Plunkett & Anor, R v

The applicants (Daniel Plunkett and James Plunkett) were on 13 March 2012 convicted of aggravated burglary, false imprisonment and possession of a firearm at the Crown Court at Southampton before HHJ Burrell QC and a jury. They were sentenced to imprisonment for public protection with a minimum term of 10 years being specified. Their application for leave to appeal against conviction and sentence has been referred to the Full Court by the Registrar.

The issue in the appeal against conviction is whether the judge should have admitted evidence of statements and admissions made by them in a police van which were covertly recorded on three occasions. It is contended by the applicants that the recordings were made unlawfully, as they were not made in accordance with the powers under the Regulation of Investigatory Powers Act 2000 (RIPA) and breached Article 6(3)(b) of the European Convention on Human Rights (the Convention). The evidence should, therefore, have been excluded under s.78 of the Police and Criminal Evidence Act 1984 (PACE).

It is necessary first to set out the matters giving rise to the charges and the evidence adduced at the trial.

On 5 November 2010, three men dressed as policemen knocked on the door of the house of Mr and Mrs Butt and their two teenage sons in Southampton. The men forced their way into the property, tied up each of the family members with handcuffs and cable ties and subjected them to a terrifying experience. The wife and sons were taken upstairs and watched by one of the men. Mr Butt was threatened and ordered to open his safes. It appears that the barrel of a gun was pushed against his head; one of the attackers produced a syringe containing red liquid which they told him was HIV infected blood. Although he was terrified enough to open the safes, after he had done so, one of the assailants cruelly inserted the needle of the syringe into his bottom, although he did not actually inject the fluid.

Before leaving the assailants threatened to torture the children and then kill them in front of Mr Butt as well as killing him, if he or the family reported the crime. The assailants then made off with valuable watches, including a Jacobs & Co watch, a ring and cash in an amount of about £37,000. No complaint was made by Mr Butt or his family until some time between 15 and 30 March 2011.

Although the police had received no complaint from the Butt family, as a result of intelligence received by the police from other sources, the police searched the applicants’ home address in Portsmouth on 29 January 2011. They found at the house, cable ties, handcuffs, police shirts, body armour, a tracker device, syringes, a balaclava, high definition binoculars, a laptop and the Jacobs & Co watch which had been taken from Mr Butt. James Plunkett who was present at the time of the search was arrested on suspicion of conspiracy to rob, but not in relation to Mr Butt. He gave various explanations for the possession of the objects and was released without charge.

On 21 February 2011, the police searched a garage in Fareham which had been rented by Daniel Plunkett. The police found three metal chests which they were able to unlock. The chests contained a shotgun cartridge, police stab vests, other police equipment and clothing, some mock warrant cards, a balaclava, and some latex gloves similar to those worn by the intruders. They also found top up cards for tracker devices and a set of “quick cuffs” similar to those described by Mr Butt and his family and a black satchel similar to one described by Mr Butt as being carried by one of the attackers; in the satchel was a sawn off shotgun, a syringe containing red liquid similar to that described by and used on Mr Butt and a glove. They found some more cable ties, a shotgun which had been shortened, cartridges and a metal door enforcer.

Daniel Plunkett’s DNA was found on a police shirt and glove in the satchel recovered from the garage. One of the tracking devices was subsequently found to have been used to track a man called Terry Radcliffe who was a friend of Mr Butt. The tracker history was consistent with a visit to the area where the Butt family lived at the time of the burglary. Two mobile phones which were recovered were found subsequently to have been used in the area of the Butt family home on the night of the attack.

On 11 March 2011 the applicants were sentenced to a term of six years imprisonment for the production of cannabis; James Plunkett received a consecutive sentence of 12 months for possession of a shotgun without a certificate. They were both imprisoned at Camp Hill on the Isle of Wight.

On 16 May 2011 they were arrested at the prison on suspicion of aggravated burglary at the home of Mr Butt. Disclosure was given to each of them about certain elements of the offence in the following terms:

Neither was told specifically that they would have access to legal advice at the police station, but we infer from what they knew of the criminal justice system that they must have known this.

Both applicants were put into a police van to be taken from Camp Hill to the police station at Newport, a journey of about 10 minutes. They were accompanied by two police officers who sat in the front of the van; there was a partition between the police driver and the other policeman in front of the van and the applicants in the rear. When the van got to the police station, they were left in the van on their own for 15 minutes, as part of a built-in delay. They were returned to prison in the same van with a similar delay being built in.

During the journey to the police station and when they were left on their own in the vehicle after arrival at the police station and on the return journey to the prison, both applicants made compromising admissions and statements. They referred to the man called Terry whose vehicle had been tracked, to the use of the syringe stuck into Mr Butt’s bottom, to the use of stab-proof vests, to the use of gloves and to the carrying of a shotgun; what was said was in part an attempt to agree an account to explain matters and in part significant admissions that clearly pointed to their guilt.

At the police station, the applicants were afforded access to legal advice. They asked for a solicitor who arrived at 12:19. James Plunkett was interviewed in the presence of their solicitor between 13:42 and 14:39; Daniel Plunkett between 14:57 and 15:35.

During the course of the formal interviews some further disclosure was made, including disclosure of the seizure of the computer and mobile phones. Both answered ‘no comment’ to the questions. After the interview, both were handed forms setting out the descriptions that the victims had given; they were then placed in the van and their conversation was covertly recorded, as we have already set out.

On 6 June 2011 a further search of the home of the applicants’ parents was made; more items including police vests, handcuffs and police badges were found.

On 7 June 2011 the applicants were taken from prison to the police station for a further interview. They were given further disclosure.

Rental agreement attached (exhibit SM/G643SR/14)

They were given time to see their solicitor after being taken into the police station. They were interviewed at length in the presence of their solicitor. They again answered ‘no comment’. They were given no more information.

On the way back they made compromising admissions, including a detailed reference to one of them having injected Mr Butt precisely as alleged and also to having followed Mr Butt to his home address prior to the burglary.

On 8 June 2011 they travelled in a similar manner for a further interview. In the conversation on the way there they mentioned Terry, the black satchel and the trackers. They again were given access to their solicitor before interview. They answered ‘no comment’ at the interviews. They were told at the interviews of the fact that there had been covert recordings. No covert recording was made during the return journey to the prison.

The Crown’s case rested not only upon the covert recordings but also on the circumstantial evidence relating to what had been found at the applicants’ home and at the garage and cell site evidence derived from the phones found at the garage. The judge in the course of his summing up set out 14 points for the jury to consider in relation to the connection between the items found in the garage and in the applicants’ house.

The laptop found at the applicants’ home was analysed; it showed that internet searches had been made prior to 5 November 2010 for police issue equipment and the home address of Mr Butt.

In addition to that evidence, there was some evidence of identification. Neither of the applicants was picked out on an identification parade; descriptions were given of the assailants by the Butt family. There was a dispute as to the extent to which they fitted the applicants.

James Plunkett gave evidence that he and his brother had rented the garage from another person, Richard Newman, to house expensive power tools. Some time prior to January 2010, because they did not need to store their tools there, they rented out the garage to someone called “Neil”. Neil introduced some men who wanted to rent the garage in about September 2010. The men subsequently told them that they had carried out the burglary on Mr Butt’s house; James Plunkett was not prepared to name them as he believed they were dangerous. He explained the statements made during the covert recordings on the same basis. Daniel Plunkett did not give evidence.

The contentions made on behalf of the applicants can be summarised as follows:

Under RIPA a distinction is drawn between surveillance which is “directed surveillance” and surveillance which is “intrusive surveillance”. The surveillance was intrusive as it was carried out in relation to matters taking place in a private vehicle.

The authorisation for the surveillance had been given by a Detective Superintendent; authorisation for intrusive surveillance required authority from the Chief Constable. As the surveillance was intrusive, no proper authority had been given.

Whether the surveillance was directed or intrusive, authorisation could not be given unless the officer believed the surveillance was necessary and proportionate. The surveillance was neither necessary nor proportionate.

The first covert recording was made before they had seen their solicitor; the disclosure made provoked discussion. They were therefore not afforded adequate time and facilities for the preparation of their defence in breach of Article 6(3)(b) of the Convention.

The evidence should therefore have been excluded under the provisions of s.78 of PACE.

It was the case for the Crown, in summary, that:

The police van was not a private vehicle.

The surveillance was directed surveillance and properly authorised by the Detective Superintendent under s.28 of RIPA.

The search was both necessary and proportionate.

There was no breach of Article 6(3)(b) of the Convention.

There was nothing that prevented the admissibility of the evidence; the convictions were safe.

We turn to consider the issues:

The first question is whether the surveillance was directed or intrusive. The surveillance had been authorised by Detective Superintendent Shand who gave evidence to the judge. He was of the rank entitled to authorise directed surveillance, but not intrusive surveillance (see s.28 of RIPA).

The definitions of directed and intrusive surveillance are set out in s.26 of RIPA:

s.26(2) defines directed surveillance.

s.26(3) sets out the distinction between directed and intrusive surveillance.

The definition of a private vehicle is set out in s.48(1):

The sole point taken on behalf of both applicants to establish that the surveillance was intrusive surveillance was that the police vehicle was a private vehicle; if that contention was correct the surveillance was not directed surveillance and would not have been properly authorised under RIPA.

The police vehicle in which the recordings were made was a van owned by the Hampshire Constabulary and used solely for police purposes. Taking the ordinary meaning of the definition, the police vehicle was not a private vehicle; it was owned by a state entity and it was not being used for private purposes, but for the purposes of the state.

However it was contended on behalf of the applicants that the words did not bear this ordinary meaning and should be construed in the light of the observations made by Lord Woolf CJ in R v Mason [2002] EWCA Crim 385 [2002] 2 Crim App R 38. Covert recordings had been made in police cells at a time when RIPA had been enacted, but was not in force. Lord Woolf observed at paragraph 68:

We can see the force of an argument that a police cell in which a person sleeps should be treated in the same way as a prison cell in the light of the definition of residential premises contained in s.48(1):

However we can see no reason for treating a police van in a way similar to that. There is nothing in the Code of Practice to support such a suggestion and there is no reason why the ordinary meaning of the words of the Act should not apply.

Under s.28(2) of RIPA the person authorising directed surveillance must believe:

One of the grounds set out in subsection (3) is that it is necessary for “the purpose of preventing or detecting crime or of preventing disorder.”

The judge heard evidence from Detective Superintendent Shand and Police Constable Lage (who made the application to the Detective Superintendent). He considered their evidence and the other evidence relevant to necessity and proportionality on a voir dire.

The judge found that it was necessary. Although a certain amount of circumstantial evidence had been collected by the time of the authorisation of the covert surveillance, the police did not at that stage have the analysis of the computer or the cell site evidence. That would have taken some time to obtain. The judge considered that time was of the essence given the severity of the attack on the Butt family, the evident fear they had exhibited by not reporting the burglary and the risk to them; the threat to their lives was still extant and real. He accepted the evidence of Detective Superintendent Shand to that effect; the Butts needed protection, covert surveillance would assist and it was not right to wait and see what happened. One of the attackers was at large and the evidence against those in custody was circumstantial. In addition the applicants had mentioned in the covert recordings on 16 May 2011 a man called Paul Smith as someone they wanted to harm as he was suspected of informing on them. That was a significant factor for the authorisation of the second and third covert recordings.

It was not disputed before us that the burglary of the Butt household and the terrifying attack to which they were subjected was conduct that a civilised society cannot tolerate. It must have been the case, as the judge found, that the Butt family were terrified, as they had not reported the attack for some months. Those who had carried out the attack were persons plainly prepared to resort to the most serious violence and could be regarded as exceptionally dangerous. The judge was fully entitled to find that the Detective Superintendent believed that the surveillance was necessary and that there were indeed very strong objective grounds for that belief. The judge was right. Establishing who the attackers were was, in our judgment, plainly necessary.

It is not enough that the surveillance is believed to be necessary; it must also be believed to be proportionate. Paragraph 3.6 of the Code of Practice sets out matters to which regard should be had in considering proportionality:

balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or offence;

explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;

considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the necessary result;

evidencing, as far as reasonably practicable, what other methods had been considered and why they were not implemented.

The judge found that the Detective Superintendent had considered alternatives such as recording the applicants in their cells or using a Covert Human Intelligence Source (CHIS), but that these would take more time to organise and be more intrusive. He had limited the periods of built-in delay to 15 minutes. The threat to the Butt family was real.

The judge concluded that not only had the Detective Superintendent considered the surveillance authorised proportionate, but it was in fact proportionate.

It was submitted that the police should have waited until the computer had been examined and the cell site analysis obtained; that it was obvious to the police that if they provided some disclosure and left the applicants together in the van, the applicants would discuss what they had to say.

We cannot accept these submissions. The judge was entitled to conclude that Detective Superintendent Shand believed that the surveillance was proportionate and that it was in fact proportionate. As we have said, the threat to the Butt family was real; it was not proportionate to wait for the examination of the computer and cell site analysis.

Article 6(3)(b) of the Convention guarantees the accused “adequate time and facilities for the preparation of his defence”. It is clear from the case law of the Strasbourg court that the rights of an accused under the provision may comprise “everything that is necessary to prepare for the main trial” (see Natuen v Finland (2009) 49 EHHR 32 at paragraph 42). This will include the opportunity for the accused to acquaint himself with the material relied on by the prosecution and the results of the investigation (see Mayzit v Russia [2005] ECHR 63378/00 and CGP v The Netherlands [1997] ECHR 29835/96), the disclosure of material (Natuen) and adequate time to do this (see for example Kornev v Ukraine [2010] ECHR 17444/04).

The judge considered that the applicants had time and facilities to prepare their defence and had appropriate representation. There was no breach of Article 6. If there was a breach of their right to privacy under Article 8, it was plainly justified; the issues under Article 8 were not pursued before us.

It was submitted to us that the provisions of Article 6(3)(b) extended to prevent the use of disclosure before interview to provoke incriminating conversations about what the accused might say in interview in response to the allegations. What had been done was akin to tape recording conversations with their solicitors.

These submissions have no foundation in fact or law. There was plainly no breach of the confidentiality between an accused and his lawyer; the applicants must have known they would be entitled to legal advice before interview. There was no denial of adequate time and facilities to prepare their defence. They would have plenty of time for discussion with their solicitor as in fact they had. There has been no complaint about the adequacy of the time to prepare for their trial or about the disclosure made to them in the course of preparation for the trial.

There was no infringement of Article 6(3)(b).

Even though in our judgment what was done was lawful, it is necessary to consider whether the judge exercised his discretion correctly in declining to exclude the evidence under s.78 of PACE. He found that the surveillance was not, as had been submitted to him, “a cynical attempt to circumvent the PACE procedures and, in particular, the right to silence”. He found it was not a trick or manipulation of the process. He concluded that there was no oppression, no inducement, no misrepresentation and no entrapment. There had been no wrong doing and no lies had been used to obtain the admissions. The evidence had been obtained lawfully; there was no breach of Article 6. He did not consider that there was anything which prevented the applicants having a fair trial.

It is clear from the cases that, at common law, covertly recorded evidence was in principle admissible, but could be excluded under s.78.

In R v Bailey and Smith(1993) 97 Cr App R 365, the appellants made admissions when they were covertly recorded in a bugged cell, into which they had been placed following arrest, for the predominant purpose of giving them the opportunity to talk together. After a thorough review of the authorities, Simon Brown LJ in giving the judgment of the court concluded that the evidence was admissible and the judge was right in not excluding it under s.78; in particular there had been no breach of the spirit of the PACE codes which protected the right to silence. The court followed the decision in Shaukat Ali (Times, 19 February 1991).

In Khan [1997] AC 358, the House of Lords held that evidence obtained by bugging a private residence should not have been excluded. The focus of the enquiry under s.78 must be the effect on the fairness of the proceedings, as Lord Nolan held at page 582:

The Strasbourg court in Khan (2001) 31 EHHR 1016 also made clear that despite a breach of Article 8, the central question was whether the proceedings as a whole were fair. In R v P [2002] 1 AC 146, Lord Hobhouse giving the sole substantive judgment again emphasised that the critical question was the fairness of the trial.

There was a further point not taken before the judge, but to which it is next convenient to refer. Under s.30 (1A) of PACE a person arrested “must be taken by a constable to a police station as soon as practicable after the arrest.” However, s.30(10) provides that nothing in s.30 (1A) prevents a constable delaying taking a person to a police station or releasing him on bail if the condition in subsection (10A) is satisfied; that subsection states:

In the hearing before us, the applicants contended that there had been a breach of s.30(1A). As the issue had not been raised before the judge, he had made no findings. We were told that no one had thought of the point; the trial was before the decision in R v King and Provan [2012] EWCA Crim 805 where these provisions were considered. It is difficult to see how this court can resolve this issue of fact, as it had not been raised before the trial judge.

In King and Provan, the appellants had been left in a police car at the place they were arrested and in the short period in which they were together in the car, they made incriminating admissions which were covertly recorded. They sought to have the conversations excluded under s.78, as there had been a breach of s.30. The trial judge concluded that on the facts of that case there was no delay, but if there had been it was impracticable to have avoided it and the evidence would have been admitted. The court held that the findings of the judge could not be challenged. The court observed at paragraph 26 that:

In our judgment, even if there had been a breach of RIPA or of s.30(1A) of PACE, the breaches would have been minor, given the immense seriousness of the crime and the need to protect the Butt family. There was nothing in what the police did that called into question the integrity of the criminal justice system.

Against those observations, we turn to consider the central question of the fairness of the trial. The judge rightly held that there had been no misrepresentation, entrapment or other conduct that could be characterised as misbehaviour; the police had simply afforded the opportunity to the applicants to talk together. There was nothing to suggest that what was said by the applicants during the conversations was anything other than true. They had full opportunity to test all the other evidence in the case and to provide an explanation of the conversations in the van.

We conclude that the judge was entitled to exercise the discretion under s.78 as he did. Not only was it within that ambit of discretion open to him, but he was correct in exercising it as he did. Even if, contrary to the views both the judge and this court has formed, there had been breaches of RIPA or s.30(1A) of PACE, the evidence was properly admitted and there was no ground to exclude it under s.78.

The covert recordings established beyond any doubt that the applicants had been those responsible for the burglary and the attack on the Butts. However, it was contended by the Crown that, even if we reached the conclusion that the evidence in the covert recordings ought not to have been admitted, the conviction was nonetheless safe.

At the time the covert recordings were made there was no analysis of the computer found in the garage or cell site analysis of the phone calls. In our judgment, that evidence taken with the evidence of what was found on the searches would have provided a sufficiently strong case for us to be satisfied that there could be no reasonable doubt about the safety of the convictions.

Although we will grant leave to appeal in the light of the arguments raised, we dismiss the appeal.

We turn to the applications for leave to appeal against sentence.

The judge imposed the sentence of imprisonment for public protection for the count of aggravated burglary. He passed no separate sentence for the false imprisonment or the possession of the firearm. No time was served on remand, as both applicants were already serving a sentence of imprisonment when first arrested for these offences.

The first complaint made was that the judge did not indicate that he had in mind passing a sentence of imprisonment for public protection. Although it is in general necessary for a judge to indicate in cases where the imposition of such a sentence might be unexpected, it was obvious in this case that any judge would have clearly in mind the passing of an indeterminate sentence. The circumstances of the burglary and attack were such that on their own it was self evident that both offenders were highly dangerous and highly likely to commit further very serious offences. Neither advocate asked for a report and none was necessary. Had reports been asked for, they would no doubt have contained the same conclusions as the reports ordered for us; those reports made clear (without taking into account what happened after sentence) the real and serious danger both applicants posed.

There can be no possible grounds for suggesting that the sentence of imprisonment for public protection was not entirely appropriate in the case of both applicants.

The minimum term passed equated to a determinate sentence of 20 years. This was in excess of the range set out in the relevant guidelines issued by the Sentencing Council for a category 1 offence of aggravated burglary; that range is 9-13 years. Parliament provided for a maximum sentence of life imprisonment. This was plainly a case where the interests of justice would have required a very severe determinate sentence. The circumstances of the offence and its effect on the Butt family have been set out. We see no basis for arguing that the minimum term was wrong in principle or manifestly excessive. We refuse leave to appeal against sentence.