflects the judge's views of his true role in relation to the particular crimes for which he is being sentenced. He was entitled to take the view in relation to those crimes that Clark was the dominant figure in relation to them. That said however, bearing in mind the judge's starting point in relation to Putnam (which was in our view at the top of the range in any event), we see force in Mr Jones' point that the judge's starting point in the case of Clark was too high. In our view a total sentence of 10 years imprisonment would have been appropriate. In order to preserve the pattern of the judge's sentencing, we propose to reduce the sentence imposed on each count by one year. The sentences of 4 and 8 years respectively on Counts 10 and 11 will be quashed and sentences of 3 and 7 years respectively substituted. Similarly the sentences of 3 and 7 years on Counts 1 and 2 respectively will be quashed and sentences of 2 and 6 years substituted, the provisions as to concurrent and consecutive terms remaining the same. To that extent, yielding a total sentence of 10 years, the appeal of Clark against sentence is allowed.[175]When directly comparing the role of Drury with that of Clark, the judge distinguished Drury's case only upon the basis that he was an "entirely enthusiastic lieutenant" to Clark (as prime mover) in the corrupt activity of the squad. However, it is also true to say that the long exploitation of Fleckney by Clark was also a feature absent in the case of Drury. Mr Amlot has made a further point of distinction, in which there is some substance. When expounding the considerations which he had in mind on sentence, the judge failed to mention (and therefore may have overlooked) that the two incidents in respect of which Drury was found guilty both took place within a two-month period in 1995; thus it was by no means clear that his disposition to corrupt activity was of long standing.[176]In those circumstances, we consider that there is cause for a somewhat larger distinction than one year only in the total sentences imposed upon Clark and Drury. We consider that, in Drury's case, a total sentence of 8 years imprisonment would have been sufficient. We therefore propose to quash his sentence of 4 years on Count 10 and 7 years on Count 12 and we substitute sentences of 3 years on Count 10 and 5 years on Count 12, such sentences to remain consecutive in effect. The concurrent sentence of 5 years on Count 13 will remain unchanged. Total: 8 years imprisonment. To that extent the appeal of Drury against sentence succeeds. CONCLUSION[177]The appeal against conviction of each of the five appellants is dismissed.[178]The appeals of Clark and Drury against sentence are allowed to the extent set out in paragraphs 174 and 176 above.

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