R v Chalkley ; R v Jeffries
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD |
| Judgment Date | 18 December 1998 |
| Judgment citation (vLex) | [1997] EWCA Crim J1219-33 |
| Docket Number | No. 96/8179/X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 December 1998 |
[1997] EWCA Crim J1219-33
Lord Justice Auld
Mr Justice Ian Kennedy
and
Mr Justice Blofeld
No. 96/8179/X2
96/8181/X2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2A 2LL
MR T F H CASSEL QC appeared on behalf of THE APPELLANT CHALKLEY
MR T C E BROWN and MISS R LITHERLAND appeared on behalf of THE
APPELLANT JEFFRIES
MR H MORRISON appeared on behalf of THE CROWN
Friday 19 December 1997
In late October 1996, before His Honour Judge Crane in the Crown Court at Peterborough, the appellants Jeffries and Chalkley stood trial on their pleas of not guilty to a charge of conspiracy to commit robbery between 1st January 1993 and 9th December 1994. The evidence that the prosecution proposed to adduce in support of its case consisted of police observations of the movements of the two men, covertly obtained tape-recordings of their conversations during the period of the alleged conspiracy, the finding in their possession of firearms and other paraphernalia of robbery and certain admissions to prosecution witnesses.
At the start of the trial Mr Richard Benson QC and Mr Timothy Cassel QC, counsel for the appellants, asked the Judge to exclude the tape recorded conversations from the evidence to be put before the jury. They were highly damaging to the defence case, consisting of many discussions planning robberies and referring to past robberies. Mr Benson and Mr Cassel did not challenge their authenticity, content or effect. However, they maintained that they had been obtained unlawfully and in breach of the two men's right to privacy enshrined in Article 8 of the European Convention of Human Rights. They said that the Judge should exclude the evidence under Section 78 of the Police and Criminal Evidence Act 1978 because it would be unfair to them to admit it.
On 24th October 1996 the Judge, having heard evidence about the obtaining of the recordings and surrounding circumstances, rejected the defence submission. Jeffries was so dismayed by the ruling that he failed to surrender to his bail on the following day. However, he did surrender on the next working day, and on 30th October he and Chalkley changed their pleas to guilty. They clearly did so because the Judge's ruling had made hopeless on the facts any defence that they might have sought to advance. And they did so on a basis that was apparently accepted by Mr Howard Morrison, counsel for the prosecution, namely that they had planned robberies with the use of firearms, that they had had firearms, that they had not committed or attempted any robbery, that they had not threatened anyone with the firearms and that they had not been violent to anyone. Mr Benson and Mr Cassel then addressed the Judge in mitigation on that basis and the Judge sentenced each of them to 10 years' imprisonment.
They now appeal against conviction by leave of the Single Judge.
The Issues
The appeal raises four main issues of importance.
The first is whether appellants who have pleaded guilty because the Judge rejected their application to exclude evidence which they considered to render their defence hopeless on the facts, can challenge their convictions by way of appeal, irrespective of the correctness or otherwise of the Judge's ruling.
If they can go behind their pleas of guilty in that way, the second issue is whether it is appropriate for a judge, when deciding under Section 78 whether it would be fair to admit evidence, to conduct a balancing exercise of the sort applicable in applications to stay proceedings for abuse of criminal process.
The third issue is whether an otherwise lawful arrest is unlawful because the motive for it is to enable investigation and/or prevention of other serious crime by the arrested person.
The fourth issue is whether the Court of Appeal can quash a conviction which it considers to be safe but which it regards in some other respect as "unsatisfactory".
The Facts
The circumstances giving rise to the making of the covert recordings, as revealed by the voir dire and found by the Judge, were as follows. On 17th March 1994 watching officers of the Cambridgeshire Police Force saw Jeffries and Chalkley and others set out in the early hours of the morning obviously dressed and equipped to commit robbery. They went to a post office sorting house at St Neots where, on the arrival of a post office van, they made a move towards attacking it. However, they abandoned the attempt and made off when they became aware of the presence of the police. Chalkley later told a prosecution witness of the plan and of its abandonment for that reason.
In June 1994 there was a robbery at a supermarket in Eaton Socon. The Regional Crime Squad, who had just become involved, believed that the appellants were involved and that they were planning more robberies, involving the use of firearms, in the area.
The Squad decided that the threat was so serious that they would only be able to forestall it and bring the two appellants and others to conviction by placing a hidden battery-powered listening and recording device in one of their homes. They decided on Chalkley's home and on a plan to install the device inside it when he and the woman with whom he lived, Shani Carter, and their two young children were absent. The plan was to arrest Chalkley and Carter in connection with another matter and to remove them and their children temporarily from the house. The Judge accepted, on the evidence before him, that the arrest of both in that way was "the only practicable method" of successfully installing the device.
Detective Constable Harrison of the Regional Crime Squad applied to the Chief Constable of Cambridgeshire for authority to install the device in Chalkley's home, making plain how he and his fellow officers intended to go about it. This is how the Judge described this part of the story, at page 5 of the transcript of his ruling:
"… Detective Constable Harrison told me that when he saw the Chief Constable to obtain the authorization they discussed how a listening device might be placed in the home of Mr Chalkley, which was what was desired, and Mr Harrison told me that he mentioned that an enquiry into a credit card matter might be used; the implication is to effect the arrest of adults in the house and enable the police to get in.
It is not suggested by anyone that the Chief Constable specifically authorised that, but he plainly gave his mind to the question of possible methods, according to Mr Harrison, and I accept Mr Harrison's evidence on that point."
On 21st June 1994 the Chief Constable authorised the operation.
The plan to arrest the two in connection with "a credit card matter" did not depend on a "trumped-up" allegation. An officer in the intelligence bureau of the Cambridgeshire Constabulary, WDC Fletcher, had much earlier—in March 1994—received information that Chalkley had been fraudulently using someone else's Barclays Bank credit card to obtain goods and that Carter had been in some way involved. However, such enquiries as she and other Cambridgeshire officers had made into the matter at that time had not gone far, and it had been allowed to lapse without arrest or even interview of either of them. No doubt, police interest in it was overtaken by their investigation of Chalkley's suspected role in the series of armed and planned robberies in the area.
However, in June 1994 DC Harrison and WDC Fletcher decided to resurrect the matter by re-opening their investigation of it with a view to using it as an excuse to arrest both Chalkley and Carter and remove them from the house for long enough to enable the Regional Crime Squad officers to install the listening device. WDC Fletcher initiated some enquiries by Cambridgeshire officers into Chalkley's suspected use of the credit card. The result of the enquiries convinced her and DC Harrison that there were grounds for arresting Chalkley and Carter on suspicion of conspiracy to defraud Barclays Bank, the credit card issuer. WDC Fletcher briefed three officers of the Cambridgeshire force telling them, as the Judge accepted, that she had information of matters that, in her view, gave reasonable grounds for arresting the pair, but told them nothing of the Regional Crime Squad's plan behind it.
On 8th July 1994, early in the morning, those officers arrested Carter in the house and took her to the police station, arranging for a neighbour to look after the children for the day. Shortly afterwards they arrested Chalkley when he finished work at the end of his night-shift and took him also to the police station. The officers informed each of them on arrest that they, the officers, had reasonable grounds for suspecting them to be guilty of conspiracy to defraud Barclays Bank. They also seized Chalkley's keys to the house and to his car and took possession of the car. Shortly afterwards officers from the Regional Crime Squad] used the seized house key to enter the house and install the device. They also arranged the cutting of a copy of the key for their later use.
Meanwhile, at the police station, the Cambridgeshire officers put Chalkley and Carter into custody while they made further enquiries about the alleged credit card offence. Two of them obtained a witness statement from an employee of one of the chain stores concerned. Later in the day—between 4 and 5 p.m.—they interviewed each of them. Chalkley made no comment and Carter denied any involvement. It was not until the evening that they were allowed to return home—Carter at about 6.30 p.m. and Chalkley at about 9.15 p.m., when the police returned to him his keys and his car....
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