Neutral Citation Number: [2011] EWCA Crim 2535
Case No: 201100933 D4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON REFERRAL BY THE CRIMINAL CASES REVIEW COMMISSION
UNDER
SECTION 9 OF THE CRIMINAL APPEAL ACT 1995
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/11/2011
Before:
LORD JUSTICE TOULSON
MR JUSTICE OPENSHAW
and
HIS HONOUR JUDGE ROOK QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between:

	GARY HUTCHINGS	Appellant	
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	THE QUEEN	Respondent	

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Mr P Mendelle QC for the Appellant
Mr J Laidlaw QC for the Respondent

Hearing date: 19 October 2011
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Judgment

Lord Justice Toulson: 
1.	On 18 December 1992 at Southwark Crown Court the appellant was convicted of conspiracy to rob. He received a sentence of 12 years’ imprisonment, which he has served.  His conviction has been referred to this court by the Criminal Cases Review Commission (“the CCRC”) under the Criminal Appeal Act 1995.
2.	The vital evidence in the case came from police officers in the Flying Squad, who had been deployed in an operation designed to catch the members of a gang responsible for carrying out a series of highly professional robberies of post office vans.  
3.	After the trial it came to light, through an investigation carried out by the Complaints Investigation Bureau of the Metropolitan Police, that a number of officers attached to the Flying Squad Office based at Rigg Approach had been involved in a shocking form of corruption and perversion of the course of justice.  The officers concerned would equip themselves with bags containing items such as imitation firearms and balaclavas which they would plant on suspects, either to protect the position of an officer who had shot an unarmed suspect in good faith (and so provide a justification for his action) or to strengthen a case where the evidence against a suspect was not overwhelming.  About 25 officers were either charged with criminal offences or were removed from duty or would have been removed from duty if they had not already retired.  The prosecution accept that officers in that group, which we will refer to for convenience as the A group, are not to be regarded as witnesses who could be put forward as credit worthy.
4.	Information gathered by the CIB in the corruption investigation suggested also that there was a general awareness of the availability of such packages for corrupt purposes among a wider group of officers in respect of whom there was no evidence to suggest that they ever played any part in the use of items in the manner described, but they made no attempt to prevent or report the practice.  We refer to them as the B group.
5.	The officers who gave evidence in the appellant’s case included some in the A group, some in the B group and some who were entirely unblemished.  We refer to the last group as the C group.
6.	In its reference the CCRC concluded that:
“i.	There is new evidence which raises doubts as to the reliability of much of the police observation evidence in this case; and
ii.	If that evidence is “excised”, the evidence remaining may be insufficient to sustain the safety of Mr Hutchings’ conviction.”
7.	Mr Mendelle QC for the appellant submitted that the CCRC’s assessment was correct and that the conviction must be quashed.  Mr Laidlaw QC for the prosecution submitted that the CCRC’s conclusion was wrong and that the conviction is safe.  Neither counsel appeared at the trial.  The documents unsurprisingly are now incomplete and a large number of those documents which were provided to the court were in jumbled form.  However, we are grateful to both counsel for their attempt to straighten things out, and we are satisfied that we have sufficient material to reach a decision about which we are in no doubt.  The summing-up by Judge Watts was very full.  We have also been provided with the remarkably impressive trial notebooks of junior counsel for the prosecution at the trial, Mr Stephen Kramer (now Judge Kramer QC).  They confirm the accuracy of the summing-up and in some instances supplement our understanding of the evidence.  We have witnesses’ depositions, because there was an “old style” committal at the magistrates’ court at which prosecution witnesses were cross-examined.  We appear to have all relevant witness statements.  We also have original police observation logs and some, but not all, photographs which were taken during police observations.  With hindsight, the case would have benefited from a directions hearing so as to ensure that the necessary documents were assembled in a timely and orderly way and (just as importantly) that the court was not burdened with a large number of unassembled and unnecessary documents.
8.	It is common ground that all evidence given by A group officers must be regarded as worthless because of the character of the officers who gave it.  The argument has concentrated on (a) the potentially “tainting” effect of what is now known about the A group officers on the evidence of other officers and (b) the sufficiency of the remaining evidence.  In Zomparelli, unreported, 23 March 2000, the defendant was accused of robbery and possession of an imitation firearm with intent to commit an indictable offence.  He was tried twice.  On each occasion he was convicted and on each occasion the conviction was quashed.  At the first trial evidence was given against him by Flying Squad officers from Rigg Approach in groups A and B.  His defence was that he was framed and that incriminating materials were planted on him.  His first conviction was quashed as a result of the matters which came to light from the CIB investigation into the practices at Rigg Approach and a re-trial was ordered.  On the re-trial the prosecution did not call any A group officers, but did call B group officers.  The judge ruled that the B group officers could not be cross-examined about matters relevant to the misconduct of the A group officers.  On the second appeal it was submitted on his behalf that this rendered the re-trial unfair, and that the jury might have looked more favourably on his defence that the police planted incriminatory materials on him if he had been permitted to cross-examine B group officers about their awareness of such a practice.  Delivering the judgment of the court, Lord Bingham CJ said at [43] that the question whether such cross-examination should have been permitted was “not in our judgment a question to be answered in the abstract, but a question to be answered with close and particular reference to the history and facts of the case and this appellant”.  The court concluded on the particular facts of the case that the material which the jury was not permitted to hear might have affected their appraisal of the credibility of the witnesses on whose evidence they were asked by the prosecution to convict the defendant. 
9.	In the present case we must consider whether there is real ground for regarding the evidence of group B witnesses as possibly tainted by their relationship with A group officers.  As in Zomparelli, this requires close and particular reference to the evidence.  We must also consider not merely the quality of the B group evidence (i.e. whether it was tainted by association) but the sufficiency of the evidence as a whole in reaching our judgment whether the conviction is safe.  With that introduction we turn to the facts.
10.	Two co-accused, Terence Agombar and Mark Cummings, were also convicted of conspiracy to rob.  The conspiracy charge was the first count in the indictment.  Count 2 charged Agombar and Cummings, but not the appellant, with a specific offence of robbery on 13 November 1991.  The prosecution’s case was that by that stage the appellant had dropped out of the conspiracy.  Because Agombar and Cummings were convicted on the conspiracy count, which was intended to include count 2 and earlier robberies, no verdict was taken from the jury in respect of Agombar and Cummings on count2.
11.	Between December 1989 and November 1991 there were five robberies and one attempted robbery of a strikingly similar kind.  The first three robberies were of post office employees based at a post office depot in the Whitechapel Road.  The target of the fourth robbery, in March 1991, was a post office depot in Dartford.  After that robbery the Flying Squad was brought in and officers conducted intensive surveillance operations.  The attempted robbery occurred on 3 July 1991. The target was a post office depot in King Edward Street, West Smithfield.  The attempt was aborted, presumably because the gang realised or suspected that they were being watched.  It was after this, according to the prosecution, that the appellant dropped out.  It will be necessary to scrutinise carefully the evidence about events on that day.  The final robbery was on 13 November 1991.  The target was again the depot at King Edward Street.  On the same day Agombar, Cummings and a third man, John Henry, were arrested.  All were in possession of significant sums of banknotes that had been stolen during the robbery.  Henry was acquitted of robbery but convicted of handling stolen goods. 
12.	The method used in every case was that a post office employee from the targeted depot would be identified by the gang.  They would carry out research into his family and personal circumstances.  On the morning of the robbery he would be kidnapped at gunpoint on his way to work.  He would be told what the team knew about him and his family.  He would be given instructions what to do.  A listening device would be attached to him and he would be released to do his usual work.  Threats were made about what would happen to him or his family if he failed to follow their orders or attempted to alert anybody.  He was to do his daily round with a colleague in the usual way.  At a certain point during the round a member of the gang on a motorcycle would meet up with the van and lead it to a place where other gang members waited.  At that point the employees were ordered to throw the cash bags from the van.  The gang would then make off.  In the first four robberies a total of £600,000 was stolen.  Then came the attempted robbery and, lastly, the robbery which led to the arrests of Agombar, Cummings and Henry.
13.	The judge properly told the jury that their starting point should be to decide whether they were sure that Agombar and Cummings were guilty of the final robbery.  If in the case of either man they were not sure that he was guilty of the final robbery, they should acquit him not only of that robbery but of the conspiracy to rob.  This was because the prosecution’s case on the conspiracy count relied heavily on the similarities between the final robbery and the earlier robberies, although there was also a good deal of evidence about the alleged conspirators’ movements on the day of the attempted robbery.  The judge also properly directed the jury that if they acquitted Agombar and Cummings of conspiracy to rob they must also acquit Hutchings, because the prosecution would have failed to prove the existence of the conspiracy in which he was alleged to have participated.  If the jury were sure that Agombar and Cummings were guilty of the final robbery, the judge directed them that they should then consider whether they were also sure that they were guilty of the earlier offences.  If so, the appropriate verdict would be guilty on count 1 and no separate verdict would be taken on count 2.  That is what happened.
14.	It follows that the jury must have found that Agombar and Cummings were involved in the attempted robbery on 3 July 1991, with which (in contrast to the earlier robberies) there was evidence to connect them apart from the similarities between the attempted robbery at King Edward Street and the final robbery at the same depot.  As the case was presented to the jury, the complicity of Agombar and Cummings in a conspiracy which included the attempted robbery on 3 July 1991 was a necessary building block in establishing the case against the appellant.
15.	Agombar and Cummings gave evidence, including innocent explanations for their conduct on the day of the attempted robbery which the jury must have rejected.  Hutchings gave no answers to the police in interview and did not give evidence, although some evidence was given on his behalf.
16.	The most important evidence against the appellant related to his movements on the day of the attempted robbery, but there was also some relevant evidence about two earlier episodes.  On Tuesday 11 June 1991 observations were carried out from 6.30am to 9.10am on movements at the North District Office Depot in Upper Street, Islington.  The logger was WDC Powell, a B group officer.  Her evidence was that she recorded and made a note of the time of anything potentially significant which she saw or was reported to her.  Two of the officers carrying out observations in the vicinity were DS Livingstone, an A group officer, and DC O’Shea, a B group officer.  At the end of each day, the entries in the log would be signed at a debriefing meeting by the officers who had provided the information which had been recorded (sometimes with additions made by the officer who had witnessed the matter recorded) and countersigned by a supervising officer.  Powell’s log recorded that at 6.52am Cummings was seen at a bus stop opposite Islington Town Hall, which was near to the depot.  At 6.53am the appellant came out of a newspaper shop and joined Cummings.  The two men looked about.  Buses came but they made no attempt to get on them.  At 6.59am they walked off together in the direction of the depot.  Some photographs have survived.  They show Cummings and the appellant but they are not timed.  One of the photographs appears to show them walking off behind some men in dark clothing, but it could not be said from the photograph whether this was deliberate.  In evidence Livingstone (but not O’Shea) said that the men in dark uniform were postmen.  
17.	Cummings said in evidence that he ran a breakdown recovery service.  On the previous evening Hutchings rang to tell him that he had broken down near the Islington Town Hall.  They arranged that they would meet outside the Town Hall early the following morning.  He said that when they met they moved off quite quickly and he did not accept that they spent 6 minutes hanging around together.
18.	The prosecution relied on the evidence as suspicious behaviour linking Cummings and the appellant at a time of day and near a place where post officer employees were about to go on shift.  Mr Mendelle argued that the sting in the evidence was the suggestion that they were deliberately trailing post office employees, which came only from Livingstone, an officer in whom no trust could be placed.  Mr Laidlaw argued that the significance of the evidence lay rather in the time, place and particularly the duration of the meeting, which was not consistent with the explanation put forward by Cummings.
19.	The second episode occurred on 24 June 1991.  Two teenage girls, Tina Scerri and Emma Brandeis, were walking together to school when a passenger in a passing car lent out of the window and took a photograph of them.  Shortly afterwards they saw the man who had taken the photograph walking on the other side of the road, still carrying a camera.  He set up his camera to take a photograph.  As they walked past, the man called out “Come on girls, smile”. 
20.	Tina’s father was kidnapped nine days later in the attempted robbery at King Edward Street.  The gangsters who threatened him showed him photographs of his children including a photograph of Tina walking with Emma.  Eight months later, on 26 February 1992, Emma identified the appellant at an identification parade as the photographer.  However, her evidence suffered from the serious weakness that she had made two wrong identifications at previous identification parades.  The judge gave the jury an appropriately strong warning about the need for great care in considering the quality of her evidence. 
21.	The evidence of events on 3 July 1991 began at 4.07am.  DS Gardner, a B group officer, was in an observation post about 60 to 70 yards from the appellant’s home in Ellsworth Street, London E1.  He reported that he saw Cummings’ brother Gary draw up in a car outside the appellant’s home.  A man came out and got into the car.  He could not at that point see who the man was, but as the car passed his observation post he said that he identified the passenger as the appellant.  The logger was not due to come on duty until 4.30am.  In the course of the appeal the court was shown a statement by DC Blasby, a B group officer, in which he recorded that shortly after 4am he was taking part in a briefing of Flying Squad officers when information came through from Gardner as a result of which he immediately sent surveillance teams to the Bethnal Green area. 
22.	DS Allen, a B group officer, was on duty from 4am in the vicinity of Brayford Square, London E1, where Cummings lived.  He gave evidence that at 4.20am Agombar arrived in a Mercedes, F382 RML, outside Cummings’s house, picked him up, and they drove off.  This was disputed in evidence by both Agombar and Cummings.  The same vehicle had been seen being driven by Agombar on the evening of 1 July 1991 and it was to feature later in the events of 3 July.
23.	At 5.10am Mr Scerri was kidnapped on his way to work at the King Edward Street depot and a listening device was taped to his chest. 
24.	From 5am DC O’Shea was on duty in West Smithfield and was logging observations by other officers in the vicinity of the King Edward Street depot.  DC Green, an A group officer, and WDC Powell were in an observation post observing the front of the premises and some of the adjoining streets.  At 7.35am O’Shea logged information provided by Green or Powell that Cummings was in Giltspur Street walking fast.  When the log was signed off at the end of the day an extra entry was made by Green and countersigned by Powell that at the time when they saw him Cummings had an earpiece in his right ear.  They both gave evidence to that effect.  Powell said that the entry was made by her colleague at the debriefing and that she also signed it.  She described the earpiece as round, black, fitted into the ear and looped around the top of the ear.  At 7.40am O’Shea recorded seeing Cummings feeding the meter for a car, walking towards West Smithfield and talking into a walkie talkie.
25.	Cummings in his evidence accepted that he was in the vicinity at that time but denied having a walkie talkie or an earpiece.
26.	At 7.50am DC Wilton and DC Burt, both C group officers, reported seeing the appellant and Cummings meeting in Charterhouse Street and then driving off in a Talbot car.  O’Shea also observed the vehicle leaving Smithfield. 
27.	At 8.04am DS Seabrook, a group C officer, reported seeing the appellant and Cummings leave the vehicle in Patriot Square, London E2 and walk away.  That is near to Mayfield House, where the appellant’s father lived in a flat.
28.	Cummings’ explanation in evidence was that the appellant had taken him to Smithfield on an expedition to buy some cheap meat.  He could not find the usual butcher so he had walked around and they eventually left the market and returned to Mayfield House, where they separated.  On his way by foot from Mayfield House he happened to fall into company with Agombar.  This account conflicted with other police observations.  DC Anderson, a group C officer, reported at 8.06am that Cummings and the appellant both went into Mayfield House and this was logged.  At 8.21am Anderson reported that the appellant left Mayfield House and returned to the Talbot.  At 8.23am Seabrook reported seeing the appellant getting into the Talbot and driving off.  At 8.25am DC Need, a group C officer, reported that the Mercedes F382 RML was parked outside Mayfield House.  There was no evidence when it had arrived.
29.	At 8.44am Anderson reported seeing the appellant returning on foot and going into the flats at Mayfield House.  At 8.59am Anderson reported seeing Agombar and Cummings leaving the flats at Mayfield House on foot.  Their movement was followed by DS Chapman, a B group officer, who described them walking to James Middleton House, London E2, where Cummings’ parents lived, and entering the block of flats.
30.	It follows from this analysis of the evidence that almost every piece of disputed observation evidence was contemporaneously logged.  This is material when considering the suggestion that there is cause for regarding the evidence about these matters given by B group officers as tainted by their awareness of other officers’ willingness to use corrupt practices of the kind to which we have referred.  Looking at the evidence in detail, we are not persuaded that there is good cause for doing so.  More particularly, we do not see good cause to doubt the integrity of O’Shea’s evidence that on 11 June 1991 Cummings and the appellant met at a bus stop opposite Islington Town Hall at 6.53am and remained there together for six minutes before walking off in the direction of the post office depot.
31.	We do not see good cause to doubt the integrity of the evidence of Gardner and Allen, respectively, about seeing the appellant being picked up by Cummings’s brother  at 4.07am and Cummings being picked up by Agombar at 4.20am on 3 July 1991.  It is right that these matters were not contemporaneously logged, but it is apparent from Blasby’s statement that Gardner promptly reported his observation.  The rest of the observations on 3 July were all contemporaneously logged, except for the detail that at 7.35am Cummings was seen to have an earpiece in his right ear.  Mr Mendelle is right to say that this point, added to the log at the end of the day, was a point of significance; but five minutes later, at 7.40am, O’Shea logged that he saw Cummings talking into a walkie talkie radio.  So there was contemporaneous evidence to that effect.
32.	When looking at the totality of the evidence from 4am to 9am, it is significant that the evidence of police officers whose character has not been questioned (Seabrook, Anderson and Need) established a very strong case that Agombar, Cummings and the appellant were all together at Mayfield House from just after 8am to just before 9am, except that the appellant left for some purpose at 8.21am and returned at 8.44am.
33.	We turn to the question of the impact of the evidence of the A group officers and the strength of the evidence if the A group officers’ evidence is excised.
34.	The witnesses on whose evidence no value could be placed were Livingstone and Green.  Livingstone’s evidence related to the sighting of Cummings and the appellant at the bus stop opposite Islington Town Hall on 11 June 1991.  The evidence which came from him alone was that the men in dark clothing who could be seen in one of the photos were postmen, with the implication that Cummings and the appellant were deliberately following postmen.  The meeting between Cummings and the appellant was not itself disputed.  There was a dispute about how long they stayed at the bus stop, but there was evidence of that from O’Shea and the logger Powell.  Green gave evidence about Cummings having an earpiece at 7.35am on the occasion of the attempted robbery, but that was supported by Powell who countersigned the addition to the log, and it was corroborated by O’Shea who independently logged seeing Cummings talking into a walkie talkie at 7.40am.
35.	In evaluating the evidence, it is logical to start with the position of Agombar and Cummings for two reasons.  First, as the judge rightly directed the jury, it was necessary for the prosecution to prove that they (or at least one of them) were part of the gang responsible for the attempted robbery as well as the final robbery in order to prove the existence of the conspiracy of which the appellant was alleged to be part.  Secondly, if Agombar and Cummings were part of the gang responsible for the attempted robbery, that fact had implications for the conduct of the appellant on that morning. 
36.	The question whether there was such a conspiracy is touched on, at least by implication, in the CCRC’s reference regarding the reliability of the police observation evidence in relation to Cummings and the appellant.  Neither Agombar nor Cummings has sought to appeal against his conviction.  That fact does not prevent the appellant from challenging the existence of a conspiracy among the defendants which included the attempted robbery, but unsurprisingly Mr Laidlaw made the forensic point that it does not appear that either they or their advisors considered that any such appeal would have any prospect of success.  In our view on the material before the court any such appeal would indeed have been hopeless.  The linkage between the final robbery and its predecessors was strong and, as set out above, there was a good deal of evidence to link Agombar and Cummings with the attempted robbery from 4.20am, when Agombar was seen to pick up Cummings, to 9.45am, when the police observation terminated.  In the intervening period there was the kidnap of Mr Scerri on his way to work at the King Edward Street depot, after which Cummings was seen in that vicinity, from where he went (in company with the appellant) to meet Agombar at Mayfield House.
37.	Given that Agombar’s and Cummings’s movements on 3 July 1991 did not have the innocent explanations advanced by them, but that they were involved in a highly professional robbery which they decided to abort, the jury had to consider the significance of the appellant’s conduct during the same period.  He himself gave no explanation, but the circumstances of his early rising (at 4.07am), his meeting with Cummings near to the King Edward Street depot and the subsequent meeting of the trio at Mayfield House suggested strongly that he was in on what they were attempting to do. The case against him gained additional strength from his suspicious behaviour at the bus stop in Islington on 11 June 1991 and his identification by Emma, although that identification of itself was seriously weakened by her earlier mistakes.
38.	Looking at the matter overall, we do not have any doubt about the safety of the appellant’s conviction and the appeal is dismissed.