Maxwell & Anor v R.

This appeal raises the following issue:

May the Court of Appeal order a retrial having quashed a conviction on the grounds of serious executive or prosecutorial misconduct, and, if so, in what circumstances?

A similar issue could arise in other circumstances, for example, if a court has entered a stay on the grounds of serious executive or prosecutorial misconduct and an application is made to lift the stay and order a trial.

On 27 February 1998 the two appellants were convicted of two offences of robbery and one offence of murder at the Crown Court sitting at Leeds. The robberies were committed on 20 June 1996 and October 13 1996 at the home of two brothers Bert and Joe Smales. Joe Smales died in hospital from his injuries on 7 November 1996.

The prosecution’s case depended upon the evidence of Karl Chapman (“Chapman”), a prolific informer.

For the robberies Paul Maxwell (“Maxwell”) was sentenced to 12 years’ imprisonment concurrent and for the murder to life imprisonment. His tariff has been set at 18 years. His brother Daniel Mansell (“Mansell”) was sentenced to 10 years’ imprisonment concurrent for the robberies and for the murder to life imprisonment. His tariff has been set at 15 years. Both have been in custody since April 1997.

The renewed applications for leave to appeal conviction were rejected by the Court of Appeal Criminal Division (“CACD”) on 5 November 1999, which heard evidence from two West Yorkshire police officers.

Subsequently, there was a very substantial investigation by the Criminal Cases Review Commission (“CCRC”) which obtained a detailed report from the North Yorkshire Police. The investigation was conducted by Detective Chief Inspector Gray who took over from Detective Chief Superintendents Lynch and McKay, on their retirement. The CCRC referred the convictions to this Court in November 2008. The case was initially listed before another Division of this Court in June 2009 (Hooper LJ, Swift J DBE and Hamblen J), which dealt with matters of disclosure and redaction of the parts of the CCRC’s Report. Following that hearing the respondent accepted that there had been serious prosecutorial misbehaviour and that the convictions were unsafe.

The respondent further accepts that if the CACD in November 1999 had been told, as it ought to have been, that which is now known, the convictions would have been quashed on the grounds that they were unsafe. The convictions would have been unsafe because if the jury had known about the benefits which were given or promised to Chapman by police officers involved with the investigation of the offences, the verdicts of the jury might well have been different. The Court, it is accepted, would have concluded that the deliberate concealment of the evidence of these benefits amounted to serious prosecutorial misbehaviour. Indeed the way that Chapman was treated may well itself have constituted serious prosecutorial misbehaviour.

The respondent accepts that the CACD would not have ordered a retrial. In the absence of any other sufficient evidence, the CACD could not have granted a retrial, even if it were minded to do so. It follows that if the CACD had known the truth about the treatment of Chapman, then the convictions would have been quashed, no retrials would have been ordered and the appellants would have been released from prison by no later than the end of 1999.

If during the trial it had become clear that the trial court had been deliberately deceived, the trial judge might well have stayed the prosecution on the grounds that it would have been an affront to the public conscience to allow the prosecution to proceed (see Latif [1996] 1 WLR 104, at 113 per Lord Steyn, to which we return below). The judge might also have excluded the evidence of Chapman altogether applying section 78 of the Police and Criminal Evidence Act 1968 (“PACE”) or Galbraith [1981] 73 Cr. App. R. 124, in which case the appellants would have been acquitted. The appellants would then have been released in 1997 or at the beginning of 1998.

The truth has only come into the open following the CCRC’s investigation. The CCRC and the North Yorkshire police are to be congratulated on the work that they have done to uncover serious misconduct on the part of police officers. We should add that no officers have been disciplined or prosecuted for what they did. All parties have relied heavily on the CCRC report, the findings of which are unchallenged. Almost all the redactions in the original CCRC report have now been removed. All that remains redacted are some personal details of no relevance to this appeal.

The only issue before us was whether a retrial should be ordered. If there were a retrial the prosecution would not call Chapman. The prosecution seek a retrial because of admissions allegedly made by Maxwell. But for those alleged admissions the prosecution would not be seeking a retrial.

There is no challenge in this Court to the fact that the admissions were made by Maxwell, as well as statements purporting to recant the admissions. It is submitted in behalf of Maxwell, unsupported by any evidence from him in these proceedings, that the alleged admissions are not reliable. Mr O’Connor QC told us that he had not thought that it would be helpful if Maxwell made an exculpatory statement recanting and explaining the admissions. Whilst we accept this, it follows that this Court has not heard from Maxwell as to whether he adheres or not to the admissions.

Some of the alleged admissions were made before the hearing of the appeal in November 1999, namely by Maxwell to a solicitor then instructed by him, in a letter to Mansell and to a prison officer involved with the Lifer Unit. None of these alleged admissions were known to the prosecution at the time of the appeal in November 1999.

The other alleged admissions were made within the prison in the context of future parole applications, to an officer carrying out in early 2000 an enquiry into particular kinds of burglary and to officers of the North Yorkshire Police carrying out the investigation at the request of the CCRC. In a lengthy statement made to the North Yorkshire Police in 2004, Maxwell said amongst other things: “I would like a retrial and I would plead guilty to robbery and manslaughter”. Mr Nolan QC, for the respondent, told us that a plea only to manslaughter would not be acceptable.

It is also submitted that there should be a retrial for Mansell. It is said that if Maxwell was convicted then a jury would be entitled to find Mansell guilty also. We examine the reasons behind that submission below.

We take only a few passages from the CCRC Report, being passages in which some of its unchallenged findings and those of the North Yorkshire Police are to be found.

142.

In summary, North Yorkshire Police found fresh evidence that Mr Chapman and members of his family received a variety of improper benefits in the course of his assistance to the police as a prosecution witness, which were not revealed to the CPS or to prosecution or defence counsel. These benefits contravened the controls designed to preserve the integrity of his evidence and/or were inherently improper. In the Commission’s view those benefits may have acted as an inducement and their non-disclosure denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial.

...

Expenditure on Mr Chapman

245.

The Investigating Officer found that from November 1994 onwards:

•

Expenditure by officers looking after Mr Chapman far exceeded his entitlements as a production prisoner and contravened the guidance on the treatment of resident informants.

•

The expenditure was financed by claims on a variety of police funds, including ‘incidental expense’ claims on the Fin20 and CID4 informant payment systems and cash advances drawn from divisional imprest accounts.

•

There was no common supervision of these funds or control on the level of spending on Mr Chapman.

•

The majority of the claims were made without receipts. The circumstances of the expenditure have not been accounted for and the possibility that Mr Chapman received the benefit of some of these claims in cash cannot be ruled out.

•

The Fin20 and CID4 Informant payment systems were weak and open to abuse.

•

Duplicate and multiple similar claims on one informant payment system, each for small amounts of money, effectively circumvented stricter regulations which would have applied to larger single payments.

•

Cash advances from divisional imprest accounts were reconciled without receipts in contravention of the account operating procedures.

•

Luxury items were purchased by the police for Mr Chapman during productions to police custody.

•

By conclusion of the trial of Mr Maxwell and Mr Mansell in February 1998 a minimum of £5836 had been claimed in expenditure on Mr Chapman. By the time Mr Chapman was released from custody in August 1999, minimum expenditure had risen to £6040.

No record of expenditure on Mr Chapman was maintained and these benefits were not revealed at trial or appeal.

Both the North Yorkshire Police and the CCRC looked closely at the evidence given to the CACD in November 1999 the effect of which was that Chapman had not been promised before the trial the £10,000 which he was paid after the trial. The evidence from senior police officers was to the effect that Chapman had co-operated in the investigation and given evidence not expecting a financial reward and not having been told anything which would have led him to believe that a reward was likely. Chapman, it was said, had not been consulted about it. The CCRC wrote:

Mr Chapman’s expectation of reward

425.

Mr Chapman’s evidence at trial was that, having already received credit in his reduced sentence, he had nothing further to gain from giving evidence against Mr Maxwell and Mr Mansell. The Court of Appeal was aware that a reward for his assistance in this case and others had subsequently been agreed by West Yorkshire Police, but was satisfied on the basis of evidence it heard that this had been decided without consultation with Mr Chapman long after the murder trial had finished.

426.

The Investigating Officer found evidence suggesting that Mr Chapman expected a substantial unquantified payment for his co-operation in the Yew II investigation [the name given to the operation which investigated Chapman’s allegations against a man called Ford, the two appellants and others] once he had been released from prison. The Investigating Officer concluded that:

‘There is an irresistible inference from the evidence that the West Yorkshire Police intended to reward Chapman for his evidence against Ford and others subject of the ‘Yew II’ operation and that intention had been communicated to him prior to him giving evidence at all the trials.’ 162

427.

This expectation subsisted through Mr Chapman’s co-operation with the murder inquiry and his evidence at the trial of Mr Maxwell and Mr Mansell. The Commission considers that although it originated in relation to an earlier case, an as yet unfulfilled expectation of reward may have been a factor affecting Mr Chapman’s co-operation and evidence in the intervening trial of Mr Maxwell and Mr Mansell. As such, it should have been revealed to the CPS and disclosed to those representing Mr Maxwell and Mr Mansell. Ultimately, the failure to reveal Mr Chapman’s expectation meant that both the trial and appeal courts were misled.

…

429.

On 1 November 1994, Mr Chapman met Detective Chief Superintendent Taylor and agreed to provide evidence about his accomplices. In a letter to prosecution counsel dated 16October 1996, Mr Taylor stated that in return for this assistance, he had promised Mr Chapman a new identity and address for his protection, together with a text.

430.

A letter from Mrs Chapman to her son written the following day suggests that financial expectations may also have played a part in this decision. Referring to her plans for relocation, Mrs Chapman commented ‘I’ll get what I can out of them (Leach, Daniels) and I’ll make sure I get a ‘phone then you’ll be able to ring me’. At the end of the letter, Mrs Chapman added, ‘When I see [DC] Daniels I will ask him about the money’. Although cryptic, this comment suggests that Mr Chapman may have anticipated some financial benefit flowing from his relationship with the police. Throughout his cooperation with the police, the majority of financial benefits for Mr Chapman were obtained by DC Daniels.

The CCRC also concluded that the evidence now available suggests that Chapman’s handlers intended to pay him a substantial reward on his release and that one of the officers giving that evidence, Detective Superintendent Holt, knew that Chapman had, from the outset of the murder investigation, an expectation of a substantial reward (see paras. 490 and 494). The CCRC wrote:

500.

The Commission considers that the Court of Appeal was not provided with all the information relevant to its consideration of Mr Chapman’s expectations at the time of Mr Maxwell and Mr Mansell’s trial. The Court was led to the erroneous conclusion that Mr Chapman had no expectation of reward and that his evidence at the trial had not been ‘….tainted in that regard’.

In its general conclusions the CCRC wrote:

818.

The fresh evidence shows that Mr Chapman received a variety of benefits in the course of his assistance to the police as a prosecution witness, which were not revealed to the CPS or prosecution counsel. These benefits contravened the controls designed to preserve the integrity of his evidence and, in the Commission’s view, may have acted as an inducement to Mr Chapman to give evidence.

819.

The Commission notes that some of the benefits conferred on Mr Chapman were not only inappropriate given his role as a prosecution witness, but inherently improper. These included the range of improper privileges afforded to Mr Chapman whilst in police custody. Mr Chapman was:

•

allowed to smoke cannabis;

•

supplied with alcohol;

•

allowed unsupervised home visits and periods of freedom; and

•

taken on social outings to public houses, police officer’s homes and a brothel.

The Report looks in detail at the circumstances of the visit to the brothel. On 12 December 1996 Chapman, then a serving prisoner, made his first statement to the police about Mansell and Maxwell at a police station. It was decided that Chapman needed “TLC” (to use the words of one officer) after making such an “historic statement”. The custody record showed that he was taken out to “assist in the locations of crime.” In fact he was taken to various places to entertain him and he was given £475.00 almost all of which he had spent before returning to the police station at 1.00 am. During that time he was taken by police officers to a brothel. One of the officers, DC Dunham, wrote this to Chapman in a letter about the night (DC Dunham wrote a number of inappropriate and revealing letters to Chapman):

... really glad you enjoyed ‘the night’. Truth to tell I quite enjoyed it myself. Little bit of this, little bit of that. Variety, they say, is the spice of life. What a spicey night! Let’s hope there is a second leg in March. I’m demob happy now and disinclined to dip out on any good times that may be up for grabs.

At the time Chapman was enjoying an intimate relationship with a female police officer to whom he wrote about that night. He apologised for visiting a “knocking shop”, saying that the visit was Dunham’s idea. He was furious that Dunham had told her what had happened. He continued:

I was drunk and stoned on weed, they paraded a dozen beautiful women in front of me and said take your pick.

The CCRC concluded:

820.

The omission of these matters [set out in para. 21 above] from Mr Chapman’s custody records ensured that those records offered no hint of the reality of his treatment whilst in police custody. The circumstances in which Mr Chapman provided information to the police in the murder investigation were therefore obscured.

821.

The disposal of, and the actions of West Yorkshire Police as regards other offences actually or allegedly committed by Mr Chapman and his mother during the period of his assistance to the police had the effect of benefiting them. The fresh evidence suggests that these disposals, along with the failure to investigate other offences which may have been committed by Mr Chapman’s relatives, were perceived by those affected as favours to ensure Mr Chapman’s continued co-operation with the police.

822.

The non-disclosure of these matters denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial.

...

828.

The Commission notes that from the outset of his co-operation with the police in the Ford case, Mr Chapman’s relationship with the police was presented as untainted by inducement. This impression was furthered by police responses to defence requests for information in that case and confirmed by the evidence subsequently given at Mr Ford’s trial. The official records of Mr Chapman’s treatment, upon which both prosecution and defence counsel would expect to be able to rely, were silent of the reality of his treatment in custody.

829.

The failure to reveal what could reasonably have been considered inducements surrounding Mr Chapman’s evidence left the prosecution unable to assess his reliability as a witness and precluded appropriate disclosure to the court and the defence. It also caused the trials involving Mr Chapman as a prosecution witness to proceed on the incorrect basis that he had not been the recipient of favours or privileges. The Commission notes the principle, articulated in R v Brown [1995] 1 Cr. App. R. 191, that

‘… in our adversarial system, in which the police and prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.’

830.

The failure to reveal relevant matters to those prosecuting the case of Messrs Maxwell and Mansell caused counsel and the court to be misled and precluded appropriate disclosure to the defence. As a result, the defence for Mr Maxwell and Mr Mansell were deprived of significant information which would have assisted them in testing the credibility of Mr Chapman and other prosecution witnesses. They were also hindered in their interpretation of other material which had been disclosed.

831.

In the Commission’s view, Mr Chapman’s treatment as a prosecution witness was incompatible with maintaining the integrity of the prosecution process. In contrast to the appearance of legitimacy in his treatment, the undisclosed information would have supported an argument that Mr Chapman’s evidence against Mr Maxwell and Mr Mansell was tainted by a sustained catalogue of improper inducements and an ongoing expectation that he would be favourably treated in every aspect of his relationship with the police. Those representing Mr Maxwell and Mr Mansell were denied the opportunity to deploy this material in support of a tenable argument that the proceedings against them were an abuse of process and to have this issue determined by the court.

The respondent does not dissent from the proposition that the findings of the North Yorkshire Police and of the CCRC show that officers engaged in the investigation of the murder conspired to pervert the course of justice.

It is the appellants’ case on this appeal that this court should not order a retrial given the serious misconduct on the part of police officers in the way in which they treated Chapman and, more importantly, in the light of the deliberate concealment from the courts of that treatment. So grave, it is submitted, is this misconduct that it would be an affront to the public conscience for the retrial to take place. If the CACD had known what we know today thanks to the labours of the CCRC, the two appellants would have been free years ago and would have remained free. To permit a retrial now would be to reward those responsible for serious misconduct. To permit a retrial now would be to encourage wrongdoers to conceal their wrongdoing and reward them for doing so.

The respondent does not minimise the extent of the misconduct. The respondent accepts that this court could properly take the view that the serious misconduct is such that no retrial should be ordered. Nevertheless the respondent submits that it is in the public interest for there to be a retrial. Maxwell has confessed. The evidence now against him is not dependent upon Chapman and the serious misconduct, except to the extent that the admissions made before the hearing of the appeal would not have been made if the judge had stayed the proceedings and those made after the appeal hearing would not have been made if the CACD had been told the truth with the consequence that the convictions would have been quashed. Such is the strength of the admissions that Mr Nolan likens them to the finding of DNA.

Section 7(1) of the Criminal Appeal Act 1968, as amended, provides:

Where the Court of Appeal allow an appeal against conviction . . . and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.

During the course of argument we raised with counsel section 78 of the Criminal Justice Act 2003. Section 75 of that Act and the following sections give the power to the Court of Appeal to order a retrial following an acquittal or the quashing of a conviction by the Court of Appeal. Such an order cannot be made in the absence of new and compelling evidence, defined in section 78 in the following terms:

(2)

Evidence is new if it was not adduced in the proceedings in which the person was acquitted ... .

(3)

Evidence is compelling if--

(a)

it is reliable,

(b)

it is substantial, and

(c)

in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

We suggested to Mr Nolan that the new and compelling evidence test could be an appropriate test for us to apply on the facts of this case when deciding whether it is in the interests of justice to order a retrial. Mr Nolan invited us to apply this test. If we have the power to order a retrial and decide that it would in principle be appropriate to do, we shall apply this test.

Do we have that power in the circumstances of this case? Mr O’Connor and Mr Blaxland QC submit that we do not. Mr Nolan submits that we do.

There is no doubt about the power to stay a case or, on appeal, to quash a conviction on the grounds of serious executive or prosecutorial misconduct.

That power has been used to prevent a trial or quash a conviction when the defendant has been brought into this country in circumstances where there has been a serious breach of basic human rights or the rule of law. In R v Horseferry Road Magistrates Ex p Bennett [1994] 1AC 42 the appellant was unlawfully brought to this country as a result of manifestly unlawful collusion between the South African and British police and on arrival here was arrested and brought before magistrates to be committed for trial. The House held, on an appeal from the Divisional court, that in those circumstances a court should refuse to try the defendant. Lord Griffiths said (at pages 61-62):

In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

Lord Bridge said (at page 67G):

When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance ... Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted.

Lord Lowry said (at page 76C):

...the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused.

Lord Lowry further said (at page 76G):

It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law.

Bennett was applied by the CACD in Mullen [1999] EWCA Crim 278; [1999] 2 Cr App R 143. On 8th June 1990, at the Central Criminal Court, Mullen was convicted following a trial of conspiracy to cause explosions, likely to endanger life or cause serious injury to property. He was sentenced to 30 years' imprisonment. Seven years after the trial, he was granted an extension of time and leave to appeal against conviction. The grounds related solely to the circumstances of his deportation from Zimbabwe to England prior to his trial. No challenge was made as to the conduct of the trial itself and the appeal proceeded on the basis that, if it was fair to try him, the appellant was properly convicted. It was held, quashing the conviction, that the British authorities, in securing Mullen’s deportation from Zimbabwe, had been guilty of “a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts”.

In neither of these cases could a stay be lifted or a retrial be ordered at least unless the defendant later returned to this country voluntarily. So these cases do not provide much help in resolving the issue which we have to decide.

Serious prosecutorial misconduct has led in the past to the staying of cases or the quashing of convictions in a series of cases involving HM Customs and Excise (“C and E”) and London City Bond (“LCB”) and involving C and E and controlled deliveries of heroin from Pakistan using participating informants. As to the former see e.g. Early and others [2002] EWCA 1904; [2003] 1 Cr App R 19 and as to the latter see e.g. Choudhrey and Others [2005] EWCA Crim 1988.

Latifand Shahzad [1996] UKHL 16; [1996] 1 WLR 104 also involved a participating informant and a controlled delivery of heroin from Pakistan. Shahzad whilst in Pakistan conspired with Honi that Honi would arrange for an airline pilotto carry 20 kilos of heroin into the United Kingdom. It was agreed that Honi would take delivery of the heroin inLondon and that Shahzad or somebody on his behalf would collect the heroin in London and arrange for its distribution in the United Kingdom. Shahzad delivered 20 kilograms of heroin to Honi. Honi delivered the drugs to a Drugs Enforcement Agency officer. On 10 April 1990 Mr. Bolton. a C and E officer travelled from England to Pakistan and collected the packages of heroin and on 13 April 1990 he brought them to England. The officer did so on the instructions of his superiors. But he had no licence to do so and it was assumed that in so doing he had committed an offence against section 170(2) of the Customs and Excise Management Act 1979. Eventually the appellants took possession of the drugs in England. It was submitted to the House of Lords that the trial judge should have stayed the proceedings because the customs officer had committed an offence in bringing the heroin into this country. The House of Lords rejected that submission.

Lord Steyn said (at page 112H):

The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Ex p Bennett. Ex p Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex p Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.

Lord Steyn went on to say that, although the trial judge did not deal with arguments about the criminal behaviour of the customs officer:

That was understandable since that was not argued before him. If such arguments had been put before him, I am satisfied that he would still have come to the same conclusion. And I think he would have been right. The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour of the customs officer was venial compared to that of Shahzad.

Subsequently the convictions of Shahzad and Latif were quashed by the CACD on the grounds of material non-disclosure. The court did not have to rule on another ground of appeal, namely that there had been gross prosecutorial misbehaviour; see [2007] EWCA Crim 307. The Revenue and Customs Prosecutions Office did not resist the appeals.

Latif whilst of importance when a decision has to be made about the level of, and effect of, executive or prosecutorial misbehaviour, is of limited help to us when deciding whether a retrial should be ordered.

The respondent relies on Early. Eight appellants successfully appealed against their convictions. They appeared, at different times, at three different Crown Courts, before three different Crown Court Judges. They all pleaded guilty to an offence or offences involving fraud on the revenue by virtue of the improper diversion to the UK market, from a bonded warehouse, LCB, of large quantities of duty suspended alcohol, ostensibly intended for other countries in the European Community. For over two years, before C and E put an end to matters in April 1998, some 30 or 40 separate scams were being conducted through LCB. These resulted in a loss to the revenue of £300 million.

The appeals were heard together because it was being submitted that the appellants had pleaded guilty on the assumption that full and proper disclosure about the roles of Alfred and Edward Allington had been made to them by the prosecution when it had not been. In the cases of M M Patel and Nilam Patel it was additionally submitted that, to the knowledge of C and E officers, lies had been told by prosecution witnesses during applications to stay proceedings as an abuse of process. In Early the Court referred to a previous case involving LCB, namely Villiers, CACDtranscript 9th November 2001.

In Villiers the court had held that the Allington brothers had been participating informants whose status was not revealed to the trial judge as it should have been. The Court in that case concluded that C and E officers had actively encouraged personnel at LCB to allow goods to leave the warehouse without duty being paid and that the Allington brothers were facilitating the fraud to the knowledge of C and E officers. In Early the Vice President, Rose LJ said:

10.

Judges can only make decisions and counsel can only act and advise on the basis of the information with which they are provided. The integrity of our system of criminal trial depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other. This is particularly crucial in relation to disclosure and Pll hearings. Accordingly, Mr Gompertz QC [for the respondent], rightly, accepted that when defence counsel advised Rahul, Nilam Patel and Pearcy as to plea, they were entitled to assume that full and proper disclosure had already been made. He also rightly accepted that a defendant who pleaded guilty at an early stage should not, if adequate disclosure had not by then been made, be in a worse position than a defendant who, as the consequence of an argument to stay proceedings as an abuse, benefited from further orders for disclosure culminating in the abandonment of proceedings against him. Furthermore, in our judgment, if, in the course of a PII hearing or an abuse argument, whether on the voir dire or otherwise, prosecution witnesses lie in evidence to the judge, it is to be expected that, if the judge knows of this, or this court subsequently learns of it, an extremely serious view will be taken. It is likely that the prosecution case will be regarded as tainted beyond redemption, however strong the evidence against the defendant may otherwise be. Such an approach is consistent with the view expressed by this court, in Edwards [1996] 2 CAR 345 @ 350F where, in a different context, Beldam LJ referred to the suspicion of perjury starting to infect the evidence and permeate other similar cases in which the witnesses are involved. We approach the question of safety of these convictions, following pleas of guilty, in accordance with Mullen [1999] 2 Cr App R 143 as approved in Togher & others [2001] 1 Cr App R 457, namely a conviction is generally unsafe if a defendant has been denied a fair trial. We bear in mind, in particular, three observations by Lord Woolf CJ in Togher. First, at paragraph 30, “if it would be right to stop a prosecution on the basis that it was an abuse of process, this court would be most unlikely to conclude that, if there was a conviction despite this fact, the conviction should not be set aside”. Secondly, at paragraph 33, “The circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand”. Thirdly, at paragraph 59, freely entered pleas of guilty will not be interfered with by this court unless the prosecution’s misconduct is of a category which justifies this. A plea of guilty is binding unless the defendant was ignorant of evidence going to innocence or guilt. Ignorance of material which goes merely to credibility of a prosecution witness does not justify reopening a plea of guilty.

In Early the CACD said this about the appeal of one of the appellants, MM Patel:

17.

In our judgment the material now before this court shows (i) lies were told to Judge Hucker by prosecution witnesses in the course of PII hearings and on the voir dire; (ii) those lies were told by reason of a deliberate decision on the part of C & E to conceal from the judge the true status of Alfred Allington and the real nature of the relationship between C & E and LCB; (iii) the judge, in giving his rulings as to disclosure and to whether there should be a stay for abuse, was materially mislead by those lies reaching conclusions, now known to be wrong, that Alfred Allington was merely acting as a trade source and that there was no collusion between LCB and C & E to facilitate the frauds, including that in which this appellant was said to be involved; (v) had the judge known the true position it may be that his decision in refusing a stay would have been different; (v) the appellant pleaded guilty only after the abuse submission had failed.

18.

It is a matter of crucial importance to the administration of justice that prosecution authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. ... When inadequate disclosure is sought to be supported by dishonest prosecution evidence to a trial judge, this court is unlikely to be slow to set aside pleas of guilty following such events, however strong the prosecution case might appear to be. Lord Woolf CJ in paragraph 59 in Togher enunciated general principles with which we respectfully agree: he was not dealing with, and it seems unlikely that he had in mind, a case in which non-disclosure, accompanied by perjury, preceded a guilty plea.

19.

Accordingly, M M Patel’s appeal is allowed. His conviction, notwithstanding his plea of guilty, is unsafe and is quashed, as is the confiscation order made against him.

Mr Nolan relies upon the following passage from Early:

19.

... In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. However, as the appellant [Patel] has already served his sentence and it is nearly 6 years since the offence is alleged to have taken place, we make no such order, as it would not be in the interests of justice to do so. (Emphasis added)

We shall return to that passage shortly. In the cases of other appellants a retrial was not sought or, if sought, was considered but not ordered in the light of all that had happened.

The respondent also relied upon Smith (Matthew) & Ors[2004] EWCA Crim 2212. In that case there had also been non-disclosure in a C and E case relating to a witness called Moore. In the case of some of the appellants who had been convicted after a trial their appeals were allowed because Moore in his evidence during their trial asserted that he had not expected any reward. In the words of Latham LJ:

The documents which have now been disclosed would have provided significant cross-examination material which could have undermined that assertion. Whether or not it would have done so is not a matter about which we can speculate. The appellants were entitled to disclosure of that material which could have had an effect on the verdicts of the jury.

In the cases of those who had pleaded guilty, the Court quoted the passage from Early which we have already set out and went on to say:

21.

We see no escape from the conclusion that this submission is correct. The applicants were therefore denied the opportunity to deploy that material in support of the abuse of process application and were accordingly denied a fair trial. Despite their pleas of guilty their convictions were unsafe; and neither the fact that they pleaded guilty nor, as far as two of them were concerned, that they admitted the offences in the Newton hearings can affect that position. They were entitled to a proper determination of the issue as to whether or not they should be arraigned.

22.

It is unnecessary for us therefore to decide whether the non-disclosure was deliberate or not. That issue may be relevant if there were to be a retrial and a renewed application to stay for abuse of process. It would accordingly be inappropriate for us to make any comment about it.

We question whether in the light of the passage from Early and in the absence of a finding of deliberate non-disclosure amounting to severe prosecutorial misbehaviour, the Court was right to quash the convictions following a guilty plea. Chalkley and Jeffries [1998] 2 Cr App R 79 demonstrates the reluctance of the CACD to quash a conviction following a guilty plea.

The Court in Smith said that it was prepared to consider the issue of a retrial but a retrial was sought and granted only for two of the appellants convicted by the jury. Given that their convictions were unsafe because of non-disclosure and in the absence of a finding of severe prosecutorial misbehaviour, this case is of no help to us.

We turn then to the passage in Early relied upon by the respondent, being the passage set out in paragraph 48 above:

In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted.

This is not an easy passage to follow. The Court envisages that the judge could be presented with honest evidence and could then decide whether a stay should be granted. But in what circumstances would a stay then be ordered? If the trial judge on a retrial would order a stay because of the prosecutorial misconduct already found by the Court of Appeal, there would be no point in ordering a retrial. If the trial judge did not order a stay for these reasons, then the prosecution would have material available to show guilt, e.g. the guilty plea, anything said in mitigation and any admission made, for example, to a probation officer. (Cf Early paragraph 79, where the court referred to the “serious evidential and professional problems [which] may well arise on a retrial in view of the plea of guilty previously entered by this appellant”.) Given the prosecutorial misconduct which preceded the pleas, could the prosecution rely on this as part of the prosecution case or in cross examination of the defendants should they give exculpatory evidence? We do not find those questions easy. What the respondent does gain from Early is that a retrial was contemplated following a finding of severe prosecutorial misbehaviour.

We were also referred to Basdeo Panday v Senior Superintendent Wellington Virgil [2008] UKPC 24. In that case it was alleged that the Government of Trinidad and Tobago had exerted influence on the Chief Magistrate to convict the appellant. Lord Brown said that the Board was prepared to assume that the Government could be shown to have exercised unlawful influence on the original trial. He went on to say:

24.

... the Board simply cannot recognise in this case, even on the assumption made, an abuse of executive power akin to that established in Bennett such as to call for a permanent stay of further proceedings. It is necessary at this stage to look at the Bennett principle and one or two of the later cases which applied it.

Lord Brown then discussed the cases of Bennett, Mullen, Latif and the case of Loosely [2001] 1 WLR 2060. In Loosely the House of Lords held that it was an abuse of the process to try a person who has been lured, incited or pressurised into committing a crime which he would not otherwise have committed. Lord Brown continued:

28.

It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the Court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place. But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law. As Lord Hoffmann put it in Looseley at para 40:

“The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths [in Bennett] described the jurisdiction more broadly and, I respectfully think, more accurately, as the jurisdiction to prevent abuse of executive power.”

That principle simply has no application here. This appellant has, quite rightly, had his conviction quashed. A fortiori that would have been the appropriate result had he established not merely apparent bias but, consequent on government pressure to convict, actual bias. But the quashing of his conviction restores the appellant to the position he was in before the unfair trial. Why should his success gain him immunity from what is conceded to be the position he now faces under the Court of Appeal’s order: a fair trial upon charges properly brought?

It was submitted on behalf of the appellants that, but for the abuse, they “would never have been before the Court at all.” But if there had been full and honest disclosure of how Chapman had been treated the appellants would have been sent for trial and thus before a court. Indeed it is likely that there would have been a trial unless the court concluded that, in the light of the disclosed inducements, the evidence of Chapman should be excluded or unless the disclosed unlawful activities of the police officers would have led the court to say that it would be an affront to the public conscience to allow the prosecution to proceed.

We were also referred to Grant [2005] EWCA Crim 1089; [2006] QB 60; [2005] 2 Cr App R 28. The appellant had been convicted of conspiracy to murder. The police had deliberately eavesdropped on and recorded conversations between the appellant and his solicitor in the exercise yard of the police station where the appellant was being held. The intercepted material had not been relied upon by the prosecution and its interception had not, so it appeared, otherwise prejudiced the appellant. Nothing was used as, or led towards, any evidence to be called by the Crown. The trial judge had made findings of fact in favour of the prosecution and his findings of fact were overturned by the CACD.

Laws LJ giving the judgment of the court allowing the appeal and quashing the conviction said:

52.

Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court's process. So much seems to us to be plain and obvious and no authority is needed to make it good. The only question that requires examination is whether such proceedings ought to be characterised as an abuse of the process, and the prosecution stopped, if the defendant or defendants have suffered no prejudice in consequence of the relevant unlawful acts.

54.

...

55.

... True it is that nothing gained from the interception of solicitors' communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court. In R v Derby Magistrates Court ex p. B Lord Taylor CJ said:

"Legal professional privilege is… much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests."

It is unnecessary to multiply authority to demonstrate the importance which the law attaches to legal professional privilege. It is enough to say that in this area the jurisprudence of the European Court of Human Rights marches with the common law: see Lanz v Austria, S v Switzerland, Niemitz v Germany, Brennan v UK. The reasoning in this last case shows^[ that a breach of Article 6 of the European Convention on Human Rights may be constituted by an infringement of the right to confidential legal advice even though it is not shown that in consequence the accused cannot have a fair trial.

55.

Now, it is not in general the function of criminal courts to discipline the police. Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor's act or omission may be thought a paradigm of abuse of process. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court's duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay.

56.

Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case. ...

57.

We are quite clear that the deliberate interference with a detained suspect's right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers' unlawful conduct. ... As for prejudice, it is a particular vice of the police conduct in such circumstances as these ... that the court cannot know whether the police misconduct has in fact yielded fruit in the form of evidence, whether directly or indirectly, without enquiry as to what the covert surveillance revealed; but that would further violate the suspect's right of legal professional privilege. ...

58.

In all these circumstances, we conclude that there was abuse of the process here and [the trial judge] should have stayed the proceedings in consequence. We understand it to be accepted that if the court reaches this conclusion, the conviction falls to be treated as unsafe. In those circumstances the appeal will be allowed.

Although the Court had concerns that the police misconduct may have yielded fruit, the Court took the view (as the question certified for the House of Lords makes quite clear) that the appellant could have had a fair trial on untainted evidence. Professor Ormerod’s helpful commentary on the case in the Criminal Law Review [2005] Crim LR 955 points out that there were numerous bases for a stay in this case.

Grant is not a case in which, to use Lord Brown’s words in Basdeo Panday, “but for an abuse of executive power, he would never have been before the Court at all.” Putting the misconduct to one side, the appellant could have a fair trial (and probably did). Whilst helpful to the appellants, it should be remembered that Grant involved, as Laws LJ said, a deliberate violation of “a fundamental condition on which the administration of justice as a whole rests”.

In the light of the law and the findings which we have made in this case, do we have the power to order to order a retrial on the facts of this case? It seems to us that we have. No authority prevents us from so doing. Basdeo Panday supports such a conclusion and Early offers some limited support, as also does the established principle that the court is entitled to balance the competing public interests. Here there are two competing public interests: the conviction of those guilty of murder and the vital importance of maintaining the integrity of the criminal justice system when that integrity is put at serious risk by prosecutorial misbehaviour of the kind in this case.

Having decided that we have the power to order a new trial, should we in principle exercise it?

In some cases no retrial will be ordered because the prosecutorial or executive misbehaviour has so infected the trial that a fair trial could not now take place. In our view, if there is to be a retrial, the trial judge can ensure that the prosecution calls no challenged evidence the reliability of which may be undermined by what the North Yorkshire Police and the CCRC have now discovered.

There are good reasons why a retrial should not be ordered. They are:

(i)

the nature and scale of the prosecutorial misconduct;

(ii)

the fact that the misconduct infected both the trial and the first appeal;

(iii)

the fact that the prosecution case was based more or less entirely on the evidence of Chapman and the appellants would not have been charged or tried in its absence;

(iv)

the strong possibility that the trial would not have proceeded (being either aborted by the prosecution or stayed by the judge) if the circumstances of Chapman’s treatment by the police had been made known to the prosecuting team;

(v)

the circumstances in which Maxwell’s admissions were made, namely:

(a)

the first admission (to his solicitor) would not have been made had it not been for the conviction obtained by prosecutorial misconduct. Having been made, it would never have come to light had it not been for the fact that, due to prosecutorial misconduct, the appeal failed and a subsequent investigation by the CCRC was necessary, in the course of which Maxwell waived privilege;

(b)

the admissions made subsequently would not have been made had it not been for the unsuccessful appeal and (in the case of the admissions to the North Yorkshire Police) the CCRC investigation necessitated by the prosecutorial misconduct;

(vi)

both appellants have served 12.5 years in prison, a longer term than they would receive if they were found guilty of manslaughter, the offence which Maxwell is admitting.

We accept the strength of these reasons, but we have reached the conclusion (not without difficulty) that the public interest in convicting those guilty of murder outweighs the public interest in maintaining the integrity of the criminal justice system. This was a shocking case and if there is new and compelling evidence untainted by the prosecutorial misconduct revealed by the findings of the North Yorkshire Police and the CCRC, we should order a new trial. In particular we bear in mind that the new and compelling evidence relied upon by the respondent as against Maxwell consists of admissions made to the North Yorkshire Police by Maxwell with the benefit of legal advice during the course of an investigation into the safety of his convictions and that Maxwell said to the police that he would like a retrial and that he would plead guilty to the robberies and manslaughter. We now look at the various admissions upon which the respondent relies.

The alleged Maxwell admissions break down into four main headings:

We start with the first heading, alleged admissions made by Maxwell to his legal representative In 1998, after the trial, Maxwell instructed new solicitors, Chadwick Lawrence Solicitors of Wakefield. It was subsequently established that these Solicitors held a file relating to Maxwell. Mr. Conaghan, Maxwell's then solicitor, obtained a copy of the papers held by Chadwick Lawrence, which he released to North Yorkshire Police on 20^th August 2004, with the relevant signed waiver. On 5^th October 1998 Maxwell informed the solicitors of his and his brother's conviction and requested they represent him. The file papers show that Mr Simon McKay came to see Maxwell at HM Prison Leeds on 12^th October 1998. An Attendance Note, the accuracy of which has been confirmed by Mr McKay, states:

I explained to Paul that I would take his case on and advised about the jurisdiction of the Criminal Cases Review Commission and about "fresh evidence".... I emphasised that if he was guilty it would be a waste of his time and mine if he allowed me to pursue the case on the basis that he was not guilty. To my great surprise Paul confessed that he and his brother did do the murder.

I went on to discuss the matter at greater length with the client who I felt appreciated the opportunity to get it off his chest. He explained that at no stage did he ever anticipate any injury would be caused to Mr Smales. At the time of the murder, he was in fact inside the house, whilst his brother carried it out in the garden. In short, Paul was neither privy to any knowledge of his brother's intentions, nor proximate (relatively speaking) to where the killing took place. I told Paul that on the basis of what he had told me, I felt that he could have a possible appeal on the authority or R-v-English and R-v-Powell.

The solicitor in a later meeting with Maxwell told him that it would be necessary for him to prepare a detailed and persuasive confession if there was to be any chance of a successful appeal. In response Maxwell wrote out a lengthy statement dated 21 February 1999 which he also asked to be kept on his prison file. We take a summary of that statement from a document prepared by the respondent for the hearing before us.

June robbery

1.9

With regards to the June offence Mr. Maxwell describes how he and his brother, Mr. Mansell had attended at the Smales address with the intent to distract the occupants, enter and search the premises with intent to steal.

1.10

On approaching the address they were met with suspicion by Bert Smales and Mr. Maxwell had to barge into the house, punching Mr. Smales in the face. Mr. Mansell searched the house and stole property, money in a tin.

1.11

As they prepared to flee the scene Joe Smales entered the room and Mr. Mansell restrained him by threatening him with a pair of scissors.

1.12.

Mr. Maxwell and Mr. Mansell fled the house locking the door behind them from the outside as they did so. They shared the spoils which totalled about £2,000.

1.13

Mr. Maxwell related the event to a third party [presumably Chapman] who in turn informed him that they had missed the main amount of money. This was discussed with Mr. Mansell and both men made the decision to return to the Moor Road address and commit a further offence.

October robbery

1.14

Mr. Maxwell's account is that he and Mr. Mansell returned to the Moor Road address to commit a further robbery. The plan was to knock on the door and when it was answered overpower the occupants and tie them up. However the plan became dislocated when Joe Smales was seen to be in the garden. Mr. Mansell was directed to go and speak to the old man and keep him talking.

1.15

As Joe Smales was distracted, Mr. Maxwell kicked open the door only to be confronted by Bert Smales. Mr. Maxwell took hold of Bert Smales and dragged him into the hall, punching him to the face breaking his nose. Bert Smales was then dragged into another room by Mr. Maxwell and he then proceeded to search the room, before moving onto search another downstairs room.

1.16

Mr. Mansell re-joined Mr. Maxwell saying that Joe Smales, "... was out there ..." Mr. Mansell kept guard over Bert Smales and proceeded to search the upstairs of the house where he found a quantity of bank notes in a coat. Mr. Maxwell went back downstairs and Mr. Mansell was standing near the back door with a biscuit tin in his hands.

1.17

Mr. Maxwell looked into the room where Bert Smales was and noted that there was a lot more blood on his face than previously.

1.18

Mr. Maxwell and Mr. Mansell left via the rear door and Mr. Maxwell noticed that Joe Smales was lying in the garden. He made no note of his condition but was "frightened" on seeing him and quickly left with his brother.

1.19

Mr. Mansell took the tin away with him and opened it as they travelled from the scene saying it was full of coins.

1.20

The two men stopped at a nearby service station to buy cigarettes and a drink. Mr. Maxwell asked Mr. Mansell what had happened to Joe Smales in the garden. At this Mr. Mansell replied that he had to hit him as the old man kept trying to look at his face. Mr. Mansell denied doing anything further to Bert Smales in the house, though Mr. Maxwell did not believe this due to the extent of the injuries he noted on leaving the house.

1.21

Mr. Maxwell and Mr. Mansell returned to Mr. Mansell's home address and they shared out the proceeds of their crime which came to £3,000. They then disposed of their clothing and the tin stolen from the house.

At the same time Maxwell also wrote a letter to his brother in which he wrote:

I have told my solicitor the truth and I have asked him to inform the appeals Court that I wish to appeal against the murder only -and guilty of the robbery. He is coming to see me in two weeks and I have agreed to give him a sworn affidavit. I know you will be angry Danny but I know we will not get out by maintaining our innocence when all the evidence points to us -so that leaves us both serving life for part of the crime that only you committed.

Mansell in his reply denied that he was involved in the offences and said that he was not prepared to do any deal for something that he had not done.

Later Maxwell told his solicitor: “1 don't think I can go on with what we havediscussed." Maxwell added a postscript, "I would be obliged if you destroyed all our earlier correspondence."

We turn to the alleged admissions made during the Home Office Research Project in 2000. Detective Chief Superintendent Steele commenced research to formulate a strategy to prevent and detect distraction burglaries against older adults. The Home Office Police Research Group funded the project. Chief Superintendent Steele interviewed Maxwell in the course of his research. Maxwell had seen Mr Steele on television and wrote to him saying that he wanted to offer his help “in his quest to protect the old and vulnerable”. Mr Steele met with Maxwell at Wakefield prison on 2^nd March 2000. With Mr. Steele were Detective Constables Ward and Hepworth.

According to the prosecution document:

2.5

The notes of Mr. Maxwell's meeting with officers on 2^nd March 2000 refer to him admitting the robbery offences committed against the Smales' brothers in both June and October 1996. Within the notes Mr. Maxwell explains how he became aware of the vulnerability and location of the Moor Road address and the Smales.

2.6

In connection with the "Smales offences" it is recorded:

"These were committed with his brother. The address was that of a 'flyer' supplied by [Chapman.] Maxwell knew the address had been attacked previously in a bogus official offence. He travelled with his brother from the Manchester area to the Smales address on two separate occasions. The first time, Maxwell had a clipboard with him. (Didn't expand on what 'official' he was supposed to be.) The door was answered and they immediately barged in. Joe was slightly injured in the struggle. Money was found in the bedroom. Maxwell and his brother again visited the Smales address. On arrival Joe was found in the rear garden. Maxwell told his brother to keep Joe talking whilst he went into the house and stole the money; Maxwell 'boots' the door in and is confronted by Bert. Maxwell punches Bert in the face and recalls hearing his nose break. Maxwell's brother comes in from the garden and Maxwell goes upstairs to get the money from the cupboard. Both leave the house and Maxwell sees that Joe is lying in the garden. Maxwell's brother explains that he punched Joe in the face as he was struggling to get away. Joe subsequently died from his injuries. Both were eventually convicted.

We turn to alleged admissions to the Prison and Probation Services 1999 -2004. A contemporaneous note on the Local Prison Assessment (Life Sentence Plan) file states that the author interviewed Mr. Maxwell on 24^th February 1999. and records:

He accepts the guilty part he played but states that the deceased did not die at his hands and indeed admits that he used as much violence on the victim who survived as his brother did on the victim who died.

Later reports show that he continued to make similar admissions.

We turn finally to alleged admissions made to the North Yorkshire Police 2003 -2005.

Maxwell was interviewed by North Yorkshire Police about each of the admissions he had made as they were discovered during the investigation. Maxwell said that the admissions were false with regards to those recorded by Mr. Steele and in prison records and that these admissions were made out of expedience as he sought to work the parole system and the process in which prisoners were allocated prisons. He was running this strategy in tandem with the appeals process, which was based on the fact he was not guilty of the matters he was convicted of. These statements to North Yorkshire Police were obtained between November 2003 and April 2004.

In the light of the additional material indicating Maxwell had made admissions to his Solicitors in October 1998, Detective Chief Superintendent McKay and DetectiveChief Inspector Gray of the North Yorkshire Police met with Maxwell and his solicitor Mr. Conaghan at HM Prison Dovegateon 14September 2004. After a discussion with him about his application to the Criminal Cases ReviewCommission and about the admissions he had made in the past, Maxwell spent some time in conference with his solicitor before stating that he wished to admit to being present on the robberies of the Smales brothers in June and October 1996. During the interview Maxwell made a statement in which he says:

I now admit the robberies of the Smales brothers in June and October of 1996. My brother was with me on both occasions. No one else was present. I was not involved in the death of Joe Smales and had had no intention to cause serious injury to either of the brothers.

In a lengthy statement dated 23 September 2004 Maxwell adopted the account he gave of the robberies in the document dated 21 February 1999 written out for his solicitor Mr MacKay and put, at Maxwell’s request, on his prison file. He said that the contents of “are true but there may be one or two minor inaccuracies.” He also wrote:

It got harder and harder for me to lie to the Operation Douglas team. I have tried in the past to get Danny to admit his part, eventually it was obvious from the amount of information Operation Douglas had uncovered that I should tell the truth. I never believed my admissions to the prison service would be obtained by the police and I didn’t feel disloyalty to my brother. I have thought long and hard about admitting this offence but it’s not that easy but I’m relieved I have now.

I would like a retrial and I would plead guilty to robbery and manslaughter.

A final statement was made by Maxwell in June 2005 to North Yorkshire Police. In it Maxwell said that although he had anticipated the use of force in the commission of the October robbery and had entered into a joint enterprise with Mansell to commit that offence, he had not contemplated that either he or Mansell would cause serious injury. He accepted that he saw himself as playing the leading role “given that I was a far more experienced criminal than Danny”. He described Mansell as somewhat nervous on both occasions but “I never dreamed that he would use such serious violence against the brothers.”

Mr O’Connor attacks the reliability of the admissions. He points out that some of the detail must be wrong. He submits that the admissions to the solicitor are no more than an attempt to use Powell and English to obtain, via an appeal, a verdict of manslaughter. As to the admissions made to prison and probation officers he points out that unless a prisoner admits responsibility for an offence his chances of parole are substantially reduced.

We have no doubt that the evidence of these alleged admissions is new and compelling. Of particular importance is the handwritten document of February 21 1999 the truth of which was admitted in the presence of a solicitor in September 2004.

We turn to Mansell. The respondent submits that Maxwell’s admissions are admissible against Mansell under the hearsay provisions of section 114 of the Criminal Justice Act 2003. The respondent submits that if they are admissible and if the jury were to convict Maxwell of murder then the jury could properly convict Mansell on the basis that both in his interview and in evidence Mansell said that he was with Maxwell on the day of the second robbery: see Hayter (2005) 2 Cr App R 37. The respondent also points to evidence said to support the case that Mansell was involved in the robbery (namely evidence from an A-Z book, evidence of a boot print and the evidence of Elaine Adams).

Applying the new and compelling evidence test, the respondent’s argument cannot succeed unless Maxwell’s admissions are admissible against Mansell under the hearsay provisions of section 114. The respondent accepts that the decision whether they are admissible would have to be taken by the trial judge but submits that we should anticipate a likely ruling in favour of admissibility. In our view we cannot at this stage do that. It is well established that section 114 must be approached with caution. As Stanley Burnton LJ said in Z [2009] EWCA Crim 20:

20.

In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare [2006] EWCA Crim 2512 at paragraph 30:

“We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.”

The judge in that case had admitted under section 114 evidence of D, whose challenged written statement was admitted as evidence of bad character. D alleged that she had been sexually abused and raped by the appellant when she was young. D was unwilling to give evidence. As to this Stanley Burnton LJ said:

24.

... Cases must be rare indeed in which such significant potentially prejudicial evidence as that of D should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant, to testify, and her reluctance is not due to fear (i.e., the condition in section 116(2)(e) is not satisfied).

In addition to section 114 the judge would have to consider section 78 of PACE and the difficult issue considered in Horncastle, [2009] EWCA Crim 964; [2009] 2 Cr App R 15, in which the judgment of the Supreme Court is awaited.

Until the outcome of any trial against Maxwell is known and until it is known whether Maxwell would be willing to give evidence against Mansell, it seems to us not to be possible to say that the Maxwell admissions constitute new and compelling admissible evidence against Mansell.

That leaves us in the difficult position that there is new and compelling evidence against Maxwell but not against Mansell. If Maxwell’s admissions are to be believed, it was not he - but Mansell – who killed Joe Smales. He has been (at times) frank about his involvement and has encouraged Mansell to do likewise. It is, it could be said, intrinsically unfair that we order a retrial for Maxwell but not for Mansell. On the other hand, it is not unusual for there to be sufficient evidence to convict one defendant who admits to committing an offence with another, but not sufficient admissible evidence against the other.

In conclusion we quash the convictions and, having given anxious consideration to the issue, we have decided to order a retrial in the case of the appellant Maxwell only. Mr O’Connor did not submit that Maxwell’s retrial should only be on a manslaughter charge and, in any event, in our view there is evidence in the various admissions to support a conviction for murder on the basis of joint enterprise. He will therefore be retried on the count of murder and the two counts of robbery of which he was convicted. We do not order a retrial for Mansell.