Neutral Citation Number: [2010] EWCA Crim 2849
Case No: 200901037C5 & 200901038C5
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ BLOFELD
T19990332
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/12/2010
Before :

LORD JUSTICE HOOPER
MR JUSTICE DAVIS
and
MR JUSTICE FOSKETT
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Between :

	(1)  ROBERT CLARK
(2)  CHRISTOPHER DRURY	
Appellants	
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	THE CROWN	Respondent	

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MR. A. JONES QC and MR. G. Y. MOHABIR appeared for the First Appellant.
MR. A. JONES QC and MS. H. LLEWELLYN-WATERS appeared for the Second Appellant.
MR. M. ELLISON QC, MR. M. ALDRED and MS. L. COLLINS appeared for the Respondent.

Hearing date: 16th November 2010
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Judgment

LORD JUSTICE HOOPER : 
1.	During the course of the hearing we announced our decision that the appeals would be allowed and the convictions quashed.  Mr Ellison QC then made an application for the retrial of the appellants upon counts 10-13. We reserved our decision on this application. 
2.	We now give our reasons for quashing the convictions and for our conclusion that there should be a retrial for both appellants on these counts.
3.	Because we are ordering a retrial we shall keep our reasons for quashing the convictions brief. 
4.	On the 3 February 2000 after a 48 day second trial at the Central Criminal Court (His Honour Judge Blofeld as he then was and a jury), the appellants were convicted (by 10:2 majority verdicts in each case) and sentenced as follows:
Robert Clark

Count 1	Conspiracy to supply Class B drugs
(Nutley count)	3 years’ imprisonment 	
Count 2	Perverting the course of public justice
(Nutley count)	7 years’ imprisonment concurrent	
Count 10
 	Conspiracy to supply Class B drugs
(Guildford John count)	4 years’ imprisonment concurrent	
Count 11
	Perverting the course of public justice
(Guildford John count)	8 years’ imprisonment consecutive to count 10	
			
Total Sentence		12 years’ imprisonment (varied on appeal to 10 years’ imprisonment)	
5.	Clark was acquitted of count 3 (conspiracy to supply Class B drugs) & count 4 (perverting the course of public justice) (the Skipsey counts), count 5 (conspiracy to supply a controlled Class A drug) & count 7 (corruption) (the opium counts), count 8 (conspiracy to supply a controlled Class A drug) & count 9 (perverting the course of public justice) (the cocaine in the ceiling counts).
Christopher Drury

Count 10
	Conspiracy to supply Class B drugs
(Guildford John count)	4 years’ imprisonment	
Count 12
	Perverting the course of public justice
(Briar Cottage count)	7 years’ imprisonment consecutive	
Count 13
	Perverting the course of public justice
(Briar Cottage count)	5 years’ imprisonment concurrent	
			
Total Sentence		11 years’ imprisonment (varied on appeal to 8 years’ imprisonment)	

Drury was acquitted of count 5 (conspiracy to supply a controlled Class A drug) (the opium count) and count 8 (conspiracy to supply a controlled Class A drug) (the cocaine in the ceiling counts).
6.	Both were granted parole having served about half of their sentences.
7.	Both the applicants, at the time of the alleged offences, were serving police officers.  In general terms the offences involved the alleged ‘re-cycling’ of drugs or money seized from suspects, to the financial benefit of officers in the squad and others with whom the officers conspired. They were tried with two other officers from the squad called Pearce and Lawson both of whom were acquitted. In the words of the respondent in the written argument prepared for this Court:
2. In March 1996, after he had been arrested for supplying drugs, John Cudworth [known as Guildford John], who had previous convictions, asked the arresting officers if they were going to steal his drugs, as had happened on the last occasion he had been arrested. He was encouraged to make a formal complaint and did so, as a result of which Clark and Drury were interviewed and denied what he alleged. As his complaint was unsupported no further action was taken. 
3.	In October 1996, Clark’s informant, Evelyn Fleckney, was arrested for conspiracy to supply drugs and on 2nd March 1998, she was convicted and sentenced to a total of fifteen years imprisonment. Shortly after she had been sentenced she agreed to assist the Complaints Investigation Branch (‘CIB’) of the Metropolitan Police in relation to her corrupt activity with Clark. 
4.	In July 1998 DC Neil Putnam, a fellow SERCS officer, was arrested by CIB and he also agreed to assist CIB. Both Fleckney and Putnam admitted, and in due course pleaded guilty to, a number of offences connected to their criminality involving SERCS police officers. 
5. 	The incriminating evidence against the Appellants came from three sources: Putnam; Fleckney; and the criminals whose property was stolen and their associates or neighbours, who had witnessed money or drugs being taken. 
6.	Putnam and Fleckney were put forward by the prosecution at trial as witnesses that could be believed as to their evidence related to the offences indicted, but also as witnesses generally tarnished by their own admitted, or exposed, lies and criminality. As a result of their clearly unreliable nature the case proceeded upon the basis that the jury would inevitably be warned (and were warned in clear and forceful terms) to be extremely cautious before acting on either Putnam’s or Fleckney’s evidence by itself, and to look to see if any material part was confirmed by a wholly independent source (i.e. having ruled out any realistic possibility of cross-contamination). Each was therefore treated as being at the ‘extreme end’ of unreliability in the terms described by Lord Taylor C.J. in R v Easton [1995] 2 Cr.App.R. 469 in the guidance given by this court shortly after the repeal of the requirement for warnings and corroboration by section 32 of the Criminal Justice and Public Order Act 1994 [Arch 4-404i]. The prosecution case was, that because Putnam and Fleckney had not been known to each other when relevant events had occurred other than as passing acquaintances and had then been kept quite separate from and incommunicado of each other when assisting CIB, that if both made the same allegation, they did so wholly independently of each other. This aspect of the prosecution case became know as ‘the sterile corridor’. 
7. The defence case was, that in so far as Putnam and Fleckney alleged that Clark or Drury were involved in corruption, they were engaging in malicious falsehood, and that CIB had thoroughly misbehaved in both pressurising the ‘resident informants’ into making false allegations and allowing ‘cross-fertilization’ between them of their accounts, having unlawfully held them in police custody through a misuse of Home Office Production Orders. To the extent that other witnesses supported Putnam’s and/or Fleckney’s evidence of corrupt activity, the defence case was that they too were lying. Legal arguments seeking either a stay on the grounds of abuse, or the exclusion of Putnam and Fleckney’s evidence on the above grounds were, however, rejected.
8.	The investigation into Drury and Clark was known as Operation Russia.
9.	On 11 April 2001 the Full Court (Potter LJ, Hallett, Gibbs JJ) dismissed the appellants’ appeals against conviction and allowed the appeals against sentence, varying the sentences as shown above. On 23 July 2001 the Court certified that a point of law of general public importance was involved in the decision to dismiss the appeal against conviction and refused leave to appeal to the House of Lords.  On 11 February 2002 the House of Lords refused leave.  On 21 January 2003 the European Court of Human Rights declared that the application of the appellants was inadmissible.
10.	The appellants now appeal against conviction upon a reference by the Criminal Cases Review Commission (the “CCRC”) under section 9 of the Criminal Appeal Act 1995 on the basis that there was substantial non-disclosure by the prosecution. 
11.	The appellants applied in April 2003 for reviews of their conviction, whilst both serving their sentences. Clark had earlier made in 2001 an unsuccessful application to the CCRC for review of his sentence. The CCRC referred the convictions to this Court on 23 February 2009.  We express our thanks for, and admiration of, the work done by the CCRC. 
12.	Between February 2009 and the hearing of the appeal both sides have been involved in extensive investigations and preparation and there have been a number of directions hearings and one PII hearing. The appellants have also sought to widen the ambit of the appeal. We are grateful to both sides for the clarity and depth of their written submissions. 

13.	In the words of the respondent:
As a result of the content of the CCRC’s Statement of Reasons a completely new team of investigators, Crown Prosecution staff and counsel was formed to deal with the Appeal, and a protracted review of unused material has taken place since then. As a result of the issues (or potential issues) in the Appeal a significant quantity of unused material both directly related to the CCRC Statement of Reasons and indirectly arising from the issues it raises, or from other issues the Appellants have sought to make part of this Appeal, has been disclosed to the Appellants by the Respondent.
14.	To the ground relating to non-disclosure, two other grounds have been added by the appellants, both of which needed leave and neither of which, as it turned out, needed to be addressed by us.  The second ground was primarily based on fresh evidence and the third ground concerned the admissibility of the evidence of the two “resident informants” relied upon by the prosecution at trial, Evelyn Fleckney and Neil Putnam.  A person is described as a resident informant if he is taken from prison where he is on remand or serving a sentence and placed in a police station where he makes statements inculpating others in criminal offences as well as himself or herself.  We were informed that the prosecution do not intend to call Putnam if there were to be a retrial. Fleckney was not only a resident informant but had earlier been a registered informant and one of her handlers had been Clark.
15.	The fresh evidence relied principally upon by the appellants concerned an allegation made by Putnam in 2006. Given that the appellants succeed on ground 1 and that in any event Putnam would not be giving evidence on a any retrial, it was not necessary for us to reach any conclusion about this ground.
16.	As to the third ground, Mr Jones QC for the appellants asked us not to resolve it, whilst reserving his right to argue the point on any retrial.
17.	The prosecution served evidence of alleged “confessions” (in writing) made by the appellants whilst in prison in the course of seeking release on parole. The admissibility and reliability of those confessions is challenged. Mr Ellison (rightly) did not seek to convince us that the convictions were safe because of the confessions. But he made it clear that it was the prosecution’s intention on a retrial, if one were ordered, to rely on the confessions.  
18.	We turn therefore to ground 1, substantial non-disclosure. There was no dispute that there was a substantial amount of material which ought to have been disclosed and was not. For the purposes of the appeal we concentrated on the non-disclosure of material identified by the CCRC as categories II, IV, V and VI and three sets of notes disclosed during the appeal proceedings.  The material identified by the CCRC as category I which concerned Putnam’s credibility, had been disclosed prior to the first appeal and had been considered by the Court when dismissing the appeal. Mr Jones sought to re-open that part of the Court’s decision dealing with the category I material, but it became unnecessary for us to deal with this argument and with an argument about material placed by the CCRC in category III (the Hanrahan tapes). Nor was it necessary for us to deal substantively with arguments based on fresh evidence disclosed by the IPCC, which only very recently came into the possession of the appellants.
19.	Mr Jones submits that the material in the undisclosed categories II, IV, V and VI and the notes showed that:
[Diane] Morris and Fleckney were both implicating May and Clark in April 1998 in the same heroin allegation while detained as “resident informants”; 
the CPS and police knew by May-July 1999 that the Morris account of this allegation was open to attack.
20.	Mr Jones submits that therefore a jury could reasonably find that: 
any material which suggests that Morris was lying by necessary implication suggests that Fleckney was lying; and 
if Fleckney was lying, her evidence on all the other counts against the Appellants would be discredited or severely undermined.
21.	Of particular importance were the Category II documents, described as the Operation Ipswich Bundle. Operation Ipswich was concerned with an investigation into DC May (which led to no charges), whilst Operation Russia was, as we have said, concerned with the investigation of Clark and Drury. 
22.	Mr Jones points in particular to a document given to DC May and forwarded to the CCRC by the appellant Drury. Part of that reads:
SUMMARY OF EVIDENCE IN RELATION TO SUPPLYING DRUGS AND CORRUPTION WITH A POLICE INFORMANT: DIANE MORRIS 
Evelyn Fleckney; Drugs and Payment evidence
Between 1994 and early 1995 a meeting took place between DC Robert Clarke and another person described as a white male with quite long fair hair which was tied back in a ponytail, tall, quite well built but not fat and in his thirties, he gave his name as ‘Dave’.  This person is believed to be you, DC Jeffrey May.  The other person present at this meeting was a registered informant by the name of Evelyn Fleckney. 
The meeting took place at The Queens Hotel in Crystal Palace in DC Clark’s Regional Crime Squad, Police vehicle, which was a grey coloured….  At this meeting you informed Evelyn Fleckney that you were in possession of a kilo of heroin.
23.	May had a pony tail and used the name Dave when undercover. The accounts given to the police by Fleckney and Morris in separate statements are not straightforward but the effect of them is that Morris sold the kilo which Clark and May had given to Fleckney and that Fleckney paid some £13000 to May, whom she knew by that name. Fleckney was thus implicating both Clark and May in the transaction and Morris was implicating May in the same transaction. 
24.	The CCRC report explains why no proceedings were taken against DC May:
110. On 2nd July 1999, Mr Polaine of the CPS advised against proceeding with a prosecution against Mr May. The prosecution plainly dropped the case against May because there was no information available to support Morris’s allegations and because the correspondence between Morris and Fleckney led the prosecution to take the view that the damage which would be done to Morris’s credibility by cross-examination concerning the letters would be too great to overcome.  Mr Polaine records in the CPS Operation Ipswich advice to the MPS (Annex C, Tab 2):
“On all the information put before me, I have to say that there are grave difficulties in putting Morris forward as a witness capable of being believed.  Inter alia, it will be recalled that during the present investigation five meetings were arranged by CIB3 between Morris and May, none of which produced evidence against the suspect officer.  Indeed, following the fifth meeting at Holloway Prison on 11 September 1998, Morris said to her escorting prison officer, Lillian Henshaw, “I am going to stitch him up Miss”.
The concerns in respect of Morris as a witness are heightened by the suggestion from E that Morris and Fleckney have together made up allegations against May.  Little comfort can be drawn from the communication which is known to have taken place between Morris and Fleckney whilst the two women have been in custody.  Further, it seems that they were together at a special clinic after CIB3 had approached Fleckney at Holloway at the end of March 1998.  Although explanations have been forthcoming from them, it is not hard to see the ground which would be made by the defence in cross-examination on this.
25.	There was no dispute that if the material in categories II, IV, V and VI and the notes had been disclosed then it would have been used by the defence. There was also no dispute that if this material had been used, then the jury might reasonably have brought in different verdicts on counts 1 and 2.  The convictions on those counts must therefore be quashed. The prosecution does not seek a retrial on those two counts.
26.	The prosecution conceded counts 1 and 2 because (in a nutshell) this undisclosed material tended to show, so a jury may have found, that Fleckney was prepared, perhaps in collusion with another, to give false evidence against another officer, May (as well as Clark), implicating him in a very serious offence.
27.	Counts 1 and 2 (the Nutley counts) depended very largely upon the evidence of Fleckney and Putnam and it is at least likely (having regard to all the verdicts) that the jury took the view that the evidence of one supported the evidence of the other and that there had been no collusion between them.  It was an important part of the prosecution’s case, vigorously challenged by the defendants, that steps had been taken to achieve a “sterile corridor” between the two of them so that there was no possibility of any collusion at the time that they made the statements implicating the appellants in counts 1 and 2. In the words of the prosecution’s opening speech:
The principal issue you will have to consider is whether the evidence given by Evelyn Fleckney and former Detective Constable Putnam is reliable.  You will remember that they had very limited contact with one another whilst Fleckney was giving information about Clark.  Enormous care was taken by those investigating the present case to ensure that there was no contact with them while they were being de-briefed.  They gave independent accounts of the incidents that they were involved in.
28.	We turn to counts 10 and 11 for Clark and 10 for Drury.  Both counts concerned a man known as Guildford John, whose real name was John Cudworth. We summarise the evidence from the skeleton argument prepared by the respondents.
48.	John Cudworth was called ‘Guildford John’. He was a drugs dealer (primarily cannabis) whom SERCS had investigated in the early 1990’s with no result. 
49.	Fleckney gave information to Clark that Cudworth was an extensive dealer. The prosecution case was that Clark and Drury planned to steal drugs from Cudworth and did so on 30th January 1995 [SU p 146-149].
50.	Putnam gave evidence that the squad had investigated Cudworth for about 12 months and that Clark was in charge. Putnam had done some of the surveillance, but he had been on leave on the 30th January 1995 and had taken no part in the operation that day [SU p 150]. 
51.	Fleckney gave evidence that she had been involved with Cudworth for some time over cannabis and that he was almost a friend. They often met off the A3, either by some woods, or at the Tolworth Bowl car park, to exchange drugs. She was at the Tolworth car park to meet him on 30th January 1995 with her partner ‘G’, who got suspicious of a man standing at a bus stop who she then recognised as Drury. She accordingly phoned Clark to tell him of it and that her partner was getting nervous. A short time afterwards Drury was picked up. Cudworth then arrived in a car and parked alongside her. She had ordered a kilo of cannabis but he asked her if she would take two, and she agreed. He took it from the boot of his car, and she saw he had about eight kilos left of black cannabis. She was to pay him after it was sold. She knew he would be arrested sooner or later, as Clark had told her that Cudworth had been flagged; but when she telephoned Cudworth later that evening he said the police had robbed him of his cannabis. She then saw Clark the same evening and he had about 5 kilos of black cannabis, which had been stolen from Cudworth. She took it and sold some herself, and the rest was sold through another man. She did not know Aldershot or have any idea that Cudworth was in a multi-story car park there when he was arrested that day. She agreed that she had betrayed him, but everybody used each other in her trade. After Cudworth was sentenced to 4 years he had asked her to make a statement to complaints about Clark but she refused. He had never asked her if she had ‘grassed’ him [SU p 150-154].
52.	Cudworth gave evidence that he had been arrested on 9th March 1996 dealing cannabis again and that on the way back to the police station he told the arresting officers that the last time the police had taken it, and was something similar going to happen this time? The officers were angry at such a suggestion and thought he was trying to do some sort of deal. His account as to these events in 1996 was supported by the police officers who arrested him, who advised him to make a formal complaint, which he did three days later, providing a statement on 13th March 1996 about what had happened on 30th January 1995, which formed the basis of his evidence in the Appellants’ trial. He had picked up the ten kilos earlier on 30th January 1995, and he arranged by telephone to meet Fleckney at the Tolworth Bowl, where he had sold her cannabis many times before. He did not stay long because she and her friend mentioned that they had seen a couple of people who might be police officers. He gave her two kilos, leaving him with eight, and then went home to Denmark Square in Aldershot to pick up the telephone number of another potential customer. While he was at his house he saw a friend called Armstrong who also dealt in cannabis, but did not sell him any of the cannabis. He then drove, with two kilos of cannabis still in the boot, and six in a bag inside the car, which he was going to leave at a safe house near the church in Edward Street in Aldershot. He parked at one end of Church Street but was then ‘rushed’ by four SERCS officers as he got out and he dropped the bag with the six kilos in when they told him to do so. They told him they were looking for ‘class A’ and said they would “give him a life”, but he said he was not interested in doing any deals. Two of the officers moved him and his car to another car park. When he went to reach for a piece of cannabis in the car to put it in his mouth, they thought he was going for a gun. He said he had no gun, but had a roll of money in his pocket (£400-500). They then left taking all eight kilos with them, but left his roll of money. Because he was worried that the same thing might happen to his supplier and to Fleckney, he telephoned them both that night to tell them what had happened. [SU p 154-159]
53.	DI Bridger gave evidence that he was one of those who stopped Cudworth on 9th March 1996. En route to the police station Cudworth had asked if they were Dulwich officers and they said Surbiton; then Cudworth told them that he had been stopped by the Dulwich squad and they had stolen his drugs and let him go, and were they going to do the same? DI Bridger said No [SU p 165]. 
54.	DI Hayes of CIB saw Cudworth on 9th March1996 at Aldershot Police Station with DS McNamara. Two statements were taken on 11th and 13th March 1996. He denied the defence suggestion that he had gone to put pressure on Cudworth to make a false accusation, in fact, he had no idea what he was going down there about even, other than that a prisoner wanted to talk about allegations. Sgt Mills-Bishop gave similar evidence [SU p 168-169].
55.	Armstrong gave evidence that he had known Cudworth 10 years and was a convicted drug dealer. He had agreed to do some work on an appliance for Cudworth that day but in the end did not go into his house as he asked him to come back another time. Cudworth then telephoned him later and said he had been robbed of his cannabis by the police, but thought they may have been criminals pretending to be police, and that his cannabis had been taken. It had happened about a year before Cudworth had been arrested in Feb 1996. He had been to see him in prison to discuss the matter. He denied suggestions that he was lying and asked why he should want to come and put down four men he didn’t even know and that he had come to no dishonest script with Cudworth [SU p 166-167]. 
56.	Clark’s contact sheet timed at 11 am on 30th January 1995 recorded that Fleckney had told him that Guildford John was going to, or had, collected cannabis in ‘the soaps’ in New Malden, and to go to the multi-storey car park near Burger King in Aldershot, find his green Datsun and watch for a meet (SU p 194). The prosecution case was that the entry was untrue and made to cover for them being where they were to arrest Cudworth. The defence case was that it was true and what actually happened. 
57.	Clark gave evidence that Cudworth was under surveillance on 10th, 11th and 12th January 1995. By 30th January 1995 there was a static observation post on his house and they travelled straight to Aldershot from Surrey. Cudworth was not at home, but then the officer in the observation post, DC Reynolds, reported that Cudworth had arrived and had a ‘boot to boot’ meeting with another Jaguar, so he decided to go after Cudworth and arrest him. Cudworth was spotted going into Aldershot and they stopped him by the Church in Edwards Road. They made as routine a search as possible so as not to arouse his suspicions. The information had come from Fleckney. They did not take any drugs as there weren’t any [SU p 169-172]. 
58.	Sgt Blacketer gave evidence that a check had been made of the squad’s surveillance logs for 30th January 1995 but none had been found that showed that there had been any static observation of Cudworth’s house that day, the prosecution’s case being that there never was one [SU p 187-189].  
59.	Drury gave evidence that he was not at the Tolworth car park on 30th January 1995, as Fleckney had said, but that he had been told about 1.30pm to go to Aldershot with the rest of the team. He remembered hearing over the radio that Cudworth had a ‘boot to boot’ meeting with another car by his house, but then, having lost him, they saw him by chance in Edward Street and stopped him. It was he and Clark and Reynolds and possibly Hardy who stopped him. They said they were from the Regional Crime Squad, Cudworth seemed quite relaxed and the negative search lasted about 15 minutes before they left. The stop was not recorded to protect Fleckney [SU p 172-174]. 
29.	Although part of Fleckney’s evidence on these counts was not challenged, it was certainly challenged that Clark had said to her that he had about 5 kilos stolen from Cudworth and that he had given her those five kilos for sale. 
30.	Mr Ellison argued that the convictions were safe because of the other evidence from Cudworth, who importantly had made a complaint in 1996 long before Fleckney implicated Clark and Drury, and because of the evidence from Armstrong. Both Cudworth and Armstrong were however witnesses about whose credibility the jury were likely to have concerns. If the jury placed weight in reaching their conclusion on these counts upon the evidence of Fleckney as supporting evidence for Cudworth (and we cannot say that they did not) then the jury might reasonably have reached a different conclusion had they known more about Fleckney, as they would have done if the material had been disclosed.  Furthermore it may well be that if the jury had, in the course of their deliberations,  reached verdicts of guilty on counts 1 and 2 and had concluded that Fleckney was telling the truth, that would have an impact on their view of her evidence on counts 10 and 11. There was (understandably) nothing in the directions to the jury to prevent them from doing that.
31.	In these circumstances, although the evidence against the two appellants, if credible, was strong, it cannot be said that the convictions are safe in the light of the admitted non-disclosure.
32.	We turn to counts 12 and 13 which concerned Drury, Putnam who had pleaded guilty to the matter and two officers, Lawson and Pearce, who were acquitted.  The counts concerned events at a house called Briar Cottage. Again we take the evidence from the respondent’s skeleton argument.
60.	Cudworth gave evidence that he sometimes used the woods and the grow tubes at Briar Cottage to hide his cannabis, with Burns’ consent. Two to three weeks after his cannabis had been stolen in January 1995 [by Clark and Drury], Burns asked him to go to Briar Cottage and told him that the police had come there and taken the money that he was going to give Cudworth for drugs he had supplied to him (either £1700 or £800), and he showed him a search warrant. They were still unsure whether it was really the police or other criminals who were ripping them off. Eventually a friend of Cudworth’s confirmed they were genuine police from a vehicle index number. He told CIB about this in 1996 and he contacted Burns to ask if he was prepared to assist CIB and Burns came to see him. He said that he had received no offer of help from the police related to him giving evidence and that in fact it had caused him quite a lot of trouble in prison. He could not see how giving evidence now could possibly help him as he had served his sentence and given up drug dealing as next time he would get a long sentence. He said that Fleckney had visited him in prison and spoken of corrupt police officers, and that he had not sold her the whole ten kilos that day but was telling the truth [SU p150 – 163].
61.	On 10th April 1995 Drury, Pearce, Lawson and Putnam (but not Clark who was by then with the Flying Squad at Tower Bridge) went to Briar Cottage. The prosecution case was that Burns’ briefcase was found to contain cannabis and that Putnam then found £800 cash in a desk in the dining/music room which was stolen and split four-ways between them and one other [SU p196-197]. 
62.	Burns gave evidence that he was a friend of Miss Rose and her daughter Daisy, who lived at Briar Cottage, and that Burns occupied an old camper van in their garden. He had a cannabis habit, which Miss Rose would not have in the house, so he would smoke it in the van. The Jepson’s lived next door and they all knew each other. It was a fairly isolated spot. Burns bought smallish amounts of cannabis from Cudworth, and Cudworth would sometimes hide cannabis in the woods where there were old grow tunnels. On 10th April 1995 four police officers turned up in two cars. Drury and Putnam went to the back and Lawson and Pearce to the front where the door is never used. Miss Rose went out and was shown a warrant card and they said they had a drugs warrant. Miss Burns was the occupier and Burns was her partner. Burns told them that she had nothing to do with it, that the van was his home and that he would hand over all he had, giving them his briefcase with cannabis (8-9 ozs) in it, and his drugs paraphernalia straightaway. Drury (from his description) opened it and then spoke to another officer (Putnam) as the other two were coming into the hallway. Drury told the others to search the house, and Pearce searched the garden. Burns was shown some paper in a grow tunnel that Cudworth used to hide his cannabis in, and they said he should show them where the rest was. He said there was nothing else. In the sitting room of the house was about £250 and in a drawer in the music room was an envelope containing £800. Burns was in the music room with Putnam, who looked in the drawer, found the envelope and counted it before putting it back. When they were in the garden Drury had told him that he could either go down to the police station with the cannabis, or they could get a JCB in, or they could take the cash and go. He agreed they could take the cash. He asked if they had to take all of it and they said “Yes”. Drury told him not to tell anyone [SU p 197-202, 206]. It was put to Burns that there had been no cannabis found at all and that nothing had been said about any money, which he denied. He denied ever talking to Putnam since the search or knowing what he was saying now about it. He agreed that it was possible that the bag with the cannabis was produced and discussed while the other two officers were not present [SU p 207-208].  
63.	Miss Rose gave evidence that she was shocked and upset throughout the search and worried that her small daughter might come home while it was in progress. When the police arrived Burns had immediately offered his briefcase to them, saying it was nothing to do with her, to the one who fitted the description of Drury (5’10”, fit, hyped up and more aggressive than the others) who was with another whose description fitted Putnam. She remained in the kitchen and the living room while they searched, but it was not a thorough search, as they did not look in her handbag or under her mattress. They kept saying they were searching for heavy drugs. She was not at any stage in the music room, but she knew that there was an envelope with around £800 in a drawer in there, and £250 in the spice rack in the sitting room. Towards the end of the search she went and sat by the back door. At the end, the one who fitted Drury’s description said that they could take Burns away but that they were leaving him there with the cannabis: “you can carry on with what you are doing, we’re not interested” [SU p202-203]. She was adamant that Burns had offered up the cannabis in his briefcase [SU p 209]. 
64.	Mr. Andrews, a close friend of Miss Rose’s, was also present. He gave evidence that Burns had offered the cannabis at the outset to the one whose description fitted Drury, who opened up the bag it was in and the cannabis was about the size of a tennis ball, then he said: “There isn’t much is there?” He was adamant that when the cannabis was found all four of the officers were around at the time, but agreed that his statement said that he was not sure if any of the others had witnessed the handing over of the cannabis, but thought they must have. One of the officers had asked at one stage: “shall we trash it?” And had told Miss Rose that she would lose her house and child. He knew the cannabis had been left at the house by the police after they had left. He had taken down the registration of a vehicle they were using, a Ford P100 truck. He denied that there had been no cannabis produced.   [SU p204-209
65.	Evidence was given as to those who had been present in the search having discussed the same day what had happened with a neighbour, Gerry Hall, who had seen the police in the garden. Burns told him that evening that he had been ‘done over’ and that some money had been taken, and some drugs. Mr Andrews gave evidence that after the police had left Burns had told him that he still had his cannabis but that it had cost him £800 and he and Burns and Miss Rose had discussed it at some length. 
66.	Mr and Mrs Jepson lived next door in the other half of Rose Cottage. Mrs Jepson had written in her diary for the 10th April: “weird goings on. Drugs raid or not? Saw Cheila (Rose) at 5.30 very upset.” She remembered that Miss Rose had told her that day that the people who had been at the cottage had taken some money (£7-800) and left the drugs behind. So within a couple of hours of the raid in April 1995 those concerned were telling others these things, long before Cudworth made his complaint on arrest in March 1996. Mr. Jepson gave evidence that he saw Burns the following morning and he seemed terrified, telling him that they had taken well over £100 from his briefcase, in which there were drugs, that he had handed over to them immediately [SU p 211 – 215].
67.	Putnam gave evidence that either Lawson or Pearce told him that drugs had been found in a satchel and he had opened it and seen a sufficient quantity for supply, so Putnam had started to look for paperwork relating to any assets. Later he accepted that he was unsure who had told him of the finding of the cannabis. He found the £800 cash in the desk. Burns denied it was related to drug dealing and Putnam left it there. Burns asked if he might just get a caution. Outside he told Drury of the cash and Drury had asked, “Can it be nicked?” He said he had counted it in front of Burns, so it couldn’t be. Then they went into the house and Drury started to explain to Burns that they might have the cash, but Putnam interrupted and said he could keep the cannabis if they took the cash and Burns agreed. They split the money later, but Pearce and Lawson did not even know they had taken it. Later in the day when he told them they “had a little touch’’ and gave them ‘’a drink’’.  When the complaint was served in March 1996 Lawson had asked him what he had done and it was only then he told them it came from Briar Cottage. Later on the three of them had agreed that they would say that they found no drugs or money, but otherwise tell the truth. Putnam’s evidence made no clear case against either Pearce or Lawson [SU p 215-221]. 
68.	Drury gave evidence that Burns had never produced a brief case. Andrews was being quite difficult and aggressive as Miss Rose was upset. He was never shown any drugs or aware of any money. There was no agreement to lie between them. Lawson and Pearce also denied knowing of any drugs or money being produced or found but agreed that they were using the Ford P100 that day [SU p 235-248].  
33.	There was obviously a strong case against Drury, relying as it did in significant respects on the evidence of persons with no good reason to lie.  It may be noted that while Putnam gave some evidence with regard to the Briar Cottage counts, Fleckley gave no evidence at all on these matters.
34.	Mr Jones ultimately takes one point only.  If the jury had reached conclusions adverse to Drury on the Nutley counts and the Guildford John count before deliberating on these two counts, then they may well have placed considerable reliance on the fact, as they had found it to be, that he was an officer who corruptly abused his position when dealing with drugs cases. To put it another way, absent the other counts, it is more likely that the jury would have acquitted given the good character of Drury. Mr Ellison submitted that, in the light of the other evidence, the conviction was safe.  In our view, the submissions of Mr Jones have considerable force and we cannot be satisfied that these two convictions are safe in the sense which we have identified.
35.	We turn to the issue of a retrial.  
36.	Section 7(1) of the Criminal Appeal Act 1968, as amended, provides:
 Where the Court of Appeal allow an appeal against conviction . . . and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.
37.	Mr Jones, opposing the application for a retrial, prays in aid the stress which the appellants have suffered whilst in prison – particularly onerous, he says, given that they were former police officers – and after release and the “formidable press attention” which this case has, so we are told, attracted. The events with which the trial was concerned took place some 15 years ago. The two appellants now in their late 40s have served half their sentences and in difficult conditions because they were police officers. They have, it is said, re-established their lives having been punished for what the jury found that they had done.  He refers also to the stress on their families.
38.	Mr Jones drew our attention to one of the earlier cases concerned with the issue of a retrial, Saunders [1974) 58 Cr App R 248. Declining to order a retrial in circumstances where Mr John Mathew for the respondent  was not urging the court to order a retrial, the Court said:
But, on the other hand, it is not in the Court’s knowledge that it has ever before been contemplated that a retrial should take place some three and a half years after the original offence was committed.  A delay of one year, perhaps two years, is not uncommon, but none of us can remember a case in which it has been thought right to order a retrial after such a long period, when regard is had to the fact that this appellant has already stood his trial once, and has been in prison for a number of years and would, if a retrial is ordered, have to run the gauntlet and the hazards and prejudice of being tried yet again.
39.	Mr Jones points out that a witness called by Clark has now died. He points to the effect on the ability of the appellants now to have fair trial given the delay and the inability to make further enquiries in the light of the now disclosed evidence affecting, so it is submitted, Fleckney’s credibility.  Mr Ellison submits that agreement can be reached about the evidence given by the deceased witness, which was in any event on a peripheral topic (namely whether Clark and Fleckney had, as she alleged and he denied, an affair).  He submits that the trial judge will take all necessary steps to ensure that the delay does not preclude a fair trial.  We agree with Mr Ellison. The trial judge has the primary responsibility for ensuring that a defendant has a fair trial. Likewise it will be the task of the trial judge to ensure that the existence of material in the public domain about the first trial adverse to the appellants does not impinge upon the fairness of the trial.
40.	 Mr Jones submits that Clark has had to make substantial payments in respect of his legal aid at trial and that a further trial would involve both him and the other appellant making contributions to their legal aid. As far as the contributions are concerned, we have made an order that any contributions already paid are to be refunded and any amounts now outstanding are no longer payable.
41.	We asked Mr Jones about the compensation that the appellants might receive if the convictions are quashed and no retrial ordered. He was unable to help us saying that there were a number of issues which would have to be resolved before any compensation was payable. He suggested that disciplinary proceedings might still be instituted against the appellants thus precluding or impairing any compensation. It seems at least possible that if no retrial is ordered the appellants may well receive substantial compensation.  
42.	Mr Jones argues against a retrial on the grounds that the prosecution are not intending to call Putnam. We see nothing in that point.
43.	Mr Jones makes the point that it was the prosecution which failed to make proper disclosure and the prosecution should not be “rewarded” by being given the right to have a retrial. He submits there was a deliberate and dishonest decision not to disclose material which was required to be disclosed and this constitutes gross prosecutorial misbehaviour. Such behaviour should preclude a retrial both because it would not be in the public interest to sanction such behaviour and because it tends to suggest that other material remains undisclosed.  Given the very thorough re-examination of the case by the respondent following the reference, we see no merit in the latter point.
44.	We examined with Mr Jones and Mr Ellison evidence which might, on Mr Jones’ submission, suggest gross prosecutorial behaviour. 
45.	It is clear from his advices that Mr Rees, the disclosure junior, looked at a large number of documents and gave extensive advice about disclosure.  He was obviously concerned about, amongst other things, disclosing the identity of Morris as an informant. 
46.	It is clear from the CCRC report that the prosecution thought that some of the Operation Ipswich Bundle ought to be disclosed and had been disclosed and that Mr Rees had advised that he had made the assumption that “Any information concerning ‘the heroin job’ may reflect upon the credibility of Fleckney”.  
47.	Statements and interviews of Fleckney were disclosed implicating Clark and May in a conspiracy in 1994 to sell a kilo of heroin through, amongst others, Diane Morris, albeit that Clark was not interviewed about the allegation.  The CCRC explains why this material was not used by the defence. Without more it would have hurt rather than helped the defence case. (See paragraph 122 and 132).
48.	What was not disclosed was the Operation Ipswich Bundle which included the statements of Diane Morris (which would have shown that she was also a resident informant) and prison correspondence between Fleckney and Morris.  As we have seen, Mr Polaine was sufficiently concerned about that correspondence that he had written when advising that no proceedings should be taken against May:
Little comfort can be drawn from the communication which is known to have taken place between Morris and Fleckney whilst the two women have been in custody.
49.	It seems clear from contemporaneous material, that the prosecution team thought that Mr Polaine of the CPS had, as he had been instructed to do, disclosed the Operation Ipswich Bundle. The indications are that Mr Polaine had intended to do so and thought he had done so, but by oversight it was not sent to the defence.  In the words of the respondent:
82. It is the Respondent’s case that the prosecution at trial intended to provide the defence with that which they regarded as relevant concerning Diane Morris by the selection of the 177 page Operation Ipswich Bundle by junior disclosure counsel Jonathan Rees in consultation with the CPS lawyer in the case, Martin Polaine.  A copy of that bundle (The Ipswich) was delivered to Martin Polaine at the CPS offices on or about 26th August 1999 for onward transmission to the defence solicitors (shortly before Martin Polaine went off on leave). It is clear from the correspondence thereafter, and as appears in the CCRC’s statement of reasons, that Martin Polaine stated a number of times after the Appellants’ trial that the bundle had been disclosed. He later accepted, in the face of firm denial of that fact by the defence and an absence of any record at the CPS, that it had, by oversight, not been disclosed. 
50.	Following the Reference the new investigation team had identified material which could have shown that the Operation Ipswich Bundle had indeed been disclosed but, in the words of the respondent:
However it became apparent by October 2009 that disclosure could not be evidenced and accordingly the Respondent accepted in Court that the Appeal must proceed on the basis of non-disclosure of the ‘Ipswich’ Bundle.
51.	More concerning is the failure to disclose a statement of a prison officer that Morris had told her: “I’m going to stitch him [May] up, Miss” (CCRC Category IV).  It was not included in the Ipswich Bundle as one might have expected it to have been.  Mr Polaine understood its relevance to the May investigation (see para. 23 above).  Also of concern is what happened at a PII hearing which led to the judge deciding that information from a woman who was an associate of both Morris and Fleckney, (“E”), did not have to be disclosed. The information was to the effect that it was that woman’s belief that Morris and Fleckney had met in prison and concocted a story to implicate May (CCRC Category V) and, as Mr Jones would say, Clark also. Mr Jones in paragraph 105 of his skeleton argument draws our attention to a note from Detective Inspector Merrill to the effect that a telephone call made by Morris was viewed as an attempt by Morris to persuade E to give perjured evidence. 
52.	In a note for the trial judge on the PII hearing Mr Rees wrote:
Operation Ipswich D83, (page 584), is an information report resulting from a meeting between one of the investigating officers and E.  This document has been withheld.
On page 585, E claims that Morris and Fleckney met in prison to concoct Morris’ allegations against May.  Other parts of the report refer to her knowledge of Fleckney’s relationship with Clark.
E provided this information in confidence.  Diane Morris is a prolific criminal with many contacts in the criminal community.  It is thought that if E’ assistance became public knowledge, then her safety would be endangered.
It is perhaps of note that Fleckney does not directly implicate DC May in the “heroin job”, although she provides a description of the person who supplies the heroin which fits him [the pony-tailed man].  It would seem that the contents of the report are more a comment on Morris’ credibility than Fleckney’s.
53.	 The respondent says:
87.	The Respondent accepts that because of the non-disclosure of the 177 page Ipswich bundle, prosecution counsel unwittingly misled the trial judge at the PII application, in informing him that the background to the PII claimed re E was that material such as was in the 177 page bundle had already been disclosed. 
88.	The Respondent also accepts that had counsel conducting the PII application been aware of all the intelligence in the possession of the police regarding E’s reasons for believing that Morris and Fleckney had met in prison to concoct allegations, the judge would not have been invited in the terms that he was invited by the prosecution to order non-disclosure of the E information on the grounds that it was baseless opinion. Moreover, had he had the full picture regarding the E information (CCRC category V), we accept that the judge would probably have ordered its disclosure. 
54.	The respondent continues:
The additional material now disclosed, that was not known to trial counsel or provided to the trial judge was found by the new investigation within a file of papers dealing with the complaint that E had made against police relating to the search of premises, which was within the Operation Ipswich material. Junior disclosure counsel has noted [AF G tab 3], that the relevant documents bear dates very close to the date of the PII application, and has stated that he was not aware of the material during his review. The Respondent is unable to assist the Court definitively as to whether or not that complaint file was in the Operation Ipswich material when it was reviewed in the summer of 1999 pre-trial.  It accepts that a serious error occurred as a result of it not being, one way or another, drawn to the attention of disclosure counsel, whether part of the Ipswich material then or not. 
55.	Mr Jones is with cause very critical of what happened at the PII hearing.
56.	Mr Ellison submits that, on all the evidence now available, those involved with the disclosure process thought that the material in Categories IV, V and VI (welfare telephone calls between Fleckney and Morris at least one of which, Mr Jones suggests, tends to show a corrupt relationship) did not undermine the credibility of Fleckney on the Clark allegations. The note to the judge for the PII hearing supports that as does a statement from Superintendent Haydon.  Whilst we accept that explanation (on the basis of the written material before us), it is not easy to see how those involved with disclosure (and particularly Mr Polaine) did think that. The Fleckney/Morris statements read as a whole implicated both Clark and May and if there was material to suggest a concoction or stitch-up that would impact on the credibility of Fleckney (as well as Morris) with regard to the counts on this indictment.  
57.	Mr Jones additionally submits that the undisclosed material provided material to suggest that there may have been no effective sterile corridor between Fleckney and Morris (who the defence did not know was also a resident informant) and, at trial, that could have been used to undermine the prosecution’s case that there was a sterile corridor between Fleckney and Putnam and therefore should have been disclosed. That is debatable and in any case is not of material significance to counts 10-13.
58.	Mr Jones also submits that a comparison between the redacted notes of Detective Superintendent Jarrett in the undisclosed Operation Ipswich bundle and the now almost unredacted notes reveal an intention deliberately and dishonestly not to disclose.  
59.	Having considered the submissions with care we take the view, on the written material available to us, that the failures of disclosure in this case do not constitute gross prosecutorial misbehaviour. Nonetheless serious errors were made in the disclosure process and we must bear that in mind on the issue of the retrial.
60.	Mr Jones further submits that delay by the prosecution during the course of the CCRC investigation is a factor which we should take into account. The CCRC wrote in the report:
34. The CCRC reviewed the convictions between 2002 and 2009.  It is apparent from the correspondence referred to in the reports  that much of this delay was caused by the dilatory approach of the Crown Prosecution Service in responding to requests for information made by the CCRC (sample letters, Bundle J/1, see especially pages 52-63 and the complaint at page 63).  
61.	In a footnote the Commission refers to  a letter written to the CPS in which the Commission wrote: 
Mindful of the considerable delay in responding to these questions, the Commission respectfully requests that you respond at your earliest convenience.
62.	Whilst there may well have been some unjustifiable delay on the part of the CPS, we take the view that any delay was not such as to prevent a retrial.
63.	We turn to the submissions of Mr Ellison. He accepts that there were serious errors made in the disclosure process. He submits nevertheless that the public interest requires a case of this gravity involving police officers found by a jury to have been corrupt to be concluded with a verdict.  He points out that the appeal has only succeeded because the jury might reasonably have come to a different verdict had proper disclosure been made.  He also relies on the subsequent “confessions”. 
64.	Mr Jones sought to paint the matters covered by these remaining four counts as less grave than Mr Ellison was submitting. Mr Jones submitted that if the appellants had been drug dealers or robbers it is not likely that a retrial would be ordered after all this time and he may well be right. 
65.	In our view the principal factor favouring a retrial is that the conduct alleged against these two appellants (if true) strikes at the very heart of our society. Corrupt police officers (if that is what they are) must be identified for the sake of society at large and of other honest police officers.  The evidence against the appellants remains, in our view, strong, particularly the evidence against Drury on the last two counts.
66.	The principal factors militating against a retrial are the delay, the fact that the appellants now aged nearly 50 have served their sentences and are now leading law abiding lives and the fact that the serious errors which we have identified were made by the prosecution in the disclosure process.   There is of course no question of the appellants returning to jail, given that, if convicted, any sentences passed can be no longer than the original sentences. We accept that, as Saunders shows, the Court at that time would not have envisaged a retrial so long after the original trial. However, courts are now very used to hearing cases arising out of incidents many years ago and have developed procedures to ensure a fair trial. Nor do we see the ordering of a retrial as “rewarding” the prosecution or any encouragement not to make proper disclosure in future cases. 
67.	Balancing these competing factors, it is our view that it is in the interests of justice require that there be a new trial. The formal order to that effect will be made at the time of the hand down. 
68.	We add that we can see a strong argument that the purported confessions (following conviction) of both Clark and Drury also support the position that it is in the interests of justice that there be a retrial. There may well be a challenge as to the admissibility of those purported confessions but it can be said that it is desirable that that very issue of admissibility is itself decided by a judge at a further trial and (were they to be ruled admissible) the confessions then evaluated by a jury.  However, we did not understand Mr Ellison in terms to advance this point in this way and we are content to reach our decision that there should be a retrial without reliance on it.