No. 2003/01176/B4

Neutral Citation Number: [2003] EWCA Crim 3480
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  19  November  2003

B e f o r e:

LORD  JUSTICE  JUDGE
(Deputy Chief Justice for England and Wales)

MR  JUSTICE  SILBER

and

MRS  JUSTICE  COX

 - - - - - - - - - - - -

R E G I N A

- v -

ANDREAS  FINDLAY

- - - - - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR J DEIN QC appeared on behalf of THE APPELLANT

MR J JEREMY appeared on behalf of THE CROWN
- - - - - - - - - - - -

J U D G M E N T
Wednesday 19 November 2003
LORD JUSTICE JUDGE: 
1.	On 7 July 1989, in the Central Criminal Court, before His Honour Judge Smedley QC (as he then was), the appellant was convicted of conspiracy to rob. Three days later he was sentenced to nine years' imprisonment. On 20 December 1991, this court dismissed his appeals against conviction and sentence, as well as an appeal against conviction by a co-accused, Winston Francis, who had been convicted on the same indictment.
2.	The convictions arose out of a police investigation into a series of robberies and attempted robberies at sub-post offices in East London and Essex, carried out in the spring of 1988 by a group of Afro Caribbean males. 
3.	A police surveillance operation was carried out by officers attached to the Flying Squad at Rigg Approach. This Flying Squad has been the subject of a prolonged investigation by the Metropolitan Police Complaints Investigation Bureau into allegations of dishonesty, corruption and perversion of the course of justice. This conviction has now to be examined in the light of the melancholy results of the investigation into the integrity of the Flying Squad. 
4.	We must make it clear that it does not follow that each and every conviction after an investigation by, or involvement of, officers in the Flying Squad at Rigg Approach is to be treated as unsafe. Each case has to be examined on its merits. Although there are examples of occasions when convictions have been quashed, there are also examples where they have not been quashed because on examination the court decided that the convictions were safe.
5.	In February 2002 the Crown Prosecution Service wrote to the appellant expressing “very great concerns about the safety of the conviction recorded against you”, and advising him in the strongest possible terms that it was “essential that you seek legal advice immediately”. 
6.	The appellant sought a review of the conviction by the Criminal Cases Review Commission on 29 November 2002. The Commission has now referred the case to this court. The Crown has already indicated that it “feels unable to advance a reasonably arguable ground on which this conviction could be considered safe”. This is the Crown's position today. 
7.	We have examined these papers. In the light of the evidence now available, this conviction was rightly referred to this court. The Crown's position is realistic and sensible. We agree that the conviction is unsafe and that it must be quashed. We can therefore deal briefly with the relevant facts and the reasons for interfering with the decision of the jury.
8.	On 3 June 1988, four of the appellant's co-accused were arrested when they ran out of a sub-post office which they had attempted to rob. This attempted robbery appeared to be one in the sequence of robberies to which reference has already been made. 
9.	A series of planned police raids took place on 19 July 1988. During the course of his arrest, and again on the journey from his home to the police station, the appellant allegedly made a number of verbal admissions, admitting to being involved in one specific robbery which formed part of the sequence. The police failed to make any contemporary record or to provide an explanation why this was impracticable. At the police station the appellant was held incommunicado. He was said to have made written admissions during two police interviews. The judge decided that the evidence of police officers relating to interviews which were said to have culminated in written admissions was inadmissible and should be excluded. However, he admitted the verbal admissions in evidence for the consideration of the jury, which he left to the jury's evaluation.
10.	The appellant was convicted on a single amended count alleging a conspiracy to rob a specified sub-post office in Hainault. Not guilty verdicts were entered on the judge's direction on all the remaining counts so far as they involved the appellant. The evidence to sustain the single conviction depended exclusively on the appellant's alleged oral admissions to the police. 
11.	The raid on the appellant's home on the morning of 19 July was carried out by four officers, Detective Inspector Cutts, Detective Sergeant Miller, Detective Constable Verralls and Detective Constable Saunders. One police vehicle was driven by two uniformed officers, PC Suett and PC Baysfield. Entry was forced. After the appellant was hand-cuffed he was said to have admitted his involvement in the robbery. He was said to have repeated this admission while he was in the police car. The conversations were written up in police notebooks thirty minutes after arrival at the police station. The notes themselves did not record the time at which they were made, nor the reason why they could not have been made contemporaneously. The judge took the view that these breaches of the relevant Codes of Practice were of too trivial a nature to produce an unfairness. Accordingly, they were not excluded under section 78 of the Police and Criminal Evidence Act 1984. DI Cutts in evidence said that he was unaware of the requirement that when the notes were compiled they should have recorded the reason why they had not been made contemporaneously. DC Saunders said it was not practicable for him to make a contemporaneous note because he was hand-cuffed to the appellant. The exhibits officer, DC Verralls, made a note of the conversation at the appellant's home when he had returned to the police station. He did not sign the notebooks of other officers because he had his own notes. PC Suett and PC Baysfield did not compile their own note of the conversation in the vehicle, but instead signed the notes made by DI Cutts and DC Saunders.
12.	The custody record noted that both the verbal admissions and the written interview records excluded by the judge were shown to the appellant and that he declined to sign either of them. In his evidence the appellant denied any involvement in the robbery or in any conspiracy. He said that the police had burst into his home and that he had been punched in the face. A search of his home had taken place. He denied making any incriminating admissions; those attributed to him by the police were fabricated.
13.	If made, the comments attributed to the appellant provided ample evidence of his involvement in the offence of which he was convicted by the jury. Thus, at his home after he was hand-cuffed, the incriminating conversation allegedly included this passage:
DS Miller:We know you have been involved in post office robberies.
The appellant:I was only on one, I swear. I don't care what you've been told.
DS Miller:Which one do you say you did?
The appellant:The one near the Forest.
DS Miller:New North Road, Hainault?
The appellant:It's at Hainault, yes.
DS Miller:Who else was with you?
The appellant:Hold on, I don't like it. I won't name anyone.
On the way to the police station the relevant conversation was described in these terms:
DC Saunders:You've told us about the Hainault job.
The appellant:No, you told me.
DC Saunders:Well, we asked you about it and you said, 'the one near the Forest, Hainault', so you must know it otherwise you wouldn't know it was by the Forest.
The appellant:Course I know about it.
DC Saunders:Yes, but you said you were on it, which is more than knowing about it.
The appellant:Okay, okay, I stand by what I said. No names. That's all I done.
DC Saunders:What did you do on the job?
The appellant:Just went in with the others.
DC Saunders:How many of you?
The appellant:There was four of us.
DC Saunders:Who?
The appellant:No names.
14.	As a result of the investigation into the activities of the Flying Squad at Rigg Approach, DS Miller and DC Saunders are regarded as officers who cannot now be advanced as witnesses of truth. Miller was suspended from duty in March 1998. After investigation into allegations of dishonesty, corruption and perversion of the course of justice, following a disciplinary hearing he was required to resign from the Police Force in December 2001. Saunders, too, was suspended in 1998. He was charged with, and awaited trial on, counts of theft, handling and conspiracy with three other officers. That trial has now taken place. The Crown was unable to call a crucial witness and offered no evidence against him.
15.	DI Cutts and DS Verralls were also members of the same squad. Their position is less extreme than that of Saunders and Miller. However, in February 2002 they were said to be members of a larger group of officers who knew something of the corruption and misconduct which went on in the Flying Squad and acquiesced in it. 
16.	PC Suett and PC Baysfield, who had been present in the police vehicle, signed up to the notes written by Cutts and Saunders. They were not members of the Flying Squad and they did not fall within any group of tainted members of that squad. Their evidence, however, is quite insufficient to save this conviction.
17.	The evidence of Miller and Saunders was central to the case against the appellant. Indeed, without the evidence of the conversations which allegedly took place between each of them and the appellant, and given the exclusion of the written admissions, there was in truth no case against him. The appellant's position was, as we have recorded, that the entire account of his alleged admissions was a fabrication. Given the centrality of these admissions to the conviction, and the tainted sources upon which they depended, without making any finding against PC Suett or PC Baysfield, this conviction cannot be sustained. Accordingly, it will be quashed. In reaching this conclusion, we have taken notice of the potential dangers of over-reliance on accounts of conversations between police officers and suspects which are said to have occurred in places where no contemporaneous record could be made and where the safeguards for the defendant are at their least compelling and he or she is at his most vulnerable. 
18.	As there was no other admissible evidence against the appellant, we have therefore not felt it necessary to enquire further into two matters which may arise in subsequent cases involving the Flying Squad stationed at Rigg Approach and which the Commission may wish to consider in the course of investigation of such other cases: first, whether there may at some stage be sufficient evidence when the course of corruption which was to infect the squad actually began; and second, whether there has been, or is to be, any further development in the investigation into the officers in the squad who were regarded in early 2002 as marked by the general, rather than the specific, taint. We also hope that the Commission will be supplied not only (as it inevitably will) with a copy of this judgment, but also copies of judgments in other cases where convictions have been upheld as well as those when the convictions were quashed. No doubt, resources at the Commission will in future have to be deployed to investigate many of the recorded convictions on the basis of the evidence from members of this squad.
19.	MR DEIN: My Lord, might I mention one brief matter in relation to legal aid?
20.	LORD JUSTICE JUDGE: Yes.
21.	MR DEIN: Messrs Edward Fail were granted a representation order on 24 February 2003. However, prior to that they undertook a considerable volume of work, which I can itemise if necessary. My application is for the representation order of February 2003 to be back-dated to 21 May 2002, which was when they were first instructed by the appellant.
22.	My Lord, if I may respectfully say so, this is an application I have made in other cases -- not before this constitution -- which has been granted and I can, if necessary, take the court to the relevant provision. As I say, that is the application I make.
23.	LORD JUSTICE JUDGE: We agree.
24.	24. MR DEIN: Thank you very much.
25.	25. LORD JUSTICE JUDGE: Thank you, Mr Dein. Thank you, Mr Jeremy.