Abbott & Ors v R.

A breach of a covert-surveillance code, or of Article 8 of the European Convention on Human Rights, does not itself make evidence inadmissible. The court must assess the nature and effect of any breach when applying sections 76 and 78 of the Police and Criminal Evidence Act 1984.

In a joint conspiracy trial, prejudice from material admissible only against a co-defendant will normally be addressed by clear jury directions. Severance is appropriate only in exceptional circumstances. A judge may also restrain cross-examination or closing submissions that lack an evidential basis, particularly allegations of police dishonesty not put to the relevant witness.

The applicants had been tried at Nottingham Crown Court before His Honour Judge Wide QC on charges arising from conspiracies to supply substantial quantities of Class A and Class B drugs. Abbott and Hare renewed applications for leave to appeal against conviction and sentence. Singh Nain pursued sentence only, while Noble and Johal sought leave to appeal against sentence.

The conviction challenges principally concerned covert recordings of prison conversations with non-legal visitors, refusal to sever Hare’s trial, the handling of possible knowledge of co-defendants’ guilty pleas, and rulings during cross-examination and closing speeches. The court also considered whether delay gave an arguable basis to challenge sentence.

1. The renewed applications for leave to appeal against conviction were refused. The court held that none of the asserted irregularities rendered any conviction unsafe.

2. Authorisation for directed surveillance under sections 28 and 32 of the Regulation of Investigatory Powers Act 2000 required necessity for preventing or detecting crime and proportionality. Technical procedural breaches did not themselves require exclusion. Following R v Lawrence & Others [2001] EWCA Crim 1829, a breach of the applicable code, and likewise a breach of Article 8, was relevant to the statutory exclusion exercise under sections 76 and 78 of the Police and Criminal Evidence Act 1984.

   The breaches found had not procured the authorisations, which would in any event have been granted. The officers acted in good faith. There was neither oppression nor any basis to regard the recordings as unreliable, and the defence had a fair opportunity to test their content and meaning. The recordings were therefore properly admitted. Although section 91(10) of the Police Act 1997 barred a challenge to the Surveillance Commissioner’s decision, it did not prevent an application to exclude evidence under sections 76 or 78.

3. The refusal to sever Hare’s trial was correct. In multi-defendant trials, evidence may be admissible against one defendant but prejudicial and inadmissible against another. Proper directions will ordinarily address that risk. Separate trials for alleged conspirators are appropriate only in the most exceptional circumstances, which were absent here.

4. The judge was entitled to refuse to discharge the jury after the possible disclosure of co-defendants’ guilty pleas and after an inadmissible passage was read in closing. Clear directions not to speculate, together with the context and verdicts, sufficiently protected fairness.

5. A judge may require counsel to identify the evidential basis of a proposed attack and curtail cross-examination that is misconceived or unsupported. Closing submissions may comment on evidence or its absence, but may not make uncanvassed allegations of police corruption or dishonesty. The interventions made were necessary and appropriate.

6. The delay ground on sentence was arguable. Leave was granted to all applicants to advance it, and the sentence applications were referred to the court hearing the appeals, with an agreed chronology to be prepared.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal against conviction were refused. Leave was granted for the sentence-delay ground and the sentence applications were referred to a court hearing the appeals ([2005] EWCA Crim 2952).

• Nottingham Crown Court: before His Honour Judge Wide QC, the applicants were convicted of drug-conspiracy offences or pleaded guilty, and sentences were imposed on 25 April 2003.