Page1 Nottingham City Council v Mohammed Amin CO/3733/99 High Court of Justice Queen's Bench Division Crown Office List Divisional Court 15 November 1999 1999 WL 1048305 Before: The Lord Chief Justice of England and Wales (Lord Bingham of Cornhill) and Mr Justice Harrison Representation Monday 15 November 1999 Mr C Lewis (instructed by the Legal Services Division, Nottingham City Council) appeared on behalf of The Appellant. Mr M Beloff QC and Miss H Mountfield (instructed by Messrs Nelsons, Nottingham NG1 7BQ) appeared on behalf of The Respondent. Judgment Monday 15 November 1999 The Lord Chief Justice: Section 37 of the Town Police Clauses Act 1847 empowers a local authority to license hackney carriages to ply for hire within a specified area. By section 45 of that Act it is an offence for any person to ply for hire with any carriage within the specified area without a licence applicable to that area. These are plainly measures to control and regulate the supply of taxi services to the public. The meaning of plying for hire was explained in Nottingham City Council v Woodings [1994] RTR 72, but is not in issue in this appeal. An information was preferred by the Nottingham City Council against the respondent alleging that on 22 October 1998 he had as the driver of a car registration number G312 BUY plied for hire in Lower Parliament Street, Nottingham, without a licence permitting him to do so, contrary to section 45 of the 1847 Act. That information came before the stipendiary magistrate for Nottinghamshire sitting in Nottingham on 8 July 1999. He dismissed the information on the ground that the evidence against the respondent had to be excluded under section 78 of the Police and Criminal Evidence Act 1984 in the reasonable exercise of his discretion, having regard to decisions of the European Court of Human Rights and the planned implementation of the Human Rights Act 1998 in October 2000. The city council appeal against that decision by case stated. It is to be observed that the proceedings before the stipendiary magistrate followed a somewhat strange course. Counsel now representing the respective parties were not present at the hearing, but we understand that the solicitor then representing the driver, the present respondent, did at the outset raise an issue with regard to exclusion of the evidence under section 78 and the European Convention on Human Rights. The stipendiary magistrate, however, took the view that those questions were better deferred until the end of the case with the result that the prosecution evidence was called and the witnesses cross-examined. The defendant was called and he was cross-examined. The submission was then made that the evidence which had already been given on behalf of the prosecution should be excluded. Reliance was placed on the European Convention and the matter was adjourned for written submissions, in the light of which the stipendiary magistrate made the decision already mentioned. The essential question as it seems to me for decision by this court is whether the stipendiary magistrate erred in law in reaching the conclusion which he did. The
Page2 facts of the case as admitted or found were clear and simple. The respondent was the driver of a licensed taxi from an area adjoining, but not including, the area of the Nottingham City Council. That licensed vehicle was G312 BUY, the subject of the information. On 22 October 1998 the respondent was driving this car in Lower Parliament Street, Nottingham, in the area of the Nottingham City Council in which the vehicle was not licensed. The vehicle was fitted with a roof light which was capable of being lit, but which was not lit up at the time of the relevant encounter. Two special constables in plain clothes flagged the car down and the respondent stopped. The two constables asked the respondent to take them to a specified destination. He agreed and carried them to that destination in the car. On reaching the destination they paid him the fare for the journey, which he accepted. Also at the destination the respondent spoke to two enforcement officers of the Nottingham City Council. On the stipendiary magistrate's findings there was no evidence to show that the respondent had offended on any earlier occasion or on this particular evening until this event. The stipendiary magistrate described the special constables as agents provocateurs, but in my judgment that is to treat as a primary fact a judgmental issue at the heart of the case. The respondent gave evidence at the trial and said that he had been under a mistake when he picked up the passengers, but the stipendiary magistrate rejected that evidence. He found that there was no conversation in which the respondent had asked the officers for identification and that he had not in the course of that conversation suggested that he was in the city to collect a pre-arranged fare. The magistrate found that the respondent's spoken English was not good, but that his understanding was better, and that there had been no misunderstanding when he had accepted the passengers. The magistrate rejected the evidence of the respondent when it conflicted with that of the constables. Thus, in a nutshell, the respondent was driving in the middle of Nottingham a car which was licensed as a taxi, but not for that area. Two pedestrians hailed him. He stopped, picked them up and carried them for a fare to their destination. The stipendiary magistrate was in the event left with no explanation why the respondent was in the middle of Nottingham in the car, where he was coming from or where he was going, and there was no explanation which the magistrate accepted as to why the respondent had picked up the passengers when he was not licensed to do so. There was, however, no evidence of any pressure exerted by the constables or any persuasion of the respondent, and he was not wheedled into doing what he did. In paragraph 6 of the case stated the magistrate said: I was of opinion that: (a) based on my findings of fact, there could be no question of the Respondent being in any misunderstanding as to the circumstances in which he accepted the two fares as passengers. As his evidence was not believed, there was no basis of fact upon which he could be acquitted. There are further expressions of opinion, culminating in: (f) Accordingly, I concluded that the evidence of the special police constables must be excluded by Section 78 of the Police and Criminal Evidence Act 1984 in my discretion reasonably exercised having regard to decisions of the European Court and the planned implementation of the Human Rights Act in October 2000. In their approach to this case the parties have found significant common ground. It is, first, common ground between them that entrapment is not a defence to a criminal charge in England and Wales. The authority for that is the well-known decision of the House of Lord in R v Sang [1980] AC 402. It is furthermore, however, common ground that the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow evidence to be given on
Page3 which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It is plain from that provision that, in exercising its discretion, the court has to make a judgment whether the admission of the evidence would render the trial unfair. If the court concludes that the admission of the evidence will render the trial unfair, it will exclude it. If it concludes that it will not have that adverse effect, then it is likely to allow the evidence to be admitted. If the case is near the borderline then the court has to exercise a judgment, taking account of all the relevant circumstances of the case. Although at the time when R v Sang was decided section 78 of the 1984 Act had not been passed, it is important to note nevertheless that all members of the House of Lords, as one would expect, accepted that a trial judge was empowered to rule against the admission of evidence if the effect of admitting it would be to render a trial unfair. Our attention has been crucially drawn to Article 6 of the European Convention on Human Rights. It is unnecessary in my judgment to cite the terms of that familiar article. It is directed to ensuring that a defendant has the benefit of a fair trial and the European Court has on more than one occasion emphasised that it is the fairness of the whole proceedings which must be looked at and not the fairness of any subordinate procedure in isolation. There have been a series of cases in this country where the commission of a crime has involved the participation not only of the party charged as a defendant but also of the person acting in a law enforcement role. Such a situation can give rise to difficult questions concerning the reception of evidence, in particular questions as to whether it would be fair or unfair to the defendant if such evidence were admitted. It seems to me that the court has adopted a fairly consistent line. On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else. It is in my judgment unnecessary to recite in detail the facts and findings in cases giving rise to that distinction, but they include DPP v Marshall [1988] 3 All ER 683, R v Christou [1992] 4 QB 979, R v Smurthwaite and R v Gill [1994] 1 All ER 898, London Borough of Ealing v Woolworth's Plc (20.12.93, unreported, save in [1995] Crim LR 589), R v Latif [1996] 1 WLR 104, and Taunton Deane Borough Council v Brice (10.7.97, unreported, save in 31 Licensing Review, October 1997, page 24). Those are all cases in which, on their individual facts, the evidence in question has been held to have been properly admitted or it has been held that the evidence should have been admitted. In other words, they were all cases in which the evidence in question was held to fall on the permissible and not the impermissible side of the line which I have indicated. The present case, it is submitted, raises a new question in the light of the developing jurisprudence of the European Court of Human Rights in Strasbourg. It should be made plain that, in exercising the judicial discretion conferred by section 78 of the 1984 Act, judges may and should have regard to the international obligations of the United Kingdom expressed in the European Convention. If authority is needed for that proposition it is to be found in R v Khan [1997] AC 558, particularly at pages 571D G, 571H 572B, 580E G, and 583B D. The crucial question is whether, as the stipendiary magistrate held, the jurisprudence of the European Court obliged the stipendiary magistrate to rule that evidence should be excluded. That submission has been supported by reference to
Page4 three cases in the European Court of Human Rights. The first is Schenk v Switzerland (1988) 13 EHRR 242. That case was on its facts very different from the present, but it is relevant to draw attention to paragraph 46 of the judgment on page 265 where the court said: While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk's trial as a whole was fair. The second in the trilogy of cases is Ludi v Switzerland (1992) 15 EHRR 173. As appears at page 177 of the report of that case the applicant was complaining of an incitement of him by an undercover agent to take part in drug trafficking: see paragraph 20. At page 199, paragraph 42, it is recorded that the applicant complained that he had not had a fair trial. The main thrust of that complaint appears to have been that he was not confronted by his accuser, who never gave evidence in court since his identity as an informer was withheld. At paragraph 43 on page 200 the court held: The admissibility of evidence is primarily governed by the rules of domestic law and as a general rule it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings, considered as a whole, including the way in which the evidence was submitted, were fair. In the absence of any opportunity for the applicant to confront and question his accusers the court, not surprisingly, concluded that he did not have a fair trial. The linchpin, however, of the argument addressed by Mr Beloff QC on behalf of the respondent is Teixeira De Castro v Portugal (1998) 28 EHRR 101. It will be necessary to look at that case in more detail in a moment. It suffices at this point to record that Mr Beloff does, as I understand him, submit that the effect of that authority is such as to oblige the stipendiary magistrate, giving effect to European jurisprudence in exercising his discretion under section 78, to rule against the admission of the two constables in this case. He accepts the implications of that submission by accepting that the cases of DPP v Marshall, London Borough of Ealing v Woolworth's Plc and Taunton Deane Borough Council v Brice would have in the light of that decision to be decided differently. He acknowledges that statutory provisions which permit the test purchase of goods believed to infringe the statutory provision or regulation may be incompatible with the Convention insofar as they permit reliance to be placed on the fact of that purchase for purposes of prosecution. It remains therefore to see whether Teixeira De Castro v Portugal does indeed provide authority for the proposition to which Mr Beloff commits himself. The facts of the case are set out on pages 104 and 105 of the reported decision, and they speak for themselves. It is plain that the public security police initially approached a suspected drug dealer named VS in order to obtain hashish from him. He having, despite a number of approaches, failed to put them in touch with a hashish supplier, they approached him again to see if he could put them in touch with a supplier of heroin. At this stage he mentioned the name of the applicant, as a result of which an approach was made to the applicant which led to a deal on the strength of which the applicant was prosecuted, convicted and sentenced. The court summarised the domestic law of Portugal and also the progress of the proceedings in Portugal. In paragraph 27 they drew attention to a distinction in Portuguese law between an undercover agent and an agent provocateur: The former is someone who confines himself to gathering information, whereas the latter is someone who actually incites people to commit a
Page5 criminal offence. The court then summarised the proceedings before the Commission and it is plain from paragraph 28 that the complaint made by the applicant was that police officers had incited him to commit the offence. The Commission, whose opinion is set out on page 109 of the report, recorded him as complaining that he did not have a fair trial insofar as the police officers acting as actual agents provocateurs incited him to commit an offence of which he was subsequently convicted. He submitted, they recorded, that he would never have committed the offence if the police had not incited him to do so. The applicant emphasised that the officers acted on their own initiative and were not subject to any judicial supervision. He submitted that their conduct was therefore that of agents provocateurs. He denied the allegation that he was already predisposed to commit the offence. The Government, on the other hand, whose submissions to the Commission are reported beginning at paragraph 40 of the report, submitted that the police officers in question could not be regarded as agents provocateurs. A distinction was to be drawn, the Government argued, between cases where an undercover agent actually creates a previously non-existent criminal intention from those where the suspect is already predisposed to commit an offence. The Commission considered that the case must be examined as a whole and repeated yet again that the conduct of prosecuting authorities in the prevention and investigation of criminal offences was primarily a matter for regulation by domestic law. The Commission, however, recognised that it had a duty to ascertain whether the proceedings considered as a whole were fair. In paragraph 47 the Commission noted a number of aspects which it considered to be important. These included such matters as the fact that the police officers in question were not carrying out an anti- drug-trafficking operation under the supervision of a judge, but rather acting on their only initiative. They further placed reliance on language used by the Supreme Court. All these matters led the Commission to consider that the police officers' actions were essentially if not exclusively the cause of the offence being committed and the applicant being sentenced to a fairly heavy penalty. The matter came before the court and essentially the same arguments were repeated. It is recorded in paragraph 31 of the judgment that the applicant maintained that he had no previous convictions and would never have committed the offence had it not been for the intervention of those agents provocateurs. In addition, the police officers had acted on their own initiative without any supervision by the courts and without there having been any preliminary investigation. The Government in paragraph 32 repeated its argument and continued to contend that A distinction had to be drawn between cases where the undercover agent's action created a criminal intent that had previously been absent and those in which the offender had already been predisposed to commit the offence. Reference is made to the Commission's decision and the court reiterated that the admissibility of evidence was primarily a matter for regulation by national law. The court's task under the Convention was not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. The court observed in paragraph 36 that the public interest could not justify the use of evidence obtained as a result of police incitement and in paragraph 38 continued: In the instant case it is necessary to determine whether or not the two police officers' activity went beyond that of undercover agents. The Court notes that the Government have not contended that the officers' intervention took place as part of an anti-drug-trafficking operation ordered and supervised by a judge. It does not appear either that the competent authorities had good reason to suspect that Mr Teixeira de Castro was a drug- trafficker; on the contrary, he had no criminal record and no preliminary investigation concerning him had been opened. Indeed, he was
Page6 not known to the police officers, who only came into contact with him through the intermediaries VS and FO. Furthermore, the drugs were not at the applicant's home; he obtained them from a third party who had in turn obtained them from another person. Nor does the Supreme Court's judgment of 5 May 1994 indicate that, at the time of his arrest, the applicant had more drugs in his possession than the quantity the police officers had requested thereby going beyond what he had been incited to do by the police. There is no evidence to support the Government's argument that the applicant was predisposed to commit offences. The necessary inference from these circumstances is that the two police officers did not confine themselves to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence. Lastly, the Court notes that in their decisions the domestic court said that the applicant had been convicted mainly on the basis of the statements of the two police officers. 39. In the light of all these considerations, the Court concludes that the two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial. Consequently, there has been a violation of Article 6(1). It is in my judgment apparent that there are various matters to which the court attached significance in the passage quoted, which would not be readily applicable in English proceedings: for example (and obviously) no anti-drug-trafficking operation would be ordered or supervised by a judge. Similarly, if there were evidence pointing to the propensity of a given defendant to commit an offence of a certain kind, that would not be adduced in evidence before the trial court. Nor in the ordinary course would there be evidence of whatever report or suspicion had given rise to the presence of the two police officers who were in Nottingham on the occasion in question. Nonetheless, Mr Beloff is entitled to, and does, attach significance to the precise language which the court uses in paragraph 38 of the judgment. He submits that the two police constables in Nottingham did not confine themselves to investigating the respondent's criminal activity and did not do so in an essentially passive manner. Accordingly he submits that they are to be regarded, in the light of that authority, as having instigated the offence or incited it and so as having acted as agents provocateurs so as to render the proceedings as a whole unfair, there being no other significant evidence against the respondent. While I for my part am willing accept that, on a precise and literal reading of the court's language, Mr Beloff is entitled to make that submission, I am wholly unwilling to accept the far-reaching proposition which he bases on it. It seems to me that that conclusion has to be understood in the context of the whole argument before the court on that occasion and on the special facts of that case. It is true that in the present case the criminal activity alleged was much more minor. It is also true that the facts are much simpler and that they simply cannot lend themselves to the construction that this respondent was in any way prevailed upon or overborne or persuaded or pressured or instigated or incited to commit the offence. The question for the stipendiary magistrate was whether, on the facts which he found, the admission of this evidence had such an adverse effect on the fairness of the proceedings that he should exclude it, or whether (to put the test in a different way) the effect of admitting it was to deny the respondent a fair trial. In my opinion the only possible answer to both questions was No. If an
Page7 affirmative answer had been possible then the question became one for the judgment of the stipendiary magistrate and for his exercise of discretion. In my judgment, however, an affirmative answer was not possible and it follows that the stipendiary erred in law in ruling as he did. I add that the case stated posed a series of six questions for the opinion of the court following an unusually lengthy summary of the submissions made by the parties. Although the magistrate is not to be criticised, since the questions were very largely those submitted to him, it is in my judgment important that the question raised by a case stated should be as simple as possible and directed to the crucial question on which the case turns. It is also desirable that the summary of the competing submissions should be reasonably succinct. In my judgment, for reasons already given, the stipendiary magistrate did reach the wrong decision. I shall invite submissions as to what consequence follows from that. Mr Justice Harrison: I agree. MR LEWIS: My Lord, in that case I would invite you formally to allow the appeal, to remit the matter to the magistrates' court with a direction to convict because there is no basis on which he could be acquitted. THE LORD CHIEF JUSTICE: And you want that result, do you? MR LEWIS: My Lord, we do. THE LORD CHIEF JUSTICE: Do you resist that, Mr Beloff? MR BELOFF: My Lord, I cannot resist that, subject to whether or not I may have leave to take this matter to their Lordships' House. (Counsel were invited to formulate a question on a point of law of general public importance and submit it to the court for consideration of certification. Permission to appeal to the House of Lords was granted.) Crown copyright