Foran v R [2013] EWCA Crim 437

Case No 201207195 B3[2013] EWCA Crim 437
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM CROWN COURT
His Honour Judge Malcolm Potter
850128/30
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2013
Before
LORD JUSTICE LEVESONMR JUSTICE MITTINGMR JUSTICE MALES
Between
MARTIN PATRICK FORANAppellantTHE QUEENRespondent
Miss Elizabeth Nicholls (instructed by Olliers Solicitors) for AppellantMr Jonathan Laidlaw QC (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date : 26 t March 2013
Judgment
[1]On 3May 1985, in the Crown Court at Birmingham, before Judge Potter and a jury, this appellant was convicted of robbery and conspiracy to rob. He was sentenced to six years’ and two years’ imprisonment respectively, to run consecutively, thus making a total sentence of eight years. Twice since the convictions, appeals against the convictions have been unsuccessfully mounted to this court. On this, third, occasion, the Criminal Cases Review Commission has concluded that there is a real possibility that the convictions will not be upheld in the light of information not previously considered regarding the credibility of the principal police witness, Detective Inspector Paul Matthews, a member of the now notorious West Midlands Police Serious Crime Squad who interviewed the appellant, together with developments in case law since the earlier appeals concerning the position when the evidence of a tainted officer is supported by other police evidence by officers to whom no criticism is attached.

The Facts

[2]The charge of robbery related to an attack at the home of the licensee of the Trident public house in Birmingham. During the early hours of 9 September 1984, he was asleep in his flat above the premises when he was woken by a youth who stood over him with a knife and shone a light in his face. Another person, who stood to the side of the bed, was wearing a balaclava and was holding what appeared to be a 2-3 foot long stave or bar. A third person was rummaging about in the room. The licensee was asked where his money was and he told the intruders where to find it. They left taking £1,700 with them. The police were summoned immediately. It was then ascertained that entry to the premises had been gained by the removal of wooden beading from two glass panels, then the removal of the glass itself.[3]It was the prosecution case that the appellant was the man wearing the balaclava, the man holding the knife was a man called Andrew McKenzie and the third man rummaging about was Paul Addison. In due course, both of these other men were to plead guilty to this offence.[4]At 11.50 am on 10 September Addison was arrested. He was interviewed by DC Preston and PC Conn. He admitted that he was involved in the robbery along with two other men, one of whom he referred to as “Martin”. It was Martin, according to Addison, who had gained access to the public house by removing wooden beading around a window, using an iron bar. He continued:
“Martin had a bar and was threatening the bloke with it and Andrew had a knife and he held it to the bloke’s throat. That’s it. Before we did that job Martin told me about a job we were going to do today, a post office job, a £16,000 job. They were going to pick me up at 3pm today at the café and I was going to keep watch again and get £1,000.”
[5]Addison gave further details of a further intended robbery namely at a post office:
“Listen, Martin’s got a white car, an Allegro, but I don’t know if he’s going to keep that or not. Anyway he’s going to pick me up and me, him and Andrew are going to do the job. I’m going to keep watch and they are going in with the bars and things. Martin said he watched the place for ages and will get £16,000 easy. He said something about it being closed on Mondays. … It’s over by Water Orton, that’s all I know. That’s everything. I was going to get £1000. Martin’s done all the work on it.”
[6]He said that the men had arranged to meet at the Riviera Café in Hurst Street, Birmingham. This agreement to rob the Post Office was the subject of the charge of conspiracy to rob.[7]Acting on this intelligence, later that afternoon, DI Matthews, DC Preston, DC Jisra, DC Bartoszewicz, PC Conn, and PC Shelley waited outside the Riviera Café. The appellant arrived at 3.05 p.m., driving a white Allegro just as Addison had indicated. While still seated in his car, the appellant was approached by DI Matthews and DC Preston. After identifying himself, he was told that he was to be arrested. Dl Matthews, DC Preston and PC Conn all gave evidence that the appellant was in possession of a bundle of money of which he attempted to dispose as he was getting out of his car. The officers recovered a knife, two screwdrivers, two crowbars and a crash helmet from the appellant’s car.[8]The appellant was taken to Bradford Street Police station in Digbeth, Birmingham, arriving (according to the custody record) at 3.12 pm. He was interviewed under caution by DI Matthews in the presence of DC Preston, both of the West Midlands Serious Crime Squad, but with no solicitor present. According to DI Matthews and DC Preston the interview took place between 4.00 and 4.15 pm. At first the appellant denied all knowledge of the Trident robbery and of any conspiracy to rob the post office. He accused the police of taking £60 of his money.[9]According to DI Matthews and DC Preston, DI Matthews informed the appellant that Addison had been arrested and had provided a statement implicating him in the Trident robbery and the conspiracy to rob the post office in Water Orton that afternoon. The officers recorded the appellant’s response as:
“I don’t believe you, that’s fanny!”
[10]The officers then recorded that they told the appellant that they had a copy of Addison’s statement which DI Matthews read out. According to the officers’ witness statements and their evidence at trial the following exchange then took place:
“Foran: What can I say? It’s all there, isn’t it? DI Matthews: It is correct then. Foran: I’m not saying anything. Look, I know about it, you know I help the police. I can get the coloured lad for you. DI Matthews: At the moment it’s your part I’m interested in. Foran: I’m not saying anything, you can’t charge me on just that. DI Matthews: We have recovered two iron bars and a knife from the car, what about those? Foran: I’ve told you I’m not saying anything. I want a brief. DI Matthews: Anybody in particular? Foran: Yes, Ron Parker. DI Matthews: Very well, if you want to see me with your solicitor, let me know. Foran: I won’t want to. You’ve got fuck all evidence.”
DI Matthews: Anybody in particular? Foran: I won’t want to. You’ve got fuck all evidence.”

DI Matthews: Anybody in particular?

[11]This exchange in which the appellant first acknowledged his participation in the robbery (“What can I say? It’s all there, isn’t it?”) and then offered to assist the police (“Look, I know about it, you know I help the police. I can get the coloured lad for you”) was important evidence at the appellant’s trial. The appellant has always denied making this confession, which is at the centre of this appeal.

The Trial

[12]The appellant was jointly tried with Addison who pleaded guilty to the count of robbery (which he had admitted) but not guilty to the count of conspiracy to rob on the basis that he had not agreed to go along with the plan. At the trial (which proceeded over 5 days), the appellant dismissed his counsel and undertook his own defence.[13]The prosecution relied on the evidence of the police officers who were cross-examined on the basis that the exchange described by DI Matthews and DC Preston had not taken place. The appellant also took issue with the police evidence that he had been trying to get rid of money when he was arrested and challenged the times both of his arrest and his arrival at the police station. At the close of the prosecution case, the case depended on the alleged admission together with the corroborative detail of what had been recovered from the appellant’s car. Addison’s statement, to such extent as it had not been adopted by the appellant, was not, of course, evidence against him.[14]Dealing first with Addison’s evidence in his own defence, he attempted to paint a less serious picture of his own involvement. He gave contradictory evidence as to whether the man “Martin” he had previously named was the appellant. In his evidence in chief he withdrew his allegation that Martin was the appellant and repeated this withdrawal when cross-examined by the appellant. However, under cross-examination by the prosecution, he reinstated the allegation, saying that the account he had given to police in his initial statement was correct. Having been given on oath at the trial when the appellant was present, this last evidence, although internally contradicted, was admissible against the appellant.[15]The appellant did not himself give evidence but his case was straightforward. It was that he was not at the public house at all, but had been in his car with friends at the time when the robbery took place. He had been in the company of Addison and McKenzie until approximately 2.15 am on the morning of 9 September but his car had then broken down, and the AA had been called to assist him. The car was fixed at about 2.l5 am but it then broke down again, and the appellant waited at the Riviera café. He eventually returned home at 4.30 am, where his wife and a neighbour were waiting up for him. The knife was carried in the car to help to start it. He called a number of witnesses to give evidence regarding his movements on the night of the robbery.[16]The appellant’s wife gave evidence that the money found on the appellant had been withdrawn from the couple’s Provident Building Society account some days before his arrest: it now transpires that this money was eventually returned to her by order of the court and was not held to be the proceeds of the robbery. His solicitor, Mr Daniels, gave evidence about his arrival at the police station on the day of the appellant’s arrest. He maintained that he had arrived at least 30 minutes before police records suggested that he had.[17]These were the issues that the judge left to the jury and no complaint is made of his summing up, although it is relevant to point to two of the directions that he gave. The first is that the judge warned the jury that when considering the appellant’s case they should approach Addison’s evidence with caution, as he was a youth who was capable of changing his story and who had told lies giving deliberately contradictory evidence. He urged the jury to see whether Addison’s evidence affecting the appellant was borne out by other evidence from an independent source. On the count of robbery, the only possible independent evidence was the police evidence of the appellant’s confession in interview.[18]The second matter is the way the judge dealt with the appellant’s interview. He emphasised that this was extremely important evidence, not only by saying so in terms, but by reading it out twice. He also referred disparagingly to the making of “the usual kind of complaint” against the police. In the light of what has since become known, that comment is, at its lowest, unfortunate. In the event, the appellant was convicted of both offences.

The Appeals

[19]On 25 July 1986 this court (O’Connor LJ and Ognall J) refused a renewed application for leave to appeal against conviction and for leave to call fresh evidence. It is not apparent from the brief judgment given by Ognall J what the proposed grounds (settled by Mr Foran without legal assistance) or the fresh evidence were, but we understand that they included allegations against DI Matthews.[20]Mr Foran continued to maintain that he had been the subject of a miscarriage of justice and, some nine years later, a second appeal was mounted after the convictions had been referred to the court by the Home Secretary pursuant to section 17(1)(a) of the Criminal Appeal Act 1968. It was heard on 24 February 1995 before Russell and Pill LJJ and Turner J.[21]The Reference arose for two reasons. The first was that an investigation by the Police Complaints Authority had revealed that a forensic science report produced in September 1984 had not been provided to the prosecuting solicitor by the police, and therefore had not been disclosed to the defence, let alone adduced in evidence before the jury. The second concerned evidence which, it was said, demonstrated that DI Matthews was a discredited witness who, if the material had been placed before the jury, would not or might not have been believed.[22]Dealing with the first ground of the reference, the forensic report had concluded that the implements found in the appellant’s car at the time of his arrest could not have been used to gain access to the flat above the Trident public house where the robbery had taken place. There was no question that, even by the rather different disclosure rules of the time, it should have been disclosed: the Crown did not suggest to the contrary. It was significant not least because the case advanced to the jury by the Crown was contrary to the conclusion reached by the scientist: Addison was cross examined on the basis that the tools had been used in the robbery.[23]The effect of this disclosure is significant. As Russell LJ put it when giving the judgment of the court:
“It was clearly a report that should have been disclosed and Mr Treacy QC, on behalf of the Crown, realistically acknowledges that the failure to disclose the report had represented a material irregularity in the trial process. … Accordingly as to count 1, Mr Treacy acknowledges that if the conviction is to be upheld it must be by virtue of the proviso to section 2 of the Criminal Appeal Act 1968.”
[24]The second reason for the Reference was the existence of fresh evidence concerning the credibility of DI Matthews. The fresh evidence in question was that(1) in 1982 DI Matthews had been convicted of driving a motor vehicle without a valid MOT certificate;(2) in 1984 his business activities had been investigated by the police authority, although no impropriety had been proved and no action had been taken;(3) there had been a suggestion in 1985 that he had embarked upon an improper association with a professional criminal, as a result of which, although no disciplinary action was taken, he was returned to uniform duties;(4) in September 1986 he had been disciplined for disobedience of orders and neglect of duty, as a result of which he was required to resign from the police force; and(5) at a trial in November 1985 of a man named Herring when DI Matthews had been the senior investigating officer, his evidence (and in particular his account of an interview with no solicitor present in which Herring had supposedly made admissions when the account of a co-defendant was put to him) had not been believed by the jury.[25]Applying the (since repealed) proviso to s. 2 of the Criminal Appeal Act that notwithstanding the material irregularity, the court considered that no miscarriage of justice had actually occurred, the appeal was dismissed. The court concluded that the evidence relating to the trial of Herring came nowhere near demonstrating that DI Matthews’ evidence had been disbelieved; that the matters alleged against him amounted to “little more than muck raking in an attempt to discredit this police officer”; that there was “no material of any kind detrimental to DC Preston”; and that, despite the failure to disclose the forensic scientist’s report, this would have made no difference to the jury’s verdict. It is relevant to note, however, that Russell LJ described the appellant’s interview in which he had adopted Addison’s statement as “an important plank in the prosecution’s case”, as indeed it clearly was.[26]For the purpose of the present Reference, we derive three important conclusions from this judgment. First, as counsel for the prosecution (Mr Colman Treacy QC, as he then was) acknowledged, there had been a material irregularity in the trial process due to the failure to disclose the forensic report, as a result of which the conviction on count 1 could only be saved by the application of the proviso: in other words, using the present statutory language, the onus was very much on the Crown to prove that the convictions were safe. Second, in relation to the robbery, the police evidence was acknowledged to be an important plank of the prosecution case. Third, the court concluded that the jury could have confidence in that evidence because the evidence of both DI Matthews and DC Preston was reliable, with nothing more than “muck raking” against the former and nothing detrimental at all against the latter.

Further Fresh Evidence

[27]On 29June 2011 the appellant sought a review of his convictions by the CCRC and, following an investigation, the CCRC concluded that there was fresh evidence giving rise to a real possibility that the court would now consider the appellant’s convictions to be unsafe. It is the appellant’s case that the evidence now available undermines the approach of this court on the previous appeal by demonstrating not only that the evidence of DI Matthews is indeed discredited, but that there are also (at least) serious doubts concerning the evidence of DC Preston; and that when these are combined with the acknowledged irregularity resulting from the failure to disclose the forensic report, the conviction of the appellant cannot be regarded as safe.[28]We deal first with Detective Inspector Matthews. As already indicated, he was a member of the West Midlands Police Serious Crime Squad. A substantial number of convictions arising from investigations conducted by the squad have been quashed as a result of concerns regarding the working practices adopted by officers there. Malpractice subsequently identified in the West Yorkshire Police enquiry included physical abuse of prisoners, fabrication of admissions, planting of evidence and mishandling of informants. DI Matthews has been identified in a number of cases of such malpractice and, in particular, has been associated with the fabrication of confessions.[29]The fresh evidence which the appellant seeks to introduce consists of background evidence as to the misconduct committed by the West Midlands Police Serious Crime Squad, together with evidence of DI Matthews’ involvement in two cases, McIlkenny (1991) 93 Cr App R 48 (which was, of course, available at the time of the second appeal) and, more recently, O’Toole & Murphy [2006] EWCA Crim 2123. It is unnecessary to say more about the disgraceful picture painted by the general background evidence than Laws LJ said in O’Toole & Murphy itself at para. 4:
“The essence of the appeals is that since the appellants' convictions there has emerged a catalogue of corruption and misconduct in and by the West Midlands Serious Crime Squad some of whose officers were involved in the conduct of this case. Particular officers are impugned and we shall give the detail. Apparently no less than 33 appellants have had their convictions quashed because those convictions depended on alleged confessions made to officers of the West Midlands Crime Squad. Other cases have collapsed at trial.”
[30]McIlkenny was the case of the “Birmingham Six”. One of the accused, Hill, was interviewed by DS Bunn and (as he then was) DC Matthews. According to the police, he implicated two other accused, Murray and Sheehan. One of the issues at the defendants’ unopposed appeal in 1991 was the reliability of the police evidence, although the principal issue had to do with fresh scientific evidence casting doubt on the original forensic evidence. Although the interview involving DC Matthews was not singled out for specific criticism, Lloyd LJ did describe the police evidence generally as unreliable, and as a sufficient reason for allowing the appeal:
“If we put the scientific evidence on one side, the fresh investigation carried out by the Devon and Cornwall Constabulary renders the police evidence at the trial so unreliable, that again we would say that the convictions are both unsafe and unsatisfactory.”
[31]As we have observed, the evidence of DI Matthews’ involvement in the McIlkenny case was available at the date of the previous appeal although there is no suggestion that reference was made to it. O’Toole & Murphy, however, is new. That was another CCRC reference involving a confession in interview alleged to have been fabricated by DI Matthews (at the time a detective sergeant). It raised the question whether the result of the trial might have been different if the facts relating to the West Midlands Police Serious Crime Squad in general, and some of the officers concerned in the case in particular, had been known to the defence at the time of trial. Laws LJ described the position of DI Matthews (who was one of those officers) as follows at para. 28: “The factual points about him are crisply summarised in the CCRC statements of reasons and that account is not significantly embellished by other material. This is what the CCRC said (we leave out some unconfirmed allegations) (paragraph 51): ‘In September 1986 Mr Matthews appeared before the Chief Constable and was dealt with for disobedience of orders and neglect of duty. He was required to resign from the force. There is evidence that a jury in a November 1985 case involving two defendants, Mr Herring and Mr Fitzgerald, disbelieved evidence given by DS Matthews, and as a result acquitted a defendant. 52. West Midlands Police informed the Commission that there are two entries in their formal disciplinary record in respect of Mr Matthews. The first of these was in 1982 and all references to this matter have been deleted or destroyed in accordance with their Destruction of Documents Policy. In September 1986 he appeared before the Chief Constable on charges of disobedience to orders and neglect of duty. He was found guilty and required to resign forthwith’.” ‘In September 1986 Mr Matthews appeared before the Chief Constable and was dealt with for disobedience of orders and neglect of duty. He was required to resign from the force. There is evidence that a jury in a November 1985 case involving two defendants, Mr Herring and Mr Fitzgerald, disbelieved evidence given by DS Matthews, and as a result acquitted a defendant.[32]These were the features mentioned by Russell LJ in the first appeal although Laws LJ also referred to DI Matthews’ involvement in McIlkenny. Having dealt with the position of other officers involved, he set out the applicable legal principles, in terms which we gratefully adopt: “38. We turn to the law. What approach does the law prescribe to the use of such material as this arising in other and, as it happens, much later cases, but which, if available at the time of trial, might have had some impact on the jury's verdict? The starting point is the decision of this court in Edwards (1991) 93 Cr App R 48. The court held that there was no hard and fast rule as to what cross-examination might be allowed, or, if later events were relied on, what notional cross-examination might be contemplated. ‘The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' reliability ...’ (see page 56) 39. Taking the matter shortly, the CCRC was, in our judgment, right (see the reasons in Murphy paragraph 33) in distilling from the decision in Edwards the following three categories in which the evidence of a police officer's conduct might be canvassed in another case:(i) Convictions for a relevant criminal offence;(ii) Disciplinary charges found proved against the officers;(iii) Cases where the only logical explanation for a defendant's acquittal (in a different case) was that the officer's evidence must have been disbelieved. 40. In addition, however, the appellants draw attention to Zomparelli No 2, 23rd March 2000, in which Lord Bingham CJ strongly endorsed the approach in Edwards, but stressed two additional points. This is what he said: ‘The first is that the judge's overall and paramount duty is to ensure the fairness of the trial. The trial process must be fair to the prosecution; the scales of justice are not balanced if heavily over-weighted in favour of the defendant. But it must be fair also to the defendant. He is entitled to a fair trial as a matter of constitutional right. No rule of law can restrict the duty of the court to ensure a fair trial. 35. The second point we would make is this. The court in R v. Edwards was at pains to make clear that it was not seeking to lay down any hard-edged rule of law to be applied inflexibly in any case of this kind. The court recognised that the discretion of the trial judge cannot be so circumscribed as to restrict his power to do whatever justice demands in the circumstances of the individual case.’ 41. Next, we should notice the decision of this court in Williams and Smith [1995] 1 Cr App R 74, to the effect that where such matters are admissible they are no less admissible on appeal merely because on the facts they involve events later in time than the events in question in the particular case. However, the length of time between the misconduct relied on and the convictions sought to be impugned can be a relevant factor in assessing the impact of a putative attack on an officer's credibility and the safety of the conviction. 42. In Deans [2004] EWCA Crim 2123this was said by Maurice Kay LJ at paragraph 37: ‘We deprecate the subsequent misconduct of the officers, particularly Detective Constable Robotham. However in the final analysis we are satisfied that the convictions were and are safe. We certainly accept that police misconduct after the events in issue and after the trial in question can render a conviction unsafe. We also accept that corruption and other reprehensible behaviour by one or more officers may infect a whole investigation notwithstanding the presence of officers against who nothing has been alleged or established. In the present case, however, we attach particular importance to the lapse of time between the events of 1988 and the trial in 1989 on the one hand and the appalling behaviour of Detective Constable Robotham, and to a lesser extent Detective Constable Davis, on the other hand. There is nothing to suggest that either of them acted otherwise than with propriety between 1988 and 1997. We consider it inappropriate to doubt convictions which occurred almost a decade before any known or alleged misbehaviour on the part of these officers.’ 43. There is also authority for the proposition -- though, with great respect, we have some doubt whether it is really a point of law rather than one of good common sense -- that misconduct by police officers may be fatal to a conviction even though their tainted evidence is supported by officers of whom there is no criticism whatever: see Guney [1998] 2 Cr App R 242, [1998] EWCA Crim 719. That is particularly relevant here because the Crown say that the evidence of Hornby of the interview of Murphy on 8th April 1977 was supported by that of the then DS Robinson, who eventually retired in the rank of detective chief inspector after over 32 years of service with a record of no less than 14 commendations or awards.” ‘The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' reliability ...’ (see page 56) (i) Convictions for a relevant criminal offence; (ii) Disciplinary charges found proved against the officers; (iii) Cases where the only logical explanation for a defendant's acquittal (in a different case) was that the officer's evidence must have been disbelieved. ‘The first is that the judge's overall and paramount duty is to ensure the fairness of the trial. The trial process must be fair to the prosecution; the scales of justice are not balanced if heavily over-weighted in favour of the defendant. But it must be fair also to the defendant. He is entitled to a fair trial as a matter of constitutional right. No rule of law can restrict the duty of the court to ensure a fair trial. 35. The second point we would make is this. The court in R v. Edwards was at pains to make clear that it was not seeking to lay down any hard-edged rule of law to be applied inflexibly in any case of this kind. The court recognised that the discretion of the trial judge cannot be so circumscribed as to restrict his power to do whatever justice demands in the circumstances of the individual case.’ ‘We deprecate the subsequent misconduct of the officers, particularly Detective Constable Robotham. However in the final analysis we are satisfied that the convictions were and are safe. We certainly accept that police misconduct after the events in issue and after the trial in question can render a conviction unsafe. We also accept that corruption and other reprehensible behaviour by one or more officers may infect a whole investigation notwithstanding the presence of officers against who nothing has been alleged or established. In the present case, however, we attach particular importance to the lapse of time between the events of 1988 and the trial in 1989 on the one hand and the appalling behaviour of Detective Constable Robotham, and to a lesser extent Detective Constable Davis, on the other hand. There is nothing to suggest that either of them acted otherwise than with propriety between 1988 and 1997. We consider it inappropriate to doubt convictions which occurred almost a decade before any known or alleged misbehaviour on the part of these officers.’[33]Laws LJ then concluded (at para. 44) that DI Matthews (and other officers) could properly have been cross-examined on the matters to his discredit referred to above which had emerged (including the Herring case, which here does appear to have been regarded as a case where DI Matthews’ evidence was disbelieved). The 1995 decision of this court in which little or no weight was given to the Herring case does not appear to have been cited in O’Toole & Murphy but, despite this, we consider that the same conclusion as in O’Toole & Murphy must apply here, that is to say, that at the trial in the present case DI Matthews could properly have been cross examined, if those matters had been known, as to his involvement in (at least) the Herring, McIlkenny and O’Toole cases, all of which involved fabricated or allegedly fabricated confessions, sometimes in circumstances with similarities to the present case and which together suggest a disturbing pattern, against the background of his membership of the discredited West Midlands Serious Crime Squad, as well as his disciplinary record.[34]In our view such a cross-examination could not have been dismissed as mere “muck raking”, at any rate without acknowledging that there was a certain amount of muck to rake. These matters might well have gone a long way towards discrediting the evidence of DI Matthews.[35]Before parting from O’Toole, there is one other detail worth mentioning. The partial admission that DI Matthews asserted that O’Toole made, when the co-defendant’s statement was read to him was “What a load of fanny, didn’t know there were going to be shooters”. That admission (and the use of the word ‘fanny’ was strongly challenged. In this context, it is a matter of comment that the phrase (equally strongly challenged) attributed to the appellant when told that Addison had implicated him was “I don’t believe you, that’s fanny”.[36]Turning to Detective Constable Preston, even if DI Matthews had been discredited, however, importance was attached by this court in 1995 to the fact that his evidence was supported by this officer, against whom nothing detrimental could be said. However, that is no longer the case. In our judgment, two matters are particularly significant.[37]The first is that it was DC Preston who took the decision not to disclose the forensic report which concluded that the tools found in the appellant’s car could not have been used to gain entry at the Trident public house. When he was asked about that decision in May 1990 he sought to justify it, partly on the basis that the non-disclosure was an oversight and partly on the remarkable basis that the report “showed no useful evidence for the prosecution”. The initial failure to disclose was clearly unjustified (cf. Ward [1993] 1 WLR 619) and was accepted by Mr Treacy QC to have been a material irregularity in the trial, and the concern to which it gives rise was compounded by the fact that DC Preston was present in court when, as we have recounted, Addison was cross-examined by prosecution counsel on the basis that the tools in question had actually been used to facilitate entry to the Trident public house. He had asserted that fact in chief, refuted it in answer to questions from the appellant and when cross examined by the Crown to the effect that he his retraction was a lie, said that he had made a mistake. However, despite his knowledge of the undisclosed forensic report, DC Preston did nothing to correct this line of questioning.[38]Second, DC Preston’s notebook record of Addison’s interview (see para. 4 above) purported to record Addison describing the commission of the Trident robbery with a “bloke” called Martin. However, it has emerged that the word which DC Preston originally wrote was “kid” and not “bloke”, and that the entry was subsequently changed. The appellant, who was much older than Addison, could not sensibly have been described by Addison as a “kid” and the fact that, as now appears, Addison’s initial reference was to committing the robbery with a “kid” called Martin provides some support for his evidence in chief at trial when he also used the word “kid”. He was later cross-examined, again as we understand it with DC Preston present in court, on the basis that this was a change from his interview where he had used the word “bloke”. Even if, as DC Preston later claimed when asked about this, the change in the notebook from “kid” to “bloke” was merely the correction of “an obvious error”, this was an explanation which would have been challenged had the facts emerged at the time and might well have cast doubt on his credibility.[39]There were other matters suggested against DC Preston not the least being the discovery of a copy of the custody record which he had kept in his own records, but it is unnecessary to consider these further. The two matters described above are themselves troubling and, together, make it difficult to contend that DC Preston was an entirely untainted witness whose evidence provides independent support to the evidence of DI Matthews. It is therefore unnecessary to consider further the extent to which developments in the law have affected the position when the evidence of a tainted officer is supported by the evidence of an officer whose evidence is untainted, save to say that we agree with Laws LJ’s summary in the passage cited above from O’Toole & Murphy.[40]Where then does that leave the safety of the appellant’s conviction on the count of robbery? It is right to say that a cross-examination of DI Matthews and DC Preston to adduce in evidence the matters referred to above would not have been free of risk and it is plausible to contend that the Crown would have contended that it, also, was no more than ‘muck raking’. The appellant would still not have been able to give evidence because (as would have been the case in any event given the allegations that were being made) it would have enabled the prosecution to put the appellant’s previous convictions before the jury who would have been entitled to take them into account in considering the credibility of the allegations against the police officers. In the end it is impossible to know what the jury would have made of the case if it had been presented to them in an entirely different way. As to this we echo what Laws LJ said in O’Toole & Murphy at para. 46:
“We are, however, in no position to know what might have been the effect on the jury had the defence been armed with what is now known about these officers and used it in cross-examination. We cannot say that that material could not reasonably have induced a doubt in the jury's mind.”
[41]In O’Toole & Murphy the case against the appellant was described as “undoubtedly formidable”. Moreover, it was a case where the evidence of tainted officers was supported by that of other officers who were blameless. Nevertheless, the conviction was quashed. As we have indicated, in view of the points made above concerning DC Preston, this is not a case where there was entirely untainted supporting evidence.[42]It is clear that the conviction of the appellant for robbery depended critically on the reliability of the police evidence as to the appellant’s interview. That was rightly recognised by the judge in his summing up, and by this court on appeal in 1995. Mr Jonathan Laidlaw QC for the Crown submitted that the evidence now relied on as discrediting the police evidence does not add materially to what was before this court in 1995, but we do not agree. Once the reliability of the police evidence is called into serious question, as it must be in light of the matters referred to above, we have no doubt that this conviction cannot be regarded as safe. While every case will depend on its own facts, we refer in this connection to what Laws LJ said in O’Toole & Murphy (at paras. 47 and 50):
“We are not of course -- and we desire to emphasise this -- judging the guilt or innocence of these men; far from it. We repeat, there was a formidable case against them. But in the end these convictions were obtained largely on evidence which may have been false in material respects. As it was put in Pendleton [2001] UKHL 56, the material now known about the officers, had it been available in 1978, might reasonably have affected the jury's decision to convict. … The fact is our law has increasingly regarded the value of due process as integral to the doing of justice and the conduct of police officers is integral to due process in the administration of the criminal law.”
In the context of this case, the analysis of the law now contained in decisions such as Dial & anorv. State of Trinidad and Tobago [2005] UKBC 4; [2005] 1 WLR 1660 (at paras. 31-32) and Burridge [2010] EWCA Crim 2847 (at paras. 99-101) does not affect these conclusions.[43]Turning to the conspiracy to rob, even if the evidence of the appellant’s interview is left out of account, by the close of the evidence, the prosecution relied not only on Addison’s evidence but on the fact that the appellant was arrested at the time and place identified by Addison as the rendezvous for a robbery, equipped with tools which it appeared were entirely consistent with those required for use in a robbery. These circumstances provided potentially powerful independent corroboration of Addison’s account, such as the judge had warned the jury would be necessary if they were to accept his evidence.[44]It is necessary, however, briefly to consider the status of Addison’s account as evidence against the appellant. Addison’s statement in interview, adduced by the prosecution as part of the case against Addison, would not have constituted evidence against the appellant. It is only his adoption of that account when he was cross examined by the prosecution (contradicting the evidence that he had given prior to that point in the trial) which provides any probative material and could permit the jury to regard the evidence as including not only the circumstances of his arrest (which on their own would not have been enough to sustain a conviction for conspiracy to rob) but also the account given by Addison of an agreement to meet in order to rob the Water Orton post office which was confirmed by the appellant’s arrival at the agreed rendezvous equipped with items of the type which Addison had described and which could have been used to carry out a robbery.[45]It could not be disputed that, on their own neither the evidence of Addison nor the circumstances of the appellant’s arrest would have been a safe basis on which to convict the appellant on count 3 and it is not unimportant that no explanation has ever been offered for the appellant’s appearance at the time and place that Addison had predicted. The combination, however, has greater potency and we would certainly not be prepared to conclude that the appellant was innocent of the charge. Nevertheless, bearing in mind the limited credibility that could be attached to Addison’s evidence and the extent to which the evidence of the police could have been undermined, along with the admitted material irregularity in relation to disclosure, the existence of some evidence to support the allegation is not sufficient to justify a conclusion that the conviction is safe. In those circumstances, this conviction is also quashed.

Conclusion

[46]In the event, for the reasons given above, we regard the appellant’s convictions for robbery and conspiracy to rob to be unsafe and they are quashed.

Cited in 1 later judgment