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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dunne, R v [2001] EWCA Crim 169 (29 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/169.html Cite as: [2001] EWCA Crim 169

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2 Monday
		29th January 2001

1. THE VICE PRESIDENT: These four appeals afford further melancholy examples of the consequences of gross misconduct during the 1980s by a number of police officers in the now disbanded West Midlands Serious Crime Squad. Because of that misconduct, this Court has, in recent years, been obliged to quash as unsafe the convictions for serious offences of over 30 defendants.
2. The four present appellants were initially jointly indicted with eight others in a 25 count indictment. After severance by the trial judge, they were tried at Leicester Crown Court. The appellant brothers, Brown, with a co-accused called Johnson, were convicted on 7th February 1983. The appellants, Dunne and Gaughan, together with co-accused called, Treadaway and Langdell, were convicted on 10th March 1983. The total sentences which each appellant received (all of which have now been served) were in the case of Ronald Brown, 18 years; Donald Brown, 12 years; Dunne, 15 years and Gaughan, 12 years reduced on appeal to 10 years.
3. Their cases come before this Court on references made by the Criminal Cases Review Commission on various dates between June 1998 and April 1999. We are grateful to the Commission for the investigations which they undertook and for their statements of reasons for referring these cases to this Court.
4. The name of Treadaway is familiar in this Court. It resonate through all these appeals. As we have said, he was tried and convicted with the appellants Dunne and Gaughan. Subsequently, in a civil claim, before Mackinnon J, in April 1994, he recovered substantial damages against the West Midlands police for assault. The basis of his claim was that, in April 1982, he had been tortured by five police officers, in particular by the placing over his head of a plastic bag, into signing a confession to robbery and conspiracy to rob. This had led to his conviction on four of the counts on which the appellant, Dunne, was convicted and to a sentence, in Treadaway's case, of 15 years' imprisonment. His conviction was quashed by this Court in November 1996. On that occasion, the Court relied on Mackinnon J's findings, adverse to a number of officers, in particular, Detective Sergeant (later Chief Superintendent) Brown, Detective Sergeant Hornby and Detective Constable Price. In other cases, as will appear, there have been other findings adverse to some or all of these officers and their names also resonate through the present appeals.
5. Another man called Twitchell was convicted of manslaughter and robbery in February 1982. His conviction was quashed by this Court in October 1999. He too had complained, 2 years before Treadaway, that he had been forced to sign a confession of his guilt, after a plastic bag had been placed over his head at the hands of, among other officers, Detective Sergeant Brown and Detective Sergeant Hornby. The decision of the Court in Twitchell is reported in [2000] 1 Cr App R 373.
6. As will emerge, the evidence of a participating supergrass called Morgan was of fundamental importance to the prosecution case against all four of these appellants. The evidence of another participating supergrass called Mackay was of fundamental importance to the prosecution case against the appellants, Gaughan and Dunne.
7. Morgan had been extradited and brought back to this country from Gibraltar in 1981, by Detective Sergeant Hornby who became his handler. Morgan made 57 witness statements, 24 to Hornby and another 31 in Hornby's presence. The prosecution, as is conceded before this Court by Mr Sweeney QC, in the course of these appeals, had probably not disclosed to those defending any of these appellants, at the time of their trials, the terms of Morgan's interview when he was first arrested in August 1980, that is on 6th August. The terms of the statement he then made would have provided rich material for cross-examining him, because it was, in several important respects, strikingly different from the evidence which in due course he was to give at the trial of these appellants.
8. Mackay was handled by Detective Sergeant Brown and Detective Constable Price. He made 16 witness statements of which seven were taken by Detective Constable Price and a further six were made in Price's presence.
9. Against that introductory background, we turn to the case against each of these appellants.
10. Dunne was convicted on three counts of robbery and two of conspiracy to rob. He applied for leave to appeal against his conviction, on grounds critical of the summing-up. His application for leave was dismissed by the full court on 12th April 1984. Morgan and Mackay, having previously pleaded guilty in relation to these matters, gave evidence against Dunne.
11. Count 3, an offence of robbery, took place on 2nd August 1979, at Hawkesley Square post office in Birmingham. According to Morgan, he drove a stolen van and Mackay carried a shotgun. They were together with Langdell. According to them, the appellant Dunne was involved in the planning of that robbery.
12. Count 4 related to the robbery of a delivery van, which took place at Gate Street post office, Saltley. Again the allegation against Dunne by Morgan and Mackay was that he had planned the robbery, rather than been present at its execution. According to Morgan and Mackay the robbery was executed by them together with Treadaway.
13. Count 5 related to a robbery at Erdington post office, in November 1979. That, according to Morgan and Mackay, had been planned by them, together with Treadaway and Dunne.
14. Count 6 related to a plan, in August 1979, by the appellant and Treadaway, according to Morgan and Mackay, with them as well, to rob a van delivering cash to Kingshurst post office in Birmingham. Masks, overalls, a gun and a walkie-talkie set or two which were used were all supplied by Dunne according to Morgan and Mackay. But the robbery was aborted because the van arrived before those involved with ready.
15. Count 7 related to a robbery planned in relation to Sedgley post office, in September 1979, when masks and a gun were to be used. Again, for various reasons, the robbers were frustrated. According to Morgan and Mackay, those robbers included Dunne.
16. Apart from the evidence of Morgan and Mackay, the only evidence relied on against Dunne were lying answers said to have been given by him in interview, other statements alleged to have been made by him of an incriminatory nature to police officers and the fact that there was cash at his disposal following the Erdington robbery.
17. At his trial, Dunne claimed that Morgan and Mackay were lying, and he maintained that the police had it in for him because of his previous record, which included, in particular, a murder charge of which he had been acquitted. He said he had nothing to do with guns or robberies, and he challenged the lies attributed to him by the police witnesses.
18. He applied to the Criminal Cases Review Commission in June 1997, on the basis that the supergrass evidence of Morgan and Mackay had been completely discredited as a result of this Court quashing the conviction of Treadaway in November 1996. It was further said that the evidence against Dunne of members of the West Midlands Serious Crime Squad had been discredited by Mackinnon J's findings in the civil action by Treadaway, and it was further said that subsequent findings in relation to the conduct of the West Midlands Serious Crime Squad officers must give rise to a distinct possibility that, had that material been before the jury, their verdicts would have been different.
19. We note, in passing, that Mackinnon J did not, in the course of the civil proceedings, believe the evidence given by several officers, including Detective Sergeant Brown and Detective Sergeant Price.
20. The overlap between the cases of Treadaway and this appellant, Dunne, is apparent because they were not only tried together but, as we said earlier, convicted on counts 4, 5, 6 and 7 of the indictment.
21. We turn to the circumstances of the case in relation to Gaughan. He was convicted of aggravated burglary and kidnapping. These offences arose from the same episode. His co-defendants were Langdell, whom the jury acquitted on both counts, and a man called Wilson, in relation to whom the jury could not agree. Morgan had already pleaded guilty.
22. It was the prosecution case that those four men had entered a bungalow of a Mr and Mrs Erye on 10th June 1979 and, in the course of failing to find money for which they were searching, they had kidnapped Mrs Erye, threatened her with a shotgun, and eventually left empty-handed. It was Morgan who implicated Gaughan as being, among other things, the driver of Mrs Eyre's car. Mackay implicated Gaughan in that he said that, on the afternoon of 11th June, that is to say the day after the kidnapping he, Mackay, had met Gaughan, together with Wilson and Dunne, at Langdell's father's house, where a discussion had taken place about the failure to find any money at the Eyre's house.
23. There was also evidence against Gaughan from Detective Sergeant James, who gave evidence of Gaughan's arrest and of what he had said, first, during the course of a car journey, and secondly, in the course of interview at Bromford Lane police station.
24. Mr Gaughan gave evidence denying anything to do with either of these offences. He claimed that Morgan and Mackay were wrong in putting him at the Eyres' bungalow, and the police were wrong in claiming that he had made admissions. He claimed that he had been staying at a hotel in Aberdeen at the time.
25. Application was first made to the Criminal Cases Review Commission in January 1999 by solicitors acting for Mr Gaughan. Again, the representations made to the Commission referred to the evidence of Morgan and Mackay and its being discredited by reason of the quashing of Treadaway's conviction by this Court. Reliance was also placed on Mackinnon J's findings in the civil action by Treadaway.
26. In the light of those representations, the Commission made investigations which included examining the conduct of Detective Sergeant James upon whose evidence, as we have said, the alleged confession part of the case against Gaughan depended.
27. The Commission referred to a number of decisions of this Court, including Gordon and Fryer, to which later we shall come.
28. With regard to the appellant, Ronald Brown, he was convicted on seven counts; there were eight in the indictment but the jury disagreed on count 7.
29. The other seven offences of which he was convicted were three of robbery, one of attempted robbery, one of assault with intent to rob and offences of burglary and possessing a firearm without a certificate. His application for leave to appeal on grounds critical of the summing-up was refused by the Full Court on 3rd April 1984.
30. He had been tried with his brother, Donald, the fourth appellant to whom later we shall come, and a man called Johnson, who were charged in relation to count 6, which was robbery at Dudley post office. The greater part of the evidence against Ronald Brown came from Morgan, who had already pleaded guilty. Morgan, in addition to providing what purported to be eyewitness accounts of what Ronald Brown had done, also gave evidence that, in relation to count 1, attempted robbery, Ronald Brown had admitted to him, Morgan, his part in that offence. In the course of his trial Ronald Brown made a statement from the dock.
31. In relation to count 1, according to Morgan, Ronald Brown had participated in the attempted robbery of a post office van driver, by firing shots into the windscreen of the van. Subsequently, two firearms were found hidden in a garage of which Ronald Brown was the tenant. Ronald Brown, in his statement from the dock, said that he had no knowledge of those guns and the garage had been rented from a man called Taylor. But he said, in addition, that Morgan was lying, both as to his alleged participation in the attempted robbery and in relation to his supposed confession to what he had done.
32. Count 2 related to robbery of a post office van, of £800 of coins. There had subseqently been paid into a bank account, in a false name, by Brown, a quantity of silver coins. But Morgan did not give evidence in relation to count 2 against Brown. Brown denied involvement in that robbery but he did not give any explanation for the large number of coins going into the bank account in a false name.
33. Count 3 related to an attempted robbery in February of 1980 when, according to Morgan, Brown was armed with a sawn-off shotgun and hammer and was, according to Morgan, struck on the head by the victim of the attempted robbery. Undoubtedly, when he was arrested, Brown had a visible scar above his right eye. But that, he said, was due to unloading paving slabs from a lorry.
34. Count 4 was a burglary, in March 1980. According to Morgan, some key files found in Brown's house had been used for making a key to the garage doors at Mint Security where the burglary took place. There was evidence of expenditure by Brown, after the burglary, in buying a television set and paying a deposit for a holiday. There were also deposits in two bank accounts by him, in the space of a few weeks after the burglary.
35. In his statement from the dock, Brown claimed that his financial good fortune was attributable not to burglary but to the importation and sale of citizen band radios from Ireland.
36. Count 5 related to burglary at a GPO depot in Stratford upon Avon in May 1980. According to Morgan, Brown had been involved in this offence in preparation for the van robbery which was the subject of count 6. That took place against a GPO van in July 1980. A very large amount of money was taken. Morgan claimed that Brown carried the same shotgun which he had used in connection with count 1.
37. There was evidence of substantial sums being deposited into and withdrawn from Ronald Brown's bank accounts between July and October 1980. Morgan's evidence was subjected to considerable criticism on the basis that he had claimed that the robbery had been planned at a time when he was in custody, and for which Brown had a watertight alibi.
38. Count 7 related to an allegation of robbing a GPO van of over £100,000. It was in relation to that count that the jury disagreed. There was no evidence on that count against Brown from Morgan.
39. Count 8, which related to possessing firearms without a certificate, related to the guns to which we have already referred, found hidden in the garage. It was agreed that Brown had no certificate but, as we have said, he denied any knowledge of those guns.
40. Representations were initially made by Ronald Brown to the Home Office in September 1987. At that time the Home Secretary refused to refer the case to this Court. Further representation were made to the Commission in April 1998, and the matter was referred to this Court, following the quashing of Treadaway's conviction and in the light of the comments made in this Court about Morgan.
41. The Commission's letter refers to a number of cases, Hare, Jones, and Fryer, Francis and Jeffers to which we shall later come, together with other cases in which Detective Sergeant Hornby's credibility was called into question.
42. The Commission concluded that, notwithstanding other evidence in relation to some of the counts against Ronald Brown, because Morgan's evidence was so central to the case against him, the convictions in relation to all counts should be referred to this Court.
43. Donald Brown applied for leave to appeal against his conviction of participating in the robbery at Dudley post office to which we have already referred in relation to Ronald Brown. The full court refused his application for leave to appeal against sentence, the Single Judge having refused leave to appeal against conviction and sentence.
44. As is apparent from what we have already said, the evidence of Morgan implicated Donald Brown in the Dudley post office robbery. Morgan also claimed, in addition to what he said Donald Brown had done, that Donald Brown had also said to him, Morgan, that he would buy a pair of gates in Dudley, on the day of the robbery, to give himself an excuse for being in the area at the time. There was indeed evidence that a "Mr D Brown" had bought a gate on 23rd July, the day of the robbery.
45. There was evidence against Donald Brown of admissions said to have been made by him to Detective Sergeant Leek and Detective Constable Quinn. There was also evidence of some £19,000, in cash, being paid into Donald Brown's bank account during the 6 months immediately after the robbery.
46. Donald Brown read a long statement from the dock, in which he denied involvement in this offence and he claimed that the money which he had was the result of renovating council houses. The purchaser of the gate was not him but his son, who gave evidence that it was he who collected the gate. Donald Brown asserted that Sergeant Leek and Constable Quinn had fabricated the admissions which they claimed that he had made.
47. Donald Brown first applied for this matter to be referred to this Court to the Home Office in November 1984; he applied to the Commission in August 1997. In this case, in addition to the other matters to which we have referred so far as Morgan is concerned, there were grounds, to which the Commission's attention was invited, for regarding Detectives Quinn and Leek as having been extensively discredited in relation to other cases to which we shall later come. It was also said that the descriptions given by eye witnesses of the man said to be Brown simply did not fit him.
48. The Commission, in their reasons, draw attention to the fact that the trial judge ruled that Morgan's evidence was capable of being corroborated by what Leek and Quinn said that Brown had said in the course of interviews. The Commission referred to the appeal of Lindo, in relation to Detective Constable Quinn, and to Hickey and Others, in relation to Leek.
49. We turn from that short recital of the circumstances of the cases in relation to each appellant to the submissions made on their behalf. It is to be noted, and it is a matter to which we shall later return, that it was not until the 12th of this month that prosecuting counsel, in relation to the present appeals, was provided with the full information which he now has with regard to police complaints authority investigations of officers connected with these cases. In consequence of that information, Mr Sweeney has, very properly, made further concessions in relation to the officers in this case, to which we shall come.
50. Because of the incompleteness of the material before him and therefore, as it transpires, the incompleteness of the material available to those representing the appellants before us, very substantial written skeleton arguments have been submitted to the court on behalf of each of these appellants. The court is indebted for those submissions, all of which they have read. But, in view of recent developments, it is unnecessary to refer in detail to those written submissions. But it is convenient to refer to some of the oral submissions which have been made by counsel now appearing before this Court.
51. On behalf of Dunne, Mr Wood QC advanced submissions which were, in whole or in part, echoed by counsel on behalf of the other appellants in relation to the supergrasses, Morgan and Mackay, and in relation to what has been called the Treadaway aspect of these appeals.
52. So far as Morgan is concerned, this Court, in Treadaway and in Twitchell, referred to the tainting of his evidence by the fact that he had been handled by Detective Sergeant Hornby.
53. The position, so far as Hornby is concerned, is that his reliability or otherwise has been the subject of some changes in stance by the Crown. In the course of the judgment in Twitchell, it was said that certain of the observations made in the judgment in Treadaway, with regard to Detective Sergeant Hornby, might have been differently phrased, in that it had, in the earlier case, been asserted that Detective Sergeant Hornby was demonstrably not capable of belief. At the time of the Twitchell appeal Mr Sweeney, whose knowledge of relevant matters was then incomplete, revised the stance of the Crown with regard to Hornby. However, the position today is that the Crown do not seek to rely upon Hornby as a credible witness.
54. It appears that Hornby retired on the grounds of ill-health very soon after the disbandment of the West Midlands Serious Crime Squad. In consequence, he has not been subjected to disciplinary proceedings, which the Police Complaints Authority might otherwise have thought appropriate had he still been a serving officer.
55. However, he is, Mr Wood submitted, to put it no higher, the subject of official suspicion which has not been dispersed and there are more concrete examples in decisions of this Court which throw his credibility into question.
56. The approach which Mr Wood invites us to adopt, so far as Hornby is concerned, is to rely upon the decisions of this Court in Boghal & Fryer, Francis and Jeffers and Wellington and Speid. It is unnecessary to examine the details of those cases in view of the concession made by Mr Sweeney, to which we have already referred.
57. So far as Mackay is concerned, he similarly, submits Mr Wood, is tainted because of his connection with both Detective Constable Price to whom, as we earlier indicated, he made a substantial number of statements, and Detective Sergeant Brown who, as we have already indicated, gave evidence which Mackinnon J did not accept.
58. Similarly, Mr Wood relies upon the judgment of this Court, given on 18th November 1996, in the case of Treadaway, where, at page 10 of the transcript, appears this passage:

"The evidence of the two supergrasses is manifestly tainted, in the sense that it cannot be above suspicion because of the close involvement of Mackay with Detective Constable Price and Superintendent Brown."

59. As was pointed out by Beldam LJ, when giving the judgment of the Court in R v Edwards [1996] 2 Cr App R(S) 345:

"Once the suspicion of perjury starts to infect and permeate cases in which the witnesses have been involved and which are closely similar, the evidence on which the convictions are based becomes as questionable as it was in the cases in which the appeals have been allowed. It is impossible to be confident that had the jury convicting the appellant known the facts and circumstances in the other cases in which the police officer had been involved, they would have been bound to convict the appellant. In our view, that is the appropriate test."

60. There is a similar passage to be found in the judgment of Judge LJ, giving the judgment of the Court in R v Guney [1998] 2 Cr App R 242.
61. On behalf of Gaughan, Mr Blake QC adopts the submissions of Mr Wood, so far as it is necessary to do so in the light of the concessions made by Mr Sweeney. Mr Blake also relies on the Treadaway aspect of the case.
62. Furthermore, in relation to the evidence of Detective Sergeant James and the confessions supposedly made by Gaughan to him, Mr Blake relied upon the case of R v Gordon, who was a man arrested on suspicion of murder and who, according to Detective Sergeant James, made a confession in relation to that offence. That confession, as it transpired, was manifestly false. The murder had been committed by someone else. That conclusion is apparent from the judgment of Leggatt LJ, in Williams & Smith, 20th January 1994, at page 13-F. Not only was the murder committed by someone else, but Gordon had a watertight alibi for the occasion when he was said to have committed the murder. That, submits Mr Blake, is an aspect of Detective Sergeant James' career which, had it been known to the jury which tried Gaughan, is likely to have affected their view of his reliability.
63. Furthermore, Mr Blake relied on the case of a man called George, who was arrested in October 1986, in relation to an offence of burglary. At his trial Mr George alleged that he had been tricked, in the absence of his solicitor, into signing a confession by, in addition to another officer, Detective Sergeant James. The jury acquitted George, following a summing-up which posed the stark difference between the account of events given, on the one hand, by the defendant and, on the other, by the police officers. Mr Blake seeks to adopt a comment made by others that this demonstrates that the police evidence was rejected and the defendant's evidence accepted. So far as that is concerned, Mr Sweeney does not accept that is a necessary conclusion from that case because, apart from anything else, two alibi witnesses were called for the defence.
64. The proper approach by this Court to an old conviction of this kind, Mr Blake submits, is to be found in the judgment of the Court, given by the Lord Woolf CJ, in Johnson on 24th October 2000, namely this Court, in approaching the issues in the round, can only apply the standards which this Court adopts today when deciding whether or not a conviction is to be regarded as unsafe.
65. On behalf of Ronald Brown, Mr Treacy QC also relies on the taint of Morgan by virtue of his association with Detective Sergeant Hornby. He drew attention, in that regard, to a further case of R v Speid, which was referred to by a division of this Court on 2nd December 1993, in the case of Hines. In its judgment, on that occasion, the Court said that it had been proved in Speid that an alleged interview had, more or less conclusively, been demonstrated not to have taken place in the terms which Detective Sergeant Hornby claimed. That is a matter which, had the jury which convicted Ronald Brown known about it, would have added to the reasons for viewing Hornby and therefore Morgan with suspicion. In Fryer, Francis and Jeffers, Court of Appeal transcript of 27th April 1993, there were disputed admissions. ESDA evidence showed the records of those admissions, said to have been made by Detective Sergeant Hornby, to be suspect and to have been suspiciously rewritten: that affords further ground for suspicion with regard to Hornby.
66. Furthermore, Mr Treacy referred to R v Boghal. In relation to that case, the police complaints authority indicated that Detective Sergeant Hornby would have been subjected to disciplinary proceedings for falsehood or prevarication if he had not retired from the police force.
67. Mr Treacy also referred to a case at Wolverhampton Crown Court in 1987 of R v Jones, where, on the directions of the trial judge, His Honour Judge Stuart-White, the defendant was acquitted in the face of cross-examination of Detective Sergeant Hornby and others, by reference to ESDA evidence obtained on behalf of the defence. In Meads, Court of Appeal transcript of 26th January 1996, a concession was made, on behalf of the Crown, that Detective Sergeant Hornby could have been asked, properly in cross-examination, about the outcome in the case of Jones.
68. Mr Treacy also referred to another Crown Court case at Coventry in 1987, Hare, where there had been a stark issue between the defendant and Detective Sergeant Hornby in relation to the falsification of interviews. That was another matter about which Hornby could have been cross-examined, as is also apparent from the judgment of this Court in Meads.
69. Turning to the Quinn and Leek aspects of the case, Mr Treacy submitted that both of those officers could have been completely discredited, by cross-examination about, in the case of Quinn, Lindo, and in the case of Leek, Hickey. Mr Treacy also drew attention to a highly prejudicial passage inserted, as he would say falsely, into the terms of the interview with Brown, about his brother.
70. Mr Treacy also relied on the Treadaway link and, for what it is worth in addition, on the fact that, during the trial, counsel then appearing for Ronald Brown expressly did not allege any collusion between the police and Morgan.
71. On behalf of Donald Brown, Mr O'Connor QC explored, in a little more detail, the impact on Leek of the case of Hickey, and on Quinn, of the case of Lindo. So far as the decision of this Court in Hickey and Others, Court of Appeal transcript of 30th July 1997 is concerned, Mr O'Connor pointed out that one of the allegations made against Detective Sergeant Leek, in that case, was that, as demonstrated by ESDA evidence, a co-accused'd statement was fabricated and then shown to Malloy to induce his confession. There was some evidence that, not only had the co-accused's statement been fabricated, but that Detective Sergeant Leek himself had written it. The Court of Appeal's conclusion, in the judgment given by Roch LJ in that case, was that the statement shown to Malloy was false.
72. A similar allegation having been made in the present case, Mr O'Connor submits that the impact of the case of Hickey and Others upon Detective Sergeant Leek would have been considerable had it been before the jury.
73. So far as Detective Constable Quinn is concerned, in Lindo, 11th October 1993, oral admissions said to have been made were denied by the defendant. Expert evidence demonstrated principally on the basis of a Speid test, the falsity of the record of those alleged admissions (see page 4E of the transcript of the courts judgment) and, in consequence, Detective Constable Quinn would have been vulnerable to gravely damaging cross-examination as he was the officer involved in Lindo. Mr O'Connor, of course, also relies on the taint of Morgan by Detective Sergeant Hornby, and the Treadaway aspect of the case and the want of disclosure in relation to Morgan's interview on 6th August 1980.
74. On behalf of the Crown, as we have earlier indicated, Mr Sweeney has very properly made a large number of concessions which have a vital impact on the outcome of this appeal. He concedes, in relation to Gaughan and Dunne, that the evidence of Mackay and Morgan was of fundamental importance; that Mackay's account is tainted by virtue of his having been handled by Detective Sergeant Brown and DC Price; that the evidence of Morgan is tainted by virtue of his being handled by Detective Sergeant Hornby; that, in accordance with the judgment in Twitchell, Gaughan is entitled to rely on the conduct of Detective Sergeant James in the Gordon case; and that Gaughan and Dunne are entitled to rely on the material available in relation to Treadaway, to found a submission that the credibility of the prosecution case, as a whole, would have been infected. Mr Sweeney does not seek to uphold the conviction of Gaughan, solely upon the basis of his failed alibi, or to uphold the conviction of Dunne solely on the basis of lies, the cash purchase following the robbery in count 5, or his refusal to give particulars of a building society account.
75. In relation to the two Browns, Mr Sweeney concedes that the evidence of Morgan was of fundamental importance in relation to the convictions of Ronald Brown on counts 1, 3, 4, 5 and 6, and of importance in relation to the conviction on count 8.
76. Furthermore, Mr Sweeney concedes, in relation to Detective Sergeant Hornby's conduct, that a number of cases including Jones, Hare, Speid, Fryer & others and Boghal can properly be relied upon to challenge his credit.
77. In the light of all the material now known to Mr Sweeney, since the 12th of this month, he does not think it right to advance Detective Sergeant Hornby as a credible witness.
78. Furthermore, Mr Sweeney concedes that the evidence of Morgan is tainted by his association with Detective Sergeant Hornby. He concedes, though it cannot be said with absolute certainty that it is likely that the Morgan interview of 6th August 1980 was not disclosed. He points out that, in a statement from Detective Sergeant Duggan, which was served on the defence, there was reference to an interview with Morgan, but he accepts that it is likely, having regard to the way in which the trial was conducted, that the terms of the interview were not disclosed.
79. Mr Sweeney adopts the position that, if this Court takes the view that Morgan's evidence is tainted, the prosecution would not seek to uphold Ronald Brown's convictions on the counts other than count 2.
80. So far as count 2 is concerned, as we have said, Morgan did not give evidence in relation to that count. But Mr Sweeney does not seek to contend, in the context which we have described, that it would be right to seek to uphold the conviction of Ronald Brown on count 2.
81. So far as Donald Brown is concerned, Mr Sweeney accepts that Morgan's evidence was of fundamental importance. He also concedes, in accordance with this Court's judgment in Twitchell, that Donald Brown is entitled to rely on Hickey in relation to Detective Sergeant Leek and Lindo in relation to Detective Constable Quinn. That being so, Mr Sweeney does not seek to say that it is possible to uphold the conviction of Donald Brown, on count 6. The evidence in relation to the purchase of the gate and the cash payment into the bank account are not matters on which Mr Sweeney regards it as proper to rely to uphold Donald Brown's conviction.
82. Mr Sweeney, finally, concedes, on this aspect, the force of the submission that findings in the Treadaway civil proceedings, combined with the concessions made in relation to Twitchell, mean that the credibility of the whole of this investigation is undermined.
83. In the light of these submissions and concessions, we are entirely satisfied that none of the jury's verdicts, in relation to any of the counts on which any of these four appellants was found guilty, can be regarded as safe. The evidence of Morgan and the evidence of Mackay was, in our judgment, clearly tainted by reason of the close contact between each of those participating supergrasses and officers who can no longer be regarded as credible.
84. The general impact upon this enquiry of the findings of Mackinnon J in the civil proceedings in Treadaway, and the decisions of this Court, quashing the convictions of Twitchell and Treadaway, is such as to reinforce the lack of safety of all these convictions. We accept that, so far as Detective Sergeant James is concerned, the evidence which he gave in relation to Gaughan would have been the subject of highly damaging cross-examination, in the light of his participation in the case of Gordon. We accept that, so far as Quinn and Leek are concerned, the roles which they played respectively, in relation to the cases of Lindo and Hickey, are such as would gravely have undermined any evidence which they would give before the jury.
85. In those circumstances, all of these appeals are allowed and all of these convictions are found to be unsafe.
86. We add one final comment arising from the highly unfortunate history to which earlier we referred, whereby prosecuting counsel, even as late as this month, were not in possession of all the material which they should have been, in relation to the proper conduct of these appeals.
87. At one stage in his written submissions, Mr O'Connor invited us to give guidelines as to what steps in relation to disclosure of such material are appropriate. But he accepted, in the course of his submissions, that the absence of any representations on behalf of the Police Complaints Authority and the different circumstances which can arise in relation to different cases, make it impracticable for this Court to give guidelines today. In any event, we are told by Mr Sweeney, and we accept, that, no doubt at his instigation, steps have already been taken to ensure that material which is available to the Police Complaints Authority, when investigating complaints against a particular officer, will be available to counsel representing the Crown, who are called upon to respond to appeals when the conduct of individual officers is called into question.
88. We accept that steps have been taken for prosecuting counsel, in such circumstances, to enquire of the police complaints authority and to ensure that there is made available to them such material as the police complaints authority have which may bear upon the outcome of an appeal of this kind. Such material having been disclosed to prosecuting counsel then, according to the circumstances of the particular case, it may or may not be appropriate to disclose that material to the defence. Generally speaking, it will be appropriate to do so, but one can think of circumstances in which it might not be.
89. Certainly, so far as this Court is concerned, we hope that it will never again happen, in connection with cases of such long-standing and lamentable histories as these, that it will only be at the fifty-ninth minute of the eleventh hour that counsel responsible for responding to the appeals has in his possession the material which he ought to have.
90. MR WOOD: My Lord, in the outcome, your Lordship may be aware that Mr Dunne has privately instructed his legal team throughout.
91. THE VICE PRESIDENT: I was not aware.
92. MR WOOD: In the case summary. I ask on his behalf--
93. THE VICE PRESIDENT: It did not seem to be terribly material until now.
94. MR WOOD: Not until now. But it is certainly material now. On his behalf, I ask for a defendant's cost order for the payment of costs out of central funds in relation to preparation and conduct of the appeal.
95. THE VICE PRESIDENT: Yes.
96. MR BLAKE: My application in respect of Mr Gaughan. He was on legal aid in 1999. I am instructed that there are some expenses of his solicitor before that time and other matters of costs which he incurred which may not be covered by legal aid. In respect of those, I ask for a defendant's cost order to be taxed in due course.
97. THE VICE PRESIDENT: Yes Mr Blake.
98. MR TREACY: The position is the same in the case of Ronald Brown. His solicitors have incurred expenses prior to the grant of legal aid and no one--
99. THE VICE PRESIDENT: We shall make a defence costs order again, subject to taxation in the usual way.
100. MR TREACY: May I mention one matter when your Lordship comes to revise the judgment?
101. THE VICE PRESIDENT: What have I got wrong?
102. MR TREACY: You said Morgan's statements as well as his interview had not been disclosed, it was only the interview. Your Lordship referred in two places to statements.
103. MR O'CONNOR: I ask for the same costs order in relation to Donald Brown.
104. THE VICE PRESIDENT: You are legally aided but you have other costs you would like covered by a defendant's cost order. So be it.
105. MR O'CONNOR: There was another slip when my Lord referred to the Hickey case, it was Malloy's confession which was obtained by the fabrication of a false confession by Vincent Hickey.
106. THE VICE PRESIDENT: I put it the other way round, yes. Thank you very much, I will endeavour to ensure the transcript is corrected. Thank you.