ON APPEAL FROM THE CROWN COURT AT MOLD
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE EDIS
MR JUSTICE CHOUDHURY
and
HER HONOUR JUDGE DHIR QC
Sitting as a judge of the Court of Appeal Criminal Division
Between :
THE CROWN | Appellant |
- and - | |
RICHARD WYN LEWIS | Respondent |
P. Rouch QC and Ms. A Pope for the Prosecution
S. Robinson QC and Ms Manson for the Respondent
Mr. P. Clemo for a co-defendant non-party to the appeal,
Hearing dates : 24 February 2022
Approved Judgment
Initially subject to statutory reporting restrictions until the conclusion of the trial on counts 1-5 in the Crown Court. Those proceedings are now complete and no reporting restrictions now apply.
Lord Justice Edis :
This is an application by the prosecution for leave to appeal against a terminating ruling under section 58 of the CJA 2003. It involves an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 by Mr. Lewis. The application was made during the trial, and is based on claims he has made in his defence statements that he was, for a period of time, a police informant. Those claims have neither been confirmed nor denied by the police in these proceedings, and nothing in this open judgment deals with whether they are true or false. We do not deal in it with anything which happened in closed hearings in the Crown Court except to a very limited extent, and for purely procedural reasons. We have given, separately, a closed judgment containing additional reasoning in support of our decision on this appeal.
The ruling was given in a closed hearing (in the absence of the defence lawyers, defendants and public) on Monday 24 January 2022. The application was lodged in the Court of Appeal on 25 January with a Notice which was not served on the respondent, Richard Wyn Lewis. It was referred to the full court by the Registrar and listed to be heard on Tuesday 1 February 2022, but it had been listed for a closed hearing only, and no arrangements had been made for defence counsel to appear. The Notice of Appeal stipulated that Mr. Lewis should not attend the hearing. The court was told that the jury in the trial had been asked to return on 2 February 2022. This was a re-trial, an earlier trial having resulted in the discharge of the jury in April 2021 because, we are told, “one of the jurors was taken seriously ill”.
The judge gave a written ruling on Tuesday 25 January 2022 after he had refused leave to appeal against the terminating ruling in which he ordered expedition having been informed that the Court of Appeal might be able to deal with the application “later this week”. In the event, that was not possible, but it was listed one week after it was lodged.
On Saturday 29 January 2022 I gave directions as follows:-
It appears to me that if this appeal is to be effective on Tuesday (and it must be) defence counsel must attend. For any OPEN hearing, the defendant should be present by CVP.
They made an application under s8 CPIA 1996 for disclosure which was the subject of OPEN submissions, as well as CLOSED submissions and rulings in Type 2 hearings. They must be entitled to explain to us why the material they seek (if it exists) is disclosable. They are also entitled to make any points which may be available to them about whether the section 58 was properly complied with so as to give the CACD jurisdiction. It looks as if it was, but we have no open transcripts at all, either of any OPEN ruling which the judge may have given (he suggested he would) or of the s58 procedure. There is a disagreement about what was “put” [sic] in re-examination of the witness North by the prosecution which is an entirely OPEN issue.
The prosecution should prepare a Notice of Appeal in a form which can be served and arrangements made immediately for attendance by counsel and the defendant. Could we also try and obtain transcripts of any relevant OPEN hearings on 21/1/22 or 24/1/22? The prosecution should be able to identify the times, and if they cannot be transcribed in time then we will need a note of what happened.
These directions were communicated to the parties on Monday 31 January.
The court was ready to hear the application and the appeal if leave were granted on 1 February but was informed that the trial judge had decided to discharge the jury and adjourn the trial because of the delay between the hearing of some of the evidence and the resumption of the trial. As will appear the terminating ruling related only to some of the counts on the Indictment and a trial will be required whatever the outcome of this application. Both sides wished to adjourn the application and it was vacated in these circumstances. The court was able to retain the same constitution which had considered the closed material. It is good practice to ensure that closed material is distributed to the smallest possible number of people. We have concluded that the defence were excluded from more of what happened in the Crown Court than they should have been and if that had not happened, and if they had been given early notice of the appeal then it would probably have been determined on 1 February, and the trial might have continued.
The proceedings
Mr. Lewis and another were being tried on an Indictment containing 13 counts. Counts 1-4 allege fraud against Mr. Lewis alone. Count 5 is a money laundering allegation against the co-defendant alone. She is alleged to have allowed the deposit of some of the proceeds of count 4 to be deposited into a bank account in her name, knowing or suspecting that this arrangement would facilitate the acquisition, retention, use or control of criminal property by the applicant, contrary to section 328(1) of the Proceeds of Crime Act 2002. Counts 6-13 relate to other fraud offences alleged against Mr. Lewis alone. The application for leave to appeal as lodged in the Court of Appeal relates to counts 1-4 only, although there has been reference to count 5 being also included as we explain below. The prosecution say that if Mr. Lewis is acquitted on count 4 because this appeal fails, then she also must be acquitted.
The four frauds in counts 1-4 were allegedly committed against a couple named Gerald Corrigan and Marie Bailey. Mr. Lewis appears to have met Mr. Corrigan in about 2015 and the alleged frauds began soon after that. Mr. Corrigan was murdered with a crossbow on 19 April 2019, and the allegations emerged when the police interviewed Marie Bailey as a witness in that investigation. These events all took place in Anglesey, where the case has attracted a good deal of attention. The trial of Mr. Corrigan’s murderer took place first, which accounts for some of the delay between the start of the investigation into these matters in May 2019 and the first trial date in April 2021. Some of the events are not dated, but the deposit in count 5 occurred on 6 December 2018, and the fraudulent activity alleged in counts 1-4 appears to have occurred over a period of about 3 years starting in 2015.
It is not necessary for the purposes of this application to set out the facts of the relevant alleged frauds in any detail. They involve allegations that Mr. Lewis persuaded Mr. Corrigan and Ms. Bailey to part with very large sums of money by falsely suggesting that it would be invested in the sale and development of the property where the couple lived (Count 1); by falsely suggesting that it would be used for the purchase and keep of valuable horses when it was not (count 2); by falsely suggesting that a car belonging to Ms. Bailey was fit only to be scrapped when it in fact had a value which Mr. Lewis realised by selling it (count 3); and by falsely suggesting that the money would be used in the acquisition of a property which would then be sold at a profit (count 4). It will be necessary to set out some further facts below when dealing with the disclosure application which resulted in the closed hearing and the terminating ruling.
The jurisdiction issue
Before dealing with the substantive issues, it is necessary to deal with a submission on behalf of Mr. Lewis that the Court of Appeal cannot entertain the application for leave because the prosecution failed to comply with the procedural requirements of section 58 of the Criminal Justice Act 2003. This is well travelled territory most recently explored in the judgment of the Lord Chief Justice in R v. PY [2019] EWCA Crim 17; [2019] 1 Cr App R 22. We will take that judgment as our starting point for its review of the authorities, statutory provisions, and principles without repeating it here.
Most “terminating rulings” are not, in themselves, terminating rulings at all. A decision to stay proceedings as an abuse of process, or a ruling that there is no case to answer are examples of rulings which are, without more, terminating rulings. It has been held that there is no jurisdiction to give leave to the Crown to appeal against a ruling made under the Crime and Disorder Act 1998 Sch.3 para.2 to dismiss a charge prior to arraignment, see R v. Thompson and Hanson [2006] EWCA Crim 2849. Any other ruling made by a judge dealing with proceedings on indictment may be a terminating ruling if the prosecution chooses to treat it as such. Their right to apply for leave to appeal against a ruling is conditional. Section 58 includes these provisions:-
“(4) The prosecution may not appeal in respect of the ruling unless—
(a) following the making of the ruling, it—
(i) informs the court that it intends to appeal, or
(ii) requests an adjournment to consider whether to appeal,
and
(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.
…
(8) The prosecution may not inform the court in accordance with subsection(4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.
(9) Those conditions are—
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal.”
The powers of the Court of Appeal on hearing an appeal under section 58 are contained in section 61 which begins:-
61 Determination of appeal by Court of Appeal
(1) On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.
(2) Subsections (3) to (5) apply where the appeal relates to a single ruling.
(3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.
The effect of this is that if the prosecution seeks to appeal and later abandons the appeal, fails to get leave or loses the appeal the defendant must be acquitted of every offence to which that application or appeal related.
The communication by the prosecution of its agreement to this effect is a condition precedent to the Court of Appeal acquiring jurisdiction to deal with a prosecution appeal under section 58. The section requires the prosecution to inform the Crown Court following the making of the ruling that it intends to appeal and, at or before that time, to express this agreement to the court. The Criminal Procedure Rules Part 38.2 require the prosecution to take this step “immediately after the ruling” or at the expiry of any time allowed for consideration (which must be sought “immediately after the ruling”). The word “immediately” must be construed sensibly having regard to the statutory purpose which is to allow the prosecution an effective right of appeal without causing unnecessary delays to trials. The statute contemplates the possibility that the ruling may be made during a trial and a jury may be waiting. Speed is necessary. See R. v Quillan [2015] EWCA Crim 538; [2015] 2 Cr. App. R. 3 (p.20); [2015] 1 W.L.R. 4673, and PY at paragraphs 18 and 26.
The terminating ruling in this case was made in a closed hearing, and was one of those which became a terminating ruling at the point when the prosecution elected to make it so by informing the court that it intended to appeal and expressing the necessary agreement under section 58(8).
It is necessary to set out some of the events at the trial, which start with the disclosure application.
The disclosure application
The trial was listed for 5 January 2022 and the jury was sworn on 7 January 2022. On 21 January an application was made by counsel for Mr. Lewis for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996. It sought disclosure of:-
The fact that Mr. Lewis was acting as an informant for North Wales Police;
The fact that at least 2 of the mobile phones attributed to him were supplied to him by North Wales Police;
That his association with Ian Paul McGuigan and John Jo Mullins was at the behest of North Wales Police;
That he pleaded guilty to 2 counts of fraud (item 1 on PNC at N2) during his time as an informant for North Wales Police.
He was convicted of producing a controlled drug of class B whilst still acting as an informant for North Wales Police.
The disclosure application was made on Friday 21 January 2022, supported by a document dated the previous day. We enquired of Mr. Robinson QC why the application was not made at the time of the first Defence Statement, at the first trial, at the time of the second third and fourth Defence Statement, or at the start of the Second Trial. He said that there had been a change of legal team between the 1st and 2nd trials, and that he understood that some aspects of the disclosure of sensitive material had been dealt with by the first team. He said that there was discussion before the second trial about not being shut out from advancing the defence set out in the Defence Statements, and it was agreed he would not be shut out. At that stage, he did not know what rulings had been made already and that he felt he needed a proper basis for making applications which may have been considered before. He told us that events during the trial tipped the balance and made an application necessary. There was an application to adduce hearsay evidence of a witness, Richard Geraint Williams, which was made and refused but which had involved consideration of what he called “enhanced disclosure” relating to that witness. He pointed to passages of the evidence which we deal with below. He felt that this justified a further application. We do not doubt the sincerity of his explanations or the care with which he considered the position, but would emphasise that, as a general rule, applications of this kind should not be made during the trial. This application was based on material contained in Defence Statements, and should have been determined well in advance of the second trial, which would have enabled a ruling to be made, and appeal to be heard if necessary, and the second trial to come to a conclusion.
The judge heard submissions in open court on that Friday from the defence, and some brief observations from Mr. Peter Rouch QC, leading counsel for the prosecution. On the same day the prosecution lodged a closed document setting out submissions in response to the disclosure application which were considered in the absence of the defendants, their legal teams and the public.
All hearings on Monday 24 January 2022 were in private. The decision against which the prosecution now seeks to appeal was made during those private hearings. Rulings were given orally and extemporarily during that morning. It appears that the judge allowed 24 hours for the prosecution to consider its position.
On 25 January 2022 the prosecution lodged a document headed “sensitive document” with the court. This was not shown to the defence. It was not all sensitive. Some of it should clearly have been shown to the defence teams. The document includes the following:-
“5. The prosecution seeks leave to appeal the learned judge’s ruling under section 58 of the Criminal Justice Act 2003.
6. We invite the learned judge to grant permission to appeal under section CrimPR 38.5. We submit that there is a real prospect of success for the following reasons……
7. We agree that in respect of counts 1-5 the defendant [note that Mr. Lewis is not indicted on count 5, which is against the co-defendant alone] should be acquitted if either:
a. Leave to appeal to the Court of Appeal is not obtained; or
b. The appeal is abandoned before it is determined by the Court of Appeal.”
The document contains an application for expedition under section 59 of the 2003 Act which the judge granted at a hearing after the document was lodged and for which he gave written reasons. All of that happened in closed hearings on the 25 January 2022. The document was lodged with the court before the time granted for consideration had expired and it informs the court that the prosecution intends to appeal and contains the acquittal agreement.
The application for expedition and the decision on it were not sensitive and could have been dealt with in open court. The application for leave and the decision on it were sensitive and properly heard in closed session. We are not critical of the failure to distinguish between what was sensitive and what should have happened in open court because it is often difficult when speaking off the cuff to avoid accidentally letting slip some information when addressing a subject which is not, in itself, sensitive. However, thought should always be given in these circumstances to what can be “opened up” and to how the defence can be informed of everything which is not sensitive. This is not just a matter of open justice, but also of fairness to the defendants.
In the closed hearing on 25 January there was some discussion between the prosecution and the judge about the position of the defence. In the first part of the hearing that day before the written reasons for granting expedition were read out in a closed hearing, this exchange took place:
His Honour Judge Rowlands: Yeah, now the Defence of course have no input into the substance of the ruling.
Mr Rouch: No.
His Honour Judge Rowlands: But they do need to come back for the case to be put off.
Mr Rouch: Yes.
His Honour Judge Rowlands: And I mean they no doubt will understand that there has been a ruling and they will no doubt, as night follows day, understand that it’s been one with which the Crown do not agree, but I think formally in court they have to be here and you have to repeat the acquittal don’t you, undertaking? They have to be told that there is an application being made to the Court of Appeal and if it fails there will be an acquittal. Do you want to have a think about it?
Mr Rouch: I will, Your Honour, I’ve, I’ve already spoken to Mr Robinson this morning --
His Honour Judge Rowlands: Yeah.
Mr Rouch: And Your Honour told him that it may be that we will have to, or we will be going to another court.
His Honour Judge Rowlands: Yeah.
Mr Rouch: So he knows perfectly what’s going on although I’ve only said it in oblique terms, and, Your Honour, I think Mr Robinson and Miss Manson are content at the moment because they understand what’s happening without being told in direct terms. Your Honour, it seems to me that, I think the jury are coming back tomorrow, are they being …
His Honour Judge Rowlands: Well they need to be put off.
Mr Rouch: May I suggest this? That I would hope that during the course of the day we will have some idea as to what is going on. We won’t get it before 2 o'clock, but if the jury could be put off until tomorrow that would mean that at sometime tomorrow Mr Robinson would have to come into court and then matters can be aired in his presence. At the moment I think he is content that it’s being dealt with in this way because we are liaising with the Defence team.
After the written reasons were delivered and read out the following exchange took place.
His Honour Judge Rowlands: OK, right, so what are we going to do now about everybody else?
Mr Rouch: Your Honour, what is, as I say I was late coming into court because Mr Robinson --
His Honour Judge Rowlands: Yeah, it’s OK.
Mr Rouch: Wanted to speak to me about various matters outside. I'm going to speak to him and to Miss Manson now. Mr Clemo [counsel for the co-defendant] has been told to cancel Siwan Maclean [the co-defendant] coming today. Mr Robinson knows what’s going on because he can read between the lines. Both counsel are experienced, they know what’s happening. Discussions will take place during the course of the day between myself and the, and Miss Pope and the Defence counsel. We will also discuss matters with the CPS which we have been doing also this morning and with the Court of Appeal. Your Honour, we hope to have some information later on today to impart to the Court. It may be we won’t until tomorrow morning, I know not, I would have thought we’d have some idea by midday, the latest tomorrow as to what the likely scenario is. So what I'm going to ask Your Honour to do, as I've done for the last two days, is to leave matters to us.
His Honour Judge Rowlands: Yes, I will do, but the case will remain listed tomorrow.
Mr Rouch: Yes, oh yes.
His Honour Judge Rowlands: So I’ll expect the parties but not the accused to be present.
Mr Rouch: Yes.
His Honour Judge Rowlands: I think there comes a stage where something has to be said in the presence of the Defendant though.
Mr Rouch: It does, but Your Honour again --
His Honour Judge Rowlands: I mean it’ll be fairly anodyne I accept, but I don’t think we can simply just, I mean obviously Mr Robinson is going to disclose to him what he can and what he, what he’s aware of, but I don’t think you’d have a Defendant simply not told by the Court what’s going on.
Mr Rouch: Your Honour, I do --
His Honour Judge Rowlands: I mean he has, sorry to talk over you --
Mr Rouch: Yes.
His Honour Judge Rowlands: I think he has to be told that we await determination of an issue in the Court of Appeal.
Mr Rouch: Well, Your Honour, I think Mr Robinson has probably told him that.
His Honour Judge Rowlands: I know that, but I think, I think he’s formally got to be told that --
Mr Rouch: Yes.
His Honour Judge Rowlands: Now.
Mr Rouch: Would Your Honour defer that until tomorrow?
His Honour Judge Rowlands: Yes, certainly –
On the next day, 26 January, a hearing in open court did take place. Mr. Lewis was present but the co-defendant was not, but all the lawyers did attend. The recording system of the court failed and there is some disagreement about what was said. The court log, which is a note kept by the clerk to the court, records this among other things:-
“Prosecution addresses the court
Explains position in presence of defendant.
HH’s ruling on Monday terminates case in relation to counts 1-5 [note: Mr. Lewis was not indicted on count 5, and the co-defendant was not present].
Prosecution asking COA to overrule this ruling
Now awaiting listing at COA.”
It is not necessary to resolve the disagreements about what took place at the hearing on 26 January 2022. Whatever happened then could not amount to compliance with the procedural requirements of section 58. This is so because the application for leave to appeal had been made and rejected in the Crown Court and a Notice of Appeal had been lodged on the previous day. The prosecution had clearly informed the Crown Court of its intention to appeal before 26 January, and the question is whether it expressed the acquittal agreement at or before that time. By 26 January it was too late on any view.
The prosecution case is that its sensitive note lodged before the court sat on 25 January 2022 to decide whether to grant leave to appeal and order expedition was compliant with the section 58 procedural requirements. This is, we consider, correct unless the failure to inform the defence that it intended to appeal and gave the acquittal agreement vitiates it. The defence position is that until 26 January 2022 they did not know that any ruling had actually been given on its disclosure application, still less that a ruling or rulings were being treated as terminating rulings and an appeal had been lodged on 25 January. The Notice of Appeal was not served on the defendants until a direction was given by me on 29 January, as recorded above.
The form has a section where the prosecution must enter details of the Indictment which must include “the number of the Indictment and the offences on the Indictment which are the subject of the appeal”. Counts 1-4 only are specified, and the erroneous reference to count 5 made in the acquittal agreement and at the hearing on 26 January 2022 is not repeated.
The issue therefore is a short one: is the requirement that the prosecution must inform the court of its intention to appeal and to express the acquittal agreement at or before that time complied with where those steps are taken by lodging a sensitive document which is not shown to the defence? To put it another way, is it enough to communicate these things to the court, or must they also be communicated to the defence at the times required by section 58 and the CrimPR?
We adopt paragraphs 21-31 of the judgment of the court in PY in their entirety without repeating them here. This establishes that the prosecution can lawfully comply with its obligations under section 58 in writing. The circumstances in which that occurred in that case are not the same as those which occurred here, but the judgment is not to be read as limiting the ability of the prosecution to communicate in writing to cases where a judgment was reserved and handed down in writing. The decision is that as a matter of statutory construction the necessary communication is not required to be made orally in open court. The statute does not define or limit the circumstances in which written communication is valid, and neither does the court in PY.
We echo and accept what was said in R v. The Knightland Foundation and another [2018] EWCA Crim 1860 at paragraphs:
33. In our view, it is undoubtedly best practice to give the notification and the acquittal undertaking in open court, for a number of reasons:
(1) This court has held on numerous occasions that the right to appeal is given on strict terms and there must be compliance with those terms or the right is lost. If the judge is informed in open court of the intention to appeal, he or she can keep control of the proceedings and ensure that those requirements are met. In most cases where the prosecution intend to appeal, the judge will be required to give consequential directions, for example, to discharge or retain a sitting jury, expedition of the appeal and leave to appeal. Furthermore, the judge may wish to identify the key issues and evidence, including those parts of the evidence which would assist this court in deciding the appeal. Conversely, if the prosecution indicates an intention not to appeal, matters will arise: for example, taking a verdict from a sitting jury; dealing with applications for costs; and the review of any reporting restrictions.
(2) Notification in open court provides openness, certainty and clarity, where this is important. There are increasing numbers of unrepresented defendants, for example, and it is vital that they are kept properly informed of such a significant development in the history of their case.
(3) Communication in open court does not depend upon emails being forwarded to the right people in a timely fashion.
(4) Although electronic communication is encouraged by the rules (see, for example CPR 5.1), service by email may raise practical issues. Criminal Procedure Rule 4.11, for example, provides that an email sent no later than 2.30pm is deemed served that day. Any later and it is deemed served the following day. A notice purporting to comply with section 58(4) and (8) may be emailed at 2.29pm but not seen by the judge until sometime later. If this is the case, it is difficult to see how a judge could respond promptly to applications, as the rules require him to do as a matter of generality.
34. However, it does not follow from the fact that giving notice in open court is best practice that we have no jurisdiction. The question remains – does a prosecutor lose his or her right to apply for leave to appeal by failing to give notice in open court? Had it been necessary to decide the jurisdiction issue, unusually in this kind of urgent application we should have adjourned it and invited further submissions on the point of statutory construction. We would have needed more assistance on the intention of Parliament.
We also accept what is said at paragraph 25 of PY:-
It is axiomatic that if the court communicates with the parties, all must be copied into any communication; and if a party communicates with the court the same practice applies.
A failure to adhere to these rules of practice will often mean that decisions are taken in an unfair way or which are wrong. They may fall to be quashed or set aside for that reason on appeal. However, the question of the court’s jurisdiction to hear the appeal at all, in an area where a right of appeal is created by statute, is a matter of the construction of the statute.
We consider that the answer to the issue in this case is a straightforward matter of statutory construction. The obligation is to “inform the court” of its intention to appeal and its acquittal agreement, not anyone else. There can be no good reason for failing to inform the defendant and his or her lawyers of these things, and none existed here. It should clearly have been done. However, it cannot possibly be said that Parliament intended that the Court of Appeal should have no jurisdiction to hear an appeal under section 58 unless the defence were informed of the same things and at the same time as the court. The plain words of the Act are to the contrary effect. Generally, of course, informing the court of anything will simultaneously inform the defence because emails will be copied to them, or they will be present in court when things are said. Fairness requires this in almost all circumstances. We therefore conclude that the document lodged with the court on the morning of 25 January did comply with the jurisdictional requirements of section 58 even though the non-sensitive parts of it were not communicated to the defence as they should have been.
The Appeal on the Merits
The Defence Statements
Mr. Lewis served a “Provisional Defence Statement” on 20 December 2020. It sets out his case at considerable length. Among other things, it says that he was recruited by North Wales Police as an informant to gather intelligence about Ian Paul McGuigan, whose activities they were investigating. He was given a mobile phone and an alias. He had at that time been charged with frauds and thefts going back to 2012 and they said they could help these problems to go away if he helped them. He says that this arrangement was terminated by the police in November 2016. During its currency he was charged with production of cannabis plants at his home address. He said that some of these plants had come from Mr. Corrigan and some from McGuigan. Corrigan had learned that others knew he was growing cannabis, and the Defence Statement says:-
“Gerald Corrigan asked the defendant to remove the grown plants to an outbuilding on the defendant’s property. Gerald Corrigan did not want the plants destroyed as he said it had cost him too much (he said approximately £25,000). The defendant reluctantly agreed to help. Gerald Corrigan knew the defendant was ‘working with the police’.”
When he was arrested, Mr. Lewis, it is said, did not tell the police that his cannabis in fact belonged to Mr. Corrigan and McGuigan. The Defence Statement says:-
“Ian Paul McGuigan threatened the defendant not to say anything. The defendant did not tell the police at the time that some of this cannabis also belonged Gerald Corrigan as he did not want his friend to get into trouble. Also, he knew that the assistance he had provided to the police might be acknowledged when sentenced (it was, in fact, but only after protracted proceedings involving both the Crown Court at Chester and Mold in 2017).”
The Defence Statement includes a lot of material about the police and various other named people. It makes no real effort to explain why this has anything to do with the facts of counts 1-4. It contains quite extensive disclosure requests, but does not make those at [17] above.
An addendum Defence Statement was served dated 26 November 2021. This says that a bank transfer relevant to count 4 (the purchase of land) from Ms. Bailey had been deliberately disguised as being related to land when it was not:-
“..to disguise the fact that Gerald Corrigan had cash from his cannabis grows and an investment in horses.”
This new Defence Statement repeats a lot of material from the first one, but adds this:-
“Having now been placed in the invidious position of having additional charges the defendant felt under pressure to plead guilty to both the earlier 2 fraud cases and the cannabis cases as he was to be provided with a “text” which led to the judge imposing a suspended sentence.”
It goes on to say that the horses which were the subject of count 2 did in fact belong to Gerald Corrigan but had been stolen by a conspiracy involving “Richard Geraint Williams, Ian Paul McGuigan, John Joe Mullins and Gerry North”. It says that Mr. Lewis was threatened with death because people wanted to get hold of Corrigan’s drug profits, and they thought he could do this. It says that he believes that the prosecution in this case has been driven by police animosity to him. It then seeks disclosure of, among other things:-
“All records of the information provided to police by the defendant as an informant including but not limited to recordings, internal communications, emails, texts and phone records.”
A further Addendum Defence Case Statement followed on 2 December 2021. This included further disclosure requests. It was followed by a third Addendum Defence Case Statement dated 14 December 2021 which made yet further disclosure requests. These do not advance the present issue.
The bad character application
On 21 October 2020 the prosecution served an application under s101(1)(d) of the Criminal Justice Act 2003 to adduce Mr. Lewis’s previous convictions as being relevant to an important matter in issue between Mr. Lewis and the prosecution. These included a fraud in February 2006 and another in March 2020. It also included 10 convictions in respect of which a suspended sentence was imposed in the Crown Court at Mold on 19 June 2017. These were 9 offences of fraud and theft dating back to 2012 and 1 offence of production of cannabis while on bail. This was the conviction which followed the arrest and search at his home premises when cannabis was recovered which he said in his Defence Statements had come from Mr. Corrigan and McGuigan. It is said to be evidence of propensity to commit offences of fraud, and to acquire wealth by criminal conduct in growing cannabis. The offences are also said to be admissible against the co-defendant as they would be relevant to proof that she knew or suspected that funds coming from Mr. Lewis were the proceeds of crime. This application does not appear to have been determined.
The course of the relevant trial
The Opening Note used to open the case to the jury says that Mr. Lewis obtained cannabis oil from a man in Ireland who is named in the Defence Statements to give to Marie Bailey who used it for medicinal purposes. It then says that Mr. Lewis, Mr. Corrigan and Ms. Bailey all decided to grow cannabis of their own for the same purpose. Mr. Corrigan and Ms. Bailey paid Mr. Lewis a couple of hundred pounds and arranged for a cannabis farm to be set up at their property. It then alleges that Mr. Lewis grew far more plants than Mr. Corrigan was expecting and, when he found out, he was angry and told Mr. Lewis to take them away, which he did. This passage concludes “Anyway, back to the fraud”. Mr. Rouch told us that this happened because the defence team in the first trial were intending to adduce evidence about the cannabis grow and therefore the relevant parts of Ms. Bailey’s ABE recording were not edited out.
In cross-examination of Ms. Bailey, it was apparently put to her that a Mr. David Byrne had told Mr. Corrigan that people were talking about his cannabis grow. She did not remember this. It was then put to her that Mr. Lewis was a police informant. This was done without notice to the prosecution who did not object. She said that he had told Mr. Corrigan this, but she did not know if it was true or not. She said that Mr. Lewis told a lot of stories which were not true. Mr. Robinson told us that he made the connection between Mr. Lewis being a police informant and the instruction to him to move the cannabis in his questioning, but Mr. Rouch did not agree. It is not necessary to resolve this issue. The cannabis grow itself had nothing much to do with the allegations on the Indictment, and the reason for its removal by Mr. Lewis had nothing to do with them at all.
The disclosure application also relies on the re-examination of Mr. Gerry North, who was a prosecution witness from Ireland who gave evidence about the horses which are the subject of count 2. There was a dispute about what exactly was said and a transcript has been obtained. The witness’s evidence in cross-examination had been that he did not know Ian Paul McGuigan. It says this:
Mr Rouch: Mr North, only two matters. First is this, you obviously knew Wyn Lewis and knew he lived in Anglesey.
Mr North: Yes.
Mr Rouch: Apart from Wyn Lewis did you have any other contacts in, in Anglesey?
Mr North: No.
Mr Rouch: So when you came across to Wales and went to Anglesey would it be Wyn Lewis that you went to see?
Mr North: Yes.
Mr Rouch: It’s been put to you that you met or knew other people in Anglesey. Two names were given to you, a Richard GeraintWilliams and an Ian Paul McGuigan, all right?
Mr North: Yeah.
Mr Rouch: If you met either of those men through whom would you have met them?
Mr North: I met them, I met the Williams, is that what you said your name is, his name is? I met him at Wyn Lewis’s.
Mr Rouch: Right. Anybody that you met on Anglesey would you have met them independently of Wyn Lewis or because of Wyn Lewis?
Mr North: Because.
Mr Rouch: Because of?
Mr North: Yeah.
Mr Rouch: Because he was your only contact in Anglesey --
Mr North: That’s all --
Mr Rouch: So anybody that you knew or met in Anglesey would have been through him would it?
Mr North: That’s right.
Mr Rouch: And the name John Joe Mullinshas been referred to.
Mr North: Yes.
Mr Rouch: And he apparently was arrested and went to prison in, in North Wales.
Mr North: Yes.
Mr Rouch: You’ve known John Joe Mullinsyou say for many years?
Mr North: That’s right.
Mr Rouch: Do you know his connection in Anglesey with anybody? Who was he connected to in Anglesey that you know of?
Mr North: I don’t know anybody.
Mr Rouch: You don’t know?
Mr North: No.
The prosecution is therefore correct to say that they did not suggest that Mr. North knew John Jo Mullins through Mr. Lewis. The position of the witness was that he knew Mr. Williams through Mr. Lewis. As far as he was aware he had never met Mr. McGuigan, but if he did it would have been through Mr. Lewis. He had known Mr. Mullins for many years and did not know of any connection he may have had with anyone from Anglesey.
The argument in support of the s8 application
The document placed before the Crown Court says, among other things, this:-
“The defence intention to put the defendant’s case as outlined in his defence statement was made plain to the prosecution before the case began. Part of that case was that the defendant was an informant and Corrigan knew it. It was further asserted that Marie Bailey was fully aware of Mr. Corrigan’s activities.
The only witness that this aspect of the case could be put to was Marie Bailey. It was put, without objection, and the answer was given.
The same question is intended to be put to the officer in the case.”
The document then contends that items 1 and 5 in paragraph [17] above are relevant because the disclosure sought goes to his “credibility”, and the issue of who was controlling the cannabis grow at Mr. Corrigan’s property.
Item 2 is said to be relevant to “credibility”.
The argument on item 3 is based on a faulty recollection of the re-examination of Mr. North as explained at [46]-[47] above. The material sought is said, again, to go to the defendant’s “credibility”.
The document says this about items 4 and 5:-
“16. It is conceded that the defendant has engaged gateway (g) however, the prosecution seeks to rely upon the evidence of his previous convictions to establish propensity.
17. The defendant’s case is that he was, in fact, not guilty of those offences. However, he was encouraged to plead guilty by his handlers in North Wales Police. There could be no sustainable argument relating to his propensity without the previous convictions at item 1 on his PNC.
18. If the Crown hold information on this issue, it is disclosable, subject to any PII considerations.
19. Similarly, he provides a reason behind his decision to plead guilty to the production of cannabis. The relevance of this conviction is outlined above.
20. In short, the prosecution is potentially withholding information that would put his previous convictions in a proper context for the jury to consider. The material is disclosable.”
The approach of the judge: discussion
It was because the judge decided that this application was arguable that he heard responses to it in closed session and made his decisions in the same way. He was wrong in that respect. He ought to have considered the application on the assumption that what Mr. Lewis said about being a police informant in his defence statements was true and dealt with it in open court on that basis. He should have refused it. We give our reasons in this open judgment on that assumption.
At the point when the judge made his ruling in the trial which we are considering, there was no real evidence before the jury that Mr. Lewis was a police informant. When cross-examined, Ms. Bailey said that he told Mr. Corrigan that this was the case, but that he told a lot of lies. The evidential status of this assertion was never determined, but it is probably immaterial. It is hard to see how a rational tribunal of fact could accord it any weight as evidence of the matter stated by Mr. Lewis to Mr. Corrigan. If the officer in the case is asked the question, he will probably respond in the way that police officers generally do when they are asked this question. He will probably say that it is the policy of the police neither to confirm nor deny that any person is a police informant, and will explain the basis of that policy. The judge will then have to decide, if the point is argued, whether to compel the officer to answer. That involves a very similar decision to the decision whether to order disclosure in response to the application at [17] above.
At that stage, if the next trial proceeds as this one did, Mr. Lewis’s credibility will not be in issue. There was no evidence before the jury that he had said in interview that he had been a police informant. Passages containing that assertion had been redacted by the prosecution, as far as we know without objection. The jury had not yet heard him say in evidence that he was. Perhaps they never will: that is a choice for him to make. If he does, the Crown will have to decide whether to challenge his evidence if it is relevant to any issue in the trial. They may elect to say to the jury that for the reasons explained by the police officer the policy is never to confirm or deny that a person is or was a police informant. They therefore do not challenge or confirm that part of his evidence and that jury must accept that what he says about it is true. They will no doubt then make submissions to the jury about its relevance on that basis. The judge in due course would direct the jury to the same effect.
It is not entirely clear why Mr. Corrigan’s cannabis grow has anything to do with the case against Mr. Lewis on counts 1-4. The reason why his plants were transferred to Mr. Lewis’s property was dealt with in evidence but it has no obvious relevance to the case. The rambling and discursive Defence Statements are full of irrelevant material, but do not say that Mr. Lewis’s alleged status as a police informant had anything to do with it. The first “provisional” one says:-
“18. In 2016, Gerald Corrigan telephoned the Defendant about the cannabis. He said, ‘Dafydd, come here, want to talk to you about the wheel bearings [sic]’. Gerald Corrigan said Dave Byrne contacted him to tell him he knew (through Geraint Morgan Owen) what Gerald Corrigan was growing. Gerald Corrigan asked the Defendant to remove the grown plants to an outbuilding on the Defendant’s property. Gerald Corrigan did not want the plants destroyed as he said it had cost him too much (he said approximately £25,000). The Defendant, reluctantly, agreed to help. Gerald Corrigan knew the Defendant was ‘working with the police’. Marie Bailey did not know the scale of the cannabis production.”
No effort is made to explain what this has to do with counts 1-4, and no effort is made to explain what the italicised sentence has to do with the rest of the paragraph.
In the 26 November 2021 addendum, this paragraph appears:-
“10. Gerald Corrigan told the Defendant that David Byrne had called him to say he was aware that cannabis was being grown at [Corrigan’s property] and this ‘public knowledge’ so alarmed Gerald Corrigan that he asked the Defendant to help remove plants and cannabis to his own premises….”
In that document a relevance of the cannabis grow is set out, namely that a count 4 bank transfer was disguised as relating to a transaction concerning land to ‘disguise the fact that Gerald Corrigan had cash from his cannabis grows and an investment in horses’. A paragraph appears which contradicts the last sentence of paragraph 18 of the first Defence Statement and now alleges that Ms. Bailey ‘well knew the extent of her partner’s activities and has lied to cover up her knowledge to try and implicate the Defendant.’ The fact of the cannabis grow is not in issue, although who was responsible for its size is in issue. None of that appears to be affected by any of the disclosure requests. We are told that it was not put to Ms. Bailey that she disguised this transfer as relating to land in order to hide the fact that it came from the proceeds of a cannabis grow.
We have a transcript of the cross-examination of Mr. North. His evidence was principally relevant to the allegation in count 2 that Mr. Lewis defrauded Mr. Corrigan by falsely representing that money he was paying was being used for the purchase and keep of horses. It was suggested that some of these horses had been kept by Mr. North in Ireland. He said that he had had 4 thoroughbreds belonging to Mr. Lewis at one time, but he no longer had any. Two of them had gone to the knacker’s yard when Mr. Lewis stopped paying for their keep. He denied that he had still had horses for Mr. Lewis when the police visited him after Mr. Corrigan’s death, and denied that he and John Jo Mullins had stolen the horses. It was not suggested that Mr. McGuigan had anything to do with this. Except to that very limited extent, the case as set out in paragraph 14 of the Addendum Defence Statement was not put. This reads:-
“The Defendant believes that what has then unfolded was a conspiracy involving Richard Geraint Williams, Ian Paul McGuigan, John Jo Mullins and Gerry North which had two objectives: the theft or appropriation of assets held by Gerry North, namely horses belonging to Gerald Corrigan (Count 2) and the Defendant as well as a tractor and a trailer, and secondly to get hold of the cash accumulated by Gerald Corrigan which these men believed the Defendant had access to. This led to two incidents where he was threatened with murder in Ireland at the home and in the presence of Gerry North by Peter McCormack and Michael Whitney (when his jeep was also stolen) and by Terry Whall (who was later convicted of murdering Gerald Corrigan) at the Defendant’s home…”
At the stage when the disclosure request was made, therefore, the relevance of any contact which Mr. Lewis may have had with the police concerning Mr. McGuigan was elusive and receding.
It was an error to order material relevant to the probative value of Mr. Lewis’s criminal convictions before dealing with the bad character application. In the first instance, it will be a matter for the Crown to decide whether to pursue it. If they do, the judge will no doubt have R v. O’Dowd (Kevin) [2009] 2 Cr. App. R. 16 in the forefront of his mind. If that application were to fail, the convictions would not be before the jury. Mr. Robinson told us that the application is not agreed, and thus the convictions can only go before the jury if the trial judge so orders. Given the number and age of the fraud convictions from 2012 which were sentenced in 2017 along with the production of cannabis offence, their admission would clearly cause significant trial management problems. Only if the application is successful will it be necessary to decide whether any disclosure of the attendant circumstances surrounding those proceedings is required.
Conclusion
For these reasons, and as explained further in our closed judgment, we grant leave, and allow the appeal. We order a fresh trial in the Crown Court further to section 61(4)(b) of the Criminal Justice Act 2003.
It follows that section 71 of the 2003 Act applies and no publication may include a report of these proceedings, save for specified basic facts, until the conclusion of the fresh trial. The prosecution are to notify the Court of Appeal office when those proceedings come to an end and arrangements will be made to publish this judgment then. [This happened after the conclusion of the trial and this case may now be reported].