Trial - Prosecution - Prosecutorial misconduct - Court of Appeal

R v Maxwell: Supreme Court (Justices of the Supreme Court: Lords Rodger, Brown, Mance, Collins, Dyson): 20 July 2011

In June and October 1996, robberies were committed at the homes of two elderly brothers, B and J. On both occasions the robbers used violence and took money. On the second occasion, J sustained injuries which later resulted in his death.

In the ensuing police investigation, C, a professional criminal and supergrass, provided the police with information and witness statements implicating the defendant and his brother. They were charged with robbery and murder.

At the trial, C’s evidence was central to the prosecution case. He vigorously denied suggestions by the defence that he was expecting or receiving any benefits from the police for his evidence. In February 1998, the defendant and his brother were convicted of murder and two robberies. The defendant was sentenced to life imprisonment for the murder of J, to be served with concurrent 12-year terms for the robberies.

Following the convictions, there were allegations in the local press that the police were planning to pay C a large sum of money upon his release from prison. Subsequently, the Criminal Cases Review Commission (CCRC) decided to investigate. The police carried out detailed investigations into the activities of the officers which formed the basis of the CCRC report in November 2008. The findings of the report revealed that the police had systematically misled the court, the Crown Prosecution Service and counsel by concealing and lying about a variety of benefits received by C.

It was revealed, for example, that the police had paid him sums of money, taken him to brothels, allowed him to consume drugs in their company and had not investigated allegations that he had committed violent attacks. The clear conclusion of the report was that a number of senior police officers had conspired to pervert the course of justice. They had: deliberately concealed information from the court; colluded in C’s perjury at trial; lied in response to enquiries following conviction; and perjured themselves in an ex parte leave hearing in the Court of Appeal.

On 25 November 2008, the CCRC made a reference to the Criminal Division of the Court of Appeal on the grounds that the convictions had been procured by gross prosecutorial misconduct on the part of the police. The defendant and his brother remained in prison during that period. Between October 1998 and September 2004, while in prison, the defendant had made a series of admissions of guilt freely and voluntarily to various persons. In December 1999, the Court of Appeal quashed the convictions of the defendant and his brother.

It concluded that if, during the trial it had become clear that the trial court had been deliberately deceived about the circumstances relating to C, the trial judge might well have stayed the prosecution as an abuse of process. Alternatively, the judge might have applied section 78 of the Police and Criminal Evidence Act 1984, and excluded the evidence of C altogether, in which case the defendant and his brother would have been acquitted. In those circumstances, it held that the decision to quash the convictions was inevitable.

The question also arose as to whether, in the light of the unchallenged findings of the CCRC and the clear and compelling evidence of the defendant’s guilt of a shocking murder, the interests of justice required a retrial. In particular, the Court of Appeal had to decide whether the police misconduct had so tainted the criminal process that it would, on that account, not be in the interests of justice to order a retrial.

After balancing the public interest in convicting those guilty of murder against the public interest in maintaining the integrity of the criminal justice system, the Court of Appeal found that it was in the interests of justice to order a retrial. The defendant subsequently pleaded guilty. He appealed to the Supreme Court against the decision to order a retrial.The issue was whether the Court of Appeal had been right to order a retrial in respect of the defendant. The defendant’s sole criticisms were that the case against a retrial was so strong that no reasonable court could have ordered a retrial and that the court did not properly take into account that the admissions to be relied on at the retrial were the product of the misconduct. Consideration was given to section 7 of the Criminal Appeal Act 1968, as amended.

The appeal would be dismissed (Lords Brown and Collins dissenting).

By the use of the words ‘may order’ in section 7 of the act, parliament had given the Criminal Division of the Court of Appeal a discretion to order a retrial following the quashing of a conviction on appeal if it appeared to the court that the interests of justice so required. The interests of justice was not a hard-edged concept. A decision as to what the interests of justice required called for an exercise of judgment in which a number of relevant factors had to be taken into account and weighed in the balance. In difficult borderline cases, there might be scope for legitimate differences of opinion.

A decision under section 7 of the act as to whether the interests of justice required a retrial called for an exercise of judgment which should only be upset on appeal if it was plainly wrong, in the sense that it was one which no reasonable court could have made or if the court had taken into account immaterial factors or had failed to take into account material factors.

The gravity of the alleged offence was an important relevant factor for the court to take into account when deciding whether to order a retrial in a case which was not complicated by prosecutorial misconduct. In a case where the issue of prosecutorial misconduct was raised by a defendant as a reason for refusing a retrial, the Court of Appeal might treat the case as to some extent analogous to a second category application to stay a case (that was where it offended the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case).

However, the analogy should not be pressed too far. The question whether the interests of justice required a retrial was broader than the question of whether it was an abuse of process to allow a prosecution to proceed (whether or not by retrial). When the court was deciding whether to stay a prosecution on the grounds of abuse of process, the gravity of the alleged offence was plainly of considerable weight to weigh in the balance.

Society had a greater interest in having an accused retried for a grave offence than for a relatively minor one. In considering the relevance of prosecutorial misconduct in the original proceedings to the question of whether the interests of justice required a retrial, it was helpful to start by asking whether the interests of justice would require a retrial in circumstances where the prosecution evidence at the new trial would be incontestably free of taint. In deciding whether or not the interests of justice required a retrial, it was surely clear that the Court of Appeal would be entitled to disregard earlier misconduct since it would have no effect at the retrial.

The only justification for refusing a retrial on the grounds of the misconduct in such a case would be to mark the court’s disapproval of that historical misconduct and to discipline the police. However, that was not the function of the criminal courts. The weighing of the balance was fact-sensitive and ultimately called for an exercise of judgement (see [18]-[24], [26] of the judgment).

In the circumstances of the instant case, it could not be accepted that the conclusion that had been reached by the Court of Appeal had plainly been wrong. It had been faced with a difficult balancing exercise. In deciding what the interests of justice required, the Court of Appeal had been right to respect the strength of the public interest in seeing that those against whom there was prima facie admissible evidence that they were guilty of crimes, especially very serious crimes, were tried.

That public interest was all the greater where, as in the instant case, there was compelling evidence of guilt. As regards the criticism that the Court of Appeal did not properly take into account the fact that the admissions were the product of the misconduct, in substance, that was a complaint that the court had not placed sufficient weight on.

The Supreme Court, like any appellate court, should always be slow to allow an appeal on the grounds that the decision-maker had failed to place sufficient weight on a relevant fact which it had rightly taken into account. It should be a rare case where the Supreme Court would interfere with the exercise by the Court of Appeal of its power to order a retrial. It was possible that a differently constituted Court of Appeal would have arrived at a different conclusion from that reached by the court in the instant case.

Different courts could legitimately differ as to the weight they accorded to relevant factors. However, the Supreme Court should not interfere with the Court of Appeal’s decision to order a retrial in the instant case on the grounds that it had failed to accord sufficient weight to the ‘but for’ factor unless it had been satisfied that the Court of Appeal’s decision had plainly been wrong. That had been a difficult case because on the one hand the police misconduct had been so egregious, and on the other hand the alleged offence had been so shocking.

The Supreme Court should not interfere with the way the balance had been struck by the court in the instant case. The decision had not been plainly wrong. There was a strong case for concluding that the interests of justice would be served on the facts of the instant case by requiring the defendant to face trial for the most serious of crimes and requiring the offending police officers to face disciplinary and possibly criminal proceedings.

On the face of it, there was a strong case of conspiracy to pervert the course of justice and forgery. No explanation had been provided to the court as to why there had been no such disciplinary or criminal proceedings. It might have been the case that, if the offending police officers had been disciplined and indeed prosecuted, the argument that a retrial based on the defendant’s admissions would have been offensive to the Court of Appeal’s sense of justice, and propriety would have lost much of its force. In that way, the interests of justice would have been served.

Society would have signalled its intense disapproval of the behaviour of the police. However, the interests of society in having a fair trial of those against whom there was new and compelling evidence untainted by the misconduct would have been served by a retrial. To put it at its lowest, that was a tenable view to hold as to what the interests of justice required on the facts of the instant case. The question of whether the interests of justice required a retrial of the defendant should not depend on the fortuity of whether the offending police officers had been disciplined and/or prosecuted for their appalling misconduct. The Court of Appeal had been right to say that the balancing exercise in the instant case had been difficult.

However, there had been a strong case for ordering a retrial (see [34]-[38] of the judgment).

Accordingly, it had not been shown that the Court of Appeal had erred in law in deciding to order a retrial (see [38] of the judgment).

Decision of Court of Appeal [2010] EWCA Crim 2552 affirmed.

Patrick O'Connor QC and Matthew Sherratt (instructed by Harrison Bundey) for the defendant; David Perry QC and Louis Malby (instructed by the Crown Prosecution Service) for the Crown.