A senior prosecutor was responsible for a "deliberate conscious decision to flout the rules of disclosure" that led to the collapse of a major trial, a judge has ruled.
Kingsley Hyland, head of the Complex Casework Unit at the Northumbria branch of the Crown Prosecution Service (CPS), was to blame for "a gross failure which has undoubtedly prejudiced the defendants and has resulted in an unfair trial," Mr Justice Cooke said in a judgment just released.
"Whether this is termed bad faith or serious default of duty does not in the end to my mind matter," the judge continued. "The prosecution has manipulated the process of the court and derived advantages that it should not have achieved."
Refusing to order a re-trial, the judge said: "I consider that the position here is so serious and the manipulation of the process so significant that this matter should be stayed for abuse of process."
The defendants were John Henry Sayers, 47, of Newcastle, his brother Stephen Sayers, 45, and Mark Rowe, 40, both of Byker in Newcastle.
All denied conspiracy to pervert the course of justice by intimidating a juror and offering an inducement.
During their trial at Woolwich Crown Court, it was alleged that a cocaine dealer was recruited to "nobble" a juror at the trial of five men accused of murder.
Errol Hay said he was told to ring the juror, Robert Black, and offer him £20,000 to make the "right decision".
Mr Black was a jury member in the trial of five men charged in connection with the killing of Freddie Knights, a Newcastle criminal, in September 2000.
The five men were John Henry Sayers, Tony Leech, Michael Dixon, Dale Miller and Edward Stewart.
Mr Sayers and Mr Leech were later acquitted on all charges in the trial at Leeds Crown Court in 2002.
Miller and Stewart were convicted of manslaughter and Dixon was found guilty of conspiracy to commit grievous bodily harm with intent.
All were convicted the day before Mr Black was contacted by Mr Hay.
Today, the CPS announced that it would no longer be seeking to appeal against Mr Justice Cooke's ruling. Prosecutors said they would be offering no evidence against the three defendants, leading to their acquittal.
In a statement just issued, John Henry Sayers said:
I am delighted at my acquittal which is a triumph for true justice. Neither I nor my brother nor Mark Rowe were guilty of this offence. We nobbled no juror or jury, and my acquittal of murder at Leeds in 2002 was an honest and true verdict.
I wish to thank my many friends and supporters, but above all my thanks go to my "dream team" of lawyers, my barristers Jonathan Goldberg QC and Andy Rutter, and my solicitor Richard Haswell.
Their work was stupendous, and without their having carefully uncovered the deliberate suppression of vital exculpatory evidence by the prosecution, I might now be serving a long sentence for a crime I did not commit.
I now want to have a quiet Christmas with my family, in the hope that the relentless persecution of me by the Northumbria Police and CPS over so many years will now cease.
I am going straight, and I only hope they will finally leave me in peace to do so.
Jonathan Goldberg QC, who defended John Henry Sayers both at his murder trial in Leeds in 2002 and in the subsequent trial, said today:
This is simply extraordinary. There have been previous cases where the police failed to disclose vital exculpatory evidence to the defence, but this is the first time in my experience where the police behaved impeccably in handing the evidence proving Errol Hay was lying to the CPS, but the Senior Crown Prosecutor Mr Kingsley Hyland failed in his duty to pass it on to the defence, for reasons best known to himself.
Here is the judge's ruling in full.
- 1. All three defendants seek a revision of the ruling which I made on the earlier submission of no case to answer when I held that there was sufficient material to go before the jury. Alternatively they apply for the indictment to be stayed on the ground of abuse of process. Two other options arise: the first is that the trial should be stopped because of unfairness to the defendants and a further trial ordered where fairness can be ensured. The last option is that this trial should continue with suitable admissions and directions to the jury which could be used to cure the deficiencies which have taken place within the trial process. The prosecution accept that this last is not an option and that the jury must be discharged because of unfairness within this trial process which is incurable today. The key witness cannot be recalled because he has just had a brain operation and would not be ready to give evidence for at least 2 months, if at all.
- 2. The problems which surfaced here arose when a request was made by junior counsel for the first defendant to the prosecution to disclose a document in relation to telephone billing. That occurred on Wednesday 24th November either in the course of or at the conclusion of the argument on no case to answer. The request led to junior counsel for the prosecution asking a police officer present and he then produced, from his computer a document which had apparently never been printed out and given to the CPS or counsel, namely an email from BT to the Northumbria Police which revealed that only one telephone call had been made from a telephone box in Weardale Street in Hetton le Hole between 10 pm on 9th September and 1 am on 10th September 2002 namely a call to a mobile at 10.06 pm. The document thus revealed that the second telephone call, which Mr Hay, the prosecution's chief witness, said in evidence that he had made from that box to a second Mr Black, at some time shortly after 11 pm could not have been made from that box. This was not news to the police nor to the CPS since the police had, in other documents, revealed the position to the CPS between August and October 2009. It was accepted by Mr Hyland, the Head of the Complex Casework Unit for Northumbria CPS that he knew of this issue in August 2009 as a result of conversations with the police although the documentation to support it was only seen by him at a later stage. It was however something which prosecution counsel had not grasped and no disclosure had been made to the defendants of it. The production of this document led to an immediate request for further disclosure which was then forthcoming overnight as the prosecution went through the documents to see what had and had not been disclosed on this issue.
- 3. The following documents were not disclosed:-
- 3.1. A map which the police had in hand dated 16th September 2009 showing all telephone kiosks within a 3 mile radius of the Weardale box.
- 3.2. A schedule of the kiosks (PC2) within the same radius.
- 3.3. The statement of DS Crowe dated 10th September 2009 relating to the map and the schedule of telephone boxes, locations and respective telephone numbers.
- 3.4. Report R12 and an accompanying letter dated 22nd July 2009 with a summary of the data provided by BT in relation to those telephone kiosks in the relevant area. If the data was complete, it suggested that there had been no possibility of any phone call by Mr Hay to another Mr Black in the Leeds area from any of those boxes that night, although it appears that there was some doubt as to whether or not the data was comprehensive. Mr Hyland understood from enquiries the police had made that there were two possible reasons why the documentation might not be comprehensive. The first was that telephone boxes which had existed in 2002 had been removed or had changed location since that date. The second was that it was possible for billing data to drop off the bill, though he was later to come to understand that, in relation to the kiosk at Weardale Street the call timed at 10.06 pm meant that calls before that time might have dropped off but calls after that time could not have.
- 3.5. Report R13B dated 13th August 2009 which showed that the only one call to a Leeds number from any of the relevant kiosks (leaving aside the initial first call made to Mr Robert Black from the Patterdale Street telephone box in Hetton le Hole, which was substantiated by telephone data) was a self test number.
- 3.6. Report R13D dated 14th August 2009 which commented on the billing data shown in and by reference to report R12.
- 3.7. Report R13G dated 27th August 2009. In this report DS Crowe reported to the effect that the billing data for the second kiosk identified by Mr Hay showed no call made by him at the relevant time and that no information had dropped off since the time of the earlier call to the mobile at 10.06 pm, although calls could apparently drop off if made before some calls which remained on the record. Data do not however drop off records if they are made after a call which is still recorded.
- 3.8. Report R13H dated 26th October 2009. This was a full report from DS Crowe about the efforts made by the police to trace the second call which Mr Hay said he had made. Fourteen kiosks were identified in the Hetton area where no relevant call was found. Then subsequently "the parameters for search were widened to include all kiosks within a 3 mile radius specifically at the time of the trial on 9th September 2002. ....BT has said that due to the set up of their system, searches for historical data is limited and they cannot search for this address data as far back as 2002. They can make an enquiry regarding specific data i.e. a kiosk telephone number. In consequence I have used data sources from the force system, telecoms unit data and data from a force analyst to produce an amalgamated list (see appendix A). This resulted in 48 telephone numbers being considered in total (including the initial 14). Billing requests for all bar two of the above were submitted and while some requests resulted in calls being identified, none were to the Leeds area (the two numbers were excluded because they were actually on the A19). I have produced a map of the kiosk locations and a schedule of the kiosks exhibits PC1 and 2." The report concluded by saying that "in summary the location of the second call has not yet been identified". The report also referred to appendices B and C.
- 4. All of these documents were disclosed to the defendants overnight on Wednesday 24th November 2010.
- 5. Mr Hyland's evidence was that, with the exception of report R12 and R13H, all this material had been seen by him by 8th December 2009 at which point he had reviewed a 129 page schedule of non sensitive unused material dated 12th November 2009 which had been sent to him by the police. Within that document there was reference at A136 to the proposed drawing of plans of the area highlighting the location of the telephone kiosks on Patterdale Street and Weardale Street and the taking of a statement from a BT engineer about the history of telephone kiosks in the area as well as the specific two referred to. This would include all changes in location, allocated phone numbers and kiosk design (A137). At A98 appeared a reference to the identification of the telephone kiosk from which the second call had been said by Mr Hay to have been made as Weardale Street. At A127 and 128 there was reference to researching the history of the two identified telephone kiosks. At A170 there was reference to the production of Mr Hay from prison to identify the second telephone kiosk on 1st/2nd September 2009 and of that taking place. That was by way of follow up to his earlier identification of the two boxes on 30th June 2009, the details of which appeared in the statement served by the CPS on the defendants. At A176 there was a reference to the action required of locating all telephone kiosks within the 2 mile radius of Weardale Street and then of all kiosks within a 3 mile radius and marking it on the map PC1, the creation of a schedule of telephone kiosks (PC2) and a statement by DS Crowe. This entry also cross refers to D37 which was a copy of exhibit PC2, the schedule of telephone kiosks within a 3 mile radius and the identification of their locations and numbers. D54 referred to report R13H as a report by DS Crowe reviewing the Hetton telephone kiosks and telecoms featured in the enquiry, D54 being the appendices A-C in DS Crowe's report. Item R13D was listed as DS Crowe confirming the outgoing billing for the first identified kiosk on Patterdale Street but referring to further requests being made for billing on all kiosks in the area. R13G referred to the report of DS Crowe regarding BT billing for public kiosks and S27A referred to DS Crowe's map of the kiosks and list of respective telephone numbers in PC1 and PC2. All of these items were marked CND - "clearly not disclosable". In some cases the reason for this was stated as "statement served".
- 6. There was a further schedule of non sensitive unused material dated 20th July 2010 which was reviewed by 26th July 2010 by Mr Hyland. Within that document there was an item A9 (an item missing from the earlier schedule because, it was viewed as sensitive at that stage). The item refers to action to ascertain if the second call was made by Mr Hay and stating that the second call had not been identified, by reference to R13H which detailed the telecom enquiries carried out in relation to this. "R3, 3A, 3C, 3D, 3F and 3G have been submitted in respect of enquiries concerning the Blacks and the second call". This was marked on this later schedule as "nothing to disclose, with reference to 20th July 2010 submission".
- 7. Reports R12 and R13H had been listed in schedule MG6D, the police schedule of sensitive material dated 12th November 2009. There were also entries on Mr Hyland's review of MG6C, which he did not complete until 26th July 2010 referring to A98 and D37 on 8th December 2009. A98 referred to evidence in relation to the attempts to identify the phone kiosk from which the second call alluded to by Hay was made as having been served (which it had not). The entry went on "once all enquiries are complete, it will be necessary to consider a formal admission to the fact that the billing data suggests that the call was not made". In Mr Hyland's review appears the comment "counsel to consider whether a formal admission should be made". Similarly D37 referred to the comments made at A98 and went on to state it would be necessary "to make an admission to the effect that extensive enquiries have failed to identify a telephone within 3 miles of Hetton le Hole from which the second call referred to by Hay was made". Once again Mr Hyland's note is that "appropriate admission to be drafted".
- 8. A further entry in this schedule given the reference A9, but also R3, 3A, 3C, 3D, 3F, 3G and 13H, refers to Report R13H which was recorded on the first submission MG6D. "The fact that the police had been unable to find any record of the second call which Hay alleges he made will be the subject of a formal admission". Once again Mr Hyland's note along side is "counsel to draft admission".
- 9. Two out of the three defendants mounted an attack on the prosecution, accusing it of deliberately suppressing material and acting in bad faith. It was said that at the very least there had been recklessness if not dishonesty. In consequence, Mr Hyland was tendered for cross-examination and answered questions over a day and a half with further material produced on an overnight basis with waiver of privilege or redactions for PII matters which had nothing whatever to do with the issues which arose here. Having heard his evidence I find the following:-
- 9.1. Between August and December 8th 2009 Mr Hyland became aware of the problems relating to the second call which Mr Hay said he had made. It became apparent reasonably early on, although Mr Hyland may not then have had the documents which showed it, that he could not have made the second call from the box he had identified at Weardale Street. It also became apparent in due course that there were no BT records to support any such call being made from any of the 48 boxes within a 3 mile radius of that box. Mr Hyland considered that the material produced by BT suggested that no such call had been made but that the material was not comprehensive and so there remained the possibility that the second call had been made from one of those boxes. The billing data was incomplete, boxes might have disappeared or boxes might have been removed. That matter was not, as he said in his evidence to his mind, completely put to rest until Friday 26th November of this year when, in consequence of cross-examination, as I understand it, he asked the police to conduct further enquiries which resulted in NAE 15 and a further statement which, as he said in the witness box, "bottomed out" the issue and demonstrated to him that no call could have been made from any of the boxes by Mr Hay in the way in which he had suggested.
- 9.2. Back in December 2009 when he was reviewing these matters and again in July 2010 when he reviewed all the sensitive material which contained references to R12 and R13H, A98, D37, A9 and R3 - R3G and 13H, he took the view that the combination of documents relating to the telephone calls and kiosks together revealed police investigative capacity and what data the police could and could not obtain from public telephone boxes and the reliability of data therefrom. He thought that this attracted PII. Whilst some of the documents he accepted would not individually attract it, he said the reference to one document would lead to reference to another and putting the documents together would result in sensitive information being produced.
- 9.3. In cross-examination, he recognised that he was wrong in this classification of the material and that it did not attract PII.
- 9.4. He had however by December 2009, decided that the appropriate way in which the matter should be dealt with was by way of admission. The exact terms of the admissions to be made would be drafted by counsel in the light of what the documents revealed, which at that time he considered were not such as to rule out the possibility of Mr Hay making a second call from Hetton le Hole or its vicinity in the way that he had said.
- 9.5. As he recognised in cross-examination, Mr Hyland failed however to observe the basic rules of disclosure inasmuch as he neither disclosed the documents in question nor made any application to the court for PII direction as to how any disclosure might be made with the minimum possible derogation from the golden rule of full disclosure. Although some PII material was put before me in July and August 2010, none of this material was. Whilst I am entirely satisfied that Mr Hyland intended at all times from December 2009 onwards that admissions should be made which put the defendants in essentially the same position that they would have been, had disclosure been made, no adequate steps were ever taken to alert the defendants to the true position, despite references in the schedules of unused material which were served and which might have given rise to more questions than were in fact raised.
- 9.6. I am satisfied that Mr Hyland at no time intended that the defendants should be unaware of the position about the telephones though he thought and hoped it gave rise to more room for manoeuvre on the part of the prosecution than it actually did. He did not therefore in that sense intend to suppress evidence. The fact remains however that he did make a deliberate decision not to abide by the rules and arrogated to the prosecution the decision to disclose by way of admissions, to be drafted by counsel, rather than by ordinary disclosure of documents. This plainly involved a flouting of the Attorney General's guidelines or code as well as the law as set out in R v H.
- 9.7. As I set out later in this ruling, the responses made by the CPS to the specific requests for disclosure relating to the second telephone call were inadequate, whether regard is had to Mr Hyland's intention to make admissions or not.
- 9.8. The question of making admissions got overlooked. I bear in mind that the court has been examining this particular area in isolation when there were other areas of admissions which were the subject of consideration and much other work to be done and material to be considered. There is always a danger when an issue of this kind comes to light and is then highlighted of failing to recognise that it was one amongst many matters to be dealt with at the time and would not necessarily have been the focus of attention in the way it now is. Nonetheless, it cannot be said that this was not a significant point in the context of the case as a whole, since Mr Hay's credibility has at all times been fundamental to the prosecution case. Mr Hyland was aware of this general problem at the time of the charging decision but took the view that, even if there were problems about this second call, Mr Hay's credibility was not so damaged by it as to mean that a jury could not properly convict on the basis of his evidence about Mr John Sayers' conversation with him from the dock, Mr Stephen Sayers' instructions to him to make a call to the juror, and the making of that first call to the Mr Robert Black who was, in fact, the juror, with the privity of both Stephen Sayers and Mark Rowe.
- 9.9. Whilst the matter was referred to counsel amongst a number of other items on 8th December 2009 with reminders of this in May 2010, in all probability, and certainly shortly before the trial, counsel have said and Mr Hyland accepts that they never directed their minds appropriately to the materials which had not been disclosed and which gave the lie to Mr Hay's story of the second phone call. I am in no doubt that, had counsel applied their minds to the documents and had their attention drawn to them full admissions would have been drafted which would have reflected the contents of the documents and would not have been limited in the manner suggested by a note to counsel of 8th December 2009 and an MG6C entry disclosed to the defendants which appears at page 31 of a bundle of documents produced to the court by the defendants. It seems that junior counsel received copies of all police reports, including the relevant ones to which I have referred after 20th October 2010, but before the commencement of the trial, and that it was agreed that photocopies of these should be given to leading counsel as well. In the context of a trial beginning on November 15th, this was very late and on an issue of this kind, even if Mr Hyland's view about sensitivity was right, the matter should have been put before a judge on a PII hearing much, much earlier and an appropriate direction given as to the form in which disclosure should take place, whether by admission or otherwise, if the Judge had been of the view that it did attract PII.
- 9.10. Once again I bear in mind that immediately prior to the beginning of this trial there were problems about Mr Hay's health and real doubts over whether or not he could or should give evidence because of a diagnosis in the week before trial of a brain tumour and the need for an urgent operation. This necessitated a change in the prosecution timetable of witnesses and the need for Mr Hay to give evidence first so that he could have this operation as needed. I laid down a specific timetable for his evidence in order to ensure that the operation would not be jeopardised. As Mr Hyland put it, his eye was taken off this particular ball. It does not appear that counsels' eyes were ever focused upon this ball at all. They should have been.
- 10. There can be no possible criticism of the Northumbria Police in relation to this situation at all. The material which they had uncovered was made available to the CPS in good time so that by December, the CPS knew that Mr Hay could not have made the second call he says he did from the kiosk which he identified in Weardale Street: the CPS knew that he remained firm that that was the kiosk from which he made the second call: the CPS knew or ought to have known that all available billing data from other phone boxes in the area did not evidence any such call being made and effectively ruled out the possibility of any such call being made, with minimal scope for manoeuvre. That minimal scope for manoeuvre has in fact been ruled out now, as Mr Hyland accepts, even if it was not in fact ruled out at that stage, which may be a matter in dispute.
- 11. On 23rd November 2009, the solicitors for the first defendant wrote to the CPS seeking disclosure of "the details of the second call made by Hay", amongst other requests. On 26th November 2009 the CPS responded, on this particular item, in the following way: "Such information as there is in relation to this call is dealt with in the statement of Hay. The police have been unable to establish by billing data the phone kiosk from which this call was made". This response was attacked by two defendants as being disingenuous. By this time it was clear that Mr Hay had identified the kiosk at Weardale Street and was sticking to it as the kiosk from which the second call was made and the police knew by this stage that the call could not have been made from that box. Mr Hyland says that at the time there still remained a possibility of further enquiry either in relation to that box or in relation to other kiosks in the area and that the police were indeed carrying out such enquiries. I note that report R13H is dated 26th October 2009.
- 12. The defendants say that this response signally failed to reveal that BT information showed that the second call could not have been made from the box identified by Mr Hay, that the police had conducted a trail through 48 other boxes in the area and that available billing records did not show the call being made from them, even if they did not conclusively rule out the possibility as the defendants submit they did. There was no disclosure of any of the documents which were in hand at that stage and no admission of any kind was even offered. On any view Mr Hyland's response was not full or frank.
- 13. On 8th December 2009 the CPS again wrote about the various requests for disclosure on other items and in relation to this item of request stated that there was nothing to add to the letter of 26th November. It is to be noted that 8th December was the time at which Mr Hyland had completed his review of some of the unused material and also instructed counsel.
- 14. On 16th June 2010 the second defendant made an extensive request for disclosure based upon a note from counsel. Item X sought full disclosure of police checks and confirmation that no other call was made to a person named Black that night or from the second phone box Hay described. The answer given, in a lengthy and detailed interim response on 22nd June 2010 to the range of enquiries, interim because further information was said to be needed from the police which had been requested, said in relation to item X:-
"copies of reports R3G and R3K (relating to efforts to identify other recipients of the call named Black) were supplied with the letter of 23rd June. The prosecution are not in a position to confirm that no call was made to a second "R Black". All that the prosecution can say is that of all the "R Blacks" who have been identified and spoken to, none can now recall a call being made to them. Given the passage of time the police cannot be certain that all "R Blacks" living in the Leeds area at the time of the trial have been seen by the police".
- 15. The defendants point out that the response simply did not deal with the second part of this request. They also suggest, or at least two of them do, that this response was deliberately misleading. Nothing was disclosed about police checks or confirmation that no other call was made from the second phone box that Mr Hay had described. Mr Hyland said that this had simply been overlooked amongst the details of the many requests made. It is clear to me that the defendants were misled by this reply. I do not find it possible to believe that Mr Hyland did not direct his mind to the second aspect of this request because of the focus of police activity in relation to it and the reports he received and its interconnection with the first part of the request relating to the Blacks. In my judgment Mr Hyland was always looking to avoid disclosure by giving an admission in as limited a form as the documents allowed. This alone can explain his responses in November 2009 and June 2010 to the specific requests. No disclosure was given, no PII application was made and no admissions proffered. Without a PII application and court approval of an admission and explanation of this sequence of events, any proffered admissions would of course have resulted in an immediate request by the defendants for the underlying documents as these would have been undoubtedly discloseable.
- 16. On 8th December 2009, by which time Mr Hyland had reviewed the material in the 129 page MG6 non sensitive schedule, he completed his own internal review document which included the following:- "The evidence in relation to the attempts to identify the phone kiosk from which the second call alluded to by Hay was made, has been served. Once all enquiries are complete it will be necessary to consider a formal admission to the fact that the billing data suggests that the call was not made". His additional comment appears as "counsel to consider whether a formal admission should be made".
- 17. On the same day he sent a note to counsel, the express purpose of which was to update counsel in relation to the unused material in this case. He sent them a copy of the non sensitive unused material schedule MG6C. He referred to material which called Mr Hay's evidence into question but suggested that counsel could consider whether a number of formal admissions could be made on a number of different issues, including the second call box and the recipient of the second call. Once again this has to be seen amidst the various other requests that were being made at the same time for consideration of admissions to be made. The note had a paragraph in the following terms:-
"Much of the scheduled material has been generated as a result of police enquiries conducted with a view to testing the veracity of Hay's evidence. This has produced some material which corroborates aspects of Hay's evidence and some which calls it into question. For the most part the material would properly be regarded as neutral. Given the passage of time between the events of September 2002 and his first detailed account to the police in the Spring of 2009, it is hardly surprising that there are some discrepancies. Rather than disclose large numbers of documents which detract attention from the key issues in this case, counsel is asked to consider whether a number of formal admissions could be made which would meet the justice of the case without causing significant harm to the Crown's position."
- 18. There then followed a number of issues which "might be deemed suitable for formal admission" which included the fact that the billing data obtained in relation to the Weardale phone box suggested that no such call was made and that "to the extent that it had been possible to obtain billing, it could not be shown that the call was made from any of the other public phone boxes in the vicinity".
- 19. A variety of other points were raised for potential admissions also and the note concluded by saying that it was not intended to provide counsel with copies of all the unused material reviewed by the reviewing lawyer at that stage but given the duty to keep disclosure decisions under review, junior counsel would in due course be asked to view the material.
- 20. The flouting of the rules with regard to disclosure is exacerbated by the terms of the responses made to the requests for disclosure in November 2009 and June 2010 to which I have referred, notwithstanding the intention to make appropriate admissions which were intended to put the defence in the same position as if disclosure had been made. Although it was suggested to him that he had taken the view that it was tactically better to make an admission than to allow cross-examination on the materials, Mr Hyland denied that this was so and said he considered that the defence would be in just as good a position to cross-examine Mr Hay on the admissions as on the documents themselves. Whilst I accept that Mr Hyland may have so thought, I have no doubt that he was looking to minimise the damage to Mr Hay's credibility and to the prosecution case by making as limited an admission as possible. This does not amount to an appropriate reason for not observing the rules nor for failing to answer the questions asked about disclosure in a way that was full and frank, referring either to documents which would be disclosed, or to materials which were PII sensitive and would have to be put before the Judge for directions, or to further police enquiries or to admissions which would be made. The defendants were left in the air with information which was, to a significant extent, misleading. In the MG6C document disclosed after 26th July 2010, the A9 reference had the following CPS comment to the defendants "R13H was recorded on the first submission on MG6D (the sensitive material schedule). The fact that the police have been unable to find any record of the second call which Hay alleges will be made the subject of a formal admission". Similarly the later MG6C document disclosed sometime after 7th October 2010, in relation to A9, referred to the earlier schedule and said there was nothing further to disclose.
- 21. Counsel's recollection is that they never addressed the reports about the kiosks with a view to drafting the admissions.
- 22. In consequence, counsel opened the case, addressed the jury from an opening note, which had been seen by Mr Hyland and produced to the defendants' counsel in advance, which referred boldly to Mr Hay's evidence that he had made a second call from the kiosk in Weardale Street. The jury bundle contained a map which located that box as well as the Patterdale Street box and a number of photos of both boxes. Mr Hay gave evidence about the second call and was cross-examined upon it. The defendants did not have any of the material upon which they could have cross-examined him to say that no such second call was made from the Weardale Street box nor from any of the other telephone boxes in a 3 mile radius roundabout Hetton le Hole. Had they had such material, the defendants would have been in a position to put to Mr Hay that not only was he lying about this second call but that he had never been in Hetton le Hole at all and was lying about the crucial first call actually made to Mr Robert Black from the Patterdale Street box. Mr Hay's evidence was that, having made the first call to the Mr Black who actually was the juror, he was to go on and make calls to another 5 persons of the same name on the list he was given because it could not be known which Mr Black on that list was the juror in question. On his evidence, he was in the course of making the second call when he became aware of significant police activity in the area. The second recipient of the call was suspicious about this call so late at night, asking for a Mr Black, who appeared to be his son or step-son, and Mr Hay's evidence was that he got "spooked". He said that the police activity in the area during the course of this call persuaded him that he had hit the jackpot on the first call.
- 23. Thus Mr Hay's evidence as to the sequence of events and the underlying reasoning for setting out to make 6 calls and only making 2 was therefore intrinsically tied up with his evidence that he did make the first call from a telephone box in the Hetton le Hole area and a second likewise. The impact of potential cross-examination on this point is obvious, whether the cross-examination were to be based on a full admission or upon documents showing that the second call could not have been made from a telephone box in that area.
- 24. Towards the end of the prosecution case draft admissions were being discussed between the parties. I am told that the terms of draft admission 10 came from the defendants, it reads thus: "R Black who gave evidence was the first R Black in the BT telephone directory, there are only 5 R Blacks listed, no calls were identified to those other numbers, despite police enquiries of the other Blacks". The terms of this draft admission, because of all counsels' ignorance of the material, demonstrates the ignorance that they had and the limits which had been placed upon the defendants in cross-examination. Whilst it appears to me that the defendants might have picked up from the MG6C references the fact that there had been extensive additional investigation by the police in relation to telephone billing and telephone kiosks in that area, it is not for the defendants to pry out of the prosecution information which was so obviously disclosable in its hands. Moreover they were misled by the CND references and the specific answers to the requests made in November 2009 and June 2010. As is obvious and was recognised by Mr Hyland at all times, the material was undoubtedly damaging to the prosecution and assisted the case of the defendants in what is essentially, from the prosecution's perspective, a one witness case. The defendants knew that the police had been unable to trace a kiosk from which the second call was made but had not appreciated that the police enquiries revealed that the second call could not have been made from the box identified by Mr Hay nor that the billing information established that the call could not have come from any phone box in the area.
- 25. Mr Hay and DS Crowe would have been forcefully cross-examined on this basis and the defendants have thus been deprived of that opportunity. Mr Hay cannot be recalled as he has just had his operation and neither biopsies nor prognosis for the future will be available before Friday of this week. Whether and when he will be fit to give evidence is unknown. The defendants have thus been severely prejudiced.
- 26. Whether or not, if full admissions had been offered in good time, the defendants would have been disadvantaged by not having disclosure of the documents in question, upon which to cross-examine is perhaps a moot point but the fact remains that disclosure should have been made and any additional advantage arising from having the documents, as opposed to an admission, should have been given to them. As no disclosure of the full ambit of police investigations was made in any form, the defendants have been deprived of an opportunity of undermining not only Mr Hay's credibility in general but the sequence of events which lies at the heart of the prosecution's case.
The test for abuse of process
- 27. I was referred to a number of authorities in relation to the test when determining whether or not there has been an abuse of process. Reliance was placed by the defendants upon the case of R v Feltham Magistrates and in particular to the judgment of Lord Justice Brooke and paragraphs 17 through to 25. He said that in most cases any alleged unfairness can be cured in the trial process itself. He however went on to say "we must stress from the outside that this residual and discretionary power of any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances whatever the reason submitted for invoking it". He then went on to refer to 2 distinct categories of cases in which the power to stay proceedings for abuse might be invoked. The first category consists of cases where the court concludes that the defendant cannot receive a fair trial. The second category consists of cases where it concludes that it would be unfair for the defendants to be tried. Those categories were derived from the judgment of Lord Justice Neil in R v Beckford. It was observed that in some cases those characteristics may overlap. He then referred to the second category of cases as cases where the court was not prepared to allow a prosecution to proceed because it was not being pursued in good faith or because the prosecutors had been guilty of such serious misbehaviour that they should not be allowed to benefit from it to the defendants detriment. In those cases he said "the question is not so much whether the defendant can be fairly tried but rather whether for some reason connected with the prosecutor's conduct it would be unfair to him if the court were to permit them to proceed at all. The court's enquiries were directed more to the prosecutor's behaviour than to the fairness of any eventual trial. Although it may well be possible for the defendant to have a fair trial eventually, the court may be satisfied that it is not fair that he should be put to the trouble and inconvenience of being tried at all". He went on to say that if the court is satisfied that it would not be fair to allow the proceedings to continue, the court would not then concern itself with the possibility that any ensuing trial might still be a fair one because it would have formed the prior view that it wouldn't be fair to the defendant for it to take place at all. The type of situation in mind was one which was fairly summarised by Sir Roger Ormerod in R v Derby Crown Court where he said that it could be an abuse of process if "the prosecution have manipulated or misused the process of the court so as to deprive a defendant of a protection provided by the law or to take unfair advantage of a technicality". There was then reference to an unreported case where it was said that there had to be either an element of bad faith, or at the very least, some serious fault on the part of the police or the prosecution authorities for this ground of challenge to succeed.
- 28. Mr Goldberg QC for the first defendant submitted that the trial process was not equipped to deal with the present complaint except by allowing his no case submission or staying the case for abuse. He referred there to the inability of Mr Hay to return for cross-examination before this jury and to the defendant being wrongfully deprived of dealing the knock out blow that it is said that cross-examination on these documents would constitute. The jury had not had therefore the benefit of seeing him face cross-examination and tell further demonstrable lies in an effort to avoid the effect of what he had said about the second telephone call. Nor would Mr John Sayers be sufficiently protected, it was said, or compensated for by having a new jury and a new trial in the future. The way Mr Goldberg puts it in his skeleton is to say that he could never again adequately recreate the moment that he has been denied in which a witness, who claimed that his word was good enough for the jury because he was telling the truth, would be demonstrated conclusively to have told a lie to them. It is said therefore that a retrial can only benefit the prosecution, that the prosecution must devoutly be hoping for it and that to allow for such would be to reward the prosecution for its misconduct. In such circumstances it is said the prosecution would regroup, Hay would rehearse himself and various discrepancies in his evidence would seem cold and wooden when relived only through the channel of a transcript as would be the case for a new jury. Moreover such a retrial would involve a further period of remand in custody for certainly a couple of months before the retrial occurred.
- 29. Mr Valios QC for the second defendant in essence puts the position thus. The Crown has deliberately manipulated the process by Mr Hyland's positive decisions to breach his statutory duty from beginning to end. The Crown's conduct is such that it is contrary to the integrity of the criminal justice system that any trial should take place. He submitted that the decisions by the police and the Crown wholly undermine the integrity of the criminal justice system; that Mr Hyland's conduct was contrary to it; and that this struck at the root of all that would lead to a fair trial, namely proper and full disclosure of material that would have undermined the Crown's case and assisted the defence case and would have resulted in verdicts of not guilty. In consequence bad faith is alleged.
- 30. In my judgment here there was a deliberate conscious decision to flout the rules of disclosure with a view to putting forward the least damaging admission possible. That took place over an extended period of time with procrastination and prevarication in relation to the defendants' requests for disclosure about this call which was a key factor in Mr Hay's evidence upon which the prosecution case depends. Whether this is termed bad faith or serious default of duty does not in the end to my mind matter. It was a gross failure which has undoubtedly prejudiced the defendants and has resulted in an unfair trial in front of this jury which is not curable by the making of disclosure now, nor admissions, nor the further cross-examination of Mr Hay who cannot be made available for some months if at all. This in my judgment is one of those rare cases where the abuse is so serious as to fall into the second category of abuse, because the prosecution has manipulated the process of the court and derived advantages that it should not have achieved. Those advantages cannot be fully countermanded in this trial nor in my judgment could they be counteracted in a subsequent trial because the force of cross-examination on the basis of a transcript of evidence of this trial, as compared with cross-examination in front of the same jury, is inevitably diminished. The prosecution accept that this jury must be discharged and would want a retrial which could well redound to its advantage because of the way that this trial has gone. As defence counsel put it, this trial represents the defendants' best chances of an acquittal. Whilst I must look to the justice of the case all round it does not seem to me to be fair to the defendants to provide for such an opportunity where the prosecution have been guilty of the actions they have. I excluded medical evidence of Mr Hay's condition in this trial but prima facie that would be admissible in a retrial if his evidence showed that it was relevant to his motivation which was not the case in these proceedings. If it was so relevant, it would be hard to keep that out even though a judge would have a section 78 discretion to do so, to ensure that no advantage was gained by the prosecution from a retrial resulting from its own misdoings which brought this trial to an end.
- 31. I consider that the position here is so serious and the manipulation of the process so significant that this matter should be stayed for abuse of process. I do so on the basis that it would be unfair to the defendants for them to be retried in all the circumstances. Even though a fair trial might be possible in the future the defendants would be seriously disadvantaged by it simply because of the prosecution's serious default and flagrant failures in disclosing documents which seriously undermined its case.
- 32. It was submitted in the alternative that, should I not stay the indictment for abuse of process, I should revisit the decision I made on the half time submissions of no case to answer. My previous ruling on that is available on transcript and the question arises as to whether or not the fact that Mr Hay did not make a second call from a telephone box in the Hetton le Hole areas makes all the difference to that ruling. The defendants say that it tips the balance so that no jury, properly directed, could convict these defendants on the basis of Mr Hay's evidence, when it can no longer be suggested that he is mistaken about the particular phone box from which the call was made but that he must be lying in relation to making a call from any box anywhere in the area. Whilst Mr Hay's response might be, if cross-examined, that he must be mistaken about the area, his specific identification of a box at Weardale Street and his evidence that it was about ½ mile to 1½ miles away from the Patterdale Street box is very damning. Whilst the second call is distinct from the first call and conceptually it is undoubtedly possible for the jury to accept Mr Hay's evidence about Mr John Sayers speaking to him through the dock, about Mr Stephen Sayers' instructions and about the first call which he made to Mr Black, whilst disbelieving everything he says about the second call, the fact remains that the second call is so closely connected in time in Mr Hay's narrative and in his reasoning and motivation for what occurred that it is hard to see how a jury could accept his evidence on the first call, if they reject it on the second call.
- 33. Mr Valios QC produced a "formidable list" of inconsistencies in Mr Hay's evidence when making the half time submissions but it seemed to me at that stage, notwithstanding the strength of many of the points made and the difficulties that any jury might have in believing Mr Hay because of these deficiencies in his evidence, that this was nonetheless a matter for the jury. It is pre-eminently a jury question whether or not to accept evidence on each of the 3 main features to which I have referred. Once however he is shown to have lied about the second call, his whole story about the first call is immediately called into question. Conceptually, as I have said, it is possible for a jury to seek to separate out one part of his evidence from another but in practice it is undoubtedly hard to see that happening in the present case. To my mind the prospect of a conviction may be seen as illusory. This may be a case of the kind referred to in Galbraith as a borderline case. For myself I find it hard to see that a jury would convict on this evidence when given a direction about all the many and various inconsistencies to which Mr Valios has referred when seen in combination with this major hole in his evidence in relation to the second call and its knock on effect on the first call. I have thought about this but nonetheless it appears to me that although a jury would not convict, these are still classic jury matters where a jury is in a position where it could find that he was mistaken or even lying about the second call but still telling the truth about the first. Those are classically jury matters for them to decide whether or not a witness has lied or told the truth on one or more points in the evidence. With some diffidence therefore it seems to me that the revisitation of the no case to answer argument results in the same decision although as I say I find it hard to see how at the end of the day any jury would convict in the present circumstances.
- 34. For all these reasons therefore the indictment is stayed on the grounds of abuse of process.
Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.
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