R v McEvilly
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 13 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J1213-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2139/A/73 |
| Date | 13 December 1973 |
[1973] EWCA Crim J1213-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice James
and
Mr. Justice Michael Davies
No. 2139/A/73
No. 2250/A/73
MR. J. LLOYD-ELEY, Q.C. and MR. G. N. GARDNER appeared as Counsel for the Appellants.
MR. J. HAZAN, Q.C. and MR. D. BLAIR appeared as Counsel for the Crown.
These two Appellants McEvilly and Lee were convicted at Middlesex Guildhall Crown Court on the 19th April, 1973, McEvilly on count 2 which charged him with dishonestly receiving stolen goods and Lee on count 3 which charged him with dishonestly assisting in the retention of stolen goods. The learned Judge sentenced McEvilly to three years' imprisonment and Lee to eighteen months' imprisonment.
The original indictment upon which they were both charged contained five counts, the first of burglary, the second and third I have already stated – the one against McEvilly and the other against Lee – the fourth of conspiracy to steal and the fifth of conspiracy to handle stolen goods dishonestly. The learned Judge discharged the jury from giving verdicts upon any counts other than those upon which the two Appellants were respectively convicted.
They appeal now against their convictions by leave of Mr. Justice Rees. Each originally applied for leave to appeal against sentence, but the learned single Judge refused leave to appeal against sentence. Those applications have not been renewed. Mr. Justice Rees gave leave to appeal against conviction because he said in a note which was made available to Counsel for the Appellants: "Although I do not think the trial Judge erred in his decision to admit the disputed evidence or in his summing-up to the jury, I have given leave to appeal against conviction because the point of law as to entrapment and admission of evidence is worthy of consideration by the Full Court." Thus the learned Judge gave leave because he thought, contrary (with all respect) to the view which this Court takes of the matter, that this case raises an important question of law in relation to what is sometimes, not perhaps with complete accuracy, called the doctrine of entrapment. I shall return to that matter later.
It is necessary before I come to deal with the main part of Mr. Lloyd-Eley's argument on behalf of the Appellants to explain how it was that this matter arose. As a result of certain information given to a police officer by an informer, whose name was Whiteside, the police officer concerned, whose real name was Sergeant Holman but who passed under the name of 'Jim', met McEvilly, whom he knew as 'Micky', and Whiteside at the Great Western Hotel at Paddington. There was some dispute whether that meeting took place on Tuesday the 7th or Wednesday the 8th November, 1972. The date does not in the view of this Court matter in the least though it may have assumed some importance at the trial in connection with the credibility or otherwise of Sergeant Holman. According to Sergeant Holman he, having been introduced to McEvilly, said to him, "Everything all right?" to which the Appellant replied, "I have something that you will be interested in. It is a load of booze, all at £20 a lump." McEvilly was alleged to have said that there was a mixture and he would leave it to 'Jim' to ask for what he wanted. He added that there were some 1500 cases. Jim, i.e. Sergeant Holman, asked when the stuff would be delivered and was told the following Saturday or Sunday. McEvilly said it did not matter how much the officer took there were lots of other people who would take it and he had done other loads in lots of fifty or sixty cases but this one he wanted to do in a couple of big lots. Holman agreed to take 400 scotch, 200 bacardi, 200 brandy and 200 vodka and he was assured that all the bottles would be labelled for the home market. He was asked for payment in used £5 and £10 notes. The Sergeant was told that he would receive a phone call when the goods would be delivered. He then went out to a lavatory and a telephone number was put on a piece of paper. The Officer said he had a friend at that number through whom he could be contacted. McEvilly said the first message would be "baccy is coming over" and the second would tell the officer when. The Police Officer, McEvilly and Whiteside, the informer, then went in McEvilly's car so that the Sergeant could show them the place where the lorry which would contain the goods should be met.
That account of the conversation was, of course, challenged. Not only was it challenged but the whole of the Sergeant's evidence in this respect was claimed to be inadmissible and objection was taken on behalf of the Appellant to its being led. The learned Judge, Judge Trapnell, obviously found himself in some difficulty on this issue but (rightly in the view of this Court) he decided to hear the evidence in the absence of the jury and thus held a trial within a trial.
McEvilly gave evidence. Holman also gave evidence. In the end (it is not at this juncture necessary to go into more detail) the learned Judge, after considering the arguments of Counsel, decided first that he preferred the evidence of the Sergeant to that of the Appellant and secondly that in his discretion he proposed to admit the evidence.
The ground upon which the objection was taken was this. It was said that Sergeant Holman was acting as an agent provocateur. It was contended that at the time of the conversation, be it the 7th or 8th November, no offence such as that ultimately charged, namely dishonest handling, had taken place or could possibly then have been foreseen as likely to take place. What ultimately happened was that on the following Saturday or Sunday the premises of Messrs. Seagram, the well-known distillers, were broken into and some £25,000 worth of spirits were stolen. A lorry had been hired meanwhile to remove the stolen spirits. That lorry with her delivery was trapped and the men arrested.
What was said was that on the 7th or 8th November there was at most a possibility of an offence occurring thereafter but that there was no certainty of the offence occurring thereafter and that what the police officer did gave rise certainly to the possibility and perhaps to the probability that what subsequently happened would not or might not have happened but for what he said and did on the 7th or 8th November. Thus it was said he was an agent provocateur and his evidence was either inadmissible or, if not strictly inadmissible, was of such a prejudicial character to the Appellant that the trial Judge ought in the exercise of his discretion to have refused to admit it.
The Judge, as I have already said, admitted the evidence and left the case to the jury. Had he refused to admit it there was other evidence (less strong) to go to the jury. But be that as it may, the trial proceeded and the Appellants gave evidence. At the end of their evidence Counsel invited the learned Judge to discuss with them in the absence of the jury how he proposed to direct the jury in relation to the matters which I have already indicated. It was at this point in the trial and not on the occasion of the trial within the trial that what has been called the doctrine of "entrapment" first was canvassed.
At one point Counsel for the Appellants invited the Judge to ask the jury a specific question in relation to the facts that were in dispute regarding the initial conversation. But (in the view of this Court quite rightly) the learned Judge refused since this would have involved asking the jury to return a special verdict. Counsel also invited the learned Judge to leave to the jury the defence of "entrapment", the argument being that if these men or either of them had been entrapped, or might have been entrapped, into doing that which they ultimately did as a result of the police officer's activities on the 7th or 8th November, that would, as a matter of law, constitute a defence to the charge.
The learned Judge, (again in the view of this Court quite rightly for reasons I shall explain in a moment) did not leave that defence to the jury. On the contrary he gave the jury no direction on the lines of that which Counsel invited him to do. The jury, after a most careful and lucid direction, had no hesitation in convicting both the Appellants.
So much for the bare facts of this case. I now turn to Mr. Lloyd-Eley's argument to this Court. Mr. Lloyd-Eley accepted that in this...
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R v Sang (on Appeal from HM Court of Appeal (Criminal Division))
...as he was, by recent decisions of the Criminal Division of the Court of Appeal that "entrapment" is no defence in English law ( Reg. v. McEvilly & Lee [1974] Crim.L.R. 239; Reg. v. Mealey & Sheridan [1974] 60 Cr.App.R. 59), counsel for the appellant sought to achieve by a different means ......
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R v Mealey
...26 The same point is to be found in a recent decision of this Court, still, as I understand it, unreported, which is the case of Reg. v. McEvilly & Lee, heard in this Court on the 13th December, 1973. 27 This was a case in which a man had been convicted of handling stolen property, and it w......
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...however, I will deal with the narrower point of view upon which this appeal actually turns. I can do so briefly. The decisions in Reg v. McEvilly, 60 Cr App R 150 and Reg v. Mealey, 60 Cr App R 59 that there is no defence of ‘entrapment’ known to English law are clearly right. Many crimes......
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R v Sang
...what has been obtained is relevant to the issue being tried." 16 Fifth, the so called doctrine of entrapment has no place in English law. McEvilly (1974) 60 Cr.App.R.150 at page 156; Mealey and Sheridan, (1974) 60 Cr.App.R.59; and Willis, 6th November 1975 (unreported, but see pages 2 and ......