Case Commentary On Warren And Others V Attorney General Of The Bailiwick Of Jersey

This essay seeks to critically discuss the decision of the Privy Council in Warren and Others v Attorney General of the Bailiwick of Jersey (from here on referred to as Warren) by analysing three aspects: the decision that Grant was wrongly decided and the exploration of the ‘but-for test' the balancing test between the seriousness of the crime and the seriousness of the police misconduct and judicial discretion.

Grant and the ‘but-for' test

Lord Dyson reiterated the decision in R v Maxwell that whether the misconduct of the police is a ‘but-for' cause of the prosecution is only a factor and not determinative of the question for a retrial or stay of proceedings. It is submitted that this is questionable because such a general, sweeping assertion provides too much defence for the police by muddling crimes instigated by police and crimes which occur from 'unexceptional opportunity'. Therefore, Lord Brown's approach is preferred instead. He seemed to create a distinction in the ‘but-for' test by distinguishing between misconduct which caused the defendant to face trial but has no bearing on D's conduct and misconduct which caused the defendant to act to his detriment and thereby be tried. The first category applies to police misconduct which merely provides the 'unexceptional opportunity' (as put forward in R v Looseley ) for the defendants to act as they would have had there not been this intervention – and so is a ‘fruit of the poison tree' case. In this case, it is proffered that the 'but-for' here could then be regarded merely as a factor. The second category applies in cases such as Maxwell where the misconduct itself induced the defendant to act to his detriment. It is this ‘but-for' that should be a determinative for stay of proceedings. To have an umbrella version of the ‘but-for' test would be allowing too much leeway for police misconduct as crimes instigated by the police will be regarded only as a factor.

It is submitted that the Privy Council had erred in their judgment that R v Grant had been wrongly decided. Lord Dyson held that Grant was not even a ‘but-for' case because the misconduct caused no prejudice to the accused. Nevertheless, there is a probability that even if the Court accepts Grant as a ‘but-for' case, it would argue that it falls into the first category that the misconduct is not enough to stay proceedings because the police did not instigate the crime but merely provided an ‘unexceptional opportunity'. It is asserted that even if Grant is possibly a case where the authorities did no more than provide ‘unexceptional opportunity' by recording conversations, and while it arguably did not infringe Article 6 of the European Convention of Human Rights (ECHR), it certainly undermined the doctrine of legal professional privilege. Per Lord Scott of Foscote, it is necessary in "a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers…should be secure against the possibility of any scrutiny from others". This would distinguish Grant from Warren, but to do so would be to cast doubt on the decision of the Board. Moreover, the Board then made a contradicting point later by accepting that a stay could be granted even where there had been no prejudice to the defence or to a fair trial, but held that the trial judge's refusal was a decision within his margin of appreciation. Thus, the Court of Appeal should not have overruled him. It can be inferred that the Board did so in order to preserve the discretionary powers of the trial judge under section 78 PACE and to prevent a floodgate of litigation requesting the challenge of such discretion. Professor Ormerod asserted that the decision of the Court of Appeal was made safe in the knowledge that due to its unique facts in a trilogy with two other cases occurring at the same station over a short duration, "there would be no opening of the floodgates for abuse applications" . Therefore, the numerous obstacles above: proving that the case is a ‘but-for' case proving that it falls into the second category and difficulty in challenging the discretion of the trial judge – illustrate the Board's predisposition to allow ‘the end to justify the means'. Furthermore, had the Board not criticised Grant, it would have been difficult to reconcile the decision in Warren with the decision in Grant.  

Seriousness of crime vs seriousness of police misconduct

The Board in Warren approved of the factors listed out by Professor Choo and that they can be taken into consideration in performing the ‘balancing' test, which included "the seriousness of the offence with which the defendant is charged". It is submitted that the Board in Warren placed too much weightage on this factor to justify the misconducts of the police. It was also used to justify the Board's admission of the deliberate invasion of right to legal professional privilege in Grant. It can be perceived clearly that there is a possibility that the ‘end justifies the means' applies.

It is a common justification that very serious offences such as drug trafficking and firearms dealing are hard to detect and may need more undercover policing which may easily lead to misconduct. Furthermore, urgency was also a factor in Warren as Mr Welsh had a sudden change of plans and so ‘desperate times call for desperate measures'. However, it is submitted that the more serious the offence, the stricter the need for adherence to the Code of Practice. This can be supported by referring to the Canadian jurisdiction where the seriousness of the offence is an irrelevant consideration in determining trial fairness. If any relevance is to be considered, it functions in the opposite sense: "the more serious the offence, the more damaging to the system's repute would be an unfair trial." This could be because more serious offences attract wider media coverage and there will be more attention on the court's sense of justice. A refusal of a stay of proceedings may satisfy the public's expectation of having criminals tried and convicted, but would also appear to condone the breach of the rule of law by the police. This would most certainly undermine public confidence in the criminal justice system, bringing it into disrepute.

Furthermore, it is ironic to allow a wrong to right another wrong. Even if the Board's approach is reluctantly accepted, it is asserted that in Warren, the seriousness of the crime simply does not balance out the misconduct of the police. The police had proceeded knowing that the Attorney General and the Chief of Jersey Police had not authorised the installation of the audio device without the consent of the relevant foreign authorities and would not have done so that the foreign authorities had refused consent and that they had misled the AG into believing that consent was obtained. These were deliberate misconducts that affect the proper administration of justice according to the rule of law and with respect to international law. Furthermore, as pointed out by Patrick O'Connor QC, it is curious that the statement made by the Senior Crown Advocate - "if it was me I'd go ahead, but don't quote me on that" - and that the courts would be unlikely to exclude the evidence, is regarded as a "mitigating feature when it is surely an aggravating factor" . Does this not depict the seriousness of the misconduct and the extent of it reaching beyond the police?

However, per Lord Lowry in Ex p Bennett , "the discretion to stay is not a disciplinary jurisdiction". This statement is agreeable and a stay of proceedings is not the right way for the court to express disapproval of official conduct. Nevertheless, Detective Chief Inspector's statement: "Given identical circumstances again I believe that we would respond the same way" should warrant some form of deterrent to discourage such future misconducts. Hence, it is argued here that while the evidence could be admitted and the defendant (Mr Welsh) should be criminalised, there needs to be punishment for the police misconduct as well in order to prevent the court from being seen as allowing the ‘end to justify the means'. Mere finger wagging and words of cautionary such as those in Warren are not enough. There needs to be some form of separate proceedings to determine a suitable sanction against those involved in the misconduct.

Judicial Discretion

Recent jurisprudence has developed a number of principles which assist the court to decide whether or not a stay of proceedings should be granted. As listed by Lord Kerr, these would be when a trial would:

(i) "offend the court's sense of justice and propriety" (per Lord Lowry in Bennett)

(ii) "undermine public confidence in the criminal justice system and bring it into disrepute" (per Lord Steyn in R v Latif )

(iii) Cause "degradation of the unlawful administration of justice" notwithstanding the certainty of an accused's guilt (per Rose LJ in R v Mullen )

(iv) Affect the "protection of the integrity of the criminal justice system" (per Dyson JSC in R v Maxwell)

The Board referred to all but the principle in Mullen. The obvious reason is that the Mullen principle conflicts with the decision in Warren. The possibility that ‘the end justifies the means' arises here. It could very well be that Mullen's principle leans more towards protecting the accused. It is submitted that Mullen's principle should be recognised as a basis for a stay because in determining an abuse of process, the victim of impropriety is the process, not the accused. The law of evidence centralises on proof, not truth. Therefore, the guilt of the accused should be irrelevant in considering whether there has been an 'unlawful administration of justice'. However, applying this principle would most likely prejudice a stay of proceedings, so the Board avoided referring to it at all. If the Board had not agreed with the principle, they could have asserted that it is flawed as they did with Grant. Therefore, this side-stepping could be inferred as the court allowing the end to justify the means.

Even so, it is suspicious how the court's decision reconciles with the other principles. The most interesting aspect which makes the court's sense of justice and propriety questionable is the Board's reluctance to find that the trial judge, i.e. the commissioner, was wrong. According to Lord Dyson, the commissioner was right in deciding that there was no deception of foreign court. This was based on distinguishing R v Glennon , where there was deception because the object was achieved, i.e. obtaining a court order for the production of documents. In Warren, it was held the French court was not deceived because the consent for an audio device was never obtained. It is submitted that this reasoning is wrong because deception does not take place only when the object is achieved. Deception took place when the police told the French authorities that they omitted the reference to an audio device in their letter and yet still fitted it anyway. Deception took place again when PC Hart who acted as an interpreter was instructed to tell the French police that the audio device was a "back-up" for the tracking device. Lord Hope even commented that, "I am not persuaded that the decision which the commissioner took was not one that was open to him." However, he too was reluctant to conclude that the trial judge was wrong. This shows that the Board seems to support that "the end justifies the means" by upholding the discretion available to the trial judge under article 76(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003.

Conclusion

In conclusion, it is asserted that the decision in Warren portrays a strong inclination towards the principle of "the end justifies the means". In achieving that, the Board made strategic moves: tackling the decision in Grant but gracefully avoiding the conflict with the principle in Mullen allowing a loose application of the 'but-for' test but maintaining a strict adherence to judicial discretion and s78 and emphasising on criminal conviction but omitting police misconduct sanctions. It seems that the balancing test in action here is not that of public policy against fairness of trial, nor amongst any of the factors listed by Professor Choo, but rather that of what is in favour of the decision pursued by the Board against those that will undermine that decision.