Howell & Ors, R. v

Procedural irregularities in a police investigation, including breaches of recording requirements, do not by themselves make a trial unfair or require exclusion of evidence. The court must assess their actual effect on fairness. A stay for abuse of process remains exceptional where the defence can test credibility before the jury.

Warnings about unreliable witnesses are matters for the trial judge’s discretion and may concern evidence called by either side. Directions on delay must reflect actual prejudice. Written skeleton arguments treated as oral submissions are, subject to any proper restriction, disclosable under the principle of open justice.

Three Metropolitan Police officers appealed against convictions at the Central Criminal Court for conspiracy to steal and acts tending and intended to pervert the course of public justice. The Crown alleged that they participated in the theft and distribution of a security guard’s share of the proceeds of a robbery investigated by their Flying Squad unit.

The appeals challenged disclosure rulings, the admission of evidence from two corrupt or criminal prosecution witnesses, the summing up, jury directions, fresh evidence, and sentence. A central issue was whether unrecorded police “intelligence interviews” with a prosecution witness, and other investigative irregularities, rendered the trial unfair or the convictions unsafe.

1. The appeals against conviction and sentence were dismissed. The court independently reviewed the public-interest-immunity material and upheld the immunity claims. Nothing withheld could assist the appellants or provide a viable line of investigation.
2. The trial judge had erred in concluding that the relevant recording Codes did not apply to Garner when he was being developed as a prosecution witness. The court accepted that conclusion in light of R v Drury and Clarke. The error did not make the proceedings unfair. The interviews were followed by recorded interviews, substantial material was disclosed, and there was no bad faith or evidence that the absence of contemporaneous records seriously handicapped the defence.
3. A stay for abuse of process, or exclusion under Police and Criminal Evidence Act 1984, is not justified merely because investigative imperfections make the defence harder. The decisive question was whether the trial process could fairly test the evidence. Here, the jury could assess the credibility and motives of Harvey and Garner in the light of extensive cross-examination and appropriate material.
4. The trial judge was entitled to warn the jury to approach the evidence of Harvey, Garner and Dwyer with care and caution. Following the abolition of mandatory corroboration warnings, both the need for a warning and its terms are discretionary. The warnings adequately identified the particular risks posed by each witness. The directions on delay and the absence of an alibi direction also caused no unfairness. The later Watson direction, given after prolonged deliberations, was properly timed and used approved terms.
5. The proposed fresh evidence was either speculative, collateral to the real issue of Garner’s truthfulness, available for use at trial, inadmissible, or incapable of affecting the safety of the convictions. The court refused leave to adduce it under the Criminal Appeal Act 1968.
6. On the separate media issue, written skeleton arguments which counsel adopted and the court treated as part of oral submissions were subject to open justice and should be disclosed on request, absent a proper basis for withholding them.

The concurrent terms producing seven years’ imprisonment were entirely appropriate for serious police corruption involving abuse of public trust.

• Court of Appeal (Criminal Division). The appeals against conviction and sentence were dismissed: [2003] EWCA Crim 486.
• Central Criminal Court. On 25 January 2001, the appellants were convicted of conspiracy to steal and acts tending and intended to pervert the course of public justice. Each received concurrent sentences of five years and seven years’ imprisonment.