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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 >> Clarke & Anor, R. v [2022] EWCA Crim 402 (01 March 2022) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2022/402.html Cite as: [2022] EWCA Crim 402

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		Tuesday 1st March 2022

LORD JUSTICE HOLROYDE:

1. This is the latest in a series of directions hearings relating to the renewed applications by Mr Clarke and Mr Sheppard for a long extension of time in which to appeal against their convictions many years ago.
2. They were both convicted in June 1988 of a number of offences of arson. The case against them was that they had planted incendiary devices in their activities as members of the Animal Liberation Front. They were sentenced to terms of imprisonment. The applicant, Mr Sheppard was convicted of another offence in 1995 for which also he was sentenced to imprisonment.
3. In November 2014 the applicants issued Notices of Appeal against their convictions. The basis of the grounds of appeal is that there had been no disclosure to them of the role of certain undercover police officers. One of the persons identified in this regard, known to the applicants at the time of the relevant events as Bob Robinson, has subsequently been confirmed to have been a serving police officer, Robert Lambert. Another relevant person, involved in particular in relation to Mr Sheppard's separate conviction, was known at the time as Matt Raynor. It has subsequently been confirmed that he too was a serving police officer, though his name has not been disclosed.
4. In essence, the grounds of appeal are based on contentions that the undercover officers acted as agents provocateurs.
5. The grounds of appeal and applications for extensions of time were considered by the single judge who, on 16^th June 2015, referred them to the full court.
6. At much the same time an inquiry established by the Home Secretary, and known as the Undercover Policing Inquiry, began. It was initially under the Chairmanship of Pitchford LJ. Following his retirement through ill health, Sir John Mitting took over the Chairmanship in 2017. That Inquiry still continues.
7. In this court a directions hearing was first heard on 19^th July 2016. There was a further hearing on 29^th November that year. In the years since then, directions have been given in writing on several occasions. Throughout the long course of these proceedings, the court has been very greatly assisted by the good sense and co-operation of counsel for all parties, and by information provided at the request of the court by junior counsel to the Inquiry.
8. The parties have agreed, and the court also agrees, that it would not be appropriate to proceed to substantive hearings of these applications until the Inquiry has completed its hearing of evidence relevant to the issues in this case. Regrettably, and through no one's fault, the Inquiry has been severely delayed by the impact of the Covid-19 pandemic, both because of illness affecting individuals involved in the work of the Inquiry and because of practical limitations imposed by the requirements of social distancing.
9. This court last gave directions on 23^rd February 2021. At that time it was anticipated that the Inquiry would begin to hear the relevant evidence in 2022. Amongst the directions given was one relating to disclosure, which has duly been complied with by the respondent. There has, however, been further delay to the progress of the Inquiry.
10. In her note of January 2022, counsel to the Inquiry has indicated that it is now expected that the relevant evidence will be heard by the Inquiry between May and October 2024.
11. Notwithstanding that delay, both the applicants and the respondent continue to submit that it would be premature to hear these applications before the relevant evidence has been heard by the Inquiry. Regrettable though it is that this case will therefore have to be adjourned for a further lengthy period, we accept that submission.
12. Having heard typically helpful submissions from Miss Robinson for the respondent and Mr Newton for the applicants, we give the following directions:

(1) Junior counsel to the Inquiry be requested to provide, by 17^th May 2024, an update as to the progress of the hearing by the Inquiry of evidence relevant to these applications.

(2) Written submissions as to the future conduct of the proceedings in this court, including suggested directions for the further progress of the applications, should be served by the following dates: the respondent by 7^th June 2024; and the applicants by 21^st June 2024.

(3) A directions hearing will, if necessary, be listed during July 2024. If no such hearing is necessary, the court will give such written directions as are appropriate.

(4) A directions hearing will, in any event, be listed before the court during October 2024.

(5) In relation to the directions hearings, the constitution of the court should include Holroyde LH, and, so far as practicable, the convenience of junior counsel for the parties should be taken into account in fixing a convenient date.

Miss Robinson, anything immediately arising?

MISS ROBINSON: No, thank you, my Lord.

LORD JUSTICE HOLROYDE: Mr Newton?

MR NEWTON: No, thank you, my Lord.

LORD JUSTICE HOLROYDE: No. Well, once again, our grateful thanks to you both for your assistance, both today and more generally, and to your respective leaders.

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