Khalisadar v R.

A conviction following a guilty plea will not be quashed for alleged police misconduct unless the conduct is sufficiently gross to justify the appellate court’s intervention. An arguable excess of the permitted scope of a search warrant, a possible failure to caution witnesses during interview, or a lack of candour in the context of a terrorism investigation may be criticised without meeting that high threshold.

The appellant pleaded guilty at the Crown Court sitting at Snaresbrook to rape and conspiracy to pervert the course of justice. Seven co-defendants pleaded guilty to conspiracy to pervert the course of justice after the trial judge rejected applications including an application to stay the proceedings.

On appeal, the appellant alleged serious misconduct by police officers. The complaints concerned searches said to have pursued terrorism-related material beyond the warrants, the counter-terrorism officer’s takeover of the rape investigation, the absence of cautions for alibi witnesses, and alleged lack of candour on the voir dire. He also had leave on four further grounds, but accepted that they could not succeed independently of the misconduct allegations.

1. The appeal was dismissed and leave to appeal on the additional misconduct grounds was refused. The appellant accepted that, following his guilty pleas, he could succeed only if the police conduct was so gross that the court should quash his convictions.

2. The court held that it was arguable that officers had breached section 16(8) of PACE 1968 by entering premises intending also to search for material unrelated to the offences specified in the warrants. Even on that assumption, the officers were plainly conducting searches for the warrant offences. The possible breach fell far short of gross misconduct capable of justifying intervention.

3. The counter-terrorism officer’s takeover of the rape investigation could not, on the facts, amount to gross misconduct. Nor did the possible failure to caution alibi witnesses at some stage of their interviews. The court also assumed, for the leave application only, that the officer giving voir-dire evidence had been less frank than he should have been. In the context of the terrorism investigation, that too did not approach the required level of misconduct.

4. Because leave was refused on the only grounds capable of supporting the appeal, the four grounds on which leave had previously been granted were academic. The court declined to determine them.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 147, the court dismissed the appeal and refused leave on the additional grounds alleging police misconduct. A Full Court had previously granted leave on four other grounds in [2009] EWCA Crim 499.

• Crown Court at Snaresbrook: Before HHJ King, the appellant pleaded guilty on 15 February 2008 to rape and conspiracy to pervert the course of justice. The judge had rejected the defendants’ pre-plea applications.