R v Adrian Craig Mason; Clayton Paul Wood; Eammon Terry George McClelland; John Paul Tierney [CA (Crim), 13/02/2002]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GRIGSON |
| Judgment Date | 06 December 2002 |
| Neutral Citation | [2002] EWCA Crim 2966,[2002] EWCA Crim 385 |
| Docket Number | Case No: 00/5407 00/4674 00/5405,No: 2002/3910/Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 December 2002 |
[2002] EWCA Crim 2966
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Mr Justice Silber
Mr Justice Grigson
No: 2002/3910/Z2
Non-Counsel Application
On 21st June 2002 at the Crown Court at Northampton this applicant, Adrian Craig Mason, pleaded guilty to an offence of escape and was sentenced to 18 months' imprisonment to be served consecutively to the existing sentence. On 20th July 2000 he had been sentenced to a total of 10 years' imprisonment for an offence of robbery, conspiracy to rob and possession of a firearm whilst committing an offence.
The facts are briefly these. On 18th March 2002 he and another prisoner called Sufi escaped from Her Majesty's Prison Ryehill in Northamptonshire. They had both been employed in re-packing industrial components into containers. They hid in one of the containers, resealing it sufficiently to disguise their presence and the container was loaded onto a lorry and driven out of the prison. The applicant was arrested at Fishguard on 21st March as he tried to leave the jurisdiction. The man Sufi was also recaptured. He pleaded guilty at the first opportunity and was sentenced to nine months' imprisonment, again to be served consecutively to the 10 years he was serving, by a different judge on a different occasion. This applicant actually pleaded guilty on 21st June which was not the first opportunity that he had.
There is but one ground of appeal, namely the apparent disparity between this applicant's sentence and the sentence imposed on Sufi. It is not suggested that the sentence of 18 months' imprisonment was of itself excessive. There are three important distinctions to be made between the two men. Although there is nothing to choose between their criminal records this applicant was older than Sufi, this applicant had a previous conviction for escape from lawful custody and this applicant did not plead guilty at the first opportunity. Those factors justify a longer sentence. If this applicant feels any sense of injustice at the disparity that sense of injustice is not justified.
The single judge in refusing leave said this:
"The cases of Broadbridge, Butcher and Rugg show that the judge had to sentence you on the basis of your offence and was not required to take account of the low sentence passed on Sufi. In fact he did take account of it and lowered the sentence he would otherwise have passed by six months. You were fortunate to that extent and cannot complain."
With that view we entirely agree and this renewed application is refused.
[2002] EWCA Crim 385
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Crown Court Coventry) HIS HON. JUDGE COLE
the Lord Chief Justice of England & Wales
Mr Justice Mitchell and
Mr Justice Keith
Case No: 00/5407
00/4672
00/4674
00/5405
Mr Nicholas Webb appeared on behalf of the Crown
Mr Robin Pearse Wheatley appeared on behalf of Clayton Paul Wood and John Paul Tierney
Mr Nigel Shepherd appeared on behalf of Eammon Terry George McClelland
Mr Paul Williams appeared on behalf of Adrian Craig Mason
Lord Woolf CJ: This is the judgment of the Court
This appeal raises two issues of importance. It raises the question as to when a judge is required to withdraw from proceedings on the grounds of possible bias. In this case the problem arose because the judge knew the Chief Constable who was a witness for the prosecution. The other important issue which arises is as to when, if ever, it is appropriate for the police in the investigation of serious crime to devise a stratagem for obtaining evidence by covertly recording conversations between suspected offenders whilst they are under arrest and detained in police cells.
INTRODUCTION
Between 4 July 1998 and 1 April 1999, a period of approximately nine months, a series of burglaries and armed robberies took place in the Coventry area. The proceeds of the offences were not great, but the offences were ones that subject the victims to considerable distress and anxiety and make them and the general public concerned about their safety. As a result of their investigations, the police considered that there were some nine persons involved in the commission of these offences.
As is stated in a report to the Chief Constable, entitled "Operation Brassica", the police considered that "different people from the team mix and match to carry out the offences". The way those responsible operated was for two or three offenders to enter commercial premises wearing balaclavas and hooded jackets equipped with firearms and threaten or incapacitate the staff in order to steal money. Fortunately, only in one incident was a shot actually fired and even then nobody was injured.
The police had difficulty obtaining evidence against those who they thought were responsible. They therefore decided to seek authority from the Chief Constable for the West Midlands authority to carry out a covert operation (Operation Brassica).
OPERATION BRASSICA
In order to obtain the authority, a report was prepared (exhibit 151). It set out the reasons why the police considered such an operation was necessary. It was prepared by Detective Sergeant Michael John Fairfield. It explained the situation in which the police found themselves in these terms:
"All of (the) offences were initially investigated in isolation and most persons have been arrested on suspicion of some of the other offences and released without charge. The offenders all use the same firm of solicitors and on each occasion, where insufficient evidence has been disclosed, they have all responded "no comment" at interviews and are not amenable or co-operative with the police. It may well be that the evidence on the three mentioned offences will be sufficient to charge, but further evidence would assist in proving those offences beyond reasonable doubt, which would not only create substantial terms of imprisonment, but also cause a reduction in further offences committed. It is certainly in the public interest that we use any means available to us to detect these offences and bring the offenders before a court."
The nine offenders who the police suspected included the present appellants, Eammon Terry George McClelland, John Paul Tierney, Clayton Paul Wood and Adrian Craig Mason. At the time that the memorandum was prepared, the police had identified three persons who were responsible for offences at two premises owned by the Victoria Wine Company and one at the Kwik Fit tyre distributors in Coventry.
It was intended that the operation should be in two phases. The first would involve the arrest, interview and charging of Wood, McClelland and Tierney. Any evidence obtained during the first phase was not to be disclosed until after the second phase. The first three offenders to be arrested would be arrested in respect of different robberies. They would then be taken to Stoney Stanton Road police station and detained in the custody suite. That custody suite would only be occupied for the purposes of Operation Brassica. Installed in the custody suite would be covert audio equipment so that the conversation of the prisoners could be recorded. It was anticipated that "in the first instance if they are arrested for three different robberies individually… this may well generate conversation between themselves as to why they have been arrested". In relation to the Kwik Fit offence the memorandum stated:
"Information had been received that Eammon McClelland and John Paul Tierney were responsible for this offence and evidence has been taken in (the) form of witness statements of persons who know McClelland personally and saw him outside the premises just prior to the offence taking place. Also in respect of this matter the offenders executing the robbery did not conceal their identities and an ID parade is anticipated as witnesses feel strongly that not only would they be identified outside the premises but also inside the premises by the staff that were threatened."
As to the offence at the Victoria Wine Company's premises at Berwyn Avenue, Coventry, it is stated:
"On the 16 th February 1999 [the premises were] the subject of an attempted armed robbery.
Enquiries have been made in respect of this and from video evidence it transpires that John Paul Tierney was in the store some minutes before the robbery or attempted robbery took place. The offence is shown on the security video and it can clearly be seen that the person responsible for the attempted robbery, having concealed his identity, is still wearing the same jeans and trainers as was Tierney… some minutes before. Expert video evidence will be available to prove that these persons by way of clothing are identical. There is other circumstantial evidence that supports the suspicious nature of his initial entrance to those premises. Tierney will be arrested for this offence and interviewed and subsequently charged."
A robbery had also taken place on 12 January 1999 at the Victoria Wine Company in Winsford Avenue, Coventry. As to the offence at these premises, the memorandum stated:
"The offenders entered the premises wearing balaclavas and coats, threatened the staff and stole monies. Again this was...
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