Practice and Procedure


PUBLISHED July 9, 2003

On a reference from the Criminal Cases Review Commission where information from an informant lead to a defendant's arrest failure to disclose evidence of the identity of the informer and motives for informing could not render the conviction unsafe as there was no possible use the defence could have made from the evidence. Further grounds, forming the basis of the referral, could not render the conviction unsafe as they were, or could have been rehearsed at the original appeal.Reference by the Criminal Cases Review Commission ('CCRC'), on the basis that the defendant's ('D') conviction on 30 July 1987 at Acton Crown Court for possession of a controlled Class B drug, namely cannabis, with intent to supply was unsafe. D was sentenced to three years' imprisonment. On 5 November 1986 as a result of information received two police officers were watching an address owned by C. D was seen arriving on foot carrying a blue carrier bag. The officers knocked on the door and C opened it. The officers identified themselves and stated they had seen D enter and thought he was carrying drugs. C invited the officers in to take a look. D was asked what was in the bag and said it was clothes. The bag was inspected and over 4KG of cannabis was found. D was cautioned and questioned about the bag then arrested and reminded of the caution. He was asked further questions about the cannabis. No contemporaneous note was taken of the conversation. When they arrived at the police station D asked to speak to a police officer privately and offered to tell him who gave him the drugs. The officer told D he would not make deals but any information would be of assistance. D asked for a solicitor and was informed that he was being held incommunicado. D was interviewed at 1.11pm but no contemporaneous note was taken. He was then interviewed again at 4.20pm and a contemporaneous note was taken which D refused to read and sign. At trial D gave evidence that he had met C whilst at college and formed a relationship with her. On the day in question he went to visit her but took no clothing or drugs to the house. When police entered he had had no idea who they were and when questioned denied all knowledge of the bag and its contents. He was not cautioned or told he was being arrested and no conversation had taken place. At the police station he did not ask to speak privately to a police officer but did ask to see a solicitor and there had been no interview at 1.11pm. An appeal against conviction and sentence was heard and dismissed on 29 July 1988. At that appeal two grounds were relied on, firstly that the judge's summing up was unfair as he had at one point expressed his own view as to D's credibility, and secondly the judge erred in law in admitting the evidence as to what was said at the police station and following arrest as it should have been excluded under s.78 Police and Criminal Evidence Act 1984 for breaches of Code C and s.58 of the Act, even though no application had be made at trial. In 1997 D applied to the CCRC and on 31 August 2001 the CCRC referred the case on the basis of the same evidence. A confidential annex attached to the CCRC's statement of reasons, containing details of the informant, was ordered to be disclosed. The only matter of potential significance on the referral was the discovery by the CCRC that C was the informer and that prior to February 1986 she had been convicted on 15 previous occasions for offences of shoplifting, and for the last offence in June 1984 had received 21 months' imprisonment. In February 1986 she was convicted again of shoplifting and was given a conditional discharge. In October 1986, six days prior to D being arrested, C was arrested for shoplifting and ultimately convicted in January 1988. Prior to that it was suggested to the Branch Crown Prosecutor that outstanding proceedings against C should be dropped. That suggestion was not accepted. The matter was referred on the basis that: (i) any information relating to the role of C as a police informant and any motive she may have had should have been disclosed to the defence as it strengthened their case; and (ii) the direction given on D's good character only assisted in relation to credibility and not to propensity. The remaining grounds of appeal rehearsed submissions made at the 1988 appeal.HELD: (1) It seemed unlikely that the prosecution were aware that C had been arrested six days prior to D's arrest. If they had they would probably have sought a Public Interest Immunity ruling from the trial judge and that would not necessarily be in favour of disclosure. C was not a registered informant but those giving information needed to be protected so far as possible in order to encourage others. (2) Actually knowing the identity of the informer would not, on the face of it, weaken the prosecution case or assist the defence case. C was not a witness for either side and it was difficult to see what use the defence would have made of the fact she had been arrested six days prior to D's arrest. The fact that at some stage a request was made that charges against C be dropped did not affect the safety of the conviction. It may well have been that C had her own interests to serve when she informed but almost any informer hoped of some sort of reward and in C's case it was forthcoming. Further, the prosecution's case was not dependant on C's evidence. (3) The contention that evidence should have been excluded faced the difficulty that no application was made to exclude evidence at trial. Counsel representing D at trial had sent the court a letter explaining his reasons for not making an application namely that at that time it was usual to reserve cross-examination of police officers until the jury could see their reaction, not to forewarn them when there was no prospect of having the evidence excluded. That was a perfectly sensible forensic decision which no appellate court should attempt to revisit. (4) An appeal should succeed if the court was satisfied that an application to exclude evidence "should obviously have been made and if made should have been granted" (R v Allen (2001) EWCA Crim 1607). However, the court could not be so satisfied and therefore could not conclude that the conviction was unsafe. (5) It was not surprising the judge only directed how good character could assist in relation to credibility but said nothing about propensity. R v Vye & Ors (1993) 97 CAR 134 was not decided until five years after the judge summed up and even then no discernible principle or consistent pattern emerged as to when a second limb direction as to propensity should be given. Further, there was no issue that a direction to propensity would have assisted the jury to resolve.Appeal dismissed.