Iroegbu, R v

LORD JUSTICE KENNEDY: On 30th July 1987 in the Crown Court at Acton, this appellant was convicted of possessing a controlled drug of Class B, namely 4387 grams of cannabis with intent to supply, and he was sentenced to three years imprisonment. He appealed against conviction and sentence, and that appeal was heard by a different constitution of this court on 29th July 1988 when the appeal was dismissed. In 1997 he applied to the Criminal Cases Review Commission, and on 31st August 2001 the Commission referred the case to this Court. The Commission’s Statement of Reasons had annexed to it a confidential Annex, and on 24th June 2003 after hearing counsel for the Crown we ordered that the Annex be disclosed. A powerful reason for making that order was that, as is clear from paragraph 10.1 of the Commission’s Statement of Reasons, it is the Annex which, in the opinion of the Commission, raises a real possibility that the appellant’s conviction would not be upheld.

The appellant is a native of Nigeria who is now 43 years of age. On 5th November 1986, as a result of information which they had received, two police officers, Detective Inspector Redmond and DC Smith were watching 67 Besant Way, London, NW10. There was a flat at that address occupied by a 26 year old woman to whom we refer only by her initials CS, and at about 10.45 am, according to the officers, they saw the appellant, then 26 years of age, arrive on foot carrying a blue carrier bag with a beige object on top. The officers reported what they had seen, others officers joined them, then at about 11.40 a.m. they went to the front door and knocked. The door was opened by CS and DC McGorgray said that they were police officers and that they believed that a man had recently entered the flat who may be in possession of drugs. CS said she knew nothing about drugs, and invited the officers in to have a look.

According to the officers, DC McGorgray went in first, followed by DC Smith and Inspector Redmond. The appellant was standing in the kitchen, holding the blue bag. He was told that they were police officers and was asked what it contained. He said “my washing”. DC Smith asked if he could have a look, and removed a beige bag which was on top of the blue bag and which did contain some clothing, including a very distinctive woolly cap. He could then see into the blue bag, which contained over 4 kilograms of herbal cannabis.

According to the officers the appellant was then cautioned and asked if what was in the bag was his. He said it was nothing to do with him. He was arrested on suspicion of possessing cannabis with intent to supply, reminded of the caution, and left in the kitchen with the Inspector while the other officers searched the premises. Then he was asked his name and gave the name John. He was asked if he lived locally, and said he would rather not say. The conversation between DC Smith and the appellant is then alleged to have continued as follows:

“Q. I suppose you have got another ton of this stuff at home?

A. No, that is all I got.

Q. That is a hell of a lot of cannabis, what were you going to do with it?

A. What do you mean?

Q. Were you going to use it all yourself?

A. No, I do not even smoke.

Q. Have you got a customer then?

A.

You know already, I’m not going to tell you.”

The officer then said that they would go back to Wembley to discuss the matter further. That conversation was not noted contemporaneously.

It is not now clear whether CS was also arrested. Certainly she was not charged, and the appellant was taken to the police station, arriving at about 12.10 p.m. When he arrived it was the prosecution case that the appellant asked to speak to DC Smith in private and said:

“I know I’m in trouble, I know I could go to prison for a long time, I can tell you who gave it me. Will that help?”

The officer claims to have replied that any information which the appellant wished to give later would be of assistance, but that he did not make deals, and the appellant was then presented to the Custody Sergeant and booked in. The appellant did ask to see a solicitor as soon as possible, but at 12.25 p.m. (according to the Custody Record) he was told by a superintendent that for the time being he would be held incommunicado. Plainly that was to enable the police to search his home before word of his arrest could get out.

At 1.11 p.m. the appellant was interviewed by DC Smith and DC McGorgray and, according to the officers, he was reminded of the caution and DC Smith began by referring to their conversation an hour earlier:

That interview at 1.11 p.m. was not contemporaneously recorded, but it was the prosecution case that at 4.20 p.m. the appellant was interviewed by the same officers and that the interview at 4.20 p.m. was contemporaneously recorded. Again the evidence of the officers was that he was reminded of the caution, and DC Smith began:

According to DCI Matthews, after the appellant had been interviewed the Chief Inspector spoke to the appellant briefly, to see if he could provide information about other drug dealers. The officer said:

At 5.30 p.m., according to the Custody Record, the appellant was returned to the cells and informed that the incommunicado restriction no longer applied to him. The Custody Record was frequently referred to at trial, but it was not exhibited, and there is nothing to show that the 5.30 p.m. entry was referred to.

The appellant’s version of events, as given at trial, was that he had come to England in 1972 at the age of 12. He had obtained a B.Sc. degree in Chemistry at North London Polytechnic and had been a residential student at the London Business School where he met CS. He discovered that she was a drug dealer and had a criminal record, a fact confirmed by a police officer when giving evidence, but her convictions were mostly for offences of dishonesty, the only drugs related offence being “misuse of drugs” in 1983 for which she was fined £15. Despite what he knew of her the appellant said he formed a relationship with her, which persisted until he suspected that she was trying to drug him. Even thereafter they maintained occasional contact. Indeed she was supposed to be making him a sweater.

On the day he was arrested she telephoned him and began to pour her heart out, so he got a mini cab and went to visit her. He did not bring any clothing or drugs. When the police knocked he had no idea they were police officers. At first he was pushed into the kitchen. Then he was taken back into the lounge where he remained with an officer for ten minutes before being brought back into the kitchen. He had heard the rustling of plastic bags when the police had knocked, and now he was asked if the blue bag and its contents belonged to him. He denied any knowledge of the drugs. He was not cautioned, or told that he was being arrested, and even when leaving the property he did not know that he was in the custody of police officers. There was no conversation at the flat as alleged by the officers.

At the police station he did not ask to speak privately to DC Smith, he did ask to see a solicitor, he was told something about being held incommunicado but it was not properly explained, and there was no interview at 1.11 p.m. at all. Indeed he hardly said a word except that he wanted a solicitor. DC Smith said he didn’t need one, and offered him a deal:

“Admit that this is yours and let C go free. We’ll put you on a lesser charge and you’ll probably get a suspended sentence”

He said he still needed a solicitor, and the officers then said

“Don’t waste time, he’s got tons of it at home.”

As to the interview at 4.20 p.m. when, according to the police, his answers were contemporaneously recorded, he apparently accepted that the questions were asked, but said he only replied “no comment” or that he didn’t want to say. The police, he said, had found a pornographic photograph under the bed at one of the houses searched, and were pulling his leg about it. According to the officers that simply did not happen.

He said that at no stage did he encounter DCI Matthews, but he did encounter another officer with a cigar wearing a brown pin-stripe suit who told him he was the biggest drug dealer in Wembley, but then asked the other officers if they were sure they had the right man, to which they replied that they did not know. He was threatened with 10 years' imprisonment, and replied, “Why don’t you make it twenty?” He was threatened with being sent back not to Nigeria, but to Angola, where there was a war.

So, as the judge said, if the appellant was right the police evidence was a tissue of lies.

When being cross-examined about the contents of the beige bag the appellant was uncertain as to whether the distinctive woolly hat was his. His explanation for that uncertainty was, as we understand it, that the police had collected the clothing from his home. He was asked if he had any theory as to why the police, possibly in conjunction with CS, had fabricated a case against him, and he said he had not.

At the trial no application was made by defence counsel to exclude any of the evidence on which the prosecution relied, although there were, as we shall explain, points which could have ben taken under the Police and Criminal Evidence Act 1984, and under the Codes of Practice which were then current.

We turn now to the appeal which was heard by this Court in 1988. The appellant was represented by fresh counsel, and he took the following points:

“(1)

That when summing-up the judge at one point expressed his own view as to the appellant’s credibility in a way which went beyond justifiable comment, and showed bias against the appellant. The passage in question reads:

'Mr McGrail, for the defence, has his instructions, but grasping the nettle, because it is obvious to everyone in this court, is it not, that I think his client is lying; lying cunningly, the prosecution say, in that he admits matters of detail that do not point to his guilt, but denies - and I thing 'ducks and weaves' was one of the phrases used by counsel for the Crown - anything which he thinks hurts his case."

(2)

That the judge erred in law in admitting the evidence as to what the appellant said after on arrival at the police station, he allegedly asked to speak to DC Smith in private. Although, as we have said, there had been no application at the trial to exclude evidence counsel in this court sought to rely on sections 58 and 78 of the 1984 Act and a number of provisions of the Code of Practice.”

As to the first ground of appeal the court had doubts as to the accuracy of the transcript, and having resolved those said that no such comment should ever have been made, but when the summing-up was read as a whole the jury would not have been misled or improperly influenced by that one comment.

As to the second ground of appeal the judgement of this Court in part reads as follows:

At 15D of the transcript Potter J (as he then was) giving the judgment of the Court, continued:

Although the case has been referred back to this court by the CCRC the evidence before us is still the same as it was when the jury returned its verdict, and we have not been asked to receive any fresh evidence.

However, one matter of potential significance was discovered by the CCRC. It is not in dispute, and it was that discovery which led to the preparation of the confidential annex and to the reference to this court. It can be summarised as follows:

We turn now to the five grounds of appeal which Mr Paul Taylor, on behalf of the appellant, has developed before us. He did not appear for the appellant at the trial, or in this court in 1988.

Mr Taylor chose, in our judgment rightly, to look first at the fifth ground of appeal which he formulated by reference to the contents of the confidential annex. His submission was that “any information relating to the role of CS as a police informant and any motive she may have had for seeking to ‘set up’ the appellant should have been disclosed to the defence as it strengthened the defence case and weakened that of the prosecution. The failure to do so amounted to a material irregularity.”

As Mr Taylor recognises, it was accepted at the time of the trial that the police were keeping watch as a result of information they had received, and it was clearly suspected that the source of the information was CS. What those then representing the appellant did not know was that six days prior to 5th November 1986 she had once again been arrested, and in reality it seems unlikely that even those appearing on behalf of the prosecution had that information. If they had, then, as it seems to us, Mr Holland, who has appeared for the Crown before us, was right when he said that if the trial were taking place today the proper course for the Crown to have adopted would have been to seek a Public Interest Immunity ruling from the trial judge, and that such a ruling would not necessarily be in favour of disclosure. Admittedly CS was not a registered informant, but those who give information need to be protected so far as possible in order to encourage others, and actually knowing the identity of the informer would not, on the face of it, weaken the prosecution case or assist the defence. She was not a witness for either side, and it is difficult to see what use the defence could have made of the fact that on 31st October 1986 she had again been arrested as a suspected shoplifter. If that had been put to a police officer and accepted, the relevance of the information might well have been questioned by the trial judge, and he would certainly have had to direct the jury that it is simply an unproven allegation against someone whose credibility was not an issue in the case.

Does it make any difference to the safety of the appellant’s conviction that subsequently CS was arrested for one or more other offences, and that at some stage someone suggested to the Branch Crown Prosecutor that proceedings against her might be dropped? We do not believe so. Certainly the suggestion made to the Branch Crown Prosecutor may have emanated from CS. There is no evidence of that, although it may reasonably be inferred. Assuming that to be the position, it does tend to show that on 5th November 1986 CS may well have had her own interests to serve. She may well have hoped to avoid further proceedings against her, but almost any informer one can think of hopes for some sort of reward, and as it happens in this case none was forthcoming. If the prosecution case had depended to a significant extent upon the evidence of CS then of course our attitude would be different, but as Mr Holland explains she did not really feature in the prosecution case. It depended on (1) the observations made by DI Redmond and DC Smith (2) the evidence as to what the appellant was alleged to have said to the police, and (3) the way in which the appellant when giving evidence at his trial dealt with the case against him. Incidentally, as Mr Holland pointed out, it is difficult to envisage how a woman so impecunious as to be driven to shoplifting could have acquired over 4 kilograms of cannabis in order to “set up” the appellant, or why, if the police were involved, this appellant should have been selected as a target.

The remaining grounds of appeal merely rehearse submissions which were made or could have been made in 1988, but in deference to the arguments advanced by Mr Taylor we look at his grounds of appeal to see if for any reason, such as a change in law or practice, or the emergence of additional information, we are persuaded to take a different view from that taken by this court 15 years ago.

Mr Taylor’s first ground of appeal was that practically all the evidence from police officers as to what the appellant said, and certainly all of the incriminating evidence, should have been excluded for 2 reasons:

Relatively recently trial counsel, Mr McGrail, was invited to comment on his failure to seek a ruling as to admissibility, and in a letter dated 31st January 2003 he wrote:

“At that time it was usual to reserve cross-examination of police officers until the jury could see and hear their reactions. I took the view that it would have been pointless to forearm the detectives with knowledge of what I was going to ask, when there was no prospect of excluding evidence under PACE.”

That seems to us to have been a perfectly sensible forensic decision, which no appellate court should attempt to re-visit. The letter does not specifically deal with the denial of access to a solicitor, and Mr Taylor submits that in the light of authorities such as Samuel [1988] 7 Cr App R 232 and Sillcott 5th December 1991 unreported, if the point had been taken the Crown would not have been able to substantiate its reliance on section 58(8) of the 1984 Act. But, as was pointed out in the 1988 appeal, that is a judgment which cannot be made without hearing evidence from the superintendent who on 5th November 1986 gave authority for the appellant’s right of access to a solicitor to be delayed, and because no application was made at the trial which disclosed any reliance on section 58, that evidence has never been heard. Whether Mr McGrail thought that the Crown would make good its reliance on section 58(8) which enables a senior police officer in certain circumstances to delay access to legal advice we do not know, but even if he considered that the Crown would be unsuccessful on that issue, before ordering that the evidence be excluded the judge would still have had to consider whether a proven breach of section 58(1) [the right to consult a solicitor privately at any time] was in the circumstances of this case so serious and significant that the admission of the evidence would have such an adverse effect upon the fairness of the proceedings that, pursuant to section 78 of the 1984 Act, the court ought not to admit it.

That would involve a careful consideration of the evidence in the absence of the jury, and we cannot tell precisely what would have emerged. Plainly any exclusory ruling made in reliance on section 58 could not affect anything allegedly said prior to 12.25 p.m., nor, as it seems to us, could it affect anything said by the appellant after he indicated at about 1.30 p.m. that he no longer wanted to consult a solicitor until he got to court, if the judge accepted that the appellant did say that at about that time. It follows that in our judgment Mr McGrail could well have come to the conclusion that in this case an attempt to exclude evidence by reliance on section 58(1) would be ineffective, and we certainly cannot say that he failed in his duty to his lay client because he did not make the attempt. As with the points which could have been made in relation to Code C the fact that an application was not made in reliance on section 58 may well have been the result of a sensible forensic decision, and we can find nothing in the authorities which would lead us to conclude that if the appellant had been differently represented any of the evidence which the jury heard would (as opposed to might) have been excluded. On this issue the changes in Code C to which our attention has been invited do not really assist.

As Mr Taylor points out, the current Code requires that interviews should take place at a police station, after the alleged offender has been advised of his right to legal advice, and it has always been the position that interviews, and even unsolicited comments, should be, so far as practicable, contemporaneously recorded, and the offender should be given an opportunity to check and sign the record. Those are the principal matters covered by the relevant paragraphs in Code C which we need not recite, but, as it seems to us, the only power to exclude evidence which could have been invoked is that set out in section 78, to which we have already referred.

Section 76 of the Act only applies if it is represented to the court that the confession was or may have been obtained:

“(a)

By oppression of the person who made it; or

(b)

in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.”

In such a situation, which did not arise here because no representation was made:

“The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”

For the reasons we have given the prosecution did not have the opportunity to discharge that burden of proof, and we are certainly not prepared to say that they would have been unable to do so. In our judgment section 76 cannot assist the appellant at this stage, nor can the fall-back argument advanced by Mr Taylor that even if counsel did not seek to have the evidence excluded by reference to section 58 and Code C the trial judge should have taken the initiative. As was said by this court in 1988 we operate an adversarial system. A judge may choose to raise with counsel, preferably in the absence of the jury, questions such as apparent non-compliance with section 58 or Code C, but he is under no duty to do so, and he should certainly not enter the arena in such a way as to dictate how the defence case is to be presented. In our judgment no criticism whatsoever can be made of the reticence of the trial judge in the present case, and nothing said by the Divisional Court in R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134 suggests otherwise.

We accept that, as has been pointed out by this court on a number of occasions and most recently in Allen [2001] EWCA Crim 1607, an appeal in which criticisms are raised as to the conduct of the trial can succeed without it being demonstrated that the advocate originally instructed was flagrantly incompetent. In Allen at paragraph 29 the court accepted that the appeal should succeed if the court is satisfied that an application to exclude evidence:

“Should obviously have been made and, if made, should have been granted and, if the court further takes the view that the conviction is thereby rendered unsafe.”

We agree, but here we are not satisfied that the application should obviously have been made, or if made should have been granted, and we therefore cannot conclude that the conviction is thereby rendered unsafe. For the avoidance of doubt we specifically reject the submission that inadmissible evidence was placed before the jury. All of the evidence which the jury heard was and remained admissible until ruled otherwise, and no relevant ruling was made.

Mr Taylor’s second ground of appeal is that there are lurking doubts arising from the interview at 4.20 p.m. which was conducted by DC Smith and DC McGorgray, and which is said to have been contemporaneously recorded. Mr Taylor began in relation to this ground of appeal by referring to part of a statement made by DI Redmond which referred to a visit made by him to the appellant in his cell at around 4.10 p.m. on 5th November 1986. There is also a reference in the Custody Record to a visit by DI Redmond at about that time, but, so far as we can ascertain, no evidence was given about that visit, and no application has been made for us to hear evidence from the officer at this appeal.

Next a point is made as to an apparent discrepancy between the Custody Record and the statements of the interviewing officers as to where within the police station the interview took place. Again the topic does not seem to have explored at trial, and we have not been asked to hear evidence about it. A number of other points are taken by comparing the statements of witnesses (one of whom did not apparently even give evidence) with entries on the Custody Record or the record of interview. We accept that if that exercise is undertaken points emerge which might have been explored in cross-examination (e.g. as to whether at the beginning of the interview the appellant was reminded of his right to legal advice, whether DI Redmond or DCI Matthews entered the room whilst the interview was in progress, when Police Sergeant Maple obtained possession of the interview record, etc). So far as we are aware the points were not explored in cross-examination but we cannot be certain even as to that because we have no transcript of evidence, only a transcript of the summing-up. Even if they were not explored we are satisfied that in almost any case it would be possible to think of points which might have been explored and were not. Part of the skill of a competent advocate is to be selective, and the existence of the points to which our attention has been invited, even if it could be properly demonstrated to us by admissible evidence that they were points which were not taken, would not lead us to conclude that this conviction was unsafe.

The third ground of appeal relates to the observation made by the judge as to his view of the appellant’s credibility. That ground of appeal was fully explored by this Court in 1988, nothing relevant to the ground of appeal has happened during the last 15 years, and we see no reason to take a different view from that taken by the Court on the last occasion. The only development is that in his letter of 31st January 2003 Mr McGrail said:

Mr Taylor’s fourth and final ground of appeal relates to the direction given by the judge in relation to the appellant’s good character. What the judge said was:

“Let me say a word about character. The defendant has not given any evidence before. He is a 27 year old Nigerian and living in this country. He has no convictions recorded against him. That is something which you put into the balance when you are weighing his evidence, in his favour....As I say, bear in mind that the accused is a man of good character and that really goes to whether or not you believe him.”

That plainly explains how good character can assist in relation to credibility, but it says nothing about propensity. That is not surprising because, as Mr Holland pointed out, Vye & Ors [1993] 97 Cr App R 134 was decided in 1992, 5 years after the judge summed-up in the present case, and even then this court was unable to discern any principle or consistent pattern as to when a second limb direction (i.e. as to propensity) should be given, so the Court gave guidance for the future saying that such a direction should be given in a case where a defendant is of good character. The existence of that guidance does not mean that a conviction will be unsafe because an incomplete direction has been given. Before this court can reach that conclusion it must look at the facts of the individual case, as it did, for example, in Fulcher [1995] 2 Cr App R 251, where it was conceded that there was no direction as to the effect of good character on credibility. That was a case where such a direction could have been applied to the appellant’s account as set out in the answers which he had given to the police, but in the present case there was no issue which a direction as to propensity could have assisted the jury to resolve. Clearly the appellant had no previous convictions. Although, if the evidence of the officers was accepted, it was initially suggested to him that he had “another ton of this stuff at home” it was clear that when searches were carried out nothing incriminating was found. Accordingly we are satisfied that the absence of a direction as to propensity did not render this conviction unsafe.

In our judgment none of the grounds of appeal have been substantiated. The conviction remains safe, and the appeal against conviction must therefore be dismissed.