Michaelmas Term [2010] UKSC 48 On appeal from: [2009] EWCA 2552

 

JUDGMENT
R v Maxwell (Appellant)
before
Lord Rodger
Lord Brown
Lord Mance
Lord Collins
Lord Dyson
DECISION GIVEN ON
17 November 2010
JUDGMENT GIVEN ON
20 JULY 2011
Heard on 19 and 20 July 2010
Appellant Respondent
Patrick O’Connor QC David Perry QC
Mathew Sherratt Louis Mably
(Instructed by Harrison
Bundey)
(Instructed by Crown
Prosecution Service)
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LORD DYSON
Introduction
1. The appellant and his brother, Daniel Mansell, were convicted of murder
and two robberies at Leeds Crown Court on 27 February 1998. The appellant’s
tariff in respect of his life sentence for murder was set at 18 years. On 1 December
2009, the Court of Appeal (Criminal Division) (Hooper LJ, Cooke and Swift JJ)
quashed the convictions following a reference on 25 November 2008 by the
Criminal Cases Review Commission (“CCRC”) on the ground that the convictions
had been procured by gross prosecutorial misconduct on the part of the police.
2. The Court of Appeal then had to decide whether to order a retrial. Section
7(1) of the Criminal Appeal Act 1968 as amended by the Criminal Justice Act
1988 provides:
“Where the Court of Appeal allow an appeal against conviction and
it appears to the Court that the interests of justice so require, they
may order the appellant to be retried”
3. After balancing the public interest in convicting those guilty of murder
against the public interest in maintaining the integrity of the criminal justice
system, the court decided to order a retrial. The question that arises on this appeal
is whether they were right to do so.
Outline of the facts
4. What follows is the barest outline of the facts. A fuller account appears at
paras 65 to 90 of the judgment of Lord Brown. The main prosecution witness at
the trial was Karl Chapman. He is a professional criminal and a supergrass. In late
1995 and early 1996, Chapman and the appellant were together in prison. The
appellant was serving an 8 year sentence for a series of robberies and Chapman
was awaiting sentence, having pleaded guilty to more than 200 offences of
robbery. On 3 June 1996, the appellant was released from prison. On 11 June
1996, a robbery took place at the home of two elderly brothers, Bert Smales aged
67 and Joe Smales aged 85. The incident was not reported to the police, but it was
later established that the robbers were masked, used violence to extract money
from the Smales brothers and stole more than £1,000.
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5. On 13 October 1996, the Smales brothers were the victims of a second
robbery committed in similar circumstances to the first. Both brothers were
subjected to physical violence. Joe Smales sustained injuries to the head which
resulted in a fractured jaw, internal bleeding and a fracture of the cervical spine.
He died in hospital on 7 November 1996 from pneumonia and deep vein
thrombosis which were the direct consequence of the attack.
6. Between December 1996 and April 1997, Chapman provided the police
with information and witness statements implicating the appellant and Mansell.
The appellant and Mansell were charged with the robberies of both of the Smales
brothers and the murder of Joe Smales.
7. At the trial, Chapman’s evidence (which occupied one week) was central to
the prosecution case. The defence sought to discredit him by suggesting that he
was expecting benefits of some kind from the police and that he therefore had an
interest in securing the convictions of the appellant and Mansell. Chapman
vigorously denied these suggestions.
8. Following the convictions, there were allegations in the local press that the
police were planning to pay Chapman a large sum of money upon his release from
prison. On the basis of these allegations, the appellant and Mansell applied for
leave to appeal their convictions. Leave was refused by a single judge on 30 July
1998. The applications for leave to appeal were renewed in early February 1999
and adjourned on two occasions to allow the CPS to supply further information.
On 5 November 1999, an ex parte hearing was held on a public interest immunity
application by the prosecution. In the course of the hearing, senior police officers
gave evidence to the effect that a reward of £10,000 had been set aside for
Chapman, but that he was not aware of it. The Court of Appeal accepted this
evidence and on 13 December 1999 dismissed the renewed applications for leave
to appeal.
9. The next significant event was the decision by the CCRC to investigate the
case. The North Yorkshire Police carried out detailed investigations into the
activities of the police. Their report formed the basis of the CCRC report in
November 2008. The findings of the report, which have not been challenged,
reveal that the police systematically misled the court, the CPS and counsel by
concealing and lying about a variety of benefits received by Chapman and his
family. These included not only financial reward, but, inter alia, visits to brothels
and permission to consume drugs in police company. Furthermore, allegations of
violent attacks by Chapman were not investigated, still less the subject of
prosecutions. The clear conclusion of the investigation by North Yorkshire Police
was that a number of senior police officers involved in the Smales investigation
had conspired to pervert the course of justice. They had deliberately concealed
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information from the court; they had colluded in Chapman’s perjury at trial; they
had lied in response to enquiries following conviction; and they had perjured
themselves in the ex parte leave hearing in the Court of Appeal. It was in the light
of its findings that on 25 November 2008 the CCRC referred the case back to the
Court of Appeal.
10. The appellant had meanwhile made a series of important admissions of guilt
to different persons between October 1998 and September 2004. These are
summarised by Lord Brown at paras 85 to 90 of his judgment. The Court of
Appeal said that these admissions provided “clear and compelling” evidence of the
appellant’s guilt of the murder and the robberies. That assessment has not been
challenged in the present appeal.
11. As I have said, the Court of Appeal allowed the appellant’s appeal against
conviction. They concluded that, if during the trial it had become clear that the trial
court had been deliberately deceived about the circumstances relating to Chapman,
the trial judge might well have stayed the prosecution as an abuse of process.
Alternatively, the judge might have applied section 78 of the Police and Criminal
Evidence Act 1984, and excluded the evidence of Chapman altogether, in which
case the appellant and Mansell would have been acquitted. In these circumstances,
the decision to quash the convictions was inevitable. More difficult was the
question whether or not to order a retrial.
12. The question for the Court of Appeal was whether, in the light of the
unchallenged findings of the CCRC and the clear and compelling evidence of the
appellant’s guilt of a shocking murder, the interests of justice required a retrial. In
particular, the Court of Appeal had to decide whether the police misconduct so
tainted the criminal process that it would on that account not be in the interests of
justice to order a retrial. The arguments before us proceeded on the basis that, in
substance, the issue for the Court of Appeal was whether a retrial would be an
abuse of process analogous to the question whether a trial at first instance should
be stayed on the grounds of abuse of process.
Retrials following prosecutorial misconduct
13. It is well established that the court has the power to stay proceedings in two
categories of case, namely (i) where it will be impossible to give the accused a fair
trial, and (ii) where it offends the court’s sense of justice and propriety to be asked
to try the accused in the particular circumstances of the case. In the first category
of case, if the court concludes that an accused cannot receive a fair trial, it will stay
the proceedings without more. No question of the balancing of competing interests
arises. In the second category of case, the court is concerned to protect the integrity
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of the criminal justice system. Here a stay will be granted where the court
concludes that in all the circumstances a trial will “offend the court’s sense of
justice and propriety” (per Lord Lowry in R v Horseferry Road Magistrates’
Court, Ex p Bennett [1994] 1 AC 42, 74G) or will “undermine public confidence in
the criminal justice system and bring it into disrepute” (per Lord Steyn in R v Latif
and Shahzad [1996] 1 WLR 104, 112F).
14. In Latif at page 112H, Lord Steyn said that the law in relation to the second
category of case was “settled”. As he put it:
“The law is settled. Weighing countervailing considerations of
policy and justice, it is for the judge in the exercise of his discretion
to decide whether there has been an abuse of process, which amounts
to an affront to the public conscience and requires the criminal
proceedings to be stayed: Reg. v. Horseferry Road Magistrates’
Court, Ex parte Bennett [1994] 1 A.C. 42 Ex parte Bennett was a
case where a stay was appropriate because a defendant had been
forcibly abducted and brought to this country to face trial in
disregard of extradition laws. The speeches in Ex parte Bennett
conclusively establish that proceedings may be stayed in the exercise
of the judge’s discretion not only where a fair trial is impossible but
also where it would be contrary to the public interest in the integrity
of the criminal justice system that a trial should take place. An
infinite variety of cases could arise. General guidance as to how the
discretion should be exercised in particular circumstances will not be
useful. But it is possible to say that in a case such as the present the
judge must weigh in the balance the public interest in ensuring that
those that are charged with grave crimes should be tried and the
competing public interest in not conveying the impression that the
court will adopt the approach that the end justifies any means.”
15. The same principles have also been applied by the Court of Appeal when
quashing a conviction on the grounds that it considers the conviction to have been
unlawful by reason of an abuse of process. An example of such a case is R v
Mullen [2000] QB 520 where the defendant was tried and convicted following his
illegal deportation to England.
16. There has been some debate in academic literature about the scope and true
rationale for the second category of abuse of process. I refer, for example, to the
writings of distinguished commentators such as Professor Ashworth (“Exploring
the Integrity Principle in Evidence and Procedure” in Essays for Colin Tapper,
2003) and Professor L-T Choo (“Abuse of Process and Judicial Stays of
Proceedings”, 2nd edition, 2008). Moreover, Mr Perry QC urged the court to adopt
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the approach taken by the majority of the Canadian Supreme Court to abuse of
process applications in R v Regan [2002] 1 SCR 297. Like Lord Brown, I see no
reason to depart from the settled law as expounded by Lord Steyn in Latif.
17. The present case is not, however, an appeal against a refusal to stay
criminal proceedings for abuse of process nor is it an appeal against the dismissal
by the Court of Appeal of an appeal against conviction on the grounds that the
conviction was unlawful by reason of an abuse of process. The Court of Appeal
quite rightly allowed the appellant’s appeal. The appeal to this court is against the
decision to order a retrial.
18. The use of the words “may order” in section 7 of the 1968 Act shows that
the Court of Appeal has a discretion to order a retrial following the quashing of a
conviction on appeal if it appears to the court that the interests of justice so require.
It is noteworthy that Parliament has not specified any of the factors that the Court
of Appeal may (or indeed may not) take into account when deciding whether or
not to order a retrial. Instead, Parliament has propounded a broad and
uncomplicated test and has entrusted to the good sense of the Court of Appeal the
task of deciding whether the interests of justice require a retrial, having regard to
all the circumstances of the particular case. That is hardly surprising since the
Criminal Division of the Court of Appeal is a specialist criminal court whose
judges have considerable experience and expertise in criminal procedural and
substantive law. All of them have had experience of conducting criminal trials and
of making rulings in accordance with the law, fairness and justice.
19. The interests of justice is not a hard-edged concept. A decision as to what
the interests of justice requires calls for an exercise of judgment in which a number
of relevant factors have to be taken into account and weighed in the balance. In
difficult borderline cases, there may be scope for legitimate differences of opinion.
I do not believe it to be controversial that a decision under section 7 of the 1968
Act as to whether the interests of justice require a retrial calls for an exercise of
judgment which should only be upset on appeal if it was plainly wrong in the sense
that it is one which no reasonable court could have made or if the court took into
account immaterial factors or failed to take into account material factors. It seems
very likely that the reason why there has been no other appeal to the House of
Lords or Supreme Court from a decision under section 7 is because of the expertise
that the Court of Appeal has in deciding questions such as whether the interests of
justice require a retrial and the difficulty of challenging such decisions on appeal.
20. Most appeals to the Court of Appeal where the court has to decide whether
the interests of justice require a retrial do not raise any issue of prosecutorial
misconduct. Typically, the court considers questions which include (but are not
limited to) whether the alleged offence is sufficiently serious to justify a retrial;
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whether, if re-convicted, the appellant would be likely to serve a significant period
or further period in custody; the appellant’s age and health; and the wishes of the
victim of the alleged offence. I do not believe it to be controversial that the gravity
of the alleged offence is an important relevant factor for the court to take into
account when deciding whether to order a retrial in a case which is not
complicated by prosecutorial misconduct.
21. In a case where the issue of prosecutorial misconduct is raised by an
appellant as a reason for refusing a retrial, the Court of Appeal may treat the case
as to some extent analogous to a second category application to stay a case. But the
analogy should not be pressed too far. The question whether the interests of justice
require a retrial is broader than the question whether it is an abuse of process to
allow a prosecution to proceed (whether or not by retrial). I do not, therefore, agree
with Lord Brown (para 98) that in each case the question is the same: what do the
interests of justice require?
22. The gravity of the alleged offence is plainly a factor of considerable weight
for the court to weigh in the balance when deciding whether to stay proceedings on
the grounds of abuse of process. At page 534D in Mullen, giving the judgment of
the court Rose LJ said: “As a primary consideration, it is necessary for the court to
take into account the gravity of the offence in question”. It is unnecessary to
engage with the academic criticism of this approach: see, for example, Professor
Ashworth’s article already cited at page 120. That is because, whatever the
position may be in relation to an application to stay proceedings for abuse of
process, it seems to me beyond argument that, when the court is deciding whether
the interests of justice require a retrial, the gravity of the alleged offence must be a
relevant factor. Society has a greater interest in having an accused retried for a
grave offence than for a relatively minor one.
23. No case has been cited to us where the court has had to consider the
relevance of prosecutorial misconduct in the original proceedings to the question
whether the interests of justice require a retrial. It goes without saying that, when
allowing the appeal in the present case essentially on the grounds of prosecutorial
misconduct, the Court of Appeal could not rationally have concluded that the
interests of justice required a retrial if the retrial would be substantially based on
evidence which was the product of that very misconduct. But the prosecution say
that their case at the retrial would not be based on that evidence at all. They rely on
the admissions made on various occasions by the appellant and contend that this
evidence is not tainted by the prosecutorial misconduct.
24. It is helpful to start by asking whether the interests of justice would require
a retrial in circumstances where the prosecution evidence at the new trial would be
incontestably free of taint. Let us suppose DNA evidence comes to light after the
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appellant has been convicted which strongly points to his guilt; or an apparently
credible independent witness comes forward and makes a statement implicating
the appellant. Let us further suppose that the prosecution say that, if there were a
retrial, they would only rely on the fresh evidence and would not adduce the
tainted evidence. In deciding whether or not the interests of justice require a retrial,
it is surely clear that the Court of Appeal would be entitled to disregard the earlier
misconduct since it would have no effect at the retrial. The only justification for
refusing a retrial on the grounds of the misconduct in such a case would be to mark
the court’s disapproval of that historical misconduct and to discipline the police.
But that is not the function of the criminal courts. Thus, for example, in relation to
a stay on the grounds of abuse of process where there has been prosecutorial
misconduct, in Bennett at page 74H Lord Lowry said:
“The discretion to stay is not a disciplinary jurisdiction and ought not
to be exercised in order to express the court’s disapproval of official
conduct. Accordingly, if the prosecuting authorities have been guilty
of culpable delay but the prospect of a fair trial has not been
prejudiced, the court ought not to stay the proceedings merely “pour
encourager les autres”.
25. The same approach was recommended by the majority of ten (of twelve)
members of the Royal Commission on Criminal Justice chaired by Viscount
Runciman (July 1993). At paras 47 to 50 of chapter 10, there is a section headed
“Appeals based on pre-trial malpractice or procedural irregularity”. They said:
“48. We are not unanimous on what should happen in cases of
malpractice, ranging from serious breaches of PACE to fabricating a
confession, where there is nevertheless other strong evidence of the
defendant’s guilt. Two of us think that if the pre-trial irregularity or
defect is sufficiently serious materially to affect the trial but not to
render the conviction unsafe, the Court of Appeal should retain the
power to order a retrial or to quash the conviction depending on its
view of the gravity of the defect. The rest of us believe that the Court
of Appeal should not quash convictions on the grounds of pre-trial
malpractice unless the court thinks that the conviction is or may be
unsafe.
49. In the view of the majority, even if they believed that quashing
the convictions of criminals was an appropriate way of punishing
police malpractice, it would be naïve to suppose that this would have
any practical effect on police behaviour. In any case it cannot in their
view be morally right that a person who has been convicted on
abundant other evidence and may be a danger to the public should
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walk free because of what may be a criminal offence by someone
else. Such an offence should be separately prosecuted within the
system. It is also essential, if confidence in the criminal justice
system is to be maintained, that police officers involved in
malpractice should be disciplined…..”
26. Does it make a material difference that (as in the present case) the evidence
without which there would be no order for a retrial consists of admissions which
the appellant would not have made but for the original misconduct which led to his
conviction and failed appeal? The Court of Appeal considered that the fact that the
admissions would not have been made but for the conviction which had been
obtained by prosecutorial misconduct was a factor militating against a retrial; but it
was no more than one of a number of relevant factors to be taken into account in
the overall decision of whether the interests of justice required a retrial. In my
view, the court was right to consider that the “but for” factor was no more than a
relevant factor and that it was not determinative of the question whether a retrial
was required in the interests of justice. It should not be overlooked that the
appellant made the admissions entirely voluntarily, no doubt because he
considered that it was in his interests to do so. As the court said, there were several
relevant factors which had to be weighed in the balance before a final decision
could be reached on the question of whether or not the interests of justice required
a retrial. The weighing of the balance is fact-sensitive and ultimately calls for an
exercise of judgement.
Appellant’s criticisms of the Court of Appeal’s decision
27. I now turn to the criticisms that Mr O’Connor makes of the approach of the
Court of Appeal. I accept that a criticism can properly be made of para 62 where
the court said:
“62. Grant is not a case in which, to use Lord Brown’s words in
Basdeo Panday, ‘but for an abuse of executive power, he would
never have been before the court at all.’ Putting the misconduct to
one side, the appellant could have a fair trial (and probably did).
Whilst helpful to the appellants, it should be remembered that Grant
involved, as Laws LJ said a deliberate violation of ‘a fundamental
condition on which the administration of justice as a whole rests’.
28. The statement in para 62 in relation to R v Grant [2006] QB 60, [2005] 2 Cr
App R 28 that it involved “a deliberate violation of ‘a fundamental condition on
which the administration of justice as a whole rests’” (ie legal professional
privilege) suggests that the Court of Appeal considered that the present case
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involved no deliberate violation of such a fundamental condition. If that is what
the Court of Appeal meant, they were wrong. The conduct of the police in the
present case was a gross violation of the appellant’s right to a fair trial and a far
worse case than Grant (like Lord Brown, I have considerable reservations as to
whether that case was correctly decided).
29. But the real complaint in this case is that the court failed to take properly into
account the fact that the proposed retrial evidence was the product of the
misconduct. As Mr O’Connor QC he puts it in his written case, “the court would
therefore be acting upon the fruit of the very misconduct at the heart of the case,
which would be unconscionable and incompatible with the integrity of the court
process”. He also submits that the decision reached by the Court of Appeal was
plainly wrong and should therefore be set aside by this court.
30. As one would expect, this experienced court carried out the balancing
exercise precisely and with great care. At para 66, they identified the reasons why
a retrial should not be ordered in the following terms:
“There a good reasons why a retrial should not be ordered. They are:
(i) the nature and scale of the prosecutorial misconduct;
(ii) the fact that the misconduct infected both the trial and the first
appeal;
(iii) the fact that the prosecution case was based more or less
entirely on the evidence of Chapman and the appellants would
not have been charged or tried in its absence;
(iv) the strong possibility that the trial would not have proceeded
(being either aborted by the prosecution or stayed by the
judge) if the circumstances of Chapman’s treatment by the
police had been made known to the prosecuting team;
(v) the circumstances in which Maxwell’s admissions were made,
namely:
(a) the first admission (to his solicitor) would not have been made
had it not been for the conviction obtained by prosecutorial
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misconduct. Having been made, it would never have come to
light had it not been for the fact that, due to prosecutorial
misconduct, the appeal failed and a subsequent investigation
by the CCRC was necessary, in the course of which Maxwell
waived privilege;
(b) the admissions made subsequently would not have been made
had it not been for the unsuccessful appeal and (in the case of
admissions to the North Yorkshire Police) the CCRC
investigation necessitated by the prosecutorial misconduct;
(vi) both appellants have served 12.5 years in prison, a longer
term than they would receive if they were found guilty of
manslaughter, the offence which Maxwell is admitting.”
31. At para 67, they said that they accepted the strength of these reasons. In
other words, they were not merely reasons militating against a retrial, but they
were strong reasons. But in carrying out the balancing exercise that they were
required to carry out, they concluded that the public interest in convicting those
guilty of murder outweighed the public interest in maintaining the integrity of the
criminal justice system on the facts of this case. They acknowledged that the
balancing exercise was difficult. That was because on the one hand, as Lord
Brown has described in graphic detail, there had been appalling misconduct by the
police. Had it been known at the time of the trial, it is almost certain that the
appellant would not have been convicted. On the other hand, the court said, (i) the
alleged offence, involving as it did the beating to death of an innocent and
defenceless 85 year old man at his home in the course of a planned robbery, was
particularly shocking and fully merited the minimum term of 18 years that was
imposed by the trial judge and (ii) there was new and compelling evidence
untainted by the prosecutorial misconduct. It is (rightly) accepted by Mr O’Connor
that the proposed retrial evidence, if accepted, amounts to clear prima facie
evidence of the appellant’s guilt of the murder. He also accepts that the evidence is
untainted by the misconduct except in the sense that the admissions would
probably not have been made but for the misconduct.
32. Mr O’Connor suggests that (ii) indicates that the court lost sight of the fact
that the new and compelling evidence would not have come into being but for the
misconduct of the police. But I cannot accept this. In the immediately preceding
paragraph, the court had carefully set out in para 66(v) the circumstances in which
the admissions had come into being. In using the phrase “untainted by the
prosecutorial misconduct” in para 67, what the court meant was that the evidence
was not the product of the misconduct and it was not the intended result of that
conduct. It is obvious that it could not have been in the contemplation of the police
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that the appellant would make the admissions that he made. He made the
admissions of his own free will for his own purposes. It is in that sense that the
evidence was “untainted”.
33. It is important to note the limited scope of the criticisms that Mr O’Connor
makes of the court’s approach. He accepts that the court was right to carry out a
balancing exercise and that all of the factors set out in para 66 of the judgment of
the court were relevant factors to be set in the scale against ordering a retrial. He
does not contend that there were other relevant factors which the court left out of
account. He also accepts that the public interest in convicting those guilty of grave
crimes such as murder was an important factor in favour of a retrial. Apart from
the point which I have dealt with at para 32 above, his sole criticisms are that the
case against a retrial was so strong that no reasonable court could have ordered a
retrial and that the court did not properly take into account that the admissions to
be relied on at the retrial were the product of the misconduct.
34. I do not accept that the conclusion that was reached by the Court of Appeal
was plainly wrong. They were faced with a difficult balancing exercise. In
deciding what the interests of justice required, the Court of Appeal were right to
respect the strength of the public interest in seeing that that those against whom
there is prima facie admissible evidence that they are guilty of crimes, especially
very serious crimes, are tried. This public interest is all the greater where, as in the
present case, there is compelling evidence of guilt.
35. As regards the criticism that the court did not properly take into account the
fact that the admissions were the product of the misconduct, in substance this is a
complaint that the court did not place sufficient weight on this fact. But the court
did identify it as a separate factor at para 66(v) of the judgment. This court, like
any appellate court, is always slow to allow an appeal on the ground that the
decision-maker failed to place sufficient weight on a relevant fact which it rightly
took into account. It must be a rare case where this court would interfere with the
exercise by the Court of Appeal of its power to order a retrial.
36. It is possible that a differently constituted Court of Appeal would have
arrived at a different conclusion from that reached by the court in the present case.
Different courts can legitimately differ as to the weight they accord to relevant
factors. But this court should not interfere with the Court of Appeal’s decision to
order a retrial in this case on the grounds that they failed to accord sufficient
weight to the “but for” factor unless we are satisfied that their decision was plainly
wrong. This was a difficult case because on the one hand the police misconduct
was so egregious and on the other hand the alleged offence was so shocking. I am
in no doubt that this court should not interfere with the way the balance was struck
by the court in this case. The decision was not plainly wrong.
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37. There was a strong case for concluding that the interests of justice would be
served on the facts of this case by requiring the appellant to face trial for the most
serious of crimes and requiring the offending police officers to face disciplinary
and possibly criminal proceedings. On the face of it, there is a strong case of
conspiracy to pervert the course of justice and forgery. No explanation has been
provided to the court as to why there have been no such disciplinary or criminal
proceedings. I cannot help but think that, if the offending police officers had been
disciplined and indeed prosecuted, the argument that a retrial based on the
appellant’s admissions would have been offensive to the court’s sense of justice
and propriety would have lost much of its force. In that way, the interests of justice
would have been served. Society would have signalled its intense disapproval of
the behaviour of the police. But the interests of society in having a fair trial of
those against whom there is new and compelling evidence untainted by the
misconduct would have been served by a retrial. To put it at its lowest, this was a
tenable view to hold as to what the interests of justice required on the facts of this
case. I do not consider that the question of whether the interests of justice required
a retrial of this appellant should depend on the fortuity of whether the offending
police officers were disciplined and/or prosecuted for their appalling misconduct.
38. In my view, the Court of Appeal were right to say that the balancing
exercise in this case was difficult. But for the reasons that I have given, there was a
strong case for ordering a retrial. More importantly, however, it has not been
shown that that they erred in law in deciding to order a retrial. I would dismiss this
appeal.
LORD RODGER
39. At the end of the hearing I inclined to the view that the appeal should be
allowed. Having considered the matter further, I now agree with Lord Dyson that,
for the reasons he gives, the appeal should be dismissed. I put the matter briefly in
my own words only because the Court is divided.
40. Lord Brown and Lord Dyson have outlined the appalling history of
misconduct by officers of West Yorkshire Police when the witness Karl Chapman
was a resident informant of that force and right up until Mr Maxwell’s first appeal
to the Court of Appeal. That misconduct can be described as “prosecutorial
misconduct”, but it is important to notice that the Crown Prosecution Service and
prosecuting counsel were lied to and duped just as much as the defence, the trial
court and the Court of Appeal at the hearing of Mr Maxwell’s first appeal. So this
is not a case where the Crown Prosecution Service or prosecuting counsel abused
their power, or indeed were in any way at fault in conducting the prosecution.
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41. Given the catalogue of events, it is at first sight surprising that none of the
police officers involved has been prosecuted or disciplined for his or her part in
these events. The true position was uncovered only as a result of an investigation
which was set in motion by the CCRC acting under section 19 of the Criminal
Appeal Act 1995. The investigating officer carried out a parallel criminal and
disciplinary investigation, the results of which were submitted to the Crown
Prosecution Service and to the relevant police disciplinary authority. No
proceedings of either kind were taken. The Court does not know the reasons for
this, but it would be quite wrong to assume that they were anything other than
entirely proper.
42. The investigating officer had to penetrate a closed world where police
officers had been prepared to conceal the true position from the prosecuting
authorities and the courts and where they had every incentive to conceal it from the
CCRC investigation. Not surprisingly, therefore, at various points the Statement of
Reasons indicates that evidence was obtained only in exchange for a waiver of any
potential disciplinary action based on what the witness told the investigating
officer. Waivers of disciplinary and prosecution proceedings as a result of
statements made to the inquiry are a familiar feature of public inquiries into
disasters of various kinds. They are the price that has to be paid for finding out
what happened and learning the lessons for the future. Here such waivers may well
have been necessary if the investigating officer was to achieve the purpose for
which he had been appointed, viz, to discover whether there had been misconduct
on the part of the police which would be a basis for referring Mr Maxwell’s
conviction to the Court of Appeal. In other words, Mr Maxwell’s appeal may well
have been made possible only because the investigating officer gave those waivers.
So it would not be surprising if, as a result of the investigation, there were grounds
for the Commission making the reference to the Court of Appeal, but there was no
proper basis for the prosecuting or disciplinary authorities taking action against
individual police officers.
43. Assuming – as the Court surely must – that the prosecuting and disciplinary
authorities have acted properly, I am satisfied that the lack of action against the
police officers concerned was not a relevant factor for the Court of Appeal to take
into account in deciding whether to direct that Mr Maxwell should be retried.
44. As Lord Dyson emphasises, this appeal is only against the decision of the
Court of Appeal to order a retrial. Lord Brown quotes the language of section 7(1)
of the Criminal Appeal Act 1968 at para 62 of his judgment. Comparable language
is to be found in section 6(1) of the Criminal Appeal (Northern Ireland) Act 1980 –
but nowhere else. The language has been very carefully chosen to make it clear
that the whole matter is one for the determination of the Court of Appeal. For my
part, I would not gloss the crucial words of the test (“and the interests of justice so
require”): the Court of Appeal is to ask itself whether it appears that the interests
Page 15
of justice require it to order a retrial. As Lord Dyson observes, the assumption
must be that Parliament left the question of a retrial to be decided on this broad
basis by members of the Court of Appeal who could be expected to have
knowledge and experience in these matters – and who, moreover, could be
expected to be familiar with the relevant facts of the particular case from the
proceedings which had led them to allow the appeal. Of course, if the Court of
Appeal reached a decision on retrial which no reasonable Court of Appeal could
have reached, then doubtless this Court could intervene to put matters right. But
that is not the position in this case.
45. The Court of Appeal admitted that it had found the decision difficult. In
para 66 it set out the factors against ordering a retrial and then went on, in paras 67
to 83, to describe what it saw as “the new and compelling” evidence against Mr
Maxwell. Having done so, the Court of Appeal did not explicitly weigh the
competing considerations. Initially, I was inclined to think that this was a flaw in
the court’s approach. But, on reflection, I am satisfied that it would be quite unfair
to impute such a failure to the experienced members of the court when they have
carefully alluded to the rival considerations. In the absence of any indication to the
contrary, it must be assumed that the Court of Appeal duly weighed them and so
reached the view that it should order that Mr Maxwell should be retried, even
though no retrial was to be ordered in Mr Mansell’s case.
46. Of course, if differently constituted, the Court of Appeal might have come
to a different conclusion. And, clearly, Lord Brown would have done so – on the
narrow ground that the present case falls within what he describes as the “but for”
category of cases: “but for” executive misconduct, the defendant would not have
been brought to this country and placed before the court; “but for” executive
misconduct, the defendant would not have committed the crime for which he was
to stand trial. Here, “but for” the misconduct of the police officers, the chances are
that Chapman would not have given evidence against Mr Maxwell or that, if he
had, he would have been discredited. So, “but for” their misconduct, Mr Maxwell
would not have been convicted and so would not have made the statements on
which the prosecution intends to rely in any retrial. In my view, however, that
would be to take this line of reasoning too far. The statements were made by Mr
Maxwell voluntarily and for his own purposes. Indeed, one of them was made for
the purposes of the very investigation by the CCRC which led to his appeal being
allowed. The use of those statements by the prosecution would involve no abuse of
the trial court. The fact that the statements would not have been made but for the
antecedent misconduct of the police is not enough to taint them – any more than it
would taint, say, DNA evidence which was now available only by reason of
advances made in research since Mr Maxwell was charged, or evidence of a
witness who had come forward as a result of reading reports of the investigation
into the misconduct of the West Yorkshire Police.
Page 16
47. The fact that the statements would not have been made but for the police
misconduct was a factor to be taken into account by the Court of Appeal in
deciding whether the interests of justice required that it should order a retrial. That
is precisely how the Court of Appeal treated it in para 66. Having taken that factor
into account, it still appeared to the Court that the interests of justice required it to
order a retrial. That was a decision which the Court of Appeal was entitled to reach
and with which, accordingly, this Court is not entitled to interfere.
LORD MANCE
48. There was in this case the gravest police misconduct both before and at
trial, and it was persisted in during the first set of appellate proceedings. Once
revealed, it was inevitable that the appellant’s conviction should be set aside on a
further reference to the Court of Appeal. That does not resolve the question
whether, having allowed the appeal, the Court of Appeal was justified in ordering
a retrial.
49. Under Criminal Appeal Act 1968, section 7, it was for the Court of Appeal
to decide as a matter of discretion whether there should be a retrial. The Court of
Appeal, when allowing a conviction, has the power to order a trial, if “it appears to
the Court that the interests of justice so require”.
50. It is common ground that the exercise of discretion involved a balancing
exercise. It is also common ground that the Court in its full and clear judgment on
the point identified all relevant factors. Lord Dyson sets out the court’s reasoning
in paras 30 to 35. Like him, I consider that it is clear (in particular from the
language of para 67 of the court’s judgment) that the court weighed all of these
factors in reaching its decision.
51. Essentially, the criticisms made of the Court’s decision focus on (a) the
seriousness of the police misconduct, (b) the fact that, but for such misconduct,
there would have been no original trial and so the context in which the appellant
made the admissions on which reliance is now placed would never have existed
and (c) the submission that the Crown in proceeding against the appellant on the
basis of those admissions is and would be, or be seen as, condoning or taking
advantage of the police’s misconduct.
52. On behalf of the appellant, it is argued that the Court of Appeal must either
have failed to take such considerations sufficiently into account when performing
the relevant balancing exercise or for some other reason simply reached a decision
not open to it in their light. The latter (and as I see it probably also the former)
Page 17
submission amounts to saying that the court’s exercise of its discretion was one
which no reasonable court could reach in the circumstances.
53. This is not an easy case. The egregious and persistent nature of the police
misconduct involved invites a forceful response. But it is common ground that it is
not the court’s role to refuse a retrial under section 7 of the 1968 Act in order to
discipline the Crown for the police’s misconduct, and the fact that the police
misconduct has not received the sanction it deserved is not a reason to depart from
this stance. The court is however entitled to take into account the effects of
ordering a re-trial, including any perception that might be created that the Crown
condoned misconduct and any general discouragement of future misconduct that
might be achieved.
54. It is not suggested that the admissions on which the Crown wishes to rely
were made other than freely and voluntarily; and I do not myself see any basis for
regarding the Crown, or for thinking that right-minded people would regard the
Crown, in relying on them as condoning misconduct or as adopting “the approach
that the end justifies any means” (see R v Latif [1996] 1 WLR 104, 113, per Lord
Steyn). I also find unconvincing any suggestion that refusal to order a retrial in the
present case would have any real incentive effect on police behaviour. Further, the
court is entitled to bear in mind the effect on public confidence in the
administration of justice if persons who have on their face of it admitted to very
serious crimes (and who, if their admissions are true, perjured themselves at the
original trial) are not retried (as they in fact said they wished when making the
admissions) in order to establish the truth.
55. I have had the benefit of reading in draft all four of the judgments which my
colleagues have prepared. Lord Brown in para 105 concludes that “Given,
however, the ‘but for’ character of this case and the enormity of the unpunished
police misconduct involved, it seems to me quite simply inappropriate that it
should now be retried on fresh evidence” and that “Unless one is to say that in
relation to serious crimes the ‘but for’ approach is to apply only in the context of
wrongful extradition, it is difficult to think of any case where the stay principle
would properly be invoked if not here”.
56. However, I consider the present case to be significantly different from those
involving extradition and entrapment to which Lord Brown refers. In R v
Horseferry Road Magistrates Court Ex p Bennett [1994] 1 AC 42 and again R v
Mullen [2000] QB 520, the government’s wrongful act in bringing the relevant
defendant within the jurisdiction was the very direct cause of his standing in the
dock. In an entrapment case, the police act is one which leads directly to the
commission of the alleged crime itself. In the present case, the alleged crime was
Page 18
independent of any police act, and the admissions were made voluntarily of the
appellant’s own choice and for his own purposes.
57. It is true that the context in which the admissions were made would not
have existed but for the police misconduct. But the voluntary element is important;
it breaks the directness of the chain of causation and it relegates the police
misconduct to the status of background. Indeed, in respect of one of the
admissions, if the prior trial was part of the background at all, it appears to have
been very remote background. The appellant’s letter to Detective Inspector Steele
of West Yorkshire Police dated 9 February 2000 making the admission describes
how it came about:
“Dear Mr Steele,
We met some time ago at armley prison when you came to eliminate
me from enquiries into the death of isabel grey.
As you are no doubt aware I am currently serving a life sentence for
the murder of Joe Smales and the robbery of Joe’s brother Bert. I
initially denied these offences, however I now fully admit my guilt.
I watched you on television last night and decided to write and offer
any help that I can give you, in your Quest to protect the old and
vulnerable I have no ulterior motives for doing this and want nothing
in return.
If you could compile a detailed Questionaire I will willingly supply
you with detailed answers.
Best wishes
Paul Maxwell”
58. I am not sure that I share Lord Brown’s difficulty in conceiving of cases
other than the wrongful extradition cases in which a ‘but for’ link with a proposed
trial might require the court to refuse a fresh trial. Suppose in the present case that
the police or prison authorities had improperly recorded conversations between the
appellant and his solicitors after his original conviction, and had as a result
discovered independent evidence (e.g. DNA evidence or another third party
Page 19
witness) linking the appellant to the crime. In those circumstances, a re-trial could
well be refused.
59. I would also reject any suggestion that the Supreme Court should treat the
Court of Appeal as having reached a decision not reasonably open to any court on
the present facts. On this aspect, as on others, I find compelling the judgment and
conclusions of Lord Dyson. I also agree with Lord Rodger’s supplementary
observations.
60. For these reasons, I am unable to accept that the Court of Appeal erred in
any way entitling the Supreme Court to interfere with its decision to order a retrial.
LORD BROWN
61. Few of those urging upon the court a vindication of the rule of law could be
less deserving of its benefits than this appellant. A professional criminal with a
history of violent crime, he is almost certainly guilty of the murder and the two
robberies of which he was convicted (together with his brother, Daniel Mansell) by
the Crown Court at Leeds on 27 February 1998. These were shocking offences
indeed, callous attacks upon elderly reclusive brothers in their own home, the
second involving injuries of such severity as to occasion the elder brother’s death
within the month. The appellant’s tariff (in respect of his life sentence for murder,
imposed concurrently with twelve-year terms for the robberies) was set at eighteen
years. It was not a day too long.
62. The 1998 convictions were, however, as later investigations by the North
Yorkshire Police and the Criminal Cases Review Commission (CCRC) were all
too clearly to demonstrate, procured by tainted evidence and prosecutorial
misconduct of the gravest kind. Following a reference by the CCRC, the Court of
Appeal (Criminal Division) (Hooper LJ, Cooke and Swift JJ) accordingly had no
alternative but to quash them: [2009] EWCA Crim 2552, judgment of 1 December
2009. So much was by then undisputed. What was in dispute, however, and
remains the central issue upon this further appeal, was whether or not the appellant
should be retried pursuant to section 7(1) of the Criminal Appeal Act 1968.
Section 7(1) provides:
“Where the Court of Appeal allow an appeal against conviction and
it appears to the Court that the interests of justice so require, they
may order the appellant to be retried.”
Page 20
In the course of a thoughtful and thorough reserved judgment given by Hooper LJ
the Court of Appeal:
“reached the conclusion (not without difficulty) that the public
interest in convicting those guilty of murder outweighs the public
interest in maintaining the integrity of the criminal justice system.
This was a shocking case and if there is new and compelling
evidence untainted by the prosecutorial misconduct revealed by the
findings of the North Yorkshire Police and the CCRC, we should
order a new trial. In particular we bear in mind that the new and
compelling evidence relied upon by the respondent as against
Maxwell consists of admissions made to the North Yorkshire Police
by Maxwell with the benefit of legal advice during the course of an
investigation into the safety of his convictions and that Maxwell said
to the police that he would like a retrial and that he would plead
guilty to the robberies and manslaughter.” (para 67)
The Court of Appeal accordingly ordered that the appellant be retried and
meantime remain in custody. No such order was made in respect of Mansell (who
had made no post-conviction admissions of guilt and against whom, therefore,
there was no new and compelling evidence) and he was accordingly set free.
63. The point of law of general public importance subsequently certified by the
Court of Appeal was this:
“May the Court of Appeal order a retrial having quashed a
conviction on the grounds of serious executive or prosecutorial
misconduct, and, if so, in what circumstances?”
In reality what the Court must now decide is whether, having regard to all the
circumstances of this case, the Court of Appeal could properly reach their
conclusion that the interests of justice require this appellant’s retrial based
substantially upon his post-conviction admissions of guilt.
64. As the Court of Appeal recognised, plainly there is a public interest in
convicting those guilty of murder. Plainly too there is a public interest in
maintaining the integrity of the criminal justice system. No less plainly, each
interest is of a high order. Where, as here, these interests appear to conflict, how
should that conflict be resolved? This is by no means an easy area of the law.
Obviously, however, it is an important one. With that brief introduction let me at
Page 21
once turn to the facts, critical as ultimately these must be to the determination of
this appeal.
The two robberies
65. The robberies took place respectively on 11 June 1996 and 13 October
1996, on each occasion at the Yorkshire home of two vulnerable and reclusive
brothers, Bert Smales aged 67 and Joe Smales aged 85. They were known to keep
substantial sums of money in the house and had more than once been burgled in
the past although this had never been reported to the police (as similarly the June
1996 robbery went unreported). On both occasions the robbers were masked; on
both they used violence in demanding to know where they brothers kept their
money; on both they stole a few thousand pounds. It appears, however, that
substantially greater violence was used in the October robbery. On that occasion
Bert Smales suffered a fractured nose and forehead, his injuries leaving him with
little recollection of the robbery beyond opening the door to his attackers. Joe
Smales was punched in the face so severely that he suffered not only a fractured
jaw and internal bleeding to the head but in addition a fracture of the cervical spine
(broken neck); from his resultant prolonged immobility in hospital he developed
pneumonia and a deep vein thrombosis from which on 7 November 1996 he died.
Although it is unclear which of the robbers attacked which victim, the level of
violence used in the October robbery and, indeed, the admissions that the appellant
came to make in his post-conviction statements clearly supported a conviction for
murder on the basis of joint enterprise and it is unsurprising that Mr O’Connor QC
has never submitted on his behalf that any retrial should only be on a charge of
manslaughter.
Karl Chapman
66. Chapman is a central figure in this case and it will be necessary to say more
about him later. It is convenient, however, to introduce him briefly at this stage, he
having been the main prosecution witness at the appellant’s trial, without whose
information and evidence, indeed, the appellant (and Mansell) would never have
been indicted, tried or convicted at all. Chapman (like the appellant) is a
professional criminal. In late 1995 and early 1996 both men were together in
prison. The appellant was serving an eight-year sentence (from which he was
finally released on 3 June 1996) for a series of robberies; Chapman was a remand
prisoner having pleaded guilty on 31 July 1995 to no fewer than 267 offences
(including 256 similar offences taken into consideration), mostly “bogus official”
robberies targeting frail and elderly victims. Chapman eventually came to be
sentenced on 23 December 1997 to a term of 9 years’ imprisonment, a sentence to
be contrasted with the 25-year term imposed for comparable offences committed
by an erstwhile associate of his named Ford against whom Chapman had earlier (in
Page 22
November 1996) given evidence, as indeed he was to give evidence (in February
1998) against the appellant and Mansell.
67. As already stated, the appellant was released from prison on 3 June 1996,
just eight days before the first Smales robbery. It now seems clear that it was from
Chapman that the appellant learned of the address and vulnerability of, amongst
others, the Smales brothers and it is clear too that during the period when these
robberies were committed the appellant and Chapman remained in touch.
68. In December 1996 Chapman began to provide the police with information
pointing to the appellant’s involvement in these robberies, a process leading in
April 1997 to him making a series of witness statements, on the basis of which the
appellant and Mansell were on 28 April 1997 arrested, charged and ultimately, on
27 February, 1998, convicted. As stated in the agreed statement of facts and issues:
“without Chapman’s evidence, there could have been no prosecution at all.”
The February 1998 trial and conviction
69. The trial lasted three weeks, Chapman’s evidence occupying five days: 5, 6,
9, 10 and 11 February 1998. Not surprisingly, his evidence was fiercely challenged
by both defendants. As the judge later put it in his summing up, it was the defence
case that Chapman was “bent as a fourteen pound note”. More particularly the
defendants were alleging that by giving incriminating evidence against them,
Chapman, notwithstanding that he had already been sentenced the previous
December, was still expecting benefits of one sort or another, whether by way of
earlier release on parole or otherwise. All this Chapman resolutely and persistently
denied as appears from a number of passages in the summing up, for example:
“Now, he knows what date he is due to be released and that that will
happen whether or not he gives evidence in this case. He has got his
date in the year 2000. That cannot be delayed beyond that time. He
says he has nothing to gain by giving false evidence against the
defendants.” (Chapman was, in fact, released in August 1999.)
“The what’s-in-it-for-him line was pursued and I will remind you
again of it briefly . . . He says, ‘There’s nothing. I am putting myself
at risk for the rest of my life.’
“He was then taken through the privileges that he had enjoyed as a
supergrass, and what the wing was like. Well, there is no suggestion
Page 23
that he was accorded privileges that were any greater than those
accorded to other supergrasses.”
70. Chapman’s evidence was, there can be no doubt, damning against both
defendants. It did not, however, stand entirely alone. Rather, as the (263 page)
CCRC report was later to say, it “was supported by a ‘jigsaw’ of other pieces of
evidence”. In particular there was evidence (i) of telephone calls between
Chapman and the appellant on key dates, (ii) of Mansell’s arrest for a driving
offence on his way back to Lancashire from Yorkshire on the day of the June
robbery, (iii) of the appellant having reconnoitred the home of another of
Chapman’s previous victims, Miss Bell, (iv) of the appellant being in Leeds and
attempting to contact Chapman on the day of the October robbery, (v) of an A-Z
map given to the police by Chapman bearing the appellant’s fingerprints and
containing various markings seemingly connecting the appellant to the addresses
of other Chapman victims in the Yorkshire area, (vi) of a letter from the appellant
to Chapman in July 1996 referring to “coming over to Leeds for a day’s work”,
apparently alluding to the burglary of another of Chapman’s previous victims, (vii)
of Mansell’s identification by a neighbour of the Smale brothers as one of two men
she had observed hurrying by on the afternoon of the October robbery, (viii) of a
footwear mark found at the scene of the October robbery consistent with the size
and brand of Mansell’s boots, (ix) of lies told by the appellant and Mansell about
their movements on the days of the robberies in the course of police interviews,
and (x) of the appellant’s creation of a false alibi for the time of the October
robbery (as he was later to admit).
71. In the event both defendants were convicted by majority verdicts of 10:2
some 9 hours and 40 minutes after the jury first retired.
The 1999 appeal
72. Within days of the appellant’s conviction press reports in the Yorkshire
Evening Post suggested that £100,000 had been set aside to provide Chapman with
assistance on his release from prison. Those then acting for the appellant and
Mansell immediately sought clarification of this from the CPS but made little
headway, their initial application for leave to appeal against conviction being
refused by the single judge on 30 July 1998. In February 1999, however, fresh
solicitors and counsel were instructed and extensive further enquiries were then
made of the CPS both as to any payment promised to Chapman and more generally
as to his treatment by the police. The appellant’s and Mansell’s renewed leave
applications to the Court of Appeal were adjourned on account of these enquiries
first from 30 April 1999 and then again from 8 July 1999, on each occasion for the
CPS to supply the further information being sought.
Page 24
73. Finally, following a detailed series of questions from Birnberg Peirce &
Partners dated 15 October 1999 and letters in response dated 3 November 1999
respectively from Detective Superintendent Rennison (Director of Intelligence
responsible for the management and use of informants in West Yorkshire) and
Detective Chief Superintendent Taylor (Senior Investigating Officer on the
Chapman operation), the Court of Appeal (Otton LJ, Potts J and the Recorder of
Liverpool) on 5 November 1999 held first an ex parte hearing on a PII application
by the prosecution and then an inter-partes hearing on other grounds of appeal
unrelated to the handling of Chapman. During the ex parte hearing evidence was
given by Detective Sergeant Grey (an officer of the Major Crime Unit attached to
the Chapman operation) and Chief Superintendent Holt (the Senior Investigating
Officer on the appellant’s case), in particular with regard to a statement in Mr
Rennison’s letter of 3 November that: “a reward of £10,000 was agreed by the
West Yorkshire Police Command Team without discussion with Chapman, to be
paid after completion of his sentence.”
74. In the course of his evidence D S Grey said that “the agreement was
reached possibly three or four months before the end of [Chapman’s] sentence
[August 1999]” and that when Chapman had given his evidence “he [was not] told
at all that he was to receive any form of reward”. Chief Superintendent Holt
similarly confirmed that before Chapman gave his evidence there was no
discussion or agreement with him whatever “in relation to any reward or any
benefit for his involvement in this particular case”. The Court of Appeal thereupon
expressed themselves “satisfied that when the informant, Chapman, came to give
evidence nothing had been done or said to give him any expectation of reward for
his evidence in this murder trial. . . .any arrangements for reward or change of
identity to Chapman were made a long time after the [appellant’s] conviction was
recorded.”
75. In the result, in a judgment given on 13 December 1999 dismissing the
appellant’s and Mansell’s renewed leave application, the Court of Appeal noted in
respect of “Ground 1 – The financial reward of the supergrass”: “At the outset of
the hearing before us we considered the public interest immunity application by
the Crown. As a result of our ruling this ground was not pursued on behalf of the
applicants.”
76. There matters lay until, some nine years later, on 25 November 2008, the
CCRC referred the case back to the Court of Appeal following an investigation by
the North Yorkshire Police under section 19 of the Criminal Appeal Act 1995, an
investigation which had painstakingly examined the integrity of Chapman’s
treatment as a prosecution witness.
The CCRC Report
Page 25
77. The unchallenged findings of this report are not just disturbing but quite
frankly astonishing. They reveal that, as a result of his cooperation with the police,
Chapman and other members of his family received a variety of benefits which
were not merely undisclosed to the CPS or counsel but were from first to last
carefully concealed from them. They were benefits which both contravened the
controls designed to preserve the integrity of Chapman’s evidence and were in
addition inherently improper. Amongst the more surprising were that whilst in
police custody Chapman was at various times permitted to visit a brothel, to
engage in sexual relations with a woman police constable, to visit public houses, to
consume not merely alcohol but also cannabis and even heroin, to socialise at
police officers’ homes, to enjoy unsupervised periods of freedom, and indeed,
throughout the actual period of the appellant’s trial, whilst threatening not to give
evidence after all, he was permitted long periods of leisure (hours at a time) in
places of his choice, ostensibly as “exercise”, and in addition phone calls and visits
from his own solicitor.
78. Without suggesting that it typifies Chapman’s relations with every police
officer involved in this operation, some colour is lent to all this by a letter written
to him in prison by DC Dunham (one of Chapman’s regular escorting officers) on
18 December 1996, shortly after Chapman had given evidence at the Ford trial and
on the very day he made his first statement implicating the appellant and Mansell,
an event celebrated by a visit to a brothel (shown in the custody record as an
outing to “assist in the locations of crime”). DC Dunham wrote:
“. . . really glad you enjoyed ‘the night’. Truth to tell I quite enjoyed
it myself. Little bit of this, little bit of that. Variety, they say, is the
spice of life. What a spicey night! Let’s hope there is a second leg
in March. I am demob happy now and disinclined to dip out on any
good times that may be up for grabs. . . . BT [another officer] told
me to tell you that if you were serious about a literary venture at
some time in the future he can put you in touch with some top class
author types who can assist in ghost writing.”
Sometime later, Dunham having mentioned the brothel outing to the female police
officer with whom Chapman was enjoying sexual relations, Chapman wrote to her
apologising: “I was drunk and stoned on weed, they paraded a dozen beautiful
women in front of me and said take your pick.”
79. As for financial benefits, the report states blandly:
“North Yorkshire Police found that the information provided to the
court at trial and appeal did not accurately reflect the financial
Page 26
benefits and rewards given to Mr Chapman by the police or his
expectations when he gave evidence at the trial of Mr Maxwell and
Mr Mansell.”
The fact is that large sums had been expended on Chapman, far exceeding his
entitlement under the rules governing the treatment of informants and prisoner
witnesses. Luxury items had been purchased for him and substantial sums from
time to time handed to him in cash (for example £475 on the occasion of the
December 1996 brothel visit with DC Dunham, less than £7 remaining on
Chapman’s return to the police station at 1 a.m. the following morning). This
expenditure, totalling several thousand pounds, was financed by claims on a
variety of police funds, with no proper records, accounting, supervision or control
and various steps taken to conceal the level of payments made. None of this was
disclosed either at trial or on appeal.
80. With regard to the £10,000 reward itself, the report concluded, flatly
contrary to the senior officers’ evidence to the Court of Appeal, that the police’s
intention to reward Chapman had long since been communicated to him so that his
“as yet unfulfilled expectation of reward may have been a factor affecting [his]
cooperation and evidence” at the appellant’s trial.
81. Nor were these favours and financial benefits the only advantages secured
by Chapman as the price of his cooperation. He was not proceeded against in
respect of a number of violent incidents which in the ordinary way would have
been expected to result in prosecution: a vicious attack on a fellow prisoner called
Jennings in March 1994, repeatedly stabbing him with a piece of broken glass
bound with twine; an alleged rape of his cellmate (buggery whilst holding a razor
to the victim’s throat) in August 1994, reported sometime later; an assault in
November 1999 on the WPC with whom by then Chapman had split up. Nor was
action taken against him for various drug offences. Similarly a caution received by
Chapman’s mother in July 1995 for handling stolen property was not properly
recorded, nor were steps taken against her for attempting to supply heroin both to
Chapman in prison in September 1996 and to Chapman’s girlfriend (also a
prisoner) in October 1996. Chapman’s brother too was not arrested when he
should have been.
82. All these various benefits and indulgences were conferred on Chapman to
ensure his continuing cooperation with the police and not least to persuade him to
give evidence as he did at the February 1998 trial of the appellant and Mansell. To
quote just four short passages from the CCRC report:
Page 27
“In the Commission’s view those benefits may have acted as an
inducement … and their non-disclosure denied the defence the
opportunity to explore their possible impact on the credibility of Mr
Chapman and also on the fairness of the trial.
The omission of [certain of these benefits] from Mr Chapman’s
custody records ensured that those records offered no hint of the
reality of his treatment whilst in police custody. The circumstances
in which Mr Chapman provided information to the police in the
murder investigation were therefore obscured.
The failure to reveal what could reasonably have been considered
inducements surrounding Mr Chapman’s evidence left the
prosecution unable to assess his reliability as a witness and precluded
appropriate disclosure to the court and the defence. It also caused the
trials involving Mr Chapman as a prosecution witness to proceed on
the incorrect basis that he had not been the recipient of favours or
privileges.
In contrast to the appearance of legitimacy in his treatment, the
undisclosed information would have supported an argument that Mr
Chapman’s evidence against Mr Maxwell and Mr Mansell was
tainted by a sustained catalogue of improper inducements and an
ongoing expectation that he would be favourably treated in every
aspect of his relationship with the police. Those representing Mr
Maxwell and Mr Mansell were denied the opportunity to deploy this
material in support of a tenable argument that the proceedings
against them were an abuse of process and to have this issue
determined by the court.”
83. In the light of these various findings it is now possible to summarise the
position really quite shortly. A large number of police officers involved in the
investigation and prosecution of the Smales robbery and murder case, including
several of very high rank, engaged in a prolonged, persistent and pervasive
conspiracy to pervert the course of justice. They colluded in conferring on
Chapman a variety of wholly inappropriate benefits to secure his continuing
cooperation in the appellant’s prosecution and trial. They then colluded in
Chapman’s perjury at that trial, intending him throughout his evidence to lie as to
how he had been treated and as to what promises he had received. They ensured
that Chapman’s police custody records and various other official documents
presented a false picture of the facts, on one occasion actually forging a custody
record when its enforced disclosure to the defence would otherwise have revealed
the truth. They lied in their responses to enquiries made of the CPS after the
Page 28
appellant’s conviction and, in the case of the two senior officers who gave
evidence to the Court of Appeal, perjured themselves so as to ensure that the
appellant’s application for leave to appeal against his conviction got nowhere. To
describe police misconduct on this scale merely as shocking and disgraceful is to
understate the gravity of its impact upon the integrity of the prosecution process. It
is hard to imagine a worse case of sustained prosecutorial dishonesty designed to
secure and hold a conviction at all costs.
84. Scarcely less remarkable and deplorable than this catalogue of misconduct,
moreover, is the fact that, notwithstanding its emergence through the subsequent
investigation, not a single one of the many police officers involved has since been
disciplined or prosecuted for what he did.
The appellant’s post-conviction admissions
85. For my part I have no doubt that the series of admissions which the
appellant came to make to various bodies following his conviction constitutes
compelling evidence upon which, certainly when taken together with the
supporting evidence already summarised (para 70 above), a jury would be highly
likely to find him guilty both of the two robberies and of Joe Smales’s murder
(although just possibly the verdict on that count could be one of manslaughter). I
must nevertheless briefly summarise this evidence to indicate the circumstances in
which these admissions came to be made. An altogether fuller account of all this
can be found at paragraphs 68-81 of the Court of Appeal’s judgment below.
86. The appellant’s first recorded admission was made on 12 October 1998 to
his then solicitor, retained to advise him on the appeal against conviction. The
solicitor’s file note records:
“To my great surprise Paul confessed that he and his brother did do
the murder . . . He explained that at no stage did he ever anticipate
any injury would be caused to Mr Smales. At the time of the murder,
he was in fact inside the house, whilst his brother carried it out in the
garden. . . . I told Paul that on the basis of what he had told me, I felt
that he could have a possible appeal on the authority of R v English
and R v Powell.”
87. Told by his solicitor that he would have to prepare a detailed and persuasive
confession for there to be any chance of a successful appeal, the appellant wrote a
lengthy statement on 21 February 1999 detailing his involvement in both robberies
and asking that the statement be placed on his prison file. A Local Prison
Page 29
Assessment (Life Sentence Plan) Report noted on 24 February 1999 that the
appellant:
“accepts the guilty part he played but states the deceased did not die
at his hands and indeed admits that he used as much violence on the
victim who survived as his brother did on the victim who died.”
In February and March 2000 the Home Office sponsored a research project into
offences committed against the old and vulnerable by offenders pretending to be
officials. In the course of this research, whilst Detective Chief Superintendent
Steele of West Yorkshire Police was interviewing a number of convicted
offenders, the appellant wrote to him on 9 February 2000 offering to assist the
project and stating:
“As you are no doubt aware I am currently serving a life sentence for
the murder of Joe Smales and the robbery of Joe’s brother Bert. I
initially denied these offences, however I now fully admit my guilt.”
When the appellant was interviewed by Mr Steele and other officers on 2 March
2000, he admitted his involvement and explained how in relation to the October
robbery he had used violence against Bert Smales whilst his brother had used
violence against Joe.
88. An Initial Sentence Plan Summary prepared by the prison on 1 August 2000
included a note from the Sentence Management Unit stating:
“Maxwell admitted, for the first time outside confidential
counselling, that he admitted the offence openly and despite finding
it difficult to talk about, accepted culpability for the death of the
victim. He claims that he did not attack the victim who died, but in
no way tried to minimise his role in the offence saying that he
planned the robbery and was co-perpetrator, so that made him just as
guilty of the murder as his co-accused. This was a violent attack and
Maxwell finally admits he attacked the surviving victim, probably
more viciously than his co-defendant attacked the murder victim.”
A prison report dated 23 May 2001 noted that the appellant continued to accept
“responsibility for his crimes”.
89. A prison probation officer reported on 11 January 2002:
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“Mr Maxwell told me he is ashamed of what he did and although he
claims not to have assaulted Joe Smales he admits to assaulting his
brother. He does not deny that his actions were instrumental in the
death of Mr Smales and admits to planning the burglary and
involving his brother in the crime. Mr Maxwell told me he is
appealing the conviction, not because he does not accept
responsibility for the death of Mr Smales but because he does not
think he and his brother were given a fair trial. It is his hope he will
be able to enter a guilty plea to manslaughter at a re-trial.”
90. In the course of the investigation by the North Yorkshire Police the
appellant was interviewed on a number of occasions in relation to his admissions,
several times maintaining that he had made false admissions of guilt out of
expediency. However, in a statement dated 14 September 2004 he said this:
“I now admit the robberies of the Smales brothers in June and
October of 1996. My brother was with me on both occasions. No one
else was present. I was not involved in the death of Joe Smales and
had no intention to cause serious injury to either of the brothers.”
In a statement dated 23 September 2004 the appellant said: “I would like a retrial
and I would plead guilty to robbery and manslaughter.”
The Law
91. The power of a criminal court to stay proceedings as an abuse of process in
order to safeguard an accused person from injustice and oppression has long been
recognised – see, for example, Connelly v Director of Public Prosecutions [1964]
AC 1254 and R v Humphrys [1977] AC1. The more recent decision of the House
of Lords in R v Horseferry Road Magistrates’ Court Ex p Bennett [1994] 1 AC 42,
however, can be seen as the foundation of much of the modern law regarding the
Court’s approach to abuse of process applications, more particularly in cases
where, as here, no question arises of the defendant being unable to receive a fair
trial were the case against him to proceed. Bennett concerned an appellant
unlawfully brought to this country as a result of collusion between the South
African and British police and on arrival here arrested and brought before
magistrates to be committed for trial. The House held by a majority of four to one
that in those circumstances the English court should refuse to try the defendant.
For present purposes the following brief citations from the speeches will suffice:
Page 31
“In the present case there is no suggestion that the appellant cannot
have a fair trial, nor could it be suggested that it would have been
unfair to try him if he had been returned to this country through
extradition procedures. If the court is to have the power to interfere
with the prosecution in the present circumstances it must be because
the judiciary accept a responsibility for the maintenance of the rule
of law that embraces a willingness to oversee executive action and to
refuse to countenance behaviour that threatens either basic human
rights or the rule of law. ” (Lord Griffiths at pp 61-62)
“[T]he court, in order to protect its own process from being degraded
and misused, must have the power to stay proceedings which have
come before it and have only been made possible by acts which
offend the court’s conscience as being contrary to the rule of law.
Those acts by providing a morally unacceptable foundation for the
exercise of jurisdiction over the suspect taint the proposed trial and,
if tolerated, will mean that the court’s process has been abused.”
(Lord Lowry at p76 C-D)
“It may be said that a guilty accused finding himself in the
circumstances predicated is not deserving of much sympathy, but the
principle involved goes beyond the scope of such a pragmatic
observation and even beyond the rights of those victims who are or
may be innocent. It affects the proper administration of justice
according to the rule of law and with respect to international law.”
(Lord Lowry at p76 G)
92. Bennett was directly applied by the Court of Appeal (Criminal Division) in
R v Mullen [2000] QB 520 where it was held that the British authorities, in
securing Mullen’s deportation from Zimbabwe, had been guilty of “a blatant and
extremely serious failure to adhere to the rule of law with regard to the production
of a defendant for prosecution in the English courts” (p.535H) so that when, some
eight years later, this came to light, his conviction fell to be quashed. This was so,
moreover, notwithstanding Mullen’s concession that he had been properly
convicted by the jury and that, as Rose LJ giving the Court’s judgment observed,
“The sentence of 30 years’ imprisonment reflects the gravity of the offence”
(involvement in an IRA conspiracy to cause explosions). The principle which the
court there derived from Bennett was that “certainty of guilt cannot displace the
essential feature of this kind of abuse of process, namely the degradation of the
lawful administration of justice.” (p534 C).
93. The Bennett principle was similarly applied in the context of entrapment in
R v Latif [1996] 1 WLR 104 where, at pp112-113, Lord Steyn put it thus:
Page 32
“The law is settled. Weighing countervailing considerations of
policy and justice, it is for the judge in the exercise of his discretion
to decide whether there has been an abuse of process, which amounts
to an affront to the public conscience and requires the criminal
proceedings to be stayed . . . The speeches in ex parte Bennett
conclusively establish that proceedings may be stayed in the exercise
of the judge’s discretion not only where a fair trial is impossible but
also where it would be contrary to the public interest in the integrity
of the criminal justice system that a trial should take place. . . . in a
case such as the present the judge must weigh in the balance the
public interest in ensuring that those that are charged with grave
crimes should be tried and the competing public interest in not
conveying the impression that the court will adopt the approach that
the end justifies any means.”
Just how that approach should apply in any particular entrapment case was further
considered by the House of Lords in R v Looseley [2001] 1 WLR 2060 which
decided that to lure, incite or pressurise a defendant into committing a crime which
he would not otherwise have committed would be unfair and an abuse of process
but not so if the law enforcement officer, behaving as an ordinary member of the
public would behave, had merely given the defendant an unexceptional
opportunity to commit a crime of which he had freely taken advantage. Although
sometimes in such circumstances a stay is said to be on abuse of process grounds,
Lord Hoffmann thought with Lord Griffiths in Bennett that the jurisdiction was
more broadly and accurately described as “a jurisdiction to prevent abuse of
executive power”. (p2073E)
94. This line of authority has since been followed in two much publicised Court
of Appeal decisions: R v Early [2003] 1 Crim App. R.288 (judgment of Rose LJ)
and R v Grant [2006] QB 60 (judgment of Laws LJ). Although both cases were
cited and discussed at some length by the court below, I propose to consider them
comparatively briefly. Early concerned a number of appellants charged with fraud
offences arising out of the improper diversion to the UK market of large quantities
of duty-suspended alcohol from bonded warehouses, some of 30 or 40 separate
such scams involving the Inland Revenue in an overall loss of some £300m. The
defendants’ case was essentially that they had been encouraged and facilitated in
their offending by customs officers working in collusion with the warehouse
manager (one Allington, a registered informant), a defence therefore somewhat
akin to entrapment. Put very shortly, having failed in abuse of process applications
following voir dire evidence from various customs officers and from Allington and
others during lengthy PII and disclosure hearings, the defendants on advice
pleaded guilty. Subsequently Allington admitted having lied, lies which he said
had been approved by Customs and for which he had received benefits. Allowing
the appeals, Rose LJ said (para 18):
Page 33
“It is a matter of crucial importance to the administration of justice
that prosecution authorities make full relevant disclosure prior to
trial and that prosecuting authorities should not be encouraged to
make inadequate disclosure with a view to defendants pleading
guilty. . . . When inadequate disclosure is sought to be supported by
dishonest prosecution evidence to a trial judge, this Court is unlikely
to be slow to set aside pleas of guilty following such events, however
strong the prosecution case might appear to be.”
He then added, however, in the very next paragraph:
“In the ordinary way we would have ordered a retrial so that a trial
judge, on the basis of honest evidence, could have had the
opportunity of deciding about disclosure and about whether or not a
stay should be granted. However, as the appellant has already served
his sentence and it is nearly six years since the offence is alleged to
have taken place, we make no such order, as it would not be in the
interests of justice to do so.”
Those passages in the judgment related specifically to Early’s appeal; the other
appellants’ appeals, however, were similarly disposed of.
95. In short, despite the court’s understandably harsh condemnation of the
misconduct there, but for the passage of time it would nevertheless have ordered a
re-trial to see whether in truth the case was one of entrapment.
96. In Grant [2006] QB 60, the appellant had been convicted of conspiracy to
murder, his wife’s lover having been shot dead whilst answering a knock at the
door. The appellant’s case on appeal was that the trial judge should have allowed
his abuse of process application and stayed the prosecution because of police
misconduct: following the appellant’s arrest the police had deliberately
eavesdropped upon and tape-recorded privileged conversations between him and
his solicitor in the police station exercise yard. Notwithstanding that this
eavesdropping had in no way prejudiced the appellant’s trial, his appeal was
allowed and his conviction quashed. The Court of Appeal said this:
“True it is that nothing gained from the interception of solicitors’
communications was used as or (however indirectly) gave rise to
evidence relied on by the Crown at the trial. Nor, as we understand
it, did the intercepts yield any material which the Crown might
deploy to undermine the defence case. But we are in no doubt but
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that in general unlawful acts of the kind done in this case, amounting
to a deliberate violation of a suspected person’s right to legal
professional privilege, are so great an affront to the integrity of the
justice system, and therefore the rule of law, that the associated
prosecution is rendered abusive and ought not to be countenanced by
the court.” (para 54)
“Where the court is faced with illegal conduct by police or State
prosecutors which is so grave as to threaten or undermine the rule of
law itself, the court may readily conclude that it will not tolerate, far
less endorse, such a state of affairs and so hold that its duty is to stop
the case.” (para 56)
“We are quite clear that the deliberate interference with a detained
suspect’s right to the confidence of privileged communications with
his solicitor, such as we have found was done here, seriously
undermines the rule of law and justifies a stay on grounds of abuse
of process, notwithstanding the absence of prejudice consisting in
evidence gathered by the Crown as the fruit of police officers’
unlawful conduct.” (para 57)
It may be noted that the Court of Appeal later certified the following point of law
of general public importance in the case:
“Where an accused person has been properly arrested and brought
before the court but during the course of the investigation there is
significant impropriety by some or all of the investigating officers in
relation to the accused person, but the evidence that will be presented
to the court is untainted by such impropriety so that the accused
person can have a fair trial, when considering the interests of all
parties, including the victim of the crime, is the greater public
interest in having the accused person tried, it therefore being fair to
try him, or in staying the indictment which is therefore a method of
disciplining the investigating authority thereby overriding the rights
of the victim?”
Whether the House of Lords then refused leave to appeal or the Crown chose not
to pursue an appeal we have not been told. But I have to say that for my part I have
the gravest doubts as to the correctness of the court’s decision in Grant. True it is
that Lord Taylor of Gosforth CJ had described legal professional privilege in R v
Derby Magistrates’ Court, Ex p B [1996] AC 487, 507 as “much more than an
ordinary rule of evidence, limited in its application to the facts of a particular case.
Page 35
It is a fundamental condition on which the administration of justice as a whole
rests.” But that is not to say that its every violation must result in a quashed
conviction. The law against perjury may equally be described as fundamental to
the whole administration of justice but no one has ever suggested that perjury by a
prosecution witness (even a police officer) must in all circumstances, irrespective
of whether it prejudices the defendant, necessarily preclude a defendant’s
conviction or, if discovered later, result in its quashing. Deeply regrettable though
police perjury must always be, the law reports are replete with examples of
convictions nonetheless being upheld on appeal on the basis that, the perjured
evidence (sometimes in relation to purported confessions statements) aside, ample
evidence remains to sustain the conviction’s safety.
97. The Court of Appeal in the present case distinguished Grant on the basis
that, “[w]hilst helpful to the appellants, it should be remembered that Grant
involved, as Laws LJ said, a deliberate violation of ‘a fundamental condition on
which the administration of justice as a whole rests’”: para 62. I too would
distinguish Grant from the present case but on the very different basis that the
police misconduct there constituted an altogether lesser, rather than a materially
greater, threat to the administration of justice than the prolonged prosecutorial
misconduct here – misconduct without which this appellant would never have been
prosecuted or convicted in the first place.
98. All the cases I have been considering are cases where, whatever executive
or prosecutorial misconduct may have occurred in the past, there is no impediment
to a fair trial of the defendant in future. The central question for the Court in all
these cases is as to where the balance lies between the competing public interests
in play: the public interest in identifying criminal responsibility and convicting and
punishing the guilty on the one hand and the public interest in the rule of law and
the integrity of the criminal justice system on the other. Which of these interests is
to prevail? It is, of course, as the cases show, a question which may arise in a
number of different circumstances. It may arise before trial or in the course of trial,
where the question for the court is whether or not to grant a stay and so halt the
process short of verdict. Or it may arise on appeal against conviction when the
question for the court is, first, should the conviction be quashed, and, if so,
secondly, as in the present case, should a re-trial be ordered. In each case, as it
seems to me, the question is the same: what do the interests of justice require (the
interests of justice, of course, clearly encompassing both the conflicting public
interests in play)?
99. As the court below noted, not long ago the Privy Council in Panday v Virgil
[2008] 1 AC 1386 had occasion to consider this area of the law, including in
particular what may be called the wrongful extradition and entrapment cases, in
the context of a disputed order for a fresh trial following the quashing of the
appellant’s conviction by the Trinidad and Tobago Court of Appeal – the
Page 36
conviction there having been quashed for apparent (although, for the purposes of
the further appeal to the Board, assumed actual) bias.
100. In the course of giving the Board’s judgment dismissing the appeal I said
this (at para 28):
“It will readily be seen that the factor common to all these cases,
indeed the central consideration underlying the entire principle, is
that the various situations in question all involved the defendant
standing trial when, but for an abuse of executive power, he would
never have been before the court at all. In the wrongful extradition
cases the defendant ought properly not to have been within the
jurisdiction; only a violation of the rule of law had brought him here.
Similarly, in the entrapment cases, the defendant only committed the
offence because the enforcement officer wrongly incited him to do
so. True, in both situations, a fair trial could take place, but, given
that there should have been no trial at all, the imperative
consideration became the vindication of the rule of law.”
In that case, however, there was no question of the appellant not having been
properly before the court at all. As we said: “the quashing of his conviction
restores the defendant to the position he was in before the unfair trial. Why should
his success gain him immunity from what is conceded to be the position he now
faces under the Court of Appeal’s order: a fair trial upon charges properly
brought?” We therefore upheld the order for a retrial.
101. In the great majority of cases – apart, of course, from those like the
wrongful extradition and entrapment cases where the defendant would not have
stood trial at all but for the violation of the rule of law which had brought him
before the court in the first place – that would seem to me the appropriate outcome.
The balance will ordinarily fall in favour of the fair trial of those rightly charged
with serious crimes rather than in favour of the suspect’s absolute discharge from
the criminal justice system supposedly in the wider interests of the integrity of that
system as a whole.
102. All that said, however, I have come to the conclusion that on the particular
facts of the present case the balance falls the other way. In a real sense, indeed, this
case can be seen to come within the same category of “but for” situations as the
wrongful extradition and entrapment cases: but for the prosecutorial misconduct
which initially secured the appellant’s conviction and then ensured the failure of
his appeal, he would never have made the series of admissions upon the basis of
which it is now sought to prosecute him afresh. There can be little doubt that these
Page 37
admission statements were made generally with a view to advancing the
appellant’s interests following conviction. For the most part it seems that he made
them in the hope that his murder conviction would be replaced by a conviction for
manslaughter, but perhaps also in the hope of appearing contrite and securing his
earlier release on parole. Either way, the likelihood is that were a trial now to take
place and a conviction to be obtained on the basis of these admissions, those
responsible for corrupting the original process would still be seen thereby to have
achieved their ends and in the long term to have engineered the appellant’s
conviction. That to my mind is the critical consideration in this case. The court
should be astute to avoid giving the impression that it is prepared, even in this
limited way, to condone such unforgivable executive misconduct as occurred here.
103. It is essentially on this narrow basis that for my part I would allow the
appeal here. Had, say, the appellant unambiguously confessed his guilt, not before
but after successfully overturning his original conviction, I would see no objection
whatever to an order for his retrial on the basis of new and compelling evidence
pursuant to Part 10 of the Criminal Justice Act 2003. In such circumstances it
would obviously not then be open to the defence to suggest that realistically the
confession was the product of the executive’s misconduct.
104. In this context I should perhaps say a word about the emphasis given by the
court below to their view that the appellant’s post-conviction admissions here did
indeed constitute “new and compelling” evidence within the meaning of the 2003
Act. As Mr Perry QC for the Crown rightly points out, that concept is not to be
found in section 7(1) of the Criminal Appeal Act 1968 itself – the section
specifically providing for the possibility of a retrial on the quashing of a conviction
(see para 62 above). Indeed, it is plain that a retrial will often be appropriate
without any of the evidence upon which it is proposed to base it being new and
compelling. (In deciding whether a person should be retried, the so-called double
jeopardy principle clearly carries altogether less weight when the decision arises
on the same occasion as the conviction is being quashed than when it arises
subsequently i.e. following acquittal either by the jury’s verdict or by an earlier
successful appeal.) To my mind, however, where, as here, the question whether the
interests of justice require a retrial arises in the context of a conviction quashed
because of serious executive misconduct, it will always be relevant and may on
occasion be decisive to consider whether indeed new and compelling evidence of
guilt exists. This will be so in cases where, despite the “but for” test not being
satisfied (as I judge it to be satisfied here), a balance nevertheless has to be struck
between the competing interests in play. In cases of this sort the nature and extent
of the executive misconduct will obviously be highly relevant. But so too will a
number of other considerations including not least the seriousness of the
defendant’s alleged criminality and the strength of the case against him – and that
will be so no less when an abuse of process application is being made before or
during trial than when the question arises on appeal.
Page 38
105. It therefore seems to me understandable that in the present case, the extent
of police misconduct notwithstanding, the Court of Appeal placed very
considerable weight not only upon the gravity of the appellant’s offending but also
upon the strength of the fresh evidence now available against him (although more
countervailing importance might perhaps have been attached to the length of time
he had already spent in prison – as in Early (see para 94 above) – and, indeed, to
the disparity of outcome of the appeal as between the appellant and his brother).
Certainly, had this not been what I regard as akin to a “but for” case, I would not
myself have been inclined to overturn the judgment below merely by reference to
the general question whether the appellant’s retrial can now properly be regarded
to be in the public interest. Given, however, the “but for” character of this case and
the enormity of the unpunished police misconduct involved, it seems to me quite
simply inappropriate that it should now be retried on fresh evidence. Of course the
crime was a grave one. But so too was Mullen’s crime. Unless one is to say that in
relation to serious crimes the “but for” approach is to apply only in the context of
wrongful extradition, it is difficult to think of any case where the stay principle
would properly be invoked if not here. Exceptionally, therefore, I would in this
case regard the Court of Appeal as having erred in law in their approach to the
section 7 power.
106. I should at this stage note that in the course of argument counsel introduced
the Court to a good deal of international jurisprudence and academic commentary
on the whole question of abuse of process applications. I shall not, however, dwell
on this: none of it seemed to me especially helpful. Take the line of Canadian
authority, culminating in the Supreme Court’s judgments (five justices in the
majority, four dissenting) in R v Regan [2002] 1 SCR 297, urged upon us by Mr
Perry for the Crown. I confess to sharing the view about Regan expressed by H A
Kaiser in a 2002 article (49 Crim Reps (5th) 74, 85-86) – noted by Professor
Andrew L-T Choo in the second edition (2008) of his work, Abuse of Process and
Judicial Stays of Criminal Proceedings, at p132 – that: “Neither [the majority nor
the minority] judgment advances the comprehensibility and predictability of abuse
of process and stays of proceedings, especially with regard to the residual category
of cases where trial fairness is not implicated.” (Though it was perhaps a little
harsh of Mr Kaiser at the outset of his article, p74, to describe the judgments in
Regan as the Court’s “recent meanderings”.)
107. So far as this country’s approach is concerned, Professor Choo’s conclusion
(p132) is that:
“The courts would appear to have left the matter at a general level,
requiring a determination to be made in particular cases of whether
the continuation of the proceedings would compromise the moral
integrity of the criminal justice system to an unacceptable degree.
Implicitly at least, this determination involves performing a
Page 39
‘balancing’ test that takes into account such factors as the
seriousness of any violation of the defendant’s (or even a third
party’s) rights; whether the police have acted in bad faith or
maliciously, or with an improper motive; whether the misconduct
was committed in circumstances of urgency, emergency or necessity;
the availability or otherwise of a direct sanction against the person(s)
responsible for the misconduct; and the seriousness of the offence
with which the defendant is charged.”
108. It is difficult to disagree. It may however be possible and helpful to
summarise the position a little more specifically as follows. (1) Whenever,
executive misconduct notwithstanding, it remains possible to ensure that the
defendant can be fairly tried (or, as the case may be, retried), this ordinarily is the
result for which the court should aim, making whatever orders short of a
permanent stay are necessary to achieve it (or as the case may be, by ordering a
retrial). (2) In certain particular kinds of case, however, the “but for” cases as I
have sought to describe and categorise them, even though it would be possible to
try (or retry) the defendant fairly, it will usually be inappropriate to do so. It will
be inappropriate essentially because, but for the executive misconduct, either there
would never have been a trial at all (as in the wrongful extradition and entrapment
cases) or (as in the present case) because the situation would never have arisen
whereby the all important incriminating evidence came into existence (which is
not, of course, to say that the “fruit of the poison tree” is invariably inadmissible).
Obviously this is not an exhaustive definition of the “but for” category of cases
and, as the word “usually” is intended to denote, whether in any particular case a
trial (or retrial) has in fact become inappropriate may still depend in part on other
considerations too. Essentially, however, it is the executive misconduct involved in
this category of cases which, I suggest, most obviously threatens the integrity of
the criminal justice system and where a trial (or retrial) would be most likely to
represent an affront to the public conscience. (3) Exceptionally, even in cases of
executive misconduct not within the “but for” category, it may be that the balance
will tip in favour of a stay (or, as the case may be, a quashed conviction with no
order for retrial), notwithstanding that a fair trial (retrial) remains possible. With
regard to cases of this sort, and as to whether (in Professor Choo’s language) a trial
(retrial) would unacceptably compromise the moral integrity of the criminal justice
system, a whole host of considerations is likely to be relevant, including most
obviously those which Professor Choo himself lists. I repeat, however, in my
judgment only exceptionally will the court regard the system to be morally
compromised by a fair trial (retrial) in a case which cannot be slotted into any “but
for” categorisation. The risk of the court appearing to condone the misconduct
(appearing to adopt the approach that the end justifies the means) prominent in the
“but for” category of cases, is simply not present in the great majority of abuse
cases. Rather, as the Board put it in Panday v Virgil [2008] 1 AC 1386, executive
misconduct ought not generally to confer on a suspect immunity from a fair trial
(or retrial).
Page 40
109. Beyond this general statement of what I believe to be the governing
principles in play it is not, I think, possible to go. For the reasons given earlier in
this judgment, however, for my part I would allow this appeal and quash the Court
of Appeal’s order for the appellant’s retrial.
LORD COLLINS
110. I agree with Lord Brown that the appeal should be allowed. Public
confidence that the police will act properly and lawfully is one of the cornerstones
of democracy. Without proper police conduct and without public confidence in the
honesty of the police, the rule of law and the integrity of the criminal justice
system would be seriously undermined.
111. The certified point of law is whether the Court of Appeal may order a retrial having quashed a conviction on the grounds of serious executive or
prosecutorial misconduct, and, if so, in what circumstances. There is no doubt
about the answer to the first part of the question since section 7(1) of the Criminal
Appeal Act 1968 gives a discretion to the Court of Appeal to order a re-trial “if it
appears to the Court that the interests of justice so require.” It is not suggested that
in the present case the Court of Appeal took into account any irrelevant or
impermissible factors, or failed to take into account relevant factors. The only
question is whether in the light of all the circumstances the misconduct is such that
the Court of Appeal could have been justified in deciding that the interests of
justice required a re-trial.
112. At trial DC Daniels and DC Dunham perjured themselves. Each of them
told the court that all payments to Chapman had been disclosed. Each of them told
the court that Chapman had been quarantined from the case officers. In 1999 the
full Court of Appeal (Criminal Division) adjourned the applications for leave to
appeal against conviction to enable the Crown to respond to the grounds of appeal
alleging non-disclosure, in particular that Chapman had been promised a
substantial sum to establish a new identity as part of his reward for giving
information and evidence against Maxwell and Mansell. On the day of the
substantive hearing, after hearing evidence on an ex parte PII hearing, the court
ruled that it was satisfied that when Chapman came to give evidence in the trial he
had no expectation of reward, and consequently his evidence was not tainted in
that regard. That ruling was procured by false evidence. Two letters were written
to the Court of Appeal by senior police officers after consultation with the officers
closely involved with the case. The first letter stated: “No discussions were ever
made [sic] concerning any monies to be paid to [Chapman] for giving evidence in
the Maxwell/Mansell trial.” The second letter stated: “A reward of £10,000 was
agreed by the West Yorkshire Police Command Team without discussion with
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Chapman, to be paid after completion of his sentence …” The Crown’s skeleton
argument for the Court of Appeal stated: “Neither the Crown prosecution Service
nor the Police Officers in the case were aware of any reward being paid to Mr
Chapman for his evidence in this case.”
113. Detective Sergeant Gray gave evidence that the decision to pay the £10,000
reward to Chapman had been reached without consultation with Chapman and
more than a year after he had last given evidence at the trial; and that when
Chapman had given his evidence he was not aware of any factor which might have
affected the content or quality of his evidence. Chief Superintendent Holt
confirmed that before Chapman gave his evidence there was no discussion or
agreement with him in relation to any reward or any benefit for his involvement in
this case. He also gave evidence that he had no idea when the agreement for a
reward had been arrived at. In fact the police had communicated to Chapman their
intention to make a substantial payment to him for his co-operation in the Yew II
investigation (an operation in relation to his allegations against a man called Ford,
Maxwell, Mansell, and others) once he had been released from prison.
114. In addition, as a result of the investigation by the North Yorkshire Police, it
turned out that: (1) As a result of his co-operation with the police, Chapman and
other members of his family received benefits which were concealed from the CPS
and counsel. (2) Whilst in police custody Chapman was permitted to visit a
brothel, to engage in sexual relations with a woman police constable, to visit
public houses, to consume alcohol, cannabis and heroin, to socialise at police
officers’ homes, to enjoy unsupervised periods of freedom, and long periods of
leisure in places of his choice as “exercise.” (4) Luxury items were purchased for
him and substantial sums handed to him in cash. (5) He was not proceeded against
in respect of a number of violent incidents, including a vicious attack on a fellow
prisoner; an alleged rape of his cellmate; an assault in November 1999 on the WPC
from whom by then he had split up. (6) Police officers ensured that his police
custody records presented a false picture of the facts, and forged a custody record
when its enforced disclosure to the defence would otherwise have revealed the
truth. (7) Police officers colluded in Chapman’s perjury at that trial, intending him
throughout his evidence to lie as to how he had been treated and as to what
promises he had received, and they lied in their responses to enquiries made of the
CPS after conviction.
115. Of course, the power not to order a re-trial should not be used as a form of
discipline. But the “interests of justice” are not limited to the individual case. The
police misconduct must be seen in the wider context of the preservation of the rule
of law, and of public confidence in the criminal justice system. This is an extreme
case. The murder was indeed a shocking crime. In my judgment, the level of
misconduct is such that the interests of justice demand that, after a conviction
procured by such misconduct, and after the accused has served a substantial
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sentence, and would not have made the admissions but for the conviction so
procured, there be no retrial. I would find that the interests of justice demand the
application of the integrity principle. In this case it means that there should be no
re-trial on evidence which would not have been available but for a conviction
obtained (and upheld) as a result of conduct so fundamentally wrong that for the
criminal process to act on that evidence would compromise its integrity.