R v Keane
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 14 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0314-24 |
| Docket Number | No. 92/6617/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 1994 |
[1994] EWCA Crim J0314-24
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Auld and Mr Justice Mitchell
No. 92/6617/Y4
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR MIO SYLVESTER appeared on behalf of THE APPELLANT
MR STEPHEN KRAMER appeared on behalf of THE CROWN
Monday 14 March 1994
THE LORD CHIEF JUSTICEThis case concerns the problems arising when a trial judge is invited by the defence to order disclosure of documents and is invited by the Crown to refuse such disclosure in the public interest.
On 23 October 1992, at the Central Criminal Court, before His Honour Judge Rogers QC, the appellant was convicted of two offences of having custody or control of counterfeit notes (counts 1 and 2 —count 1 by a majority of 10 to 2) and one offence of having custody or control of counterfeiting materials and implements (count 3).
On 30 October 1992, he was sentenced to four years imprisonment on count 1, five years imprisonment on count 2 and six years imprisonment on count 3. Those sentences were ordered to run concurrently and an order was made for the forfeiture of the counterfeit currency.
There had originally been two co-accused, Ian Shipman and John Dunbar. Shipman and Dunbar were dealt with before the appellant. All three had been committed for trial together on bail on 8 May 1991. The trial was fixed for 7 October 1991. The appellant failed to surrender on that date. The next day, 8 October 1991, the case against Shipman and Dunbar proceeded with the appellant still absent. A submission was made to the trial judge (His Honour Judge Gordon) on behalf of both Shipman and Dunbar that the prosecution should disclose the sources of their information. Having heard the nature of the defence of each of the two defendants, the learned judge ruled in favour of disclosure in Shipman's case but not in the case of Dunbar. The Crown thereupon offered no evidence against Shipman who was discharged. Dunbar changed his plea to guilty on count 1. He also pleaded guilty on a second indictment to possessing a firearm without a certificate. He was sentenced to consecutive sentences of three years and 12 months imprisonment. The appellant was not re-arrested until 7 July 1992 and he was tried alone over five days in October 1992. His appeal against conviction is brought by leave of the Single Judge.
The chronology of the case was as follows: On 24 November 1990, a motorist had been assaulted in Birmingham and the assailant had driven away in a Mercedes car of which the number was recorded at the time.
On 16 February 1991, the police obtained a warrant permitting them to search the appellant's home in Birmingham on the grounds that there was reasonable suspicion that he was involved in a currency counterfeiting operation.
About 10.25 p.m. on 19 February 1991, the appellant was driving a Mercedes car in Edgware Road near Marble Arch with Dunbar as front seat passenger and Shipman in the rear. The car belonged to Shipman and bore the registration number recorded on 24 November 1990. Two police officers, DC Page and DS Watters with others in attendance, stopped the vehicle on suspicion that one or other of the occupants may have been the assailant on 24 November. According to the police, the appellant opened the driver's door and was seen to place an envelope into the pocket on the door. The three men were arrested in connection with the assault and taken to a police station. There, the car was searched and four separate items were found. First, a white envelope containing two negatives for forging $100 US notes was recovered from the driver's door pocket (count 3). Secondly, a brown envelope containing 247 forged $100 US notes was found in the glove compartment (count 2). Thirdly, 1504 forged US dollar notes in a brown paper bag contained in a white plastic bag were recovered from the rear seat footwell under the front passenger seat (count 1). Finally, a piece of paper with US dollar notes printed on it in a man's leather wallet was found in the front passenger footwell.
Four finger marks on the outside of the white envelope were found to have been made by the appellant and were said by the Crown to indicate that the envelope had been handled more than once by him.
Meanwhile, a search of the appellant's address in Birmingham, pursuant to the search warrant which had been obtained three days earlier, took place at 12.45 a.m. on 20 February. It revealed a black briefcase containing the appellant's business documents but including a white envelope with serial numbers consistent with the numbers necessary to make counterfeit US bank notes.
The appellant's immediate response was that what had been found in the car had nothing to do with him.
In interview, the appellant said he did not know how the negatives came to be in the car. He saw the envelope containing them in the pouch in the driver's door. He admitted examining the envelope. He thought it was a birthday card but on seeing that it was a dollar imprint, did not ask Dunbar about it. He said he had seen the envelope in the glove compartment at about 9 p.m. that night. The first thing that occurred to him was that it may have contained dollars. He denied any knowledge of the other two items found. He said he had come to London to see a girlfriend and had spent the afternoon with her in Covent Garden and in a wine bar, rejoining his two co-accused in the evening preparatory to driving home.
The appellant did not give evidence on his own behalf. The scope of the defence cross-examination of the police officers must be mentioned later. But in the result, it was put to them that they had not seen the appellant place the envelope in the car door pocket. It was suggested that the counterfeit items had been given to Dunbar by undercover officers with a view to turning Dunbar into an informer. Essentially, the case put was that the appellant was merely the driver who knew nothing of the incriminating articles and merely happened to be in the wrong place at the wrong time.
The grounds of this appeal are based solely on the learned judge's rulings as to disclosure and the scope of cross-examination he permitted. At the start of the trial, the judge was invited to order the prosecution to disclose the sources of the information leading to the appellant's arrest on 19 February. Mr Sylvester pointed to the unusual circumstances of that arrest. A number of officers were involved, some quite senior. The reason given for the arrest concerned a minor assault which had occurred some months earlier. Yet three days before the arrest, a search warrant relating to counterfeiting had been obtained which had not been executed before the counterfeit notes were found in the car. Counsel accepted that the general rule was in favour of protecting the identity of informers, but he cited Hennessey 68 Cr App R 419, and Agar 90 Cr App R 318.
In Hennessey, the court observed at page 425:
"The courts appreciate the need to protect the identity of informers, not only for their own safety but to ensure that the supply of information about criminal activities does not dry up. In general this should be the approach of the court; but cases may occur when for good reason, the need to protect the liberty of the subject should prevail over the need to protect informers. It will be for the accused to show that there is good reason."
In Agar, Mustill LJ said at page 324:
"Now it is certainly not the case that a defendant can circumvent the rule of public policy so as to find out the name of the person who has informed on him, for his own future reference and possible reprisal, simply by pretending that something is part of his case, when in truth it adds nothing to it. And it may be —and we emphasise 'may' —that if the defence is manifestly frivolous and doomed to failure, the trial judge may conclude that it must be sacrificed to the general public interest in the protection of informers. We do not see the present case in this light. There was a strong and, absent to any contrary indication, overwhelming public interest in keeping secret the source of information; but as the authorities show, there was an even stronger public interest in allowing a defendant to put forwards a tenable case in its best light."
In reliance particularly on the latter passage, Mr Sylvester submitted that there were in the present case various possibilities such as that the appellant had been "set up", and that to...
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