REGINA v DELROY SAMUEL DENTON [2002] EWCA Crim 272

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
[2002] EWCA Crim 272Case No Case No: 199702458Y4Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
REGINADELROY SAMUEL DENTON
Before
Lord Justice MantellMr Justice BennettMr Justice McCombeMr N Valios QC & Mr M Lambis (instructed by Marshalls) for the appellant DentonMr D E Waters QC & Mr N Hilliard appeared on behalf of the CrownDate 15 February 2002

Lord Justice Mantell:

[1]Introduction. On 19 th July 1996, after a two week trial at the Inner London Crown Court, Delroy Samuel Denton was convicted of the murder of Marcia Zena Lawes.[2]He claims to have been prejudiced in putting forward his defence by the Crown’s failure to disclose the fact that he was a police informer who had supplied information about the uncle of a prosecution witness. He knew it, of course, but he says that his lawyers should have been told. He further relies upon the fact that, unbeknown to him, his informant status had become public knowledge.[3]The Registrar granted an extension of time and this Court has granted leave to appeal.[4]The hearing took place during the week commencing 21 January 2002.[5]We reserved judgment and this is it. Background.[6]The appellant is an illegal immigrant who came to the United Kingdom from Jamaica on 25 th April 1993 using his brother’s passport. He was given permission to remain for six months.[7]In Jamaica he had been involved in violent crime and had served an eight year sentence for armed robbery. That, of course, was unknown to the immigration authorities. He first came to the notice of the police in this country following his arrest in May 1993. On that occasion no charge was preferred. He was visited by an immigration officer, Brian Fotheringham, in October 1993. Mr Fotheringham suspected that the appellant was using a false passport but, without proof and this still being within the six month period, was not able to do anything about it.[8]On 12 th May 1994 the appellant was once again arrested following a raid on a public house and was this time charged with drug dealing and possessing an offensive weapon. On arrest he had given the name Clive Lloyd Johnson but his true identity emerged during interview. By this time the appellant was an over-stayer. He was seen by Brian Fotheringham. He agreed to become a police informer. Arrangements were put in hand. He was released. By the time he came before the magistrates’ court on 9 th June 1994 the drug charges had been dropped. He pleaded guilty in the name of Clive Lloyd Johnson to possessing an offensive weapon, a knife, and was fined £100. On 11 th June 1994 the appellant had his first informant meeting with his handlers who were Detective Constable Stephen Barker, Detective Sergeant Tom Bayes and Brian Fotheringham. From that date onwards the appellant proceeded to supply important information to the authorities about the activities of Jamaican gangs or ‘Yardies’ as they are known. He was paid for his services but there is no doubt that he was playing a very dangerous game. We do not intend to recite all of the appellant’s dealings with the police and simply refer to the agreed chronology, which is attached to this judgment. It is, however, necessary to mention two matters. On 30 th December 1994 the appellant was arrested on a charge of rape. On 1 st February 1995 the charge was dropped. The appellant claims that this was due to the intervention of his handlers. They deny that it had anything to do with them. The second matter concerns information given about Wayne Graham and his mother known as Miss V. On 23 rd March 1995 the appellant provided information that Wayne Graham was in possession of a firearm. Graham was arrested and found to have a semi-automatic pistol and twenty-five rounds of ammunition in his possession. He was subsequently sentenced to three years imprisonment. Wayne Graham is the uncle of Dionne White, a prosecution witness. Miss V is the grandmother of Dionne White. On 27 th March and 26 th April 1995 the appellant provided the police with information about Miss V’s dealings in crack cocaine. He had previously mentioned her trade in false passports.[9]The appellant lived with Samantha Thompson throughout the time he had been in the UK. At least in the weeks leading up to Easter 1995, and probably longer, that had been at an address in Hollydale Road Peckham. By the beginning of April 1995 the appellant and Samantha Thompson had ceased to be intimate but had continued to share a bed. That was until Samantha Thompson could find somewhere else to live.[10]Samantha Thompson had become friendly with Marcia Zena Lawes, known to her friends as Zena. They had met through Henrietta Rowe who lived in Eastlake Road SE5 with her boyfriend, Mark Williams.[11]Zena lived at 37B Eastlake Road SE5. She had two very young children by Trevor Williams, the cousin of Mark Williams. By the time with which this court is concerned Zena and Trevor Williams had separated and the two children had spent some time in the care of Lambeth Council. The registered foster carer was a Mrs Brown. By 18 th April 1995 the children had been returned to Zena but Mrs Brown would still take charge of them for periods of up to a week. Zena herself was twenty-four years old. She was drug and alcohol dependent and prone to fits of depression. She had an admirer in Chris, a white man with a pony tail, (Zena was black) to whom she had been introduced by Samantha Thompson. It seems that Chris’s attentions were not altogether welcome.[12]It is probable that even before 18 th April 1995, an important date, Zena and the appellant had met. At least she knew him by sight and by his street name, Lemon. The death of Zena.[13]That Marcia Zena Lawes was murdered sometime between the early hours of Wednesday 19 th April and 7:23 p.m. on Friday 21 st April 1995 is not, and never has been, in dispute. She had left the children with Mrs Brown on the Tuesday afternoon before going out for the evening with Samantha Thompson. The two had returned to Zena’s flat sometime after midnight. Samantha Thompson had stayed for ten minutes or so before returning to the appellant’s flat in Hollydale Road.[14]Not having heard from Zena for days, her half-sister, Mercy, went round to Zena’s flat on the Friday evening together with Peter and Tony Martin.[15]A downstairs neighbour let them in through the street door. The internal door to the flat was not locked. Inside they, or rather Peter Martin, found Zena’s body laid out face down at the top of a short flight of stairs. The phone in the next-door living room was off the hook. Peter Martin used the phone to call the police and an ambulance. It was obvious that Zena had been dead for some time and the cause of her death was hardly less so. She had twenty stab wounds several of which were potentially fatal and which clearly had been either singly or in combination.[16]She was dressed in a pink spotted ‘T’ shirt, a wrap round skirt and socks. She was not wearing knickers. A soiled pair of white knickers was found on the first floor landing. Swabs were taken for scientific examination. The Investigation.[17]Naturally enough the police began by interviewing all those who might have had contact with Zena in the days leading up to the discovery of her body.[18]It will be necessary to look at what some of those witnesses were to say during the trial but for the time being we content ourselves with describing the role played by the appellant.[19]He was seen by police officers and made a witness statement on 9 th May 1995 and another on 16 th May.[20]In the first he explained that he knew of Zena through Samantha and that on occasions she had supplied him with cannabis. He had spoken to her on the phone a few times but up to 18 th April had never seen her. He described how on the Tuesday afternoon he had found himself in the region of Eastlake Road and how he had decided to call on Henrietta Rowe and her boyfriend Mark Williams in order to get “some puff”. It happened that Mark Williams came out of his house or flat and the two of them continued to Zena’s who it was thought would be able to supply both of them. He stated that they arrived about 5:45 p.m.; that they were asked in; that he had a glass of water; that she was getting ready to meet Samantha and that he and Mark Williams left soon after 6:00 p.m. He had phoned Zena at about 2:30 a.m. on the Wednesday morning and spoken to Samantha. In a second call two minutes later he spoke to Zena who told him that Samantha had left. He had tried to phone Zena on the Wednesday morning at about 7:00 or 7:30 a.m. and she had asked him to phone later in the day. He did so but the phone was engaged. He stated that he had phoned on the Wednesday night and throughout the Thursday and that on all occasions the phone was either engaged or he just got ringing tone.[21]In the second statement he dealt with his movements during the week from the Wednesday morning up until the Friday. He spoke of a visit to the Immigration Office at Beckett House at noon on the Wednesday and a similar visit on the Thursday. In this statement he described how he had spent the Thursday afternoon with a friend called Leon. When he returned home in the evening he had tried to phone Zena but the phone had been engaged. Later that evening he tried again and the phone rang out eight or nine times without answer. On the Friday morning he stated he had gone out with Samantha to collect some cash and had shopped before returning home where he spent the rest of that day. During that afternoon and evening further attempts were made to phone Zena both by him and Samantha but without success. On each occasion the phone was either engaged or nobody answered.[22]On 9 th May the appellant had been asked for and had provided a specimen of blood.[23]Zena’s clothing and the swabs were examined by a scientist. The skirt and the ‘T’ shirt were found to be stained with semen. Swabs taken from the vaginal area and the anus also showed the presence of semen. The seminal staining of the skirt was substantial and had soaked through so as to contaminate the ‘T’shirt. No semen was found on the soiled knickers recovered from the upstairs landing.[24]Comparisons were made between the semen found on the clothing and swabs and the appellant’s blood. The conclusion reached and never disputed was that the semen had come from the appellant.[25]On 28 th June the appellant was arrested. He was interviewed that day and also on 29 th June.[26]In paraphrase the account which emerged from those interviews was as follows. I was having an affair with Zena (he referred to her as Marcia). It had been going on for some time. In the main we had sex at my flat. On the Tuesday 18 th April I had called with Mark Williams. We left together. I decided to go back. We had sex fully clothed. The knickers were not removed. They were simply pulled to one side. As we were making love I phoned Henrietta (Henrietta Rowe). This is an extract from the interview. “A: And I go upstairs Q: Yeah A: I hug Marcia. I dial Henrietta’s number, but at the same time I could hug her and talking to her. Q: Right A: Alright we did and we are kiss and thing on the mattress I was lying on top. Q: Nice and slowly for me Delroy, nice and slowly A: We sit on the mattress first Q: Yeah A: and then she, she leaned back, and I go, go on top of her while still talking and I never, I never continued the talk for that long to Henrietta and we kissed like on the phone until I actually say she will call when I reach home. Q: Okay A: And I just continue having sex with Marcia.”[27]The appellant was charged with the murder of Marcia Zena Lawes.[28]At that time the police had evidence of what appeared to be a sexually motivated attack, probably a rape at knife-point. They had the appellant’s semen found on the clothing being worn at time of death. They had the appellant’s first witness statement in which he had claimed to have met Zena only once and then in the presence of Mark Williams. They also had evidence from Mrs Brown and Samantha Thompson that at 4:00 p.m. approximately on the Tuesday and at 6:30 p.m. Zena had not been wearing the clothing in which she was found on the Friday. Both Mrs Brown and Samantha Thompson spoke of her wearing a long woolly grey or beige plain skirt and Samantha had said she was wearing a denim jacket over a beige leotard. It would seem to follow that for the appellant’s explanation for his semen getting onto Zena’s clothing to be correct that she must have changed out of her long skirt sometime after 4 o’clock into the clothing which she was found to be wearing when her body was discovered the following Friday and then back again into the long skirt in which she was seen by Samantha Thompson. The picture is even more complicated if Mark Williams was right in saying that when he and the appellant called Zena was wearing a long woolly jumper over jeans or leggings.[29]For some reason, possibly because it was considered that more evidence might be forthcoming from a phone company, the proceedings against the appellant were discontinued and on 1 st November 1995 the appellant was released from custody.[30]On 6 th November 1995 the murder investigation was resumed. At some stage so was contact between the appellant and his handlers.[31]On 24 th November 1995 Dionne White made a statement in which she claimed to have been at the appellant’s flat on 9 th May when he received a phone call from a police officer. She spoke of him being shaken and concerned about “forensics” and then having put a plastic bag on the bed. She had taken the opportunity to look inside and had seen blood-stained trousers. She had then taken a taxi and dropped the appellant off at a dry cleaners.[32]The police also came into possession of some damaging evidence about telephone calls. There was evidence from Mark Williams that the telephone call to Henrietta Rowe had been made from the street. Also at the time when the appellant was claiming to have phoned Henrietta Rowe, that is during and following the act of sexual intercourse, Zena had been speaking first of all to a man called “Henry” or “John Public” and then to a mini-cab firm. In fact those two calls straddled the period when it could be shown that the appellant had been speaking to Henrietta Rowe.[33]It could also be shown that in all probability the appellant was close to if not in Zena’s flat at 8:09 a.m. on the Wednesday morning.[34]Now the police had the additional evidence from Dionne White and were able to give the lie, or so they thought, to the appellant’s account of having sex with Zena on the Tuesday evening. Further they thought they could place him at or near to Zena’s flat on the Wednesday morning.[35]On 23 rd December 1995 the appellant was re-arrested and re-charged with the murder of Marcia Zena Lawes.[36]In the meantime he had maintained contact with his handlers and over the two days 12 th and 13 th December 1995 had been the subject of a debrief.[37]On 29 th December 1995 a letter was served on the appellant in which he was told that his application for asylum had been refused. The application had been completed as long ago as 15 th May 1994 and the letter of refusal drafted on 5 th December 1994. The inference that it was held back deliberately in order to prolong the appellant’s usefulness as an informer is difficult to resist, particularly as we see that on 16 th November 1995 Brian Fotheringham had “lifted the embargo”. The Trial.[38]The trial proper was preceded by a disclosure or Public Interest Immunity hearing. It began inter-partes with Mr Hilliard for the prosecution intimating the areas which he wished to raise in private. The only heading of relevance to this appeal was “police intelligence”. After the defence had withdrawn Mr Hilliard mentioned the appellant’s role as an informer. No mention was made of the connection between the appellant and Dionne White’s uncle and grandmother. Certain directions were given which need not concern this court save to record that there was no order for disclosure of the appellant’s informant status to his counsel or solicitors.[39]The jury was sworn and the trial got underway. The evidence for the Crown was much as we have described having been uncovered during the police investigation. Mrs Brown and Samantha Thompson gave evidence as to how Zena had been dressed on the Tuesday afternoon and evening and Mark Williams gave evidence of seeing the appellant phoning from the street. This coupled with the fact that he found Henrietta Rowe speaking to the appellant when he re-entered his flat and the evidence of Zena making phone calls at the same time rather put paid to the appellant’s account in interview. Indeed when asked about it by Mr Valios QC he said “I am sure that I made that call to Miss Rowe, but I am not sure where I made the call from, whether inside the flat, or out on the street but I did make that call.”[40]The 8:09 a.m. telephone call also fitted with the Crown’s main submission as to the time of the killing. It was suggested that it most probably occurred on the Wednesday morning. The reason for so thinking was that the man Chris had called on the Wednesday morning and left a rose and a note in the letterbox. The rose was still there on the Friday evening and the note had not been collected either, although a little girl had torn it up and substituted one of her own composition. More than that the phone, which it will be remembered was off the hook when Peter Martin entered the flat on Friday evening, was always engaged when Mercy Akenzua telephoned as it was when a friend, Camille Adomakoh tried to get through on the Wednesday. And no one was home when Camille went round to the flat at about 6:30 p.m. on the Wednesday evening. It is true that Samantha Thompson believes that on at least one occasion she got a ringing tone but as that was at 5:00 p.m. on the Friday when on any view Zena must have been dead there must be some doubt, as the learned judge suggested, as to whether she had dialled the right number. Otherwise the only explanation can be that someone other than Zena was in the house who replaced the phone on the hook before removing it again. The evidence was quite clear that no phone calls were made from Zena’s phone from the time when she phoned for a mini-cab, that is 18:34 p.m. on the Tuesday until Peter Martin used the phone to call the police on the Friday.[41]Against the Crown’s submission was the evidence of the pathologist, Dr Patel, who ventured the opinion that the most likely time of death was the Thursday evening. He based that opinion upon the state of decomposition and the absence of maggots and of flies laying eggs. Dr West did not disagree with an interval of 36 hours but said that it would have to be a guess.[42]In this connection we ought also to mention the evidence of Mr Brookson who works for the Mercury phone company and who gave evidence about the cell sites which picked up the various calls and in particular the call made by the appellant at 8:09 a.m. on Wednesday. He allowed for the possibility of a call being picked up from a distance should there be freak conditions existing at the time but that in all the tests carried out by him the calls had been picked up by the nearest and appropriate cell site.[43]Then there was the evidence of Dionne White. She lived with her grandmother Miss V where the appellant had stayed for few weeks in February 1995. She had, she said, helped find the room in Hollydale Road. She said that she had spoken to the appellant several times about Zena’s death usually over the telephone and one occasion he had said that the police were harassing him about the murder of a girl in Camberwell. He had said that he had been to her house and left his fingerprint on a glass of water. When Dionne White questioned him further she claimed that he said that he had gone to the girls house and fucked her and when she pointed out that he had not said that in the first place he had responded by saying that she asked too many questions. She then spoke of the occasion already referred to when she had seen the blood-stained trousers. That was on the 9 th of May.[44]Under cross-examination Dionne White insisted that she had had a conversation about the murder with the appellant on 19 th April, that is before the body had been discovered. It also emerged that her reason for being at the defendant’s flat on 9 th May, namely to help find alternative accommodation for Samantha Thompson, could hardly be true since Samantha Thompson had left at the end of April.[45]As a motive for lying Mr Valios suggested to Dionne White that she was in effect “a woman scorned”. He put to her that she had had a sexual relationship with the appellant which she denied. She was asked if it was not true that she had a scar on her lower belly. It turned out she had not. More than that the appellant had failed to instruct counsel about some very obvious coloured tattoos on her breasts. Even so it seems to this court that Mr Valios had been able to inflict considerable damage.[46]The appellant gave evidence in his own defence. He described meeting Samantha Thompson in 1993, and how they had lived together at Tooting Bec and later in a bed-sit at Hollydale Road. He went onto say that he had met Zena in 1994 at Henrietta Rowe’s flat. They had become friends and eventually lovers. Sexual intercourse had always taken place at his flat. In fact he had never gone to Zena’s address. On 18 th April he happened to be in the neighbourhood of Eastlake Road when he met up with Mark Williams. They had gone to number 37 together and later left together having taken cannabis and his case a glass of water. Having got out onto the street he watched to see where Mark went, and, as already noted, might have phoned Henrietta at that time. He had then gone back to Zena’s flat where they had talked and had sex on the mattress in her bedroom. They did not take off their clothes. He simply unzipped his fly and she moved her skirt and pushed her knickers to one side. Afterwards she mentioned phoning a cab and he left. He never saw her again. His evidence as to how he spent the rest of the week was generally in accordance with the statements he had made to the police. In cross examination he explained that he had not spoken of his relationship with Zena in the first place because he respected her privacy. On the basis that Dr Patel was right in placing the time of death on Thursday evening a number or witnesses were called to provide an alibi up until about 10:30 p.m. on the Thursday evening. One of those witnesses, Leon Lynn, was one of those on whom the appellant had informed. The appellant had wished to call Ida Turner to say that she had a market stall and had known Zena since she was a young girl. On Thursday 20 th April she had seen Zena in the market and spoken to her. That would have been between 1 and 2 p.m. At the time Zena was alone and wearing leggings and a short jacket. The witness did not attend. The Judge permitted the statement to be read. The jury must have wondered how it was that Zena could have returned to her flat without seeing the rose and the note which had been left by Chris on the Wednesday morning.[47]Following a summing up of which no criticism is made whatsoever the jury retired at just after midday on 18 th July. The majority direction was given at 11:33 a.m. the following day and the jury returned at 12:52 a.m. with a guilty verdict by a majority of 10:2. They had been considering their verdict for eight hours and nineteen minutes. The Leak.[48]We have referred to the private hearing in which the judge was told of the appellant’s informant status. On that occasion the court heard from a senior officer from the Special Operations Unit based at Scotland Yard to which DC Barker, DS Bayes and Brian Fotheringham were attached. He was Detective Chief Inspector Crawley. What followed is best described in the words of the police officer in charge of the murder investigation. He was then Detective Chief Inspector and is now Detective Chief Superintendent Cook. He gave unchallenged evidence to this court and we have had no hesitation in accepting his version of events as both truthful and accurate. “It would be fair that D.C.I. Crawley was extremely nervous throughout the whole proceedings. Once he had finished I joined him outside the court where I spoke to him about the Ex-Parte. He continually openly spoke of Denton being an informant and explained to me about the confusion of names. We moved into an adjacent corridor to talk further and out of earshot of others. On doing so he produced a file which he started flicking through and which I can identify as being DENTONS informant file. On top of the file was a debriefing note in which clear details were displayed about “DENTON” criminal activities. I am not in a position to say what the source of the information was. D.C.I. Crawley then left the Court. Detective Inspector STEVE GASKIN from Brixton Police Station then joined me. He had just finished another Ex-Parte application regarding DENTON in relation to another source of information. We sat on one of the benches opposite the Court entrance and had a general chat about both the case and other aspect (sic) of the ‘Job’. A person who introduced himself as NICK DAVIES, a freelance journalist who then asked us if we were involved in the case, shortly joined us. I asked what his interest was to which he stated that he knew Delroy DENTON was an informant and he was following the case. He then asked me to confirm if I knew anything about the discontinuance being through an approach having been made to the CPS by S.O.11. Both Detective Inspector GASKIN and myself declined to comment further. We immediately brought the conversation to the attention of the Crown Prosecution Service, Treasury Counsel Mr David Walters and Mr Nicholas HILLIARD and Detective Superintendent Tomkins. I know that Mr TOMKINS then informed S.O.11 and the Press Office of the interest. With regards the discussion I had with Treasury counsel and the Crown Prosecution Service, they were of the opinion that such a disclosure by the journalist did not affect the conduct of the prosecution case. They therefore decided to disregard it and continued on as usual. NICK DAVIES was the only journalist who was, to my knowledge, present at Court on the first day. However as the trial progressed so did press interest in the case. Within a matter of days a number of journalists had turned up to cover the trial. Returning to the matter of DENTON as an informant. On or about the 2 nd or 3 rd day of the trial, Miss URQHUART of the C.P.S. informed me that D.C.I. CRAWLEY of S.O.11 had contacted her at her office on the telephone. He asked for her permission to visit DENTON in the cell at Court, with a covert tape recorder, to inform him about his status as an informant becoming publicly known and that it was not the fault of S.O.11. Miss Urqhuart informed me that she had objected to such an approach being taken. Once again I informed Dectective Superintendent TOMKINS of this occurrence. As the case progressed Mercy Akenzua, members of her family, the victim’s friends and a number of other people turned up to watch the proceedings. There was one man in particular, his identity I do no know, and who was open in his vilification of DENTON. He was stating to all concerned that he knew DENTON to be an informant and that he wanted him to be convicted. From what I remember he was active within the criminal community of Brixton. Nick DAVIES was also networking amongst the family and friends of the victim on almost every occasion he was at court. I asked Mercy AKENZUA to keep me updated as to what he was asking or discussing. She stated that he had mentioned DENTON’S involvement with Police as an informant and had asked if she would assist a World in Action programme. She asked me if it was true as to whether Denton was an informant and also whether he was in the country illegally. I was faced with a dilemna (sic) in that I did not wish to lie to her, bearing in mind that it would soon become public knowledge, therefore I merely stated that it was not something I could either confirm or deny. Denton was found guilty and sentenced to life imprisonment.”[49]On the evening of the very day on which the appellant was convicted, that is 19 th July 1996, Thames Television put out a programme in which there was reference to the appellant’s activities as an informer. Thereafter there has been at least one television programme, several newspaper articles and a book entitled “Gangsta” in which the appellant’s role as an informant have been referred to quite freely. Rather than burden this judgment with the detail we have attached a schedule of media coverage prepared on behalf of the appellant. We mention two entries only. Both relate to 3 rd February 1997. The first was an article in “The Guardian” by the journalist Nick Davies and the second a World in Action programme put out by ITV. The detail contained in both is such as to raise the very strong suspicion that the media had been fed with information by someone closely connected with S.O.11 at Scotland Yard. The appeal.[50]Slightly rearranged the grounds of appeal are as follows.(i) That the Crown should have told the appellant’s lawyers that he was a registered informant.(ii) That the Crown should have told the judge not only that the appellant was a registered informant but also how that fact might have a bearing on the conduct of the defence.(iii) That the judge should not have granted public interest immunity in respect of the fact that the appellant was a registered informant.(iv) That the appellant had been told by his handlers not to tell his lawyers about his informant status.(v) That the Crown should have told the judge, and/or the appellant and/or his lawyers that certain prosecution witnesses knew about the appellant’s informant status.(vi) That when it became known that the press and/or members of the public knew about the appellant’s informant status that fact should have been disclosed to the judge and/or the appellant and/or his lawyers. Grounds (i), (ii) and (iii).[51]It is submitted on behalf of the appellant that had his lawyers known about his informant status they might have deployed the information in cross examination of Dionne White as to motive, as an explanation for possible hostility on the part of other witnesses and in presenting the appellant as a more credible witness in that it would show him participating in the battle against serious crime and also provide a compelling reason for not wishing himself to become involved in crime.[52]The Crown’s response is to say that there is no duty to disclose to an accused person that which he knows already and, save at the behest of the accused himself, there is no separate duty to make such information available to the accused’s lawyers. More than that, without express authority from the accused there is a positive duty not to tell anyone about his informant status.[53]The prosecution’s duty to disclose is now governed by the Criminal Procedure and Investigations Act 1996. By section 3 (1) “The prosecutor must – (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor’s opinion might undermine the case for the prosecution against the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).” Section (2) tells what “material is material”. It is material (a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or (b) which, in pursuance of a code operative under part (2), he has inspected in connection with the case for the prosecution against the accused. Under section (7) there is provision for secondary disclosure once the nature of the defence has been made known.[54]It is to be noted that under statute the duty to make disclosure is owed to “the accused” and that it relates only to material which has not previously been disclosed. Of course, we are concerned with the position which existed before the coming into operation of the 1996 Act but it would seem that had the Act applied and upon a strict reading that there would have been no obligation on the prosecution to disclose the information or, for that matter, to seek a ruling from the Judge. That is not because the information wanted relevance but because on any common sense view of the matter the material had already been disclosed to the accused.[55]But was the position any different before the 1996 Act came into force? Both in R v. Keane 99 Crim CR A.P.P.R. 1CA and R v.Brown (Winston) (1995) 1CAR 191 CA the test suggested by Jowitt J in Melvin & Dingle December 20 th 1993 (unreported) was approved by this court. In the words of Jowitt J it was:
“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).”
[56]As proposed the test anticipates the second limb of the statutory requirement namely that the material must be such as “in the prosecutor’s opinion might undermine the case for the prosecution against the accused” but is silent on the subject of previous disclosure. But the word used is “disclosed” which is to “make known” or to “reveal” and one cannot as a matter of language ‘make known’ or ‘reveal’ that which is within the knowledge of the party addressed. Indeed in the case of Winston Brown itself, where complaint was made about a failure to disclose weaknesses, in the evidence of proposed defence witnesses Steyn LJ said this:
“It is readily accepted that such information is relevant. But the province of the law is practical affairs, and there must be a limit to the scope of discovery that can be required of the Crown. One must bear in mind that a defendant’s solicitor is in a position to enquire from a defence witness, or others, about his past, or about other matters affecting his credibility.”
A fortiori where the information is known to the defendant himself.[57]But Mr Valios attacks from a rather different angle. He accepts that the appellant had all the information he needed, at least to set further enquiries in train. Indeed, as we know now, he was well aware of the possible reason for Dionne White holding a grudge and had quite deliberately chosen to keep the information to himself. No, Mr Valios argues for a separate duty to inform the appellant’s legal representatives who would then be in a position to give the appellant proper advice but who would be precluded from using or disseminating the information without their client’s express instructions.[58]Neither Mr Valios for the appellant nor Mr Waters QC for the Respondent have been able to produce any case, which is directly in point. Though not relied upon in argument the closest, perhaps, is R v. Langley (2001) EWCA Crim 732 (21 st March 2001). That case revolved around the reliability of a confession. In cross-examination the police officer who had taken the statement happened to say that the defendant had offered information. The defendant denied that he had ever offered to become an informant. There was material supporting the assertion that the defendant had in fact given information. That material was not disclosed to the defence. The Crown conceded that in the circumstances of the case the broad content of the information report ought to have been disclosed. On the appeal counsel submitted that had he known of this additional material he would not have taken his own client’s denial at face value and might well have made use of the material to undermine the voluntary nature of the confession. The submission as formulated at paragraph 15 of the judgment was:
“Thus, he puts the case in this way. Non-disclosure of the existence of records suggesting that the defendant had provided information deprived the defence of an opportunity properly to assess the approach to be made to the holding of a voir dire and/or the making of a submission under section 76 (2) and (3) of PACE.”
The submission was upheld. At paragraph 18 the court stated:
“Nonetheless, as it seems to us, the failure to disclose in advance the matters which only emerged in the course of cross-examination of DC Evans, deprived the defence of an informed opportunity to decide whether or not to seek a voir dire. Had the defence done so, we are by no means convinced that the judge would have admitted the confession. And at paragraph 19 ...that being so, we cannot be satisfied as to the safety of the conviction and the appeal is allowed.”
[59]We would suggest that the decision in Langley turned on its own very special facts and does not directly address the point of principle in the instant case. The police officer had quite deliberately held back the information until he was cross-examined and had then used it to throw counsel off – balance. That such had always been his intention seems clear from the fact that he had come to court armed with a computer record which supported his version and which he produced before the jury without being asked to do so. Plainly the accused and his lawyers were entitled to advance notice of material which a police witness had always intended to adduce in evidence.[60]Mr Waters for the Crown strongly contests the existence of a duty to inform the lawyers. He submits that whether the lawyers are told or not is a matter for the defendant particularly where, as here, his very life may be put at risk. He suggests that it would be a serious breach of confidence to disclose the accused’s status as an informant without his prior approval. It would have repercussions reaching far beyond this case if it were thought that the confidence might be breached. Then it might be that existing and potential informers would be deterred from giving valuable assistance in the detection and prosecution of criminals and that, says Mr Waters, would be contrary to the public interest.[61]Although the facts of this case may be unprecedented Mr Waters further reminds the court that cases abound where in mitigation of sentence informers seek to rely on help they have given to the police. This is routinely done by providing the judge with a “text” which only comes to the eyes of defence counsel if, and only if it is the wish of the defendant. In much the same way whenever counsel for the Crown (and Mr Waters speaks as former Treasury Counsel) is approached by defence counsel and asked if the defendant is or has been an informer prosecuting counsel will respond by offering to make enquiries but will decline to provide an answer save upon being shown the defendant’s written authority.[62]On this part of the case we have come to the following conclusions. The fact that the appellant had informed upon Wayne Graham and Miss V was relevant to an issue in the case namely with regard to a possible motive for Dionne White to give false evidence. We see no other sensible use to which the information might have been put. The relevance of the material was not brought to the attention of the judge and, as we understand the position, was either not known to or not appreciated by those who represented the Crown at the time of the public interest immunity hearing. However, the Crown had no duty to supply the appellant with information with which he was already familiar and there was no need to seek the judge’s approval for not doing so. Nevertheless we do not criticise the Crown for telling the judge that the appellant was and had been an informant: it was clearly something of which the judge ought to have been made aware. Ground (iv).[63]It was in connection with this ground that we heard evidence from the appellant and his handlers, notably DC Barker, DS Bayes and Brian Fotheringham[64]The appellant told us that he felt throughout that Brian Fotheringham, in particular, had a hold over him in that should he fail to co-operate he would be returned to Jamaica where, likely as not, he would come to a sticky end and that Brian Fotheringham and the others had been instrumental in ensuring that the drugs charges and later the charge of rape were not proceeded with. More than that he strongly believed that they had been responsible for the murder prosecution having been discontinued. He spoke of one occasion following his arrest for rape in January 1995 when he been visited by Brian Fotheringham and DS Bayes at Wandsworth prison when he was told that he should not mention to anybody that he was an informer and if he did he would go back to Jamaica. He was particularly told not to mention it to his solicitors. However when asked about the debriefing over 12 th – 13 th December 1995 he said he was not sure that either Bayes or Barker had said anything about not telling his lawyers. That was in contrast with his account in the form W witness statement in which he said this:
“During the course of this meeting Mr Bayes in the presence of Mr Barker at least, told me that they were very pleased that I had not told my solicitor of my status as an informant. They said that if I had that they would not been able to help me. Up until this point I believed that the police and Mr Fotheringham had helped me again.”
In cross-examination he repeatedly said that he had been told by his handlers not to reveal his status to his lawyers and reaffirmed that he could not remember what was said about the lawyers at the debriefing session. When his witness statement was put to him he said that the conversation had taken place on the way to the meeting. Now it transpires that the meeting itself had been tape-recorded and that there is a transcript in existence from which it appears that nothing at all was said about not telling the lawyers. The suggestion was put to the appellant that having learned about the transcript he had decided to change his evidence. This he denied.[65]A number of police officers were called but on this point the only relevant evidence came from Barker, Bayes and Fotheringham. Each denied that he had ever said or heard anything said to the effect that the appellant should not tell his lawyers about his status. Each accepted that it was implicit in their conversations, if not stated in terms, that it would be most unwise of the appellant to let it be known that he was an informer.[66]Although Barker, Bayes and Fotheringham were unsatisfactory in some respects we accept their evidence on this point. We can see no reason why any one of them should have been concerned to prevent the appellant telling his lawyers that he was an informer and, in any event they are only contradicted by the appellant whose evidence with regard to the second of the two occasions was shown to be palpably untrue. Even had we found otherwise we would have been quite unable to accept that come the time that he was facing a murder charge the appellant’s reason for not telling his lawyers was that he was simply obeying instructions.[67]For those reasons this ground has also failed to impress. Grounds (v) and (vi).[68]We think it convenient to take these two grounds together and it may be that the second embraces the first. The only evidence on this came from DCS Cook and is to be found elsewhere in this judgment.[69]It is a matter of some concern that not even the judge was told of this development. Had it come to the knowledge of the appellant it may very well be that it would have worked a change of heart with regard to telling his counsel about his informant status. Indeed, he did tell them when asked about it following the programme by Thames Television. Once his status had become public knowledge the shackles were off so to speak. There was no longer any good reason for keeping the information to himself and counsel would have been free to cross-examine Dionne White as to motive. We say “free to cross-examine” advisedly. It would have been a matter requiring careful thought. After all, as was pointed out, Dionne White was vulnerable for other reasons and cross-examination on the lines suggested could have had a serious down side, namely the loss of the alibi witness, Leon Lynn, against whom the appellant had informed and the introduction of the risk of character being put in issue.[70]We see of course that the Crown was presented with a dilemma. Counsel were not aware of the possible relevance the information might have to the conduct of the defence case. And without the benefit of hindsight one can well understand how it might have been thought that “least said soonest mended”.[71]But whether the Crown was at fault or not is hardly the point. As we now know the fact is that by the time this trial got started very detailed information about the appellant’s activities was known to the press and to members of the public. If the appellant had known that to be so there is little doubt that he would have broken his silence and the possibility, at least, that the material would have been deployed in cross-examination of Dionne White. Whereas it might be harsh to criticise the Crown there is no question but that the appellant has now come into possession of relevant material which was not available to him or his lawyers until after the trial. Conclusions.[72]We have identified a disadvantage suffered by the appellant at trial. What does it amount to? The loss of an opportunity to cross-examine Dionne White as to motive. There is, in reality no other. Such cross-examination would bring with it the risk of putting in character and the possible loss of a valuable witness. It would not be undertaken lightly especially as, for reasons, which we need not rehearse, Dionne White had been largely if not altogether, discredited. The case for the Crown did not depend upon Dionne White. We think that even at the stage when proceedings were discontinued the evidence of guilt was overwhelming. We need not repeat the review of the evidence set out in paragraph 28 of this judgment. When one adds to that the evidence as to the telephone calls and the further lies told by the appellant as to the circumstances in which he had sex with Zena, a guilty verdict became inevitable.[73]Accordingly we are entirely satisfied about the safety of this conviction and the appeal is dismissed.

Cited in 1 later judgment