DENTON v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Delroy Denton, is a Jamaican national, who was born in 1960 and is curently detained in HM Prison Full Sutton. He is represented before the Court by Mr D. O’Connell, a lawyer practising in Godalming, Surrey. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a Jamaican national, who came to the United Kingdom in April 1993 using his brother’s passport and was granted permission to remain for six months. On 12 May 1994, the applicant was arrested in a public house in Brixton, on suspicion of drug dealing and possession of an offensive weapon. Upon arrest he gave the name Clive Lloyd Johnson. After being interviewed by the police, he was arrested and interviewed again by an Immigration Officer called Fotheringham as a suspected ‘overstayer’. Fotheringham knew the applicant’s true identity and in a report dated 13 May 1994, described the applicant as ‘extremely violent’ and indicated that he should be detained. However, over the following few days, Fotheringham, together with PC Barker from “SO11”, (a special operations unit of the Metropolitan police), recruited the applicant as a police informer. With the assistance of Fotheringham the applicant completed an application for political asylum and was released on temporary admission to the United Kingdom on 15 May 1994. The applicant was not charged with any drugs offences despite the fact that a substance later proved to be cocaine had been found on him when he was arrested in May 1994. In June 1994 he appeared before the Magistrates’ Court in respect of the offence of possession of an offensive weapon and was fined, having pleaded guilty in the name of Clive Lloyd Johnson. Immigration Officer Fotheringham was at court. The same month, the applicant had his first official meeting with his handlers and began to supply information about the activities of Jamaican ‘Yardie’ gangs operating in the United Kingdom. In December 1994 the applicant was arrested for an offence of rape and was detained in custody. Whilst detained he was visited by Fotheringham and another officer and on 9 January 1995 PC Barker and a DS Bayes attended the Magistrates’ Court in an attempt to persuade the prosecutor not to object to bail. On 1 February 1995 the rape proceedings were discontinued and, although they would later deny it, the applicant believed this was as a result of intervention by his ‘handlers’. Between September 1994 and February 1995 the applicant gave information to police about the alleged criminal activities of Shirley Graham, known as ‘Miss V’, involving drug dealing and false passports. On 23 March 1995, the applicant gave information to PC Barker about Miss V’s son, Wayne Graham. Graham was arrested the same day in possession of a handgun and ammunition and was subsequently sentenced to three years’ imprisonment. On or about 19 April 1995, a Wednesday, Marcia Lawes (known as ‘Zena’) was murdered. She had been stabbed some twenty times and the prosecution case was that she had been raped before being killed. Her body was not found until the evening of Friday, 21 April 1995. The door to her flat was unlocked and the telephone had been left off the hook. On 9 May 1995 the applicant was interviewed as a potential witness. His former girlfriend, Samantha Thompson, with whom he was still living, was a friend of Zena and his fingerprint had been found on a glass in the deceased’s flat. The applicant said he knew of her, but had not actually met her before the afternoon of 18 April 1995, when he went to her house with a mutual friend, Mark Williams, to buy cannabis. He did not disclose that he had had a sexual relationship with the deceased. In June 1995 the applicant’s DNA profile was matched with semen samples taken from the deceased’s vagina and he was arrested for her murder. When interviewed in June he said that he had been having a sexual relationship with the deceased for some time and had returned to her house on Tuesday, 18 April 1995 to have sex with her, but she had been alive when he left and she must have been murdered some time after he last saw her. The fact that the applicant was an informant became known to the officer in charge of the murder investigation, DCS Cook, who informed the Crown Prosecution Service (CPS) in July 1995. Cook was told by a colleague about a telephone call the applicant made from prison to PC Barker, in which he had asked if something could be ‘sorted out’. (He later confronted PC Barker about the call, who denied any knowledge of it). DCS Cook visited SO11 and looked at the applicant’s Informant file but did not see anything of relevance to the murder investigation and took no further action. Senior officers at SO11 gave instructions that there was to be no further contact with the applicant. In October 1995 the murder proceedings against the applicant were discontinued, counsel having advised that there was insufficient evidence to proceed, and he was released from custody. As far back as December 1994 the decision had been taken to refuse the applicant’s application for asylum, but the letter of refusal was not served on him and no steps were taken to deport him. At some point after the October 1995 decision to discontinue the murder proceedings, contact was resumed between the applicant and PC Barker. DCS Cook obtained authority to resume the murder investigation and on 24 November 1995 Dionne White made a witness statement in which she said that she had been with the applicant on an occasion in May 1995 when he appeared worried about police questions and asked her what ‘forensic’ meant. He had a bag in which she saw a pair of bloodstained trousers, which he then took to be dry cleaned. Dionne White was the niece of Wayne Graham and the granddaughter of Miss V. She had not made a statement to the police during the initial investigation. The police also then obtained further evidence from a mobile telephone company tending to show that the applicant was near or at Zena’s flat on Wednesday morning, when the prosecution believed her to have been murdered and when the applicant claimed to have been at home. The applicant was re-arrested on 23 December 1995. At the start of the trial, on 1 July 1996, the prosecution made an application for public interest immunity (PII) in respect of the fact that the applicant was an informant. The applicant had not told his own legal representatives and the defence team were not aware of his status as an informant. Prosecuting counsel told the trial judge that the applicant was an informant and that he had had involvement with the police and with Fotheringham. Counsel had not been told that the applicant had informed on the relatives of the prosecution witness Dionne White and both prosecuting counsel and the judge were unaware of any possible relevance to the trial of the fact that the applicant was an informant. Prosecuting counsel made it clear to the judge that he did not know whether the applicant had told his own solicitors or counsel that he was an informant. The judge ruled that there should be no order for disclosure. After the PII hearing, DCS Cook was approached by a journalist who said that he knew the applicant was an informant and asked if the officer knew anything about the discontinuance of the proceedings in October 1995 being as a result of an approach to the CPS by SO11. DCS Cook brought the conversation to the attention of prosecuting counsel. Counsel took the view that the conversation had no relevance to the trial and it was not brought to the attention of the judge. During the trial, the same journalist discussed his knowledge of the applicant’s informant activities with members of the deceased’s family and others in the public gallery, some of whom were friends of prosecution witnesses. One of the group told the journalist that he knew the applicant was an informant and he wanted him to be convicted of the murder. The deceased’s sister discussed the conversations with DCS Cook, who did not confirm or deny that the applicant was an informant. The prosecution evidence at trial included details of when, where and to whom the applicant had made telephone calls, revealing inconsistencies in his account, the telephone evidence that he was near to the flat on Wednesday morning, evidence from Samantha Thompson and Mark Williams about the applicant’s movements and the account of Dionne White. In addition, the clothing found on the deceased, stained with the applicant’s semen, was not the same as the clothing she had last been seen in by Samantha Thompson in the early hours of Wednesday, tending to suggest that the applicant had had sexual intercourse with her after, rather than as he said, before that time. In cross examination Dionne White’s credibility was to some extent damaged when she claimed that on 19 April 1995 the applicant told her the police were harassing him about a murder, that is, before the body had been discovered. The applicant disputed the alleged time of death and relied on the evidence of a pathologist to the effect that the murder was more likely to have taken place on Thursday, 20 April 1995. He maintained that he had not seen the deceased after they had consensual sexual intercourse on Tuesday, 18 April 1995. He called alibi evidence for the Thursday evening, including evidence from a Leon Lynn, (against whom it later transpired he had informed). On 19 July 1996 the applicant was convicted of the murder by a majority of ten to two. On the evening of the applicant’s conviction, a story on the television news referred to the applicant as a police informant. Subsequently, information about the applicant’s activities as an informant appeared in newspaper articles, a television programme and a book. In December 1995 the applicant was served with the letter written in December 1994, confirming that his application for asylum had been refused. Following a complaint by the deceased’s relatives, a police inquiry was held (the Hoddinott Inquiry). From about June 1997 a large volume of material was collated. Those who made statements in the course of the inquiry included Dionne White and Miss V. It was clear from the statements that they and many others had suspected or known before the murder that the applicant was an informer and that he had given information leading to the arrest and imprisonment of Wayne Graham. It was also suspected that he had informed on a relative of another prosecution witness (who had not in the event been called to give evidence at the trial). It was not clear whether they had said this to the police when they initially gave their statements in the murder investigation. DCS Cook gave evidence to the inquiry and confirmed that he was unaware of any connection between the information given by the applicant and the murder investigation until after the trial. The applicant lodged grounds of appeal in March 1997, and his application was referred directly to the Full Court of the Court of Appeal, who granted leave to appeal. The court ordered disclosure of statements and documents from the Hoddinott Inquiry and part of the applicant’s Informant file. It was only as a result of the disclosure that the applicant’s representatives became aware of the information the applicant had given about the relatives of Dionne White and others and of the discussion between the journalist and DCS Cook during the trial. They also became aware that a senior officer from SO11 had attempted to see the applicant in the cells during his trial to inform him that his status as an informant had become known, but that this was no fault of SO11. The CPS representative at court had refused the officer permission to visit the applicant. The applicant lodged more detailed grounds of appeal in May 2001 following the disclosure ordered by the court. In January 2002, the applicant argued before the Court of Appeal that, (a) the Crown should have disclosed to the applicant’s representatives the fact that he was an informer and the nature of the information he had given, (b) the Crown should have made the same disclosure to the trial judge, (c) the judge was wrong to make no order for disclosure on the PII hearing, (d) the restricted information given to the trial judge meant that he was unable properly to fulfil his functions and discretion as to disclosure, (e) the Crown should have disclosed to the applicant and/or his lawyers and the trial judge the fact that some prosecution witnesses knew he was an informant, (f) when it became known, the Crown should have disclosed to the judge, the applicant and/or his lawyers that press and members of the public knew of the applicant’s status, and (g) the reason the applicant had not told his lawyers of his informant status was because his handlers had put pressure on him not to. The Court of Appeal heard evidence from the applicant, his handlers and DCS Cook. The court noted that the information given by the applicant (in particular that relating to the relatives of Dionne White) was relevant to an issue in the case, but there was no duty on the Crown to disclose it as it was known to the applicant, who chose not to disclose it. The judge had been correct to make no order for disclosure. There were good public policy reasons why information given confidentially to the Crown by the applicant should not be disclosed to his lawyers without his permission. The court did not accept the applicant’s argument that pressure had been put on him by his handlers not to reveal his status to his lawyers. Having heard evidence from the applicant on the point the court found him to be untruthful. As to the submission that the applicant and/or his lawyers should have been told when it became apparent that the knowledge of his informant status had become public, Lord Justice Mantell said: “It is a matter of some concern that not even the judge was told of this development. Had it come to the knowledge of the appellant it may very well be that it would have worked a change of heart with regard to telling his counsel about his informant status.... There was no longer any good reason for keeping the information to himself and counsel would have been free to cross-examine Dionne White as to motive. We say ‘free to cross-examine’ advisedly. It would have been a matter requiring careful thought. After all ... cross-examination on the lines suggested could have had a serious down side, namely the loss of the alibi witness, Leon Lynn, against whom the appellant had informed and the introduction of the risk of character being put in issue.” The Court of Appeal considered that DCS Cook was an accurate and truthful witness and accepted that neither he nor prosecuting counsel had any reason to know the relevance of the applicant’s informant status to the issues in the trial. The court went on to conclude that the possible advantage to which the applicant could have put the information was not without risk, and in any event the Crown’s case did not depend on Dionne White’s evidence. Evidence of the applicant’s guilt was overwhelming. On 15 February 2002 the appeal was dismissed. The procedure to be applied when determining questions of disclosure was governed at the time by common law. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Cr.App.R. 302 (“the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive material” which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as including: “... (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger;...” According to paragraph 8, “...in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence.” The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that: “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.” The Court of Appeal’s judgment in R. v. Davis, Johnson and Rowe ((1993) vol. 97 Cr.App.R. 110) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including, where appropriate, making an application to the court ex parte. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. In R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 746), the Lord Chief Justice, giving the judgment of the Court of Appeal, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “...on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”. Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. In that respect, the more full and specific the indications given of the issues the defence were likely to raise, the more accurately the prosecution and judge would be able to assess the value to the defence of the material. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure. In R. v. Winston Brown ([1994] Cr.App.R. 191), the Court of Appeal referred to the duty of the trial judge to keep material under review and to the duty of prosecuting counsel to inform himself fully about the content of any “disputed material”, so that he was in a position to invite the judge to reassess the situation if appropriate. The court recognised that there was a limit to the scope of discovery required of the Crown however, and for example, there was no legal duty on the Crown to disclose material which was only relevant to the credibility of a defence witness. The House of Lords ([1998] A.C. 369), confirming the Court of Appeal decision, observed that: “...the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown.”