Warren v Attorney General for Jersey

JurisdictionUK Non-devolved
JudgeLORD DYSON
Judgment Date28 March 2011
Neutral Citation[2011] UKPC 10
Date28 March 2011
Docket NumberAppeal No 0111 of 2009
CourtPrivy Council
Curtis Francis Warren

and others

and
Her Majesty's Attorney General of the Bailiwick of Jersey

[2011] UKPC 10

before

Lord Hope

Lord Rodger

Lord Brown

Lord Kerr

Lord Dyson

Appeal No 0111 of 2009

Privy Council

Appellant

Orlando Pownall QC

Stephen Baker (Jersey Bar)

(Instructed by Baker and Partners)

Respondent

David Farrer QC

Nigel Povoas

(Instructed by Baker & McKenzie LLP)

LORD DYSON

Introduction

1

On 7 October 2009, the appellants were convicted of conspiracy to import into Jersey 180 kg of cannabis, a class B controlled drug. The drugs had a street value in excess of £1m. Curtis Warren, who masterminded the conspiracy, was sentenced to 13 years' imprisonment. John Welsh, whose involvement it will be necessary to describe in more detail, was sentenced to 12 years' imprisonment. James O'Brien was sentenced to 10 years' and the other appellants each to 5 years' imprisonment.

2

In March 2008, there had been a preparatory hearing before Sir Richard Tucker sitting as a Commissioner. The appellants applied for a stay of the proceedings on the grounds of abuse of process. The basis of the application was that crucial evidence on which the prosecution wished to rely had been obtained as a result of serious prosecutorial misconduct. The Commissioner heard evidence and argument over a period of 4 days and on 20 March dismissed the application. The appellants then made an application for a ruling that the evidence obtained by the use of the audio device should be excluded under article 76(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law") which provides:

"Subject to paragraph (2), in any proceedings a court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it."

3

This application was heard by the Commissioner on 29 April 2008 and dismissed on the same day. The Court of Appeal of Jersey heard a renewed application for leave to appeal against both decisions and dismissed both applications on 14 August 2008 (reasons being given on a later date).

4

The appellants now appeal to the Board, but only against the refusal of a stay. A successful appeal would inevitably lead to the quashing of the convictions.

The facts

5

In June or early July 2007, the States of Jersey Police received intelligence that the appellants were planning to import a large quantity of drugs into Jersey. They believed that Mr Welsh was intending to collect the consignment in Amsterdam and take it to a port in Normandy from where it would be shipped to Jersey. The original plan was for Mr Welsh to take his own Jersey-registered car to St Malo and drive from there to Amsterdam.

6

The police wished to deploy two surveillance devices in the car: a tracking device which would enable them to follow its progress and an audio recording device which would enable them to listen to and record conversations of any occupants in the car. They knew that they would need the authority of the Attorney General to install and use these devices in the car both in Jersey and abroad: see article 33 of the Regulation of Investigatory Powers (Jersey) Law 2005 ("RIPL"). They also knew that they would need the consent of the French, Belgian and Dutch authorities.

7

By 3 July 2007, the police had obtained authority from the Attorney General under article 33 of RIPL to install a tracking and audio device in Mr Welsh's car. On 11 July, the police obtained information that Mr Welsh was planning to undertake the journey imminently. On the same day, DI Pashley and DS Beghin arranged to meet Crown Advocate Jowitt at the Law Officers' Department in Jersey. Mr Jowitt is a senior member of that department. The purpose of the meeting was to arrange for the immediate transmission of letters of request to France, Belgium and The Netherlands. The officers asked Mr Jowitt whether evidence of conversations recorded by means of an audio device would be admissible in a Jersey court if consent for the device had not been obtained from the relevant foreign authorities. Mr Jowitt replied that he could not advise the officers to record conversations without the consent of the foreign authorities, but that if they did so and valuable evidence was obtained, it was unlikely that a Jersey court would exclude the evidence solely because it had been obtained unlawfully. He said that ultimately it was an operational decision for the police to make, and that "if it was me I'd go ahead and do it, but don't quote me on that": see para 18 of the Commissioner's judgment. The Commissioner recorded that Mr Jowitt accepted in his evidence that this advice could have been "more carefully and felicitously expressed, and he should have considered and researched the Law more carefully than he did". In the view of the Board that was something of an understatement.

8

The evidence of DI Pashley was that, following this meeting, he decided in view of the urgency that, if consent was not forthcoming from the foreign authorities, the police would install and use an audio device in Mr Welsh's car in any event. The intelligence available to the police at that time suggested that Mr Welsh was intending to leave Jersey on 13 or 14 July.

9

On 12 July, letters of request signed by the Attorney General were sent to the relevant authorities seeking permission from a judge for the installation and use of tracking and audio devices whilst the vehicle was being driven through France, Belgium and The Netherlands. The French response was to grant permission for tracking but not for audio monitoring. The Dutch response, when clarified, was also to refuse permission for audio monitoring. The Belgian response was that they would be happy to assist if a guarantee of reciprocity were to be given. Such a guarantee was given by the Jersey authorities on 12 July, but it is not clear what happened thereafter. On 13 July a further letter of request was sent to the French authorities. It was in terms that were similar to the earlier letter, except that it omitted the reference to an audio device.

10

In the morning of 18 July, the investigating officers became aware that Mr Welsh had changed his plan and now intended to travel to France as a foot passenger aboard a ferry and then hire a car in St Malo for the drive to Amsterdam. So far as the police were concerned, this change was sudden and unexpected. It called for urgent action. DI Pashley, DS Beghin, DCI Minty (who was in charge of the CID) and DI Megaw met Crown Advocate Jowitt. The witnesses differed in their evidence to the Commissioner about this meeting, and in particular as to what Crown Advocate Jowitt was told and what he said. The Commissioner made no findings about it, but it does not seem to the Board that the details of what happened at this meeting are material to the outcome of this appeal.

11

The officers then decided to request assistance from the French police in deploying a tracking device in the hire car that they believed Mr Welsh would use. They decided not to raise the issue of the audio device because, as DS Beghin said in evidence, "I was aware that they hadn't given us authority so there didn't seem any point in mentioning it". No doubt mindful of the advice of Crown Advocate Jowitt, DI Pashley recorded in the investigation policy book "any audio product obtained within Europe will be subjected to decision on admissibility via judicial proceedings in any subsequent prosecution".

12

The Jersey police officers were given permission by the French authorities to deal directly with the car hire firm. DS Beghin then gave instructions to two junior officers, DC Courtness and PC Hart to go to France and install both the tracking and audio devices in the car. He instructed PC Hart (who was to act as interpreter) that if the French police officers asked what the second device was, she was to tell him that it was a "back-up" for the tracking device.

13

The two junior officers travelled to St Malo during the evening of 18 July. At about 22.00 hrs, DC Courtness fitted the two devices in the presence of PC Hart and two French officers. As instructed, PC Hart told the French officers that the second device was a "back-up" for the first.

14

Early in the morning of 19 July, Mr Welsh travelled to St Malo by ferry, collected the hire car and began his journey to Amsterdam.

15

At 07.44 hrs on 19 July, DCI Minty emailed Mr Power, the Chief Officer of the Jersey police, saying that they had now wired the hire car for tracking and audio "pursuant to the original [Commission Rogatoire] and a police to police request to assist. French Gendarmes have their own judicial authority, and we have the full consent and co-operation of the owners of the car (Alamo rent a car). We took legal advice from the Crown yesterday and we/they are content with this."

16

In the early evening of 19 July, the investigating officers became aware that a small boat called "Skiptide" might be used by some of the appellants to transport some of the drugs back to Jersey. DI Pashley spoke to the Attorney General and obtained his authority to install a tracker device and an audio device on the boat for 72 hours. The Attorney General made it clear that, if the French authorities were not prepared to agree to the audio device, it would have to be switched off when the boat entered French waters. DS Pashley did not tell the Attorney General that the hire car was being the subject of audio surveillance without the permission of the French authorities.

17

Late in the evening of 19 July and into the morning of 20 July, the audio device recorded conversations between Mr Welsh and...

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