R v Sang
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 13 December 1978 |
| Judgment citation (vLex) | [1978] EWCA Crim J1213-3 |
| Docket Number | No. 5418/B1/77 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 December 1978 |
[1978] EWCA Crim J1213-3
Lord Justice Roskill
Lord Justice Ormrod
and
Mr Justice Park
No. 5418/B1/77
No. 5417/B1/77
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR L. GIOVENE appeared on behalf of the Appellants
MR N. DENISON appeared on behalf of the Crown.
(As approved)
The Appellant Sang and the Appellant Mangan were jointly indicted at the Central Criminal Court before His Honour Judge Buzzard on 13th October 1977 on two counts. The first alleged conspiracy between them and others to utter forged United States banknotes. The second alleged unlawful possession of such forged United States banknotes. To both those counts each Appellant initially pleaded not guilty. At the beginning of the trial – that is to say, after arraignment but before counsel for the Crown began to open the case for the prosecution – Mr. Giovene, for Sang, invited the learned trial Judge to allow a trial within a trial to take place. His purpose, as he put it, was that the Court might consider "whether or not the involvement of my client, Mr. Sang, and consequently of that of his associate Mr. Mangan" came about as a result of the activities of an agent provocateur. Mr. Giovene made no secret of the fact that he hoped to establish from evidence given at such a trial within a trial by cross-examination of a police officer named Sergeant Glass and by evidence-in-chief from an alleged police informer who went by the name of Scippo, that Sang had only become involved in the offences alleged against him because of the activities in Brixton Prison of Scippo who, allegedly acting under police instruction, had approached Sang who was also at that time in Brixton Prison. It was said that this approach was made with a view to procuring that Sang on his release would (albeit unknown to him) become involved with Sergeant Glass and other police officers posing as ready and willing purchasers of Sang's "merchandise", that is to say the forged United States banknotes, thus ensuring Sang first committing and then being arrested for and ultimately convicted of the offences charged. It was said that those offences would not have been committed but for these police inspired activities of Scippo and subsequently of Sergeant Glass.
Mr. Giovene hoped that once the factual foundation for his argument had been thus laid, he could persuade the learned Judge in the exercise of what was claimed to be the learned Judge's discretion, to rule that the Crown should not be allowed to lead any evidence of the commission of an offence or offences incited in this way with the consequence that a verdict of not guilty was inevitable and indeed would have to directed by the learned Judge.
When the reason for this request for a trial within a trial was first indicated to the learned Judge, he himself at once raised the question whether in point of law and even assuming the facts outlined above were established, he possessed the discretion which the defence sought to invoke. The transcript of the argument which ensued shows clearly that the learned Judge had grave doubts as to the existence in law of the suggested discretion, any exercise of which would, as he pointed out, prevent the prosecution from proceeding at all with the charges. He therefore invited Mr. Giovene to argue the question whether this discretion existed at all in point of law upon the assumption that the required facts had been established, namely that Sang's offences would not have been committed but for police incitement through an informer to commit them. Mr. Giovene agreed to this course and the argument proceeded accordingly.
After long and careful argument, which is recorded in the transcript which we have read, the learned Judge on 17th October, 1977 ruled that as a matter of law he did not posses the discretion in question. Therefore, as Mr. Giovene had already hinted would be the case if the learned Judge rejected his submissions, Sang pleaded guilty to count 1, the conspiracy count, and Mangan pleaded guilty to count 2, the uttering count. These pleas were duly accepted. The learned Judge sentenced Sang to 18 months' immediate imprisonment and Mangan to 12 months' imprisonment suspended for two years.
The learned Judge proffered a certificate to Mr. Giovene on Sang's behalf that Bang's case was fit for appeal. Strictly, this was unnecessary inasmuch as an important point of law is involved, but no doubt the learned Judge was moved to grant the certificate in the hope that this Court might the more readily be able to decide whether or not his ruling was correct. A certificate was not proffered to Mangan's counsel and since the trial Mangan has lost touch with his solicitors. He was not represented on the hearing of Sang's appeal. We shall not therefore in this Judgment deal separately with his appeal.
The action taken by the learned Judge to rule upon an assumed factual basis presents this Court with a certain initial difficulty though we have great sympathy with him in the situation in which he was placed. This Court has often said that trial judges should not in general rule upon questions of the admissibility of evidence without hearing that evidence. But in the present case, if the learned Judge were to hear that evidence, there would have been a lengthy trial within a trial at which matters might have been sought to be investigated which would not have been directly relevant to proof of Sang's guilt – for example, what instructions were given to Scippo – what were the sources of information that were available to Scippo or to the police officers – police policy in permitting infiltration of this kind into suspected gangs of criminals – some or all of which are matters which are not, at any rate normally, matters for a trial court to investigate. And if the learned Judge's view of the law were right, such an enquiry would have been to no purpose even if he had felt able to permit it, for he did not possess the discretion upon the very existence of which Mr. Giovene's argument depended for its success. We therefore think that in the exceptional circumstances of this case the course which the learned Judge took was well justified, but the fact that we have accepted that this is so must not be taken as in any way encouraging departure from the basic principle that trial judges should not rule upon questions of admissibility of evidence without first hearing the evidence to which exception is sought to be taken.
The learned Judge's ruling raises a question of great importance upon which, so far as we can discover, no binding decision has ever been given by an appellate court in this country, and in relation to which it is plain from what we have been told that trial judges in Crown Courts have in recent years taken differing views.
There is no doubt that over the years many dicta have been uttered by judges of great eminence upon this topic, some of which if read literally can be interpreted as supporting Mr. Giovene's argument. But as will appear later in this judgment, it is a striking fact that with the single exception of Payne (1963) 4-7 Cr.App.R.122– a case to which we shall later refer – in no single one of these cases where these dicta have been uttered has the court in question excluded the evidence objected to, even when it has been obtained in circumstances which it is difficult not to regard as "unfair" or "unjust", whatever standard one applies, and in at least one case of flagrant illegality, and therefore we would have thought either "unfairly" or "unjustly", whichever of those adverbs be preferred.
We think the right approach to the present problem in view of the state of the authorities is first to state certain propositions which seem to us to be established beyond peradventure, at least so far as this Court is concerned.
First, a trial judge has not and must not appear to have any responsibility for prosecution.
Second, a trial judge has no power to refuse to allow a prosecution to proceed merely because be considers that as a matter of policy that prosecution ought not to have been brought.
Authority binding upon this Court for these two propositions will be found in Connolly v. The Director of Public Prosecutions (1964) A.C.1254, and in R. v. Humphreys (1977) A.C.1. We do not think it necessary to give specific references to the many passages in the various speeches in these two cases where these propositions are stated.
Third, a trial judge may have power to stop a prosecution if it amounts to an abuse of the process of the court and is oppressive and vexatious. We say "may have" because this was the view of Lord Salmon and of Lord Edmund-Davies in Humphreys. Viscount Dilhorne thought otherwise and there is no binding decision of a majority of their Lordships upon this point. It has not been argued before us in the present appeals that if the present prosecution were allowed to proceed, it would amount to an abuse of the process of the court.
Fourth, evidence which is relevant to the issue before the Court is admissible however that evidence has been obtained. In delivering the opinion of the Judicial Committee in Kuruma v. The Queen (1955) A.C.197, Lord Goddard C.J. stated the law thus, at page 203: "In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible, and the Court is not concerned with how the evidence was obtained, while this proposition may not have been stated in so many words in any English case there are decisions which support it and in their...
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