Allan v The Queen [2004] EWCA Crim 2236

Case No 200205171/D3

[2004] EWCA Crim 2236

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM Manchester Crown Court

The Honourable Mr Justice Penry-Davey

T962000

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 20 August 2004

Before

LORD JUSTICE HOOPER

MR JUSTICE LEVESON

MR JUSTICE RODERICK EVANS

Between

Richard Roy AllanAppellant

The QueenRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Mr. R.L. Davies Q.C. and Mr P.R. Randall for Appellant

Mr. J. M. Shorrock Q.C and Mr R. Stuart for The Crown

Judgment As Approved by the Court

Lord Justice Hooper :

[1]On 17 February 1998 in the Crown Court at Manchester before Penry-Davey J and a jury the appellant was convicted of conspiracy to rob (Count 1) and of the murder of David Beesley (Count 2) by a majority of 10-2. He was sentenced to life imprisonment on Count 2 and to 15 years’ imprisonment concurrent on Count 1.

[2]On 18 January 1999 the Court of Appeal Criminal Division heard and dismissed the appellant’s renewed application for leave to appeal against conviction.

[3]He now appeals against conviction upon a Reference by the Criminal Cases Review Commission (“CCRC”) under section 9 of the Criminal Appeal Act 1995, on the basis of a misdirection by the trial Judge in his summing up as to the drawing of inferences from silence.

[4]On his behalf it is also submitted that he did not have a fair trial by reason of the admission of the evidence of Michael Hirrell that the appellant had made express and implied admissions to him of involvement in the murder. Hirrell was a registered police informant deliberately placed with the appellant whilst in custody to obtain admissions. Particular reliance is placed on the decision of the European Court of Human Rights (“ECHR”) in the appellant’s case (00048539/99, dated 5/11/2002). The ECHR held that “the information gained by the use of Hirrell in this way may be regarded as having been obtained in defiance of the will of the applicant and its use at trial impinged on the applicant's right to silence and privilege against self-incrimination.” The Court held that:

“Accordingly, in this respect there has been a violation of Article 6 § 1 of the Convention.”

When the appeal was first listed for hearing, it appeared to be the respondent’s case that the factual findings of the ECHR were challenged. At a later hearing, it became clear that they were not.

[5]The admissibility of Hirrell’s evidence formed the basis of an unsuccessful ground of appeal before the Court of Appeal.

[6]The third ground raises an issue of alleged non-disclosure. It is submitted that information disclosed only recently to the appellant shows that the officers handling Hirrell discussed with him the availability of a reward of £30,000 shortly before he was asked to “inform” on the appellant whilst they were both in custody and that a reward of £30,000 was paid to him following the conviction (£10,000 of which came from the Greater Manchester police Authority). Given the absence of evidence against the appellant from anyone else eligible for a reward (police officers not being eligible), Mr Hirrell received the whole available reward. The fact that Hirrell knew about the reward was known, but it is said that it was not known to prosecuting or defence counsel at the trial that there had been a discussion about the reward between Hirrell and his handlers at an early stage. The fact that the reward had been paid after the trial was not made known to the Court of Appeal.

The facts

[7]On the morning of 3 February 1995 David Beesley, the manager of the Kwik Save supermarket in Burton Road, Didsbury, was shot dead in his office (Count 2) in the course of a planned robbery (Count 1), which did not succeed. The safes were not opened and nothing was taken.

[8]The appellant denied being at Kwik Save that morning and said that he was at home in bed with his girlfriend at the relevant time.

[9]Mr Metcalfe, an employee at Kwik Save, gave evidence that Mr Beesley followed his usual procedure in checking and locking the premises, and turning on the alarm, before leaving on 2 February. The evidence showed that Mr Beesley arrived at the store shortly after 7am on 3 February. He opened the gates to the car park and parked his car. He would then have unlocked and partially opened the shuttering protecting the main door on Burton Road and then unlocked and opened that door to gain access to the premises. It was the prosecution’s case that at least two robbers were lying in wait and entered the premises with or just after him. There was evidence of 2 males in the vicinity before the arrival of Mr Beesley. One had fairish hair. The witness could give no description of the other.

[10]Evidence of the alarm system at Kwik Save showed that the front door to the store and the manager’s office door were opened, and the manager’s personal number entered (which switched off the alarm), at about 7.08am. The “duress” code was not used.

[11]Mrs Bradley, a cleaner, arrived at 7.15am and found the shutters up and the door unlocked. She went in and saw no-one about. She started cleaning and five or ten minutes later heard a noise from the direction of the entrance. She looked out and saw the back of a figure walking away. At about 7.45am the body of Mr Beesley was found in the manager’s office.

[12]Mr Marr, the assistant manager, found that the bar on the fire exit leading towards Burton Road, which Mr Beesley had put in place the previous evening, was on the ground. It appeared that the quick release bar had been operated but because the door was mortice-locked it remained secure. It was the prosecution’s case that the robbers had unsuccessfully tried to leave by that exit. Mr Hughes, the area manager, said the safes were apparently untouched, and that the store manager would not have had the safe keys on him when opening up the store.

[13]The police arrived at 7.50am and an ambulance at 7.55am. Mr Beesley’s body was in a sitting position on the floor, having apparently been moved into that position. He died from a single gunshot wound to the back of the head on the right side, and there were no injuries indicating a struggle or fight immediately before death. He had been shot at close range while in a standing position, the shot being fired by a person inside the office. The direction of the shot was towards the corner of the room where the door out into the store was located, that door being closed, or only slightly open, at the time. Bullet fragments indicated that it was probably fired from a .38 or .357 revolver, possibly a Colt, Rouger or Dan Wesson make. The injury was consistent with the use of a powerful revolver, and it was very unlikely that a self-loading pistol was used.

[14]Mr Beesley’s left fore, middle and ring fingerprints were found on the wall of the office, about 6’3 above the floor (a diagram of their position was produced), consistent with his being held against the wall. This, said the prosecution, was important evidence tying in with things said by the appellant a little later (see paragraphs 23 and 24 below). However, the fingerprints were also consistent with his standing on a stool and steadying himself while adjusting the CCTV monitor, as there was evidence that he did on occasions. Casts of footwear impressions were taken in a builder’s yard and a garden adjoining the Kwik Save car park, but there was no evidence as to whose they were.

[15]Evidence was given by Andrea Sinclair, aged sixteen, who lived at 403 Wilbraham Road, the home of the appellant’s girlfriend Jan Sultan. She said that about two weeks before the appellant’s arrest on 19 February, Jan Sultan asked her to take down a box from the top of the wardrobe. As she did so she saw what she thought was a gun on top of the wardrobe. It was a “square thing”, but she could not see the whole shape of it. (Subsequently she looked at a gun catalogue and pointed out something that she said looked like it.) That night she asked the appellant about it and he told her that it was not a gun, and that she should not worry.

[16]The appellant was arrested 16 days after the murder on 19 February for a robbery at the Late Shop the previous evening (to which he subsequently pleaded guilty).

[17]On 20 February he was seen by police officers Lynn and Simpson, who told him that they were investigating the Kwik Save murder. They said that he was not under arrest in connection with that and could leave at any time, or have a lawyer if he wanted. He was co-operative and did not seem nervous. He gave an alibi. He said that he lived at 403 Wilbraham Road with Jan (or Jahn) Sultan and there were also six children there. He remembered clearly that that was where he was at 7am on 3 February. He had shopped at Kwik Save four or five months previously. He had heard about the shooting but had no idea who was responsible. The two officers said that they did not mention any details relating to the murder to the appellant. They did not say that Mr Beesley had been executed nor did they say anything about Mr Beesley’s hands being against the wall.

[18]Following his arrest on 19 February, the appellant shared a cell at the police station with Leroy Grant (who was also under arrest for the Late Shop robbery) and covert recordings were made of their conversations, of which a précis, exhibit 21, was produced.

[19]The prosecution submitted that the recordings showed the appellant referring to a knowledge of the Kwik Save premises, to a previous “watching” of the premises and to details of the murder which only a person who had been present at the scene could have known. The prosecution relied upon, amongst other things, the following said by the appellant in the first covert recording in the evening of 22 February:

“I have watched him. I have watched him. I took you there one morning. We went all the way over the back. He was in there already”. “It’s him, it’s him. I have seen the milk then the milkman round the back.” “Because they [the police] already found my train[er] marks, the trainers…” “How did I know? You know I clocked him coming round the back. Guess how I clocked him one morning? I was going out to London with Lisa’s dad, drove past, and I watched a man come up with his car, get out dead quick and stopped there. So I sat there, watched him, didn’t open the front. Went round the back, and I didn’t see him again. I was watching for him, and I thought ‘Wait a minute’, so I … up and down pretending I … went round the back. Guess what the milk was still out. The next minute the door opens. He comes out.” “Because you and me had been over the back wall” “They [the police] took all my clothes, because they wanted to know what I was doing round the back”. “I was seen outside there. Someone recognised me out there.” “Because they got thirteen grand the first time and they knew the money was in there, and when they threw the keys somewhere they couldn’t find it so they shot him in anger.”

To a question by Grant if he knew any more, the appellant said, “I know a lot more….I told them something that only the police didn’t know.”

[20]Later during the same evening of 22 February the appellant and Grant had further conversation about who had done it. The appellant said that he had told the police they were wasting their time looking in Moss Side, and “I will get the killer because I know who the killer is.” There was reference to Ransford Roche, and the appellant said, “Ransford is crazy… Ransford will egg you to pull the trigger.” Grant said, “Did they go in the front way?” There was some whispering, then the appellant said, “What he did was he waited for the man to lift up the front door, and when he lifted it up he walked in behind him… and took him straight through, shot him up behind him, … and did the business, boom, walked out the front. They opened the back up as well to make it look like they came through the back. That’s what they don’t know. No-one knows that but me, because I … I don’t know what was said.” There was also reference to “going on the early morning shift”.

[21]That same evening, at his own request, the appellant spoke to police officers Ringrose and Richardson. He told them that he knew who the killer was, and that he came from Longsight. The killer had done the cold-blooded killing at Kwik Save, and the Wilmslow Road job. At 9.30 to 10am on 30 January 1995 two men using a very long barrelled black handgun with a revolving chamber had carried out a robbery at Kwik Save in Wilmslow Road, Rusholme, Manchester. The appellant denied having anything to do with that and was not charged with it, although he admitted an attempted robbery there the previous November. He said that it was a black man and a white man, and the man had done his homework. He got nothing at Burton Road but got twelve or thirteen grand at Wilmslow Road.

[22]There was further conversation between the appellant and Grant that evening in their cell. There was reference to the manager being the first one in and the appellant said:

“Ten minutes before anyone else comes he’s dead … ten minutes, I know that Leroy, ten minutes.”

There was reference to the manager opening the back door and picking up the milk, and the appellant said, “No, he opens the front door” and Grant said, “He picks the milk up.” The appellant said, “… I will give them something that weren’t in the paper”, and then, following a remark about the manager’s being shot dead alone in there, “… he was by himself. He was the first one in… The others come five/ten minutes after, so this person had to be quick, didn’t he?”

[23]On 1 March, at his own request, the appellant spoke to DC Styring and DC Moore. It was made clear to him that this was not an interview and he was not under caution. He said that Leroy Grant had been asked by Robert Buckley if he wanted to go on a job at Kwik Save at Chorlton. A week later the Kwik Save at Wilmslow Road was done, and that was the start of the Kwik Save robberies. The appellant said that Grant had not been interested as he was doing well in his own line of business. The appellant said that he was 99% sure that Mike Boreman did the Kwik Save at Burton Road. There had been a black man and a white man, and the black man could have been Ransford Roche. He was asked why he was telling the police this, and said that he was appalled that men could go into a Kwik Save, not get the money, turn a man round and put his hands on the wall and shoot him dead. The man who shot Beesley had been on drugs. He was asked how he knew all this, and said that the officers he had talked to previously had told him. He had nothing to do with it himself, and was only telling the police what he believed had happened.

[24]On the evening of 8 March the appellant and Grant were talking in their cell, and the appellant said that “the guy was put up against the wall … and his fucking brains blown out … execution … spread eagled”.

[25]There was also a recording of a cell conversation on 9 March, which included mention of a black gun, and 6 o’clock in the morning, apparently a reference to 3 February.

[26]On 8 March the appellant was arrested for the murder. He made no comment when interviewed. He was “de-arrested” on 10 March.

[27]On 10 March there was a visit between the appellant and Jan Sultan, of which there was a video as well as an audio tape recording. There was reference to hiding the car, and the appellant was making signs to Jan to be quiet.

[28]The same day there was a cell conversation between the appellant and Grant, in the course of which the appellant seemed to suggest that a Junior Stanley had told Grant about the manager’s being put up against the wall and executed. Grant said, “It was Junior who told me, man” and the appellant said, “You told me that… you said Junior told you.” “Did I?” “Yes.” Later the appellant said, “I would never ever aid and abet no-one who has got a real gun to go into any shop, and I know damn well there’s no way I’d do that.” Stanley was called and denied this and denied knowing the appellant.

[29]That evening, there was a remark about a gun, and the appellant said, “It’s like looking for a needle in a haystack. Like looking for a man in the north sea at night with a candle.”

[30]On 12 March another visit by Jan Sultan was recorded. The appellant was saying, “They know who it is”, pointing to himself and Jan, and “You and me stick together on the murder.” During a visit on 18 March he said, “Right, Jan, you know I didn’t want us to take him out.”

[31]When asked about these potentially incriminating remarks during police interviews on June 28, the appellant declined to comment. In evidence the appellant said that he had lied to Leroy Grant when accepting a link between him and the location of the murder. He said that there had been intense local interest in the murder and much discussion. He and Grant were speculating as to what had happened and trying to work out had happened.

[32]We turn to the evidence of Michael Hirrell. He was born in 1956, and had a number of convictions covering a large number of offences involving violence and dishonesty. He had spent much of the time since the 1970s serving custodial sentences. He had been a police informant since 1987, and in 1995 his handlers were DCs Styring and Moore. In February 1995 he was arrested and charged with wounding with intent to cause grievous bodily harm, and released on bail. On 21 March 1995 he was arrested for burglary.

[33]On 22 March he was visited at the Central Detention Unit by his handlers and a conversation took place, following which on the next day he was deliberately moved to Stretford Police Station to be with the appellant and Grant and act, whilst in custody, as an informant. We say “deliberately” because it becomes clear from the evidence of the officers on a voire-dire at the trial that it was deliberate. Hirrell himself maintained both in his deposition before the Magistrates’ Court, in the voire-dire and before the jury that the fact that he ended up in the same police station as Grant and the appellant was “coincidental”. He told the jury (page 41) that when he moved to Stretford “I did not know the men were there”. There was no record made of what was said between Hirrell and his handlers at the Central Detention Unit and what was said when they saw him at Stretford following his arrival there, and nothing in the various witness statements to help. It emerged only recently, so it is said, that one of the matters discussed was the reward of £30,000. The alleged failure to disclose that before the trial forms the subject matter of the third ground of appeal.

[34]A great deal of time was spent on a voire-dire by Mr Spencer QC for the appellant trying to discover what were the instructions given to Hirrell. It is sufficient to say that there were many contradictions, much “coyness” and lack of clarity in the accounts given by Hirrell and by his two handlers. For example Hirrell said on the voire-dire that he had obtained information from the appellant on his own initiative and was not given direct instructions to do it. When giving evidence Hirrell at one point changed his account and said that he had been “pumping” the appellant as the police had asked him to do (see summing-up, page 50).

[35]Hirrell kept some notes of the conversations, and spoke to the police on the telephone. There were transcripts of many of these conversations and there were also notes made by the police officer receiving the calls. The transcripts provided Mr Spencer with a fertile source of evidence for his contention that Hirrell was tasked with questioning or “pumping” the appellant and was “coached” so to do, at least by the time both the appellant and Hirrell had been moved to Strangeways in early April. Although DC Moore said during the voire-dire that his instructions to Hirrell to “adopt a pretty passive role” without asking leading questions did not change to “going on the offensive and seek information” (see pages 34-35 of his evidence on the voire-dire) and that Hirrell was never encouraged to push Mr Allan” (page 52), the transcripts paint, so it seems clear to us, a different picture. For example, the officer said “push him for what you can, mate” on 25 May.

[36]Hirrell agreed that he was particularly anxious to obtain bail, for family reasons, and in fact made bail applications which were supported by the police on 12 April, 16 May and 20 July. On the day he agreed to make a witness statement his solicitor was given a letter about bail, and bail was granted on 4 August. The offence of wounding with intent was reduced to assault occasioning actual bodily harm, and he pleaded guilty to four burglaries. Sentence on those matters had been adjourned until the conclusion of the present trial. He was subsequently sentenced to 4 months’ imprisonment (time served). The sentencing judge told him that, but for his help, he could have expected a sentence of 3 years’.

[37]The prosecution relied upon the evidence of the following principal alleged admissions made, according to Hirrell, by the appellant whilst they were both at Strangeways: Hirrell had drawn pictures of a revolver and a semi-automatic and had asked the appellant which he had used. The appellant identified the automatic. Hirrell said “if that’s the gun you used, it’s ejected a cartridge”, to which the appellant had said that he had “never left anything behind at scene of murder”, “[The gun] would never be found, it had been melted. It would never be found until he required it again”. “… his gun was always there until such time as he needed it.” “The gun used was his own thing” “… he didn’t pull the trigger, but he was there”

[38]It was this last alleged admission (which was repeated by Hirrell to the officer on 24 May) which led the prosecution to put its case against the appellant as having been there, albeit not doing the killing himself.

[39]In addition the appellant, according to Hirrell, made a number of what can be described as enigmatic remarks which (at the least) showed him in a bad light, as well as saying things which did not accurately describe what had in fact happened at the time of the killing. Hirrell reported Allan as saying that (contrary to the evidence) two shots had been fired. When Hirrell told DC Moore about this on 30 June, he said that Rees (the senior officer) said that the defence would “jump on that” and that “Rees would like you to forget it”. Moore said this was said in jest.

[40]On more than one occasion the appellant described himself as “sweet”, which, on the prosecution’s case, meant, in effect, “safe” not “innocent”.

[41]On 28 June, the appellant was re-arrested for the murder and, having been taken out of Strangeways, interviewed. In April 1995, the law had changed to allow inferences to be drawn from an accused’s silence during questioning. By this time the police had the tapes of the covert recordings of conversations between the appellant and Grant, and the appellant and Jan Sultan. They interviewed him about matters arising in those conversations over some three hours, and the appellant again declined to comment.

[42]Having been questioned at length, he was returned to Strangeways in the evening (he was further questioned the next day and then charged on 26 July 1995). Hirrell had by this time been fitted with a recording device and a transcript of the conversations that were taped that day was before the jury. The police were hoping that the appellant would confirm on tape Hirrell’s accounts of the appellant’s admissions. In the words of

the judge summing-up (as recorded in the transcript):

“Hirrell was aware … that Allan was being interviewed that day, and it was explained to him to rattle Allan’s cage so it would be an easier game for Hirrell to talk to him, and said Hirrell, the plan was to wind Allan up and unsettle him.”

[43]The transcript of the cross-examination reads slightly differently (page 55):

“Q. Did they [Moore and/or Styring] explain to you that the purpose of taking Allan out of the prison in order to listen to him was to, as it were, rattle his cage so that when he came back he might be unsettled and easier game for you to try and interview yourself? A. Yes”

[44]The transcripts of the conversations between Hirrell and his handler earlier in the week show that it was the intention of the police to “hawk [the appellant] out some time this week … and throw him back in without charging him. … Just to really spook him, to really frighten him”. When that is done “the plan will be to walk” Hirrell “right out”. “Once they get something on it which makes us so happy, you’ll be coming out”. The officer told Hirrell that when Allan returns tomorrow from interview he “should be panicking”. “Just get him talking. If anybody can, you can.” The police were looking for “that little bit of corroboration”. The 28th was described as “the big day”. There were references to “spark him up” and “writing novels”. There was reference to the officers winding up Allan in interview “sufficient for you [Hirrell] to jabber away”.

[45]The appellant in fact made no clear admissions. It was the prosecution’s case, however, that what the appellant was saying was consistent with what Hirrell said that he had said before.

[46]The tape reveals that Hirrell was repeating things alleged by him to have been said by the appellant in the earlier unrecorded conversations, hoping to get the appellant to admit he had said those things. We were directed to the following passage by Mr Davies QC to show the tenor of the conversations:

“Allan: You asked me if I melted it down didn’t ya? Hirrell: No, you says you melted it down. Allan: No, you said to me I hope you’ve disposed of it. Hirrell: I hope its gone for ever. Allan: And I said to you, I didn’t say to you, I say the things gone, it’s clean, it’s been melted, it’s gone, it’s completely gone. Hirrell: Right, and I … Allan: You know something, between me and you, it’s not been melted. Hirrell: Right. Allan: It will never be found. Hirrell: Right. I was just gonna say to you there right, you did, you says I’ve melted what, or I says, or I said, it’s melted …. Allan: You said, you kept saying that to me Jock. Hirrell: Right, you’ve melted the bastard. Allan: You kept saying that to me, you kept asking me if I melted it and you kept asking me, so I said to you, yeh it’s been melted, I melted it, it’ll never be found. But then I said to you … Hirrell: And, and I thought about it Allan: Then I said to you, no, it’ll just never be found Jock, it’s not, you thought I’d dashed it in Alex Park Lake, but I never. Hirrell: Well that’s what I said, it was either Alex Park Allan: You, you kept putting things to me Hirrell: Platt Fields Allan: You kept putting things to me Hirrell: Or the Mersey, or that wee fucking river that runs past Jan’s.”

Hirrell: Right, and I … Hirrell: And, and I thought about it Hirrell: Platt Fields Allan: You kept putting things to me Hirrell: Or the Mersey, or that wee fucking river that runs past Jan’s.”

Allan: You kept putting things to me

[47]In a later passage there Hirrell said:

“You pointed at the automatic, right? Now them guns eject, and you told me it did nay.”

The appellant replied, “It come out at the bottom.” “Yeah, that’s the magazine.” “Right, but they eject out the top.” Hirrell then told Allan that he had said :

“You never left fuck all about”, to which Allan replied: “I didn’t tell you that did I? I told you nothing got left because, like I said to you, it was nothing to do with me. It had fuck all to do with me. It got left ‘cos it’s nothing to do with me mate, I didn’t leave fuck all ‘cos I weren’t there.”

[48]The prosecution pointed out that this conversation could not be referring to an imitation firearm. The prosecution also relied on this remark by the appellant:

“When all this had blown over, right, I will come to you and I will tell you a story.”

[49]In summing-up to the jury,

the judge said this about Hirrell:

“I suggest ... that you approach the evidence of Hirrell with the very greatest caution and care. He is a professional criminal. He behaved, and has behaved as he acknowledged, dishonestly and criminally for years. He saw the likelihood of advantage to himself, both in terms of bail and in the sentence that he was likely to receive. You have heard that he has not yet been sentenced on matters for which he was in custody in early 1995. The defence say if you consider the whole picture you simply cannot rely upon Hirrell; quite unsafe to do so. The prosecution say the contents of the tapes of 28 June can be relied on and are consistent with what Hirrell says Allan had said to him previously, before he, Hirrell was wired up. Of course tapes of telephone conversations cannot possibly constitute any independent confirmation of what Hirrell says about what Allan had said to him previously, because, and you will understand the logic of that, the information is all coming from one source, namely Hirrell and the witness cannot strengthen his own evidence essentially by repetition. So, ladies and gentlemen, at the end of the day how do you regard Hirrell? Was he or may he have been lying, or are you sure that he was telling the truth? If you are sure, for example, in relation to things said on the tapes of 28 June or other aspects of Hirrell's evidence that his evidence is true, that Allan did say a number of things, what do those things mean? Do they point to his guilt, to his presence at Kwik-Save on 3 February 1995, or are they capable of meaning something else?”

[50]On 26 July he was interviewed again, and was asked if he knew Hirrell. In the course of the three hour interview detailed questions were put to him about Hirrell’s long statement and other topics. To all questions he replied “no comment”.

[51]The prosecution maintained that he could reasonably have been expected to mention in the interviews of 28 June and 26 July the matters which he raised when he gave evidence about the conversations in question.

[52]The appellant gave evidence. He admitted that he was an armed robber, but said that he never carried a real loaded gun. He had previous convictions for robbery and was serving a long sentence of imprisonment at the time of this trial (and agreed that at his trial in December 1995 he had lied in saying that he was at home in bed at the time of a robbery which he had in fact carried out). In July 1994 he acquired an imitation firearm, a replica black Webley 2.2 air pistol, with which he committed robberies with Leroy Grant at Netto, Aldi, and, in November 1994, Kwik Save in Wilmslow Road. On that last occasion they were chased from the scene before carrying out the robbery, and he threw the imitation firearm into some bushes by the railway track. When he went back he could not find it. Grant then purchased a silver imitation firearm and they used that on some robberies. Grant was arrested on a robbery at the Late Shop in Cheadle. The appellant escaped but was arrested the next day, 19 February 1995. He had stopped doing early morning robberies because the main safe was not available at that time, and had changed to evening robberies.

[53]He was not at Kwik Save on Burton Road on 3 February and had nothing to do with the murder of David Beesley. At the relevant time he was in bed with his girlfriend Jan Sultan at 403 Wilbraham Road. At about 7.20am Farrah, Jan’s daughter, who was doing work experience, banged on the door wanting him to give her a lift to work. At 8.15am or 8.20am she came back and he got up and took her to work. Then Leroy came round and told him about the murder at Kwik Save. Leroy went to look but the appellant stayed at home, having taken Farrah to work, and played on the computer. He had not seen Jan Sultan for some time. She would not be giving evidence because the police had harassed her so much that she had broken under the strain. The appellant had tried to obtain Farrah’s attendance, and wished to have her arrested and brought to court.

[54]As regards Andrea Sinclair’s evidence, the appellant remembered her saying that she had seen something on the wardrobe that looked like the butt of a gun. He had told her that he did not have a gun, and that it was a bug detector.

[55]As regards his conversations with Leroy Grant, the Kwik Save murder was a matter of intense local interest, with a good deal of coverage in the press, television and radio, and everyone was talking about it. The sort of people he knew were giving opinions and trying to work out what might have happened, and that was what he and Leroy were doing. They were talking about something of which they had no first hand knowledge, and in fact some of the things the appellant said in these conversations did not fit in with what was established to have happened. For example as regards the talk of milk and the milkman, Mr Metcalfe of Kwik Save said that the only milk delivery was the bulk delivery at 9 to 9.30am. As regards the talk of Mr Beesley standing against the wall, the evidence was that he was standing more or less in the middle of the room, facing the entrance door, when he was shot, and that his fingerprints on the wall were consistent with his known practice of steadying himself while adjusting the CCTV monitor.

[56]As regards the conversations between him and Leroy Grant on 22 February, Grant had been approached on behalf of Mike Boreman to go on a job, but had declined. In discussing it the appellant and Grant thought that Boreman might have been responsible for the Kwik Save matter, and the appellant wanted to make a deal with the police about bail. He agreed that he had driven past Kwik Save, but he had not watched the morning routine there and was simply speculating, and trying to build up a picture of what must have happened. He was inventing things. His references to what happened when the manager was shot were made up from what he had read in the newspaper, and what he knew from other robberies.

[57]The reference to the manager’s being put against the wall, in the conversation on 8 March, was something that Grant had told him, Grant having been told it by one Junior Stanley who worked at Kwik Save. Junior Stanley, whom the appellant had known for years, had reason to lie. (Junior Stanley gave evidence that he worked at a different branch of Kwik Save, did not know the appellant, and had no such conversation.) In the later conversation on 10 March the appellant was reminding Grant that he had told him this. The remark about looking for a gun related to the black replica gun he had thrown away on the November 1994 robbery.

[58]The appellant also spoke about his conversations with Jan Sultan which were recorded. The reference on 9 March to hiding a car, related to Grant’s car which had been used on a robbery. On 12 March he was explaining to her that he and Grant were going on identification parades. The police had been putting great pressure on Jan to say that the appellant was not at home at the time of the murder, and in fact the pressure was such that she eventually said that she could not remember, and accordingly would not be called to give evidence. On 18 March, his saying “… I didn’t want us to take him out” referred to the fact that Jan had caught Leroy Grant cheating the appellant.

[59]It was at Hirrell’s, not the appellant’s, request that they shared a cell in Strangeways, and it was Hirrell who continually raised the question of the Kwik Save murder. For three months he persisted in trying to make the appellant admit that he had done it and that the black gun was used, but the appellant never admitted anything. He had not been present at the Kwik Save murder and Hirrell was lying. Hirrell kept asking about the type of gun the appellant used in his robberies, and he told him that it was an imitation black one, and was in a safe place and that no-one would find it before he did. Hirrell wanted to know what it was like, and drew pictures, and the appellant told him that it was similar to one of them. Hirrell would tell the appellant things and two days later tell him that he, the appellant, had said them. The recording on 28 June showed that he did not answer Hirrell’s questions or adopt all that he said, but simply pursued his own course in the conversation. He said that he would tell him a story later, not because he had a secret but because Hirrell was pestering him so much that he wanted to keep him quiet. The defence called evidence from Alan Campbell, who said that he was in Strangeways from 24 April until 3 October, and used to play pool with Hirrell. One lunchtime Hirrell said:

“I am out of here…soon. I am working my ticket… I am fitting somebody up… It’s this black cunt I am in a cell with. I am told he’s probably done it anyway.”

Campbell said that he had come forward because he saw a newspaper article about Hirrell the supergrass, so faxed the court. In cross-examination he agreed that he had made a mistake about his dates, and did not go to Strangeways until 27 June. (Hirrell left on 3 July.) Hirrell totally denied this conversation. (58A-59B)

[60]As regards his police interviews the appellant said that the police had absolutely no evidence against him, so had used people to set him up. He had answered “no comment” on the advice of his lawyer. There were very long transcripts of hours of conversations with Grant and Hirrell, and a very long statement by Hirrell. He was not given the chance to read these, and instead the police selected parts to quote at him. He could not be expected to deal with conversations that had taken place months earlier when they were presented to him in that way.

[61]We turn to the grounds of appeal.

The ground of appeal referred by the CCRC

[62]This ground relates to the direction which the judge gave the jury as to the drawing by them of inferences adverse to the appellant from the appellant’s failure to mention when interviewed by the police matters upon which he relied as part of his defence in court and which he had himself mentioned in his evidence.

[63]The appellant had been interviewed by the police on occasions during the months of February, March, June and July 1995 and on each occasion he made no comment to all questions asked of him. On 10th April 1995 section 34 Criminal Justice and Public Order Act 1994 came into force. That section provides (as far as is relevant):

“1. Where, in any proceedings against a person for an offence, evidence is given that the accused – (a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings … being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned … subsection (2) below applies. 2. Where this subsection applies – (a)… (b)… (c)… (d)the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. ” (a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings … being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned … subsection (2) below applies. (a)… (b)… (c)… (d)the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. ”

[64]The section was, therefore, relevant to interviews held with the appellant on 28th June, 29th June and 26th July 1995 and formed the basis of one of the proposed grounds of appeal argued on a renewed application for leave to appeal against conviction before the full court on 18th January 1999 by Mr Spencer QC who had led for the defence at trial. Mr Spencer's submission in relation to the first two of these interviews was that they were not intended to discover by whom the offence had been committed but rather to unnerve the appellant prior to his being questioned by Hirrell. Rose LJ, Vice-President of the Court of Appeal Criminal Division, refusing leave and giving the judgment of the court dealt with this proposed ground as follows:

“By way of makeweight, and we do not use that word disrespectfully, but because Mr Spencer himself put grounds 1 and 2 in the forefront of his argument and accepted that, if he did not succeed in those, there was nothing in the other grounds of appeal which might produce a more favourable result to the applicant, Mr Spencer referred to grounds 3 and 8. Ground 3 is critical of the judge’s direction in relation to the interviews of 28th and 29th June. The evidence was that the police strategy was, by their interview, to “spook” the applicant into a state of garrulousness when he returned to prison, where he subsequently had a conversation with Hirrell. The jury, submits Mr Spencer, ought to have been directed not to hold the applicant’s failure to answer questions, in the course of that interview, against him. We do not agree. In our judgment the direction which the learned judge gave under s.34 was entirely appropriate to the circumstances of this case.”

[65]It was not submitted before us that the trial judge’s direction on silence at interview did not accord with the then current Judicial Studies Board (JSB) specimen direction. However, the law on this topic and consequently the JSB specimen direction have both been refined and developed since the trial and as this court must now consider the judge’s direction against the present state of the law and the direction presently appropriate. Mr Davies submits that there are six respects in which the judges direction to the jury was inadequate, none of which were argued before or considered by the full court in January 1999.

[66]Mr Shorrock QC concedes that the judge’s direction does not follow the current JSB specimen direction but argues that when looked at as a whole the judge’s direction does not depart in any material respect from the current guidance and that any deficiencies identified do not make the appellant’s trial unfair or render his conviction unsafe.

Criticism 1 – terms of caution

The judge directed the jury (summing up page 62C to E) as follows:

“Mr Allan had been told in the early interviews that he was not obliged to say anything. He chose to answer no comment on advice and you have been told that you cannot, quite right, draw any inference from that. That was his right. As you heard on 10th April 1995 in the middle of all these events the law changed, and Mr Allan was interviewed further on 28th June, 29th June and 26th July.”

[68]The present JSB specimen direction reads:

“Before his interviews the defendant was cautioned. He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied upon in court; and that anything he did say might be given in evidence.”

[69]The judge did not remind the jury of the terms of the post 10th April 1995 caution and did not tell the jury that the appellant retained the right to silence, the change in the law being that they the jury could in appropriate circumstances draw an adverse inference from the exercise of that right. Mr Davies argues that the jury may have been left with the impression from the words used by the judge that the appellant’s refusal to answer questions in the June and July interviews was itself incriminating as the appellant no longer had a right to silence. Mr Shorrock, however, points out that the jury had before them summaries of the post April 1995 no comment interviews which set out the words of the new caution and the judge reminded the jury later in the direction that the appellant was interviewed under caution on these later occasions. The jury, the respondent submits, could have been left in no doubt about the terms or effect of the new caution.

[70]A full explanation of the caution is an important starting point for a direction on inferences from silence and in the particular circumstances of this case where the new caution came into use during the course of a series of interviews, it would have been desirable for the old and new cautions to have been fully set out for the jury in the summing up and their respective effects contrasted and explained. However, in the light of the written material before the jury we are unpersuaded that had this criticism stood alone it would have raised doubts about the safety of the appellant’s conviction.

Criticism 2 – identification of facts

[71]The judge during the summing up reminded the jury of passages from the covertly recorded cell conversations and the questions put by the police to the defendant about those passages in interview to all of which the appellant made no comment. As part of the section 34 direction the judge further referred to the interview of 28th June which lasted about 3 hours and which concentrated on the cell conversations of February and the interview of 26th July during which the police asked the appellant detailed questions about the content of Hirrell’s fifty-nine page witness statement which contained details of what Hirrell claimed the appellant had said to him. We note, although the judge made no mention of this in his summing up, that in each interview the appellant was asked about his whereabouts at the time of the murder and to these as to all other questions he maintained a “no comment” response.

The judge then continued:

“The defendant, ladies and gentlemen, has given evidence about the cell conversations with Grant and the visits from Jan Sultan and also about Hirrell and the allegations that Hirrell makes about what Allan said to him. You have heard and I have just indicated to you that Allan was questioned under caution in June and July about those matters, and the prosecution say he could reasonably have been expected to mention then matters that he now relies on and has given in evidence by way of explanation. Ladies and gentlemen, if you are sure that he did fail to mention any fact when he was questioned on those dates in June and July decide whether it was a fact which he could reasonably have been expected to mention then.”

[73]Save for the reference to “matters that he now relies on and has given in evidence by way of explanation” the judge did not further identify the facts which the jury was being asked to consider were relied on in evidence, which had not been mentioned in interview and which justified the drawing of an adverse inference. The relevant part of the 1998 version of the JSB specimen direction reads:

“If you are sure that he did fail to mention … when he was questioned, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention.”

[74]This clearly indicates the need for the judge to identify the facts relied upon. This court confirmed that to be the case in R v Reader unreported April 7th 1998 and R v Gill [2000] 1CAR 11. The current version of the direction is even more specific. It reads:

“As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies …).”

[75]We acknowledge that the judge referred to the appellant’s evidence of “explanations” but in this case where the questions in interview and the “explanations” covered many different conversations and events, we consider that a more detailed approach to the identification of the relevant facts was required. The need for such an approach is increased in this case when one considers the appellant’s alibi which was central to his defence. Having made no comment to questions in interview relating to his whereabouts at the time of the murder the appellant gave evidence of an alibi. In normal circumstances the alibi would be a fact such that failure to mention which might justify the jury drawing an inference adverse to the appellant. In this case however the appellant had disclosed his alibi in an informal conversation with police officers as early as 20th February 1995 and the judge reminded the jury of this at an early stage of his summing up (page 21 A-E). In the context of the s.34 direction there was no specific mention of alibi; the jury were not directed to exclude it from their considerations relating to adverse inferences nor were they given specific guidance as to whether or not failure to mention the alibi in the interviews of June and July was a matter which might justify the making of an adverse inference. Criticisms 3 and 4 – the nature of the adverse inference and the circumstances in which itshould be drawn

The judge directed the jury that if they were sure:

“that he did fail to mention any fact when he was questioned on those dates in June and July, decide whether it was a fact which he could reasonably have been expected to mention then. If it was, the law is that you may draw such inferences as appear proper from his failure to mention the matter at the time. Failure to mention such a fact cannot on its own prove guilt, but depending on the circumstances you may hold it against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecutions case. You are not bound to do so. It is for you to decide whether it is fair to do so.”

[77]In this passage the judge faithfully followed the then current JSB specimen direction. However a note to the direction reads:

“ The difficulties caused by [s.34] are discussed in R and Condron and Condron [1997] CLR 215 and R v Argent [1997] CLR 346. In these cases the Court of Appeal gave important general guidance on the drawing of inferences under this section.”

[78]These cases were decided in this court on 17th October 1996 and 16th December 1996 respectively.

[79]In Condron and Condron (Stuart-Smith LJ, Mantell and Moses JJ) the court gave general approval to the JSB specimen direction but concluded that it was desirable that a direction under s.34 should contain a direction on the lines of that given under s.35 and approved by the court in Cowan [1996] 1CAR 1, namely, that if despite any evidence relied upon to explain a defendant's silence in interview or in the absence of any such evidence, the jury conclude that silence can only sensibly be attributed to the defendant’s having no answer or none which will stand up to scrutiny, they may draw an adverse inference.

[80]In R v Samuel (David) unreported, May 12th 1997 Stuart-Smith LJ confirmed the effect of the decision in Condron and Condron as being that:

“The jury should be satisfied that the only explanation for failure to mention important facts in interview which was subsequently to be relied upon in evidence is that the evidence is a recent fabrication, and if the only sensible explanation of the failure to mention it is that it is a recent fabrication then the jury can properly draw the inference against the accused.”

[81]Although recent fabrication is the most common inference to be drawn under section 34, later cases, e.g. R v Daniel

[1998] CLR 818

and R v Beckles and Montague [1999] Crim LR 148 have made it clear that it is not the only permissible inference under the section.

[82]The current JSB specimen direction sets out a refined and fuller version of the direction:

“This failure [to mention facts relied upon in court] may count against [the defendant]. This is because you may draw the conclusion from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution's case/(here refer to any other reasonable inferences contended for)]. If you do draw that conclusion you must not convict him wholly or mainly on the strength of it; but you may take it into account as some additional support for the prosecution's case and when deciding whether his [evidence/case] about these facts is true. However you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things; first, when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny; third, that apart from his failure to mention those facts the prosecution's case against him is so strong that it clearly calls for an answer by him.”

[83]Mr Davies criticises the fact that the judge did not define for the jury the adverse inference which they were being asked to draw or tell them of the circumstances of which they had to be sure before they would be entitled to draw the adverse inference. The respondent, while conceding that the judge did not direct the jury in the terms of the present JSB direction contend that the judge set out for the jury’s consideration the reasons put forward by the defence at trial why the jury should not draw an inference adverse to the defendant. In this way, it is submitted, the appellant had the benefit of the protection of the relevant part of the present specimen direction.

[84]There is, however, a significant difference between setting out for the jury the defence arguments as to why an adverse inference should not be drawn and setting out those matters of which the jury have to be sure before they draw the adverse inference. Moreover, not only does this aspect of the direction not comply with the present day specimen direction it does not in our judgment reflect the guidance given by this court in Condron and Condron.

Criticism 5 – need for a prima facie case

[85]Mr Davies further draws attention to the fact that the judge’s direction did not require the jury to be satisfied that apart from the defendant’s failure to mention the relevant facts in interview, the prosecution’s case against the respondent was so strong that it called for an answer from him. The judge told the jury in the passage which we have set out above that failure to mention such a fact could not on its own prove guilt but depending on the circumstances they could hold it against him when deciding whether or not he was guilty.

[86]Although this court in R v Doldur [2000] Crim LR 178 questioned whether s.34 required a judge to direct a jury to find a case for the defendant to meet before drawing an adverse inference the weight of judicial authority does require that the jury find a prima facie case and the present JSB specimen direction includes such a requirement. Mr Shorrock points out that in this case the evidence before the jury clearly did constitute a prima facie case and no submission was made on behalf of the appellant at trial that there was no case for him to answer.

[87]Assuming for present purposes that there must exist against a defendant a prima facie case before a jury can draw an adverse inference the absence of a direction in this case which required the jury to find a prima facie case, in our judgment, would not on its own cast any doubt upon the safety of this conviction.

Criticism 6 – silence on legal advice

[88]The appellant gave evidence before the jury that he had refused to answer questions in interview on the advice of his solicitor. The judge referred to this during his s.34 direction. Having told the jury that it was for them to decide whether it was fair to hold the appellant’s silence in interview against him, he said:

“The defence say it would be unfair to draw any inference against him at all. They say there were long transcripts of hours of conversation, whether it was with Grant or Hirrell. Officers, say the defence, were selectively quoting bits at Allan. How, they asked, could he deal fairly with conversations which had taken place months before when they were put to him in that way, and the defence suggest it is perfectly understandable that on advice he should decline comment, and they say therefore you should not draw any inference, and really the same argument is advanced to you in respect of the questions that he was asked about that long statement that was put to him of Hirrell’s, with never a chance to read it and passages being selected from it. Well, ladies and gentlemen, again that is a matter for you to decide in the light of the directions that I have given you.”

[89]The then current JSB specimen direction contained no specific reference to the situation where a defendant remains silent in interview on legal advice. It did, however, suggest that where the defence argued on the basis of evidence before the jury that no adverse inference be drawn, a direction along the following lines should be included:

“There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this. That evidence is […]. If you think that this amounts to a reason why you should not hold the defendants failure against him, do not do so. On the other hand, if you are sure that the real reason for his failure (to mention this fact) was that he then had no innocent explanation to offer, you may hold it against him.”

[90]However the court in Condron and Condron and Argent referred to in the note to the specimen direction and which we have referred to above did address the situation where silence was maintained on legal advice. In Argent the defendant had given evidence that he had remained silent in interview on the advice of his solicitor. The trial

judge directed the jury:

“He has told you why he chose to be silent. That was the advice which he received at the time from his solicitor. You will consider whether or not he is able to decide by himself what he should do or whether having asked a solicitor to advise him he would not challenge that advice.”

[91]In approving that direction as a model of succinctness and comprehensiveness Lord Bingham, Chief Justice, said:

“The jury is not concerned with the correctness of the solicitor’s advice nor whether it complies with the Law Society’s guidelines, but with the reasonableness of the appellant’s conduct in all the circumstances which the jury have found to exist. One of those circumstances, and a very relevant one, is the advice given to a defendant. There is no reason to doubt that the advice given to the appellant is a matter for the jury to consider.”

[92]In R v Betts and Hall

[2001] 2 Cr App R 257

, the court were of the view that: “the jury may have failed to appreciate on the directions given that they could only draw inferences against the appellants if they were sure that their failure to mention facts was not merely a result of the advice, however adequate or inadequate that advice might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation”.

[93]Following this decision the JSB specimen direction was amended to include the following passage:

“The defendant has given evidence that he did not answer questions on the advice of his solicitor/legal representative. If you accept the evidence that he was so advised, this is obviously an important consideration: but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence. Taking into account also (here set out the circumstances relevant to the particular case, which may include the age of the defendant, the nature and/or reasons for the advice given, and the complexity or otherwise of the facts on which he relied at the trial). Having done so, decide whether the defendant could reasonably have been expected to mention the facts upon which he now relies. If, for example, you considered that he had or may have had an answer to give, but genuinely relied upon the legal advice to remain silent, you should not draw any conclusion against him. But if, for example, you are sure that the defendant had no answer, and merely latched on to the legal advice as a convenient shield behind which to hide you would be entitled to draw a conclusion against him, subject to the direction I have given you.”

[94]Mr Davies submits that the direction given to the jury on this aspect of the section 34 direction falls short of the present day JSB direction and he emphasises the absence of a direction that if the jury thought that the appellant had or may have had answers to give at the time of being interviewed but reasonably relied on legal advice to remain silent then no adverse inference from his failure to mention facts should be drawn by them. Mr Shorrock while conceding the absence of this part of the direction submits that the judge adequately set out for the jury those considerations which arose in this case and which were relied upon by the defence as justification for the jury not drawing an adverse inference.

[95]Whilst we acknowledge that the judge’s direction referred to the defence “suggestion” that it was perfectly understandable that the appellant should decline to comment on advice the jury received no direction as to how they should approach the appellant’s evidence that he had maintained silence on legal advice or any direction such as that approved by the Court of Appeal in Argent.

Conclusion

[96]The written and oral submissions before us proceeded on the basis of an acceptance by both sides that the judge’s direction on silence conformed to the then current JSB specimen direction and the state of refinement of the law as it was at the time of the trial; the comparison that was made was between the direction at trial and the present day JSB specimen direction. However, an examination of the JSB direction current in February 1998 and the authorities referred to in the note to that direction reveals that the direction given in this case did not give the jury the assistance to which on the then recent authorities it was entitled and failed to provide the appellant with the protection which the qualified right to silence should have afforded him. It is never possible to know whether a defendant’s silence played a part in the reasoning of the jury which led to his conviction. It is, therefore, critical that the direction to the jury accurately identifies the matters which the jury must consider and, where appropriate, sets out the competing considerations. In this case we are concerned by the absence of a detailed identification of the facts relied on by the appellant and not mentioned by him in his evidence; by the absence of a sufficient direction as to the nature of the adverse inference and the circumstances in which it might be drawn and by the manner in which the appellant’s evidence that he relied on legal advice was dealt with. A further concern is that the appellant’s failure to mention in the June and July interviews the alibi he mentioned in evidence might have been wrongly regarded by the jury as a fact which justified the drawing of an adverse inference.

[97]In these circumstances, we are unable to say that the appellant’s conviction is safe and on this ground we quash the conviction.

Admissibility of the evidence of Hirrell

[98]The defence submitted that the evidence of Michael Hirrell should not be admitted, relying on sections 76 and 78 of the Police and Criminal Evidence Act, 1984. The judge heard evidence on a voire dire from Mr Hirrell and DCs Styring and Moore, and had seen a large body of material including Hirrell’s witness statement (more than 60 pages), transcripts of tapes of telephone conversations between Hirrell and police officers (just under 400 pages), and transcripts of covert tapes of conversations between Hirrell and the appellant on 28 June.

[99]The judge rejected the arguments based on section 76. That ruling, in effect unsuccessfully challenged in the ECHR (paragraph 48), is not now challenged.

[100]As regards section 78, the defence suggested that the police had in effect used Hirrell as a stooge, in order to circumvent the PACE codes and that the judge ought to exclude the evidence because, in the words of the section, "... having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

[101]In his ruling rejecting the section 78 submissions,

the judge said:

“In considering all the circumstances I am entitled to take into consideration, and I do, the following matters relied on by the Crown. First this was a very serious case involving the murder by shooting of a supermarket manager, an innocent victim, for which the weapon and ammunition has not been found. Second, there had been several robberies of supermarkets in the months before that event, early in the morning at gun point, for three of which it may be noted the defendant was subsequently convicted, Third, when the defendant was arrested in the early hours of the 19th of February, he sought interviews with the police in which he indicated that he had knowledge of the murder. In the cell conversations with Grant he demonstrated detailed knowledge of the relevant events. Four, Hirrell, who had know the defendant for a long time, was arrested for unconnected matters on the 21st of March. He was already a registered informant and though initially placed with Allan at the behest of the police, Allan asked that Hirrell share his cell at Strangeways. Of course the seriousness of a case does not entitle the police to bend, break or ignore the rules, but it does entitle them to explore fully all proper avenues of investigation. The defence suggest that in using Hirrell, the police informant in this case, what they in effect were doing was employing a police stooge to circumvent the PACE codes in a way which was contrary, for example, to remarks made by the court in the case of Regina-v-Christou 1992 volume 95 of the CAR 264. Lord Taylor in that case said at page 271 that it would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the Code and with the effect of circumventing it.”

The judge then cited a number of authorities and continued:

“I note that in those cases the use of a suspect to seek information from another was sanctioned, sometimes in circumstances more extreme than this case. I also bear in mind that secret taping of suspects has been sanctioned in a number of cases, even after charge.”

The judge concluded:

“In my judgment, and taking into account all the circumstances, the use of a police informant in this very serious case to talk and listen to the defendant over a substantial period of time, did not result in any unfairness to the defendant, and I conclude that there is no basis on that ground for excluding the evidence of Hirrell. … Criticism is made by the defence of the fact that apart from the recorded conversations of the 28th and 29th of June, there is no contemporaneous record of the conversations. I have, however, set out at the outset a considerable body of material that is available to enable the defence to test the reliability of Hirrell’s account of the conversations, and I do not consider that that matter provides any basis for excluding the evidence.”

[104]In rejecting the application for permission to appeal based on section 78, Rose LJ said:

“The second ground, which Mr Spencer puts in the forefront of his submissions, is in relation to the judge's admission of the evidence of a man called Hirrell. Mr Spencer submits that he was used by the police officer as a device to obtain admissions, from the applicant, in breach of the Police and Criminal Evidence Act, and the Codes of Conduct made thereunder, and therefore his evidence ought to have been excluded. Hirrell, as the jury knew, was a man with an enormous criminal record. He was, as the jury knew, a police informant. To that and other aspects of what the jury knew, in a moment, we shall return. Mr Spencer, rightly, draws attention to the fact that Hirrell was not sentenced until after he had given evidence in this trial, for offences of what were originally charged as wounding with intent and burglary. When, in due course, he was sentenced he received, particularly in the light of the record, a sentence which could be regarded as 'very modest' indeed. Mr Spencer makes the submission that, because Hirrell was not an accomplice, and because he had not been sentenced until after he gave his evidence, the learned judge ought to have excluded his evidence from the consideration of the jury. Mr Spencer accepts that the evidence was admissible as a matter of law; but the learned judge ought, in the exercise of his discretion under section 78, to have excluded it. He accepts that no application was made, during the course of the applicant's trial, by anyone for Hirrell to be sentenced before he gave evidence. Mr Spencer drew the Court's attention to the decision of the Privy Council in Chan Wai-Keung v R [1995] 2 Cr App R 194, in which in proceedings in Hong Kong, a witness had not been sentenced until after he had given his evidence. In the course of giving the opinion of the Privy Council in that case, Lord Mustill stressed the importance of the potential fallibility of such a witness's evidence being put fairly before the jury. In that case, the court was not referred to the English authorities and expressed, in consequence, no view about them, in relation to the practice of sentencing or not sentencing a witness for the prosecution before he gives evidence, which has undoubtedly changed over the years. It is to be noted that Mr Spencer accepts that the jury in the present case had before them a good deal of material as to the relationship between Hirrell and the police and as to Hirrell and his history. They knew of his record, they knew that he was awaiting sentence, they had a transcript of the conversations made between him and his police handlers. It follows that they knew that, as an informant, he was being handled, in that sense, and they knew that he was, in relation to this applicant and his conversations with this applicant, being controlled to a certain extent by police officers. Indeed, an example is given in the course of the judge's summing-up of the evidence, within the jury's knowledge, of coaching of Hirrell by an officer called Moore, in relation to what he should say to the applicant. There was, further, before the jury, although it is not referred to in the summing-up, documentary evidence of coaching by the other officer who was handling the applicant, showing that he had coached Hirrell in relation to what he should ask the applicant. Albeit that the jury had this material before them, submits Mr Spencer, there was other material which they might conceivably have had to demonstrate further coaching of Hirrell. That submission is based on the fact that, although Hirrell produced his notes of what had transpired, they could not, almost by definition, be regarded as being particularly reliable, and the contact sheets, which were before the jury in relation to the contacts between the handling officers and the applicant, contained no record of conversations between the officers and Hirrell. So, it may be, submits Mr Spencer, that there would have been further material which might have tended to emphasise the illicit role being played by Hirrell at the institution of the police officers. Mr Spencer drew the Court's attention to R v Christou 95 Cr App R 264 and the passage of the judgment of Lord Taylor CJ at 271. It is to be noted that that passage is specifically rehearsed by the learned judge at page 16A of the ruling which he gave. Mr Spencer submits that the judge was misled on the voire dire, by the evidence which Hirrell then gave which, subsequently in evidence before the jury, he changed, as to whether or not, in seeking to pump the applicant, he was acting pursuant to instructions of police officers. On the voire dire, he denied that was the case. In evidence, he admitted that it was so. His admission that it was so appears in the judge's summing-up and there is reference also to the aspect of pumping, at page 14B in the judge's ruling. Mr Spencer submits that, because the judge was misled, this Court should, in light of what Hirrell said in evidence, take a different view as to whether Hirrell's evidence should have been admitted before the jury and that it is arguable that the applicant's conviction should be quashed, on the ground that Hirrell's evidence should not have gone before them. It may be of some significance that, in the course of his able submissions, Mr Spencer never once took us to the ruling of the learned judge. That may be of some significance, because what is sought to be challenged in the first and second grounds, which are said to be arguable, is the exercise of the judge's discretion. Not only are we wholly unpersuaded that it is arguable that the judge in relation to the tapes and Hirrell's evidence exercised his discretion in a flawed way, it is apparent from the very careful and impeccable ruling which he gave that he considered every one of the matters which he ought to have considered and that he did not consider any matter which he ought not to have considered. That being so, in our judgment, it is not possible to argue that he exercised his discretion in so flawed a way that this Court, if leave were granted, could intervene and overturn the exercise of his discretion.”

[105]We turn now to the decision of the ECHR in so far as it touches upon this ground of appeal. (We add for the sake of completeness that the ECHR declared inadmissible as being out of time the complaints relating to the directions on the adverse inferences from silence.)

[106]It is not necessary to rehearse all of the “Facts” as found by the ECHR. The ECHR in paragraphs 13-15 stated:13. On 23 March 1995 H. was brought to Stretford police station. H. was a long-standing police informant with a criminal record who had been arrested on 21 March 1995 for unrelated offences. He was placed in the applicant's cell for the purpose of eliciting information from the applicant. As asserted by the applicant, H. had every incentive to inform on him. Telephone conversations between H. and the police included comments by the police instructing H. to “push him for what you can” and disclosed evidence of concerted police coaching. After 20 April 1995 he associated regularly with the applicant who was remanded at Strangeways Prison.

14. On 28 June 1995 the applicant was taken away from the prison to be interviewed by the police concerning the Kwik-Save robbery. He was attended and advised by his solicitor. During the course of the interview, the applicant was invited to comment on the recordings made in February and March 1995. He made no comment to any question. According to the applicant, he was interrogated at length by the police in an attempt to “rattle” or unsettle him, such that he would be more talkative and vulnerable to H. upon his return to the prison. H. had been fitted with recording devices. The recording thereby obtained was adduced in evidence at the applicant's trial.

15. The applicant was interviewed again in the presence of his solicitor on 29 June and 26 July 1995 and remained silent when faced with the allegations.”

[107]The ECHR summarised the sections 76 and 78 ruling and then quoted a passage from the summing-up, part of which we have already quoted in paragraph 49.

[108]Having referred to the decision of the Court of Appeal Criminal Division refusing permission to appeal, to Home Office Guidelines and various statutory provisions, the ECHR continued:

“III. CASE-LAW FROM OTHER JURISDICTIONS 29. The parties have referred to cases concerning the use of informers to obtain incriminating statements from persons in police custody. A. Canadian cases 30. In R. v. Hebert ([1990] 2 Supreme Court Reports 151), the accused had relied on his right to silence when questioned by the police. He had then been placed in a cell with an undercover police officer to whom he made statements implicating himself in a robbery. The Supreme Court held that the statements of the undercover officer should have been excluded at trial. McLachlin J said, inter alia: ‘The common-law rules related to the right to silence suggest that the scope of the right in the pre-trial period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent ... When the police use subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.’ 31. In R. v. Broyles ([1991] 3 Supreme Court Reports 595), B. was arrested and held for questioning in respect of a suspicious death. He had spoken to a lawyer who had advised him to remain silent. The police arranged for a friend to visit B. in custody while carrying a body-pack recording device. The friend questioned B. about his involvement in the murder and in the words of the Supreme Court “sought to exploit the [accused's] trust in him as a friend to undermine the [accused's] confidence in his lawyer's advice to remain silent and to create a mental state in which the [accused] was more likely to talk”

. The Supreme Court held that it was wrong to admit the evidence obtained by the friend that the accused knew the time of the deceased's death. According to the headnote of the reported case:

‘The right to silence is triggered when the accused is subjected to the coercive powers of the State through his or her detention. The right protects against the use of State power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a State agent, the analysis must focus on both the relationship between the informer and the State and the relationship between the informer and the accused. The right to silence will only be infringed where the informer was acting as an agent of the State at the time the accused made the statement and where it was the informer who caused the accused to make the statement. Accordingly two distinct inquiries are required. First ... was the evidence obtained by an agent of the State? Second, was the evidence elicited? The right to silence ... will be violated only if both questions are answered in the affirmative. Applying the above principles to the facts of this case, it is clear that the informer was an agent of the State for the purposes of the right to silence in section 7 [of the Canadian Charter of Rights and Freedoms]. The conversation here would not have occurred or would have been materially different but for the authorities' intervention. Furthermore, the impugned statement was elicited. Parts of the conversation were functionally the equivalent of an interrogation and the appellant's trust in the informer as a friend was used to undermine the appellant's confidence in his lawyer's advice to remain silent and to create a mental state in which the appellant was more likely to talk.’ 32. In R. v. Liew ([1999] 3 Supreme Court Reports 227), the accused was arrested in connection with a cocaine deal and the police also pretended to arrest the undercover officer who negotiated the transaction. They were placed together in an interview room where the accused initiated a conversation referring to the arrest. The undercover officer asked the accused: ‘What happened?’, and stated: ‘Yeah. They got my fingerprints on the dope.’

The accused replied: ‘Lee and me too.’ The Supreme Court found nothing to suggest that the exchange was the functional equivalent of an interrogation. It was of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified or lied, so long as the responses were not actively elicited or the result of interrogation. In this case the conversation had been initiated by the accused and the police officer picked up the flow and content of the conversation without directing or redirecting it in a sensitive area. Nor was there any relationship of trust between the accused and the officer or any appearance that the accused was obligated or vulnerable to the officer. B. Australian cases 33. In R. v. Swaffield and Pavic ([1998] High Court of Australia 1), the accused Swaffield was one of the targets of an undercover operation aimed at identifying drug suppliers and also suspected of arson. An undercover officer held a conversation with the accused pretending that his own brother-in-law was suspected of arson and the accused made admissions of his own involvement in a fire. The High Court of Australia found that the admissions should not have been admitted at trial as they had been elicited by a police officer in clear breach of the accused's right to choose whether or not to speak. The accused Pavic had been questioned by the police about a disappeared person and remained silent. After his release from custody, Pavic made incriminatory statements to a friend called C., who had been fitted with a listening device by the police. The High Court found that there was no impropriety involved and the admissions were reliable and should be admitted. C. had not been a police officer or a person in authority over Pavic. The fact that C. was regarded as trustworthy by Pavic was an indicator of the reliability of the admissions; a serious crime had been committed and there was no public interest to be served by rejecting the admissions. Kirby J stated: ‘Subterfuge, ruses and tricks may be lawfully employed by the police, acting in the public interest. ... The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.’

[109]As to the privilege against self-incrimination in Convention law, the ECHR said:

“44. As regards the privilege against self-incrimination or the right to silence, the Court has reiterated that these are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, p. 49, § 45). The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seeks to prove the case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, p. 2064, §§ 68-69). In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court will examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (see, for example, Heaney and McGuinness v. Ireland, no. 34720/97, §§ 54-55, ECHR 2000-XII, and J.B. v. Switzerland, no. 31827/96, ECHR 2001-III).”

[110]The Court turned later in its judgment to the issues raised by the ground of appeal which we are now considering:

“49. The applicant's second ground of objection, concerning the way in which the informer H. was used by the police to obtain evidence, including taped conversations with the applicant, a written statement and oral testimony about other allegedly incriminating conversations, raises more complex issues. 50. While the right to silence and the privilege against self- incrimination are primarily designed to protect against improper compulsion by the authorities and the obtaining of evidence through methods of coercion or oppression in defiance of the will of the accused, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused has been directly overborne in some way. The right, which the Court has previously observed is at the heart of the notion of a fair procedure, serves in principle to protect the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police. Such freedom of choice is effectively undermined in a case in which, the suspect having elected to remain silent during questioning, the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain during such questioning and where the confessions or statements thereby obtained are adduced in evidence at trial. 51. Whether the right to silence is undermined to such an extent as to give rise to a violation of Article 6 of the Convention depends on all the circumstances of the individual case. In this regard, however, some guidance may be found in the decisions of the Supreme Court of Canada, referred to in paragraphs 30-32 above, in which the right to silence, in circumstances which bore some similarity to those in the present case, was examined in the context of section 7 of the Canadian Charter of Rights and Freedoms. There, the Canadian Supreme Court expressed the view that, where the informer who allegedly acted to subvert the right to silence of the accused was not obviously a State agent, the analysis should focus on both the relationship between the informer and the State and the relationship between the informer and the accused: the right to silence would only be infringed where the informer was acting as an agent of the State at the time the accused made the statement and where it was the informer who caused the accused to make the statement. Whether an informer was to be regarded as a State agent depended on whether the exchange between the accused and the informer would have taken place, and in the form and manner in which it did, but for the intervention of the authorities. Whether the evidence in question was to be regarded as having been elicited by the informer depended on whether the conversation between him and the accused was the functional equivalent of an interrogation, as well as on the nature of the relationship between the informer and the accused. 52. In the present case, the Court notes that in his interviews with the police following his arrest the applicant had, on the advice of his solicitor, consistently availed himself of his right to silence. H., who was a long-standing police informer, was placed in the applicant's cell in Stretford police station and later at the same prison for the specific purpose of eliciting from the applicant information implicating him in the offences of which he was suspected. The evidence adduced at the applicant's trial showed that the police had coached H. and instructed him to “push him for what you can”

. In contrast to the position in Khan, the admissions allegedly made by the applicant to H., and which formed the main or decisive evidence against him at trial, were not spontaneous and unprompted statements volunteered by the applicant, but were induced by the persistent questioning of H., who, at the instance of the police, channeled their conversations into discussions of the murder in circumstances which can be regarded as the functional equivalent of interrogation, without any of the safeguards which would attach to a formal police interview, including the attendance of a solicitor and the issuing of the usual caution. While it is true that there was no special relationship between the applicant and H. and that no factors of direct coercion have been identified, the Court considers that the applicant would have been subjected to psychological pressures which impinged on the ‘voluntariness’ of the disclosures allegedly made by the applicant to H.: he was a suspect in a murder case, in detention and under direct pressure from the police in interrogations about the murder, and would have been susceptible to persuasion to take H., with whom he shared a cell for some weeks, into his confidence. In those circumstances, the information gained by the use of H. in this way may be regarded as having been obtained in defiance of the will of the applicant and its use at trial impinged on the applicant's right to silence and privilege against self-incrimination. Accordingly, in this respect there has been a violation of Article 6 § 1 of the Convention.”

[111]Under the heading “Damage”, the Court concluded:

“As regards the finding of a violation of Article 6 § 1 of the Convention in regard to the use of the informer H. and his evidence at trial, it finds it inappropriate to speculate as to the outcome of the trial in other circumstances and considers that a finding of a violation constitutes just satisfaction in that respect.”

[112]Mr Shorrock submits that the decision of the ECHR is irrelevant relying on the well known proposition that a defendant convicted before 2 October 2000 cannot rely upon breaches of Convention rights referred to in section 1(1) of the HumanRights Act 1998 in an appeal heard after that date (R v Lyons and others

[2002] UKHL 44

). We do not agree.

[113]The ECHR decided that the use of Hirrell to obtain admissions impinged on the applicant's right to silence and his privilege against self-incrimination because Hirrell was an agent of the state and because what he did was the functional equivalent of interrogation. Neither of those factual conclusions have been challenged by Mr Shorrock, nor could they have been challenged on the totality of the evidence before the trial judge in so far as all or most of the alleged admissions upon which the prosecution relied. As the Commonwealth cases cited by the ECHR show, the right to silence and the privilege against self- incrimination are part of the common law. This is not a case, as was Lyons, where the legislature has made inroads into the right to remain silent. The ECHR relied upon common law authorities for its conclusion and Mr Shorrock did not submit that those authorities did not accurately reflect the common law. The fact that the ECHR expressed its conclusions in terms of Article 6 does not mean that the decision is not relevant to this appeal and it does not necessarily follow that section 2 of the Act does not apply. Section 2 reads: 2. - (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any- (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, … whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”

[114]Mr Shorrock draws our attention to the following passage in the judgment of this Court in R v Mills (No2)

[2003] EWCA Crim 1753

: “ 56. … However, once the matter is referred [by the CCRC], the appeal is not confined to the Commission’s reasons for the referral. It may be on any ground; section 14(5) of the 1995 Act. That may consist of or include a ground that has already been aired in a previous appellate hearing in the matter. But normally the proper exercise of the Court’s discretion under section 14(5) involving departure from its previous reasoning should equally be confined to exceptional circumstances; R v. Ian Thomas

[2002] EWCA Crim 941

; and R v. Wallace Duncan Smith

[2002] EWCA Crim 941

.57. Exceptional circumstances may exist where, for example, there was some cogent argument advanced, but not properly developed at the previous appellate hearing, but which as now developed could persuade the Court that the conviction was unsafe (cf. R v. Chard (1984) 78 Cr. App. R. per Lord Diplock at 113, under the former procedure of reference by the Home Secretary, which, though referring to the development of an argument not previously advanced, had much the same principle in mind). Other examples, as the Court observed in Thomas, at paragraph 74, may be where there has been a development of the law requiring the adoption of a different approach by the Court to the issue before it, or where there has arisen some tension between overlapping principles such as that between the statutory criterion for safety of a conviction and the ECHR concept of a fair trial. As the Court said: ‘…the exceptional circumstances, whatever they are, would have to be such as would convince the Court that if the matter had been arguable and argued in that way before the previous Court, it would – not might – have quashed the conviction. The Court should in any such cases be very slow to differ from its previous judgment.’

58. This approach, it seems to us, is consistent with the reasoning in Pendleton of Lord Bingham, at paragraph 19, and Lord Hope at paragraph 33, of the need of the Court itself to be sure of the safety of the conviction, as distinct from sureness of guilt or that, if such circumstances had been before the jury, it would still have convicted. See also per Lord Hobhouse in Pendleton at paragraph 36 and R v. Maloney

[2003] EWCA Crim 1373

, at para. 45.” ‘…the exceptional circumstances, whatever they are, would have to be such as would convince the Court that if the matter had been arguable and argued in that way before the previous Court, it would – not might – have quashed the conviction. The Court should in any such cases be very slow to differ from its previous judgment.’

[115]Mr Shorrock submits that that there are no exceptional circumstances and that no new argument has been developed before this Court not developed before the Court of Appeal when it refused permission. We do not agree. The fact of the decision of the ECHR is, in this case, an exceptional circumstance. Neither before the trial judge nor before the Court of Appeal were the arguments developed as they were before the ECHR and before us, albeit that it is right to say that in Mr Spencer’s written skeleton submissions to the trial judge (but not in the grounds of appeal) there is a passage in which reference is made to “the right against self- incrimination”. Although Mr Spencer argued before the trial judge that Hirrell was a “police stooge” and that there had been “coaching and pumping” (more down to earth ways of describing, respectively, an agent of the state and the functional equivalent of interrogation), the trial judge did not find one way or the other.

[116]Mr Shorrock submits that the decision made by the trial judge was one, as the Court of Appeal found, which he was entitled to reach applying section 78 and that this Court should therefore dismiss this ground of appeal. We disagree.

[117]In our view the ECHR correctly analysed the case and given the undisputed factual conclusions that Hirrell was an agent of the state and was carrying out the functional equivalent of an interrogation after the appellant had exercised his right of silence, the evidence of Hirrell was largely if not wholly inadmissible. We say “largely” because, if the evidence had been analysed in the way in which it should have been analysed, it may be that some of the earlier admissions were properly admissible.

[118]The approach taken by the ECHR and our adoption of it finds strong support in a passage in Lord Taylor CJ’s judgment in R v. Christou

[1992] 95 Cr App R 264

, at 271, cited both to the trial

judge and to the Court of Appeal in this case:

“It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the code and with the effect of circumventing it.”

[119]Further support can also be found in the cases of R v Payne

(1963) 47 Cr App R 122

and R v Mason

(1988) 86 Cr App R 349

, both discussed in Christou and the former discussed by Lord Diplock in R. v. Sang/

(1979) 69 Cr.App.R. 282

, [1980] A.C. 402 in which (at page 289) he said that the judgment of the Court of Appeal was clearly based on the maxim “nemo debet prodere se ipsum”

[120]We were referred by both counsel to R v Roberts

[1997] 1 Cr App R 217

. The Court in that case cast doubt on the proposition that there is a “hard and fast distinction” between mere eavesdropping and “the deliberate introduction of a person into the presence of the suspect in order to obtain admissions” (pages 226 and 231), relying, in part, upon R v Jelen and Katz

(1990) 90 Cr App R 456

. As Mr Davies points out, in Roberts the trial judge made a number of what the Court of Appeal described as “critical findings of fact”, including the findings that the person who received the admission was not a police agent or police stooge and he had been given no instructions what to ask. Both the trial judge and the Court of Appeal also attached importance to the fact that “no deal had been done” with the person who received the admission. We are not sure how relevant that is (other than in deciding whether the person who received the admission was a police agent). If it is relevant, then that would impinge on the third ground of appeal which we consider below.

[121]In Jelen and Katz, importantly as the Court said, “the police were at an early stage of their enquiry” and the defendant “had not yet even been interviewed” when a witness who had been questioned by the police acceded to a request by them to record a conversation with Jelen without the latter’s knowledge. The trial judge’s ruling that the recorded conversation was admissible was upheld on appeal. Whether the fact that the suspect has not yet been interviewed is important may be debateable in the light of the decision of the ECHR in Allan,. The Court in Allan did “note” “that in his interviews with the police following his arrest the applicant had, on the advice of his solicitor, consistently availed himself of his right to silence”.

[122]It would be strange if the law were otherwise than as decided by the ECHR. One of the functions of the caution is to make it clear that what a suspect says may be used in evidence. The presence of a solicitor or friend should additionally ensure that the suspect understands the questions, knows the importance of his answers and the seriousness of the occasion. The requirements of audio recordings introduced to overcome problems associated with actual (or unfounded allegations of) “verballing” by police officers now ensure an accurate record of questions and answers. Audio recordings have done much also to overcome problems associated with actual “inducements” (or unfounded allegations that inducements were made). (See R v Keenan

(1990) 90 Cr App R 1

, at 7) Allowing an agent of the state to interrogate a suspect in the circumstances of this case bypasses the many necessary protections developed over the last twenty years.

[123]This ground succeeds and the conviction is also therefore not safe.

Non-disclosure of conversations about the reward of £30,000

[124]In the light of our conclusions on the first two grounds it is not necessary for us to consider this ground in great detail.

[125]As we have seen, Penry-Davey J in summing up to the jury said of Hirrell:

“He saw the likelihood of advantage to himself, both in terms of bail and in the sentence that he was likely to receive.”

[126]No reference was made by the judge to the possibility of the reward influencing his account of what the appellant had said. This reflects the way in which the case developed and was presented by Mr Spencer. Although the matter of the reward was raised on the voire-dire (to which we turn below), it does not appear to have featured in Mr Spencer’s cross-examination of Hirrell.

[127]There was no mention of the reward or of any discussions about the reward between Hirrell and his handlers in any of their statements served on the defence (as we understand it). During the voire-dire Mr Spencer established that on 22 March, Hirrell, under arrest for burglary and on bail for wounding with intent, was visited at the Central Detention Unit by his handlers and a conversation took place, following which on the next day he was deliberately moved to Stretford Police Station. He established that at Stretford police station there was a further discussion before (at least so it appears) he began to act as an informant against the appellant. All of that should have been disclosed in the form of statements and not left for Mr Spencer to “extract” during the voire dire.

[128]He established that there was no record made of what was said between Hirrell and his handlers at the Central Detention Unit and what was said when they saw him at Stretford following his arrival there. In our view a record ought to have been made, preferably an audio record. What was discussed by the three of them at this stage could have been important on the issue of the admissibility of Hirrell’s evidence.

[129]The officers and Hirrell gave important (albeit contradictory) evidence about Hirrell’s instructions. Those instructions should have been recorded. Hirrell maintained that the move to Stretford was a coincidence both during the voire-dire and before the jury (see paragraph 33 above). Given the discussions at the Central Detention Unit and at Stretford it seems unlikely that Hirrell believed this. During the trial he told the jury that he had not realised when placed in the company of Grant and Allan that the police were investigating the murder (page 6). The truth or otherwise of that could have been confirmed if a record had been kept.

[130]In his deposition Hirrell was asked about the reward. He said (662M):

“I am aware that there is a reward in this case, but that has never entered my head, I am aware of how much it is, it is £30,000. It is a primary matter to me that I would get payment in this case”

[131]A little later he said (662P):

“It is a primary matter to my thinking that I will receive something of the reward in this case. It is to my knowledge that it is upon the conviction of the murderer that this reward would be paid”

[132]In re-examination he said about this (662Q):

“When I use primary in “my primary concern”, I am talking about my children being out there and if I am serving a sentence of imprisonment. I am not saying that my primary concern is to get the reward for the welfare of my children …”

[133]In his cross-examination of DC Moore during the voire-dire, Mr Spencer referred to the first passage (apparently when cross-examining about the Hirrell July statement). The officer said that the £30,000 was not “his main concern”. That suggests to us that, at some point at least, DC Moore and Hirrell must have discussed the reward- how else would DC Moore have known that the reward was not Hirrell’s main concern?. Mr Spencer did not follow that up. Instead Mr Spencer, in effect, accepted during the voire-dire that in the forefront of Hirrell’s mind was the fact that he was being kept in custody and that what he wanted most of all was to be released on bail (see transcript of DC Moore’s evidence on the voire-dire at page 49).

[134]In another passage in his evidence on the voire-dire, DC Moore said that nothing had been said or done to slant what Hirrell might say about things he reported having been said by Allan (page 30). Similarly Hirrell said during the voire-dire that he had not been promised anything or had asked for anything (page 15). Before the jury he said that had never been promised anything (page 40).

[135]Before this appeal solicitors for the appellant asked about the reward and were informed that there had been discussions with Hirrell about the reward at the outset. DC Moore then made a statement on 25 May 2004, the first day of the resumed hearing. From contacts with Hirrell whilst at liberty, they became aware that Hirrell knew that a reward was on offer. The statement continues:

“Following his arrest on the 22nd March 1995 and the Police having taken the decision to place Hirrell at Stretford Police Station the matter of a reward was discussed with him by myself and Styring. It was re- iterated to him at Stretford that there was a reward of £30,000. Hirrell maintained that the money was not his first concern but he wished to be granted his liberty to support his daughters who relied upon him for support, their mother having died some years previously. I cannot recall the first occasion that I mentioned to Hirrell regarding the reward but it was at a very early stage whilst at Stretford Police Station. The exact date of any conversations were not recorded by myself, and as stated I had no official requirement to keep any written record. The reward money was a matter of public knowledge and part of the media strategy employed by the investigation team. The Senior investigating officers were aware of the reward having been discussed with Hirrell and most certainly the reward and the possibility of Hirrell receiving it for his assistance was never hidden from the solicitors instructing Allan and was a matter of common knowledge. Had I been asked at the trial of Allan regarding the reward money I would have stated that the reward money was never a major issue and that Hirrell had known about it prior to his arrest and this was re-iterated to him following his arrest. In my opinion Hirrell’s main motivation for his assistance was to be granted his freedom to support and assist his immediate family.”

[136]DC Moore’s answer that the £30,000 was not “his main concern”, which we set out above, raises concerns about this ground. Did Mr Spencer not pursue the point because there had been disclosure of the fact of discussions and because Mr Spencer decided, for tactical reasons, not to follow it up? Assuming (as we shall) that there was no such disclosure then the fact of, and the contents of, the discussions should have been disclosed before trial. It clearly could undermine the prosecution’s case.

[137]According to this statement there were discussions with Hirrell about the reward on more than one occasion albeit at this late stage no details can be given of when precisely those discussions took place and of what was said. What seems clear is that these discussions were early on and it seems likely that they preceded the decision by Hirrell to inform on Allan. Did Hirrell understand what would entitle him to receive a reward? Did he know (as appears to be the case) that he was the only person likely to receive the award? Once again the absence of contemporaneous records is unfortunate.

[138]If Mr Spencer had during the voire-dire probed more than he did about the reward, then he might have discovered that it had been discussed and what was said. Even if Mr Spencer could be criticised for not probing further (and it would seem to us wrong to do so), the obligation to disclose the fact that there had been discussions about the reward remains.

[139]If this information had been disclosed to the defence, as it should have been, we have no doubt that Mr Spencer would have used the information both in the voire- dire and at trial in an attempt to show the importance of the reward in the discussions and would have cross-examined about the various pieces of evidence set out in paragraphs 127 and following. For example, Mr Spencer could have attacked Hirrell’s credibility on the issue of “coincidence” and on the issue whether, as Hirrell said, he had not realised when placed in the company of Grant and Allan that the police were investigating the murder.

[140]It also seems doubtful that the judge would have left the matter to the jury in the manner in which he did (see paragraph 125 above).

[141]Satisfied as we are that disclosure should have been made (and it would have been made if there had been records kept and statements made about what happened at the Central Detention Unit and at Stretford as there should have been) and on the assumption that disclosure was not made, it must be for the prosecution to show that the conviction is nonetheless safe: that is, the disclosure of the evidence would not reasonably have affected the verdict. Mr Shorrock relied, for example, on what was said by Hirrell in his deposition and the manner in which Mr Spencer dealt with the reward on the voire-dire and his failure to cross-examine about the reward in the voire-dire and before the jury. We are not convinced by these arguments. Upon the assumption that no disclosure of the fact that there had been discussions about the reward was made, this ground of appeal would also succeed. Given our conclusions on the other grounds we do not need to cause further enquiries to be made to resolve the issue.

[142]For these reasons, the convictions are quashed.

[143]The Respondent has not sought to appeal this Judgment and does not seek a new trial.

Cited in 1 later judgment

Beckles, R. v 2004