Case No: 2000/04920/X4
Neutral Citation Number: [2002] EWCA Crim 989
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
Mrs Justice Hallett
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 3 May 2002
Before :

LORD JUSTICE WALLER

MR JUSTICE PITCHERS

and 
HIS HONOUR JUDGE CRAWFORD QC
(Sitting as a judge of the Court of Appeal Criminal Division)
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Between :

	Regina	Respondent	

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Sean McLeod	
Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Oliver Sells QC and Dominic De Souza appeared for the Appellant

Mark Ellison and Crispin Aylett appeared for the Crown

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Waller: 
Introduction 
1.	On 4 July 2000 in the Central Criminal Court after a trial lasting 9 days, the appellant was convicted of possessing a prohibited weapon (count 2) and possessing a firearm with intent to endanger life (count 3).  He was acquitted of attempted murder (count 1).  On 7 July 2000 he was sentenced to 5 years detention in a young offenders’ institution on count 2 and 8 years detention on count 3, the sentences to run concurrently.  Prior to the commencement of the trial after a voire dire covering a number of days, the Judge, Mrs Justice Hallett ruled that a covertly recorded conversation between the appellant and another man, recorded in a police van, was admissible.  The appellant applied for permission to appeal raising fundamental points in relation to the admissibility of covertly recorded conversations.  No part of the application for permission challenged the findings of fact of the judge.  The single judge gave permission to appeal on the basis that he believed that this was the first time that the question as to the proper approach to such covertly recorded conversations had arisen before the English courts since the decision of the European Court of Human Rights in Khan v United Kingdom (2001) 31 EHRR 45.  The judge felt that consideration of the issue by the full court would be of considerable assistance to the police, prosecutors and the profession generally, although he was of the view that the ruling of the learned judge in this case was entirely correct.  Since the learned single judge gave permission, this court has had the opportunity to consider the approach to such covertly recorded conversations, in particular where no statutory power exists in relation to the same, in R v Mason [2002] EWCA Crim 385.  Thus it is that neither the appellant, through Mr Sells QC, nor Mr Ellison for the Crown, treated this as a case for the giving of general guidance.  The question addressed by both counsel was whether the judge in the circumstances of this case misdirected herself and/or reached a decision which was plainly wrong.  
2.	In the above context Mr Sells appeared in opening the appeal to be seeking to be making an attack on the findings of fact of the judge.  That was clearly not an aspect on which the appellant had leave to appeal, however we were prepared to treat the arguments of Mr Sells on this aspect as supporting an application for leave to appeal in those areas where leave had not been obtained.  
The facts 
3.	In testing the decision of the judge it is necessary to have regard to the circumstances as they appeared to the judge when making her ruling.  They reflect the evidence as it was given at trial but include other factors.  Mr Sells accepted that the circumstances are accurately set out in the respondent’s skeleton argument.  We accordingly take the circumstances essentially from that skeleton argument.  
4.	The victim on the count for attempted murder on the indictment before Hallett J was Owen Clarke.  It was on 6 September 1999 that the appellant had been arrested in connection with that alleged attempted murder.  Owen Clarke alleged that the appellant had pulled out a gun and tried to shoot him in the street.  His complaint was supported by the evidence of a number of eye-witnesses who saw the appellant with a gun and/or provided evidence of his behaviour, including his dress and demeanour, which was consistent with Clarke’s account.  In the course of a struggle the appellant was disarmed and he was detained by those at the scene until the police arrived and arrested him.  When interviewed by the police the appellant alleged that it had been Clarke who had produced the gun and that Clarke had tried to shoot him, after the appellant had accidentally kicked the chair which Clarke was sitting in as he had passed by.  
5.	On 9 September 1999 the appellant was charged with the attempted murder of Clarke, possessing a firearm with intent to endanger life and possessing a prohibited weapon.  The investigation, led by Detective Inspector Lee, was named Operation Patterson.  
6.	Expert examination of the gun used in the above described incident established that it was the same gun that had been used on 15 August 1999 to kill a man named O’Neil Laylor, only a few weeks before.  Laylor had been shot at a party in a flat at 16 Dickens House, Kilburn, London NW6.  This was the address which the appellant had given as his address when he had been arrested by the police some months before.  In relation to the Laylor incident the eye-witness evidence was to the effect that two or more men had entered the flat with their faces covered to varying degrees and that Laylor was shot in cold blood.  The investigation into Laylor’s murder was also led by DI Lee and was named Operation Powerstock.  
7.	In the weeks following the murder of Laylor, three suspects, Richard Kwake, Andrew Kapporo and the appellant McLeod were arrested by the police.  When interviewed by the police all three either denied having shot Laylor or else made no comment to the questions put to them.  The police had no direct evidence against any of the three but the police did have reasonable cause to suspect them as having been involved as a result of intelligence reports that suggested their presence at or near the scene that night and on the basis that one of them had been involved in an altercation recently with Laylor.  The prospects of an identification of the assailants by eye-witnesses were diminished by the fact that those seen entering the flat had some covering to their faces.  Those persons willing to assist the police indicated that the man who had shot Laylor had been wearing a hood and had a scarf pulled up around his face so only his eyes had been visible.  Hallett J in the voir dire found that by mid October 1999 the investigations in relation to the Laylor murder were facing quite severe difficulties as regards the prospect of any real progress.  
8.	Identification parades were arranged for 23 October 1999.  It was contended before Hallett J, on behalf of the appellant, that these arrangements were entirely a ‘ruse’ by DI Lee to engineer an opportunity covertly to record the suspects in the hope that some evidence might arise from their discussions and that holding the parades was totally unjustified.  DI Lee gave evidence before the judge on this issue.  Hallett J rejected that contention and she was entirely satisfied that the decision to hold the parades was made in good faith.  She held there were good reasons to suspect the appellant of having been involved in the Laylor shooting, a clear basis for holding the parades given the number of witnesses who had observed the assailants, and a clear denial or lack of acceptance that the appellant had been at the flat at the time.  Indeed Hallett J held that “... had the police not held the parades they would have been roundly and rightly criticised”.  
9.	Mr Sells in arguing the appeal did not suggest that the holding of the parades in relation to all three persons was a ‘ruse’.  He put the matter in a way much more directly aimed at the appellant.  In his skeleton argument he put it this way: 
“The appellant was arrested and remanded in custody in respect of a charge of attempted murder.  On advice from his solicitor he agreed to attend a police station to stand on an identification parade in respect of a wholly different offence.  In so doing he was acting under legal advice and was in the presence of his solicitor at the police station.  He was entitled to believe that that advice was tendered in good faith (as it was) following a police request to attend.  It is submitted he was in fact being deliberately placed in a police van in the hope that he might incriminate himself in respect of the matter the subject of the parade.  Such a position is analogous in part to R v Sutherland (unreported) 29 January 2002 per Newman J.  In respect of those matters no authorisation for covert surveillance could properly be made.  Whilst the growing use of sophisticated covert surveillance devices may be a legitimate method of gathering evidence in serious cases, it is submitted that if the safeguards now in place are to be of real effect non-compliance should lead to the exclusion of the evidence thus obtained particularly if (1) there has been any deception of or evasion in respect of a legal adviser; (2) such surveillance is engineered in such a way as to avoid statutory requirement; (3) any form of entrapment is employed. ...”  
10.	The above way of putting the matter attempts to attack  the findings of fact by the judge.  But, it simply does not fit with what Mr Sells on behalf of the appellant was forced to accept to be the position so far as his client was concerned.  
11.	So far as the appellant was concerned it is true that he was advised by his solicitor, after considerable debate between the solicitor and the police, to attend the identification parade in relation to the Laylor murder.  When he agreed so to do, and in relation to the journey in a police van from the prison to the police station, so far as he was concerned there was no application to covertly record any conversation whatever.  The application to covertly record conversations was made in relation to Kapporo and Kwayke who were to travel in a van together to the police station where the parades were to be held.  Those applications were made under the guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines) and the Public Statement on Standards in Covert Law Enforcement Techniques issued by the Association of Chief Police Officers and HM Customs and Excise (the ACPO Standards).  They were not made, it is right to say, pursuant to any statutory regime such as the Police Act 1997 and that is a point to which we will return.  
12.	So far as those initial applications were concerned, the evidence of DI Lee was to the effect that although the ID parades arranged would be useful, if parades were held, there would in fact be little hope of a positive identification being given particularly because of the covering to the faces of the alleged assailants.  In those circumstances DI Lee decided to make an application for covert recording in the van that would transport Kapporo and Kwayke to and from the parade on 23 October 1999.  The applications were made because DI Lee understood from intelligence reports that those two persons were known to each other and were likely therefore to talk.  The journey would provide an opportunity for either of them to make incriminating remarks if they had been involved.  
13.	A written application was made to Deputy Assistant Commissioner Vaness for authority to place covert audio and visual recording devices in the vehicle that was to be used.  Since the vehicle was owned by police, and there was no question of any trespass on or interference with private property, the provisions of Part III of the Police Act 1997 did not apply and the relevant guidance was in the Home Office Guidelines and the ACPO Standards.  
14.	DAC Vaness said that he considered the application under the above guidelines in conjunction with the ACPO Standards.  He granted the authority in relation to Kapporo and Kwayke.  
15.	So far as the return journey was concerned circumstances altered.  Whereas it had been expected that Kapporo and Kwayke would return in the van that did not occur due to unforeseen circumstances.  Kapporo was to return in the van and the appellant McLeod wanted to return to the prison and not to remain in the police station and it was thus arranged that he too should return in the van.  It was in those circumstances that an amendment to the authority was applied for.  DAC Vaness recorded on a document dated 27 October 1999 first the authority previously given and then the following : 
“On Saturday 23rd October I was contacted by my staff officer DS [Det Supt] Hoare, who in turn had been contacted by DI Lee.  ... following a logistical change to the original strategy proposed, I gave a further authority to deploy video and audio devices within the same police van whilst it was being used to convey Richard Kwayke and Sean McLeod. ....”.
In manuscript at the top of the page appears “I was informed that McLeod was also a suspect for this crime linked by possession of a weapon.  Authority given at 4.25pm 23/10/99”.  
16.	The judge was satisfied that the oral authority had in fact been granted in respect of McLeod and Kapporo and that a mistake had been made when the record came to be written up.  But, what will be apparent from the above, is that the decision to use the covert surveillance in relation to McLeod was in one sense totally fortuitous.  He was already attending a parade as a suspect and having regard to the decision to return him in a prison van advantage was taken of the situation.  It is simply not arguable that the police in some way conspired to get the appellant into a van under some false pretence in order to covertly record a conversation.  
17.	Thus it was the finding of the judge first that there was no bad faith or impropriety in the original applications in relation to Kapporo and Kwake.  A fortiori there was no question of bad faith so far as the application for the amendment relating to the appellant McLeod.  He was a suspect for the Laylor murder already attending ID parades.  He was to travel in the van through circumstances which did not involve any decision by DI Lee or those investigating the Laylor murder.  
18.	Thus it is that we approach the judge’s ruling on the basis that there is no arguable case for challenging the judge’s findings of good faith.  Indeed we are unpersuaded there is any arguable basis for challenging any of her findings of fact.  
Judge’s ruling 
19.	The judge gave a detailed and carefully reasoned ruling.  We deal with the salient features of that ruling.  
20.	She recognised the concession being made by the Crown as it has been made before us that the covert surveillance should be treated as a probable breach of Article 8 of the ECHR because (a) there was a likely expectation between the prisoners in the van that their conversations would be private and that the recording would be a breach of Article 8 unless satisfying Article 8(2), and (b) because despite the publication of the Home Office Guidelines and the ACPO Standards it was probable that the non-statutory regime failed the Article 8(2) criteria for some of the same reasons identified by the ECHR decision in Khan decided on 17 May 2000, namely lack of clarity and accessibility.  
21.	The judge however also recognised that a breach of Article 8 did not necessarily lead to the exclusion of evidence obtained in breach of that Article.  In that view she was clearly right and the recent Court of Appeal decision in R v Mason (supra) provides support.  Paragraphs 66 and 67 read as follows: 
“66.  The non-compliance with Article 8 does not, however, mean that the tape-recordings cannot be relied upon as evidence.  In the case of PG and JH v United Kingdom the European Court of Human rights stated at para. 76: 
“The court re-iterates that its duty according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention.  In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.  Whilst Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law... ... It is not the role of the Court to determine, as a matter of principle whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not.  The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.  This involves an examination of the alleged ‘unlawfulness’ in question and, where violation of another Convention right is concerned, the nature of the violation found”.
67.  Here, as we have already explained, another Convention right apart from Article 6 is involved.  The right is that contained in Article 8.  The fault is not having legislation like RIPA which clearly establishes what is the legal position.  It is the responsibility of the Government to provide remedies against this violation of Article 8.  However, the remedy does not have to be the exclusion of the evidence.  The remedy can be the finding, which we have now made, that there has been a breach of Article 8 or it can be an award of compensation.  The European Court of Human Rights recognises that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of Article 8 creates for the appellants.  The infringement is, however, a matter which the trial judge was required to take into account when exercising his discretion under section 78 of PACE.” 
22.	The judge took the view that there had been no breach of the Home Office Guidelines.  Mr Sells before her suggested breaches of principles 4(b) and 4(c) of those Guidelines.  For convenience we set out the whole of principle 4 which reads as follows: 
“Principles 
4.	In each case in which the covert use of a listening device is requested the authorising officer should satisfy himself that the following criteria are met: 
(a)  the investigation concerns serious crime (except where the last sentence of paragraph 7 applies); 
(b)	normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried; 
(c)	there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; 
(d)	use of equipment must be operationally feasible.”  
23.	The judge’s finding was that although identification parades were useful, and indeed the police would have been criticised if the parades had not been held, DI Lee was “rightly concerned about the state of any evidence he obtained from such parades where the offenders had attempted to disguise their features.”  She thus found that normal methods of investigation had been tried but had not produced anything and that the identification parades were “unlikely to succeed if tried”.  In this regard again R v Mason suggests that on any view the judge’s approach to principle 4(b) was amply justified, see paragraphs 54-56.  
24.	As regards principle 4(c) the argument of Mr Sells before the judge was that sub-paragraph (c) was breached having regard to the fact that the appellant had already been arrested.  Again a similar point was taken in R v Mason and the Court of Appeal dealt with that point in this way: 
“58.  We are far from satisfied than when the Guidelines were formulated, they were intended to apply to surveillance of the sort that took place here of those in custody in police cells.  However, even if the Guidelines were not intended to apply to suspects already in custody, as there was no alternative guidance published, we consider that it was reasonable for the Chief Constable to apply the Guidelines by analogy, unless they conflicted with PACE.  Furthermore, if there was a breach of the Guidelines as identified by the trial judge, we do not regard the breach as being of any significance.  This was a situation where the police were responding reasonably and proportionately to a very serious threat to the safety of the public and law and order, and so were entitled to seek evidence not only of individual wrongdoing but of a conspiracy to commit armed robbery.  Without surveillance it was sufficiently doubtful whether evidence would be forthcoming of the required quality to justify surveillance as long as it did not result in unfairness to those being subjected to the surveillance.”  
25.	Even if the judge did not put the matter that way, her approach would certainly be supported by that paragraph she emphasising the grave crime with which the police were concerned, that is to say the shooting of Laylor, the lack of evidence unless some form of covert surveillance would produce the same.  She ultimately said: 
“... As I say, normal methods were unlikely to succeed, I accept Mr Lee’s evidence on that point, and he believed, I will accept rightly, as did Mr Furness [Vaness] eventually, there was good reason to believe that the use of the equipment could lead, certainly, to a further investigation, prosecution and conviction.  The bugging of the van was entirely proportionate to the situation the police faced.  The officers were not, in my judgment, on a fishing exercise.  They hoped to get evidence in relation to suspects who were involved in a possible murder charge.  Although the authority was given to carry out covert surveillance over the telephone that, in itself, cannot be fatal because the courts must obviously allow for an urgent situation requiring urgent remedy.  The courts must make some allowance for operational difficulties faced by police officers.”  
26.	Finally the judge said this: 
“In all the circumstances, therefore, having given due weight to the European Convention, to the fact there is an admitted breach of Article 8 of the Convention and having also considered carefully the decision of the European Court in Khan I am satisfied that the admission of this evidence would not adversely effect the fairness of the proceedings. 
There is, in my judgment, no breach of Section 76 or 78 to lead to the exclusion of this evidence.  In all the circumstances a fair trial is perfectly possible and I reject the argument that there is any breach of Article 6 of the Convention.”  
Did the judge misdirect herself and was her decision wrong? 
27.	As we have indicated previously, in so far as Mr Sells was seeking to attack findings of fact by the judge, we reject any such attack.  It is not simply that the appellant has no permission to appeal those aspects; examination of the facts demonstrate that there is no basis for such an attack.  Thus there is no basis for suggesting that matters were not properly considered when the amendment was sought; there is no basis for suggesting that the police were engaged in some improper device to obtain evidence; there is no basis for suggesting that they were deliberately acting outside the Police Act (as the judge pointed out the forms and considerations were directly taken from such legislation by analogy).  
28.	In so far as Mr Sells argued that if there is a breach of Article 8 then unless evidence is excluded there is no remedy, he clearly goes too far.  The paragraphs already quoted from R v Mason demonstrate that a breach of Article 8 does not necessarily lead to exclusion of the evidence.  
29.	Mr Sells suggested that the tape was in some way unreliable in quality.  This does not appear to have been a point taken before the judge and perhaps not surprisingly in that ultimately an agreed transcript existed and although it was necessary for certain words to be interpreted by a police officer, no challenge to that interpretation was mounted.  The evidence of the tape was in fact clear and compelling in so far as it indicated that the appellant had the gun in his possession prior to his altercation with Clarke.  
30.	In our view the judge’s decision cannot be faulted.  The situation in summary was as follows.  First, there was a probable breach of Article 8 of the Convention, but the question was whether the admission of having the gun in his possession was reliable and whether it was fair to allow the admission of the conversation under Section 78 of PACE.  The conversation clearly was reliable.  Furthermore it clearly was fair to admit this evidence for the following reasons.  First, authority for the surveillance had been granted under the Guidelines and there was no question of the matter having been other than properly considered by the relevant senior officers.  Those Guidelines themselves had been drafted in an attempt to take account of the Convention and the only basis for suggesting a breach was that there was still not a proper statutory framework.  (We add that there is now a statutory framework which will apply, see the Regulation of Investigatory Powers Act 2000).  
31.	Second, there had in fact been no illegality whatsoever in the gathering of the evidence in that no criminal offence was being committed nor any civil trespass.  The appellant was being escorted by police officers in a police vehicle from a police station to a prison where certainly his expectation would be that officers overhearing his conversation might utilise the same.  There was no question of the appellant being tricked or pressurised into making incriminating remarks.  The appellant spoke voluntarily to a co-suspect.  There was available an accurate record of the conversation thus there was and could be no dispute that the appellant had said what he said.  The offences were very serious.  The offence in relation to which the authorisation was obtained was cold blooded murder.  The offences in relation to which the evidence was to be used were offences relating to the carrying of a loaded gun on the streets.  Mr Sells sought to make something of the fact that the appellant was acquitted of attempted murder and suggested that that rendered the conversation unreliable.  In our view it points in the other direction.  On a fair reading of the transcript of the conversation one can see that the jury may well have had doubts about the appellant’s intention to kill and to that extent the admissibility of the tape assisted the appellant.  It in no way made the contents of the conversation something on which it would be unsafe to allow the jury to rely.  
32.	Thus as we announced at the conclusion of the hearing this appeal against conviction must be dismissed and the above are our reasons for dismissing the same.  
Appeal against sentence 
33.	The judge recognised that the jury had acquitted the appellant of attempted murder.  She was thus dealing with the possession of a prohibited weapon and the possession of a firearm with intent to endanger life.  The fact that there had been an acquittal of the attempted murder did not preclude the judge from taking the view that the appellant had gone out on to the streets, in clothes in a way which he hoped would prevent him from being recognised and obviously looking for Owen Clarke.  She was also entitled to take the view that the appellant had shown no remorse and that his only mitigation was his age.  
34.	Attorney General’s Reference No 2 of 2000, (Martin Joshua Hines) [2001] 1 Cr.App.R.(S) 27 was concerned with an offender who had been convicted of possessing a firearm with intent to endanger life and possessing ammunition without a firearm’s certificate.  The circumstances were that police officers had searched the address of the defendant and found in a cupboard a sock containing a self-loading pistol.  The pistol was loaded and ready to fire.  The pistol was a prohibited firearm.  The judge had imposed a sentence of 4 years imprisonment.  In increasing the sentence Rose LJ said: 
“In our judgment, following a trial, we would have expected a sentence to be imposed in the court below of at least seven years in relation to this offence.” 
35.	As it seems to us the circumstances of the present offence were more serious than in the case of Hines and the sentence of 8 years imprisonment cannot in any way be criticised.  Thus it was that we dismissed the application for permission to appeal in relation to sentence.  These are our reasons for so doing.