R v Mason and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 February 2002 |
| Date | 13 February 2002 |
| Court | Court of Appeal (Civil Division) |
[2002] EWCA Crim 385
Court and Reference:Court of Appeal, 00/5407, 00/4672, 00/4674, 00/5405
Lord Woolf CJ, Mitchell and Keith JJ
Appearances: N Webb for the Crown; R Pearse Wheatley for Wood and Tierney; N Shepherd for McClelland; P Williams for Mason.
Whether a Judge who knew the officer who authorised a covert operation should have sat; whether the recordings should have been excluded for non-compliane with Home Office Guidance
A series of burglaries and armed robberies had taken place in the Coventry area. The victims were subjected to considerable distress and anxiety. The police considered that there were some 9 persons involved in the commission of these offences, but 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 to carry out a covert operation. A report set out the reasons why the police considered such an operation was necessary. The operation would involve the arrest of identified suspects and the installation in the custody suite of a police station of covert audio equipment so that the conversation of the prisoners could be recorded. The Chief Constable gave authority for the operation to take place. Arrests were carried out and those arrested were placed in a cell. Covert taping of their conversations took place. The tapes were relied upon at trial.
The trial Judge disclosed that he knew the Chief Constable (who was a witness in the case) but declined to disqualify himself. The defendants were convicted and they appealed, contending that the Judge ought to have disqualified himself and the covert tape recordings should have been excluded. They relied on Arts 5, 6 and 8 European Convention.
This is the judgment of the Court
1. This appeal raises 2 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
2. Between 4 July 1998 and 1 April 1999, a period of approximately 9 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 9 persons involved in the commission of these offences.
3. 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 2 or 3 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.
4. 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
5. In order to obtain the authority, a report was prepared (ex 151). It set out the reasons why the police considered such an operation was necessary. It was prepared by DS 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 3 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."
6. The 9 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 3 persons who were responsible for offences at 2 premises owned by the Victoria Wine Company and one at the Kwik Fit tyre distributors in Coventry.
7. It was intended that the operation should be in 2 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 3 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 3 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."
8. As to the offence at the Victoria Wine Company's premises at Berwyn Avenue, Coventry, it is stated:
"On 16 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."
9. 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 recorded on video equipment at the premises and one of the youths was wearing a coat which was later taken from Clayton Wood when he was arrested by Warwickshire police on suspicion of robbery at Eathorpe Post Office, Warwickshire. Again expert video evidence will prove that this is the same coat as worn by the offender for that offence."
10. Prior to the offence, a figure very much like the defendant Wood could be seen on the video standing in the doorway of the premises placing a balaclava on his head. It was stated that he would be arrested on suspicion of this offence and that after reviewing all the evidence he would be charged with robbery. McClelland was to be arrested for the Kwik Fit offence and Tierney for the offence at the Victoria Wine Company, Berwyn Avenue. It was stated that the police station which was to be used was suitable for covert tape-recording.
11. On 17 May 1999, on the basis of the information he received, including the Operation Brassica report, the Chief Constable gave authority for Operation Brassica to take place. On 20 May 1999 Wood was arrested for the robbery at the Victoria Wine Company's Winsford Avenue premises. On the same date McClelland was produced for interview from prison in relation to the Kwik Fit robbery and on the following day Tierney was interviewed about the other offence at Victoria Wine's premises and told his fingerprints had been found on a gun box recovered from a car in Tavistock.
12. All 3 offenders were placed in a cell and covert taping of their conversation took place on 21 and 22 May 1999. This resulted in the May covert tapes being produced. Subsequently, on 10 June 1999, the Chief Constable signed an authority for further covert taping. Covert taping of conversations between Wood, Mason and a third person, who is not involved in this appeal, took place on 16 and 17 June and resulted in the June covert tapes being recorded. The June covert tapes contained evidence on which the prosecution relied to establish that Wood had been involved in a robbery at Huttons off-licence, Walsgrave Road, Coventry...
To continue reading
Request your trial
-
Jones v University of Warwick
...to the fact that there are conflicting public interests which have to be reconciled as far as this is possible. The approach adopted in R v Karuna [1955] AC 197 and R v Sang [1980] AC 402 and R v Khan (Sultan) [1997] AC558 which was applied by the Judge has to be modified as a result of the......