Howell & Ors, R. v

These are appeals by David Howell, Eamon Harris and Frederick May against their convictions on 25 January 2001 at the Central Criminal Court, after a trial which effectively lasted three months, before His Hon Judge Denison QC, the Common Serjeant of London, and a jury, of conspiracy to steal (count 3) and doing acts tending and intended to pervert the course of public justice (count 7). The particulars of count 3 alleged that the three appellants, together with one Paul Smith, conspired together, with Kevin Michael Garner and others, between 19 and 22 January 1995, to steal a quantity of money. Count 7 alleged that they, together with Smith, between the same dates, “knowing that an investigation into an offence of robbery was in progress, assisted in the disposal and concealment of part of the proceeds” of the robbery.

Each appellant was sentenced to five years’ imprisonment on count 3 and seven years’ imprisonment concurrent on count 7, and appeals against sentence.

A further defendant on the same indictment was Timothy Norris. He was acquitted of stealing a quantity of money belonging to Security Express on 20 January 1995 (count 1). For medical reasons, the trial of Smith on counts 3 and 7 did not proceed.

After preliminary hearing before the full court, the case was listed as a renewed application for leave to appeal after refusal by the single judge, with the Crown to attend, and the hearing to proceed as an appeal on any grounds on which leave were given. Numerous grounds were argued. The material was very extensive. Judgment was reserved. We have decided that a small number of grounds are arguable. The case therefore is no longer an application, but a full appeal, and the applicants are correctly described as appellants.

This lamentable case represents part only of a huge police investigation into the activities of police officers who were members of the Metropolitan Police Flying Squad stationed at Rigg Approach, Walthamstow. A number of trials have already taken place, and at least one further trial is fixed to start this April.

During the morning of 20 January 1995, a Security Express van was robbed of over £1.5 million by three men, Hector Harvey, who was on day release from prison, Gary Ward and Joey Simms. Like Ward and Simms, Harvey was a professional criminal. He was also a registered police informant. In February 1991 he was convicted of armed robbery. On appeal, the sentence imposed on him was twelve years’ imprisonment. Another man, Blake, was acquitted of the same robbery.

At the time of the robbery, the van was manned by two guards, Gregory Hepburn and Mark Godfrey. Hepburn was a party to the robbery. Godfrey was an innocent victim. Hepburn’s share of the proceeds was entrusted by Blake to a third party, Kevin Dwyer.

The three robbers, Harvey, Simms and Ward, received £400,000 or so each, as their share of the proceeds of the robbery. The investigation was handled by the Flying Squad at Rigg Approach. Norris was alleged to have stolen £40,000 from Harvey’s share, before the balance was restored to Security Express. He was also alleged to have given £4,400 in cash to Harvey’s solicitor, who then made out a cheque to him which enabled Norris to repay a loan owed to the National Westminster Bank. For the purposes of the present appeals, however, the critical focus of attention is Hepburn’s reward from the robbery, £200,000.

At the date of the robbery, May was a Detective Inspector, Harris a Detective Sergeant, and Howell a Detective Constable. Norris was a Detective Inspector who had served at Rigg Approach until March 1994, when he was transferred to Hackney Police Station. Smith was another Detective Constable serving at Rigg Approach. Between them, Norris and Smith were responsible for handling Harvey in his role as registered police informant.

Kevin Garner was another Detective Constable. He, too, had served at Rigg Approach. In December 1997, by when he had retired, he was arrested in respect of unconnected offences of burglary and conspiracy to supply cannabis resin. Having been caught red-handed on video camera, in due course he pleaded guilty. Later, in September 1998, after lengthy interviews, he pleaded guilty to involvement in the conspiracy alleged in count 3, and perversion of the course of public justice alleged in count 7.

On 21 January, while Harvey was in custody at Edmonton Police Station, Harris and Smith allowed him to make telephone calls to ascertain the whereabouts of the guard’s share. It was traced to Dwyer, at his home. On his own admission, Garner, with Howell, visited Dwyer’s house, where the money was handed over to Garner. In due course the money was divided into ten shares, and shared between the appellants and other officers, including Smith and Garner.

Harvey was returned to prison on 21 January. He then recorded his complaint that the guard’s share of the robbery was stolen by the Flying Squad. Nearly three years later, following his arrest in December 1997, Garner described the way in which the theft of the guard’s share of the proceeds of the robbery in January 1995 had been perpetrated, apparently independently of but consistently with Harvey. We of course recognise that if either Harvey or Garner had been determined to find a way to communicate with one another, they would almost certainly have been able to do so. There is no evidence from which reasonably to draw the inference that they did, or that their complaints were coordinated or linked.

The Crown’s allegation that Norris stole some of Harvey’s share of the proceeds of the robbery, depended on the oral evidence of Harvey, with independent support based on Norris’ unanticipated prosperity. The Crown’s case that the appellants conspired together, and with Garner and Smith, to steal Hepburn’s share of the proceeds was heavily, but not exclusively dependent on the evidence of Harvey, a professional criminal with a demonstrated willingness and ability to lie and mislead, and Garner, an admittedly corrupt police officer. It was, however, contended by the Crown not only that the evidence of each was independent of the other, but that there was evidence independent of both which tended to confirm their allegations.

In evidence at trial each appellant strongly contested his alleged personal involvement in any criminal activity. The allegations were fabricated. Each was an honest police officer, with many years’ service. Harris had been commended on four separate occasions, and Howell on three. May was the acting Detective Chief Inspector, temporarily in charge at Rigg Approach, very well spoken of as a dedicated and trustworthy officer. They contend that their convictions were unsafe.

Harris had no previous dealings with Harvey. He did not meet him until 21 January 1995, when he was ordered to Edmonton Police Station to interview him. According to Garner, Harris had been a friend, who had offered him support when he ran into trouble.

Howell was one of the officers who had arrested Harvey in 1989 or 1990. He knew that Harvey subsequently became a police informant. He regarded him as utterly untrustworthy, and when he discovered that Harvey was involved in the robbery on 20 January, his reaction was, “I told you so.” Howell had first met Garner in 1992. He did not like him. He believed that on an occasion in late 1993, or early 1994 (the date was differently described by other witnesses), he and Garner had a fight in which his shirt and suit were torn, and blood was spilt. The incident was described by four witnesses. Garner described it as a drunken argument. Another police officer, DC Hayes, spoke of a scuffle, and Howell and Harris described a full-blown fight.

May had no previous professional dealings with Harvey. He and Garner knew each other as serving officers, but there was nothing specific in their relationship to suggest personal antipathy, or particular friendship.

We must briefly summarise the evidence, so that the grounds for appeal can be considered in their factual context. The starting point with Harvey was his criminal record. This was put before the jury in its full detail. The jury was reminded that Harvey hoped for a reduction in sentence, but perhaps more important, Harvey himself had readily accepted the assessment that he was “ruthless and without scruples where his own interests were concerned, and that he would sacrifice others to save himself”. By way of illustration, Harvey made considerable efforts to avoid his conviction in February 1991. This included persuading a girl friend to give perjured evidence on his behalf. She was later convicted. On another occasion, he deliberately fabricated evidence against an innocent man in order to avoid conviction for a crime which he had committed. As he summarised Harvey’s evidence, the judge repeatedly reminded the jury of the demonstrated occasions when Harvey had lied. His interjections were unequivocal. Thus, more than once, he said, “This, of course, was rubbish”, and again, “He repeated the lie”, and, yet again, “That was not the truth”. In relation to another incident, throwing further light on Harvey’s character, the judge reminded the jury that Harvey himself conceded that his behaviour had been “despicable”.

At the very outset of his summing up, having identified the positive good character of each appellant, the judge contrasted the defects of Harvey, and indeed Garner and Dwyer. He directed the jury to approach the evidence of all three “with care and with caution”, and, in the case of Harvey, “You should, before you place any reliance on this evidence he gives, look for other independent evidence…independent of him, which tends to support his evidence in the sense that it indicates that what he is saying is, in fact, correct.” Towards the end of his summary of Harvey’s evidence, he directed the jury:

“What you make of Hector Harvey is entirely for you to say. He is, on any view at all, a big-time villain. He is a man who will lie to further his own interests, and he has done so throughout, certainly, the first part of this investigation. He has a motive for giving evidence, namely to achieve or hope to achieve a reduction in the long sentence he will undoubtedly receive…”

He went on to remind the jury of the defence contention that they could not “rely on a single word Harvey says”, and that his evidence should be dismissed out of hand. He also drew the attention of the jury to the Crown’s contention that, although they should hesitate “long and hard before accepting his word, on the essential elements…he is telling the truth”. Having himself reminded the jury of the care and caution needed in their approach to Harvey’s evidence, bearing in mind his background and the lies he had told, as well as the inconsistencies, he told the jury that they must, “having taken all those matters into account and having done so against the background of all the other evidence in the case, decide whether Hector Harvey is a witness upon whom you can safely place reliance”.

It is impossible to imagine that the jury needed any reminders about the unprincipled criminal with whom they were dealing. Nevertheless, and rightly, summing up robustly highlighted many obvious manifestations of Harvey’s defective character. This material is relevant to two aspects of criticism of the summing up. First, it is submitted that the summing up as a whole was unbalanced and unfair to the appellants: second, because we shall have to examine an alleged misdirection by the judge about the correct approach to the evidence of Harvey, Garner and Dwyer.

The essential features of Harvey’s account of his involvement in the robbery on 20 January, and the subsequent allegations he made against the police can be briefly summarised. In essence, at the relevant time, while serving his sentence, he set up two distinct robbery offences, providing information to his police handlers about one robbery, while involving himself in another, and intending, if necessary, to use the crime about which he had given information, but in which he did not participate, as possible cover in the event of his arrest.

On the morning of 20 January, Harvey met Ward and Simms at Stepney Underground Station between 6pm and 7pm. After a variety of preliminary steps, Harvey, on a motorcycle that was probably stolen, and Simms, in a white transit van, followed the Security Express van, which was driven to an agreed site, with Harvey leading the way, and Simms following. The van was then stopped. Harvey, and Ward, who was waiting at the pre-arranged site, demanded the cash from Hepburn and Godfrey. Just under £1.5 million in cash, packed in blue Barclays Bank bags, was put into grey Post Office bags and transferred into the transit van, which was driven away by Simms. Harvey, together with Ward, rode the motorcycle away and dumped it, transferring to a second transit van, which Ward drove to another pre-arranged address where Simms was waiting for them both. They divided up the money and separated.

Harvey’s £400,000 share was put into a sports bag. He went to another safe house, putting £40,000 into a bag there, and then, with the remainder of the money, he went by minicab to his mother’s flat. At that address he paged Norris. It was 11.00am. He said that he had to leave New Cross and, purported to inform Norris that Ward and Simms had pulled a “double whammy”, by which he meant that, contrary to earlier information which he had given to Norris, they had actually robbed the Security Express van. For the police, the involvement of such an informant as a participant in a major crime represented a source of significant embarrassment.

Harvey left New Cross for his wife’s home in Luton. At 2.59am he paged Norris again. Shortly afterwards, Norris and Smith arrived in a police car, accompanied by other officers in another car. Harvey reported that Norris was furious that an armed robbery had taken place. He maintained to Norris that he did not know what was going to happen. He also omitted to tell the officers about the £40,000 he had already hidden, but said that his share was in his mother’s flat, whence £313,000 was recovered.

Harvey was arrested and taken to Edmonton Police Station. He was denied permission to make any telephone calls.

On the following morning he was interviewed. Harris was directed to conduct the interview on the basis that he was a skilled and experienced officer who had not previously had any dealings with Harvey. Harvey claimed that he was told by the police that this would be, in effect, a damage limitation exercise because he had exceeded the limitations imposed on any police informer who participated in an offence. In the first part of his interview he gave a reasonably accurate account of the robbery, but untruthfully denied having anything to do with planning it. When the interview proceeded to a second tape, he asserted that the robbery had come as a complete surprise to him, and he omitted any reference to the £40,000 hidden in his mother's flat. He also said, again untruthfully, that his share was £300,000 and that the guard’s share was £300,000 rather than £200,000. Harvey suggested, in effect, that this interview was a charade, the purpose of which was to ensure that the Flying Squad should escape embarrassment for the criminal involvement of one of their informants. We have read the text of the interview. The impression conveyed to us is that this was not the interview to be anticipated between an experienced interviewing officer and a criminal suspected of involvement in a major robbery. It does indeed appear to be directed to ensuring that Harvey’s account of his participation should be limited, as far as possible, to that permitted to a police informant. His account was challenged in one respect only, and when Harvey offered a new explanation, it was left untested and unchallenged. Subsequently Harris’ report to the Crown Prosecution Service omitted any reference at all to Harvey’s participation, and for the time being the CPS concluded that there was insufficient evidence to prosecute him.

Harvey claimed that Smith and Harris came to see him during the late afternoon. Smith said that the figures (that is, figures relating to money) did not add up, and that the police knew that he had kept some money for himself. Smith then said that they were interested in the guard’s share, and that he should tell them where that was. By now it had become important for Harvey’s safety that he should get himself back into prison as quickly as possible, before any suspicions about his activities as a police informer were aroused. He was told that he could be returned to prison if he would help them.

Harvey then told the officers that the guard’s share was £200,000, and that he could get it for them if they would allow him to make some telephone calls. He was taken to a telephone in the custody office. He telephoned Blake, and told him that he had to get hold of the guard’s money. Blake said that he did not have the money personally, but he knew where it was, and asked Harvey to phone him again shortly afterwards. Ten minutes later Harvey telephoned Blake again. Blake told him that the money was with a man called Kevin (Kevin Dwyer) and gave him the telephone number. Harris and Smith were standing beside Harvey while the telephone calls were made to Blake, and Harris wrote the number down on a piece of paper. Harvey rejected the suggestion that no police officer was present when he made his telephone call, observing that a police officer would not have allowed him to make a phone call without knowing the identity of the person to whom he was speaking.

About half an hour after being returned to his cell, Harris took Harvey back to the phones so that he could telephone Kevin. Harris told him to find out if Kevin had the guard’s money, and if he had, to tell him that some friends of his would be coming to pick the money up. Harvey said that he did as he was told, emphasising to Kevin that nothing would happen if he handed the money over as instructed.

He was again returned to his cell, and about half an hour later Smith and Harris told him that he had to telephone Kevin again. He returned to the phone. Harris dialled the number, and handed him the mouthpiece. He asked, “Kevin?” and a voice replied, “Yes,” but that was not the same Kevin as the one to whom he had spoken earlier. At the other end, the telephone was passed to Kevin Dwyer, and Harvey repeated that, if he got the money and handed it over to the men who were with him, nothing would happen. So Kevin Dwyer agreed to get the money and hand it over. Harvey then returned the handset to Harris, who said, into the phone, words to the effect, “Did you get all that, Kev?”

Consistently with Harvey’s account, two Kevins were indeed present at Dwyer’s house, Kevin Dwyer himself, and Kevin Garner. Some time after returning to his cell, Harvey said that Smith came to see him and said that they now had the guard’s money, so that he could be returned to prison. He was driven back to the Mount Prison at 7.45pm. On the way, he asked what had happened to the guard’s share, but the only response was a threat by Harris that if he said anything about the guard’s money he would be sorted out.

Harris’ account of events that day can be briefly summarised. He went to Edmonton Police Station to carry out an order to interview Harvey. In the course of the interview Harvey lied to him, and Harris made clear that he knew he was doing so. It was, he said, a load of crap. He was anxious to discover the whereabouts of Ward and Simms, and Harvey volunteered that if he were allowed to make some telephone calls, he might be able to help. So he cleared Harvey’s use of the telephone with DI Coomber, and then gave his own mobile phone number to Harvey so that it could be used by anyone who might know where Ward or Simms were and wished to contact him. He took Harvey to the charge room and left him on his own to get on with it, and, while he did so, he and Smith watched rugby on the television. He therefore did not know what Harvey said, nor to whom he spoke. Later that evening, he agreed that he and Smith returned Harvey to prison. He uttered no threats. Throughout the whole of the day he had done and said nothing dishonest or dishonourable at all.

On Harvey’s return to prison he made a tape recording, setting out events on 20 and 21 January. He made three copies, sending one to his then solicitor. Two weeks later, he spoke to officers from CIB2, who were responsible for investigating allegations of police corruption. In that tape recording he told lies about his own part in the offence, but alleged theft against Norris (which, in view of the jury’s verdict, needs no further mention) and theft by police of the guard’s share. A Regulation 7 notice (that is, notification of an alleged crime by a police officer under the Police (Discipline) Regulations, otherwise described as Form 163) was served on Harris on 18 December 1995, and he was interviewed under caution on 20 September 1996. On 7 March 1996 May made a “duty statement”, which assumed some importance at the trial, and is relevant to more than one ground of appeal. Howell made a duty statement on 13 March 1996.

In 1998, following his arrest for yet further robberies, Harvey admitted the offences, and then explained his full role in the robbery of the Security Express van. Apart from Norris, his evidence directly incriminated Harris and Smith. However, he had no direct knowledge of the identity of any officer who went to Dwyer’s house, or was involved in the share-out of the guard’s money.

Putting it neutrally for the moment, the telephone calls made by Harvey from the police station on 21 January were unorthodox. Moreover, the custody record shows that on 21 January, at 9.20am, a direction made the previous evening that Harvey was not to be permitted to make telephone calls nor pass any relevant messages to third parties was confirmed. In his evidence, Harris asserted that DI Coomber had authorised the use of the telephone. Neither side called DI Coomber at trial, so there was no evidence to contradict Harris. As we understand it, it was accepted at trial that the absence of any note in the custody record showing that the order was rescinded was neutral. We shall have to return to DI Coomber later in the judgment.

The custody record relating to Harvey did not fully support his account of his movements and telephone calls. It was, however, plainly demonstrated that the custody record was inaccurate and incomplete, certainly in relation to telephone calls. Thus, the custody record shows that Harvey was taken from his cell by Smith and Harris and that he made a telephone call at 14.20 from the custody office “to his wife”. At 15.35, he was again permitted to leave his cell “to telephone his wife”. At 16.05 the record shows that he made a further call. There was no reply. At 16.15, according to the record, in company with Harris, he made another call from the custody office. He then saw his solicitor’s representative, and his solicitor in the cell. Then, at 17.30, again according to the custody record, in company with his solicitor this time, he made a further telephone call. He was then returned to his cell, having made a total of five telephone calls, to one of which there was no reply.

The telephone records tell a rather different story. In all, they show a total of six calls made from the charge room at Edmonton Police Station, four to Blake’s number, and two to Dwyer’s number. Taking them shortly, there were telephone calls at 14.17 and 14.26 to Blake’s number. Either would coincide with the first call recorded on the custody record, but the custody record shows only one, rather than two calls. Another call was made to Blake’s number at 15.50, and a fourth call at 16.19. That could be linked with the note in the custody record for 16.15 with the information, “To custody office with DS Harris to use telephone”. There were then two further calls at 17.27 and 17.30 to Kevin Dwyer’s home number. Again, one of the two calls could coincide with one entry in the custody record, but not both.

This was important evidence. On any view, while in custody at a police station in connection with an armed robbery, Harvey was in direct telephone communication with two individuals, Blake and Dwyer, who themselves were involved in the disposal of the guard’s share of the proceeds of the robbery. Bearing in mind the circumstances in which he was arrested, it is perhaps surprising that Harvey should have been permitted to use the telephone at all. Harris said that the phone calls had been permitted to enable the police to pursue the investigation into Simms and Ward. Assuming that is correct, his evidence that he and Smith did not carefully monitor the calls, and that indeed, far from supervising him, they left Harvey on his own while they watched rugby on the station television, seems baffling to us, and no doubt it must have seemed so to the jury. In any event, these calls linked Harvey, and Edmonton Police Station, and the officers who arranged for him to make the telephone calls, with the guard’s share of the proceeds of the robbery, on the day after it was committed.

Garner had been leading a double life for some years. He was a police officer whose criminal activities went back to 1992. The essential facts were summarised by the judge, but need no further recital here. More important, the judge’s warnings about Garner’s character were unequivocal. Nevertheless they are said on behalf of the appellants to have been inadequate (because Garner should have been equated with Harvey) and in any event, failed sufficiently to distinguish Garner from Dwyer, in whose case no warning at all should have been given.

As already noted, the judge contrasted the good character of the appellants with the bad character of the principal witnesses ranged against them. He reminded the jury of the need to approach the evidence of all three with care and caution. He did not, however, as he had with Harvey, direct the jury that they should look for independent evidence which tended to support him. When dealing with the suggestion that Garner and Dwyer might provide supporting evidence for Harvey, he reminded the jury to be careful and cautious. Having set out Garner’s criminal activities, and summarised his evidence, and the cross-examination, he directed the jury that they had with Garner, as they had with Harvey, to

“make up your minds whether you can rely on the evidence of Kevin Garner. He was a corrupt police officer engaged in serious criminality to which he has pleaded guilty and for which he awaits sentence. He knows that, by cooperating with the authorities and by giving evidence, he may well get his sentence reduced by a significant amount. Bear those matters in mind, but bear in mind also that he has admitted the full extent of his then criminality…and then having taken all those matters into account, decide whether he is giving or may be giving wholly untruthful evidence against these defendants, or whether he is giving a truthful account of what occurred on 21 January 1995.”

On 8 December 1997, Garner was arrested when he was caught on camera participating in the burglary of a dwelling and theft of a substantial quantity of cannabis. After charge, he decided to admit to his much greater involvement in crime, and provide information about others who had been involved with him. The precise circumstances have been the focus of a great deal of attention, and formed the basis of a submission to the judge that the proceedings should be stopped as an abuse of process, and if not, that the evidence should be excluded under s78 of the Police and Criminal Evidence Act 1984. The judge rejected those submissions, and they are renewed before us on the basis that he misdirected himself, and reached an incorrect conclusion.

As this issue is at the forefront of the appeals, we must examine the facts in some detail. However, we must remind ourselves at the outset that, both in relation to the failed application for the proceedings to be dismissed as an abuse of process, and the failed application to exclude the evidence of Garner, the judge was exercising his discretion, or perhaps more accurately, his judgment, and that, if the evidence were admitted and the case allowed to proceed, the question for the jury was not so much why Garner decided to implicate his colleagues (his motivation was obvious: he was hoping for a substantial reduction in sentence), but rather, whether he was telling the truth when he did so.

After Garner was charged at 7.23pm on 9 December, his solicitor, a Mr Benson from Attridges, left the police station. At 8.30pm he was permitted to see his partner, Jackie Buisson, and they were joined by Detective Chief Inspector Jarrett (now Detective Superintendent Jarrett). Mr Jarrett sought to persuade Garner to assist the police, by identifying others, including police officers, who had been involved with him in crime. He said that he could offer security to them both, and would also inform the sentencing judge of the assistance Garner had provided. He left the room at 9.06pm. At 10.11pm he removed Garner from his cell for what was described as an “intelligence interview”. He repeated his request for assistance. He readily accepted that his objective was to persuade Garner to provide the police with information and give evidence for the prosecution. He denied that he had put Garner under extreme pressure, but accepted that he may well have told him that if he did give evidence he could expect a reduction in sentence of something between two thirds and three quarters. He added that any pressure on Garner came from the situation in which Garner had placed himself, caught red-handed committing burglary. No record or note of these interviews was made. As we now know, following the decision of this court in R v Drury and Clarke, the omission constituted a breach of Code C and Code E of the Codes of Practice under the 1984 Act. Further, it contravened the recommendations in Home Office circular 9/92, “Resident Informants”. On the other hand, the fact that these various “intelligence interviews” took place is recorded in the custody record.

In his evidence at trial, Garner himself volunteered that he knew that Jarrett was a bit of a bully. He denied that he had been put under pressure, or succumbed to it. Indeed, his reaction to the suggestion that he had been bullied by Jarrett was dismissive. And it was an integral part of Harris’ argument that, as we shall see, however Mr Jarrett treated him, Garner did not involve Harris until mid-February.

At 8.00am on 10 December, Mr Jarrett saw Garner with Miss Buisson. Garner indicated that he was prepared to assist the police. Again, no contemporaneous record was kept. Immediately after the end of the discussion, between 8.50am and 9.04am, an interview under caution was tape recorded. The record shows Garner indicating that he was happy to be interviewed without a solicitor, and that he understood that he was entitled to independent legal advice at any time. He said that he was happy to be interviewed without a solicitor because he didn’t “feel like I need one”. It was then recorded that there had been a discussion “under the umbrella of an intelligence interview” by Mr Jarrett. Mr Jarrett recorded that he told Garner that the police “would be interested in you talking to us about your past…criminal activities if you so wish to do so. I spoke of what possible support you and your family could have if you spoke to us and agreed to give evidence.” Garner agreed that was a correct summary, and denied that any pressure of threats had been exerted or offered. He said that he had had a chance to think about what Mr Jarrett had told him, and to speak to his “wife”. He was asked, “What decision have you reached?” He replied, “That I’ll talk to you.” He then, briefly, described the offences he had committed, and the officers in the Flying Squad who had been involved in his offences.

A series of tape recorded interviews with Garner under caution took place between 11 and 18 December. Garner made detailed confessions to his own criminal activities, and identified others, including police officers, who had been with him. However, he made no mention of Harris at that time, and indeed, as late as 18 February, he positively denied that Harris had been involved.

On 12 December, Mr Jarrett spoke to Attridges. He told them that Garner no longer wished to be represented by them. The conversation was recorded, and an appropriate entry made in the custody record. A tape-recorded interview between Mr Jarrett and Garner, starting at 5.28pm on that day, accurately summarises what happened. Garner was agreeable. It was argued that Mr Jarrett had played an inappropriate part in Garner’s change of solicitor. The judge found that there was no impropriety. In reality, the decision made a great deal of sense, in particular in relation to Garner’s safety. Without implying that Attridges would have behaved improperly, the firm practised in the locality, and the risk of inadvertent disclosure of information of what Garner was doing required acknowledgement. In fact, Mr Jarrett told Garner, “We need to have a legal representative who can be trusted to represent you properly, and to look after your interests in a very vigorous manner, but also will not betray trust….” All the relevant material relating to the change of solicitors was disclosed. It is also convenient at this stage to deal with a further suggestion, that Garner may have required an appropriate adult to be present during his interviews. Again, the relevant medical evidence was disclosed. Whether or not Garner was the best judge of whether he required the assistance of an “appropriate adult”, he would have derided the suggestion, and, we suspect, but do not need to rule, that the provision of an “appropriate adult” for him would have been the subject of considerable forensic mockery at trial.

By February 1998, officers investigating the allegations of criminal activity by Flying Squad officers were satisfied that, although broadly Garner was giving accurate material to them, he was being less than frank about a conspiracy to rob a Securicor van in July 1996 (referred to throughout these proceedings as the “Tiger kidnap”). On 26 February, DCI Bridger visited Garner and, according to the note in his pocket book, he told Garner that he was not satisfied that he was telling the whole truth. He told him “that there was now a serious question mark over whether he could be treated as a witness of truth. I went to some lengths to impress on him that I was not pressurising him to tell me things that weren’t true…”. However, unless completely satisfied that he was telling the whole truth, then “it would be difficult and unwise to continue with the debrief process that he was now engaged in, and that the possibility exists that, in the next few days, he would have to be returned to the prison system.” No contemporaneous record was made of the interview, but DCI Bridger’s pocket book, with the relevant entry, was disclosed for trial purposes. Thereafter Garner asked to see Mr Bridger. He admitted that he had been lying, both about the Tiger kidnap offence, and the present offence. He said that he had been protecting Harris, and had not said anything about his involvement, or that of Smith. This was the first mention made by Garner of Harris: indeed it contradicted his then recent, positive denial of Harris’ involvement. Again, no contemporaneous record or tape recording was made. DCI Bridger recorded his notes after the meeting, but Garner did not sign them himself. Again, they were disclosed. Shortly afterwards, at 8.03pm, a tape recorded interview under caution took place.

The record shows that Garner was given the opportunity to speak to his solicitor. He indicated that he did not require his presence. Referring to the earlier admissions, he agreed that he had told Mr Bridger that he had given all the details about this present offence, and that he had been protecting Harris and Smith. Garner said,

“Basically, I mean, all through this I have always said what I did, but I have been protecting, not necessarily Paul Smith, but Eamon Harris, but I couldn’t say Paul Smith without involving Eamon Harris. There had been some phone calls to Dwyer’s, Kevin Dwyer’s, black Kevin, while I was there. It was Eamon Harris, and I spoke to him and I have been denying that to sort of protect him. Everything else I said was the truth, it was just that one point, and the other involvement was when I said, that when Fred May and Davie Howell took all the bags, they didn’t. They left two with me and I took, that was Eamon Harris’s bag and Paul Smith’s bag, and I took that and gave that to Eamon Harris. That’s the only difference, like what I been not saying.”

For the sake of completeness, we must record that, linked with the argument about abuse of process and admissibility of evidence, there was a determined effort to mount an attack on the conduct of Mr Jarrett. Certainly as far as Harris is concerned, Garner was, to adopt the word used in argument, “turned”, not by Mr Jarrett, but by Mr Bridger. In his submissions, Mr Anthony Arlidge QC acknowledged that the event which, on the face of it, motivated Garner to implicate his client was his meeting with Mr Bridger. Nevertheless, he submitted, the pressure upon Garner should be regarded as cumulative, and accordingly Harris was entitled to demonstrate, if he could, the possibility of an undisclosed and corrupt agreement between Garner and Jarrett, and/or Mr Bridger, to implicate individual police officers. This submission recurs throughout the applications to adduce fresh evidence, and we shall deal with it later in the judgment.

At trial, Garner accepted that the language used by Mr Bridger could be construed as a threat, but told the jury that, even if it was, it did not influence him particularly, as Mr Bridger wanted the truth from him, and did not want Harris implicated unless he was in fact implicated. Mr Bridger himself believed that what he told Garner was no more than the simple truth.

Garner’s account of the essential movements on 21 January can be briefly summarised. He was on patrol car duty with Howell and May. Two of them, at least, were armed. The driver was not linked to this offence, and need not be identified.

About mid-morning, or just before the armed units were stood down, while they were in the car, May received a call on his mobile phone. As the judge reminded the jury, there were no records of such a call having been received by May. He got out of the car to answer, and on his return he asked Garner and Howell to join him outside. When they were out of earshot of the driver, May told them that Harris and Smith had discovered the whereabouts of the guard’s share. So they had two alternatives. Either they could arrest those who were in possession of the money, or they could share it. Howell and Garner returned to the car. May made another phone call, out of earshot, and then rejoined them in the car.

May and Howell strongly disputed this evidence. May said that he first heard of the Security Express robbery at about 9.30pm on 20 January. At first, he was not particularly concerned, because the robbery did not appear to be connected with his area of responsibility. However, with increasing alarm at Rigg Approach, it gradually emerged that there were indeed considerable grounds for concern. He ordered Harris to interview Harvey at Edmonton Police Station on the following morning, and directed Howell and Garner to join him in the patrol car for an armed surveillance operation. He controlled the operation from the car. He did not make any corrupt or dishonest suggestions to Howell and Garner, and he was able to, and did rely on telephone records to contradict Garner’s account of the surreptitious telephone calls.

Howell confirmed that in the morning of 21 January he was with May and Garner, and a driver, in a police patrol car, acting as back-up for a surveillance team. Nothing untoward happened during the period of duty, and in particular May said nothing about, and certainly did not suggest the theft of the security guard’s share of the proceeds. According to his evidence, he returned to Rigg Approach at about 2pm. Thereafter, Howell remained on duty at Rigg Aproach until 19.00. He could not remember much about the afternoon, but he spent it at the station, preparing papers for a forthcoming retrial. He did not leave, and in particular he did not go anywhere with Garner during the afternoon. He was present for and attended the de-briefing at 18.00, when he handed in his firearm. May said that he called the operation off at about 15.00, and returned in the car to Rigg Approach at 15.30. He confirmed that the de-briefing took place at 18.00, and all the officers were present, and none unduly delayed.

Garner gave a diametrically opposed account. After the police car had returned to Rigg Approach, he thought, but was not sure, that Howell went into May’s office. Whether he did so or not, at Rigg Approach Howell told him that they had the go-ahead, and that he had an address where the guard’s share would be found. Neither Garner nor Howell signed the surveillance log: every other officer involved in the operation did so, and May, as both officer in charge, and a contributor to the observations, countersigned it.

Garner and Howell left the police station together, without booking out, and he drove Howell in his (Garner’s) car to another police station where, after Howell had checked an address, he said that the name of the man they were seeking was Kevin. They then drove to the address. No one was present, so they waited. Eventually Dwyer arrived. Garner left the car and went into Dwyer’s flat. There was no money there. Dwyer said he wanted to speak to the man, meaning Harvey. Garner called Harris’ pager and asked him to phone Dwyer’s telephone number. Harris responded to this request shortly afterwards, and Garner answered and told Harris there was no money at the flat, and that Dwyer wanted to speak to Harvey. A few minutes later the phone rang again. Garner answered. The person at the other end was not Harris, so he handed the phone to Dwyer. After the call was completed, Dwyer agreed to take Garner to the place where the money was located and, after making another phone call, he and Garner left for his home together. They returned to Garner’s car, where Howell was waiting. The three of them then drove away to another address at Dwyer’s direction. Dwyer left the car, returning shortly afterwards, carrying a bag which contained money. He gave the bag to Garner, and after he had looked into it, Garner put the bag into the boot of his car. He and Howell then returned to Rigg Approach. Dwyer said that he handed over £195,000, Garner that he received £155,000 from Dwyer. This important discrepancy was fully explored at trial, in order to undermine confidence in Garner’s credibility.

At the station, formal de-briefing took place. Afterwards Garner spoke to May, and gave him directions to his home, the venue arranged between May, Howell and himself for distribution of the guard’s share. He and Howell then drove to Garner’s house, although Garner was not sure whether they both travelled in his car, or whether each travelled in his own. On the way home, he stopped at a grocery shop and bought some bin liners. At his home, he and Howell divided the money into ten piles of equal amounts, each containing £15,500, and a surplus of £600 or so in loose money was split between himself and Howell. The money was then put into ten bin liners which were knotted up and placed by the front door.

May arrived, saying that he was on the way to a public house nearby to meet with another officer, Detective Inspector Raison, whose name will recur later in the judgment. May and Howell left together, taking seven of the ten bags with them. The remaining three bags were intended for Garner, Harris and Smith.

Howell denied any such visit. He never went to Garner’s house, and certainly did not help in the division of the guard’s share, or the arrangements to distribute it. When he went off duty, he called in at a local public house for a drink, with a colleague, DC Gaeghan, and then went home. No mention of this meeting with Gaeghan was made in his duty statement in March 1996. Howell said that he remembered the meeting after his arrest on 12 October 1998. Mr Gaeghan was not asked to recollect the incident until some time in 2000. According to his evidence, the arrangement to have a drink after work with Howell was made at about 14.00 at Rigg Approach. He went off duty at 19.30. He drove to the public house, waiting in the car park for Howell to arrive, which he did at about 20.15 to 20.30. They remained there for about an hour and then drove home. They had met for a drink at the same public house on about six occasions altogether, and this particular meeting came in the middle of the sequence. This evidence was said to require an “alibi” direction.

May said that he left Rigg Approach at 20.00, and went to a public house about three quarters of a mile from Garner’s house. He did not, however, visit Garner, nor collect any money at all from his house. He spent the bulk of the evening in the public house with DI Raison. The entry in the duty log showing him leaving the station at 19.00, and then amended by him to read 20.00, had no sinister connotation.

On the following day, according to Garner’s account, he met Harris on a country road, and handed two of the three remaining bags to him. Harris drove away. Harris denied that this meeting had taken place. He never received anything from Garner.

Garner was cross-examined at considerable length. For present purposes, it is sufficient to record that the judge ended his summing up of Garner’s evidence by reminding the jury that Garner was a corrupt police officer, who had been engaged in serious criminality, who knew that, by giving evidence and cooperating, he might well obtain a significant reduction in sentence. He did not expressly remind them of his earlier warning to approach Garner’s evidence with care and caution. It was unnecessary for him to do so. No jury would have overlooked that warning. The judge made sure that they knew precisely what kind of witness they were dealing with.

The judge’s directions in relation to Dwyer’s evidence are said to have been inappropriate, and open to criticism. We have already narrated his directions about the need for care and caution. He explained that

“on his own account, [Dwyer] was looking after money which, you may think, he must have known was stolen, and therefore in a sense he is an accomplice in the robbery. If only for that reason, you should approach the evidence with care and caution, and you should not necessarily assume that every single thing that he says is correct.”

Kevin Dwyer was a friend of Hepburn. In January 1995 Hepburn telephoned him and asked him to look after a package which would be brought to his house the next day. He was to keep it for twelve months, and it would then be collected. On the day of the robbery, Dwyer received a phone call. The correct code word was used, and Dwyer was informed of a change of plan. It meant that Dwyer had to travel to another address to collect Hepburn’s package. Dwyer drove to the address he was given. He met Blake. Hepburn’s money was lying on the floor. Blake counted the money. It amounted to £200,000, and Blake took £5,000 for himself. The bulk of the money was put into a blue suitcase and handed to Dwyer, who took it home, where he put it into a hold-all, and hid the hold-all in a lock-up. He then went to work.

On 21 January he went to work as usual. On his return, he parked outside his house and started to unload his tools. He noticed a car parked on the other side of the road and a man eventually came up to him, saying that he had to talk to him, and they both went into Dwyer’s flat. Dwyer did not know the man, who said he was called Kevin. As it plainly was Garner, we shall so describe him, notwithstanding some suggestion at trial that Garner may not have visited Dwyer’s house that afternoon.

After what from Garner’s point of view was an unsatisfactory conversation, he made a telephone call and then, after checking his pager, made a second call, during which he asked Dwyer for his telephone number, and gave it to the person at the other end of the line. The phone rang. Garner answered, saying something like, “He has not got it,” and then passed the phone to Dwyer. Dwyer said that he was told, “Give him money. It is OK. He can take the money to somewhere safe.” He also said that the man told him he should be looking after a package for Greg, that things had changed and he should give the man the money.

Dwyer then put the telephone down. He told Garner that he would take him to the money. He made a phone call. He and Garner got into a car. A third, white man, unknown to Dwyer, was the driver. Eventually they parked opposite the lock-up. He opened the lock-up and collected the bag containing the money, which he took back to the car and put on to the back seat. The car was then driven away.

In his summing up, the judge reminded the jury of the fact that there were a number of differences between the accounts, given by Garner and Dwyer respectively, of this incident. As he said, they would “find many differences and some similarities”. He invited the jury to decide how much importance they should attach to the differences, and that they should consider some of the similarities of detail. Importantly, he reminded the jury that if Dwyer’s version of the amount of money that he received was accurate, and that he handed all the money to Garner, as he said he had, then Garner had stolen £40,000. He also pointed out that Dwyer had given no evidence to identify the third man, who drove him and Garner to the lock-up to collect the money.

A distinct area of evidence, unconnected with the main witnesses for the Crown, or events at Edmonton Police Station or Rigg Approach, arose from a detailed investigation of the financial affairs of Harris, Howell, May, and indeed Norris. As the judge reminded the jury, there was no evidence of any unaccountable improvement in the financial affairs of either Harris or Howell. He told the jury that they “must” assume in favour of Harris that no financial irregularities had occurred, and although there was one query in relation to Howell, the judge directed the jury that it was “totally speculative” and should be completely ignored. He ended this part of the summing up by directing the jury that there was “no financial evidence to indicate that, in early 1995, either of them came into possession of substantial and unexplained amounts of cash”.

There was, however, evidence which showed something of a dramatic improvement in May’s financial position. Between January and July 1995, nearly £6,000 was paid into his and his wife’s savings account, which coincided with a decrease in cash withdrawals during the same period. May also bought a fishing boat for nearly £2,700 in cash, without making any corresponding withdrawal from any known bank account. In short, in the period immediately after the robbery, there was evidence that May had unaccountably prospered to the extent of £10,000 in cash. May gave evidence about his financial affairs. He and his wife had, during early 1995, rather cut back on their expenses, but his stepson Christopher lived with them and contributed £40 in cash for his keep, which was put into a savings box. He tended to pay by credit card, and his wife used her cheque book, to pay Christopher’s debts, and he repaid them in cash. May also received payments from a savings account and a pools win. And his father asked him to handle a substantial amount of cash. The money for the boat came partly from the father’s cash and partly from the cash payments made by Christopher and then saved. In short, there was nothing in the conduct of his financial affairs which tended to suggest that there must have been any inexplicable funds.

The judge summarised the evidence, and contentions on both sides on this issue, and left it to the jury to decide whether there were any unexplained financial irregularities, and if there were, what inferences might properly be drawn.

The appellants were arrested on 12 October 1998. When interviewed, each declined to comment, on the basis of legal advice. The judge refused an application by the Crown to allow cross-examination under s34 of the Criminal Procedure and Investigation Act 1994.

There are, as already indicated, a very large number of grounds of appeal. For convenience, we have divided these into distinct groupings. First, questions and rulings before the start of the evidence; second, issues canvassed and decided adversely to the appellants during the trial; third, criticisms of the summing up; fourth, events after the jury’s retirement and before the verdict; and finally, fresh evidence.

Pre-trial issues

This was a vast enquiry, generating an enormous amount of paperwork. Over 50,000 documents had to be examined. Disclosure proceeded in the usual way. A successful application for PII was made to the trial judge. A number of matters raised in the grounds of appeal made it necessary for us to conduct the same exercise. We were provided with a substantial body of material.

We must begin by expressing our gratitude to counsel for the Crown, and those who assisted them, for the way in which this issue was handled. In truth, it was a model of everything that a PII application should be. The effort required must have been prodigious. We cannot begin to imagine how much time was saved at trial, and indeed on the hearing of the appeal, as a result of the meticulous preparation which was the hallmark of this application. We may usefully highlight two or three features. We were not invited to examine documents, as too often happens, so as to give some sort of judicial approbation to the decisions on disclosure for which counsel is responsible. In particular, we were not asked to decide whether documents in the possession of the Crown were, or might be relevant to the issues at trial or on the appeal, nor indeed to give the court’s broad approval to the decisions made by the Crown on disclosure. The question of relevance only arose in the direct context of the PII application, and in particular whether the document or documents which might be relevant, and of assistance to the defence, nevertheless properly attracted the immunity sought by the Crown. Equally, we were not provided with a substantial number of documents, vaguely sorted, and in no particular order. Instead we were provided with carefully prepared files, logically ordered, usually in date sequence, with dividers in the file to indicate a change of topic. Each divider was introduced by a written commentary of the issues to which the documents related, together with an analysis of the reasons why they might be perceived to be relevant, any possible use which the appellants might make of them, and setting out with clarity the basis for the claim for PII.

Each member of the court examined every document. Our approach was simple. We did not treat the application as a review of the judge’s decision, but rather as a re-hearing, in which we were required to make up our own minds independently of his view, whether disclosure should be ordered, in the light of the issues raised at trial, and the grounds of appeal and arguments in support of it, with particular attention to the material said to constitute “fresh” evidence. We applied the well-understood principle in R v Keane [1994] 98CAR1.

We must first deal with the issues arising from tapes found in possession of DI Raison, and the possible involvement of a well-known criminal, whom we shall describe as A. His true identity is known to the appellants, or their legal advisors. The possible significance of any material here is whether it may serve to show that A was involved in the robbery on 21 January 1995 and took, or came into possession of the guard’s share. In context we note that DI Raison has made a statement to the appellants’ solicitors, and they are presumably in a position to discover from him, whatever he knows about the case.

For obvious reasons we are unable to give a detailed judgment on the point. However, we record that, looking at the material as a whole, rather than isolated references in the documents, or isolated documents, properly deployed this material could not, in our judgment, assist the appellants. In particular, large sums of cash reported as having been seen in A’s possession, whether shortly after, or four to six months after the robbery, do not on analysis serve to indicate either that A was an active participant in the robbery or, possibly of greater significance, suggest any reason to believe that the guard’s share of the robbery (either in whole, less £5,000, as Dwyer asserted, or in substance, £155,000, as claimed by Garner) found its way into A’s possession. Moreover, this material does not provide any line of investigation which would enable the appellants to show that they, or any of them, did not or may not have collected their respective shares, or that Garner may have distributed the guard’s share to A. If, contrary to our judgment, there might be some tenuous use to be made of isolated parts of this material to undermine the Crown’s case, we did not see how the effort to do so could survive proper examination of all the relevant material, and disclosure would inevitably result in the identification of the source of the information, creating great peril.

We were further asked to consider material relating to a man called B, and in particular whether any of the documents serve to show that he was involved with, or a participant in crime with Garner, or that he was the informant who led to the arrest of Garner, or that he was involved with Garner in the activities after the robbery on 21 January. Again, the appellants or their legal advisors fully appreciate the identity of B. None of the material shown to us under the PII application advances or could advance the cases of the appellants.

Three further points arise in connection with Garner and his credit worthiness.

First, Garner was asked in cross-examination at trial whether he was involved in an alleged attempt to attach a hand grenade to Harvey’s motorcycle. He denied it. Nothing in the material shown to us serves to contradict or undermine his denial. Any further disclosure of this material would reveal the identity the source of the information, a life-threatening situation. We should add that we found information which, on the face of it, firmly and reliably contradicted the suggestion put to Garner.

Second, there was double hearsay material that Garner had boasted that he, together with other officers, had killed and buried a man. Garner had indeed made such a boast, in order to maintain his front as a serious operator in the criminal world with which he had become involved. The fact of that boast was disclosed. The information was therefore available to be used. In fact, Garner was cross-examined about extravagant claims of involvement in crime with B, and he agreed that he had talked up his criminal activity.

Third, while a police officer on active duty, Garner became involved in a highly dangerous undercover operation. His role was and, in the interests of his own safety, remains confidential. We have seen material which shows that on a particular occasion, in the course of another operation, he backed away from a confrontation which might have led to his identification. Nothing in the information about his conduct during that operation advances the appellants’ case.

In summary, having reflected on the issues raised at the trial, and now raised in the skeleton argument and lengthy grounds of appeal, and in particular by reference to the areas of disclosure which the appellants, through counsel, seek to have reviewed, we came to the conclusion that the Public Interest Immunity applications were justified, and that remained our view throughout the conduct of the hearing.

We should add that before including these observations in the judgment, we invited counsel for the Crown to examine them in draft to ensure that nothing included in the them might have the effect of undermining our decision on the Public Interest Immunity application. We are assured that no harm can reasonably be anticipated from disclosure of this material in this judgment, and we have therefore included it so as to ensure as much transparency as we reasonably can.

Before the evidence was called at trial, the judge was asked to exclude the evidence of Harvey and Garner. The issue was argued in different ways, encapsulated by the judge in two questions. “Would the admission of the evidence of Harvey and Garner have such an adverse effect on the fairness of the proceedings that the court ought not to admit that evidence?” or… "Would the admission of that evidence mean that the trial of these defendants would be an abuse of process or a breach of Article 6 of the European Convention of Human Rights in the sense that it would prevent a fair trial?”

The essential argument before him arose from the fact that the “intelligence interviews” with Harvey and Garner were not contemporaneously or properly recorded, and other conversations and de-briefing exercises were either not recorded at all, or were noted by interviewing officers subsequently, not signed by the “suspect”, or were noted up long after the relevant conversations had taken place. The judge was also asked to consider the circumstances in which Garner changed his solicitor, and the contribution by Mr Jarrett to that process, and Garner’s mental fitness to be questioned at all.

In his short judgment the judge immediately acknowledged the importance of the evidence of Harvey and Garner, and the combined effect of their criminal activities and motivation for giving evidence.

Following the decision of Blofeld J, at first instance, in R v Drury and Clarke, the judge rejected the argument that the provisions of the 1984 Act, and by implication the Criminal Procedure and Investigation Act 1996, and the Codes made under them, applied to Garner and Harvey in their capacity as witnesses for the prosecution.

The judge then examined what he described as “the vast amount” of written material disclosed by the Crown to the defence, capable of proper deployment to attack the credibility of Harvey and Garner. The material included custody records for every relevant day; tape recorded interviews, or the text of the interviews, in respect of every offence admitted by either man, and the circumstances of those offences; where they were available, all the pocket book entries made after the “intelligence interviews”; the tape recorded interviews after the “intelligence interviews”; the de-briefing notes of the investigation into the corrupt activities of the Flying Squad, and relevant witness statements. In addition, the records of policy decisions, the medical evidence about Garner’s mental health, and detailed records of expenditure by and on him while in police custody, were also disclosed.

The judge decided that it would be wrong for him to usurp the function of the jury by “refusing to allow them to determine whether or not they can accept the evidence of Harvey and Garner”. He also took the view that, even if he were wrong about the application of the Codes, the evidence should still be heard by the jury. Even if there had been any relevant breaches, he said, “I am satisfied that they are not such as severely to handicap the proper presentation of the defence.”

So far as it affects the evidence of Garner, this decision is criticised on a variety of grounds. In summary, however, it is submitted that the judge misdirected himself in his view that the Codes applied to interviews of suspects rather than to those of potential witnesses for the prosecution. In view of the decision of this court, after the conclusion of the present trial, binding on us, in R v Drury and Clarke, the Crown accepts that the judge did indeed misdirect himself. We shall therefore give leave to appeal on the relevant grounds arising from this misdirection. We need not, however, recite the critical provisions of the relevant Codes.

The argument, as developed by Mr Arlidge, and adopted by counsel for the other appellants, is naturally founded on the Crown’s concession. He pointed out that in addition to breaches of the Codes, the interviews were also conducted in breach of the Home Office Guidance of 9/1992. The attempt to exclude the evidence, or have the proceedings treated as an abuse, depended largely on the absence of records, but as developed before us, although based on the suggested practical difficulties caused by the absence of records, was reinforced by arguments that there may have been rather more by way of pressure or inducements at the unrecorded interviews than described by the witnesses to the court.

As the submission developed, however, it moved from a straightforward attack on the deployment of Garner’s evidence by the Crown, as advanced to the judge, to a more wide-ranging attack on the arrangements made for and possible misconduct of the interviews by Mr Jarrett and Mr Bridger, largely based on fresh material, or material which was available to, but not apparently deployed before the judge. In other words, the misconduct which led the defence to be "irretrievably" handicapped by the absence of contemporaneous records of the crucial “intelligence interviews” was reinforced by “fresh” evidence, partly based on further disclosure made by the Crown in the context of further trials arising as a result of this investigation, as well as material available to the defence, of additional favours or inducements offered to Garner and his girlfriend. These included, for example, the absence of timely confiscation proceedings against Garner in a Drug Trafficking Offences Act investigation, and any proper analysis of his financial affairs, together with those of Jackie Buisson, including her possible involvement in criminal proceedings, and Garner’s interest in protecting her from them. These were not, and on the information available at the trial, so it was contended, could not be pursued with sufficient determination. Moreover, Mr Arlidge relied on general misconduct by other officers involved in this investigation, again supported, it is said, by fresh evidence. Thus, since the trial, Mr Jarrett has been suspended from duty, and this, and the material disclosed in the investigation into his conduct, might reflect adversely on his credit.

We shall deal later with fresh evidence issues. For the time being, with one exception, we shall confine ourselves to consideration of the matters raised before the judge, and his decision on them.

We agree with the Crown that, on the basis of the decision in R v Drury and Clarke, the judge was wrong to conclude that the relevant Codes under the 1984 Act and the 1996 Act did not apply to Garner. That said, we note that notwithstanding that the court was reversing the decision of the trial judge, Blofeld J, reached for precisely the same reasons as those which appealed to the judge in the present case, the appeals of Drury and Clarke were dismissed. It is also worth noting, if only by way of footnote, that Blofeld J and Judge Denison QC are both acknowledged experts in the principles which apply to criminal investigations, and any subsequent trials. It would be difficult to castigate the conduct of police officers who, in late 1997 / early 1998, anticipated their views.

Perhaps, therefore, the starting point is that the admitted failures to comply with the Codes, and in particular to make a permanent contemporaneous recording of the "intelligence" interviews, were not said at trial to sustain, and would not have sustained an allegation of bad faith against Mr Jarrett and Mr Bridger. To the extent that there was something of a hint of such an allegation in the submission before us, at least in part based on the “fresh” evidence, we reject it. The creation of accurate custody records, recording the fact that intelligence interviews had taken place, followed by properly recorded interviews shortly afterwards, recording the areas covered in the earlier discussion, together with a summary of what was said, as agreed by Garner, provide a sufficient answer to any suggestion of bad faith. There was no evidence before the judge that either Mr Jarrett or Mr Bridger deliberately sought to manipulate the protection to which the defendant in police custody is entitled or, for that matter, to destroy evidence which might be of assistance to those responsible for his defence if Garner had pleaded not guilty, or those responsible for the defence of anyone subsequently indicted on the basis of Garner’s allegations. We must add that, if the Crown had been seeking to rely on the “intelligence" interviews with Garner as evidence against Garner, and Garner had sought to contest the responses attributed to him, different considerations might well have arisen, but that was precisely not the problem with which the judge was faced. Rather, and unusually, in this trial, the defence was seeking to rely on the Crown’s failure to observe the rights of a person under arrest in police custody to prevent him from giving evidence for the Crown when he apparently wished to do so, and he himself was not seeking the protection which the Codes and Guidance were intended to provide for him.

That leads to consideration of another fundamental feature. At trial, the crucial witnesses were not the officers who conducted the “intelligence" interviews, Mr Jarrett or Mr Bridger, but Garner himself, an experienced former policeman. He knew precisely what was going on. He himself rejected the suggestion that Mr Jarrett’s behaviour, even if bullying, or pressure from Mr Bridger, influenced his decision to give evidence for the prosecution. Even if they had, the vital question remained whether he had been persuaded or pressurised into giving untruthful evidence against the appellants. The complaint, in essence, was not so much that the defence was deprived of material which would enable it to demonstrate that Garner was improperly “turned”, and offered yet more favours, or put under greater pressure than otherwise appears, but that in the absence of contemporaneous records, the defence, and therefore the court, lacked any guarantee that records made shortly afterwards, or the evidence offered to the jury, were correct. It was, of course, open at all times to Garner, immediately after the "intelligence" interviews, when he knew that the conversations were being recorded, to protest at what had happened, or disagree with what was being recorded as having taken place, and equally open to him to complain at his treatment before or during trial. Indeed some of the “fresh evidence” proffered to us for consideration comes from other former police officers, who had chosen to assist the enquiry into police corruption, and admitted participating in one or other of its different manifestations, and who are now complaining of their treatment by officers responsible for investigating the allegations of corruption at Rigg Approach.

In our judgment, the judge was right to conclude that there was a wealth of material available to the defence with which to examine the credibility of Garner's allegations against the appellants generally (which was the critical issue arising from his evidence), but also, his account, as well as that of police officers, of what had happened in the "intelligence" interviews, and if they were called, the accounts given by Mr Jarrett and Mr Bridger of them (which in reality were peripheral). We must emphasise that pre-hearing arguments to exclude evidence, or to terminate the proceedings as an abuse of process, should not succeed simply because the defence may establish that there were imperfections or irregularities in the investigative process, or preparations for trial, which may make, or indeed have made the task of the defence at trial more difficult. If relevant to any issue in the trial, the jury is well able to address such questions, and so attach proportionate weight to them in the process of evaluating the evidence. That indeed is why we have trial by jury.

Too many of the applications currently made to trial judges to terminate proceedings as an abuse of process overlook these elementary principles, well established by decisions in this court. In R v Heston-Francois [1984] 78CAR209, an application for the proceedings to be stayed was made on the basis that police officers improperly obtained possession of legally privileged files and tapes belonging to the defendant, which were then read by other officers who were due to give evidence at his trial. That plainly was unacceptable conduct, but it was accepted that, in the result, notwithstanding these improprieties, the defendant had suffered no prejudice by what had happened. At the Crown Court the judge refused to conduct a pre-trial enquiry. The court’s inherent jurisdiction to stay proceedings was not in doubt. In the circumstances, the “reprehensible conduct” did not amount to an abuse, or misuse of the court’s process. Rather, “it is conduct which…falls to be dealt with in the trial itself by judicial control upon admissibility of evidence, the judicial power to direct a verdict of not guilty, usually at the close of the prosecution’s case, or by the jury taking account of it in evaluating the evidence before them”.

In Attorney General’s Reference (Number 1 of 1990) [1992] 95CAR296, Lord Lane CJ pointed out that the decision in R v Heston-Francois merited more attention than it had received. In a case in which the court was concerned with the problem of delay, he said:

“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust…In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: First, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.”

We do not believe that these observations were intended to be confined to cases where the issue under consideration was delay. As Lord Lane pointed out earlier in his judgment, allegations of abuse “may arise in many different forms”, including complaints about the methods used to investigate the offence. The passage we have just quoted emphasises the exceptional nature, for any reason, of the imposition of a stay. Notwithstanding the developing jurisprudence, and indeed the implementation of the Human Rights Act 1998, these principles are unchanged.

We immediately highlight the stark difference between such cases, and those where the prosecution has conducted itself in bad faith, undermining the principle of, and in the process destroying the right of a defendant to a fair trial. In such circumstances, if, notwithstanding the safeguards provided by the trial process itself, the trial will be unfair, which does unfortunately occur from time to time, the trial judge can be relied on to act robustly and firmly to prevent an abuse of the court’s process. That however is not the case here. Notwithstanding the judge's self-misdirection, we entirely agree with his conclusion that the trial should proceed, and that he was right to leave the evidence of Harvey and Garner for the consideration of a jury. Far from seeing any ground to interfere with his decision, we should record that any decision to the contrary would have been wrong in principle.

Trial rulings

The log of relevant movements on 21 January 1995 was not produced in evidence by the Crown. It had, however, been drawn to the attention of both Howell and May during their police interviews, and was indeed included in the committal bundle as part of the Crown’s case.

When Howell gave evidence, the Crown sought to put the log before the jury. Although the judge recognised that the document was not produced “out of the blue”, he rejected the application in its wide ambit, but permitted Howell to be cross-examined about the fact that his signature did not appear on the document, and once he agreed that it did not, for him to be asked for his explanation.

In our judgment the production of the log itself was not a necessary foundation for these questions. We can see no reason why Howell should not have been asked questions to this effect: “Did you sign the surveillance log on 21 January?” Assuming the answer was in the negative, then, “Why not?” If Howell had asserted, untruthfully, that he had signed the document then he could have been confronted with the original.

We can see no justified complaint about this decision. In reality, the complaint arises from what happened after May had concluded his evidence in chief. The judge was then faced with an application by the Crown to cross-examine May on the surveillance log. May’s position was different from Howell’s. He was a contributor to the observations, and was the supervising officer, and he signed it in both those capacities. Indeed, in his duty statement in March 1996 he had referred to the observation log and confirmed that it was a log for which he was responsible. The judge therefore permitted him to be cross-examined, and in particular, about the absence of the signatures of Howell and Garner from it. May himself cannot complain. Howell does, because of the possible adverse effect of this line of cross-examination on him. As the summing up shows, May was indeed cross-examined and his explanation for the absence of the two signatures was sought. May denied the suggestion that the proper inference to be drawn from the omission of the signatures of Garner and Howell is that they were out of the police station during the afternoon.

In our judgment the judge’s further decision about the log was also correct. He permitted cross-examination of the man responsible for the document. He did not, as was suggested, simply overrule the decision he had made two days earlier when asked to admit the log during the cross-examination of Howell. At that time he considered the propriety of cross-examining Howell, and made his ruling, limiting cross-examination. When he considered the same application in relation to May, he was faced with a different situation, and ruled accordingly.

Leave to appeal on this ground is refused.