Neutral Citation Number: [2004] EWCA Crim 2123
Case No: 2003/01936/C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30 July 2004
Before :

 LORD JUSTICE MAURICE KAY
 MR JUSTICE SIMON
and
SIR CHARLES MANTELL
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Between :

	REGINA	Appellant	
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	VICTOR DEANS	Respondent	

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Stephen Kamlish QC (instructed by The Registrar) for the Appellant
William Davis QC (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 16 July 2004
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Judgment
Lord Justice Maurice Kay : 
1.	On 29 November 1989 in the Crown Court at Birmingham the Appellant was convicted of five offences.  Count 1 was an offence of supplying cannabis resin on 1 October 1988.  Count 3 was an offence of possession of cocaine and Count 4 an offence of possession of cocaine with intent to supply.  Those two offences occurred on 14 December 1988.  Count 6 was an offence of permitting premises to be used for the production of cocaine and Count 7 an offence of possession of cocaine with intent to supply.  The date in relation to these latter two offences was 23 December 1988.  The Appellant pleaded guilty to two counts of possession of cannabis (Counts 5 and 8) and was acquitted of an offence of possession of cocaine with intent to supply which featured as Count 2 and was an alternative to Count 3.  He received a total of 12 years imprisonment from which he has long since been released.  This is not the first occasion upon which the convictions have received the attention of the Court of Appeal.  On 17 February 1995 an earlier appeal against the convictions was dismissed.  The matter now returns to this court following a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995 on the basis that there is a real possibility that the conviction will not be upheld.  In a nutshell, the basis of the reference is that the Appellant was convicted entirely on the evidence of police officers some of whom have subsequently been discredited.  We now summarise the evidence at trial.
2.	1 October 1988 (Count 1)
On 1 October 1988 police officers from the West Midlands Police Central Drug Squad were conducting observations at 15 Mayfield Road, Handsworth.  The officers who gave evidence in support of Count 1 included Detective Constable Robotham.  A witness statement of Detective Constable Breakwell was also read to the jury.  A number of officers gave evidence that the Appellant was seen to enter 15 Mayfield Road at 9.45.a.m., to leave the premises at 12.20.p.m. and to return at 2.25.p.m.  At 3.30.p.m. a black Fiat motor car parked near the premises and the female passenger (Ms. Stevie Gray) left the car and called at 15 Mayfield Road.  A man identified by four police officers as the Appellant opened the door and invited her in.  Four or five minutes later the Appellant and Ms. Gray came to the door and he gave her a black bag in exchange for what appeared to be money.  She returned to the car which was driven away by Mr. Anthony Castor.  The car was followed by a vehicle containing Detective Constable Robotham and Detective Sergeant Hopkins.  A later part of the journey was observed by Detective Constables Breakwell and Nix.  In due course the car was driven onto the M6 where it was stopped by Police Constables Hughes and Haines.  Mr. Castor and Ms. Gray were arrested.  When the car was searched at the police station, Detective Constable Breakwell found two blocks of cannabis resin.  Smaller amounts of cannabis resin were found on the person and in the clothing of Mr. Castor and in the police car.  There is no doubt about the criminal involvement of Mr. Castor and Ms. Gray.  She subsequently pleaded guilty to and he was found guilty of possession of cannabis resin with intent to supply.  The Appellant’s defence was that he was not the man at 15 Mayfield Road and that the officers had fabricated evidence against him because he had pleaded not guilty to previous charges of possession of cannabis and cocaine necessitating the senior officer in both investigations, Detective Chief Inspector Parrish, giving evidence at court.  Moreover, it was said that Detective Chief Inspector Parrish resented the fact that the Appellant had failed to pass information to the officer about the Appellant’s brother when requested so to do.  The Appellant and his girlfriend Ms. Gail Ward-Hales gave evidence of a conversation on 4 October between the Appellant and police officers, including Detective Constable Davis, in the course of which Detective Constable Davis had said that the Drug Squad were going to plant drugs on the Appellant.  The evidence of the officers was that there had been a conversation but it involved only “friendly banter” and had not included a threat to plant drugs on the Appellant.  Ms. Gray gave evidence for the defence.  It was to the effect that at 15 Mayfield Road the man she had seen was not the Appellant but another man called Walsh.  The purpose of the visit had been to discuss the legitimate sale of leather wear to Walsh.  She said that upon leaving 15 Mayfield Road the car had travelled to the Acapulco Club in Barker Street and that it was at that location where the drugs found in the car had been obtained.  She refused to name the seller of the drugs because of fear for her safety and the safety of her children.  Ms. Ward-Hales gave evidence to the effect that the Appellant had slept at her house on the night of 30 September and had remained there until she left between 12 and 12.30.p.m..  She had returned between 5.00.p.m. and 6.00.p.m by which time the Appellant had left.  
3.	There were a number of unusual features about the evidence of events on 1 October 1988.  No contemporaneous record or log was maintained of the observations by any of the police officers who gave evidence.  The officers maintained at trial that their recollections were first written down about a week later but those written recollections were never produced.  It seems that the first documents giving accounts of the observations which were seen by the defence were in statements from some of the officers made at the end of February and at the beginning of March 1989.  Moreover, three days after 1 October Detective Chief Inspector Parrish, Detective Constable Davis and Detective Constable Robotham carried out a search at 15 Mayfield Road.  The Appellant was present on that occasion but they did not arrest him or refer to the observations of 1 October.  Nor was he questioned about them in the initial interview following his arrest on 14 December.  No allegations about 1 October were put to him until an interview on 16 December.  
4.	14 December 1988 (Counts 3 and 4)
A number of the officers who had been involved in the events of 1 October were also involved in the search of a flat at 27 Soho Avenue on 14 December 1988.  They included Detective Constable Robotham, Detective Constable Breakwell and Detective Chief Inspector Parrish.  The understanding of the officers was that the Appellant was living at 27 Soho Avenue on 14 December.  He was certainly present on that occasion but his evidence was that the flat belonged to his cousin and that he was merely visiting.  In addition to the Appellant, Ms. Erica Gibbs was also in the flat when the police arrived.  That was about 8.00.a.m.  Detective Constable Robotham and another officer attempted to force entry with a sledge hammer.  A door panel was broken and Detective Constable Robotham gave evidence that he could see the Appellant and Ms. Gibbs leave a bedroom and go into the kitchen.  When the officers entered the house, Detective Constable Robotham was the first to enter the kitchen.  His evidence was that he there saw the Appellant standing at the sink with Ms. Gibbs slightly behind him.  They were both facing the sink and the tap was running.  Detective Constable Robotham presumed that the Appellant was trying to dispose of drugs by pouring them down the sink.  The officer’s evidence was that the Appellant looked at him, backed away towards the fridge and put his left hand behind the fridge.  The officer approached the Appellant and grabbed his left wrist saying “Drug Squad.  Give me what’s in your hand”.  The Appellant struggled, Detective Constable Robotham punched him on the chin and the Appellant opened his hand.  Detective Constable Robotham said that he then removed from the Appellant’s hand a polythene bag containing yellow crystals which were later identified as half a gram of crack cocaine.  Detective Sergeant Hopkins gave evidence supporting Detective Constable Robotham’s account of the recovery of that exhibit from the Appellant.  Detective Constable Flaherty also gave evidence about the incident.  It included an account of seeing the Appellant crouching in the corner by the fridge. Detective Constable Flaherty was acting as exhibits officer and it was to him that the relevant exhibits were entrusted by the other officers.  Detective Constable Robotham said that he and Detective Constable Flaherty then handed the Appellant over to Detective Constable Breakwell in the main bedroom.  They returned to the area of the kitchen with Police Constable Keating whilst Police Constable Callow stood in the doorway with Ms. Gibbs.  Detective Constable Robotham stated that he and Police Constable Keating pulled the fridge away from the wall and found two bags of white powder behind the fridge.  The white powder was later analysed and identified as 26.25 grammes of cocaine.  Detective Constable Flaherty said that he saw Detective Constable Robotham and Police Constable Keating move the fridge and expose the two bags of cocaine.  Police Constable Keating and Police Constable Callow also gave evidence about the recovery of the cocaine.  There was evidence from various officers about the recovery of other exhibits suggestive of drug use and dealing.  They included a box of bicarbonate of soda which is commonly used in the production of crack cocaine.  A statement of Detective Constable Breakwell was read to the jury.  It referred to the recovery of a piece of foil containing traces of powder.  It also referred to the recovery of a small piece of cannabis resin from the Appellant’s trouser pocket.  The Appellant subsequently pleaded guilty to possession of that item.
5.	Detective Sergeant Hopkins and Detective Constable Flaherty interviewed the Appellant on 14 December.  The interview was not tape recorded.  The evidence of the officers was that they took contemporaneous notes but that the Appellant refused to sign them at the conclusion of the interview.  They said that the Appellant was questioned about seventeen kilos of cannabis resin that had been found at 15 Mayfield Road on 4 October, in respect of which Walsh and the Appellant’s daughter had been arrested.  The Appellant said it was nothing to do with him.  As to the items recovered in the kitchen on 14 December, the Appellant admitted the possession of the crystals recovered from his hand by Detective Constable Robotham and said that it was just a small quantity for personal use.  He said that items recovered from the behind the fridge were nothing to do with him.  The evidence of the Appellant was that he was not even asked about the crystals said to have been recovered from his hand or the cocaine found behind the fridge.  He further asserted that on 15 December officers including Detective Constable Robotham had taken him to a room and forced him to strip naked in order to induce him to confess to another offence.  This was denied by Detective Constable Robotham.  It is common ground that the Appellant was interviewed in the presence of a solicitor on 16 December.  He made no relevant admissions.  When asked about the events of 1 October he said that he could not remember what he had been doing on that day.  He made no secret of the fact that he smoked cocaine and accepted ownership of a free basing pipe found in the flat on 14 December.
6.	The Appellant’s account in evidence was that his presence in the kitchen was for the sole purpose of obtaining a glass of water from the tap at the sink.  He said that he was at the sink when Detective Constable Robotham entered the kitchen and grabbed him by the shirt.  The officer swung him into the middle of the room and then pushed him into the corner by the fridge where he began to punch him.  The officer said “You bastard you flushed it down the sink”. The Appellant said in evidence that he did not put his hand behind the fridge and Detective Constable Robotham did not remove a bag from his hand.  The Appellant had not seen the bag said to have come from his hand before he attended court and was not aware on the day of any allegation that a bag of crystals had been found in his possession.  He denied all knowledge of the bags of cocaine from behind the fridge.  He said that he had seen bicarbonate of soda in the kitchen cupboard but did not have all the equipment necessary to make crack cocaine because he did not have test tubes or pipes.  He accepted that the scales were in the kitchen but alleged that they belonged to another man.  He asserted that the documents described as contemporaneous notes from the interview on 14 December were fabricated.  He pointed out a discrepancy, namely that whilst the officers asserted that the interview took place between 3.42.p.m. and 4.10.p.m., the custody record had him elsewhere at 4.05.p.m.
7.	23 December 1988 (Counts 6 and 7)
On 23 December 1988 the police carried out a raid at premises known as The Blue Mountain Peak in Barker Street, Handsworth.  They suspected that the premises were being used as a crack cocaine factory.  The Appellant’s brother Neville had been a tenant of the premises from November 1987 until March 1988.  The case for the prosecution was that at the time of the raid the Appellant was involved in the management of the premises.  The first officers to enter the premises were Detective Constable Robotham, Detective Constable Davis and Detective Sergeant Dipple.  They climbed the stairs to the first floor.  They alleged that they there saw the Appellant and a man called Stewart behind the bar in the main room.  Detective Constable Robotham and Detective Constable Davis claimed to recognise the Appellant. as a result of their previous dealings with him. Detective Sergeant Dipple had no such previous dealings but was certain that the person who was arrested shortly afterwards was the person he had seen behind the bar.  
8.	Detective Constable Robotham said that he was the first officer to enter the premises.  He stated that he ran up the stairs and around a wooden partition into the main room and was there able to see the Appellant and Stewart behind the bar.  Detective Constable Davis and Detective Sergeant Dipple said that they saw the Appellant through the bannister.  Detective Constable Robotham said that Stewart ran off towards a staircase and he gave chase following Stewart into the pool room.  Detective Constable Davis said that when he reached the main area in front of the bar the Appellant had moved into the area of the access hatch to the bar and was holding a black bin liner.  He proceeded to make his escape through a hole in the wall, throwing the black bin liner back towards the access hatch.  Detective Constable Davis said that he followed the Appellant and shouted to officers behind him to recover the bin liner.  Detective Sergeant Dipple also said that the man he later identified as the Appellant had come from behind the counter and had thrown a plastic bin liner towards the bar area as he exited the room through a hole in the wall towards the pool room.  Another officer saw a West Indian man throw a black bag and he heard Detective Constable Davis shout “grab that bag”.  Another officer, Detective Constable Littller, recovered a black bag and handed it to Detective Sergeant Boughey, the exhibits officer.  It was later found to contain 90 grammes of cocaine.  
9.	The case for the prosecution was that the Appellant had left the premises through a window and had descended to the ground via a corrugated roof where he was arrested by Police Constable Higgins.  That officer said that he had been ordered to go down an alleyway between 83 and 85 Barker Street (The Blue Mountain Peak being at 84 and 85 Barker Street).  He saw the Appellant climbing off the roof at the rear of The Blue Mountain Peak and dropping into the courtyard.  The officer said that the Appellant had come off the roof and was attempting to gain entry to the adjoining property but was unable to do so because somebody inside had shut the door on his arm.  At that point Police Constable Higgins arrested the Appellant.  There was a difference between Police Constable Higgins and the other officers as to the precise location in the alleyway.  This was resolved on the following day of the trial when Police Constable Higgins returned to the witness box to change his evidence which then became consistent with that of the other officers.  A number of other men later pleaded or were found guilty in relation to drugs offences arising out of the raid.  One of them, Johnson, was found guilty of possession of crack cocaine with intent to supply.
10.	The case against the Appellant was that his participation in the management of the premises was apparent from his presence behind the bar and that his involvement with the cocaine was evidenced by the contents of the black bin liner which he had discarded.  The case for the Appellant was that he had not been in the Blue Mountain Peak when the police had arrived.  He had been drinking in the adjoining premises.  Detective Chief Inspector Parrish had seen him and identified him to Police Constable Higgins saying “grab that one”.  The identification evidence from within the Blue Mountain Peak was either mistaken or fabricated.  The lighting was poor.  There was a door located at the top of the stairs which would have obstructed the view of the bar from the stairs thereby preventing the officers who were on the stairs from being able to see who was behind the bar.  The only access to the bar was by ducking under the counter.  The evidence of the officers that they had seen the Appellant run through a hatch way in the bar counter was impossible.  The jury visited the scene at the top of the stairs.  There was a door handing off its top hinge in a way which obstructed the view of the bar when the door was open.  By the time the jury visited, the bar had been demolished but the defence relied on police photographs which showed a police officer bending in order to duck under the bar to obtain access.  The photographs showed a gap under the bar with the bar counter extending over it.  Another photograph showed the door at the top of the stairs next to the bar in which it appeared that the top hinge of the door was hanging off.  
11.	The first appeal
It seems that the Appellant did not lodge a timely appeal against conviction.  However, on 11 June 1993 he was given leave to appeal out of time and was granted leave to appeal by the full Court of Appeal.  The appeal did not embrace the material which is the foundation of the reference to this court by the Criminal Cases Review Commission.  The Court of Appeal dismissed the first appeal on 17 February 1995.  Giving the judgment of the court Mr. Justice Turner stated:
“We are quite unpersuaded that there is in this case a lurking doubt.  Were we to do so, we would be rejecting the fundamental basis upon which cases are conducted in the criminal courts, which is to say that the findings of fact are strictly within the province of the jury.  What in reality, we suspect, lies at the heart of [counsel’s] submissions is that his client is searching to have a re-trial of his case ”
12.	The present appeal
The basis of the reference is that certain officers have been discredited since the first appeal.  In particular, on 15 December 1997 Detective Constable Robothan was found guilty of discreditable conduct and required to resign from the Police Service.  The evidence against him came from another officer who had observed him misappropriating a substance believed to be cannabis from the kitchen of a suspect in the course of a police raid.  Detective Constable Breakwell was the subject of a number of disciplinary charges.  However, he retired from the Police Service on ill-health grounds before the disciplinary proceedings could be completed.  No pleas were ever entered to the majority of the charges and they were left to lie on the file.  However, it is significant that  the Chief Constable of the West Midlands Police has been interviewed on a BBC Panorama Programme.  The interview contained this exchange:
“Interviewer:  Looking at the case of former of DC Alan Breakwell.  Now here was an officer who was potentially facing very serious charges and yet he now gets an indexed linked enhanced pension.  What do you think about that?
Chief Constable:  I am offended by it and I have no doubt that those who know the circumstances around him, police officers serving around him, feel insulted by it and I feel it is an affront to the public.   He does receive an enhanced pension and it is absolutely right those arrangements should be in place to look after officers who have been ill or injured performing their duty for the public.  But it can’t possibly be right that an officer who becomes ill- genuinely or otherwise- after discovery of serious misbehaviour can be perceived as being rewarded for what he or she did”
13.	Of the nine unresolved disciplinary charges against Detective Constable Breakwell, three were charges of discreditable conduct and one a charge of falsehood.  The particulars of the latter charge were that he had made false/misleading written statements in a police pocket notebook in that he purported to make occurrence entries therein from 21 November 1988 when in fact the pocket book was not issued until 2 January 1989.  In this context it is also pertinent to refer to the case of Fraser (unreported 2 October 2003) in which this court quashed a conviction following a reference by the Criminal Cases Review Commission.  Detective Constable Breakwell had been a witness at the trial of Fraser.  In allowing the appeal Lord Justice Auld said (at paragraph 19):
“But what has emerged so far is sufficiently disturbing, particularly as to D.C. Breakwell’s conduct in other cases, as in the words of Beldam LJ in R v. Maxine Edwards [1996] 2 Cr. App. R  345 at 350 F-G, to raise a suspicion of perjury that infects the evidence in this case. ”
The events which gave rise to the trial of Fraser occurred in October 1991. 
14.	The Criminal Cases Review Commission also referred to disciplinary matters in relation to other officers in the case.  Detective Constable Davis admitted allegations that he had given small sums of money and some alcohol to a prisoner in police custody.  However the officer left the force before any disciplinary proceedings in relation to those and certain other matters which he did not admit could be concluded.  These events occurred in 1998.  Detective Sergeant Boughey was found guilty of an offence of neglect of duty in 1994, the neglect or omission dating back to 1990.  It concerned failure to enter in the detained property register the fact that he had removed items for transmission to the laboratory.  He received a reprimand.
15.	It is abundantly clear that the prosecution case against the Appellant depended entirely on the reliability of the evidence of police officers.  As the judge put it in the course of his summing up:
“Members of the jury, there is a very straight issue for you to resolve as between Mr. Deans and the police:  who is telling the truth?…..Either the police are telling the truth or they are lying and lying again.  That is something that you must sensible apply your mind to.”
16.	The law
The question for this court is whether the convictions are unsafe.  We are invited to consider what is now known about the police officers on the basis that it is fresh evidence within the meaning of sections 23 of the Criminal Appeal Act 1968 as amended.  It is common ground that the approach is as postulated by Lord Bingham of Cornhill in the case of Pendleton [2001] UKHL 66 (at para. 19):
“……It will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict.  If it might, the conviction must be thought to be unsafe.”
17.	It is a striking feature of this case that none of the new material existed at the time of the events in October and December 1988 which gave rise to the prosecution of the Appellant.  The serious disciplinary offence committed by Detective Constable Robotham took place on 14 March 1997, the disciplinary hearing was on 15 December 1997 and the requirement that he resign was imposed on 7 January 1998.  By 1997 he was a Detective Sergeant.  The charges against Detective Constable Breakwell were to be heard in June 1998.  We do not know all the dates upon which the alleged offences were said to have taken place.  However, as we have observed, the allegation of making a false or misleading statement in a police pocket notebook related to 1989.  The other allegations appear to date from 1994 and 1995 or later.  The reality is that over seven years were to elapse between the laying of charges against the Appellant and the discreditable conduct of Detective Constable Robotham.  Moreover, although  over nine years after the events of 1998 Detective Constable Breakwell came to be considered an unreliable witness by his superiors, only one of the several allegations against him goes back to a time close to December 1998.  This raises the question whether discreditable conduct by police officers years after the investigation which gave rise to the conviction which is under review in this Court, can properly be said to affect the safety of that conviction.  It is clear from recent authorities that  subsequent discreditable behaviour can affect the safety of an earlier conviction.  We have already referred to the case of Fraser  where the events which gave rise to the trial  occurred in October 1991, the trial took place in November 1993 and Detective Constable Breakwell’s fall from grace occurred sometime after that.  Lord Justice Auld said (at paragraph 20):
“In the circumstances it would, as the prosecution concede, be impossible for the court to be confident, that, had the jury known of these matters, they would have been bound to convict him.  That is so notwithstanding that some of the matters and information about them post date the trial of the Appellant, since, if it had been available at the time, it would have been material to the jury’s consideration of the officer’s credibility, as the court held in Twitchell [2000] 1 Cr. App R 373.”
18.	Twitchell had been convicted in 1982 .  The Criminal Cases Review Commission referred his appeal to this Court in January 1998.  The catalyst was a successful civil action brought by another man Treadaway against the police.  It was in April 1994 that Treadaway established in his civil proceedings that one or more of the same officers had acted discreditably in dealing with Treadaway in 1982.  In other words, the officers had misbehaved in their dealings with Treadaway at about the same time as the investigation into Twitchell but hard evidence in the form of the outcome of Treadaway’s civil action did not become available for a further twelve years.  It was two years after his success in his civil action that Treadaway’s convictions were quashed by this Court on 18 November 1996.  In Maxine Edwards [1996] 2 Cr. App. R 345 the events which gave rise to the prosecution occurred in September 1990, the trial resulting in conviction ended in July 1991 and the discreditable conduct of the relevant police officers in relation to other suspects had occurred in 1990 and 1991.  It was not until February 1995 that the case was referred back to this Court.
19.	What can be taken from these cases is that, to put it at its lowest, discreditable conduct on the part of relevant officers occurring after, the events giving rise to the conviction under appeal can affect the safety of that conviction.
20.	Another theme apparent in the recent authorities is that this court has been willing to accept that the proven serious misconduct of one or more officers in another case can place question marks over the evidence of other officers from the same squad against whom no adverse findings have been made.  Thus, in Maxine Edwards Beldam LJ said (at page 350F):
“Once the suspicion of perjury starts to infect the evidence and permeate cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed.”
21.	In Guney [1998] Cr. App Rep. 242 at page 253 Judge LJ referred to 
“a fairly consistent approach by the Court of Appeal in cases where police officers from a particular squad or force have been proved to misconducted themselves.  If one of these officers has given incriminating evidence, then the conviction has frequently been quashed whether or not that evidence appears to be supported by other officers whose credibility has not been impugned in the same way.”
In Martin, Taylor and Brown (unreported 12 July 2000) Henry LJ said (at paragraph 13):
“In practice the precise surgical division between impugned and unimpugned evidence is seldom possible once the jury have experienced what advocates have called the ‘stench of corruption.’”
22.	The authorities to which we have referred so far are ones in which appeals were allowed and convictions quashed.  It goes without saying that each case turns on its own facts and the specific material produced to this Court.  A case falling on the other side of the line is Jamil [2001] EWCA Crim. 1687.  Interestingly it centred upon the evidence of the same Detective Constable Robotham who was “a central figure” in the search of two premises in relation to which he acted as exhibits officer.  Judge LJ said at paragraph 39:
“We turn to the disciplinary finding.  The officer was found guilty in December 1997 on a charge relating to a search carried out by him in 1997, that is years after the events with which this case is concerned.  The evidence against him was that he had, in effect, misappropriated two or three ‘skunk cannabis heads’ said by him to be required for training purposes..  He was required to resign.  [Prosecuting counsel] makes the point that all times DC Robotham was accompanied by others including, when he returned, a civilian photographer and that tamper proof exhibit bags were used by the police.  Having had the advantage of a thorough analysis of the case we take the view that this finding does not undermine the safety of the conviction.”
The events giving rise to the conviction in that case occurred in April 1988.
23.	The case for the Appellant
In this second appeal Mr. Kamlish QC on behalf of the Appellant has wisely concentrated on the discreditable conduct of police offices, acknowledging that other shortcomings in the evidence adduced by the prosecution at trial have already been considered by this Court when dismissing the first appeal in 1995.  He does not abandon the points then made.  His submission is that, to the extent that they were rejected, the position might have been different if the Court on that occasion had known of the discreditable conduct.  So far as that is concerned, he focuses on the conduct of Detective Constable Robotham, Detective Constable Davis and Detective Constable Breakwell.  His submission is that in a case which depended wholly on the evidence of police officers and in which the defence involved allegations of fabricated and planted evidence the discreditable conduct strikes at the heart of the safety of the convictions.  
The Case for the Respondent
24.	Mr. Davis QC submits that the discreditable conduct did not arise for several years after the events of which this case is concerned and, moreover, when the role of the discredited officers in this case is subjected to detailed analysis, it becomes clear that the safety of the convictions has not been undermined. 
Discussion
25.	We consider first the position of Detective Constable Breakwell.  It is impossible to escape the conclusion that since 1997 or 1998 this officer has been viewed by the Chief Constable and the Crown Prosecution Service as being not worthy of belief as a witness.  As we have observed, he was condemned  in the case of Fraser in which Lord Justice Auld said (at paras 21 to 22):
“It is sufficient to say that his conduct in other suspected drug cases has become the subject matter of disciplinary investigations and the alleged irregularities were such as to persuade the Crown Prosecution Service that it would be wrong to proceed with a number of trials and to contest appeals in cases in which he had been an investigating officer, notably in Whelan [1997] Cr. LR 353…..Whilst D.C. Battsford has not been the subject of any disciplinary charges, he featured prominently in the case of Whelan along with D.C. Breakwell, in which it was alleged that he and D.C. Breakwell had planted drugs in houses with which Whelan….was connected.  As the Criminal Cases Review Commission put it in its helpful statement of reasons for the reference, it is not possible to be confident that D.C. Battsford is immune from the suspicions of perjury surrounding D.C. Breakwell.”
In this regard, we do not forget that at least one of the unresolved charges against Detective Constable Breakwell related to 1989.  We do not hesitate to view him as a discredited officer.  However, the question arises as to whether his accepted misconduct has particular relevance to the present appeal.  He did not give live evidence at the trial of the Appellant.  He was a witness in relation to both 1 October and the 14 December.  However, in relation to both dates, his evidence was read to the jury as undisputed evidence.  As for the later occasion, he was involved in the search at Soho Avenue, in the course of which he recovered a piece of foil with traces of powder from the bedroom and a small amount of cannabis from the trousers of the Appellant.  That latter find resulted in the charge of possession of cannabis to which the Appellant pleaded guilty.  As to the former occasion, Detective Constable Breakwell was in an unmarked police vehicle with Detective Constable Nix.  They saw and followed the Fiat motor vehicle from Victoria Road in Aston via the A38 M and onto the M6 where it was stopped by two other officers.  As we have related, the female occupant, Gray, pleaded guilty to possession with intent to supply in relation to the cannabis which was found in the car.  The male occupant, Castor, pleaded not guilty to the same offence but was convicted by a jury.  Given the absence of dispute in relation to Detective Constable Breakwell’s evidence, the statement of Detective Constable Nix was not even read to the jury.  We do not know when Ms. Gray was first considered to be a potential defence witness.  However, her account, which was plainly disbelieved by the jury, did not join issue with the evidence of Detective Constable Breakwell.  His evidence concerned the later part of the journey from Mayfield Road to the M6.  He made no mention of having been in Handsworth, which was the location of the Acapulco Club.  Later in this judgment we shall have to stand back and look at the whole picture in the round.  For the moment, looking at the evidence of Detective Constable Breakwell in isolation, it simply cannot be said that his subsequent misconduct has infected his contribution to this case.  
26.	We turn next to Detective Constable Davis.  In relation to the events of 1 October, he was one of the officers who identified the Appellant as the man at 15 Mayfield Road who handed the black bag to Ms. Gray.  Detective Chief Inspector Parrish, Detective Constable Johnson and Detective Constable Davis all gave evidence to the effect that they recognised the Appellant as a man with whom they were familiar in the course of their duties.  Indeed, Detective Chief Inspector Parrish had been a witness in a trial of the Appellant only five days previously.  Neither Detective Chief Inspector Parrish nor Detective Constable Johnson have subsequently been discredited.  As the Criminal Cases Review Commission point  out in the statement of reasons which accompanies this reference, if the evidence of Detective Constable Davis is taken out of the equation 
“there are still officers who identified [the Appellant] as the man they saw on the doorstep handing the package to Ms. Gray.  Two of those officers had seen [the Appellant] before that day.  The Judge gave a Turnbull warning on identification, although he suggested that it was recognition rather than identification.”
27.	Detective Constable Davis  was not involved on 14 December.  However, on 23 December he was with Detective Sergeant Dibble and behind Detective Constable Robotham when, according to their evidence, they saw the Appellant behind that bar at the Blue Mountain Peak.  It will be recalled that the case for the defence was that the Appellant was not the man behind the bar.  At the time he was in adjacent premises.  A point came when he with others was standing and watching what was going on outside when he was arrested and mistakenly identified as the man who had been behind the bar in the club.  It was suggested that the identification evidence was either mistaken or had been fabricated.
28.	Clearly the evidence of Detective Constable Davis was important and was disputed in relation to both 1 October and 23 December.  The first question is:  Was it undermined by his subsequent misdemeanour?  Again we shall return to consider it in the round.  In isolation, however, we do not consider that it was so undermined.  The matter which he admitted some ten years later involved giving sums of money and alcohol to a prisoner in custody.  Standing alone, it is fanciful even to suggest that that might devalue evidence given almost a decade earlier.  Detective Constable Davis went on sick leave in about 1999 and never returned to work.  There were four other matters against him at the time.  They did not go back any earlier than 1998.  Although they raised issues of honesty and integrity there is nothing to suggest that he was seen in the light which came to encircle Detective Constable Breakwell or that they approached in seriousness what was alleged against Detective Constable Breakwell and established against Detective Constable Robotham.  Neither that which he admitted nor that of which he was suspected nor both together would lead us to conclude that the safety of the present convictions is put in issue.  
29.	We now turn to Detective Constable Robotham.  We say at once that the matter whereby he was discredited was a grave one.  For a drug squad officer to steal controlled drugs from the house of a suspect and dishonestly to deny it in the course of disciplinary proceedings is extremely reprehensible.  His contribution to the trial of the Appellant was substantial.  His testimony in relation to 1 October was limited and unchallenged.  It was he and another officer who were in an unmarked car following the Fiat from its exit from Mayfield Road until the point in Aston where Detective Constables  Breakwell and Nix took over the pursuit.  Although his evidence of that part of the journey was unchallenged, it was later contradicted by the evidence of Ms. Gray with her account of the visit to the Acapulco Club.  As we have observed, that evidence was plainly disbelieved by the jury.  That is not surprising.  Not only was it given by a witness with a list of serious previous convictions; in her evidence she continued to assert the innocence of Castor (who had by then been convicted) and the timings and movements which she detailed in her evidence were massively inconsistent with the evidence of a significant number of police officers.   However she came to be a witness for the defence (and she claimed not to know the Appellant at all), the coincidence of her being in possession of a substantial quantity of cannabis with intention to supply at the very moment when the police were asserting that that was precisely what she was doing albeit from a different source, was clearly too much for the jury to stomach.
30.	So far as 14 December is concerned, Detective Constable Robotham was undoubtedly the most important prosecution witness.  It was he who gave evidence of recovering cocaine from the hand of the Appellant and of recovering the bags of cocaine from behind the fridge.  The Appellant denied both.  The case for the prosecution was that he admitted the former in interview on 14 December but he denied that part of the interview which was not tape recorded and the notes of which he had refused to sign.  Indeed he disputed that notes had been taken.  When interviewed in the presence of his solicitor two days later, he certainly denied possession of that cocaine.
31.	The Criminal Cases Review Commission considered the recovery of the bags of cocaine from behind the fridge and said:
“The Commission considers that it may have been possible that D.C. Robotham was able to plant the drugs found behind the fridge without the other officers realising what he was doing.  The Police statements indicate that D.C. Robotham was not in the kitchen alone.  However the situation during such a raid would be chaotic and D.C. Robotham was solely responsible for preparing the account in his notebook which was endorsed by the other officers and used a  basis for all their statements.  Consequently the Commission considers that it may have been possible that D.C. Robotham was alone in the kitchen long enough to plant the drugs.  Alternatively, D.C. Robotham may have had the opportunity to drop the drugs behind the fridge while he was in the tussle with [the Appellant] and while he was pulling the fridge out with P.C.Keating without the other officer realising what had happened.”
We do not have the benefit of a transcript of the evidence of the police officers.  However, in the summing up the judge recounted how Detective Constable Robotham had given evidence that he and Detective Constable Flaherty had led the Appellant into the bedroom and had left him there in the custody of other officers.  The summary of Detective Constable Robotham’s evidence proceeds:
“I met two uniform officers in the hall, P.C. Keating and WPC Callow……     Flaherty and Keating and I went into the kitchen.  WPC Callow was in the doorway with Erica Gibbs.  In the kitchen Keating and I pulled the fridge from the wall.  It was the first opportunity to move the fridge from the wall…..It is the practice if possible that the suspect is present when there is a search.  I had left [the Appellant] in the bedroom with Breakwell.  Erica Gibbs and the woman police constable were there.  Behind the fridge we found two bags of white powder…..I subsequently signed the label as indeed did Keating and Callow, the uniformed officers and Flaherty and Erica Gibbs.  I put the two bags of powder in self sealing bag and sealed it everybody signed it.”
The evidence of the other officers as summarised by the judge, was consistent with that.  Notwithstanding the suspicion articulated by the Criminal Cases Review Commission, there does not appear to have been any evidence to the effect that Detective Constable Robotham was at any material time in the kitchen without any other officer being there present.
32.	So far as 23 December was concerned, Detective Constable Robotham was the first of the officers to climb the stairs in the Blue Mountain Peak.  He gave evidence of seeing the Appellant behind the bar, it was a brief sighting before the officer turned his attention to the other man behind the bar, Stewart.  However, it was from a better position than that from which Detective Constable Davis and Detective Sergeant Dibble claimed to have their first sight of the Appellant.
33.	Pausing there, is the important evidence of Detective Constable Robotham in respect of all three incidents (and particularly the second and third) undermined by his disgraceful conduct in the house of another suspect some nine years later?.  In this regard it is instructive to consider the case again of Jamil [2001] EWCA Crim 1687.  There Detective Constable Robotham had been a central figure in the execution of search warrants in 1988, had given evidence as to verbal admissions and the finding of exhibits and, indeed, had acted as exhibits officer.  The appeal of Jamil was constructed upon the disciplinary finding against Detective Constable Robotham.  We repeat the words of Lord Justice Judge (at paragraph 39):
“The officer was found guilty in December 1997 on a charge relating to a search carried out by him in 1997, that is years after the events with which this case is concerned….[prosecuting counsel] made the point that at all times DC Robotham was accompanied by others, including, when he returned, a civilian photographer and that tamper proof exhibit bags were used by the police.  Having had the advantage of an analysis of the case we take the view that this finding does not undermine the safety of the conviction.”
Thus far there are similarities between Jamil and the present case.  Most noticeably, there is the passage of time and the presence of other officers.  Whereas a civilian photographer was present during a later period in Jamil, he was not present throughout and to some extent it is relevant that the other people who signed the exhibit label in relation to 14 December included uniform officers and the female acquaintance of the Appellant.  We also observe that in Jamil the character of Detective Constable Robotham had been built up positively to the jury.  When he was accused of fabricating evidence and planting drugs the prosecution elicited the fact that he had been a police officer for thirteen years and had never been disciplined.  
34.	Thus far, we take the view that it is appropriate to consider the subsequent misconduct of Detective Constable Robotham in precisely the same way as did this court in Jamil.  Is the position any different in relation to 23 December?  Once again, looked at in isolation, it is not.  We have the impression, gained from the summing up which was (conceded by the Appellant’s previous counsel in the first appeal to be “both full and fair”), that the defence case in relation to 23 December was put at least as much on the basis of mistaken identification as on the basis of fabricated evidence.  There were physical features of the scene upon which the defence could and did rely.  The Judge gave them every assistance in that regard in the summing up.  On the other hand, a substantial quantity of cocaine was jettisoned and the Appellant was arrested within moments a few yards away outside the building.
35.	It is now time to stand back and consider the bigger picture.  We do not consider that it becomes any more colourful in relation to Detective Constable Breakwell so far as the present appeal is concerned.  Nor do we attach any significance to two other officers who featured in the case but in respect of whom Mr. Kamlish makes no real point, notwithstanding minor disciplinary findings against them some years later.  Neither those findings nor their involvement in the present case causes concern.  We therefore turn again to Detective Constable Davis and Detective Constable Robotham.  It is common ground that on 4 October 1988 Detective Constable Davis and Detective Constable Robotham, accompanying Detective Chief Inspector Parrish, conducted a search at 15 Mayfield Road when the Appellant was present.  The defence case raised two issues about that occasion.  The first was that, notwithstanding the events of three days earlier, none of the officers mentioned 1 October to the Appellant.  The second was that, according to the Appellant, Detective Constable Davis said that he or they would plant drugs on the Appellant.  Detective Constable Davis and the other officers denied saying any such thing but admitted participating in “friendly banter”  with the Appellant on that occasion.  It seems that a number of people were arrested arising out of events of 4 October and they included the Appellant’s daughter and the man Walsh whom Ms. Gray had sought to implicate in the events of 1 October.  The police were also interested in the Appellant’s brother and there were disputed conversations about him.  The Appellant’s girlfriend Miss Ward-Hales supported the evidence of the Appellant about what was said.  It will be recalled that one of the criticisms of the police operation on 1 October was that there were no contemporaneous records or log and no witness statements dated prior to lateFebruary 1989.  The evidence of the officers was that some of them had made witness statements a week after 1 October but the prosecution were unable to produce such documents at the trial..  The defence pointed the figure to Detective Constable Robotham who had responsibility for preparation in relation to the documentation arising out of the events of 1 October.  As regards the events of 14 December, Detective Constable Robotham figured in two further aspects of the evidence.  The first was that he was the only officer to make a notebook entry after the raid.  Other officers who had witnessed part of what transpired in the kitchen, for example Detective Constable Flaherty and Detective Sergeant Hopkins, did not make a separate record but simply endorsed the account in the notebook of Detective Constable Robotham.  Secondly, the Appellant gave evidence that on 15 December Detective Constable Robotham was one of the officers who had abused him by taking him to a room and forcing him to strip naked in order to induce him to confess to another offence.  This was unequivocally denied by Detective Constable Robotham.
36.	Mr. Kamlish submits (and we paraphrase) that the corrupt hand of Detective Constable Robotham and to a lesser extent Detective Constable Davis permeated the fabric of the prosecution case and that if the jury had known in 1989 what we know now about these officers it might reasonably have affected their decisions to convict.   In the circumstances the convictions are unsafe.  
37.	We have given careful consideration to these submissions and to the way in which the case has been set out by the Criminal Cases Review Commission. We deprecate the subsequent misconduct of the officers, particularly Detective Constable Robotham.  However in the final analysis we are satisfied that the convictions were and are safe.  We certainly accept that police misconduct after the events in issue and after the trial in question can render a conviction unsafe.  We also accept that corruption and other reprehensible behaviour by one or more officers may infect a whole investigation notwithstanding the presence of officers against who nothing has been alleged or established.  In the present case, however, we attach particular importance to the lapse of time between the events of 1988 and the trial in 1989 on the one hand and the appalling behaviour of Detective Constable Robotham, and to a lesser extent Detective Constable Davis, on the other hand.  There is nothing to suggest that either of them acted otherwise than with propriety between 1988 and 1997.  We consider it inappropriate to doubt convictions which occurred almost a decade before any known or alleged misbehaviour on the part of these officers.  It is clear that the transgressions of Detective Constable Breakwell cover a longer period and go back almost to the time of the events with which this appeal is concerned.  However, he was a wholly uncontroversial contributor to the trial of the Appellant.  None of his evidence was disputed and no specific allegation of impropriety was made against him.  We should add that in none of the cases to which we have been referred was the temporal relationship between the investigation/trial and the subsequent misconduct of police officers in other cases anything like as extensive as in the present case.  It sometime happens that many years pass before the misconduct comes to light.  The cases of Twitchell (above) and Treadaway (unreported 18 November 1996) are good examples.  However, when unearthed, the misconduct was contemporaneous or reasonably contemporaneous  with the events in dispute in the appeal under consideration.
38.	We make no criticism of the Criminal Cases Review Commission for referring this appeal.  It merited the consideration of this court.  Having given it that consideration, we are satisfied that the convictions are safe and we dismiss the appeal.