R (Edwards) v Criminal Cases Review Commission
|England & Wales
|Lord Justice Pill,Mr Justice King
|13 October 2008
| EWHC 2389 (Admin)
|Queen's Bench Division (Administrative Court)
|Case No: CO/3764/2007
|13 October 2008
 EWHC 2389 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Lord Justice Pill and
Mr Justice King
Case No: CO/3764/2007
Mr W Clegg QC and Mr J Hodivala (instructed by Clarke Kiernan) for the Claimant
Mr D Perry QC (instructed by Criminal Cases Review Commission) for the Defendant
Hearing date: 16 July 2008
Mr Martin Edwards seeks judicial review of a decision of the Criminal Cases Review Commission (“The Commission”), dated 28 February 2007, not to refer his conviction to the Court of Appeal (Criminal Division) under the power conferred by Section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”). The Commission concluded, under Section 13 of the 1995 Act, that there was no real possibility that the conviction would be overturned.
On 7 April 1995, the claimant was convicted of possessing a controlled drug of Class A (diamorphine) with intent to supply. He was sentenced to 9 years imprisonment. An appeal against conviction was dismissed by the Court of Appeal (Criminal Division) on 18 July 1996. As stated in written submissions on his behalf, the claimant confines his application for judicial review to a single question:
“Is the Commission correct in its analysis that because the claimant had a substantive defence to the allegation he could not, as a matter of law, argue that the proceedings ought to be stayed (or have the evidence excluded) on the basis of “entrapment”?”
Other grounds of challenge included in the claim for judicial review are not now pursued.
At the hearing of the appeal in 1996, Simon Brown LJ, giving the judgment of the court, considered the evidence at the trial in detail and summarised the case in this way:
“On Tuesday 9th August 1994, as a result of a surveillance and undercover operation, the appellant was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing five packages containing a total of 4.83 kilogrammes of heroin of 50% purity. It was the prosecution case that the appellant was involved in arranging the supply of that amount of drugs to the undercover officer Graham. It was the appellant's case that he had been used by the suppliers of the drugs as part of a chain to supply drugs to the undercover officer, whether they were genuine drugs dealers who had evaded arrest or were police informers or agents. The appellant believed that the transaction involved jewellery, not drugs. He disputed ever having possession or control of the drugs found in the bag and said he did not know that they were drugs.”
At interview, the claimant had exercised his right to silence.
Two points were taken on the appeal. Complaint was made of the trial court's refusal “to order disclosure of various material in the Crown's possession, material which would have illuminated the nature and role in all this of the four people to whom we have referred: Geoffrey Lerway, Jim Humphries, Terry and Carol.” These were people allegedly involved in the transaction. The court held that it was “wholly unreal to suppose that any handicap was suffered [by the claimant] by not having these documents.” The second submission, which was also rejected, was that conversations between the claimant and Graham ought not to have been admitted in evidence.
Though not material to the determination of this application, it is appropriate to mention that the claimant's case was subject to a reference to the European Court of Human Rights (“ECtHR”) ( ). The ECtHR held that the procedure then employed to determine the issues of disclosure of evidence and entrapment did not comply with article 6.1 of the Convention. The House of Lords subsequently gave guidance to courts in .
The claimant's case at trial was that he was unaware of the contents of the packages and believed he was involved in a transaction involving jewellery. The police evidence that the key to hotel room 153, where the goods had been, was found in the back seat of the police car in which the claimant travelled following arrest, was untruthful. He said he had given the key to Graham earlier.
When the claimant sought at the trial to exclude his oral statements to Graham, the question of entrapment was raised. The Recorder ruled that he had heard nothing and seen no material which would have assisted an argument that evidence should be excluded under Section 78 of the Police and Criminal Evidence Act 1984 “on the grounds that the [complainant] may have been led into committing an offence, or become involved in the commission of an offence which he would not otherwise have done or committed”. The Recorder had considered the prosecution witness statements. He noted that he was invited to conclude that there was a possibility of entrapment on the basis that “Terry was in command” but there was no evidence that Terry was an informant or an undercover police officer. The evidence “seemed to indicate that Terry was a customer”, the Recorder stated. The Recorder saw “no factual basis for concluding that the defendant may have been entrapped”.
Against that background, it is claimed that the Commission have erred in declining to refer. For the claimant, Mr Clegg QC submits that the Commission have erred in law in failing to investigate whether there was any element of entrapment in this case. Of those known to be involved in the transaction, only the claimant was charged. Moreover, the failure to take witness statements from the others involved led to the inference that they were participating informants, it is submitted. It is now known that Lerway was sentenced in April 1995 for his part in a drugs operation that also involved a police officer and that, in 1977, Humphries has been involved in a case in which a number of police officers were convicted of corruption. The background of others involved in the transaction should have been further investigated, it is submitted. What led the Commission to err, it is submitted, was the Commission's erroneous belief that by advancing a positive case of innocence, the claimant disavowed any question of entrapment.
The test to be applied by the court in present circumstances was stated by Lord Bingham of Cornhill, Chief Justice, in , at page 521:
“The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere.”
On the facts of that case, the court found: “The question lay fairly and squarely within the area of judgment entrusted to the Commission.”
While entrapment is not a defence to a criminal charge, courts may employ their abuse of process jurisdiction to ensure that the criminal process is not brought into disrepute. In , Lord Nicholls of Birkenhead stated, at paragraph 1:
“Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen.”
In the course of his comprehensive analysis, Lord Nicholls stated, at paragraph 10:
“But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. Entrapment assumes the defendant did the proscribed act, with the necessary intent, and without duress. But when entrapment occurs, the commission of the offence by the defendant has been brought about by the state's own agents. This is the crucially important difference between cases of entrapment and other cases of instigated crime.”
Lord Nicholls added, at paragraph 16:
“A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way.”
And at paragraph 17:
“Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstances in which it was committed.”
And at paragraph 19:
“As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less...
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