R v Maxwell
| Jurisdiction | England & Wales |
| Judge | LORD DYSON,LORD RODGER,LORD MANCE,LORD COLLINS,LORD BROWN |
| Judgment Date | 20 July 2011 |
| Neutral Citation | [2010] UKSC 48 |
| Date | 20 July 2011 |
| Court | Supreme Court |
[2010] UKSC 48
Lord Rodger
Lord Brown
Lord Mance
Lord Collins
Lord Dyson
THE SUPREME COURT
Michaelmas Term
On appeal from: [2009] EWCA 2552
Appellant
Patrick O'Connor QC
Mathew Sherratt
(Instructed by Harrison Bundey)
Respondent
David Perry QC
Louis Mably
(Instructed by Crown Prosecution Service)
Introduction
The appellant and his brother, Daniel Mansell, were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant's tariff in respect of his life sentence for murder was set at 18 years. On 1 December 2009, the Court of Appeal (Criminal Division) (Hooper LJ, Cooke and Swift JJ) quashed the convictions following a reference on 25 November 2008 by the Criminal Cases Review Commission ("CCRC") on the ground that the convictions had been procured by gross prosecutorial misconduct on the part of the police.
The Court of Appeal then had to decide whether to order a retrial. Section 7(1) of the Criminal Appeal Act 1968 as amended by the Criminal Justice Act 1988 provides:
"Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried"
After balancing the public interest in convicting those guilty of murder against the public interest in maintaining the integrity of the criminal justice system, the court decided to order a retrial. The question that arises on this appeal is whether they were right to do so.
Outline of the facts
What follows is the barest outline of the facts. A fuller account appears at paras 65 to 90 of the judgment of Lord Brown. The main prosecution witness at the trial was Karl Chapman. He is a professional criminal and a supergrass. In late 1995 and early 1996, Chapman and the appellant were together in prison. The appellant was serving an 8 year sentence for a series of robberies and Chapman was awaiting sentence, having pleaded guilty to more than 200 offences of robbery. On 3 June 1996, the appellant was released from prison. On 11 June 1996, a robbery took place at the home of two elderly brothers, Bert Smales aged 67 and Joe Smales aged 85. The incident was not reported to the police, but it was later established that the robbers were masked, used violence to extract money from the Smales brothers and stole more than £1,000.
On 13 October 1996, the Smales brothers were the victims of a second robbery committed in similar circumstances to the first. Both brothers were subjected to physical violence. Joe Smales sustained injuries to the head which resulted in a fractured jaw, internal bleeding and a fracture of the cervical spine. He died in hospital on 7 November 1996 from pneumonia and deep vein thrombosis which were the direct consequence of the attack.
Between December 1996 and April 1997, Chapman provided the police with information and witness statements implicating the appellant and Mansell. The appellant and Mansell were charged with the robberies of both of the Smales brothers and the murder of Joe Smales.
At the trial, Chapman's evidence (which occupied one week) was central to the prosecution case. The defence sought to discredit him by suggesting that he was expecting benefits of some kind from the police and that he therefore had an interest in securing the convictions of the appellant and Mansell. Chapman vigorously denied these suggestions.
Following the convictions, there were allegations in the local press that the police were planning to pay Chapman a large sum of money upon his release from prison. On the basis of these allegations, the appellant and Mansell applied for leave to appeal their convictions. Leave was refused by a single judge on 30 July 1998. The applications for leave to appeal were renewed in early February 1999 and adjourned on two occasions to allow the CPS to supply further information. On 5 November 1999, an ex parte hearing was held on a public interest immunity application by the prosecution. In the course of the hearing, senior police officers gave evidence to the effect that a reward of £10,000 had been set aside for Chapman, but that he was not aware of it. The Court of Appeal accepted this evidence and on 13 December 1999 dismissed the renewed applications for leave to appeal.
The next significant event was the decision by the CCRC to investigate the case. The North Yorkshire Police carried out detailed investigations into the activities of the police. Their report formed the basis of the CCRC report in November 2008. The findings of the report, which have not been challenged, reveal that the police systematically misled the court, the CPS and counsel by concealing and lying about a variety of benefits received by Chapman and his family. These included not only financial reward, but, inter alia, visits to brothels and permission to consume drugs in police company. Furthermore, allegations of violent attacks by Chapman were not investigated, still less the subject of prosecutions. The clear conclusion of the investigation by North Yorkshire Police was that a number of senior police officers involved in the Smales investigation had conspired to pervert the course of justice. They had deliberately concealed information from the court; they had colluded in Chapman's perjury at trial; they had lied in response to enquiries following conviction; and they had perjured themselves in the ex parte leave hearing in the Court of Appeal. It was in the light of its findings that on 25 November 2008 the CCRC referred the case back to the Court of Appeal.
The appellant had meanwhile made a series of important admissions of guilt to different persons between October 1998 and September 2004. These are summarised by Lord Brown at paras 85 to 90 of his judgment. The Court of Appeal said that these admissions provided "clear and compelling" evidence of the appellant's guilt of the murder and the robberies. That assessment has not been challenged in the present appeal.
As I have said, the Court of Appeal allowed the appellant's appeal against conviction. They concluded that, if during the trial it had become clear that the trial court had been deliberately deceived about the circumstances relating to Chapman, the trial judge might well have stayed the prosecution as an abuse of process. Alternatively, the judge might have applied section 78 of the Police and Criminal Evidence Act 1984, and excluded the evidence of Chapman altogether, in which case the appellant and Mansell would have been acquitted. In these circumstances, the decision to quash the convictions was inevitable. More difficult was the question whether or not to order a retrial.
The question for the Court of Appeal was whether, in the light of the unchallenged findings of the CCRC and the clear and compelling evidence of the appellant's guilt of a shocking murder, the interests of justice required a retrial. In particular, the Court of Appeal had to decide whether the police misconduct so tainted the criminal process that it would on that account not be in the interests of justice to order a retrial. The arguments before us proceeded on the basis that, in substance, the issue for the Court of Appeal was whether a retrial would be an abuse of process analogous to the question whether a trial at first instance should be stayed on the grounds of abuse of process.
Retrials following prosecutorial misconduct
It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will "offend the court's sense of justice and propriety" (per Lord Lowry in R v Horseferry Road Magistrates' Court, Exp Bennett [1994] 1 AC 42, 74G) or will "undermine public confidence in the criminal justice system and bring it into disrepute" (per Lord Steyn in R v Latif and Shahzad [1996] 1 WLR 104, 112F).
In Latif at page 112H, Lord Steyn said that the law in relation to the second category of case was "settled". As he put it:
"The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42Ex parte Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex parte Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court...
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Subject Index
...322, CA . . . . . . . . . . 97R vMakanjuola [1995] 1WLR 1348 . . . . . . . . . 159R v Marquis and Graham see R v HorncastleR vMaxwell [2010] UKSC48 . . . . . . . . . . . 268–270R v Mayers [2008] EWCA Crim 2989, [2009] 1 WLR1915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......