Warren, Welsh, O'Brien, Woodward, Hunt and Lucas v AG

JurisdictionJersey
CourtCourt of Appeal
JudgeJones JA
Judgment Date12 August 2008
Neutral Citation[2008] JCA 135
Date12 August 2008

[2008] JCA 135

COURT OF APPEAL

Before:

D. A. J. Vaughan, Esq., C.B.E., Q.C.; President;

Dame Heather Steel, DBE, and

M. S. Jones, Esq., Q.C.

Curtis Warren
John Alan Welsh
James O'Brien
Jason Woodward
Paul Hunt
Oliver Lucas
and
The Attorney General

Advocate S. M. Baker for Warren.

Advocate S. A. Pearmain for Welsh.

Advocate D. J. Hopwood for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

Crown Advocate J. C. Gollop.

Authorities

European Convention on Human Rights.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Royal Court (Jersey) Law 1948.

R v H [2007] 2 A.C. 270 .

R v. Latif [1996] 1 W.L.R. 104 .

R v Horseferry Road Magistrate's Court ex. p. Bennett [1994] 1 A.C. 42 H.L.

Chu Piu-wing v. Attorney-General [1984] H.K.L.R. 411 .

Reg. v. Croydon Justices, Ex parte Dean [1993] Q.B. 769 .

Connelly v. D.P.P. [1964] A.C. 1254 .

R v Mullen [2000] Q.B. 520 .

R v Looseley and Attorney General's Reference (No 3 of 2000) [2001] 1 W.L.R. 2060 .

Nottingham City Council v Amin [2000] 1 WLR 1071 .

Panday v. Virgil (Senior Superintendent of Police) [2008] 3 W.L.R. 296 .

R v Beckford [1996] Cr. App. R. 94 C.A.

Regina (Ebrahim) v. Feltham Magistrates' Court [2001] 1 W.L.R. 1293 .

R v Grant [2006] Q.B. 60 .

R v. Jennings [1994] 98 Cr. App. R. 308 .

Archbold 2008.

R v B [2008] EWCA Crim 1144 .

Criminal Justice (International Co-operation) (Jersey) Law 2001.

R v. Gooch [1998] 2 Cr. App. R. 130 .

Criminal Justice (International Co-operation) Act 1990.

R v Mason [1988] 86 Cr. App. R. 349 .

Matto v DPP [1987] Road Traffic Reports 337 .

R v. Chalkley and Jefferies [1998] 2 Cr. App. R. 79 .

Jones JA
Introduction
1

On 11th and 12th August 2008, we heard an application for leave to appeal a refusal by Commissioner Sir Richard Tucker, following a preparatory hearing, (i) to stay these proceedings as an abuse of process, on the ground that the investigating and prosecuting authorities involved in the case have acted in contravention of the rule of law, failing which (ii) to rule inadmissible certain evidence which was obtained illegally. The Commissioner refused leave to appeal. On 14th August, we announced that we, too, refused leave to appeal and we gave a précis of our reasons for that decision. This is the full Judgment of the court.

The Facts
2

The facts of the case which gave rise to the applications before the Commissioner were not materially in dispute and his summary of them was not the subject of challenge. The Commissioner records that the States of Jersey police received intelligence which led them to suspect that the defendants were planning to import a large amount of cannabis into Jersey. It was believed that the defendant Welsh was intending to drive to Amsterdam to collect a consignment and to take it to a port in Normandy whence it would be shipped here. The original plan, it is alleged, was for Welsh to take his own car by ferry to St Malo and to drive it to Amsterdam.

3

The police wished to deploy two surveillance devices in this car: a tracking device which would enable them to follow its progress and an audio recording device which would enable them to listen to and record the conversations of any occupants in the car.

4

The Jersey police and the Law Officers' Department realised that authority would have to be obtained from foreign States for the installation of these devices and that this would have to cover not simply the vehicle's use in the Island but also its use abroad. This meant that permission would have to be obtained from the French, Belgian and Dutch authorities. As to the tracking device, there was no difficulty; all countries agreed to its use. The audio device gave rise to problems. Although the Attorney General for Jersey authorised its use here, the other countries refused permission for its use within their jurisdictions. This was because of the element of intrusion and violation of privacy, contrary to Article 8 of the European Convention on Human Rights.

5

Another problem then arose because Mr Welsh decided not to use his own car but to hire a car in St Malo for his journey to Amsterdam. If the police were to proceed with their proposed investigations, therefore, different arrangements had to be put in place and additional authorisations had to be obtained.

6

Instead of the devices being installed in the defendant's car in Jersey, this now had to be done in France in a car belonging to the car hire company, subject to the rules of the French jurisdiction and those of the other countries through which the car would be travelling.

7

Letters of request were issued to these countries, but permission for the installation of the audio monitoring equipment was refused. The States of Jersey police had sought the assistance of the Serious Organised Crime Agency in the United Kingdom but it was unable or unwilling to assist.

8

An operational decision was taken by the States of Jersey police that the two devices would be deployed, notwithstanding the refusal of permission by the foreign powers for the use of one of them. This was done on 18th July. The car hire company was cooperative in that it consented to the installation of the tracking device and the French police were informed, though not of the true nature of the operation. They were not told of the intention to deploy the listening device in the car, and were led to believe that there was only to be a tracking device. Moreover a Jersey police officer was instructed by a Jersey police Sergeant, in the presence of an Inspector, that if the French police raised any questions she was to lie to them.

9

In consequence, after Mr Welsh collected the car and drove it through France and Belgium into Holland, his conversations with various people were monitored and recorded. The Crown submits that this provides crucial evidence in the case against all of the defendants and intends, if possible, to rely on it in any trial of the defendants.

The Issues
10

The application for leave to appeal raises a number of important issues for determination. These are:-

  • (i) Whether this court has jurisdiction to entertain an application for leave to appeal a refusal to stay proceedings following a preparatory hearing;

  • (ii) The nature and extent of the court's discretionary jurisdiction to stay proceedings as an abuse of process;

  • (iii) The approach to be taken to the exercise of that jurisdiction in any particular case; and

  • (iv) Whether it can be seriously argued that the exercise by the Commissioner of his judicial discretion in determining the stay and admissibility applications was fundamentally flawed.

Whether this court has jurisdiction to entertain an application for leave to appeal a refusal to stay proceedings following a preparatory hearing
11

This is the first occasion on which this question has arisen for decision. Parties are at one in submitting that, having regard to the terms of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("PPCE"), we do have such jurisdiction. As the Crown rightly points out, however, jurisdiction cannot be conferred on us by the agreement of the parties, so we must decide the matter.

12

Article 84 of the PPCE provides, among other things, as follows:-

" (1) Where it appears to the Bailiff —

... ...

(b) that a case is so complex or is a case the trial of which is likely to be so long that substantial benefits are likely to accrue from a hearing before the trial and for any of the purposes mentioned in paragraph (2) ,

the Bailiff may order that a hearing (in this Part referred to as a "preparatory hearing") shall be held .

" (2) The purposes are those of —

(a) identifying issues which are likely to be material to the verdict of the Royal Court or jury;

(b) assisting comprehension of those issues;

(c) expediting the proceedings before the Royal Court or jury;

(d) assisting the management of the trial."

For the purposes of this case, references to the Bailiff should be read as a reference to the Commissioner. ( Royal Court (Jersey) Law 1948 Article 12)

13

There can no doubt that the Commissioner was entitled to regard this as a case both so complex and likely to be so long that substantial benefits were likely to accrue from a preparatory hearing for the purpose of expediting the proceedings before the Royal Court. As Lord Hope of Craighead observed in R v H [2007] 2 A.C. 270, " The purpose which [the provision equivalent to Article 84] was designed to serve is to minimise the risk of interruption and delay during the trial proper by dealing with matters that can conveniently be dealt with in the jury's absence before the trial proper starts". (See paragraph 21.) In the court below, the stay application occupied some four days of court time and, in our opinion, holding a preparatory hearing to determine the matter met the purpose identified by Lord Hope.

14

The question that then arises, therefore, is whether the applicants have a right to apply for leave to appeal to this court. Article 90(1) provides as follows:-

" An appeal shall lie to the Court of Appeal from any ruling of the Bailiff under Article 86(3), but only with the leave of the Bailiff or of the Court of Appeal."

15

Article 86(3) of the PPCE is in these terms:-

" The Bailiff may make a ruling as to any question as to the admissibility of evidence and any other question of law relating to the case."

16

The determination of the question posed in paragraph 14, therefore, depends on whether or not the Commissioner's decision on the application for a stay is properly to be regarded as a ruling on a question of law within the meaning of Article 86(3).

17

The determination of an application for a stay on the ground of abuse of process in a case such as this is...

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