RAJCOOMAR v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr Jogendranath Rajcoomar, is a United Kingdom national who was born in 1952. At the time of the introduction of this application he was detained in prison. He is represented before the Court by Liberty, a non-governmental organisation based in London. The respondent Government are represented by Ms E. Willmott, Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, and as they emerge from the transcripts sent by the applicant of the domestic applications, rulings and judgments, may be summarised as follows. In December 1994 the applicant, a prison governor, was convicted of obtaining property by deception and sentenced to two years' imprisonment. While he was in prison, another inmate, Paul Dawes (“Dawes”), made contact and offered to introduce him to criminals who would deal with him after his release. Unknown to the applicant, Dawes was a registered police informer. Some of their conversations were recorded, and showed that, while the applicant was initially interested in credit card fraud and counterfeit currency, Dawes attempted to persuade him to become involved in the supply of heroin. Dawes was released in August 1995 and the applicant in November 1995. The applicant claims that after his release Dawes pressured him to meet. In January 1996 Dawes was again arrested on fraud charges. He was, however, released on bail and, on 25 January 1996, observed by the police, he met with the applicant. Dawes later introduced the applicant to an undercover police officer called “Arif”; Arif introduced him to an undercover officer called “Davinder”; and Davinder introduced him to another undercover officer called “Sam”. Over the next few months the applicant had conversations with these officers during which, he alleges, they pressurised him into supplying drugs, although he was interested only in credit card fraud and counterfeit currency. Some, but not all, of these conversations were recorded. The applicant agreed to sell heroin to Sam. On 10 June 1996 he provided Sam with a small sample, which he claimed to have bought in a public house. Twice, between 10 and 30 June 1996, he promised to sell Sam a kilogram of heroin, but on each occasion he failed to deliver. In the light of these failures, on 30 June 1996 the police detective in charge of the undercover operation decided to discontinue it. On 15 August 1996, the operation having been discontinued, the applicant initiated contact with Sam and again offered to supply a kilogram of heroin. After the meeting with Sam the applicant made a number of telephone calls to the Royal Cabs taxi firm in Stoke-on-Trent, which was owned by R., and where H. had worked for many years. Following these calls the applicant paged Sam to tell him that the deal was on. On 22 August 1996 the applicant was seen driving to Stoke from his home in Oxfordshire. His car was parked near the premises of Royal Cabs for over six hours. Towards the end of the afternoon, in response to a message, Sam telephoned the cab office and the applicant was put on the line to confirm that everything had been arranged. A few minutes later the applicant was observed driving away with two passengers in the car, which he parked near the home of H.'s girlfriend. Later that evening the applicant drove home, accompanied by R. It was the Crown's case that H. had supplied the heroin, and that at this point it was in the possession of R. On 23 August 1996, H, driving R's car, came to the Hilton Hotel near Warwick shortly after 8 a.m. He and his girlfriend waited in the reception area all morning. At approximately 9.30 a.m. the applicant and R arrived. H. showed no sign of recognition when they walked through the lobby. It was the Crown's case that H. was there to supervise the drugs deal, but he claimed to have come to the hotel to collect R. from an adulterous liaison. After arriving at the hotel, R. and the applicant separated, and the applicant made contact with Sam. R. rejoined them with a bag containing a kilogram of heroin of 46% purity and all three went to Sam's room in the hotel which had been fitted with covert surveillance equipment. R. handed over the drugs, Sam tested them and left the room, purportedly to fetch GBP 22,000 in cash. The applicant and R. were then arrested, as was H, still waiting in the hotel foyer. During his initial interviews with the police, on 23 and 24 August 1996, even after having been told that Sam was an undercover police officer, the applicant denied any involvement with the supply of heroin and suggested instead that Sam had brought the drugs to the hotel to falsely implicate him. The applicant, R. and H. were charged with being concerned in the supply of a Class A drug and indicted for trial in the Crown Court. It appears that in October 1996 Dawes, who was facing fraud charges, disappeared. On 15 November 1996 and 7 January 1997 there were directions hearings, at which the defendants were ordered to disclose the outline of their defences. The applicant indicated at that stage that it was his case that he had been “targeted by the police and pressurized into participation by [the] police”. The defence also indicated that they would apply to exclude the police evidence on that basis. On 4 February 1997 R. pleaded guilty, but the applicant and H. maintained their “not guilty” pleas. On 12 February 1997 the barrister who was acting for the applicant at the time wrote to the Crown Court in connection with the applicant's legal aid certificate. In the letter he stated, inter alia, that it was the applicant's case that he had been enticed to commit the offence by Sam, and he also indicated that the applicant claimed that Davinder had encouraged him to consider obtaining drugs to sell as an easy way of making money. This letter was seen and responded to by another judge, and the trial judge had no knowledge of it until he was shown a copy of it at the hearing on 6 August 1997. In February 1997 the applicant's legal representatives wrote to the prosecution requesting, inter alia, full particulars of all occasions when video or audio recording equipment had been used by the police. The prosecution responded on 26 February 1997 that “[t]hese details are included in Sam's witness statements”, without mentioning that there had been other undercover agents involved in the operation whose conversations with the applicant had been recorded. In response to the defence request to “provide the name, address and anything else known about [Davinder]”, the prosecution answered only that Davinder had not made a statement. On 28 February 1997 the prosecution successfully applied to the trial judge ex parte (that is, in the absence of any representative of the defence) for an order that the status of Dawes, Davinder and Arif, together with transcripts of conversations between these undercover agents and the applicant, be withheld from the defence on the grounds of public interest immunity (“PII”). As the judge later explained during the hearing on 6 August 1997, before this PII hearing on 28 February 1997 he had read transcripts of all the tape-recorded conversations between the applicant, Arif and Davinder. He granted the prosecution's application to withhold evidence relating to these undercover officers because, as far as he knew at that stage, the applicant was alleging only that he had been enticed to commit the offence by Sam, and it did not appear that evidence which the prosecution was not intending to use relating to the other undercover officers would be of any help to the applicant's case, whereas there was a public interest in not disclosing it in order to protect police methods of investigation. He made it clear that his decision would have to be reviewed in the light of the pending application by the defence to exclude the police evidence. On 8 March 1997 the prosecution wrote to the defence informing them that an application had been granted “for immunity from disclosing certain unused material in the possession of the police”. On 25 March 1997 the applicant's solicitors wrote to the prosecution asking “Do the Crown possess any information relating to Arif, Davinder and Paul Dawes?” but no information in this connection was disclosed at that stage by the prosecution. On 7 April 1997 the trial judge heard an application by the defence under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) to exclude the evidence of Sam on the grounds that he had unfairly enticed the applicant into committing the offence, that he had failed to keep a proper record of his conversations with the applicant and that the status of Davinder (who was believed by the defence to be the informant) was unknown and untested. Defence counsel indicated that if the application did not succeed, the applicant would plead guilty: his only “defence” to the charge was that he had been enticed. Sam gave evidence and, on the judge's instructions, revealed that Davinder was an undercover police officer. The applicant then gave evidence. During his cross-examination, his solicitor overheard prosecution counsel refer to the fact that Dawes had been the informant. Counsel for the applicant reported this to the trial judge and expressed his concern about the level of disclosure. On 8 April 1997 the trial judge adjourned the application to exclude the police evidence. He heard from prosecution counsel ex parte and ordered the Crown to make full disclosure of all the evidence relating to the role of the undercover police officers and the informant. The Crown indicated that if full disclosure were made and if the defence wished to continue with the application to exclude the police evidence at a later date, the Crown would call Arif and Davinder to testify. The defence were then told that Dawes was the informant, that Arif and Davinder were undercover police officers and that further covert recordings existed of conversations between the applicant and these two officers. The applicant's counsel immediately applied to have the proceedings stayed as an abuse of process on the basis, inter alia, that disclosure had not been made at the right time. The trial judge indicated that the application was premature until full disclosure had been made, and the applicant did not therefore pursue it at that time. Throughout April and May 1997 the defence wrote to the prosecution requesting copies of the informant log, details of the case against Dawes and confirmation of whether or not he had been an informant prior to this case, as well as surveillance logs, the notebooks of Arif and Davinder and confirmation as to whether the co-accused H. was an informant. The prosecution refused to provide any further information in relation to Dawes or H., and invited the defence to come and inspect the logs and notebooks at the police station. In June 1997 the defence wrote to the prosecution asking them to confirm that full disclosure had been made. The prosecution replied by a letter dated 6 June 1997 that they had made disclosure of all “unused material which is considered relevant”. On 6 August 1997 the applicant again applied to stay the proceedings as an abuse of process. It was argued on his behalf, inter alia, that the fact that full disclosure had not been made before 8 April 1997 had materially prejudiced his chances of persuading the judge that he had been entrapped, because as a result of the lack of disclosure and his ignorance at that point that Arif and Davinder were police officers, that recordings and transcripts of some of his conversations with him were in existence and that they could be called as witnesses, the applicant believed, at the hearing on 7 April 1997, that it was safe for him to give false evidence about his dealings with them without fear of discovery. The defence further argued that because of the circumstances in which the application under section 78 PACE had been adjourned, the prosecution had gained an unfair advantage, because they had already heard the applicant's testimony and would have a chance to prepare their case better were the application to be resumed. During the course of the hearing of 6 August 1997 the judge ordered that a tape recording of the ex parte PII application of 28 February 1997 be played in open court, to enable the applicant and his representatives to learn what material had originally been withheld from them and the reasons given by the judge for non-disclosure. It is alleged by the applicant that during the hearing the prosecuting counsel stated in open court that Dawes had been sent to the same prison as the applicant specifically to target him. The Government deny that any such admission was made. The judge rejected the application to stay the proceedings as an abuse of process. He held that the defence had been at fault in that there had been no indication prior to the hearing on 7 April 1997 that it was the applicant's case that he had been enticed to commit the offence by anyone other than Sam. Since the transcripts of the conversations with the other undercover officers would have been more likely to harm the applicant's case than to assist it, the prosecution had not acted wrongly in seeking to withhold them, and it had been reasonable for him (the judge) not to order disclosure on 28 February 1997. The defence had not established on the balance of probabilities that the applicant had been unduly prejudiced in his application under section 78 PACE: if that application were to be renewed, and if the applicant's evidence were to differ from that he gave on 7 April 1997, it would be for the trial judge to decide whether or not the inconsistency was understandable and resulted from his having been put in a difficult position because of the lack of earlier disclosure. Finally, the defence counsel referred to the exchange of correspondence in June 1997 and asked for confirmation that all the sensitive material in the case had been disclosed. Prosecution counsel indicated that all the evidence considered by them to be relevant had been disclosed, and the trial judge ruled that this was sufficient: it was not open to the defence to go on a “fishing expedition” in an attempt to force disclosure of sensitive information peripheral to the case; if they suspected that there was additional relevant material which had not been disclosed, they should write explaining their reasons for needing to know about it. The applicant submits that the trial judge heard at least two further PII applications by the prosecution in early 1998 relating to information concerning Dawes and, possibly, H.'s status as an informant. According to the applicant, the judge ruled that save insofar as they related to Dawes' involvement with the applicant, it was not in the public interest to disclose this information. On 23 March 1998 the applicant's case was again listed for trial. The defence requested an adjournment on the ground that the prosecution should make further disclosure concerning Dawes' criminal activities and his relations with his police “handler”. The judge could see no reasonable basis for adopting that course and accepted the prosecution contention that it was speculation and “fishing” on the part of the defence. It was further contended on behalf of the applicant that notes or counterfeit notes allegedly handed by Dawes to the officer in charge of the operation should be produced and tested for fingerprints. The judge described this matter as “utterly peripheral”, and refused the applications on the basis that the information sought was irrelevant to the issues in the applicant's case. The defence therefore proceeded with their application to exclude the police evidence under section 78 PACE, on the ground that the applicant had been entrapped into committing the offence by the undercover police officers with the aid of a participating informer. The applicant, Arif, Davinder and Sam gave evidence, as did the police officer who had been both in charge of the undercover operation and Dawes' “handler”. The applicant alleged that many of his conversations with the undercover agents which had not been recorded – or, at least, of which no transcripts had been produced by the prosecution – would have supported his claim to have been the victim of undue pressure to become involved in the supply of drugs. It was further argued on behalf of the applicant that the lack of disclosure before the hearing on 7 April 1997 had given rise to an abuse of process. On 8 April 1998 the trial judge held that the submissions on abuse of process and under section 78 of PACE went hand in hand. According to English law, entrapment or unfair incitement by an agent provocateur did not per se afford a defence to a criminal charge but it could constitute a ground for excluding prosecution evidence. The judge went on to review the facts of the case. He rejected the applicant's evidence as to entrapment and said that he was “entirely satisfied” that the applicant had not been pressurised to commit the offence. He found that none of the officers had overstepped the mark and that Dawes was not a “participating informant” as that phrase was understood and clarified by a Home Office Circular. The trial judge also found that it was the applicant who had brought up the subject of drugs as one of the things he was interested in at a very early stage and that the applicant had been a willing supplier of drugs at all times. Having made those findings, the judge went on to consider whether any of the evidence should nonetheless be excluded under section 78 of PACE by reason of any procedural irregularity. He ruled against exclusion, finding that nothing had been done in the case by the prosecution which amounted to a deliberate or inadvertent abuse of process, and that the applicant had not been caused prejudice. The applicant then changed his plea to one of guilty of being concerned in the supply of a controlled drug of Class A. He offered to make a statement to the prosecution but the prosecution said they would not wish to call him in the trial of his co-accused, H. He was sentenced to seven years' imprisonment. The applicant applied for leave to appeal, challenging the trial judge's rulings. The single judge found as follows: “All the [trial] judge's rulings were within his discretion, and in each case he directed himself correctly as to the applicable law. Specifically:- (i) on the information available to the prosecution on 28th February 1997, the existence and status of the undercover police officers was irrelevant. (ii) in August 1997, the judge ruled that the defence had fallen far short of establishing prejudice and that the points raised had no real substance. (iii) the judge was right to reject the (further) application for an adjournment on 23rd March 1998 (see e.g. 'utterly peripheral'...) (iv) in the main ruling on 8th April 1998, the judge, having summarised the law correctly, rejected the appellant's evidence and found that the appellant was not pressured, and indeed that the appellant himself brought up the subject of drugs at an early stage. Given these findings, the admission of the evidence was inevitable. ...” The applicant appealed to the full Court of Appeal which refused leave to appeal in a judgment of 18 February 1999. 's rulings, which had formed the basis of the grounds of appeal, and expressed itself to be in agreement with the single judge, that each of the trial judge's rulings fell plainly within the scope of the reasonable exercise of his discretion. The Court of Appeal in addition dismissed the defence contention that the trial judge, in rejecting the applicant's claim to have been entrapped, had taken into account inadmissible hearsay evidence, namely the investigating officer's account of what he had been told by Dawes; even if he did take such evidence into account, it was plainly not determinative of his decision, which would have been reached in any event given his “emphatic rejection of Rajcoomar's evidence”. The national law relevant to this application is set out in Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 31-45, 27 October 2004).