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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> West, R v [2005] EWCA Crim 517 (10 March 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/517.html Cite as: [2005] EWCA Crim 517

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHELMSFORD CROWN COURT
HIS HONOUR JUDGE BALL, QC

		2004/3648/D1 Royal Courts of Justice Strand, London, WC2A 2LL
		10 March 2005

Lord Justice Mance :

1. On 5^th October 2004 we heard a renewed application for permission to appeal in respect of the applicant's conviction and sentence to 7 years' imprisonment on 29^th July 2002 before HHJ Ball QC at Chelmsford Crown Count on two counts of possessing Class A drugs (in the one case cocaine, in the other MDMA tablets) with intent to supply. The application was presented by Mr Cahill who was not counsel appearing for the applicant at the trial. We dismissed the application save in one respect relating to conviction, which we adjourned for further consideration, with an order that the Crown attend to assist us with regard to a public interest immunity application which it made to the trial judge.
2. A more detailed outline of the factual background appears in the judgment which we gave on 5^th October 2004. But the following summary suffices for present purposes. The applicant's defence at trial was that he had in early January 2002 arranged to buy from a supplier, a man called Kenny, a small amount of pure cocaine for his personal use, for which he paid some £550 on 9^th January 2002. Instead of this small quantity being supplied, he said that, during the afternoon of 9^th January 2002, while he was away from the house where he lived but while the woman owner of the house was in, someone planted there in the kitchen a substantial quantity of drugs, consisting of 283 MDMA tablets, 174.266 grammes of cocaine, 1.57 grammes of methamphetamine and a quantity of cannabis. These quantities were so substantial that the drugs could only sensibly have been for a purpose or purposes including supply to others. He suspected Kenny or someone connected with Kenny of having in this way framed him.
3. The evidence at trial was that the police had information that led PC Parish at 6.30 p.m. on the afternoon of 9^th January 2002 to obtain a magistrate's warrant, which the police executed at the house at 7.30 p.m. They then found in the kitchen the substantial quantity of drugs to which the two counts on which the applicant was convicted relate. As a result of a public interest immunity application made by Crown counsel, the trial judge confirmed that the Crown need not disclose further information to the defence about the police's source of information. During the trial the defence case was that Kenny or one of his agents must have set the defendant up. But the defence had no information about the nature or timing of the information which had led the police to obtain the search warrant.
4. In summing up to the jury, the trial judge said this:

"In this case, we know that the police were acting as a result of information. We were told it was an information-led inquiry. You do not know what that information was. You do not know, for example, whether a bug had been placed at No. 66, whether a telephone tap had taken place, whether it had been the next door neighbour who had rung up and complained about activities next door, whether it had been a parent whose child had been taken ill having taken an Ecstasy tablet and they had found out where it had come from, or whether it was a drugs user who had been stopped on the street and said, 'This is where I got it from.' You do not know, and there is no point in speculating. All we do know – and indeed it is an important part of Mr West's defence – is that the police had information which caused them to go there.

The policy is he is not to be told and you are not to be told. Except there is one huge exception to that public policy, and it is this. The exception is that where it is necessary for a defendant to have a fair trial to be able to put forward his defence in the best possible light, if that information that they ha is such which would assist or advance his defence, then it becomes liable to be disclosed.

Mr West's defence, as we now know it, is that the drugs came into his house through the agency of someone called Kenny who he had met earlier that day and had arranged to take some drugs from him. He had I think placed an order for some pure cocaine which Kenny said he would drop round. Mr West's case as we now know it, is that Kenny or one of his agents in fact must have deposited this combination of drugs. Mr West tells us that in a phone call to Kenny, Kenny said something about it being 'on top', and so he let himself in and put the drugs there. That is his case. His case is 'I am just a user'. These aren't really anything to do with me. They were deposited there at the eleventh hour by somebody else.'

If there was a shred of information available to the police which supported that account or even tended to support it in some way, then you would be entitled to hear it, he would be entitled to see it. I would be duty-bound to make it available to him.

Now again it is not quite – there is still more to it than that, but it is important that you understand the way the system operates.

The prosecuting authorities have a duty to disclose, as I have just indicated, where it would assist a defendant in the presentation of his defence, and a system exists whereby the defence can make known in advance what their defence is, so that enables the prosecution to review their material and see if there is anything there that might conceivably assist. The prosecution cannot reveal matters if they have not got a clue what the defence is. There is a procedure whereby the defence are able to serve a defence statement before a trial begins so the prosecution know what the defence, in broad terms, is and can consider the material to see if they have got anything that helps. They would look, of course, at what a defendant said when he was arrested and interviewed to see if he was triggering the right to receive this material.

Here Mr West, of course, said nothing in interview, so that gave no clues to the prosecution. There was no disclosure statement prior to trial. But once the trial began, his defence gradually emerged; and as it emerged, the prosecution were then able to review the material. I reiterate: if anything existed which was known to prosecuting counsel in this case – which would have to be put before the judge and therefore would be known to the judge – which assisted Mr West's defence, it would be liable to disclosure. No such material has come forward.

Again, there is another layer about which I need to tell you as well, because that is not an end of it. It is unknown for a defendant in a drugs trial to assert that the drugs have been planted; to assert, for example, that he had fallen out with his regular supplier, and his regular supplier must have stitched him up (given him the drugs and then told the police, 'He's got them'). That is a classic example if that happened. And if a defendant came along and said, for example, 'My supplier is Kenny Bloggins. I have had a row with him. And he gave me these drugs, and he's tipped you off' – if that, for example, were the defence that was being run and it were true it was Kenny Bloggins that had tipped the police off, the fact that Kenny had tipped the police off would be liable to be disclosed to the defendant.

However then, of course, the police would be in a quandary. They have got this public policy: 'We must keep secret the identity of informants to protect them.' The defence here are asserting that they have been informed on by Kenny. So what would happen? Well the prosecution would be then faced with a decision either to disclose the fact that their informant was Kenny – and they would be loathe to do that, because that again is contrary to public policy and would undermine the confidence that exists in informants to pass information.

So almost certainly what they would do is they would say 'Well, we are not going to let that information out as to how we got the information, but what we will do is we won't proceed with the charges. We will throw in the towel. We will offer no evidence. We will bring the trial to an end.'

Again, that response is something which is susceptible to exploitation by defendants, because they know if they can press the right button, run the right defence, they can so embarrass the prosecution that they have to throw the towel in.

The judge presides over all of this: Receiving the material, seeing what exists, judging whether it is remotely relevant to the defence that is being run.

For the last time I say: if prosecuting counsel had placed before me a shred of material that in any way advanced Mr West's defence, he either would have had it made available to him so that he could place it before you, or the Crown would have packed up their bags and gone away.

That is a little more about PII. It is becoming increasingly at the centre of criminal trials, because much of police work is indeed intelligence-led.

The overriding concern of this court – and you might think sometimes a court has gone too far to accommodate this. But the overriding concern of this court, above all other, is to ensure that both defendants have a fair trial and that they are able to put whatever their defence is in the best possible light before you.

That is public interest immunity and disclosure, public policy and informants."

5. Among the considerable number of complaints made by the applicant in applying to this court for permission to appeal was a complaint about the withholding of information about the source of the police information leading to the search warrant and to his arrest. In this respect, after reading certain material held by the Registrar of the Court of Appeal Criminal Division which indicated the information before the trial judge, we adjourned the defendant's application and ordered the Crown to attend to explain to us more fully the course of the public interest immunity hearing before the trial judge and any significance that it might have in the context of the trial.
6. The matter came back before us on 17^th December 2004, when the Crown was represented by Mr G. Hughes of counsel, who was himself not counsel appearing for the Crown at trial. Counsel appearing for the Crown at trial had become indisposed and has since sadly passed away. After hearing from Mr Hughes and the officer in the case in the absence of Mr Cahill, Mr Cahill was informed that we were further adjourning the matter for further factual investigations to be made, with regard to matters not investigated at the time of trial.
7. The application came back before us on Thursday, 17^th February 2005, by when we had been supplied with the further information which we had requested. In the absence of Mr Cahill, we again heard Mr Hughes and he took and communicated to us further instructions with regard to the Crown's position. After considering the matter, we announced in open court and in Mr Cahill's presence that we allowed the applicant's application and would treat the matter as the hearing of the appeal, and that the appeal against conviction would be allowed for reasons to be given in a judgment to be delivered in writing. We also made a defendant's costs order to cover the costs before us. These are now our reasons for our decision.
8. The defence was given no information about the nature or timing of the information received by the police leading to the search warrant, but they were assured by the trial judge that there was no shred of evidence available to the Crown which supported or in any way tended to support his account that the drugs had been planted on him. Having seen the further information made available to us on 17^th February 2005 and in the light of all the information before the court on the present application, Mr Hughes accepts that information is now available that could have been relevant to the conduct of the applicant's defence, even if not in a way which the judge or the applicant may have envisaged. But Mr Hughes also informs us and we accept that, had the prosecuting authorities known at the time of trial all that is now known, they would have declined to make any further disclosure to the defence, and would have preferred, in the manner contemplated by the judge, not to proceed with the charges and so to offer no evidence against the applicant. This would have led to his acquittal.
9. In these circumstances, it would not have been right for us, having regard to the character of the relevant information, to order its disclosure to the applicant. We are not in a position to express any view as to its ultimate significance before a jury if it had been disclosed. There are other features of the evidence at trial which could on any view have caused the defence difficulty, such as the defendant's fingerprints found on, and on an envelope in, the tin containing some of the drugs. The applicant's case at trial was both that he had discovered the tin just before the police arrived and had briefly opened it to see what it was, and also (implausibly as the jury must have thought in the light of the police evidence) that the police must have switched the drugs after executing the search warrant. But what is clear, in the light of all the material now available to us, is that the further information which we have seen as a result of the public interest immunity hearings which we have held would have been of potential relevance and value in the conduct of the defence at trial. In those circumstances, whatever a jury might ultimately have thought of it, the applicant's conviction can no longer be regarded as safe. For that reason, we considered it appropriate to grant permission to appeal, and to allow the appeal and quash the applicant's convictions accordingly. The Crown has not sought a retrial in these circumstances.
10. We add only that the course and outcome of this appeal show the importance attaching to the most searching investigation by the police, by prosecuting authorities and by courts of the facts relating to matters in respect of which public interest immunity is claimed, coupled with the most searching consideration of their possible relevance in the light of whatever defence is being advanced. The judge was not given a complete factual picture by the police in this case. Indeed, even the officer in the case who appeared before us at the first adjourned public interest immunity hearing in this application on 17^th December 2004 was himself surprised to discover the complete factual picture on the police side as it thereafter emerged and was put before us on 17^th February 2005 as a result of the further enquiries which we had ordered that he make. This course of events underlines the great caution necessary in the handling of public interest immunity applications made in the absence of the defence.