DL v R. [2011] EWCA Crim 1259

[2011] EWCA Crim 1259Case No 201001697 B1IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BRISTOL
His Honour Judge Darwall-Smith
T20087386
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/05/2011
Before
LORD JUSTICE LEVESONMR. JUSTICE OPENSHAWHIS HONOUR JUDGE GOLDSTONE Q.C.(sitting as an additional Judge of the Court of Appeal)
Between
DLAppellantTHE QUEENRespondent
Mr Peter Rouch Q.C. for AppellantMr Rupert Lowe for CrownHearing Hearing dates : 5 May 2011
Judgment
[1]On 1 December 2008, in the Crown Court at Bristol, this appellant pleaded guilty to one count of conspiracy to commit wilful misconduct in public office. On 24 February, after a trial lasting 3 weeks, he was unanimously convicted before His Honour Judge Darwell-Smith and a jury of a further similar offence and, on 25 February, unanimously convicted of concealing criminal property. On 22 March 2010, he was sentenced respectively to terms of 12 months imprisonment, 2 years imprisonment concurrent and 2 years imprisonment consecutive, making four years in all. By limited leave of the full court, he now appeals against his conviction for conspiracy to commit wilful misconduct and seeks to renew his application for leave to appeal the conviction for concealing criminal property. On the basis that there are on-going proceedings, the full court made an order under s. 11 of the Contempt of Court Act 1981 prohibiting publication of the name of the appellant and his co-conspirator (to whom we shall refer as M); we also provide anonymity to others mentioned in the case.[2]The relevant facts can be shortly summarised. The appellant, a retired police officer, was working as a civilian employee in the Investigative Support Unit (“ISU”), which assisted frontline police officers in the investigation of criminal offences. A significant amount of the work was computer based. Over a period of time covert evidence, obtained from the appellant’s office computer and audio recordings from his ISU office, revealed that the appellant had passed confidential police information to two friends, namely, a private investigator (which led to the count of conspiracy to which he pleaded guilty) and a member of the criminal fraternity, M, whom the appellant had known for 30 years.[3]Relevant to the challenged conviction, during 2007, M was provided both with general updates of police activity as well as information on specific cases. Thus, on 28 July, the appellant made computer searches on M, who at the time was in Thailand. Telephone records revealed contact between the two the day before and two days after the search. The searches revealed intelligence that suggested that M was suspected of cannabis dealing. On 20 September the appellant told M about a number of search warrants being executed in parts of South Wales. On 11 October, at M’s request, the appellant had a search made of the Police National Computer (“PNC”) about a vehicle of interest to M and M was informed of the results. On 3 December the appellant and M provided each other with information about a local criminal called S. On 23 December M and his girlfriend, who had both been staying with the appellant, left for Thailand via Heathrow. At M’s request the appellant searched the PNC. The search revealed nothing that might lead to M being stopped at Heathrow. In the event he was stopped but allowed to continue to Thailand after money (£17,100) in his possession was confiscated.[4]On 22 January 2008, the appellant was arrested. A subsequent search of his home address revealed a cool box in the attic. In it were a number of plastic bags containing a total of £200,170 in sterling bank notes: this represented the concealed property. On forensic analysis one of the money bands around some of the bank notes revealed M’s fingerprint. A second fingerprint, found on one of the bank notes, belonged to another individual subsequently charged with drug offences. A later search at the appellant’s office revealed, in his desk drawer, a faxed copy of a letter from M’s solicitor to HMRC seeking the return of the £17,100. The letter had been faxed by the appellant.[5]The system in relation to the management of informants, established by the evidence, can also be summarised. In short, the introduction of a new scheme pursuant to the Regulation of Investigatory Powers Act 2000 required those who handled what are known as covert human intelligence sources (with the acronym ‘CHIS’) to be specifically authorised to do so. Furthermore, such persons also had to be authorised to act as such and could only be tasked to provide information by an authorised handler. Finally, providing an informant with police information was, in any event, in breach of basic source handling rules and was never permitted under any circumstances.[6]Against that background, the prosecution case was that the appellant had never been approved or acted as a specialist informant handler although he had received the relevant training in relation to covert human intelligence sources and so was aware of the rules. His job with the ISU had nothing to do with handling informants or receiving intelligence. Similarly, at all material times, M was not an authorised police informant: for some six years until May 2004, M had been authorised as an intelligence source but his authority was then revoked, with the result that he could not lawfully be tasked to provide information even by a registered handler. Nevertheless, there was an agreement between the appellant and his very good friend, M, the effect of which was that the appellant, whilst acting as a public officer, accessed intelligence databases held by the South Wales Police and deliberately passed on confidential information to M. His actions, which he knew to be wrong, fell far below the standard expected of him as to amount to an abuse of the public’s trust in him.[7]As for the property, the appellant had allowed a large quantity of money belonging to M to be stored in his attic. Evidence from the covert office recordings revealed conversations about “something” the appellant was keeping for M. This could only refer to the money which constituted in whole or part, M’s benefit from criminal conduct which the appellant knew or at least suspected constituted such a benefit.[8]Turning to the defence case, the appellant gave evidence and explained that his actions had to be seen in the context of his long standing cultivation of M as an informant; his association with M went back to the 1980s. M had provided intelligence, sometimes valuable, over the years. On that basis, information which the appellant did not believe was confidential had been given to M in the hope of receiving information back. He accepted that on occasion he had acted foolishly and inappropriately in his dealings but he knew that M was not a drug dealer; he was an ‘Arthur Daly’ character who bought and sold. The appellant admitted that M had given him £10,000 in cash which he had returned but he had no knowledge of the money in the cool box.[9]A number of witnesses were called to give evidence on behalf of the appellant including a chartered accountant who did not challenge the forensic work undertaken by the prosecution but said that it was not possible to say whether the sum of £200,170 in unexplained cash was legitimate or not. A serving police officer said that the appellant, who was conscientious and honest, had handled M for 11 years until 2005 and some of the intelligence consisting of drug related and general crime information was good. A retired police officer stated that there was a strong association between the appellant and M, who was an invaluable source of information. The appellant, whom he admired, was someone who knew how far to take matters.[10]The issue in relation to which the appellant proceeds with the leave of the full court concerns the ingredients of the offence of wilful misconduct. At the trial, an issue was raised whether it would be appropriate for the judge to leave the defence of reasonable excuse to the jury. Mr Peter Rouch Q.C., for the applicant, contended that absence of justification or reasonable excuse was an essential ingredient of the offence; the Crown submitted that there was no basis upon which the jury could find that there was a justification for any of the disclosures or a reasonable excuse for them. The judge dealt with the matter in a short ruling which we quote in full:
“Count 1 is a conspiracy to commit wilful misconduct in a public place and there are, effectively, three ingredients. First, that he was acting as a public officer and, quite clearly, he was even though he was not a member of the police force at the time. Secondly, he has to wilfully or deliberately misconduct himself in his duties; that means simply not by accident or mistake or inadvertence. Thirdly, that he has to do so to such a degree that it amounts to an abuse of the public’s trust in the holder of that office and it seems to me that it is the members of the jury who decide whether he abused the public trust to that extent. The fourth matter is that he did so without reasonable excuse or justification. The submission is made that there was no reasonable excuse or justification that the jury need to consider in this case because he was, according to the prosecution case – if they accept it – giving information as someone who was not dealing with informants, he was giving information in a sense like a member of the public, although he was a public officer, to another member of the public who was not an informant, who was not authorised to be an informant and he was giving that information, and if the jury are satisfied that he was giving that information, then it is submitted that there cannot be a reasonable excuse or justification in respect of that. Of course, this offence is not the substantive offence; it is a conspiracy and it does contain a number of instances of misconduct which are not all the same but, being a conspiracy, the instances of misconduct of which the jury has heard are simply instances, or evidence of the agreement itself. So the question for me is: is it right, proper and possible in this case for the defendant to say, in a case where he says “I gave information to [M] in the hope of getting better information back again” that, for whatever reason, that is a reasonable excuse or justification? I have come to the conclusion that the prosecution are right. That is not a reasonable excuse or justification. There is no instance upon which someone who is not a handler of information to someone who is not an informant himself. If that information is being passed and the jury are satisfied so that they are sure about that, then there is no reasonable excuse for that behaviour and I do not propose to put that defence to the jury.”
[11]True to his ruling, having directed the jury of each of the three ingredients which he accepted (including a direction that it was for the jury “to decide whether the deliberate leaking of confidential information which he knows he should not be leaking, falls far below the standard to be expected of the defendant as to amount to an abuse of the public trust in him”),

the judge went on:

“There is a defence that he did so without reasonable excuse or justification. Well, the defendant’s personal initiative to encourage [M] to give him intelligence by favouring him with confidential police information could never amount to a reasonable excuse or justification in this case for three reasons. First, the defendant was not a ‘chis’ handler. Secondly [M] could not be lawfully tasked to provide it because he was not authorised to operate as a ‘chis’ himself. Thirdly, ‘chis’ rules never permit the passing of police information to anyone in any circumstances. So you can therefore disregard any reasonable excuse or justification applying in this particular case.”
[12]Mr Rouch argues that it was common ground before the court that the leading authority in relation to misconduct in public office was the decision in Attorney General’s Reference No. 3 of 2003 [2004] EWCA Crim 868, [2005] QB 73 and that this authority makes it clear that it is an essential ingredient of the offence that it is committed without justification or lawful excuse. While confirming the “great variety of circumstances” in which the offence may be charged, it is certainly correct that this court analysed the history of the offence and that the head-note summarised the position (at page 73) in terms that: “The elements of the offence of misconduct in a public officer were that a public officer was acting as such, that he wilfully neglected to perform his duty and/or wilfully misconducted himself in a way which amounted to an abuse of the public’s trust in the office holder, without reasonable excuse or justification; that whether the misconduct was of a sufficiently serious nature would depend on the responsibilities of the office holder, the importance of the public objects which they served, the nature and extent of the departure from those responsibilities and the seriousness of the consequences which might follow from the misconduct; that to establish the mens rea of the offence it had to be proved that the office holder was aware of the jury to act or was subjectively reckless as to the existence of the duty; that the test of recklessness applied both to the question whether in particular circumstances a duty arose at all and to the conduct of the defendant if it did arise; and that the subjective test applied both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.[13]As to the issue of reasonable excuse or justification, Pill LJ (giving the judgment of the court) said only (at para. 60):
“The failure to meet standards must occur without justification or excuse, a further requirement, though not one which has been the subject of detailed submissions.”
[14]Given the issues in that case (which concerned failure by police officers to ensure that an unconscious prisoner was placed into a ‘safe’ position with his airway clear and to obtain medical assistance), that short summary was entirely understandable but in order to understand its origins (and thus, whether the failure to leave the issue to the jury amounts to a material misdirection), it is necessary to delve further into an analysis of the authorities as to which we were not assisted either by Mr Rouch for the appellant or Mr Rupert Lowe for the Crown.[15]Pill LJ analyses the authorities dated from R v. Wyat (1705) 1 Salk 380 and R v. Benbridge (1783) 3 Doug KB 327 and R v. Borron (1820) 3 B & Ald 432, to the more modern enunciations of this court in R v. Llewellyn-Jones [1968] 1 QB 429 which concerned the misuse by a county court Registrar of funds under his control and R v. Dytham [1979] QB 722 which related to the failure of a constable to intervene in a fight outside a club during the course of which a man was beaten and kicked to death. This serves to underline the varied circumstances in which this offence can be committed.[16]In Dytham, Lord Widgery CJ dealt with the requirement of corruption or fraud and cited Stephen’s Digest of the Criminal Law (9th edn, 1950) in these terms:
“Every public officer commits a misdemeanour who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter.”
[17]Lord Widgery went on to link the element of culpability to the degree that the misconduct is calculated to injure public interest. He said (at 727G):
“The neglect must be wilful and not merely inadvertent; and it must be culpable in the sense that it is without reasonable cause or justification. In the present case it was not suggested that the appellant could not have summoned or sought assistance to help the victim or to arrest his assailants. The charge as framed left this answer open to him. Not surprisingly he did not seek to avail himself of it … The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.”
[18]This decision was itself considered in Shum Kwok Sher v HKSAR (2002) HKCFAR 381 by the Court of Final Appeal in Hong Kong. As noted (at para 44) by Pill LJ in Attorney General’s Reference (No 3 of 2003) Sir Anthony Mason NPJ referred to English and Australian authority and said (at p 409):
“84. In my view, the elements of the offence of misconduct in public office are: (1) a public official; (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4) culpably misconducts himself. A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification.”
[19]Sir Anthony expressly stated that the words were not disjunctive. He also added that the misconduct complained of must be serious which was to be determined “having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities”. It is worth adding that, in agreeing with this judgment, Mr Justice Bokhary PJ expressed no doubt that the true definition of the offence was as Sir Anthony had stated which he expressed in these terms:
“Accordingly, the offence of misconduct in public office is committed when (i) a public official (ii) in the course of or in relation to his public office, (iii) wilfully and intentionally (iv) culpably misconducts himself and the misconduct is serious.”
[20]Although Pill LJ expressed difficulty in understanding the need for the conduct to be both wilful and intentional, he expressly approved of the view that the misconduct must be serious. In his summary of the constituent elements of the offence and, in particular, at para. 60, however, he did not explain that the words “without justification or reasonable excuse” only served as an expansion of the word “culpably”. In the context of acts of commission, focussing on the word ‘culpable’ rather than the words ‘without justification or reasonable excuse’, reverting to the approach of Lord Widgery, it is difficult to see how deliberate leaking of confidential information which a public official knows he should not be leaking and which falls far below the standard to be expected as to amount to an abuse of the public trust in him (which is how the judge left the offence to the jury in this case) could not be culpable.[21]It is no part of the purpose of this judgment to seek to revisit the formulation of the offence as enunciated in Attorney General’s Reference (No 3 of 2003) although that might, in the future, become necessary; indeed, consideration of the offence by the Law Commission would be of value. Suffice to say, for the purposes of this case, however, that it would have been appropriate for the judge to explain that the phrase “without justification or reasonable excuse” meant no more than acting culpably or in a blameworthy fashion. Bearing in mind that if the jury were to conclude (as they did) that the standard of the appellant’s behaviour fell far below that which was to be expected as to amount to an abuse of the public trust in him, it is impossible to see how the jury would equally not have concluded that the conduct was culpable.[22]Mr Rouch submits that the direction which the jury were given was not apposite because the appellant was not a police officer and was not bound by the rules relating to the handling of and requests for information from covert human intelligence sources and, furthermore, that the fact that M was not a covert human intelligence source was beside the point. We do not agree. The information which the appellant was imparting was information from police sources and he must have received it subject to the same scheme (itself governed by the Regulation of Investigatory Powers Act 2000) as did police officers. If anything, his position was even more constrained than that of police officers. Thus, although we conclude that the judge should have directed the jury to consider culpability, we do not accept that his failure specifically to direct that belief in the prospect of obtaining more worthwhile intelligence could constitute a reasonable excuse in the context of his direction that the appellant’s behaviour had to fall far below that which was to be expected as to amount to an abuse of the public trust in him renders the verdict unsafe.[23]In connection with the conviction for concealing criminal property, Mr Rouch seeks to renew grounds of appeal in respect of which leave was not granted by the full court in relation to the admissibility of evidence from three witnesses which was directed to supporting the contention that links existed between M and cannabis (thereby justifying the conclusion that the property belonging to M which was in the appellant’s possession was criminal within the meaning of the legislation). This concerned the total of £200,000 found in cash in a cool box in the appellant’s attic. Mr Rouch suggests that the evidence was tenous in nature, of prejudicial effect only and not such as the appellant could address. In his ruling,

the judge acknowledged that:

“they may be “very small pieces in a jigsaw puzzle but, put together, particularly when one remembers it is not just the link of that person with a criminal activity but the link of this money to criminal activities that it becomes important. And they become important pieces of evidence which when taken together are compelling. And if they are taken together they are compelling, they are of probative value, then they are admissible.”
We agree with this analysis. We also agree that the prosecution was required to prove that the money came from criminal sources and that this was an entirely appropriate way of so doing. There is no arguable ground of appeal in relation to the admission of this evidence.[24]Finally, in his written grounds, Mr Rouch makes complaint of three errors of fact said to have been made by the judge during the course of his summing up. None appear to have been the subject of comment by counsel at the conclusion of the summing up but we have considered the points individually and collectively, bearing in mind that the jury had heard the evidence and speeches of counsel and had been directed specifically to consider the facts as they found them to be. We do not consider that this ground erects an arguable error sufficient to render the verdict on this count unsafe.[25]In the circumstances, this appeal is dismissed.

Cited in 3 later judgments