Plunkett & Anor, R v

A police van owned and used solely by a constabulary is not a private vehicle for the purposes of Regulation of Investigatory Powers Act 2000. Covert recording of suspects in that van was therefore directed surveillance and could be authorised under the applicable statutory procedure.

Directed surveillance may be necessary and proportionate where serious violent offending presents a real continuing risk, the periods of recording are limited, and less intrusive alternatives have been considered. Article 6(3)(b) does not prevent disclosure before interview or covert recording of suspects speaking privately, provided they retain adequate time, facilities and legal advice for preparing their defence.

Under section 78 of Police and Criminal Evidence Act 1984, the decisive question is the overall fairness of the proceedings. A recording which merely affords suspects an opportunity to speak, without inducement, deception, oppression or entrapment, need not be excluded.

The appellants were convicted at the Crown Court at Southampton of aggravated burglary, false imprisonment and possession of a firearm. They received sentences of imprisonment for public protection with minimum terms of 10 years.

Police covertly recorded their conversations during journeys to and from police interviews and during short planned delays in a police van. The recordings contained admissions concerning the burglary and associated equipment. At each police station they had access to a solicitor and answered questions in formal interviews with no comment.

The appellants challenged the admission of the recordings. They contended that the surveillance was intrusive and unlawfully authorised, unnecessary or disproportionate, contrary to Article 6(3)(b), and unfairly admitted under section 78. They also sought leave to appeal their sentences.

1. The court granted leave to appeal against conviction but dismissed the appeal. It held that the convictions were safe. Leave to appeal against sentence was refused.

2. The police van was not a private vehicle under Regulation of Investigatory Powers Act 2000. It was owned by the Hampshire Constabulary and used exclusively for police purposes. The recordings were therefore directed, rather than intrusive, surveillance. The Detective Superintendent had authority to approve them.

3. The surveillance was necessary for detecting exceptionally serious crime and protecting victims who remained at real risk. It was also proportionate. The authorising officer had considered alternatives, including cell recordings and a covert human intelligence source, and confined the planned delays to 15 minutes.

4. There was no infringement of Article 6(3)(b) of the Convention. The appellants were not recorded speaking with their solicitor. They had legal advice before each interview and adequate opportunity to prepare their defence. Disclosure before interview did not make the recording process equivalent to intercepting legally privileged communications.

5. The trial judge correctly declined to exclude the recordings under section 78 of Police and Criminal Evidence Act 1984. The governing question was the fairness of the proceedings as a whole. The police had created an opportunity for the appellants to speak, but had used no trick, inducement, misrepresentation, oppression or entrapment. Even if there had been a minor breach of the surveillance legislation or of the duty to take an arrested person promptly to a police station, it would not have rendered the trial unfair.

6. Independently, the searches, computer material and cell-site evidence provided a sufficiently strong case to establish the safety of the convictions even without the recordings.

7. The sentences of imprisonment for public protection were plainly appropriate. Any need to give advance warning of that possibility did not arise because an indeterminate sentence was obvious on the gravity of the offending and the appellants' dangerousness. The minimum terms were neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted, but the convictions were upheld. Applications for leave to appeal against sentence were refused.
• Crown Court at Southampton: The appellants were convicted by a jury on 13 March 2012 and sentenced to imprisonment for public protection with minimum terms of 10 years.