R v Rankine
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MANN,THE LORD CHIEF JUSTICE |
| Judgment Date | 03 March 1986 |
| Neutral Citation | [1986] EWCA Crim J0303-3 |
| Judgment citation (vLex) | [1986] EWCA Crim J0303-17 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4809/C/85 |
| Date | 03 March 1986 |
[1986] EWCA Crim J0303-17
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Mann
and
Sir Roger Ormrod
No. 4809/C/85
MR. R. OFFENBACH appeared on behalf of the Appellant.
MR. P. PURNELL, Q.C. and MR. H. TORRANCE appeared on behalf of the Crown.
On 10th July 1985 in the Crown Court at Inner London Session' House before His Honour Judge Crowther and a jury, the appellant was convicted of unlawfully supplying a controlled drug to another person, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971. He was sentenced to eighteen Months' imprisonment.
He appeals against his conviction with the leave of the single Judge.
The prosecution case was a simple one. It was that the appellant on 14th March 1985 sold cannabis outside a shop in Railton Road, Brixton on ten different occasions in the course of an hour. The case was based upon the observation and identification of two police officers, who were in an observation post watching the shop. Those officers passed to other officers a radio message of what they had seen.
The appellant was arrested inside the shop, and the arresting officers said that they found upon him 107 grammes of cannabis and £274 in cash.
At the beginning of the trial, and in the absence of the jury, counsel for the prosecution applied to the learned Judge for his ruling that the two officers who conducted the surveillance operation should not be asked to identify the location of the observation post. The reason for the application was given as being the public interest, in that an observation post loses its utility when its location is known and in that the persons who provided the post would, or could, be placed in jeopardy from persons who disapprove of co-operation with the police.
After argument the learned Judge gave his ruling in these terms:
"This is a case in which Mr. Torrance wants to adduce evidence of observations without being in a position in which he or his witnesses reveal the exact point from which those observations were made. In a case in which those observations are crucial, of course, the defence reaction is that it is fettering them unfairly in that in the ordinary way cross-examination as to the vantage point, with a view to the jury knowing the disadvantage of it -the various disadvantages of it, if any - is ordinary and to be expected.
"The objection to the revelation of the vantage point is that in this particular area, not only immediately locally but over a rather wider area too, co-operation of this nature is extremely important from the public, not only to this case but to future cases, and that the public interest is that those who have co-operated by offering their premises or facilities to the police for such observations is to be encouraged. There is also a risk, of course, of reprisal.
"All these are somewhat speculative but in balancing the two arguments I am firmly of the view that, whereas I will not refuse to allow any question to be asked, I shall not compel any question to be answered which the officer objects to answering on the grounds that it will embarrass his sources of co-operation. So any question may be asked of the officers but they will be the judges of that one point, namely, whether the question imperils the person or persons from whom they had co-operation into the affording of the vantage point. If they rely upon that matter to refuse to answer a question as to the point at which their observation was made, I will permit them to take that course and will not order them to answer the question."
In the event some questions about the observation were both asked and answered. It was said by the officers that they were in a building about 65 yards from the shop and that they had the use of an image intensifier. The location however remained unknown to the jury, press and public.
Mr. Offenbach for the appellant raises before this Court a single ground of appeal. It is that the learned Recorder was wrong in law in permitting the prosecution not to disclose the observation point from where the identification was made.
The single ground raises a point of general importance. We were told that surveillance is a vital form of criminal intelligence and that much of it is carried out from static positions in business premises or private houses. Such positions cannot be occupied without the co-operation of members of the public. We can readily understand that members of the public would be unwilling to co-operate if the identity of their premises was disclosable in Court.
For many years it has been well recognised that the detection of crime is assisted by the use of information given to the police by members of the public. Those members may be either professional informers, who give information regularly in the expectation of financial or other reward, or public spirited citizens who wish to see the guilty punished for their offending.
It is in the public interest that nothing should be done which is likely to discourage persons of either class from coming forward. One thing which above all others would be likely to prevent them from coming forward with information would be the knowledge that their identity may be disclosed in Court. Accordingly for many years it has been the rule that police and other investigating officers cannot be required to disclose the sources of their information.
In The Attorney General v. Briant (1846) 15 M. and W. 169, Chief Baron Pollock then regarded the rule as having been extant for 50 years. He said at page 184: "It has been, however, contended for the defendant, that, admitting that a witness cannot be asked who was the informer, the informer being a third person, yet he may be asked whether he was himself the informer, and gave the information. On the part of the Crown it was replied, that such a question, addressed to each witness in turn, might be the means of discovering the informer; and that, if the principle and object of the rule was to prevent the informer from being discovered, the question cannot any more be put directly to the witness, whether he himself was the informer, than whether a third person was. It was alleged, and, as far as we can learn or have had any experience, it was correctly alleged, that the practice of of this Court has been in accordance with this rule. There is no direct authority either way; but the rule clearly established and acted on is this, that, in a public prosecution, a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for fifty years, and although it may seem hard in a particular case, private mischief must give way to public convenience. This is the ground on which the decision took place in Hardy's case and in Watson's case; and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer, and therefore that the question could not be asked."
In Marks v. Beyfus (1890) 25 Q.B.D. 494, Lord Esher, Master of the Rolls, said: "What, then, is the rule as to the disclosure of the names of informants, and the information given by them in the case of a public prosecution? In the case of Attorney General v. Briant 15 M. & W. 169, Chief Baron Pollock, discussing the case of Rex v. Hardy 24 St. Tr. 199, says that on all hands it was agreed in that case that the informer, in the case of a public prosecution, should not be disclosed; and later on in his judgment, Chief Baron Pollock says:", and the Master of the Rolls quoted the passage to which we have referred.
The Master of the Rolls continued: "Now, this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches; I think it was a public prosecution, and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not."
Lord Justice Bowen at page 499 said this: "The only question which remains for our decision is, whether the Director of Public Prosecutions was right in objecting to answer the questions put to him, and whether the judge was right in saying that on grounds of public policy he ought not to be asked to disclose the name of his informant. That depends upon whether this was a public prosecution; if so, then neither upon the criminal trial nor upon any subsequent civil proceedings arising out of it, ought the Director of Public Prosecutions, upon grounds of general policy, to be asked to disclose the name of his informant. The only exception to such a rule would be upon a criminal trial, when the judge if he saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice, might relax it in favoren innocentiae; if he did not do so, there would be a risk of innocent people being convicted.
The most recent formulation of the rule is in the judgment of Lord Justice Lawton who delivered the judgment of this Court in R....
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Subject Index
...[1995] 2 Cr App R 77 ......... 90R v Randall [2003] EWCA Crim 436........................................................ 202R v Rankine [1986] QB 861 ...............124R v Registrar General, ex p. Smith[1991] 2 QB 393, CA ......................193R v Registrar General for Births,Deaths and......
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Table of Cases
...353 R. v. Rahey, [1987] 1 S.C.R. 588, 39 D.L.R. (4th) 481, 33 C.C.C. (3d) 289 ....267, 268 R. v. Rankine, [1986] 2 All E.R. 566 (C.A.) .............................................................. 175 R. v. Rao (1984), 9 D.L.R. (4th) 542, 4 O.A.C. 162, 12 C.C.C. (3d) 97 (C.A.) ........ 255......
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Privilege and Search and Seizure
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