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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Warren and Others v AG [2009] JCA 135 (01 July 2009) URL: http://www.bailii.org/je/cases/UR/2009/2009_135.html Cite as: [2009] JCA 135 |
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[2009]JCA135
COURT OF APPEAL
1 July 2009
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Before : |
Jonathan Sumption Esq., Q.C.; President; Dame Heather Steel, DBE, and Clare Montgomery, Q.C. |
Curtis Warren
John Alan Welsh
James O'Brien
Jason Woodward
Paul Hunt
Oliver Lucas
-v-
The Attorney General
Curtis Warren acting on his own behalf.
Advocate S. E. Fitz for Welsh.
Advocate J. W. R. Bell for O'Brien.
Advocate D. Gilbert for Woodward.
Advocate M. J. Haines for Hunt.
Advocate M. L. Preston for Lucas.
H. Sharp, Esq., Crown Advocate.
Advocate R. Tremoceiro, as an amicus to the Court.
The Deputy Judicial Greffier acting on his own behalf.
JUDGMENT
Montgomery JA:
Introduction
1. This is the judgment of the Court. These appeals concern criminal proceedings brought by the Crown before the Royal Court in which the defendants are charged with a conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. The charge relates to an allegation that there was an agreement between the defendants and certain Dutch nationals that they should import cannabis into the Island of Jersey from the continent between May and July 2007. The defendants were arrested before any cannabis was imported. We shall refer to the individuals in this judgment as the defendants, even though they are in some instances the Appellants (appealing with the leave of the Commissioner in the Royal Court), in other instances Applicants seeking the leave of this court and also Respondents to applications and appeals brought by the Crown. We shall similarly refer to the Crown as such throughout despite the fact that it is also variously Appellant, Applicant and Respondent.
2. The evidence led in support of the case for the Crown consists in the main of surveillance and other evidence relating to the contacts between the defendants and two Dutch nationals, Zulfu Vatandas and Mohamed Liazid. Mr. Warren is alleged to be the architect of the conspiracy and to have recruited Mr. Welsh to put his scheme into effect. The Crown alleges that it was Mr. Welsh who recruited the remaining conspirators. It is claimed that it was agreed that Mr. Woodward and Mr. Hunt would transport money to Amsterdam to buy the drugs from Liazid and that Mr. Welsh was then to drive to Amsterdam to collect the consignment of drugs from Liazid. Mr. Welsh had made contact with Mr. O'Brien whom the prosecution allege was to be responsible for transporting the drugs by boat from France to Jersey. However, following a meeting between Messrs Welsh, Liazid and Vatandas in Amsterdam, it appears that the purchase and transportation of the drugs was postponed. The Jersey Police then intervened and arrests were made before any importation could take place.
3. In the course of a preparatory hearing before the Royal Court, the Commissioner, Sir Richard Tucker KBE, made a number of rulings in relation to the admissibility of evidence sought to be adduced by the Crown. He also made a ruling restricting the contents of an audio surveillance schedule that has been prepared by the Crown for use in front of the jury. He also refused to recuse himself in the aftermath of an application made by Mr. Warren with a view to procuring the withdrawal of the then Crown Advocate, Advocate J. Gollop. In addition Commissioner Clyde Smith refused an application brought on behalf of Mr. Warren for leave to move for judicial review of a decision to refuse to grant him legal aid to instruct an English barrister to assist him in the trial.
4. Article 86(3) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (the PPCE Law) provides that, at a preparatory hearing, a Commissioner "may make a ruling as to any question as to the admissibility of evidence and any other question of law relating to the case."
5. Under Article 90 of the PPCE Law an appeal lies to the Court of Appeal from any ruling under Article 86(3) but only with leave. The jurisdiction of this Court under the PPCE Law was considered in the earlier decision of the Court in this case, Warren & others v AG [2008] JCA 135. The Court held that leave to appeal should not be granted
The issues
6. The rulings by the Commissioner give rise to issues as to the admissibility of:-
(i) The antecedent records of third parties (Liazid and Vatandas);
(ii) Records of prison visits made to Mr. Warren by Liazid and Vatandas;
(iii) The previous convictions of Mr. O'Brien;
(iv) Evidence obtained pursuant to letters of request;
(v) Anonymous documentary records and statements made by Dutch surveillance officers;
(vi) The evidence of Brig. L. C. Bal of the Dutch Police in relation to the identification of Vatandas;
(vii) Comments made by Mr. Warren on his entry into Jersey;
(viii) Evidence of a conversation between Messrs. Welsh and Warren referring to the mayor of Sao Paolo; and
(ix) Evidence of the exclusion of Mr. Warren from the Netherlands.
7. In addition the Commissioner has ruled that the Crown could not put before the jury a schedule of the audio surveillance recordings which includes details of the dates and times of calls, the identity of the speakers, and the Crown's interpretation of certain parts of the conversations in the form of commentary.
8. The Commissioner refused to recuse himself on the application of Mr. Warren. Mr Warren made the application on the basis that the Commissioner's failure to determine questions raised in relation to the conduct of Crown Counsel in Mr. Warren's favour showed the Commissioner to be biased.
9. Finally Commissioner Clyde Smith refused an application brought on behalf of Mr. Warren for leave to move for judicial review of the decision to refuse to grant him legal aid to instruct an English barrister to assist him in the trial in which he wishes to represent himself, having dismissed his Jersey advocate and having declined the appointment of a replacement.
The antecedent record of third parties
10. The Crown contends that the fact that Liazid and Vatandas have criminal convictions in relation to drugs offences committed abroad forms important background evidence that is relevant to prove the purpose of a conversation between Liazid and Mr. Welsh in a hire car in Amsterdam and a later meeting between Liazid, Vatandas and Mr. Welsh. Liazid is named as a co-conspirator in the indictment in Jersey. Vatandas is not named in the indictment but it is common ground that Vatandas and Liazid are both unindicted co-conspirators in the case.
11. The defendants contend, through Advocate Gilbert, that the foreign criminal convictions of third parties are not relevant or admissible under Jersey law and that, even if they were admissible, any such evidence should be excluded in this case in the exercise of the discretion conferred by Article 75 of the PPCE Law.
12. The Crown contends that the decision in Hollington v Hewthorn [1943] KB 587 does not operate in Jersey and that evidence of the previous convictions of a third party is admissible in Jersey to prove that a third party has been guilty of a criminal offence and to prove his bad character because the evidence is relevant. It was argued on behalf of the Crown that if the evidence is relevant then it is admissible.
13. The Commissioner held in his ruling dated 3 April 2009 that, whilst he was bound by the decision of this Court in Styles & others v AG [2006] JLR 210, to hold that evidence of the conviction of a defendant is not admissible in criminal proceedings in Jersey, this decision was not applicable to convictions of third parties. The Commissioner also held that he was entitled to disregard the decision in Hollington v Hewthorn. The Commissioner decided that foreign convictions of persons, other than defendants, were potentially admissible under the laws of Jersey and that the convictions of Liazid and Vatandas were relevant to establish the purpose of their meetings with Mr. Welsh and to rebut any suggestion that these were innocent encounters. The Commissioner held that the fact of the convictions could be proved by the production of foreign judgments or judicial documents and that the probative value of the evidence was not outweighed by its prejudicial effect.
14. The decision requires this Court to determine (i) the admissibility of evidence of previous convictions, as well as (ii) the form in which evidence of a previous foreign conviction, if admissible, might be received by the court. Finally, if the evidence is admissible and in a receivable form, it is necessary to consider (iii) any probative force it may have so that any potential for prejudice can be assessed for the purpose of determining whether the refusal by the Commissioner to exercise his discretion to exclude the evidence was reasonable.
15. (i) The admissibility of evidence of previous convictions. The question of the admissibility in evidence of the fact of conviction (whether in Jersey or elsewhere) is distinct from the question as to the admissibility of evidence of previous bad character since, on its face, proof of the fact of conviction is evidence only that a court has determined that a person has been guilty of an offence. It does not prove the underlying bad character or conduct of the person concerned.
16. The circumstances in which a determination of guilt may be made by a court will vary from cases where the determination is based upon an accused's confession or admission of guilt; to a jury trial where a jury accepts, but does not identify, evidence sufficient to prove the guilt of the accused. The method, burden and standard of proof will also vary according to the nature of the offence and the jurisdiction in which any trial takes place.
17. Furthermore proof of the fact of conviction primarily evidences the opinion of the convicting court. That opinion will almost invariably be based upon evidence before the convicting court that is not available to (or even admissible in) the trial court in which the evidence of the previous conviction is tendered.
18. It is for this reason that the common law countries have traditionally declined to admit in evidence, evidence of previous convictions, both foreign and domestic. Even in cases where the fact of previous conviction requires to be proved as a predicate fact in any proceedings (for example a trial for assisting an offender) the common law courts have not permitted that predicate fact to be proved by merely proving the fact of the offender's conviction.
19. In R v Welsh [1999] 2 VR 62 Brooking JA conducted a review of the jurisprudence of the laws of the United States of America, Canada, England and New Zealand before reaching the conclusion that the common law in Australia did not permit the fact of an offender's guilt to be proved by evidence establishing that the offender had been convicted. Brooking JA's conclusion was premised upon the proposition that proof of the previous conviction was liable to breach the common law rule against hearsay under which out of court admissions may not be used to provide evidence against a co-accused, whether indicted jointly or severally. In addition insofar as the evidence of conviction evidenced the opinion of the convicting court it was not admissible.
20. In our judgment, for the reasons identified in Welsh, evidence proving the existence of a previous conviction is not admissible under the customary law of Jersey and does not prove the underlying conduct of the person concerned. It follows that we agree with the views expressed by the Court of Appeal in Styles & others v AG [2006] JLR 210. The comments by the Court of Appeal cannot be dismissed on the basis that they are to be understood in the context of the convictions of a defendant. The Court of Appeal in Styles was recognising that, under Jersey customary law, the rules of evidence operated so as to exclude evidence of the fact of previous convictions of defendants and others. The scope of the exclusionary rule has been gradually reduced by legislation. The extent of the reduction has varied according to whether the convictions are foreign or domestic and according to whether they relate to a party to the proceedings, a defendant or a third party.
21. However for the reasons we set out below it is clear that there has been no relevant legislative change in Jersey that operates so as to statutorily reverse the customary law in relation to the admissibility of the evidence of foreign convictions. This is not a surprising state of affairs since the admission of foreign criminal convictions might result in significant unfairness to the person concerned given the possibility that such convictions may be imposed in circumstances that do not conform with basic notions of justice (for example convictions in absentia or based upon unwarranted evidential presumptions or even convictions imposed without any judicial process).
22. Given our views on the continuing exclusionary rule in relation to foreign convictions, it is not necessary to express a concluded view on the relevance of the decision in Hollington v Hewthorn [1943] KB 587. It appears to us that the decision in Hollington v Hewthorn, although it analyses some of the reasoning that underpins the original wide exclusionary rule as a matter of common law, was primarily concerned with a relatively narrow question as to the extent to which criminal convictions operated so as to give rise to a form of issue estoppel in civil proceedings. The decision has been abrogated in civil proceedings in England by the Civil Evidence Act 1968, has not been followed in other common law jurisdictions and has been roundly criticised by academic writers. However the 11th report of the Criminal Law Revision Committee (Comd. 4991) treated the rule as applying to criminal cases in England and Wales. The committee stigmatised as wrong and inconvenient what it saw the common law rule to be. The relevant passage was cited by the English Court of Appeal in R. v. Robertson [1987] Q.B. 920 at 925-6.
23. It is at least arguable that the position under Jersey Law is that the decision in Hollington v Hewthorn applies in criminal cases. However, on any view, the decision does not assist the Crown in this case and might present an additional obstacle to it in its application to adduce the evidence of the previous foreign convictions of Liazid and Vatandas.
24. As the result of the views expressed by 11th Criminal Law Revision Committee, sections 74 and 75 of the Police and Criminal Evidence Act 1984 were enacted in England and Wales. Articles 72 and 73 of the PPCE Law were enacted in the same form in Jersey, albeit nearly 20 years later.
25. Article 72(1) of the PPCE Law make the fact of conviction in Jersey by a person other than the accused admissible for the
26. It is to be noted that this provision relates only to convictions in Jersey and only applies where the fact of conviction or of the commission of an offence is relevant to any issue in the proceedings. The fact that the legislature in Jersey has made an exception to the customary law in relation to Jersey convictions does not provide any support for the conclusion of the Commissioner that evidence of foreign convictions may be admitted in evidence.
27. The Crown does not contend that Articles 72 and 73 of the PPCE Law, literally construed, apply to foreign convictions. It is nevertheless contended that Articles 72 and 73 of the PPCE Law abrogate the decision in Hollington v Hewthorn and the exclusionary rule in relation to both foreign and domestic convictions in Jersey. Crown Advocate Sharp relies upon the decision of the English Court of Appeal in R v Kordasinski [2007] 1 Cr App R 17 to the effect that evidence of foreign convictions may be admitted. However it is clear that the views of May LJ in Kordasinski were determined by reference to the provisions of section 99 of the Criminal Justice Act 2003 which abolished the common law rules in England governing the admissibility of evidence of bad character in criminal cases as well as the provisions of section 101 and 103 of that Act which permit evidence of a defendant's bad character to be admitted in most, if not all, English criminal trials. In our judgment it is not possible to regard the views of May LJ as mandating any judge-led alteration to the customary or common law rules in Jersey governing the admissibility of evidence of bad character in criminal proceedings.
28. A similar problem confronts the Crown in placing reliance on the English decision in ARA v Virtuso [2008] 3 All ER 637. In that case the approach of the court to the admissibility of the evidence of foreign convictions was decisively influenced by the nature of the civil recovery scheme implemented in Part V of the Proceeds of Crime Act 2002: There was no suggestion in the judgment of the court that the principles identified had any wider application outside that statutory scheme.
29. (ii) Receivability. The Commissioner held that the fact of the convictions, if admissible, could be proved by the production of foreign judgments or judicial documents. We agree. As May LJ held in R v Kordasinski such convictions are provable or receivable, as opposed to admissible, under s.7 of the Evidence Act 1851. If this is the method of proof chosen, it will also be necessary to adduce appropriate evidence to identify the person said to have been convicted as the person who was convicted: R. v. Mauricia (Richard Audberto) [2002] 2 Cr. App. R. 27. Judgments of foreign courts may also be proved under customary law for example by exemplifications under the seal of the court, if the court has a seal. In that case evidence must also be given that the seal affixed to the exemplification is in fact the seal of the court:
30. (iii) Probative force. The probative value of any evidence of bad character (whether of third parties or of defendants) in a criminal case depends upon the issues in that case. In England, even before the enactment of the Criminal Justice Act 2003, in cases involving drugs, evidence of bad character, either of the defendant or their associates, has been routinely admitted as "background information" in cases where an evidential connection had been established between the defendant and the drugs but the defence was that the connection arose innocently or accidentally. Those authorities include Willis (unreported) January 29th, 1979, CA, Thrussell (unreported) November 30th, 1981, Madden [1986] Crim LR 804, CA, Bagga (unreported) May 21st, 1986, and Groves [1998] Crim LR 200, CA. In each of these cases, the evidence the admissibility of which was in dispute showed, or tended to show, that the accused knew about the importation with which he was charged through his own involvement with drugs in other respects.
31. In R v Ilomuanya [2005] EWCA Crim 58 the Court of Appeal considered the relevance and admissibility of evidence of the conviction for drugs offences of persons other than the defendant (in that case persons whose names were found on documents in the defendant's possession who could be shown to have been convicted abroad). The Court held that the earlier unreported cases listed above were simply examples of the basic principle derived from Makin v Attorney General for New South Wales [1894] AC 57 and DPP v Boardman [1975] AC 421, that evidence tending to show that a defendant has committed criminal acts other than that charged may be admissible if it is relevant to an issue before the jury as to his guilty knowledge of the material fact, or facts, on which the charge he faces is based. The Court observed that
32. However the Court went on to hold that the evidence of the foreign conviction of the persons named was only relevant if it was relevant to prove the defendant's involvement in the drugs importation charged. It held that in Ilomuanya's case that it was not relevant. It added:
33. We are unable to accept that evidence of the conviction of Liazid and Vatandas or their previous bad character could have any real relevance to any of the issues that have thus far been identified as arising in this case. We are hampered in identifying the full range of issues by the fact that the defendants have thus far failed to identify the matters with which they take issue. However the bare fact that Liazid and Vatandas have been convicted of drugs trafficking in the past does not permit any valid inference to be drawn that, when they are observed talking to a particular defendant, the subject matter of the discussion must be present drugs offending. The position of Liazid and Vatandas is not significantly different from the position of Mr. Warren, where the Crown have now accepted the Commissioner's decision that any probative value proof of his bad character or convictions might have is outweighed by its prejudicial effect.
34. The matter might be different if the defence sought to advance a positive case in relation to any meeting or topic of conversation, such as an assertion that the meeting was a chance encounter with strangers. In those circumstances the unlikelihood of a man who is alleged to be party to a conspiracy to import cannabis falling into conversation with persons who are convicted drugs traffickers well known to one of the other conspirators would be relevant if the fact of the previous conviction were admissible under Jersey law. In that event we would consider that the probative value of such evidence would outweigh any prejudicial impact that it might have.
35. However for the reasons we have already set out, we do not consider any evidence of foreign convictions is admissible or relevant given the current state of the law in Jersey and the issues raised in this trial. We would therefore allow the appeal on two grounds, first that the evidence is inadmissible and second, that any relevance that the evidence can be shown to have is, at present, outweighed by its prejudicial impact on the defence.
The evidence of prison visits
36. The Commissioner has held that evidence of the conviction in the Netherlands of Mr. Warren cannot be lead in evidence. Mr. Warren has since refused to admit that he met Liazid and Vatandas in the Netherlands when he was incarcerated there. The Crown has accordingly sought to lead evidence of the records of the prison visits paid by Liazid and Vatandas to Mr. Warren under Article 65 of the PPCE Law.
37. The defence argue that the records are not admissible under Article 65 as they constitute evidence of Mr Warren's bad character. In addition, it is submitted that, even if admissible, the evidence would have such a prejudicial effect on Mr. Warren and the other defendants that it ought not to be admitted.
38. The PPCE law provides that:-
39. Advocate Fitz, who made submissions on behalf of all defendants apart from Warren submits that this evidence is not admissible as it is evidence of Mr. Warren's bad character. The evidence is contained in prison records and for that reason, she submits, it is inevitable that the jury would conclude that Mr. Warren has a bad character.
40. We do not agree that the evidence can be characterised as evidence of bad character. Any disclosure in the evidence of the fact that the meetings between Mr Warren and Liazid and Vatandas happened in a prison would only be incidental to proof of the facts which the Crown is seeking to prove. They are not relying on the prison records to prove bad character. The presence of Mr. Warren in a prison in Holland, even if proved, would not necessarily lead a jury to conclude he can only have been there as a convicted prisoner. A jury could, if necessary, be warned that it would be wrong to make any such assumption.
41. More fundamentally the Crown does not seek to adduce evidence that the meetings between Liazid, Vatandas and Mr Warren took place in a prison establishment nor does it seek to put the records of the prison, as such, before the jury. As is specifically contemplated in Article 65 the Crown wishes to adduce the facts stated in the documents, not the documents themselves. The facts that are said to be admissible are the fact that a person, who was identified by officials as person X on production of proof of his identity, met Mr Warren at a given street address in the Netherlands between specified times on specified dates.
42. In our judgment each of those statements may be put in evidence by the Crown stating those facts orally in front of the jury under Article 65 without any need for Mr. Warren to agree to that course. It would be within the case management powers of the Commissioner to permit the Crown to put a written schedule of the relevant information as a working document before the jury to aid their comprehension of the issues. If this is done we consider that it is not possible to characterise the facts admitted in evidence as bad character evidence or to contend that those facts are not admissible.
43. We should emphasise for the avoidance of doubt that the prison records are admissible under Article 65 and may be produced to the jury, in the event that Mr. Warren or the other defendants seek to challenge the evidence of his meetings with Liazid and Vatandas. In those circumstance the Crown would be entitled to put the prison records themselves in documentary form before the jury so as to establish their provenance and reliability.
The previous conviction of James O'Brien
44. In 2002 Mr. O'Brien was convicted of importing cannabis into Jersey by speedboat from the Normandy coast. The Crown argue that the conduct underlying the previous conviction should be admitted as similar fact evidence in accordance with the principles identified in Styles & others v AG [2006] JLR 210.
45. On 3 April 2009 the Commissioner held that the evidence of the conduct that led to the previous conviction was admissible as it was relevant to the question of identification and whether Mr. O'Brien was a likely candidate for selection as a member of a conspiracy aimed at importing drugs into Jersey by boat. It was capable of casting light on what was meant by "it" referred to in conversation between Welsh and O'Brien. The Commissioner held that the probative value of the evidence outweighed its prejudicial effect. Leave to appeal was granted by the Commissioner.
46. The defence case is that Mr. O'Brien was not a conspirator and was not likely to have been identified as a suitable person to participate in the conspiracy since the boat named Skiptide, associated with Mr. O'Brien, was not in a sea worthy condition. The defence contend that there were other boats and seafarers who were available to the defendants and that therefore any contact between Messrs. O'Brien and Welsh was an innocent contact unconnected with any conspiratorial agreement.
47. The prosecution case is that the jury are entitled to consider whether the contact between Messrs. Welsh and O'Brien was innocent, given that Mr. O'Brien was likely to have been identified as having the skills necessary to the successful importation of drugs. Mr. O'Brien's previous conviction shows his capacity to secure a seaworthy vessel and to navigate such a vessel loaded with drugs from France to Jersey clandestinely. Crown Advocate Sharp submits that the evidence also casts light on whom Mr. Welsh may have been referring as his "mate" when allegedly describing his intentions in relation to the proposed shipment.
48. Advocate Bell submits that there is no unique signature feature in the nature of Mr. O'Brien's offending and that the method used by Mr. O'Brien to import drugs into Jersey is common place, since most importations of drugs into Jersey are effected by private boat. Furthermore Advocate Bell submits that there is no evidence of system, there being only one occasion when Mr. O'Brien can be shown to have been involved in the importation of drugs by sea and that importation involved, moreover, different points of embarkation and delivery.
49. However the issue in this trial is the nature and purpose of the contact between Messrs. O'Brien and Welsh. In the circumstances we consider that evidence of Mr. O'Brien's role in a previous importation is highly relevant to that issue. There is no requirement for striking similarity or system to be shown where the issue is not one of identification but rather one of purpose. The jury are entitled to consider the likelihood that during the currency of the alleged conspiracy Mr. Welsh should have an innocent contact with a man with the skills necessary to carry forward the importation of drugs by private boat or whether that contact is only explicable on the basis that the contact was because Mr. O'Brien had been recruited to join the conspiracy by Mr. Welsh because of his established drug smuggling skills.
50. We consider, far from being unreasonable, the decision by the Commissioner that the probative value of this previous conduct exceeded its prejudicial effect was correct. The appeal under this head is therefore dismissed
The evidence obtained pursuant to letters of request
51. Statements prepared in accordance with Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001 are admissible in evidence under Article 65 of the PPCE Law. It was submitted that the statements in this case were not prepared in accordance with Article 4 since the requirement in Article 4(4) of the Criminal Justice (International Co-operation)(Jersey) Law 2001 had not been satisfied. Article 4(4) provides that:
52. The defence have argued that no purpose was identified in the letters of request. However it is obvious from even a cursory glance at the letters of request that the purpose for which the letters were sent was in order to use the evidence in the criminal proceedings against Warren and others. This much is apparent from the introductory words used in the letter of request dated 25 July 2009.
"VERY URGENT SUPPLEMENTARY LETTER OF REOUEST: Curtis Warren et Al. Her Majesty's Acting Attorney General for the Bailiwick of Jersey respectfully presents her compliments to the Ministry of Justice, the Netherlands and requests that consideration be given to providing the assistance sought in the instant Request, which is made further to the Requests dated the 11th and 19th July, 2007. Her Majesty's Acting Attorney General is most grateful for the considerable assistance already provided in respect of this investigation. Persons charged with drug trafficking offences in Jersey: The Acting Attorney General has charged the following defendants with conspiracy to import £300,000 of cannabis into the Island of Jersey: [The defendants are then listed and the assistance sought is listed]"
53. At the hearing before us this argument was not pursued by the defendants. However we should make it clear that, in our judgment, as the letter makes plain, the purpose of the request was clearly identified as being to provide evidence for use in criminal investigation and criminal proceedings. Furthermore we do not consider that it was necessary for the exception in Article 4(4) to be the subject of any positive evidence before the provisions of Article 65 of the PPCE Law could be applied. All that was required to be proved was that the statements have been obtained by virtue of an article 4 letter of request, see Article 4(6):-
54. For these reasons we consider that the Commissioner was right to refuse to exclude the evidence obtained pursuant to the letters of request and correct to refuse to grant leave to appeal.
Anonymous Dutch surveillance materials
55. The Crown has sought to adduce statements made by members of the law enforcement authorities in Rotterdam and Amsterdam reporting on the surveillance carried out in the Netherlands. The majority of the statements are made anonymously. The statements were made pursuant to a Letter of Request. It is accepted that they are admissible under Article 65 of the PPCE Law as they were made in accordance with Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001. However it is submitted that the evidence should have been excluded under Article 66 or 76 of the PPCE Law.
56. The Commissioner admitted the statements holding that no unfairness was caused to the defence in the particular circumstance of this case, since there was no specific challenge to the evidence and it did not constitute the sole or decisive evidence in the case. The Commissioner has refused leave to appeal his decision.
57. The provisions of Article 66 of the PPCE law are set out above. Article 76 of the PPCE Law provides:-
58. The defence submits that the use of Article 65 of the PPCE Law prevents the cross examination of the surveillance evidence and thus prevents the evidence being tested even if no specific challenge to the evidence was identified in the course of argument. There is no procedure in Holland which provides for cross-examination of the makers of the statements before they were sent to Jersey. The Commissioner concluded however that there was no unfairness to the defence in the absence of a specific challenge to the evidence or its integrity.
59. The Commissioner had well in mind the fact that there could be no cross-examination of these witnesses when he considered the question of unfairness. He had invited the Defence to address him on the matters likely to be the subject of cross-examination, and as to how the defendants would be prejudiced by being unable to challenge the evidence. Advocate Fitz indicated that she wished to test the credibility of the witnesses and their reliability. She wanted to ask the officers whether they knew what the Jersey Police had done. Mr. Warren, on his own behalf, said that he needed to explore that issue and a number of other questions and that it was unfair to be deprived of the right to cross-examine.
60. The Commissioner was not persuaded of the relevance of these matters, nor how an attack on credibility or reliability could realistically be mounted. The Defence do not positively challenge the Dutch evidence. The Defence application for leave is based on the denial of their right to cross examine. We were referred to R v Davis [2008] AC 1128 and the speeches of Lord Bingham, Lord Carswell, Lord Brown of Eaton-Under-Heywood and Lord Mance regarding the long established principle that, subject to recognised exceptions and statutory qualifications, a defendant in a criminal trial should be confronted by his accusers so that he might cross-examine them and challenge their evidence.
61. The Defence submit, and it is not in issue, that the statutory exceptions set out in Article 64 of the PPCE Law cannot apply to this evidence. There can be no justification to rule that the failure of the witnesses to attend is necessary to protect their identities. This could be done by protective measures. Nor, it is argued, do the provisions of Article 65(4), which concern business documents, apply here. Advocate Fitz submits that the fact that the evidence was obtained under Letters of Request cannot justify the witnesses' failure to attend and the subsequent breach of the Defendants' common law entitlement to be confronted by the witnesses against them.
62. The Commissioner's decision is said to be illogical, in that if Jersey officers had conducted such surveillance in Jersey there would have been no basis for an application for their evidence to be given in documentary format.
63. The Defence submit that the Commissioner took into account immaterial considerations when he accepted the guidance set out in R v Glen Williams 97/7714W2, R v Ryan Simmonds MacDonald [2008] EWCA Crim 2902 and the decision of the ECHR in Haywood v Sweden Application No14106/88 in weighing the probative value of the evidence against the prejudice of not being able to challenge the witness through cross-examination.
64. Further it is submitted the Commissioner wrongly took into account his view that the credibility of the officers could not be in issue. Here the Crown could not carry out its duty as described in Taylor v Crabb [1995] Crim LR 253 as quoted in Davis, to satisfy the Court that the creditworthiness of the witness has been fully investigated and the result disclosed to the Defence. It is also argued that he wrongly took into account the assumed need for the Defence to explain in detail the questions they wished to put to the witnesses.
65. It is not in issue that the evidence of the Dutch surveillance officers, which relates only to Mr. Welsh, is supported by other evidence, such as evidence of telephone calls, audio recordings and tracker surveillance. None of the evidence actually incriminates Mr. Welsh, and it is not solely decisive in proving guilt. The Crown's case is that this evidence provides an important but small link in the chronological chain towards establishing guilt.
66. In considering the exercise of his discretion to exclude the evidence, the Commissioner referred to the independence of the surveillance officers from all the defendants, especially Mr. Welsh, and their independence from the State of Jersey or the Law Officers' Department. He rejected any suggestion that they may have been influenced or tainted by the conduct of the Jersey Police as unrealistic and fanciful.
67. The Court of Appeal has to scrutinise and determine whether, in the exercise of his discretion under Articles 66 and 76, the Commissioner was wrong to rule that the evidence of the Dutch Surveillance Officers should be admitted in documentary form. Leave should not be granted unless it is seriously arguable ; see infra and R v B [2008] EWCA Crim 1144. We have considered whether the Commissioner has taken into account any immaterial consideration or failed to take into account a material consideration or whether his decision may result in unfairness to the defendants. We are satisfied that the Commissioner carefully took into account all the relevant issues and submissions in the exercise of his discretion and that his decision was neither fundamentally flawed nor one which no judge, properly directing himself, could have produced, nor wrong. It was well within the The evidence is admissible in documentary form under Article 65 of the PPCE Law and the ruling made under Articles 66 and 76 demonstrates that the judicial discretion not to exclude was properly exercised.
68. Submissions were also made that the evidence should not be given anonymously. The Commissioner referred to the general common law rule that a defendant should be allowed to confront his accuser. He took into account the decision of the House of Lords in Davis [2008] AC 1128 where it was there held that the use of anonymous evidence was not in all circumstances incompatible with the European Convention on Human Rights, but the fairness of the defendant's trial was to be assessed by reference to the proceedings as a whole, the extent to which the defendant had been handicapped in his defence by such anonymity and the extent to which the evidence was decisive, where a conviction was based solely, or to a decisive extent on the testimony of anonymous witnesses, the trial could not be regarded as fair. (Ruling par 17).
69. The Commissioner accepted that the Criminal Evidence (Witness Anonymity) Act 2008, which has not been incorporated into Jersey law, should therefore be disregarded. He considered as persuasive in Jersey however, both Davis and R v Mayers, Glascow and Others [2008] EWCA Crim 2989.
70. There is no reported case of witness anonymity in the Jersey courts.
71. The Commissioner carefully considered the effect of the proposed evidence in order to assess the fairness or otherwise of allowing it to be given anonymously. In this case the evidence is not the sole or decisive evidence against the defendants. It does not directly incriminate them, in stark contrast to the evidence in Davis. The Commissioner likened it to the evidence of the undercover officers referred to in Mayers. He ruled that the identity of the officers can be of no importance to the Defence and should be of no legitimate interest to them. They give objective evidence of observations which are supported by other independent evidence and the Commissioner observed that it was difficult to understand how knowledge of their identities could give any grounds for impugning their credibility, integrity or reliability.
72. Statements have been received from a law enforcement officer at the office of mutual legal assistance in The Hague, Netherlands, E.M.A.F. Vos. In a statement dated 5th March 2009 Vos confirmed that the material sent under international letter of request can be used for the trial in Jersey. He stated that "as a matter of principle the members of the surveillance teams will not give live evidence in Jersey, or by television link from Holland. The leaders of the surveillance teams are always aware of the true identities of the members and are available to give live evidence, or preferably by video link concerning the operation if it is necessary, but will not have personal knowledge of the observations made in the report. This situation is not special to Jersey or foreign courts, the position is the same in Dutch courts. The reason for this is based on a strong public interest in protecting the identity of the persons acting in this capacity and their procedures and protecting the integrity and resources of future operations. I confirm that any special measures that can be offered to hide the identity of the surveillance team, as they give their evidence will not change this position'"
73. The Commissioner concluded that the admission of this evidence, from anonymous witnesses, was compatible with a fair trial. He had the provisions of Articles 66 and 76 of the PPCE Law well in mind when he ruled that it was in the interests of justice to admit the evidence as requested and in his ruling that the admissibility of the evidence in this form would not so adversely affect the fairness of the proceedings that he ought not to admit it.
74. This Court has to consider whether it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for the Commissioner to exercise it as he did.
75. The Defence submit that the Crown had failed to provide any evidence as to the necessity for anonymity or the consequences of its removal. Jersey undercover officers are required to give evidence without the protection of anonymity. All parties accept the persuasive effect of Davis, but it is suggested that the Commissioner ignored the general application of the speeches in that case. Davis reflects the common law of Jersey and should be applied until such time as the States alter the position.
76. We are satisfied that the Commissioner took into account all the relevant matters and that his rulings on both the admission of this evidence in documentary form and that the anonymity of the makers of those statements should be preserved are within the discretion afforded to him and that it is not seriously arguable that that it was unreasonable for him to exercise his discretion in the way he did.
77. Leave to appeal the Commissioner's admission in evidence of statements and reports of anonymous Dutch surveillance officers and their superior officers in written format is refused.
The evidence of Brig. L. C. Bal of the Dutch Police
78. The commissioner held that the fact of contact between Vatandas and Mr. Warren could be adduced in evidence; however he refused to allow the Crown to read a statement in which Brig. Bal purported to identify Vatandas since the statement did not specify the basis on which Brig. Bal claimed to be able to make the identification. The Crown appeals against this decision on the ground that it is apparent from the statement that Brig. Bal was not identifying Vatandas but recognising him as somebody with whom he was already acquainted. The defendants seek to support the decision of the Commissioner. They also contend that the evidence should not have been admitted under Article 65 and was in any event so prejudicial that it should have been excluded in the exercise of the discretion of the Commissioner. The Commissioner granted the Crown leave to appeal on 22nd May. Leave to appeal was also been granted to all the Defendants on 29th May 2009.
79. Since the decision of the Commissioner in relation to this issue a further statement has been obtained indicating the basis on which Brig. Bal claimed to be able to recognise Vatandas. It is submitted that this is not a matter that should be considered by this Court but rather remitted to the Commissioner. The defendants suggest that the identification has been so tainted by the previous procedures as to render it valueless. The Crown has indicated that it no longer relies solely on the statement as presented to the Commissioner but will instead rely on the new statement from Brig. Bal.
80. We support the ruling made that the evidence of contact is admissible in evidence. The manner in which the evidence may be adduced will be a matter for the Commissioner.
Comments made by Warren on his entry into Jersey
81. The Crown appeal against the decision of the Commissioner to refuse to admit evidence to the effect that Warren responded when asked whether he was involved with drugs on his entry into Jersey: "I could take Britain back and I could take Jersey easily". The commissioner has refused leave to appeal against this decision.
82. The Commissioner refused to permit the Crown to adduce this evidence on the ground that at its highest the remark evidenced only a propensity to commit offences. It is quite clear that the comment was not an admission of current criminal activity. At its highest it might be regarded as a vainglorious assertion of Warren's past and present criminal potential. However such a remark is not relevant or admissible as a matter of Jersey law. The fact that evidence of propensity may be admitted in England and Wales following the enactment of the Criminal Justice Act 2003 does not assist the Crown. In addition the Commissioner held that even if the remark was capable of having probative value, its prejudicial effect far outweighed that value. We agree. The fact that the Crown has agreed that the word "back" should be removed merely serves to complicate matters. Were the evidence to be admitted Mr. Warren would placed in an impossible position if he sought to explain his remark since he could not explain its true meaning without running the risk of putting his character in.
Evidence of a conversation between Messrs. Welsh and Warren referring to the mayor of Sao Paolo
83. For the reasons set out below we do not consider there is any discernible error in the decision of the Commissioner to exclude this reference. The decision is in any event well within the range of appropriate decisions open to a reasonable trial judge, when weighing the probative value of the remark, as merely giving meaning to other parts of the conversation, against its clear prejudicial effect.
Evidence of the exclusion of Mr. Warren from the Netherlands
84. The Commissioner has held that this evidence is potentially admissible but has held it may not be admitted without a further application by the Crown. Given that the question of the admissibility of the evidence is at present theoretical we consider that any appeal in relation to the decision of the Commissioner can be raised if a further application is made for the evidence to be admitted at trial. It is not a matter which we propose to deal with in this Appeal.
The contents of the audio surveillance schedule
85. On 2nd April 2009 the Commissioner ruled on a series of applications concerning case management or admissibility of evidence. The rulings relate to a working document which sets out transcripts made of conversations recorded during covert audio surveillance operations between 14th and 21st July 2007 in Holland. The Crown had recorded explanatory commentary on the document, also the identity of the speakers and references to time and date. The document contains some transcription of words that were difficult to hear or apparently inaudible. The Defence objected to the form of this document and did not agree that the jury should have it as an aide memoir even though it was accepted in principle that a transcript of extracts of the audio surveillance recordings can be provided to the jury with appropriate directions. Mr. Warren did not accept even this, but the Commissioner nevertheless so ruled. This accords with the English practice approved by the Court of Appeal in R v Evans (2005) EWCW 3542, and is one which is commonly adopted.
86. The Commissioner accepted the Defence submissions and ruled that all commentary should be excluded, only speech which is actually recorded should remain, although he saw no reason why times and dates should not be admitted. He ruled that all matters objected to as inaudible should be removed from the transcript while not being removed from the recording to be played to the jury. The identity of a speaker should not be specified in the transcript. Slang should be deleted and he made specific rulings relating to parts of the transcript objected to as irrelevant. These included page 5 from 14:26:03 concerning a newspaper article about an arrest.
87. The Crown appeal against the decision of the Commissioner with his leave. It is unclear to us whether the Commissioner approached the question of the contents of the schedule as a matter of law or of case management. If, the Commissioner thought that he was precluded by law from allowing the commentary, we do not agree for the reasons set out below. The schedule is not evidence and there is no legal bar to placing such a document before the jury as a working document. It is simply a question of case management. If the decision was based upon this mistake of law, it would be appropriate to remit the question to him to consider what is the just and convenient course.
88. If however the Commissioner ruled on the contents of the schedule as a matter of case management, that would not be capable of being characterised as "a ruling as to any question as to the admissibility of evidence." It would be a case management decision which related to the use of explanatory material to be placed before the jury and not to the admission of evidence. The decision could therefore only give rise to a right to appeal for the Crown if it is was a ruling on "any other question of law relating to the case." In R v H [2007] 2 AC 270 the House of Lords held that, in order for an appeal on a question of law from a decision in a preparatory hearing, the Appellant must demonstrate that there was a determination of a question of law, and that the decision under appeal depended on the outcome of that determination. Lord Scott's formulation (approved by Lord Nicholls at paragraph 12 of his speech) was as follows:-
His grounds for refusal included: (i) the need to look at the application (para 14 of his reasons); (ii) the difficulty of obtaining the relevant records (para 18); (iii) his conclusion that the appellant had not shown she had reasonable cause to believe the material requested would assist her defence (para 19); and (iv) that the request for disclosure was not "proportionate". These grounds may or may not, taken together or singly, raise questions of law but I do not see how the judge's ruling can be described as a determination of a Lord Rodger expressed similar views at paragraph 59.
89. There is no question of law in the present matter which could have led the Commissioner to feel constrained to exclude the commentary, times, dates, identity of speakers and the other matters objected to by the Defence. These are all case management matters for the Commissioner to determine and are properly considered during a preparatory hearing under Article 84 (2) of PPCE Law. The purposes include (a) identifying issues which are likely to be material to the verdict of the Royal Court or jury and (b) assisting comprehension of those issues.
90. There are many advantages in assisting comprehension for a jury in having the kind of document proposed by the Crown. Such a document is not evidence. It is put before the Jury as a working tool to assist in their understanding of the issues in the case. In his ruling the Commissioner indicated that it will be open to counsel on either side to make appropriate comments in opening speeches or as the evidence unfolds and to invite the jury to make such notes as they think fit on their working document. In our view it is a matter for the judge to make his own decision as to how this document should be before the court in relation to the management of the trial.
91. When considering the submissions that the matters set out in the commentary etc must be strictly proved, the Commissioner indicated that he considered himself 'bound by the rules of evidence'. On 12th May he indicated that he very much regretted that the Crown was unable to include the identity of the speaker on the tapes, and that he hoped that the Court of Appeal will find a formula whereby 'they can permit the crown to include it' ...'it would be very helpful for them (the jury) to know who is saying what'. He indicated that in the face of the submissions he had ruled with no great enthusiasm. This is not a matter now for the Court of Appeal to decide but under Article 84(4)(b) the Commissioner should be invited to reconsider his ruling in relation to matters, not restricted to the evidence apparent from the recorded transcript, since it is clear to us that the Commissioner is not restricted by the rules of evidence in relation to the nature and form of explanatory material or working schedules that may be placed before a jury.
92. Article 84 (4)(b) of PPCE Law states that the Court may order the Prosecution to prepare the prosecution evidence and any explanatory material in a form that appears to the Bailiff to be likely to aid comprehension by the Royal Court or jury and to give it in that form to that court and to each accused
93. Although the form of the transcript working document is in our view a matter of case management and not properly the subject of an appeal, the Commissioner, who, apparently, felt constrained as a matter of law to make some of the rulings he did, gave leave. The admissibility of the words set out in page 5 that relate to the arrest of the Mayor of Sao Paolo is clearly within Article 86 (3) and susceptible to appeal. The Commissioner in the exercise of his discretion excluded these words on the ground of irrelevance. The Crown submit that the excluded passage is important evidence that the jury need in order to understand the context of the preceding words. This ruling is essentially a matter for the discretion of the judge under Article 76 of the PPCE Law. It is not arguably fundamentally flawed, unreasonable or wrong.
94. This appeal is therefore dismissed.
The application for recusal
95. The Commissioner declined to recuse himself on the application of Mr. Warren. Mr Warren made the application on the basis that the Commissioner's failure to determine questions relating to the conduct of Crown Counsel in Mr. Warren's favour showed the Commissioner to be biased.
96. The Court has considered the conduct of the then Crown Counsel, Advocate Gollop. It is not necessary for the Court to make any final decision as to the propriety of the conduct of Advocate Gollop since, on any view, it was an issue in relation to which there was room for an independent and impartial Judge to reach the view expressed by the Commissioner; namely that Advocate Gollop had acted properly.
97. The Commissioner refused Mr. Warren leave to appeal against his decision on the recusal application. In our judgment the Commissioner was right to so. No actual bias has been suggested or established against him. Furthermore, on any objective appraisal, the material facts give rise to no legitimate fear that the Commissioner might not have been impartial. The Commissioner has treated the defendants in general and Mr. Warren in particular with scrupulous fairness throughout the preparatory hearing. As this judgment recounts, the Commissioner has decided legal and evidential issues in favour of the defendants as well as against them. It is not legitimate for a litigant (even if he is acting in person) to allege a lack of independence or impartiality on the part of a professional judge merely because the litigant disagrees with a single interlocutory decision of that judge made during the course of a preparatory hearing. Any fair-minded observer would consider that it was necessary to consider the conduct of the Commissioner throughout the preparatory hearing as the circumstances relevant to whether there was any real danger or possibility of bias.
The application for judicial review
98. The final matter before us concerns the funding of Mr. Warren's defence costs. It arises in the following way. All the Defendants were originally represented by Jersey advocates appointed under the legal aid scheme. Mr. Warren was represented by Advocate Baker. The legal aid scheme is administered by the Acting Bâtonnier, and as a general rule the costs of providing the services of advocates falls upon the legal profession. Disbursements incurred by lawyers acting under the scheme and fees in specially onerous cases may be funded from the Legal Aid Vote, a fund administered by the Deputy Judicial Greffier. The Defendants' advocates applied to the Deputy Judicial Greffier for funds to meet the cost of instructing leading English counsel to advise on an application which they proposed to make to have the proceedings dismissed as an abuse of process. The Deputy Judicial Greffier granted that application. He took the view, mainly because of the lack of Jersey authority on the point, that it was appropriate to fund advice on the law of England from a jurisdiction in which such applications are commoner and whose case-law is generally treated as being of strong persuasive value in this jurisdiction.
99. The abuse of process application failed, and all but one of the Defendants thereupon dismissed their advocates. Mr. Warren has said that his reason for taking this course was that Advocate Baker was reluctant to accept his proposed defence tactics because they would compromise his professional position. All the Defendants other than Mr. Warren have subsequently either reinstated their previous advocates or arranged to be represented under the legal aid scheme by new ones. Mr. Warren, however, has resolved upon a different course. He wishes to represent himself, but with the assistance of English counsel, Mr. Anthony Barraclough. Mr. Barraclough would not, of course, have any right of audience, as Mr. Warren accepts. But he would attend the trial to advise him how best to handle his own defence. In particular, says Mr. Warren, he would be able to advise on suitable lines of cross-examination relating to the conduct of the Jersey Police and the Law Officers Department.
100. Accordingly, on 19 February 2009, Mr. Warren applied to the Deputy Judicial Greffier for funding for that purpose. On 4 March 2009, the Deputy Judicial Greffier declined to fund the retainer and attendance of English counsel for this purpose. His reasons, in summary, were (i) that Mr. Warren had given no good reason for dispensing with the services of Advocate Baker or declining to apply to the Acting Bâtonnier to be represented by any other Jersey Advocate; (ii) that by making available the services of a Jersey Advocate the legal aid scheme was doing enough to ensure that Mr. Warren was properly represented and the interests of justice properly served; and (iii) that Mr. Warren's main reason for wishing to be advised about how to cross-examine on the conduct of the Jersey Police and the Law Officers' Department was not to undermine their credibility but to reopen factual issues on which he had failed on the abuse of process application, which could have no relevance at the trial.
101. Mr. Warren was dissatisfied by the decision of the Deputy Judicial Greffier. He applied for leave to move for judicial review on the ground that it was irrational. On 1 June 2009, Commissioner Clyde-Smith refused leave, and the application is now renewed before us. In our judgment, the Commissioner's decision was right. There is no reason why the Deputy Judicial Greffier should fund the cost of taking advice from a lawyer who is not qualified in this jurisdiction when there are skilled criminal advocates, qualified in Jersey, who are available to Mr. Warren under the legal aid scheme. If Mr. Warren had been able to point to some reason for regarding the services of the Jersey bar as unsuitable, the Deputy Judicial Greffier would have been bound to give it proper consideration. But the defence of criminal charges and cross-examination at criminal trials are not a peculiarly English speciality, nor does Mr. Warren suggest that they are. He simply says that he does not want a Jersey advocate since, as he explained to us, he believes that a Jersey advocate will not carry out his instructions because of their professional concerns about the nature of those instructions.
102. Article 6(3) of the European Human Rights Convention entitles a person facing a criminal charge to defend himself in person or with legal assistance from a person of his own choosing, but it does not require that this assistance should be provided free of charge unless the interests of justice so require. Since the interests of justice will be sufficiently served by the provision of free representation or advice from a Jersey Advocate under the legal aid scheme, we cannot see that Mr. Warren's Convention Rights are being infringed. It follows that the Deputy Judicial Greffier's rejection of Mr. Warren's application cannot be characterised as irrational.
103. We would have regarded this application as hopeless for this reason, even without the additional reasons given by the Deputy Judicial Greffier for rejecting it. But we are bound to say that we share his concern that Mr. Warren's real object is to be advised by a lawyer while remaining free to conduct his defence in a way that would be improper for a professional advocate. We see no reason why he should be allowed to pursue that object at public expense. Moreover, it is unlikely to be productive in any event, because it would be the duty of the trial judge to stop any line of cross-examination which had no possible bearing on any issue properly raised at the trial and was calculated to achieve no more than embarrassment, obstruction or delay.
104. We have not overlooked the fact that the prosecution is receiving advice from English counsel. In our view this is irrelevant. The Deputy Judicial Greffier has no control over the manner in which the prosecution go about their business, which is funded from resources outside his control under the authority of the Law Officers. The amicus, to whom we are much indebted for his helpful advice, has drawn attention to the principle of 'equality of arms' which underlies some of the jurisprudence of the European Court of Human Rights under Article 6 of the Convention. However, we agree with him, that this principle does not require that the defence have access to the same level of advice and representation as the prosecution, provided that there is no bar to his having competent advice and representation. Since Mr. Warren is entitled to the services of the Jersey bar, which are more than competent, he has not been disadvantaged in any material, respect.
