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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Burton, R v [2002] EWCA Crim 614 (14 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/614.html Cite as: [2002] EWCA Crim 614

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 14th March 2002

The Vice President:

1. On 19^th December 1994 at Teesside Crown Court following a trial before His Honour Judge Hannah the appellant was convicted on a re-trial on one count of attempted robbery and was sentenced to 6 years imprisonment. He was thereby in breach of a previous 12 month suspended sentence which was fully activated to run consecutively. His total sentence was therefore 7 years imprisonment. An application for leave to appeal against conviction and sentence was refused by the single judge. On 26^th March 1996 his renewed application for leave was refused by the Full Court differently constituted.
2. The appellant now appeals against conviction following a reference by the Criminal Cases Review Commission on 9^th November 1999. The Commission considered a large number of complaints put forward by the appellant and those acting on his behalf. They referred the matter to this court on two grounds only. First, expert evidence obtained since the hearing of the first appeal raises doubts about the evidence of the undercover officers in the case. Secondly, the safety of the trial may have been affected because the jury ought not to have been provided with a "transcript" prepared by Charlie, one of the undercover officers, of the recording and notes made by Charlie in relation to what was said during the course of a car journey to the scene of the attempted robbery on 6^th November 1992.
3. The prosecution case was that the appellant planned and, with the faked assistance of undercover police officers, attempted to rob four lorry loads of whisky at a secure lorry compound at Gatenby North Yorkshire on 17t^h December 1992. The defence was that the appellant was acting under duress.
4. It was common ground that, on 5^th November 1992 at 3.10 pm, the appellant and a criminal associate of his known as Mark Evans met two undercover serving police officers, referred to as Charlie and Roy, in a vehicle near Kings Cross Station. Mark was the original informant to the police about the forthcoming plan. He had earlier spent several hours with Charlie before introducing the appellant to Charlie and Roy. Mark left immediately after the introductions. He did not give evidence at the trial. The appellant was unaware that Charlie and Roy were police officers. They pretended to be East End criminals willing to receive stolen property.
5. According to Charlie, the appellant, who had a noticeable stammer and a distinctive speech pattern, said that he had been planning a robbery at the Gatenby compound for 2 years. He said he had an inside contact called John and the security guard at the compound, called George, was John's father-in-law and would allow himself to be tied up. The appellant said there was a hole in the perimeter fence secured by string through which he would enter and, having donned the security guard's uniform, he would open the main gates to allow the drivers, whom Charlie was to provide, to enter and drive the lorries away. Charlie and Roy also agreed to buy any spirits stolen. The three bargained as to the amount of the appellant's financial reward. Charlie denied that he made threats to the appellant. The three parted at 4.45 pm, agreeing to meet the following day. The meeting was not tape-recorded but the officers said they made notes which summarised the effect of the discussions. The practice was not to tape record a first meeting of this kind. The operation was under the supervision of D I Hunter.
6. Subsequent police investigations revealed that John was John McComb who worked as a night watchman at the Gatenby compound. He had known the appellant for 10 to 15 years and might have mentioned to him what came to the compound. The appellant asked him whether it was possible to take liquor. McComb was not keen to keep in touch with the appellant, who tried to contact him at work a few times during a two week period in November and December 1992 but, by then, McComb no longer worked there. George had never met or spoken to the appellant.
7. On 6^th November at 2.06 pm Charlie and Roy met the appellant at Chesterfield Railway Station and the three travelled by car to Gatenby. The officers intended to make a tape recording of any conversation in the car. For this purpose a NAGRA recording device was fitted on the floor and equipped with a 3-hour tape. The robbery was discussed during the journey and the appellant left the officers at 6.39 pm. Because of ambient road noises when the car was travelling in excess of 40 mph, the tape yielded only patchy evidence of what had been said. The recording was reasonable when the car was near Chesterfield but very bad on the motorway and AI. For the greater part of the journey it was not possible to discern the conversation. That evening Charlie said he compiled from memory a summary of the conversations and a more detailed summary was made by him some days after the event, when he listened with earphones to cassettes of the tapes obtained from the recording device. Charlie believed his record showed the gist of what had been said. According to Charlie the appellant was calling the shots during the journey. He was a fairly determined man. Charlie took no part in the planning of the operation save to agree that he would obtain drivers. Parts of that recording were played to the court and a "transcript" of Charlie's record was given to the jury.
8. There were fourteen telephone conversations between the appellant and the police officers, eleven of them instituted by the police, on nine days between 12^th November and 16^th December. The duration varied between a few minutes and an hour. None of these conversations was tape-recorded. But Charlie said he made detailed notes from his memory immediately after each conversation finished. He said he thought it was unlawful for a police officer to make a tape recording on a public telephone.
9. According to Charlie, in the course of the telephone calls, the appellant said he had debt problems and wanted an up-front payment. He asked if arrangements for the job were still on, said that George was ill and the inside contact had been "blanking" him. He suggested that he obtain chemicals to manufacture amphetamine sulphate and suggested another robbery be planned after the Gatenby robbery. He also said, when asked by Charlie, that he was going to have a blade for the Gatenby robbery.
10. On 16^th December Charlie telephoned the appellant and said it had been agreed with Roy that the operation would be carried out on the following day. There were no threats in the conversation, the whole tenor of which gave no indication that the appellant was reluctant to go along with the robbery plan. The appellant, far from giving any indication of fear, was positively enthusiastic.
11. Charlie said that his notes of the unrecorded telephone conversations were not verbatim but the gist was 100% accurate and the accuracy of the individual words was about 75%.
12. On 17^th December at 7.05 pm Charlie and Roy met the appellant in Chesterfield and drove to the scene in a car fitted with audio recording equipment. The quality of the tape on this occasion was very good and the conversation was recorded. The recording was played in court and showed the appellant to be in apparently jovial mood, and keen to go ahead with the proposed robbery. During the journey, at a cafeteria near Gatenby, a third undercover police officer, Alan, joined the others. Near the compound Roy remained in the vehicle but the appellant, Charlie and Alan broke into the compound. According to Charlie, the appellant's enthusiasm was such when the lorries arrived that he said "we've fucking done it Charlie". After a third lorry had arrived the appellant asked Charlie if he could supply half a kilogram of amphetamine sulphate and half an ounce of cocaine to help him and his girlfriend celebrate. They were all about to enter the night-watchman's hut after the fourth lorry arrived when they were arrested. The appellant was wearing a ski mask and carrying a cord with which to tie up the night watchman. Four lorry loads of whisky would have been worth almost £900,000. Such loads regularly came into the compound. But that night there was no whisky.
13. Roy and Alan gave evidence confirming Charlie's account. All denied threatening the appellant and also denied offering him cocaine for his part in these events.
14. D I Hunter of the North East Regional Crime Squad was the operational officer in charge of events leading to the appellant's arrest. He had arranged for Charlie and Roy to meet Mark, who was a convicted drug dealer with convictions before and after this incident. He said there was a risk to undercover police officers if they carried a secreted tape recorder. He denied that the operation was set up for Mark to obtain drugs or as a means of fabricating evidence to convict someone.
15. After his arrest the appellant was taken in a police car about ten miles to Northallerton Police Station. During the journey there was a stony silence except when the appellant said "I say that was a fair cop. You got me bang to rights and that's all you are going to get". When searched at the police station he said "This must be down to Mark. He must be getting off his charges. He introduced me to the others. The other two there are coppers as well". The appellant refused to sign the record of these replies. When he was interviewed under caution in the presence of his solicitor he declined to reply to any questions. When the tape was turned off, in the presence of his solicitor he said "look I've been caught bang to rights. I'm going to plead guilty at court but I'm not like that bastard Mark who put me in. I won't tell you about anybody else involved; you know what happened and I will say it again it was a fair cop". The interviewing officer told the appellant this was exactly what he had said the previous night: it was the oldest cliché in the book. The officer asked, "You wouldn't like to say it on tape would you?". The appellant privately consulted with his solicitor, after which he declined to answer any questions on tape. But he also said, in the presence of his solicitor, "look I'm sorry lads I know you have got a job to do but I'm not willing to name anybody else. You might, as you did, ask me those questions. If I tell you about my part I will have then broken my right to silence". The appellant went on "Look I was in to amphetamines and I owe a lot of money – drug debts. That's the only reason I got into this, the only way out to pay them off". He again said that he was bang to rights and would be pleading guilty but he couldn't bring anyone else in. He said he would have another word with his solicitor. He did so. On being asked if he was willing to sign the officer's pocket books as a true record he said "No it is just the same as if it was on tape and I am not going to sign it".
16. The only evidence called for the defence was the appellant. He said that, for over twenty years, he had used and provided drugs and had convictions for violence and possessing a lock-knife, but had not been involved in any criminal activity since 1992 when he was charged with attempted robbery. He knew Mark. On one occasion he had collected drugs from him which were in a car he was driving on his way to Doncaster. A vehicle driven by the police swerved in front of him and plain clothes officers smashed his car with pickaxe handles. He escaped scattering the drugs. He was charged with reckless driving and possessing drugs with intent to supply and was given a suspended sentence. An officer who had taken photographs of the lorry compound on the morning of 18^th December had been involved in that car incident and the appellant suggested the officer harboured a grievance against him. The drugs he had obtained from Mark were worth £3000. Mark wanted his money and started to put pressure on the appellant threatening him with a gun. He was frightened and, when he said he was unable to pay, Mark told him to sell more drugs. Mark suggested he visit a man called Ernie who would provide them on credit on the understanding he would be paid from the proceeds of a tie-up robbery. The appellant thought that a robbery at Gatenby would be easy but he never had any intention of carrying it out. It was nothing more than a story used by the appellant to placate Mark. He selected Gatenby because he knew from John McComb of the alcohol that would be there. Mark approved of the proposed plan and knew that it was nothing more than a hoax to deceive Ernie. In furtherance of the hoax, Mark introduced the appellant to Charlie and Roy and told the appellant they were gangsters and accomplices of Ernie. Charlie produced cocaine and handed some cash to the appellant. The appellant said he had a job in which it would be easy to go in and tie up the guard. Charlie and Roy agreed to provide the drivers and take the load obtained off the appellant's hands. The appellant said he had no intention of carrying out the robbery.
17. The appellant said he went to Chesterfield on the following day to meet Charlie and Roy solely because he could not avoid going there and meeting them because they knew his telephone number. At first they were friendly but later, in the car, Charlie said he would have the appellant shot. On another occasion he said he would kill him. The appellant believed Charlie. None of these threats were in the "transcript" of the conversation prepared by Charlie. The appellant was physically unable to tie anyone up and he made excuses to try and call off the plan but Charlie insisted it be carried out. The whole matter had changed from a simple inside job to a proper robbery. He accepted he was in possession of a ski mask on arrest. He was going to help Charlie tie up the men and commit a robbery and if he had not been arrested he would have tied up the guard. Although there were no threats audible on the tape, threats had been made in the car and on the telephone and he was in fear. Charlie had threatened to break his legs and on three occasions to kill him, the last such occasion being on the night prior to the raid. He met Charlie and Roy on 17^th December and went with them to Gatenby because he feared they would kill him. He denied jumping up and down with excitement in the compound. He had acted under duress. He had said nothing on the way to the police station or when searched. He did not want to say anything about Charlie in case he killed him. He still thought at the police station that Charlie was a villain. It was possible that he had told the police he would plead guilty but that was only a means of getting out of the way of Charlie. When he was at the police station he did not know he had been set up by undercover officers and he did not know why the police would lie about what he had said in the car.
18. For the appellant, Mr Mansfield QC, who did not appear in the court below or on the first appeal, accepted that the CCRC's second ground for referring the case to this court could not be regarded as a major point: first, because the defence at trial agreed to the "transcript" going before the jury; and secondly because, in any event, the officer was entitled to say what his recollection of the conversations was and to use his notebooks, which were available at the trial, to assist his recollection. He also accepted that there was no obligation on the Crown to call Mark. The central point of the appeal, Mr Mansfield submitted, was that there should, in accordance with Smurthwaite and Gill 98 Cr App R 437, have been an unassailable record of the conversations between the undercover officers and the appellant, because the officers were acting as agents provocateurs. Such a record is required to enable the judge to assess whether officers have gone beyond providing the opportunity for crime and have actively encouraged crime and for the jury to assess what has passed between the officers and the defendant. In relation to the Kings Cross meeting on 5th November, the reconnaissance journey on 6^th November and the telephone conversations between 12^th November and 16^th December there was no unassailable record. The only unassailable record relates to the journey on 17^th December. Furthermore, the nature of the offence changed from a hoax robbery to an actual robbery and the undercover officers, instead of merely providing drivers, took part themselves in the robbery. The appellant's case was that the offence also changed because he did not want to carry it out and did so solely because of duress. Mr Mansfield accepted that none of the records of the conversations between 5^th November and 16^th December contained any threats to the appellant. But the prosecution at the second trial were alive to the possibility that the defence might seek to exclude the police evidence. It is clear from the transcript, Volume II page 10c and following, that prosecuting counsel made this clear to the judge at a time when there was a possibility that the defendant might represent himself at the trial. Mr Mansfield expressly made no criticism of defence counsel at trial. But he submitted, there should have been a voir dire. Had this taken place, the judge would have excluded evidence of the conversations between 5^th November and 16^th December and then, in the exercise of his discretion under s78 of the Police and Criminal Evidence Act 1984, in order to ensure the fairness of the trial, he would necessarily have excluded the evidence from the unassailable record in relation to the journey on 17^th December. The evidence of Professor Coultard provided for this court referred to below would, if called at trial, have assisted the judge to reach this conclusion. If all this evidence had been excluded there would have been no evidence to go before the jury and there could have been no trial. Mr Mansfield did not rely on reports from Dr French, which were obtained by the Criminal Cases Review Commission. One of these expressed the conclusion that there was no evidence that the tapes of 6^th November and 17^th December had been tampered with. It is to be noted that when this case was last before the Court of Appeal it was adjourned in May 1995 to permit expert evidence to be obtained to challenge the reliability of the recordings. None was forthcoming and the court dismissed a ground of appeal relating to this. (CACD judgment 26^th March 1996 transcript pages 12 to 13).
19. Professor Coultard is professor of English Language and Linguistics at Birmingham University. He prepared reports dated 26^th July 1999 and 28^th August 1999 which were before the CCRC and a further report dated the 15^th June 2001. His reports were not challenged by the prosecution and were admitted by this court de bene esse without the need for him to give oral evidence. He analysed, in particular, Charlie's account of the 11^th December telephone call, (which consists largely of purported direct speech but, in part, is a précis) and carried out an experiment showing that, although Charlie said the call lasted some 5 minutes it took only 1 minute 40 seconds to read Charlie's record of it. He concluded that Charlie's record must be significantly incomplete even if he reported accurately most of the gist of what was said. Further, Charlie's record could not be both verbally accurate and a remembered version of what was said. It was unlikely to be 75% accurate as to the words as Charlie claimed. If it was accurate to this extent "there are only two explanations – either Charlie has an abnormally good memory of what he and co-conversationalists have said……or the record presented in court is derived from a recording". Mr Mansfield submitted that, had such evidence been available at trial, this would have strengthened defence counsel's hand when suggesting that the telephone calls had been recorded. Charlie's evidence would have been further undermined. Charlie's claim not to have made any recording because this would have been illegal was not only wrong but was contradicted by D I Hunter who said the reasons for not recording the telephone conversations were related to practicability. On the basis of Professor Coultard's opinion, Mr Mansfield submitted, it was almost certain that there must have been a tape recording: this, or the incompleteness of Charlie's record, might have led the jury to believe that Charlie's evidence was unreliable.
20. For the Crown, Mr Robertson QC submitted that the appellant's defence of duress failed at trial. The Court of Appeal on the last occasion rejected criticisms of the summing-up and concluded that the appellant's choice to resort to criminal activity to discharge his drug debt precluded him from claiming that the undercover officers were acting as agents provocateurs. Accordingly it is not now open to the appellant to advance a case that the trial judge should have excluded the assailable and unassailable records under s78 because the undercover officers were acting as agents provocateurs. A letter written 22^nd May 2001 by leading counsel for the defence at the first trial, pursuant to directions given by this court for the purposes of this appeal said (and this is unchallenged by the appellant)

"What the defendant wanted was to run a defence involving duress and an attack on police corruption not only in the instant case but among Teesside police and other forces generally in other cases. He was also extremely suspicious of the influence of freemasonry in the police force. Thus all the evidence had to go in at his behest. The first time around it was half successful".

Mr Robertson pointed out that, prior to the second trial, when prosecuting counsel was explaining to the judge the possibility that the defence might want to argue that the officer's records should be excluded, both the appellant and his solicitor were present. From the way in which the second trial was conducted by counsel on the appellant's behalf it is apparent that, as at the first trial, the appellant did not seek to have the records excluded. In any event, even if exclusion of the assailable record had led the judge to exclude the unassailable record, there would have remained against the defendant the damming evidence that he was arrested inside the compound wearing a mask and carrying a rope. In any event, there were operational reasons explained in evidence by D I Hunter for officers who were pretending to be East End villains not carrying recording equipment lest it be discovered. Use of the recording equipment on 6^th November and 17 December had been properly authorised and no application had been made for tape recording telephone calls. Furthermore, it would have been remarkable if the police, knowing that recording equipment was in place during the 6^th November journey, had risked making threats; and it is remarkable that, if any threats were ever made, none was to be discerned on those fractions of 6^th November tape which are audible or the continuous and impeccable recording of 17^th December in which the appellant can be heard joking and showing every enthusiasm for the robbery to come. Mr Robertson accepted that the nature of the contemplated offence changed and that, following the appellant telling Charlie he was considering doing the job himself "with a blade", the police officers became co-conspirators in a proper offence of robbery in order to protect innocent members of the public. If the appellant, as he claimed, was trying to resile from the enterprise, submitted Mr Robertson, it is surprising that he continued seeking to contact McComb during the weeks before the robbery, went to meet the undercover officers on 17^th December and showed such enthusiasm for the robbery during the journey that day.

21. In his reply, Mr Mansfield submitted that the appellant's defence has always been the same namely that his participation was due to threats from Mark, augmented by subsequent threats from the undercover officers. Professor Coultard could have been called at trial had his reports then been available and this would have cast considerable doubt on the officers' evidence in relation to the crucial conflict between them and the appellant as to whether threats had been made.
22. In our judgment it is first necessary to decide whether Professor Coultard's evidence is properly receivable in this court, having regard, in particular, to the considerations itemised in s23 of the Criminal Appeal Act 1968 as amended. Clearly his evidence is capable of belief and is, indeed, unchallenged. Whether it affords any ground for allowing the appeal we leave aside for the moment. It is debatable whether Professor Coultard's evidence would have been admissible at trial. There was much in Charlie's evidence which was susceptible and subjected to cross-examination. But Professor Coultard's conclusions are directed primarily to Charlie's credit. Evidence which goes merely to credit is inadmissible. There are circumstances in which linguistic expertise is properly admissible, for example to cast doubt on the genuiness or otherwise of a challenged confession. But that is not this case. What is sought here, by the use of Professor Coultard's evidence, is to cast doubt on Charlie's credit about the accuracy of his records. It does not cast light on whether the appellant was subjected to duress. But, even assuming that this evidence would have been admissible at trial, no reasonable explanation is proffered for failure to adduce it. Mr Mansfield concedes that Professor Coultard would have been available had his views been sought. His views were not sought because the appellant, neither at the first nor second trial wished to challenge the admissibility of the assailable records. The explanation for that is not hard to seek. Having been caught red-handed attempting a robbery and being confronted by an unassailable record of his enthusiasm on the journey of 17^th December, a wide-ranging exculpatory attack on the integrity of the police officers, so as to provide room for the jury to accept the claim of duress, could only be based on the deficiencies of the assailable records: if these were not before the jury in the first place there could be no basis for such an attack. It is not open to this appellant to seek to advance his case in this court in a way which differs from that in which he chose to present it at trial.
23. In any event, Professor Coultard's reports afford no ground for allowing this appeal. It cannot in our judgment be sensibly suggested that they demonstrate dishonesty on Charlie's part. Although, no doubt, 75% was a substantially optimistic over-estimate of his ability accurately to record the words said, it is apparent from the transcript of his evidence that he was not seeking to put that percentage figure forward as a precise or scientific assessment. It may well be that there was more said than he recorded. But it does not follow that he was dishonest. Still less does it follow – and this is crucial to the success of this appeal – that defective recording by Charlie demonstrates that threats may have been made by the officers to the appellant. It seems to us to be in the highest degree improbable that, on 6^th November the officers, knowing that there was a recording device in the car whose ineffectiveness was unknown to them, would have threatened the appellant. It is even less likely that, if they had threatened the appellant, they would then have sought and obtained authorisation for a further recording device for the journey of the 17^th December when, if the appellant was indeed frightened, there was at least the risk that he might refer to threats as well as sound frightened. The unassailable record of the 17^th December contains no reference to prior threats. Furthermore it records the appellant describing when he got his haircut and suffering from cold in consequence, complaining that John, his inside man, was frightened and avoiding him, and expressing enthusiasm for tying-up the "old bloke". The appellant also said he had "good strong cord", a hood for his own head and gloves. He repeatedly laughed, made a joke about sending a Christmas card and said he was "buzzing" and "raring to go".
24. Accordingly if Professor Coultard's reports were admitted in evidence in this court they would afford no ground for regarding the appellant's conviction as unsafe. The inferences to be drawn against the appellant, arrested inside the compound, masked and carrying the cord, were overwhelming. The jury at his second trial having heard the assailable and unassailable records rejected his claim of duress. There is no reason to believe that, if he had chosen to conduct his case in a different way and sought to exclude the assailable records the outcome would have been any different. Even if the judge had, on objection being taken, excluded the assailable records and, under s78, the unassailable records there would have remained the same conflict between the undercover officers and the appellant as to whether they had ever threatened him. With or without Professor Coultard's evidence, there is no reason to regard the appellant's conviction as unsafe.
25. Accordingly this appeal is dismissed.

LORD JUSTICE ROSE: For the reasons given in the judgment handed down, this appeal is dismissed.