No: 9707976/Z3

No: 9800588/Z3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 6th November 1998
 
                    B E F O R E :

                 LORD JUSTICE BUXTON

                 MR JUSTICE BLOFELD
 
                         and
 
             HIS HONOUR JUDGE TUCKER QC
      (Acting as a Judge of the Court of Appeal
                 Criminal Division)
 
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                    R E G I N A
 
                       ‑ v ‑
 
                     Darren OWEN
 
                         and
 
               Kevin Kimberley STEPHEN
 
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
    Tel No: 0171 404 1400   Fax No: 0171 404 1424
         (Official Shorthand Writers to the Court)
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
MR D LYONS appeared on behalf of the Appellants
MR J D WARREN appeared on behalf of the Crown
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                      JUDGMENT
             (As approved by the Court)
                   CROWN COPYRIGHT
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
  
6th November 1998
 
LORD JUSTICE BUXTON: This is an appeal by Mr Darren Lee Owen and Mr Kevin Kimberley Stephen against convictions recorded against them in the Crown Court at Lewes before His Honour Judge Richard Hayward and a jury on 6th November 1997.  The case was argued at length before us last week.  We have taken time to consider our judgment.
 
Backgrounds Facts
 
During the evening of 5th February 1997 there was a robbery at off licence premises in Rock Street Brighton.  Mr Bull, the manager of shop, was confronted by two masked men, one armed with a gun and the other with a canister of CS gas.  CS gas was sprayed into Mr Bull's face and the sum of some £280 was taken.  Mr Bull described the man with the CS gas canister as being about 6 foot 2 inches or 6 foot 3 inches, with facial hair, wearing a black leather jacket and blue jeans. The other robber, the one with the gun, was described as being about five foot ten, and wearing black or navy blue Adidas tracksuit bottoms and a brown waist length  leather jacket.  He noted that this second man spoke with a Welsh accent.  As the smaller man was leaving he pulled off his mask.  Mr Bull was able to see that he was clean shaven and had what Mr Bull described as a square jaw.
      The prosecution case was that the description of the smaller robber matched that of Owen and the description of the taller robber matched that of Stephen.  The clothing was similar to that worn by the appellants earlier in the day, although, if the appellants had committed the robbery, the prosecution case was that they might have exchanged jackets.
      On the following day the appellants were arrested in Rugby Place in Brighton.  At that address a gun and a canister of CS gas were found.  It was the police evidence, the nature of which was contested at the trial by the defence, that when they had arrested and cautioned Mr Owen on suspicion of committing the armed robbery one of the officers had said to him, "Darren, where's the gun?".  Owen had replied immediately, "In the kitchen behind the sink."  The gun exhibited at the trial was found in the flat where Owen was then living in the place where Owen had said that a gun would be found. The appellant Mr Stephen was searched after his  arrest and found to have a canister of CS gas in his jacket.  When asked why he had the canister he replied, "Just in case", and did not expand on that answer.
      When Mr Bull, however, was shown the gun and the CS canister he said positively that they were not the gun and CS canister used by the robbers.  That statement by Mr Bull was in the possession of the prosecution before the trial, and Mr Bull repeated that evidence in his testimony at trial.
      Further, whilst the appellant Stephen was in custody he spoke to a lady called Roma Brooks, who was a co‑defendant on one of the counts, and allegedly asked her to make a false statement to police officers investigating the robbery.  It was not disputed that he had telephoned Miss Brooks and that she had called on him at Lewes prison on 12th February.  It was also accepted by Mr Stephen that he did then suggest the plan to deceive the police and that later on the same day Miss Brooks went to police and made a false statement very substantially in the form that he had suggested to her, that is to say, implicating other persons of other descriptions as an eye witness to the robbery. Mr Stephen's defence in that respect was that Miss Brooks had treated the matter as a joke.  We will have to return to that issue in due course. 
      Further, the Crown produced a transcript of a telephone call from Mr Stephen to his wife when he was on remand in Lewes Prison.  In that telephone conversation Mr Stephen purported to admit that he had taken part in the robbery.
 
The Counts
 
There were four counts on the indictment with which we are concerned.  Count one was a count of robbery laid against both Mr Owen and Mr Stephen: that was in respect, of course, of the robbery that we have described.  Count two alleged that they possessed firearms on arrest: in the case of Mr Owen a handgun, in the case of Mr Stephen a CS canister. Count three charged the possession of a prohibited weapon in respect of the same handgun and CS canister respectively.  Count four was of conspiracy to pervert the course of the justice laid only against Mr Stephen, his co‑accused on that count being Miss Brooks.   Miss Brooks pleaded guilty to that count.
      We now turn to the matters of which complaint is made.
 
The Joinder of Counts Two and Three
  
It was contended that on the basis of the evidence given by Mr Bull, a witness called by the prosecution, it was unfair to join counts two and three to the indictment; and in any event such joinder fell foul in law of rule 9 of the Indictment Rules, that there can only be joined:
 
"Charges that are founded on the same facts or form or are part of a series of offences of the same or similar character."
  
If the gun and cannister were not those used in the robbery then the joinder would fall foul of that rule.
      However despite Mr Bull's evidence it remained the prosecution case that those items were in fact those that had been used in the robbery.  In our judgement, and in that of the learned judge, the prosecution were entitled to maintain that position.  It was not an abuse nor an improper position for the prosecution to adopt, despite the difficulty that they had in the form of Mr Bull's evidence.  It is important to remember when looking at the indictment that the prosecution bring the case, and the indictment reflects what the prosecution alleged and set out to prove.  It is not open to the court to order that a certain count is wrongly joined merely because the court may think that the prosecution  are going to have difficulty in proving that which they allege.  There will, of course, be circumstances in which matters were so extreme that the court would think that to formulate the trial on such a basis would be wrong, and of course we do not need to say that if it were the case that the prosecution should join a count of a doubtful nature simply for an ulterior motive then that joinder would not be permitted: but that is not suggested in this case.
      Granted that the joinder was proper, one has to turn to the way in which the learned judge summed up the case to the jury in order to determine whether the presence of counts two and three on the indictment, in the light of the evidence heard by the jury, might make the convictions on count one unsafe by reason of unfairness.  Counsel for Mr Stephen and Mr Owen contended that the matter of the joinder was so fatal that no summing up could cure the matter.  We do not agree.  The judge was very well aware of this point.  In our judgement he dealt with it entirely correctly.  He reviewed the matter at page 34C of his summing up to page 35E.  We do not cite the whole of that matter.  He was, first of all, careful to remind the jury that Mr Bull had not only failed to identify the weapons found on Mr Owen and Mr Stephen as those used in the  robbery, but, as the judge told them, he stated definitely that they were not the weapons used.  The judge went through the discrepancy in some detail.  He said, and in our judgement he was entitled to say, also this:
 
"The Crown say that being robbed at gunpoint is a terrifying experience and, what is more, Mr Bull was sprayed in the face and some of the spray caught his right eye, and that both those factors do not lend themselves to good identification ..."
  
He also mentioned other matters that the jury might want to take into account in comparing the identification of the gun.  He then went on at page 35C and said this:
 
"If you are not satisfied that these weapons were used in the robbery, then they have no evidential value so far as counts one and two are concerned.  Mere possession of such weapons is no proof that the defendants committed this robbery; and it was very important, members of the jury, that you do not convict the defendants, or either of them, simply upon the basis: 'Well, they were armed the following day with similar weapons, so they must be guilty.'"
  
That clear warning to the jury came in the course of a summing up, that, we venture to say, was clear and detailed, and in which the judge very forcefully put every point that could be put on behalf of the defendants. In the light of that very clear warning by  the judge we do not think that any unfairness arose from the joinder of counts two and three.  That ground of appeal is dismissed.
 
Mr Stephen's admissions in the telephone conversation with his wife
 
The Issue
 
This issue gives rise to difficult questions under the Interception of Communications Act 1985 [the 1985 Act]. The telephone call made by the appellant to his wife was recorded by the prison authorities and a transcript of that recording was introduced into evidence.  In the terms of the 1985 Act the Crown accepted that the system concerned was a public telecommunications system, and that the person carrying out the intercept held an office under the Crown.  There was no warrant issued under the Act for such an interception to take place. At the trial the appellant Stephen argued that under section 9 of the Act the evidence was inadmissible as it tended to disclose the commission of an offence under the Act by the prison authorities.  The judge is said, therefore, to have erred in law in allowing that conversation to be placed before the jury. 
      This was an important matter in the trial so far as Mr Stephen was concerned.  The conversation was clearly, if admissible, serious evidence against him it.  It, of course, had nothing to do with the case against Mr Owen, and the judge properly so directed the jury in terms to which no objection has been or could have been taken.  The circumstances in which the interception was made and therefore its status as evidence requires this court to look again at the terms of the 1985 Act.
 
The 1985 Act
 
We set out the two sections with which we are principally concerned.  Section 1(1) reads as follows:
 
"Subject to the following provisions of this section, a person who intentionally intercepts a communications in the course of its transmission by post or by means of a public telecommunication system shall be guilty of an offence and liable ... [sentences are stated]"

Subsection (2):
 
"A person shall not be guilty of an offence under this section if ‑‑
 
(a) the communication is intercepted in obedience to a warrant issued by the Secretary of State under section 2 below; or
 
 (b) that person has reasonable grounds for believing that the person to whom, or the person by whom, the communication is sent has consented to the interception."
  
For convenience we can refer (as is commonly, though not necessarily wholly accurately said) to the two cases in section 1(2) as being respectively warrant cases and consensual cases.
      We then turn to section 9 "exclusion of evidence".  Section 9(1) reads:
 
"In any proceedings before any court or tribunal no evidence shall be adduced and no question in cross examination shall be asked which (in either case) tends to suggest ‑‑
 
(a) that an offence under section 1 above has been or is to be committed by any of the persons mentioned in subsection (2) below; or
 
(b) that warrant has been or is to be issued to any of those persons.
 
(2) the persons referred to in subsection (1) above are  ‑‑
 
(a) any person holding office under the Crown;
 
(b) the post office ...
 
(c) any public telecommunications operator ..."
  
We also refer briefly to sections 2 and 6 of the Act. Section 2 deals with warrants for interception, and gives the Secretary of State powers to issue the warrants that we have already seen referred to.  Section  2(2)(b) allows him to issue a warrant for the purpose of preventing or detecting serious crime.
      Section 6(3) deals with another matter connected with the issue of warrants which is of importance in a case we shall be shortly looking at, which requires that copies of any material obtained by means of a warrant shall be destroyed as soon as they are no longer required.
 
The authorities
 
We turn first to a case decided in 1992, Effik 95 Cr App R 427.  In that case the appellants were convicted of a number of offences of conspiracy to supply prohibited drugs.  Evidence was adduced of telephone calls made by the conspirators using a cordless telephone which were intercepted and recorded by police officers who did not have a warrant to intercept the calls.  It was contended that those calls had been wrongly admitted because the evidence of them was inadmissible under section 9 of the 1985 Act.  Steyn LJ giving the judgment of this court, said this at page 431:
 
"The first submission is section 9 of the 1985 Act renders inadmissible (subject to the exceptions of section 9(3)) [which do not apply in that case nor in our case] any evidence obtained as a result of an interception of a communication by means of a public  telecommunications system.  That would be a far‑reaching provision.  For the purpose, inter alia, of preventing or detecting serious crime, Parliament has rendered such interceptions lawful, subject to the statutory safeguards being observed.  But it would follow that if an interception reveals, for example, compelling evidence of treason, and there is no other evidence of it, that evidence of the interception may never be led. Moreover, it would follow that if the interception reveals evidence which assists a particular defendant, such as an attempt to fabricate evidence against him, that the evidence may never be led.  And that would be so whether the statutory safeguards had been observed or not.  Such astonishing results do not give the court a licence to depart from the statutory language but it does permit an initial scepticism about the plausibility of the submission as to the true meaning of the language.
 
The starting point is the principle that all logically probative evidence is admissible.  Any legislative in road on this principle requires clear expression. Language to the effect that any evidence obtained as a result of an interception will be inadmissible could achieve such a purpose.  But that is not what section 9 provides.  It merely provides that no questions may be asked which tend to suggest that an offence under section 1 has been committed by specified persons or that a warrant has been or is to be issued to any of these persons.
 
The forbidden territory is therefore in the first place questions tending to suggest that an offence has been committed.  That prima facie prohibits a line of questioning designed to establish that none of the four defences under sub sections (2) and (3) of section 1, such as a warrant, consent of the sender of the communication, and so forth, are applicable.  Section 9(1) then prohibits questions tending to suggest that a warrant has been or is to be issued.  The express terms of section 9 do not provide that no evidence obtained as a result of an interception may be admitted.  The forbidden territory is drawn in a much narrower fashion.  And there is a logical reason for the narrow exclusionary provision.  That is the reflection that it cannot be in the public interest to allow those involved in espionage or serious crime to discover at a public trial the basis on which their activities had come to the notice of the police, the Customs and Excise or the Security Services, such as, for example, by questions  designed to find out who provided the information which led to the issue of the warrant.  So interpreted section 9(1) makes sense.  And it would make no sense to stretch that language to become a comprehensive exclusion of all evidence obtained as a result of any interception.  It may well be that evidence of interceptions will rarely be tendered.  But we are confidence that there is no statutory bar to a court ever admitting such evidence."
  
So far so good.  The Act was then the subject of further very close scrutiny by the House of Lords in the case of Preston [1994] 2 AC 130.  In that case it was the defence who raised the point, and wanted to know if there had indeed been any telephone interceptions. Counsel for the prosecution refused to divulge whether that was so or not.   It later appeared that that was because a warrant had been issued, and the prosecution took the view that the material could not be given in evidence because so to do would reveal the existence of the warrant; nor need the prosecution, nor could it, disclose even the existence of such intercepted material.  Further, it happened that the material itself had by then been destroyed pursuant to the requirement of section 6(3) of the 1985 Act that we have already referred to.  That latter step, the destruction, was also complained of by the defendants as being a material irregularity which had deprived the defendants of matter which might have been of use to them: as demonstrating, we interpose, that they had not been engaged during  those interceptions in any guilty discussions.
      The House of Lords agreed, in terms to which we shall have to return, that evidence tending to suggest that a warrant had been issued could not be put before the court because of section 9 of the 1985 Act; but the House went on to hold on the substance of the appeal before them that it did not follow that the existence of that material could not be disclosed since that step did not involve giving evidence about the material or how it had been obtained.  Moreover, since the Secretary of State had no duty to maintain material simply to assist the defence, and indeed had a positive statutory obligation to destroy it as soon as its immediate use had passed no material irregularity had in fact occurred.
      We turn to the speeches in Preston.  The leading speech was give by Lord Mustill.  He was concerned with the argument, that was pressed on the House of Lords because of the particular circumstances of Preston itself, that the prosecution were obliged to retain material intercepted under the warrant because on their true construction the grounds for issuing a warrant in section 2(2)(b) of the 1985 Act included the prosecution of crime as well as its investigation.  On that argument it was wrong to destroy the material under section 6  whilst a prosecution was still in progress.  Lord Mustill rejected that interpretation of the act in favour of what he called the "narrower reading" of section 2(2)(b), which excluded a prosecution as a ground for issuing or maintaining in vigour a warrant. Lord Mustill then said this at page 167A of the report:
 
"The narrower reading also makes sense of the otherwise impenetrable section 9.  If the purpose of Parliament was to allow the intercept materials to become part of the prosecution process it is hard to see any point in a provision which would make it wholly or at least partially (according to how the section is read) impossible to use them in that process; and if that had been the intention it is equally hard to understand why Parliament did not say so in plain language.  By contrast, on the narrower reading of section 2 there would be no need to make explicit provision for the admissibility of materials which by virtue of section 6 would no longer exist, and the purpose of section 9 can be seen as the protection, not of the fruits of the intercepts, but of information as to the manner in which they were authorised and carried out.  Inquiries as to these matters were to be confined to the tribunal under section 7, and the defendant was not to have the opportunity to muddy the waters at a trial by cross examination designed to elicit the Secretary of State's sources of knowledge or the surveillance authorities' confidential methods of work.  Evidently the proscription of questioning on the existence of warrants was seen as an economical means of achieving this result."
  
And then Lord Mustill said this of the case of Effik, which we have already referred to, at page 169B:
 
"My Lords, I am conscious that in giving my reasons for this opinion I have omitted any detailed analysis of the  judgments of the Court of Appeal in Effik ... In doing so I intend no discourtesy whatever to the Court of Appeal whose judgments I have studied with care and profit.  The fact is, however, that the arguments addressed in Effik were fundamentally different from those which your Lordships heard, and the concentration on section 2 rather than section 9 has given a new perspective to the arguments in the present case.  I therefore believe it permissible not to prolong an already long judgment by discussion of those cases, and simply to say that I agree with the decision of the Court of Appeal in the present case albeit not altogether with the reasons for it, and in my opinion the decision in Effik 95 Cr App R 427 should be overruled."
  
Lord Keith and Lord Browne‑Wilkinson agreed with Lord Mustill.  Lord Jauncy also agreed with Lord Mustill but he additionally delivered a speech of his own in which he addressed the terms of section 9.  He said this of it at page 143H:
 
"It was argued by the defendants that this subsection merely prevented the asking of questions as to whether or not an interception had taken place but did not prevent the material derived from such intercept being introduced in evidence in some other way, such as by admission.  However, the clear purpose of the subsection is to prevent evidence being elicited which suggests that an intercept has been made and this would be a pointless exercise if, nevertheless, the content of that intercept was to be disclosed.  Indeed it is very difficult to see how such content could be used in evidence without disclosure of the circumstances in which it became available.
 
My Lords, I have no doubt that Parliament intended that the existing practice of not using intercepted material as evidence should continue.  Thus section 6 provides that there should be minimum disclosure and retention of intercepted material and section 9 prevents the asking of questions suggesting that a warrant to intercept  material has been or is to be issued."
  
Lord Templeman also delivered a substantive speech in which he said this of section 9, at page 140E:
 
"By section 9 of the Act in any court proceedings no evidence shall be adduced and no questions asked in cross examination which tend to suggest that a warrant has been issued.
 
Thus the Act makes it impossible for a record of a telephone conversation to be given in evidence and makes it impossible for evidence to be given that a warrant was issued for a telephone conversation to be intercepted."
  
This court, however, returned again to the Act in the more recent of case Rasool and Choudhary [1997] 2 Cr App R 190.  The argument there was about the admission of an intercept which was agreed to be consensual in the terms of the Act because it was a conversation between a consenting police informer and the defendant.  Although the defendant did not know he was being recorded, as will have been seen from the terms of the Act only one party to the conversation has to agree to its being intercepted for the intercept to be "consensual" under section 1(2)(b).
      It was argued that the judgments of the House in Preston nonetheless excluded any evidence of the conversation.  This court dealt with that matter at page  203 of the judgment delivered by Stuart‑Smith LJ as follows.  His Lordship set out the relevant passages in the judgment of Preston and in particular the passage in the speech of Lord Jauncy that we have already cited.  Stuart‑Smith LJ went on at page 203D, from that citation:
 
"But it seems to me that this too has to be read in the context of the case, [that is to say, the case of Preston] particularly the provisions of section 2(2)(b) and section 6.
 
Accordingly it seems to me that the general statement of the law on the construction of section 9(1) to be found in the Court of Appeal's judgment in Effik, namely that it does not prevent the admission of the product of a telephone intercept to which the Act applies, is to be modified only to the extent that it relates to a warranted intercept.  Accordingly section 9(1)(a) is not sufficient by itself to prevent admissibility of the substance of a consensual interception.  Furthermore since on the question of admissibility, the fact that the evidence may have been obtained unlawfully is irrelevant, cross examination to show that the intercept was not consensual cannot be entertained, quite apart from the prohibition in section 9(1) (a)."
  
The Defence case
 
In his forceful submissions before us Mr Lyons, who represented Mr Stephen, first argued that the 1985 Act did indeed impose a blank prohibition on the admission of any evidence of telephone intercepts.  He relied in particular on the overruling of Effik by the House of  Lords in Preston and on the statements, in broad terms, of Lords Templeton and Jauncey which we have cited.  He recognised, however, that that was indeed a bold submission in the light of Rasool and we are satisfied, for the reasons given by the Stuart‑Smith LJ, that in respect of anything other than a warrant case that argument must be wrong, at least at the level of this court.
      Mr Lyons, however, had another string to his bow. He said that this case was different from Rasool because here it was strongly contested whether the interception had been consensual at all.  The prison authorities placed notices on the phones and issued other material to prisoners telling them that their conversations were liable to be listened to and recorded.  Mr Stephen put the prosecution to proof that the officers who had intercepted the call indeed had reasonable grounds to believe that Mr Stephen had consented to the intercept, in view of the admission in evidence by the prison officer called to deal with the matter that prisoners frequently destroyed the notices; thus raising the possibility that Mr Stephen had used a phone that did not have a notice upon it.  Further, the prosecution was unable to prove that Mr Stephen had received the general material dealing with intercepts. 
      Those issues were addressed at the trial in a voire dire to which we shall have to return.  Mr Lyons argued, however, that the voire dire should never had taken place, with the corollary that the evidence should have been excluded in any event.  That was because in the course of investigating whether the call had indeed been consensual, in the terms of section 1 of the 1985 Act, it was necessary to allege that the prison officers, persons holding office under the Crown in the terms of section 9(2)(a), had made or might have made non‑consensual intercepts, and thus had committed an offence under section 1.  He said that the voire dire was included in the expression "any proceedings" in section 9(1) of the 1985 Act; a view with which we are minded to agree.  Indeed the argument went further than that.  Mr Lyons said that the very act of giving evidence about an intercept on the part of an officer of the Crown entailed his giving evidence that tended to suggest that he had committed an offence.
      That we have to say is plainly not right.  A statement, without more, that an intercept has taken place does not of itself entail or suggest that the intercept fell into the categories forbidden by section 1.  However the point about how to deal with the contexts about the circumstances in which calls were  made has more substance.
      Mr Lyons' argument that as a matter of general fairness evidence of the intercepts simply must be excluded where the circumstances are challenged, because the challenge cannot be investigated, obviously has serious implications.  It means that the circumstances need only to be challenged for the evidence to be excluded, perhaps in all but cases of an obviously frivolous challenge.  The handicap to proper investigation that that would pose we have seen graphically set out in the judgment of Steyn LJ in Effik.  But at the same time it is fair to remark that total exclusion of intercepts even without any interim step of challenging the circumstances in which they had been made may have been the course deduced from the 1985 Act at least by Lords Templeman and Jauncey in Preston. At the same time, however, the alternative course is also unattractive.  To prevent questioning of whether the intercept indeed had been consensual would apparently permit evidence to be admitted which was alleged to have been obtained by breach of the law; and also, as the present case shows, might cause difficulties in challenging the reliability as opposed to the lawfulness of the evidence, a particular matter arising in this case to which we shall have to return. 

The Applicable Principles
 
Faced with these difficulties it is appropriate to pause and take stock.  We think that the following basic propositions are relevant.
      (1) As Lord Mustill said in Preston, the overall objective of the 1985 Act was to base the practice of official interception of telecommunciations on a sound, statutory basis.  Part of that objective was to enable official activity in intercepting communications to remain confidential.  That was the task of section 9, as Lord Mustill made clear in Preston at page 167C of that report.  That was also underlined as the objective of section 9 by Steyn LJ in Effik.
      (2) That section 9 protects, and only protects, official interceptions is reinforced by the limitation of section 9(2), which prohibits only the investigation of people who are or might be involved in such official interceptions.  If one private citizen intercepts another and then tries to use the material in litigation there is nothing in the 1985 Act is stop him being cross examined about the legality of his actions.
      (3) The fact that the 1985 Act prevents some or  all telephone intercepts being used in evidence is likely principally to handicap the prosecution, and is the price governmental authorities have to pay for the immunity conferred by section 9: see in this sense Lord Jauncey in Preston at page 144F of that report.
      (4) Whether or not an offence was committed in the course of an intercept is irrelevant to the admissibility of the evidence provided by the intercept.  That is trite law, as exemplified by the case in the House of Lords of Sang [1980] AC 402.  It leads to the conclusion stated by this court in its judgment in Rasool at page 403E of the report that we have already read.  The same simple answer cannot however be given in respect of questions of lawfulness that might arguably arise under section 78 of the Police and Criminal Evidence Act, for which purpose it might be sought, in the absence of section 9 of the 1985 Act, to investigate the nature of official activities.
 
The principles that apply to this case
 
In our case no question of protecting official operations from exposure in fact arises.  It is the prosecution's positive case to disclose the fact and matter of interception which, far from seeking to  conceal from the person intercepted, they aver they have made clear to him throughout.  In these circumstances it is tempting to say that since our case does not fall within the objective of the 1985 Act, because no embarrassment, at least in terms of confidentiality, would be caused to the authorities by investigation of the lawfulness of their actions, then section 9 of the Act simply does not apply to it.  However, even though that may be the overall objective or reason for the passing of the section 9 provisions, no distinction is made in the Act itself between what might be called embarrassing and what might be called non‑embarrassing investigations.  The prohibition against questioning officers of the Crown as to whether they have reasonable grounds to believe in the consent of the intercepted party, for the purpose of section 1(2)(b), or against giving evidence suggesting that they did not have such grounds, is absolute and not linked to the nature of the case.  There may well be good reasons for that, not least because in cases less clear than the present any distinction based on the effect of the questioning, if allowed, might force the court to enter undesirable territory in order to determine that preliminary issue.
      We are therefore driven back to the conclusion that section 9(2)(a) prevents any investigation, in any  proceedings, of whether in a non‑warrant case an interception by an officer of the Crown is covered by section 1(2)(b).  That view is in accordance with the ruling of this court in Effik, setting out the forbidden areas of enquiry, including whether or not the interceptor had the benefit of what is there described as the defence afforded by section 1(2)(b).  We are bound to follow that ruling in view of the further ruling by this court in Rasool, equally binding upon us, that Effik is overruled by Preston only to the extent that it related to warranted intercepts.
      The effect in the present case is that it was not open to the defence to question whether or not the interceptors had reasonable cause to believe that Mr Stephen was consenting to the interception. Therefore the judge (with whom we sympathise in having to deal with this intractable subject without even the full report of Rasool) was, in the circumstances of the case and of the arguments that were sought to be put against the admissibility of the intercept, wrong to order a voire dire to investigate the existence or otherwise of a section 1(2)(b) belief on the part of the prison officers.  The intercepts were admissible without further such enquiry.
 
 Further considerations
 
We recognise that that may be regarded as a strong holding and one that gives rise to concern that material may be introduced into evidence that might, absent the particular rules with which we are concerned, be challenged by the defendant.  We have already indicated that we consider ourselves unable within the specific terms of section 9 of the 1985 Act to make a distinction that excludes cases like the present from the general prohibition that section 9 imposes.  However in order further to test that conclusion, and because of the general importance of the matter, we add some further observations.
      (1) As this court pointed out in Rasool the issue in respect of statements such as Mr Stephen's remarks on the telephone is not as to their admissibility.  As a statement by the accused they are admissible without further enquiry.  That view of the status of evidence of this type, subject to this type of attack, was confirmed in the speeches of the House of Lords in Khan [1997] AC 558, a case to which we shall have to return.  The only question that arises is, therefore, whether the court in its discretion should nonetheless refuse to allow the evidence of the statement to be given: principally  though not exclusively, under section 78 of the Police and Criminal Evidence Act.
      (2) The complaint in Khan alleged an invasion of the accused's privacy by the installation in, or on the outside of, a house of an associate of his of a covert listening device without the knowledge either of the associate or of Mr Khan himself. That conduct was alleged to have been a civil trespass, and also probably an act of criminal damage against the associate; and also, which was the main issue debated in the case, a breach of Mr Khan's rights under article 8 of the European Convention on Human Rights.  No claim in respect of the Convention was made in our case.  The House of Lords held that whilst the Convention was not binding law in this jurisdiction, and could not affect the status of the decision in Sang, it could and should be taken into account in determining an issue arising under section 78 of PACE.  That, we venture to draw from the speeches, would follow a fortiori in respect of a complaint that the evidence had been gathered in the course of a breach of the law by authorities, rather than a complaint merely of breach of a right to privacy.
      (3) It is important to note, however, how the House of Lords addressed that issue.  In the leading  speech Lord Nolan said this at page 581H:
 
"I am prepared to accept that if evidence had been obtained in circumstances which involved an apparent breach of article 8, or, for that matter an apparent breach of the law of a foreign country, that is a matter which may be relevant to the exercise of the section 78 power.  This does not mean that a trial judge is obliged to decide whether or not there has been a breach of the Convention or of the foreign law.  That is not his function, and it would be inappropriate for him so to do.  By the same token, it would have been inappropriate for the judge in the present case to have decided whether the admitted damage caused by the police to Mr Basforth's property amounted to a criminal offence under section 1 of the Criminal Damage Act 1971.  But if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth.  Its significance, however, will normally be determined not so such by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings.  The fact that the behaviour in question constitutes a breach of the Convention or of a foreign law can plainly be of no greater significance per se than if it constituted a breach of English law.
Upon the facts of the present case in agreement with the Court of Appeal I consider that the judge was fully entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of article 8, were not such as to require exclusion of the evidence."
  
We do not suggest that those observations are of more than indirect relevance to our problem.  It is however important to note that the crucial issue is the effect of the alleged irregularity on the fairness of the proceedings, and that there is no suggestion that unknown eavesdropping or interception of conversations  of itself gives rise to a legitimate complaint under section 78.  That general point is to some extent supported by the view of this court in Rasool that no issue in that case arose under section 78.  Although there was no dispute in Rasool as to whether the interception was "consensual" in the sense of section 1(2)(b) of the 1985 Act, that was not because the party making the admission in the intercepted conversation agreed to the interception or indeed knew anything about it.  The reasonable grounds for belief in consent related only to the consent of the police informer who initiated the conversation.  The party against whom the conversation was used and who might have sought to rely on section 78 could not conceivably have been said to have consented to that interception.
      (4) It therefore seems unlikely, though we can put the matter no higher, that interrogation about the state of mind of the interceptors as to reasonable belief of consent would be a relevant issue under section 78. Matters might be different if there were allegations of bad faith, deceit, or a positive misleading of the speaker into thinking that he would not be recorded or that the material would not be used.  In such a case, although care would have to be used, it should be possible to investigate those specific allegations  without trespassing on the ground forbidden by section 9 of the 1985 Act, at least in a case where the allegations were sufficiently clear and serious to give rise to an arguable question under section 78 in the first place.
      We have made these observations, as we say, not as part of our decision, which turns on the interpretation of the 1985 Act, but in order to consider whether that interpretation leads to such unreasonable results that it must be wrong.  In our judgement it does not.
 
Section 78 of the Police and Criminal Evidence Act and this case
 
We have already held that a desire to pursue matters under section 78 does not, in the circumstances such as those of the present case, compel the exclusion of the evidence.  It would be wholly artificial if we did not add another, separate, consideration that is present in this case.  We have said that in fact the judge did conduct a voire dire in which he investigated the circumstances in which Mr Stephen had made the telephone call.  The appellant argued that the judge's conclusion that the prison authorities did indeed have reasonable grounds to believe that Mr Stephen had consented to the  monitoring was not open to him on the evidence.  We do not agree.
      The judge heard evidence from the security officer at the prison in question as to the practice, and then said this, which is at page 12A of the transcript of that ruling:
 
"[The security officer], when asked by Mr Lyons, said that the notices at Lewes Prison did not follow that wording exactly but did indicate that phone calls may be monitored.  He very frankly said in evidence that he could not be certain that that notice was present at any particular telephone at any given time; and nor could he say ‑‑ again very frankly ‑‑ what telephones the defendant may or may not have used and whether or not any such notice was present at such telephones.
 
I have considered the submissions carefully made by Mr Lyons on this matter.  I am quite satisfied, on what I have heard, that the defendant was aware that telephone calls made by him from prison may be monitored.  It is relevant, in my view, to this matter that the defendant is not entirely unfamiliar with prison, he has been in prison on previous occasions. Even if he did not see the notices or did not read them, I am also quite satisfied on what I have heard that those who conduct the monitoring process had reasonable grounds for believing that the defendant was aware of those notices and was therefore aware that any calls he made might well be monitored."

Mr Lyons said before us that that evidence could not prove that Mr Stephen had in fact seen the notices, nor that the evidence of his previous record, even admissible, carried the matter further, because it had  not been shown that the general practice was in fact followed at any of the prisons where he had been previously detained.  It may be noted that Mr Stephen himself was not called to give evidence on the voire dire as to those matters, even when the judge made it clear that he was minded to refer to Mr Stephen's previous experience.  However, even leaving that point aside, we have no doubt that the judge was justified in finding on the material before him that the prison authorities had reasonable grounds to believe ‑‑ which it should be emphasised is the test under section 1(2)(b) ‑‑ that Mr Stephen had given knowing consent. Mr Stephen's evidence of the actual arrangements or of his actual beliefs might have been illuminating on the facts of that matter, but it could not be dispositive, as we have already made clear.  On our view of the law this point does not arise since no such finding was necessary or indeed permissible as a preliminary to the admission of the evidence of the cause.  However the judge, in fact, did go on to deal with section 78.  He said this at page 13A of his ruling:
 
"I should add that I have considered, although I have not been specifically addressed on this, the question of section 78, and whether it would have been in any way unfair to admit this evidence, in my view it would not be unfair.  The calls were made, they were made on a phone where I am quite satisfied the defendant was aware  the calls might be monitored, and even if he was not aware I am quite satisfied the prison authorities had reasonable grounds for believing that he was aware ..." 
 
Even if the section 78 point were prime facie available in this case it would, in our view, be wholly artificial therefore to ignore the finding of the judge (albeit one that the law as we now rule it to be does not call for) that there had in any event been no unfairness.
      The admission of this conversation cannot, in our view,  be challenged on general section 78 grounds.
 
Mr Stephen's explanation of the telephone call
 
There was however a further point of fairness not arising under section 78, and much more particular to this case.  Mr Stephen's explanation of the actual admission in the conversation was that he was simply trying to stop his wife complaining of his criminality, as she was doing, by agreeing, as the judge graphically put it to the jury, to "any old robbery just to get her off his back".  As part of that case Mr Stephen said that he had not known that his calls were being intercepted.  He gave circumstantial evidence before the jury, not having given any such evidence on the voire dire, that he knew that a monitoring system existed.  Indeed he could apparently, from the phone booth, see the officers who were operating that system.  He had made his calls at times when he thought them not to be on duty.  He was in due course cross‑examined on his belief by the prosecution.  Earlier however, when the prison officer in charge of intercepts gave the evidence to which reference has already been made, proving the intercepts, counsel for Mr Stephen was not allowed to cross‑examine him on the arrangements for warning prisoners of the intercept arrangements, since that would involve issues as to the officer's belief and thus the legality of the intercept.  That disparity was said to be unfair.
      Our view on this issue is as follows.
      (1) As we have already pointed out, what Mr Stephen in fact believed was not the same issue as what the officers had reasonable grounds to believe. Investigation of the former issue is not in itself covered in the terms of section 9.
      (2) The judge was right to rule that section 9 prevented the challenge to the officers, for whatever purpose, as to arrangements and notification to the prisoners.
      (3) In the circumstances of this case the application of that ruling could potentially put  Mr Stephen at a disadvantage, because testimony by the prison officers as to gaps in the notification arrangements, and thus possible ignorance on Mr Stephen's part of the intercepts, would be more likely to carry weight with the jury than allegations by Mr Stephen himself.
      (4) The judge had no discretion to cure that disadvantage by permitting the questions to be asked because section 9 prevented that course.  The only remedy would be to exclude the evidence of the intercept under the inherent power of the court, rather than strictly under section 78.  In the state of general beliefs at the trial about the implications of the 1985 Act it is not surprising that the judge was not asked to proceed on that basis.
      (5) On balance, however, no unfairness resulted. The issue was the reliability of what Mr Stephen said on the tape and whether he was simply agreeing with his wife.  More important to that enquiry than his argument about his grounds for thinking or not thinking that he was being listened to was the terms of the tape itself. It was played to the jury at the request of Mr Stephen's own counsel; they did not merely have a transcript of it.  The judge addressed the jury on this at page 41G to 42G of the summing up.  We do not read the passage.  The  judge pointed to a number of issues that, no doubt, the jury had already identified. He said:
 
"There is no doubt that Lisa [that is the wife] is furious, the language is appalling, but at one point you may have thought that Mr Stephen was not quite the humbled husband seeking to agree with an enraged wife."
  
The judge, having reminded the jury of that passage, went on at page 42E:
 
"And you may think, members of the jury ‑‑ and, as I say, you can listen to that again ‑‑ was that the voice of a man who was in fact seeking to justify what he had done rather than meekly agreeing with what he was being accused of doing?  But it is a matter entirely for you." 
 
We do not think that on balance the fairness of the trial or the safety of the verdict, to the extent that the jury acted on the content of that tape in their finding against Mr Stephen, were affected by the inhibition on the cross examination of the prison officers.  We therefore reject the grounds of appeal based on the admission of the record of the telephone intercepts.
      We turn to other matters.
 
The statement of Roma Brooks
 
 Over two months after her conversation with Mr Stephen, which we have already detailed, and thus well after her false statement to the police, Miss Brooks was interviewed by the police.  At the trial it was claimed that some parts of that interview could be read as fitting Mr Stephen's defence to the conspiracy count: which was, in effect, that although he had suggested the act on her part to pervert the course of justice, she at the time had treated it all as a joke.  In other words, she had not agreed with him at all, and therefore had not conspired with him.  Her act of going to the police the day after her conversation with Mr Stephen, and telling them almost exactly what he had asked her to say, had been a frolic of her own.
      At the trial it was sought by Mr Stephen's counsel to introduce that statement into testimony not by the use, as we understand it, of section 23 of the Criminal Justice Act, but apparently as a piece of evidence in its own right.  The argument before the judge was that the statement, although plainly hearsay, was admissible as evidence of Miss Brooks's state of mind at the time of the alleged agreement.  The judge rightly rejected that argument, which was not seriously pursued before us.  The statement wholly lacked that element of contemporaneity with the events sought to be explained  that is a necessary preliminary to the application of this exception to the hearsay rule.  That failure of this argument in limine exempts us from having to go on and point out that, if the evidence had been admitted, the judge would almost certainly in fairness have had to tell the jury that its alleged meaning was contradicted by Miss Brooks's plea to the conspiracy count.  That plea was, in fairness to Mr Stephen, not known to the jury, and their hearing about it in the middle of the trial could hardly have assisted his case.
 
The no comment interview
 
Before us Mr Lyons opened a further ground on which he said that Miss Brooks's statement should have been before the jury.  We are not wholly clear whether this point was taken at the trial; certainly this extremely careful trial judge did not refer to it in his ruling on the admissibility of Miss Brooks's statement.  We do nonetheless go on to consider it, because it raises a point of some more substance.
      The judge's summing up on the conspiracy count against Mr Stephen, after setting out the background, was as follows, at page 53F of the summing up:
  
"... Mr Stephen does not dispute that he telephoned Roma Brooks on 10th February, that she visited him in prison on 12th February.  He does not dispute that he suggested this plan to her; and there is no dispute that on that very same day she went to the police and made a false statement in which she said very substantially what Mr Stephen had suggested.
 
Now, Mr Stephen says that when he suggested this plan to Miss Brooks she laughed and told him not to be stupid; and he said he didn't think that she was going to do it.  So, he says, there was no agreement and Miss Brooks took it upon herself later to take up the idea and make the statement.
 
Mr Stephen was interviewed about this matter and he declined to answer any questions.  He did not give the explanation then that he has now given you in court.  I have already directed you as to what inferences you may draw from a defendant's failure to mention facts which he later relies upon in this court, and that direction applies to this interview of Mr Stephen at which he makes no replies to the questions put to him.  And you will consider again his explanations for not giving any answers: again his solicitor was there and it was felt that the police were not being entirely frank as to what Roma Brooks had told them, and so he decided that he would not answer any questions.  Well, if you think that is a good reason, an adequate explanation for not giving the explanation then that he has now given, well ignore the fact he did not answer questions when interviewed. But if you do not think that is an adequate explanation, then you can then take that into account as some additional evidence to support the prosecution case.
 
As I already directed you, Miss Brooks made the statement in the absence of Mr Stephen, so the statement on its own is not evidence against Mr Stephen; you must be satisfied that she made the statement as a result of the agreement reached with Mr Stephen.  [that, of course, is a reference to Miss Brooks's original statement to the police and not her interview]." 
 
The complaint now made is that when Mr Stephen was interviewed by the police they told him that Miss Brooks  had in her statement to them, in her interview with them, admitted participation in a conspiracy.  Nothing was said about any part of the statement in which she suggested or may have suggested that it was all regarded by her as a joke. It was argued that it was unfair of the police to do that, and therefore unfair to Stephen to draw any conclusions from his refusal to answer questions and his failure to give the explanation that he advanced in evidence at trial.  That unfairness could have been demonstrated to the jury if they had been shown Miss Brooks's record of interview.
      This point, and more particularly the judge's decision to give a direction as to the failure to refer in interview to Mr Stephen's defence, initially caused us some concern, but on reflection we are satisfied that there is nothing in the complaint. Mr Stephen's case as put to the jury was that he was not prepared to participate in the interview because he and his solicitor thought that the police were not being frank in what they told them.  The issue for the jury, so far as there was an issue at all, was not whether that belief was justified, but whether it was honestly held, and if held whether it explained Mr Stephen's silence. A deception, if there was one, that Mr Stephen did not know about could not affect that issue.  Moreover, if  the police told Mr Stephen that Miss Brooks had made full admissions that would seem to be more, rather than less, reason for Mr Stephen indignantly to explain what he thought to have been her true attitude.  The defence case seems to be that if Mr Stephen had seen Miss Brooks's statement, or been told its full contents, he would then in agreement with her have told the police the full story.  It is, however, difficult to see how a lack of frankness or disclosure can be explained just by the absence of a particular trigger to that frankness.
      We should also say, on the merits of the matter, that the actual statement of Miss Brooks, which we have carefully read, in our view falls very far short of being a ringing endorsement of the case that Mr Stephen sought to put at the trial.  It is difficult to extract from the record of interview that which the defence said was there.  Miss Brooks appeared to us rather to be saying that she had not thought much about what she had been asked to do because she thought that Mr Stephen was innocent of the robbery and was being unfairly treated by the police.  If that was the substance of what she said, she was indeed admitting, or at least not denying, participation in the offence of conspiracy.  Further, the interview started with the police officers putting to her that on arrest she had admitted the offence by  saying that she was guilty and had signed the officer's pocket book to that effect.  She denied that that was her complete attitude, but she did not, in our judgement, on the face of the interview do that in convincing terms.  If the interview had gone before the jury the whole of it would have had to have been put, and not just such parts as the defence chose to rely on.  Even leaving aside the issue of relevance of the interview, we would be hard pressed to think that its introduction would, in fact, have assisted Mr Stephen's case.
      Some judges might, however, have concluded that in all the circumstances it would have been better not to invite the jury to consider the effect of Mr Stephen's silence on this point.  However the direction that the judge did give, allied to what he had said on the general topic earlier, cannot be faulted.  In any event the case against Mr Stephen on this count was, in our view, overwhelming, particularly in the absence of any contrary explanation of her conduct from Miss Brooks: an explanation that in view of her plea it was not, of course, open for her to give.  Mr Stephen's conviction on count four is, in our view, not unsafe.
 
Other grounds of appeal advanced by Mr Owen
  
Mr Owen submitted after the prosecution had closed its case that the case against him should be dismissed.  The judge did not agree, referring in particular to the reply that, on the (admittedly challenged) police evidence, Mr Owen had given when asked on arrest where the gun was.  Mr Lyons was reduced to arguing before us that that evidence was ambiguous.  That concession, which was properly made, and which was certainly the least that could be said, was, of course, fatal to the suggestion that there was nothing for the jury properly to consider.  The judge's ruling was entirely right.
      Mr Owen submitted alibi evidence from himself and in the shape of section 23 statements of three witnesses.   Two of those witness had criminal records for dishonesty.  One of them had told lies about another matter in the case, as the jury were properly told.  Mr Owen complained that the prosecution had not satisfactorily disproved that alibi, more particularly because they had not called evidence to challenge that of Mr Owen's witnesses.  That submission, which it is fair to say was settled by counsel other than Mr Lyons, was quite hopeless, and Mr Lyons did not seriously press it.  The matter was one for the jury, entirely properly instructed on it as they were.  The same is the case  with Mr Owen's general claim of lack of safety, based on the foregoing matters; the difficulties of the identification evidence; and the occurrence of a similar robbery in the area, on the same night, committed by persons other than Mr Owen and Mr Stephen.  There was ample material on which the jury properly instructed, as they were, could convict on these counts.
      For the reasons that we have stated these appeals are dismissed.