R v Agar

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE MUSTILL
Judgment Date21 July 1989
Neutral Citation[1989] EWCA Crim J0721-2
Judgment citation (vLex)[1989] EWCA Crim J0721-5
Date21 July 1989
Docket NumberNo. 89/1441/W4

[1989] EWCA Crim J0721-2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

Lord Justice Mustill

Mr. Justice Nolan

and

Mr. Justice Saville

No. 89/1441/W4

Regina
and
Vincent Raymond Agar

MR. M. O'NEILL appeared on behalf of the Appellant.

MR. T. ROBERTS appeared on behalf of the Crown.

1

REASONS FOR JUDGMENT

2

(As agreed by the Judge)

LORD JUSTICE MUSTILL
3

In this appeal, brought with the leave of this court, the appellant, Vincent Raymond Agar, appeals against a conviction on a count of possessing a controlled drug with intent to supply. At the conclusion of the argument we intimated that we would allow the appeal and quash the conviction, and we now give our reasons for taking that course.

4

The underlying facts are as follows: four police officers executed a warrant at about 11.45 in the morning on the 26th February, 1988 to search a private house in Middlesbrough, in which the occupier, whom we must call "X", was present in the course of the search. It was common ground that, as a result of information received, the police officers knew that the appellant, whom they believed to be a drug dealer at a fairly low level of involvement, would be coming to the house to supply X with drugs. They thought it expedient to achieve two objects at the same time by searching X's house to see if they could find any evidence of drug participation there, and also to catch out the appellant if he appeared with drugs.

5

At about ten minutes past noon the appellant did arrive at the house and, finding police officers there, he made off. According to the evidence for the prosecution, he was seen to throw something away as he ran, and one of the officers gave evidence that after a search he had found the object which the appellant had thrown away, which proved to be a packet, subsequently discovered to contain drugs, amphetamine and glucose, in the form of a powder.

6

The appellant was searched, and it was found that he was in possession of ten video tapes and also a substantial sum in cash. He was arrested and taken to the police station. He did not then complain, as he might have done, to any officer that the drugs had been planted in the garden so as to facilitate a conviction for possession with intent to supply. Afterwards the appellant's home was searched in his presence, and there was a struggle between the appellant and some officers, and the case for the prosecution was that he had acted suspiciously on that occasion and that traces of amphetamine were found in the kitchen of the house. The appellant was for saying that he had not, as the police had suggested, tried to dispose of what are now usually called paraphernalia of drug-taking activities when his house was searched. We do not go into that because it is of no real materiality to the present problem.

7

The essence of the defendant's case, as it subsequently developed, was that the evidence against him was a fabrication. He had never had any drugs about him when he went to the house of X. The drugs found in the garden had been planted there by the police as part of a plot to secure a conviction.

8

Now allegations that drugs have been planted are by no means unknown, but this particular version appears at first sight especially thin, for it would be asking the jury a good deal to accept as a possibility that the police having gone to search the house of X should find the innocent appellant arriving whilst they were there, and having for some reason furnished themselves with quantities of drugs, should for some other reason decide to attribute them to this casual visitor.

9

In fact the defence which the appellant wished to run was more circumstantial. In essence it asserted a prior arrangement between the police and X. The latter was subject to a suspended sentence for dealing in drugs, and his recent arrest put him in peril of prison. He was therefore anxious to help the police by naming his suppliers, and indeed to go further by causing the appellant to arrive whilst the police were in the house. Hence an unusual telephone call, in the course of which, according to the appellant, X had asked him to bring some video tapes to X's house, notwithstanding that X had only the previous evening borrowed some tapes from the appellant, and had gone so far as to offer to pay the appellant's taxi fare if he came at once. Hence also, so the defence alleged, the fact that the police were already there when the appellant arrived within a few minutes of the call: a circumstance which suggests (so the defence maintained) that the call itself was made when the police were in the house. When the appellant duly arrived with the videos but without the drugs, the police were in a position to deploy false evidence to secure his conviction.

10

The difficulties which this line of defence would encounter were obvious, but it was not wholly impossible that the jury might, by effective cross-examination of the police officers, be induced to feel some doubts about the matter. There were of course many different ways in which such a cross-examination could have been conducted, but counsel for the Crown on the present appeal has not been able to suggest, nor have we been able to devise, any way in which it could have been mounted without, at the very least, a suggestion that X had told the police that the appellant would be coming to the house in response to a telephone call.

11

This fact is the source of the present problem, which first came to the surface when counsel for the prosecution told Mr. Hazell, who was then acting for the appellant, for his ears alone, that X was a "police informer". We pause at this stage to note that there is a potential ambiguity in this expression. There are some people, no doubt comparatively few in number, who for reasons of personal gain furnish a regular supply of information to police officers, which is very important in the prevention and detection of crime. The identity of these informers is for obvious reasons jealously guarded. The supply of information would dry up at once, as soon as the person's practice of informing was known. But there are other instances, much more numerous, where in relation to a particular offence someone passes information to the police, usually to get himself out of difficulties with the police, or to seek favours from them in relation to that or some other offence. There, the interests of justice, and also of expediency, demand that the knowledge that the information came from the informant should be concealed from the public and from the defendant.

12

It is possible that in the present case there was at least for a time some misunderstanding between those concerned with the trial as to the type of informer which X was acknowledged to be, and that this had some part in the course of events as it was to develop. Be that as it may, we now know that the prosecution were not intending to do more than indicate that the information about the appellant's impending arrival had been given to the police by X – a piece of information which would not have surprised the appellant if he had been told about it.

13

Resuming the narrative, the next material event was that the prosecution opened the case on the lines that whilst the police were searching X's house for drugs, the defendant had the misfortune to come calling. Since the appellant's instructions to counsel were that he had been set up by X and the police in concert, Mr. Hazell began to cross-examine the first of the police witnesses to this effect. Afterwards, at the suggestion of counsel for the prosecution, both counsel went to see the judge in his private room. Prosecuting counsel at once explained that he had been told by the officer in charge of the case that the reason why they were present at X's house was that X was a police informer and had told them that the appellant would be coming round with an ounce of amphetamine to deliver; also that since they believed X to be involved in drugs, they wanted to search his premises as well. Prosecuting counsel then made it clear that if Mr. Hazel were to ask of a senior officer "were you aware that in fact Agar was set up for this offence", and if the officer were to answer that question truthfully, he would be identifying an informer.

14

There followed a discussion of the problem, culminating in a ruling in these terms, which is to be found in the transcript at page 6, E to F: "(Judge Crawford) I think the answer is this. Do not put questions – you must not put questions as to how the information was obtained. You are entitled to ask whether or not they knew that Agar was coming to that spot, but you must not ask how it was that they knew that. You must not ask questions which are designed to elicit who the informer was, and we will carry on like that. I do not think it is necessary here that the questions should be asked, since in your case, the nub of which is that the stuff was planted on him, can be put without the identity of the informer becoming crucial. And I think you should proceed on that basis."

15

Mr. Hazell was by this time in a considerable difficulty. The information first conveyed in confidence as between counsel was now known to everyone involved in the case except the appellant and his solicitor. The appellant was keenly interested to find out what had happened in chambers, and would have been even more interested if he had heard the truth about X. Yet Mr. Hazell felt that he could not tell him. After considering the matter overnight, and discussing it with colleagues, Mr. Hazell sought another meeting with the judge to clarify his duties towards his client. In the course of this meeting there were the following exchanges. I read...

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