KNAGGS AND KHACHIK v. THE UNITED KINGDOM

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , Mr PERSON ( “ the first applicant ” ) and Mr Ramzy Khachik ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively and are currently being detained in ORG , GPE . They were represented before the ORG by PERSON , a solicitor practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

On DATE an officer in ORG applied to conduct directed surveillance ( i.e. observation of an individual in public ) of the first applicant , PERSON , and his criminal associates . The application was part of an ongoing investigation into the criminal activities of the first applicant . The application was authorised and directed surveillance commenced , with DATE reviews .

In a review of the directed surveillance of DATE , it was noted that surveillance was progressing highly successfully and beneficially in expanding the intelligence base and developing knowledge of Mr Knaggs’ operation .

On DATE an officer in ORG ordered a feasibility study into the possibility of placing a probe ( i.e. a listening device ) in a ORG Shogun vehicle which Mr GPE allegedly owned . The purported purpose of the probe was to record conversations of face - to - face meetings in the vehicle .

On DATE a ORG officer applied for authorisation for intrusive surveillance ( i.e. observation of an individual in private or by means of a surveillance device ) under LAW DATE and the Regulation of Investigatory Powers Act CARDINAL ( “ RIPA ” ) ( see paragraphs CARDINAL - CARDINAL below ) , in order to place the probe in the vehicle . The application included details of what was being sought and how the proposed action was proportionate to what it sought to achieve . It stated :

“ Observations have corroborated PERSON carrying criminal associates as passengers , and it is believed that he discusses his drugs business with them whilst travelling in the PERSON . ”

The application was authorised by the Director General on DATE . The probe was installed on or around DATE .

DATE and DATE , the probe was operated and the conversations in the car recorded . On DATE , a review of the intrusive surveillance was conducted . The review document noted that CARDINAL mobile telephone calls had been made or received while Mr GPE was in the vehicle and that CARDINAL meetings had taken place .

On DATE the applicants were arrested and subsequently charged with conspiracy to supply a Class A drug . Legal proceedings were commenced in ORG . PERSON did not lodge any defence statement setting out the nature and scope of his defence .

In the course of disclosure , the prosecution provided CD copies of the probe tapes to the applicants . As Mr PERSON had regularly used his mobile telephone while in his car , the probe tapes contained for the most part CARDINAL - sided mobile telephone conversations . Mr GPE sought the advice of a technical expert .

In a preliminary report dated DATE instructed by Mr GPE , Mr PERSON , a technical and telecommunications consultant , commented on the probe material . He explained that he had had time to examine CARDINAL of the CARDINAL audio CDs produced in the case . He noted at the outset that he was strongly of the view that the placing of the probe in the vehicle was done knowingly to defeat the prohibition contained in LAW ( “ RIPA ” – see paragraphs CARDINAL - CARDINAL below ) on the use of telecommunications information in evidence . He further noted that the recordings appeared to contain extraneous signals which suggested that an interception of communications had taken place , although he accepted that an innocuous explanation for the extraneous signals might exist . He continued :

“ If there is to be a dispute , the ORG will in my view have no alternative but to enquire into details of the technical systems use[d ] to monitor conversations in the vehicle to relay the information to the listening office , and the methods of recordings and operations in use at the listening centre . ”

The report explained that , according to the police , the probe had relayed the sounds it captured immediately to a secure listening office , where teams of CARDINAL officers had supervised the creation of CARDINAL simultaneous copy ORG ( “ DAT tapes ” ) recording the signal from the probe . The decision to supply the defence with CD copies of the DAT tapes posed problems for forensic analysis , as the authentic time coding embedded in the original recordings was lost . Further , the use of a recording method which created “ markers ” to show when CARDINAL audio recording stopped and another started had sometimes been used , which also prevented checking the audio material against transcripts and billing records .

Mr PERSON noted CARDINAL major extraneous signals in the CARDINAL CDs he had examined . CARDINAL was where the audio signal to the probe had been lost but it was possible to hear a sound which resembled the dialling of a phone . The report continued :

“ The enigma thus created is how the recording machinery ... is able to capture signals from the phone other than via the listening device . The best - fitting explanation on the data so far examined is that during the quiet periods ( when the connection to the listening device had been lost ) , the DAT machine records ( at a lower level ) signals from a separate interception system which is inadvertently feeding into the recording system for the Shogun . ”

Another extraneous signal was observed where the signal had been lost but words apparently spoken by Mr GPE were picked up . Mr ORG suggested CARDINAL possible explanations : first , that the police officers had dishonestly tampered with the evidence of the sound recordings but left traces of their conduct ; second , that the conversations were not only being monitored by the probe but were at the same time being intercepted under a ORG warrant , resulting in “ spillage of signals ” due to proximate equipment . He considered the second possibility to have “ much more profound implications ” .

Mr PERSON ’s report then went on to consider a possible explanation for the events which had been observed . He advanced the view that given the nature of the investigation and the views of the police regarding Mr GPE , an interception of his communications would have been warranted . He continued :

“ I speculate that this was done , and that officers heard a pattern of calls develop not unlike those in evidence . From this monitoring , they would realise that calls of the type they regarded as suspicious were often made by GPE when sitting in his vehicles ...

From the police perspective in this situation , the core problem was that ( as alleged in the case ) PERSON was a shrewd operator who did not put himself in possession of drugs or incriminating materials . Yet they knew that calls took place of a type they regarded as highly incriminating . Their problem was that in order to prosecute GPE , they would need evidence to take into court , and the ORG interceptions could not be used ... ”

In the section of his report named “ Context and conclusion ” , Mr ORG noted :

“ If my observations and reasoning in due course prove correct , then PERSON is correct in claiming that the sole purpose of planting the listening device was to enable the police to evade the restrictions placed in ORG and get interception evidence into ORG . That goes to the heart of the issue of admissibility .

The possible inadvertent co - presence of evidence of ORG interception material in the case is a remarkable echo of the first case in this field , ORG [ v. GPE , DATE , Series A no . CARDINAL ] ... I wonder if history is now repeating itself in digital form . ”

NORP In his second report dated DATE , Mr ORG again set out his hypothesis that at the same time as signals from the probe were being recorded , signals direct from Mr Knaggs’ mobile phone were being intercepted by the police under an interception warrant . He continued :

“ If this is correct it follows that the covert recording device was not necessary for the police to gain intelligence on his activities , as better quality intelligence was being obtained from the intercept or intercepts on Knaggs’ phone(s ) ... ”

The report considered the application for authorisation to carry out intrusive surveillance , which it considered was :

“ ... misleading at best , insofar as it did not state that the true purpose of the application was to obtain evidence known to be available from intercepted phone calls , but inadmissible because of RIPA ... ”

It also noted the first applicant ’s instructions that , at the time the application for intrusive surveillance was made , he had never even used the FAC and that the statement that he used it to meet with criminal associates ( see paragraph CARDINAL above ) was false .

Reference was made to the presence of voices which were not recorded on the written transcripts of the DAT tapes but which could be heard on the tapes by the introduction of amplification . These incidents occurred during periods in which the transcripts indicated that the signal to the probe had been lost . He considered that the voice “ crosstalk ” appeared to be coming from another system which was directly intercepting all the communications from Mr Knaggs’ phone .

The applicants subsequently sought confirmation from the prosecution of whether or not there had been an intercept of Mr Knaggs’ telephone communications and , if so , the dates on which the intercept had been in place . Defence counsel explained that the reason for the request was that , if there was an intercept , they would have grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers requesting the probe . The prosecution were unable to provide the confirmation sought by the applicants because section CARDINAL of RIPA appeared to preclude the asking of any question and the disclosure of any information relating to whether or not there had been an intercept . Section CARDINAL allowed limited disclosure of the content of an intercept in certain circumstances and where such disclosure could be made without breaching the section CARDINAL prohibition . Section CARDINAL(CARDINAL)(b ) clarified that nothing in section CARDINAL prohibited disclosure of information to a relevant judge in a case where the judge has ordered disclosure to be made to him alone .

NORP In DATE , the applicants applied for a ruling from ORG as to the operation of sections CARDINAL and CARDINAL RIPA in respect of their request for confirmation as to the existence and duration of any intercept of communications . Submissions were made to the court by counsel for PERSON GPE and by counsel for PERSON .

The transcript of the proceedings before the court on DATE records , inter alia , the following :

“ Mr ORG [ counsel for Mr GPE ] : ... whilst , perhaps regrettably , LAW [ RIPA ] does not provide for judicial involvement as of necessity , it does make involvement possible at your Honour ’s discretion , subject to your Honour being satisfied there are exceptional circumstances .

The exceptional circumstances ... would be that there is material in the hands of the ORG which does suggest , and strongly suggests , that intelligence of some sort existed – and I will put it in neutral terms , for obvious reasons – which , if it existed , is potentially highly relevant to matters both on the voir dire and on the trial of the sort that I have set out in the course of my skeleton argument . ”

The transcript also notes the following discussion :

“ Mr PERSON : ... If your Honour is empowered actually to order the disclosure of material to you , certainly implicit in that is power to make enquiries to determine whether or not that is necessary .

Judge PERSON : But you originally , in your skeleton , were not seeking anything to do with the material .

Mr Ryder : No .

Judge PERSON : Just the fact of whether or not there was an intercept .

Mr PERSON : That is right . That is really what I am interested in . ”

Subsequently , the following exchange took place :

“ Judge PERSON : ... as I understand it , you are inviting me to effectively convene the ORG on what would be a [ public interest immunity ] hearing .

Mr PERSON : Yes .

Judge PERSON : And ask them to disclose anything that there is – if there is anything – about an intercept .

Mr PERSON : To your Honour .

... If there is something and it is revealed to your Honour , we are then in this position : we will conduct the voir dire along the line that I have indicated in previous skeleton arguments and in the current one . We will not know what your Honour knows , but your Honour will have in mind what your Honour has learned , in determining whether or not the answers given by a given officer , for example , are honest or not , whether or not there was intelligence which informed what they were doing which rendered the necessity for the intrusive surveillance less urgent than they said , things of that sort ... ”

Counsel for PERSON asked the court , if the prosecution were asked to confirm whether there was an intercept , to bear in mind whether the authorities had complied with the relevant safeguards in the legislation .

Later , counsel for the prosecution made the following statement :

“ The first thing I should say is that , in carrying out my duties , I have had regard to everything I know , the points the Defence wish to make and to the Defence cases as they have been set out in interview and sometimes in argument . If I may , for example , use the matter put forward by PERSON , on behalf of PERSON , I am well aware of the nature of the Prosecution case and the importance of seeking out any material that may further a suggestion that PERSON was not in fact the person at the other end of the telephone , or that he was having an innocent conversation . I have obviously borne that in mind ... throughout when considering any matter of disclosure .

... [ I]f there were no intercept in this case , it seems very difficult to see how an admission could be drafted that did not reveal that fact that could be relevant to these proceedings . ”

No mention was made in the oral submissions of counsel for either applicant , or by counsel for any of the other defendants in the case , of any concerns regarding , or potential challenge to , the integrity , authenticity or reliability of the probe material .

Handing down his ruling DATE , with reasons to follow , Judge PERSON said :

“ I am obviously conscious of my duty to ensure that these proceedings are conducted fairly . I have noted on CARDINAL occasion the concerns expressed by the defence in relation to disclosure and I have taken time to consider the submissions TIME against the background of the relevant statutes , authorities and skeletons which I considered before DATE .

I am happy to confess that I find this a very difficult area . In the end result I have decided not to exercise my power under section CARDINAL(CARDINAL)(b ) . ”

On DATE , Judge PERSON gave full reasons for his decision . He noted at the outset :

“ The evidence upon which the ORG relies comes from several different sources . There is evidence from observations by ORG , and overheard conversations . There is evidence from a co - defendant , [ W. ] , who has pleaded guilty and awaits sentence . He has implicated a number of Defendants in a material way . There is evidence of the recovery of drugs and associated drugs apparatus as well as money . In addition , the ORG have material upon which they can draw from the interviews of some of the Defendants ...

A fairly large portion of the evidence , however , relied upon by the ORG , is the result of a probe which was attached to Mr Knaggs’ vehicle , and from which many hours of meetings and telephone conversations with alleged co - conspirators and others were taped and later transcribed . That evidence is potentially very incriminating , and the subject of a hotly contested voir dire as to its admissibility . ”

Summarising the defence objections to the evidence , the judge noted :

“ The Defence wish , among other things , to test the lawfulness of the applications made , and the authorities given . There may also be an issue of bad faith on the part of ORG ... ”

He continued :

“ In his second skeleton of DATE ... Mr PERSON suggested that material existed which suggested that an interception had taken place . Understandably , we do not know what that material is . We do not know whether it emanates from his expert , or his instructions from his lay client , or a mixture of both . If this is the case , he says the fact of – though not the content of – such intercepts is directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance . He went on to say that assertions and implications in the application for authorisation to conduct intrusive surveillance , that it was not feasible to gather evidence by conventional methods of surveillance , are untenable if such conventional surveillance was informed by information as to Mr Knaggs’ movements and activities gathered by way of telephone interception . It is this matter which has loomed large , and given rise to some difficult questions concerning the construction , interpretation and operation of Sections CARDINAL and CARDINAL of the CARDINAL Act . ”

Considering the effect of section CARDINAL RIPA , the judge noted that :

“ It can thus be seen that subject to LAW there is no ambiguity about Section CARDINAL . Its terms and intention are crystal clear . There is a strict prohibition , a complete blanket comes down on anything at all which would reveal whether there was , or was not , an intercept , or even the possibility that there was , or might have been an intercept , or , indeed , application for an intercept . On its face that would completely rule out any disclosure of the kind originally asked for by the Defence in their skeleton . That was why the Crown ... had concerns about the very legality of what the Defence , through their expert , was doing . Concerns shared by the ORG ...

The effect of the Rule ... is that interceptive material can not be used either by the Prosecution or the Defence , thus preserving the equality of arms principle enshrined in LAW ... ”

He continued :

“ [ Mr ORG ] said that the exceptional circumstances was that there is material in the hands of the defence which , as I have said , the ORG does not know the nature of , which strongly suggests that , to put it bluntly , though he was more circumspect , an intercept had been in place , and the relevance that had to the voir dire , as I have indicated already , and as he set out in his first skeleton , was obvious . ”

As to the conduct of the prosecution in ensuring fairness in the proceedings , the judge noted :

“ ... PERSON [ counsel for the prosecution ] indicated that he had had regard to all he was aware of from the NORP point of view , which had arisen in interview , or in argument . In particular he highlighted and answered PERSON point [ on behalf of PERSON ] about the CARDINAL - sided conversations ... He indicated that were he in possession of information , from whatever source , to exclude , exculpate or explain Mr PERSON ’s part in CARDINAL - sided conversations he would , consistent with his duty , have made an admission , and not have advanced a case to the Jury which he had any reason to think was false . ”

Judge PERSON reviewed the provisions of ORG and the power of the judge under section CARDINAL to review any evidence . He found :

“ ... it seems to me that the whole tenor of these provisions is directed to the material arising out of an interception . It has been made clear in this case that the Defence have absolutely no interest in any such material , even if there is any . Their interest is as to whether there was or was not an intercept . ”

As to the correct interpretation of section NORP ) , he said :

“ I am of the view that any information [ in section NORP ) ] relates to the material arising out of the intercept . I suppose it may reasonably be argued that any information surfacing as a result of something said or done in turn arising out of the intercept material , which was also in [ the ] possession of the authorities , might be included , but it goes no further than that . The important point , however , is that none of this has any relevance because , as I have said , it is not what the Defence are after to help their testing of the evidence or arguments on the voir dire .

I am satisfied , therefore , that any information in sub - section CARDINAL can not be widened and interpreted to mean whether , for example , there was or was not an intercept , or any application for one . It can not do so because release of that information is strictly prohibited . ”

Summarising counsel for Mr Knaggs’ suggested approach ( see paragraph CARDINAL above ) , the judge continued :

“ I find a number of difficulties with these points . First , it can not be gainsaid but that as Mr ORG has conceded on CARDINAL occasion the Defence are not remotely interested in any material emanating from the intercept , but with whether there was one . That is the whole thrust of his argument . ”

He concluded :

“ However , even if I am wrong about the various matters I have just rehearsed , I am of the opinion that whilst the point has some importance on the voir dire , it is not so important as to amount to exceptional circumstances whereby disclosure is essential and required in the interests of justice . It is but CARDINAL aspect of the voir dire . In addition , there is nothing particularly exceptional about this situation . It is likely to occur quite frequently where the authorities believe that they are CARDINAL the path of serious crime and where authority has been granted for intrusive surveillance , but there may well be an intercept lurking in the background . ”

The applicants subsequently applied for the proceedings to be stayed as an abuse of process or for the probe evidence to be excluded on the grounds of unfairness under section CARDINAL of ORG “ PACE ” – see paragraph CARDINAL below ) . Judge PERSON summarised the thrust of the defence submissions as follows :

“ ... They say that the dishonest intention of ORG from the start was to get inside Knaggs’ vehicle and record what he said on his mobile phone . They well knew that he used it extensively ... The reality was that their sole purpose was to hear those conversations . The Police knew that the rules forbade intrusive surveillance of this type ( if that was the object ) . Equally , they knew that any material arising out of an interception by virtue of a warrant under Sec.CARDINAL [ RIPA ] ( the only other way of hearing calls ) could not be used in evidence .

In order to get round that prohibition , and to enable the evidence to be used , they quite deliberately and deceitfully , and in bad faith , contrived to construct an application in such a way as to pull the wool over the eyes of their senior officers ... so as to gain lawful authorisation and , for that matter , renewal of that authorisation .

They did DATE say the Defence – by a mixture of false , misleading and disingenuous statements and exaggeration of the position both on the original application and the review document ... ”

According to the defence , the whole process illustrated bad faith and thus the initial authorisation for the probe as well as the continuing authorisation following the review were unlawfully obtained . They pointed to a secret instruction given to police officers not to record their observations of the movements of Mr GPE . They contended that the integrity of the whole investigative process had been compromised by police misconduct and that no fair trial could take place if the police were found to have behaved in the way they alleged . Accordingly , they argued the indictment should be stayed . Alternatively , the probe evidence should be excluded because of the gross bad faith and dishonesty of the police in obtaining it and because its admission would have , in the circumstances , such an adverse effect of the fairness of the proceedings that the court ought not to admit it .

The court began hearing evidence on the voir dire on DATE . Further disclosure of material which the defence said went generally to the accuracy of the material contained in the applications for authorisation of the probe and to the credibility of the police officers involved in the probe application was ordered by Judge PERSON on DATE .

By letter dated DATE Mr PERSON informed Mr Knaggs’ counsel that having conducted further analysis , he believed that the itemised telephone billing records produced by the prosecution were inadmissible or unreliable and unfair . A comparison of the police communications data and commercial communications data showed that MONEY of the records were different in CARDINAL data element . In his view this showed that the CARDINAL sets of records originated from different sources .

Evidence was heard on the voir dire from police officers involved in the surveillance operation and the Director General of ORG , who had authorised the use of intrusive surveillance . On cross - examination by counsel for PERSON , the police officer who made the application denied lying when he asserted that meetings with criminal associates were taking place in the vehicle . He agreed that the police were aware that PERSON used his mobile phone regularly , but not necessarily that he used it extensively before the probe was fitted . He rejected the suggestion that directed surveillance could have been highly successful in respect of PERSON , emphasising that directed surveillance did not provide the police with evidence against Mr GPE sufficient to secure a conviction . He was unable to explain why a decision was taken not to record Mr Knaggs’ movements .

The senior investigating officer explained that he had been concerned about the number of CARDINAL - sided conversations recorded during the deployment of the probe . However , recording CARDINAL - sided calls had not been the sole purpose of the probe and in any event , the police were obtaining evidence and could therefore legitimately continue to use the probe notwithstanding the fact that the majority of the product was CARDINAL - sided conversations .

NORP The Director General emphasised that his authorisation of intrusive surveillance was not a rubber - stamping exercise . He dealt with the matter personally and exercised independent judgment . While he could not check every detail of the process and had to take certain matters on trust , he was assisted by members of staff who carried out checks and provided legal advice when required . He required a presentation by the requesting officer in an application of a particularly sensitive nature and also conducted random checks . He explained that the recording of CARDINAL - sided calls occurred in many cases . If it were the only material being obtained from intrusive surveillance there would be cause for concern , but that was not the case in respect of the probe in Mr Knaggs’ car . He was satisfied that the relevant criteria had been met when he authorised the initial probe and the renewal . He had no cause to question the good faith of the officers making the application .

It was put to the officer who prepared the review document that , contrary to what he had indicated ( see paragraph CARDINAL above ) , CARDINAL telephone calls and either CARDINAL or CARDINAL meetings had taken place in the vehicle DATE . The officer explained that his figures were based on transcripts available at the time . Following an adjournment to allow him to investigate , he said that on his calculations there were CARDINAL calls and CARDINAL meetings between the relevant dates . The figures in the review had been based on the period from DATE , for an operational reason that he was unable to disclose . He denied that he had made up the explanation to cover up the inaccurate figures .

Judge PERSON summarised counsel for Mr Knaggs’ closing submissions to the court as follows :

“ Mr PERSON was characteristically trenchant in his criticism of the evidence of ORG . He conceded that there can be no question of error or mistake . He nailed his colours firmly to the mast , of dishonesty and deceit . ORG well understood the legal requirements and had cynically manipulated the applications to deceive the Director General , and so achieve their sole objective , which was to record what PERSON said on his mobile , and thus get round the problems they knew a warrant under ORG would create for them . He submitted that , even if the Prosecution evidence was accepted , the Crown had not come close to establishing that the probe was necessary and the exercise essential . ”

Counsel for PERSON submissions were summarised as follows :

“ Mr PERSON submitted that the key question was whether the application [ for the probe ] was necessary ... The Crown and the ORG had been very seriously misled by ORG , who had abused the system . The only thing which changed in the lead - up to DATE was Knaggs’ acquisition of a new car . ”

DATE . On DATE Judge PERSON refused the defence applications . He noted :

“ In coming to my findings on the facts , I have also taken into account the following matters :

it is for the ORG to satisfy me , so that I am sure , that the criteria under [ RIPA ] were met at both the initial stage and for review purposes .

since allegations of bad faith are raised by the ORG , the ORG must , on all the material , completely rule out any question of dishonesty or bad faith .

all the evidence called on the voir dire and , in particular , the assessment of the honesty and reliability of those officers whose credibility is so seriously questioned .

the discrepancies and inconsistencies in the evidence , where they occur .

the skeletons and strong arguments forwarded by the Defence .

the oft repeated concerns of the Defence at the lack of disclosure as a result of ORG and the constraints , out of necessity , which that has imposed on their questioning and probing of the witnesses , as well as their concerns often expressed of the lack of candour in relation to disclosure .

the great care I must exercise in my mind about that which I know and which the Defence do not in connection with the decision - making process .

applications of this kind are a substantial interference with privacy , and should only succeed where there are DATE and I am summarising the effect of the legislation – compelling reasons for doing so .

He considered that the only way to deal with the defence handicap on the sensitive material which had not been disclosed to the defence was to say that the defence were “ entitled to have it both ways ” , namely that they could expect the court to act on anything it knew that helped them but not to act on anything that helped the prosecution .

He addressed first the question whether the intrusive surveillance of PERSON was necessary and , in particular , whether the information sought could reasonably be obtained by other means . He referred to the police ’s belief that PERSON was familiar with police surveillance techniques , citing several examples which appeared to provide some support for this belief . He also noted that the police believed that they were dealing with a major criminal , and had to plan and proceed accordingly . He therefore accepted what was said in the probe application form in this regard , which was borne out by the comments made by PERSON in the recordings . He considered this to be the :

“ first and important point on the road to necessity , as well as proportionality . ”

Next , Judge PERSON considered the defence arguments concerning the effectiveness of directed surveillance . He noted :

“ ... Directed surveillance was feasible and useful when employed to observe other members of the conspiracy , but , for reasons I have already given , difficult and often impossible in the case of GPE . Its effectiveness was limited with regard to him , for example , because he did not handle drugs . The prospect of catching him with drugs was effectively nil . ”

He continued :

“ The Police needed to collect hard evidence to convict him . As they candidly said in their application , it was necessary for them to collect such evidence , as opposed to information . The CARDINAL things are quite different . ”

He further noted that directed and intrusive surveillance were tools of investigation , both of which were more effective when carried out in tandem with the other . He observed :

“ ... Directed surveillance may have been working within its own terms , but it is difficult to see how the substantial drugs seizures could have been made if the Police had not known what was going to happen . To know what was going to happen , they had to listen to conversations in the car . In this connection , one should bear in mind that , not only were they under an obligation to detect serious crime , but also to prevent it . They needed a means of predicting or tracing the travels of conspirators , and hence the shipment of drugs . ”

As to the issues raised by the defence concerning the absence of observation material , Judge PERSON considered that there was no doubt that the attitude and behaviour of the senior investigating officer in instructing that no record be kept was open to severe censure and was a clear breach of the applicable code of practice ( see paragraph CARDINAL below ) . However , he was satisfied that there was no conspiracy or dishonesty among police officers on the question .

Regarding the intention of the police when making the application for the probe , Judge PERSON accepted that the police were aware that PERSON GPE used his mobile phone a great deal . However , he considered that there was a reasonable expectation by the police that Mr GPE would hold meetings with fellow criminals in his car and there was a legitimate wish to obtain evidence of what was said during those meetings . In that sense , he considered the overhearing of CARDINAL - sided calls to be incidental or subordinate to the purpose for which the authorisation was sought . The fact that in the event very useful telephone evidence was obtained did not affect the validity of the decision to apply for authorisation , to grant it , or to permit it to continue . The key factor was the purpose of the probe and not the result . In this regard he emphasised that the probe could not be “ de - authorised ” retrospectively simply because something unexpected happened . He was therefore satisfied that the police intention was to monitor meetings and not to use the probe to circumvent the prohibition on using interception material in evidence .

Similarly , while certain aspects of the review documents were completed carelessly , the judge was satisfied that the police officers were telling the truth on the voir dire and that there was no dishonesty . He continued :

“ ... This was an ongoing operation , and a very serious one at that . The fact is that , whilst there were a large number of calls , the meetings had continued , and , thus , justification for the authority still stood . ”

Applying the ORG criteria , the judge had no doubt that the criteria relevant to the authorisation of intrusive surveillance , set out in section QUANTITY ( see paragraph CARDINAL below ) , were fully satisfied . Accordingly , the authorisations were perfectly valid .

In setting out his conclusions on the abuse of process and section CARDINAL PACE applications , the judge summarised the matters which in his view affected the question of the fairness of admitting the evidence :

“ CARDINAL . There is a clear , and substantially unchallenged , record of what was said in Knaggs’ car . Very often tapes can be difficult to understand , and unfairness can result from conflicting interpretations of material which is unclear . That is singularly not the case here .

There is no element of entrapment . What PERSON said is said quite voluntarily and quite uninfluenced by any Police Officer .

He made no comment to the Police when these matters were put to him , which , of course , he was perfectly entitled to do . However , he and the other Defendants who may be tied into the other ends of telephone conversations by mobile phone evidence and observations are particularly able to say what was being discussed .

Each Defendant alleged to be involved in a conversation can , if he wishes , deny that he was on the other end of that conversation , or assert what was being said was being taken out of context , or otherwise put innocent explanation , or some explanation , upon them .

All the tapes – not just those relied upon by DATE have been disclosed . Any Defendant can , therefore , put before the jury any passages upon which he relies , in order , for example , to show what the Prosecution allege has been taken out of context , or otherwise explain them .

Whilst the Prosecution case DATE which is , of course , charged as a conspiracy – places a good deal of reliance upon this material , it is not the sole evidence in the case . It should be noted , however , that the taped evidence is strong evidence in its own right ...

The admitted breaches of the codes of practice and admitted conduct of ORG which had been the subject of censure – apart from the issue of bad faith – should be put in its proper context , and the question asked : taking both matters at their highest , what effect did they have , or would they have , on the fairness of a trial ? ”

He concluded :

“ None of the criticisms made , it seems to me , go anywhere near an attack on the reliability or probative value or cogency of the evidence in question . Nor is there any suggestion of the manipulation of the tape recording exercise , as sometimes does arise . ”

In a note for counsel for Mr GPE dated DATE Mr ORG explained the results of further analysis of the billing information , highlighting inconsistencies in the information obtained from the prosecution compared to information obtained from the service provider . CARDINAL inconsistency raised was the presence in the prosecution list of calls of “ CARDINAL - length ” calls , where no connection was made . Evidence from the provider indicated that such calls were not included in the billing records they issued and their presence in the prosecution data therefore raised questions as to the source .

By letter to counsel dated DATE Mr PERSON drew attention to new evidence received as to police procedures on obtaining telephone record data which had shed some light on the inconsistencies observed . In particular , the method available to the police for automatically obtaining phone records generated call data in a different format to the formal inquiry system in which the provider issued data . The automated system for certain mobile phone operators did include CARDINAL - length calls in the output . The different methods of generating the data also helped explain inconsistencies regarding the duration of calls : the precise duration given in the automated records was rounded up in the billing records produced by the formal inquiry method .

On DATE , following legal advice that as a result of the sections CARDINAL ruling he could not challenge the prosecution ’s evidence by calling his expert evidence , Mr GPE pleaded guilty to the charge of conspiracy to supply a Class A drug .

On DATE , PERSON appeared before the judge . In relation to his plea , he said :

“ As you know , on DATE , I entered a plea of guilty of conspiracy to supply Class ‘ DATE drugs . I was well aware of the consequences and I was well aware that , in pleading guilty to such a charge , I am going to receive a quite substantial custodial sentence . I did plead guilty after consulting with my family , and I did it off my own back ; I was n’t pressured by my legal team in any way , but I was very carefully advised . ”

However , he expressed concern at the circumstances in which he was pleading guilty :

“ My issues , your Honour , with that plea of guilty was that I felt that I was put in a no - win situation in relation to that plea of guilty . I feel that you know , with all due respect your honour , I feel that my chances of a fair trial were rendered absolutely impossible , and if I may say , I would like to briefly go into the reasons why I believe that .

The first thing is , we , the defence , – I should say I , [ the ] defence – had strong forensic evidence to show that an interception of telephone communications took place ... ”

Judge PERSON prevented him from going further , saying :

“ I am going to stop you there , because this is a matter , as you know , upon which I have ruled ... It is not open to you to ventilate this matter in open court . And so , if you have been advised to keep counsel about these matters , I advise you to do so . I am not prepared to hear any representations in relation to that matter . ”

Mr GPE also said :

“ ... I would also like to say , your Honour , that I ’m not trying to stand here and portray myself as being some sort of an angel ; I have pleaded guilty , and I was involved in crime , but I certainly was n’t involved to the extent that the Prosecution are trying to say that was . And , like I say , your Honour , I was never able to prove that . And for my involvement in that crime , I am truly sorry . And if I could turn back the clock , I can guarantee that I would not be here DATE . ”

DATE . On DATE Mr GPE was sentenced to DATE imprisonment . Confiscation proceedings were subsequently commenced against him .

In DATE Mr PERSON made a formal application to vacate his guilty plea , which he abandoned after a CARDINAL day hearing . He renewed his application formally on DATE , at which stage it was refused by the judge .

On DATE Mr PERSON was convicted by a jury of conspiracy to supply a Class A controlled drug . The information obtained from the probe in Mr Knaggs’ car provided significant evidence against Mr PERSON . At trial , he did not seek to dispute the authenticity or reliability of the probe material . Instead , he sought to give an innocent explanation for the recordings in which he was implicated .

On DATE PERSON was sentenced to DATE imprisonment . Confiscation proceedings were subsequently commenced against him .

Mr PERSON sought leave to appeal . On DATE his application for leave to appeal was refused by the single judge .

In DATE Mr ORG produced a further technical report to assist an intended appeal by PERSON . The report began with a summary of the position set out in previous reports , again advancing the hypothesis that the probe had been placed in the vehicle intentionally to collect evidence of calls being made by PERSON on his mobile phone . The report noted :

“ CARDINAL . The circumstances of that application and the many misleading statements made by the NCS in obtaining and then continuing permission for intrusive surveillance , were explored extensively in a voir dire , and are set out in detail in the judgment ... ”

It continued :

“ CARDINAL . From the beginning , my view was that the placing of the probe in the PERSON was done intentionally to intercept telephone calls made by GPE – knowing when making the application that GPE conducted many mobile phone conversations from his ( previous ) vehicle , and that some of his conversations could be highly incriminating . [ original italics ]

ORG are prohibited under sCARDINAL ORG from allowing evidence to be sought or taken concerning the interception of communications . It is not therefore possible to examine how information obtained from the interception of communications might have influenced the making of an application for intrusive surveillance . ”

Referring again to the extraneous signals found on the DAT tapes , PERSON concluded that the police recording equipment was inadvertently recording unintended information . CARDINAL possibilities were proposed :

“ ( CARDINAL ) The recorders were picking up a separate signal from a direct intercept on Knaggs’ phone which became ( barely ) audible when the direct line to the probe was lost . This is a well - known electrical phenomenon called crosstalk ;

( CARDINAL ) The telephone device used to connect to the probe was inadvertently picking up conversations within the secure listening room . If so , in simple terms the police were inadvertently recording their own conversations . ”

DATE . In DATE a report was prepared on behalf of PERSON by Mr B. Clues , a chartered electrical engineer and consultant . Referring to voices on the tapes which did not appear to come from the target vehicle , Mr Clues noted that these appeared to be a contamination of the tapes . In his opinion , there was the possibility that the investigation and analysis of the unexplained recordings could produce evidence of , among other possibilities , tampering and editing of the recordings . He concluded that the material from the CDs which he had examined was not , in his view , consistent with assertions that there were no audio sources on the tapes other than from the probe . He considered that the recordings had characteristics which were consistent with being extracts of the original recordings or , alternatively , an edited version of original recordings .

Having analysed some of the DAT tapes’ contents , he noted that “ unusual audio events ” occurred when there was a loss of connection with the probe . CARDINAL types of audio source were nonetheless heard on the tapes during the loss of connection , namely voices which appeared to be related to the operation of the probe and voices which appeared to be that of a telephone call between PERSON and another person . Further , when the probe was active , sounds could be heard on the tapes which did not appear to be coming from inside the vehicle . He accepted that there could be an explanation for these unusual audio events , but indicated that detailed audio analysis was required to determine this .

In DATE a report by PERSON , director and senior consultant of ORG , was prepared on the instructions of the prosecution . He noted , first , that all CARDINAL DAT tapes which he analysed contained continuous and uninterrupted recorded information for the respective periods which they covered . He further indicated that he had found CARDINAL sources of information on the DAT tapes : the input from the probe and speech from the handset at the monitoring station . He dismissed a number of Mr NORP conclusions as speculative and/or mistaken .

In DATE , a further report was instructed by the defence on behalf of PERSON . The report was prepared by PERSON , a consultant specialising in speaker identification and disputed language issues . A similar report was prepared on behalf of the prosecution by PERSON A. ORG , senior lecturer in phonetics at ORG , GPE . Both reports considered the voices on an extract of the tapes and the voice of CARDINAL of the police officers involved in the operation . Both considered it likely that CARDINAL of the voices recorded in the extract was that of the police officer .

Mr GPE also lodged grounds of appeal against conviction , dated DATE , prepared by his solicitor . His grounds of appeal were split into CARDINAL distinct grounds , which in turn were sub - divided into a number of different heads . The grounds noted :

“ The applicant even at an appeal can not fully apprise ORG full facts giving rise to the unsafe conviction , because the evidence and associated material demonstrating the unreliability , illegality and subsequently inadmissibility of the ORG ’s evidence can not be adduced . In these circumstances there is an overwhelming need for a directions hearing . Directions will be sought as to how Mr GPE could adduce his evidence without falling foul of the statutory prohibition imposed under [ ORG and LAW ] . ”

The first ground of appeal was that :

“ The Learned Judge erred in not allowing defence submissions to exclude evidence under LAW DATE and/or stay the proceedings for abuse of the ORG ’s process . ”

The followings heads were identified within that ground : ( i ) the conduct of the police during the investigation and on the voir dire , namely concealment and dishonesty to justify retrospectively unlawfully obtained material ; ( ii ) the true purpose behind the intrusive surveillance , namely to record the applicant using his mobile phone ; ( iii ) the system used to transmit the product of the recording device and whether in essence it amounted to an interception of communications itself ; ( iv ) the authenticity and integrity of the tape recordings , and the restrictions imposed by statute on disclosing the evidence which emerged during the voir dire ; and ( v ) the authenticity and reliability of the telephone call data , for similar reasons .

In particular , as to the authenticity and integrity of the tape recordings , the grounds of appeal noted :

“ ... in respect of the tape recordings there was , and remains , a significant challenge to the authenticity and legality of this material and the integrity of the system employed to record it .

During the Voir Dire evidence was to emerge which would demonstrate that the integrity of the tape recordings could not be guaranteed and the product could not be relied upon . However , due to the restrictions imposed by statute , the reliability and legality of the tapes could not properly be explored , and the expert evidence could not be called and heard in ORG , because to do so would offend the statutory prohibitions set out in [ RIPA ] ... ”

The second ground of appeal was that :

“ As a result of the judge ’s rulings giving rise to ground one , combined with the procedural problems imposed under statute which led to the legal advice that PERSON GPE was prohibited from calling any of his evidence ( which was to include scientific expert evidence ) , he pleaded guilty as he could not defend his case ... The Learned Judge was wrong not to permit PERSON to change his plea and defend his case in front of a jury . ”

The followings heads were identified within that ground : ( i ) the entering of the guilty plea and the subsequent clarifications by the applicant of his acceptance of guilt ( see paragraphs CARDINAL above ) ; ( ii ) the application to vacate the plea ; and ( iii ) the learned judge ’s refusal to hear a renewed application to vacate the plea ( see paragraph CARDINAL above ) .

In the written legal advice received by Mr GPE and lodged with the court in support of the need for directions , the grounds of appeal are summarised as follows :

“ CARDINAL . The refusal of the Learned Judge to exclude all or substantial parts of the product of a covert listening device installed in a vehicle said to be used by PERSON , and/or to stay the proceedings as an abuse of ORG process , and

The refusal of the Learned Judge thereafter to permit Mr GPE to revoke his plea of guilty . ”

The document made it clear that the alleged anomalies contained in the recordings were apparent at a very early stage , and before the voir dire .

Mr PERSON renewed his application for leave to appeal before the full court . He sought to lodge amended grounds of appeal on CARDINAL October DATE , intended to replace those drafted by trial counsel and considered by the single judge . He sought to rely on the amended grounds “ in support of his renewed application for leave to appeal against conviction and sentence and his application to call fresh evidence ” . Notwithstanding the reference to an application to call fresh evidence in his amended grounds of appeal , no formal application to call fresh evidence , in compliance with LAW DATE and the relevant Criminal Procedure Rule and applicable practice directions ( see paragraphs CARDINAL - CARDINAL above ) , was lodged .

Mr PERSON ’s amended grounds of appeal , in outline , were :

“ ( i ) The judge should have stayed the indictment or excluded the evidence of the covert police tapes . The arguments for doing so were so strong and compelling that this court can properly interfere with the exercise of the judge ’s discretion . In refusing the defence submissions , the judge reached conclusions of fact that were untenable on the evidence he had heard .

( ii ) There is now a body of technical evidence , unavailable to the applicant at trial , which shows that the tapes are contaminated with recordings from other sources . Knaggs’ voice can be heard during periods of signal loss to the probe . CARDINAL of the recording sources is an interception of Knaggs’ mobile phone : s CARDINAL of RIPA CARDINAL prohibits its use in evidence . New evidence also shows that GPE was not in his car , the site of the probe , when a significant proportion of the recordings occur . If this evidence had been available at trial , it would , or may , have had a decisive influence on the submissions to stay the indictment or exclude the evidence of the covert tapes .

( iii ) The new evidence sheds light on the way the probe functioned and demonstrates that it caused , of itself , an interception of Knaggs’ calls ... If the probe was an interception , s. CARDINAL of RIPA renders the whole of its product inadmissible .

( iv ) New evidence , in the form of witness statements made after the applicant ’s trial , tends to undermine and cast doubt on the evidence of [ W. ] ...

( v ) Other new evidence ... tends to show that the applicant ’s conviction was unsafe . ”

As regards ground ( ii ) , the grounds explained that in the course of the confiscation proceedings against Mr GPE , a variety of expert reports had emerged , including reports by Mr PERSON and Mr Clues . Mr PERSON sought leave to rely on these reports , as well as further reports being prepared at the time , and statements from CARDINAL witnesses showing that PERSON PERSON was not in the vehicle on at least forty per cent of the occasions when his voice was said to be recorded on the probe . An affidavit signed by PERSON solicitor during the trial attested to the fact that the solicitor did not receive a copy of any report by PERSON , nor was she aware of the contents of any such report , until after PERSON conviction . She also confirmed that neither she nor PERSON counsel were aware that police ORG voices were recorded on the DAT tapes .

Mr Knaggs’ skeleton argument , prepared by senior counsel and dated DATE , summarised the defence at trial as :

“ ... a denial and an attack on the admissibility of the probe evidence and on the credibility of the police officers generally . ”

The skeleton argument referred to the analysis of the DAT tapes by PERSON and the alleged presence of extraneous signals , noting :

“ It followed that the covert recording device was not necessary for the police to gain intelligence about the PERSON ’s activities as better quality intelligence was being obtained from the intercept .

It further followed that this evidence also cast serious doubt as to the veracity of the police evidence generally and in particular when the police had maintained that ‘ conventional surveillance is therefore not feasible in the LOC in order to get authority for the probe .

It also followed ... on the basis of the defence expert evidence that by disclosing the probe evidence the police officers concerned had breached section CARDINAL [ RIPA ] . ”

The skeleton argument explained that the defence wished to rely on the expert evidence for the following reasons :

“ ( a ) it went to admissibility : material existed that an interception had taken place . The fact of the intercept was directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance . Assertions in the applications for authorisation to conduct intrusive surveillance that the information could not reasonably be obtained by other means and the action sought to be achieved could not reasonably be achieved by other means were untenable , inaccurate , wrong and misleading ...

( b ) it went to the integrity of the tape recordings themselves as the extraneous signals could be evidence of tampering .

( c ) it went to the reliability of the probe evidence generally .

( d ) It went to the [ credibility ] and bona fides of the police officers involved in connection with the probe evidence .

( e ) it went to the integrity of the procedures adopted generally ... If the interception was made under a ORG warrant then it was possible that the purpose of planting the listening device was to enable the police to evade the restrictions in the ORG and adduce the fact of the intercept evidence in the proceedings .

( f ) it went to the integrity of the police officers generally ... ”

As to the effect of the trial judge ’s rulings on sections CARDINAL and CARDINAL ORG and section CARDINAL PACE , the skeleton argument stated :

“ The consequences of the Judge ’s rulings was that the Applicant could not raise as an issue that there had been an intercept disclosed by the Prosecution as part of the covert recordings and telephone cell data or even mention it . This meant that he was unable to challenge the veracity of the probe evidence by calling expert witnesses and he was so advised . This was a breach of LAW .

The Defence was prohibited from calling their expert evidence .

The Defence could not question technical experts called by the Prosecution .

The Defence could not challenge the admissibility of the probe evidence .

The Defence could not cross - examine the police officers responsible for the probe on this issue as to [ credibility ] .

The Defence could not seek to show that the police officers had acted illegally with regard to the probe evidence .

It follows that the Judge misinterpreted Section CARDINAL and took a wrong approach and this view of section CARDINAL constituted a breach of LAW . ”

The skeleton argument further clarified that the evidence which it was suggested should be before ORG was the evidence excluded by the DATE ruling , and not further evidence discovered since that ruling . It continued :

“ As the matter stands the ORG has not disclosed to ORG :

a. the expert reports of PERSON .

b. the expert reports of Mr Clues .

c. statements from CARDINAL witnesses .

As to the reports of Mr Campbell – some of these reports were available at the time of the Voir Dire decision but they could not be received in evidence by reason of the Judge ’s decision . In these premises it is submitted that these reports could be additional evidence and receivable by ORG on this basis .

The same applies to the reports of Mr Clues ...

The approximately CARDINAL witnesses all deal with particular incidents to discredit the probe evidence . The Applicant had supplied the names and in most cases the addresses of these witnesses to his then solicitors . As at the date of the plea of guilty his then solicitors had not obtained statement from any of these witnesses . These witnesses would have been able to give evidence despite the Judge ’s ruling . It is submitted that in these circumstances these witnesses were not available at the date of trial and could be called as additional evidence before this ORG . ”

The skeleton argument concluded :

“ Bearing in mind the suggested illegality and alleged contravention of LAW the Applicant seeks directions as to how to present this part of the case if necessary . ”

ORG refused Mr Knaggs’ request to give directions in the case . It considered that directions were not necessary unless and until leave was granted .

Mr PERSON ’s skeleton argument , dated CARDINAL DATE and prepared by senior counsel , clarified in its introduction :

“ Additional evidence sought to be relied on is :

a. The expert reports from ORG and Clues , also referred to by GPE .

b. Evidence from witnesses within the GPE shogun , also relied on by GPE .

PERSON and PERSON statements impacting of [ W. ] ’s testimony .

d. The affidavit of [ Mr PERSON ’s solicitor at trial ] and letters of trial counsel . ”

The skeleton argument also reiterated the argument advanced by the defence during the voir dire that authority for the probe was wrongly granted , that the police officers had acted dishonestly in applying for authority and that the probe was intended to record the calls in order to circumvent the prohibition on intercept evidence being used as evidence . Mr PERSON further denied that at any time prior to trial he was aware that there were unexplained voices on the DAT tapes . The skeleton continued :

“ The applicant thus submits :

i. the evidence relating to voices on tapes and other recording sources should have been disclosed and were not . Equally if any reports from ORG had been served before [ Mr PERSON ] ’s trial he should have been served with them .

ii . [ Mr PERSON ] conducted the voir dire and his trial relying on their integrity . He had not been in the car nor is heard on the tapes .

iii . The question mark over the tapes would have been the last straw for a judge clearly already very concerned as to the state of the evidence he was being presented with .

iv . If the jury were aware that the main evidence had been tampered with , it is unlikely that they would have accepted the evidence of the police . ”

The skeleton argument for the prosecution , dated DATE , referred to the defence submissions during the voir dire , noting :

“ ... At no stage was there any challenge to the proposition that , so far as was material , the source of the voices recorded on CARDINAL , TIME , DAT tapes was conversation in Mr Knaggs’ car . Nor was there any allegation of the kind which PERSON GPE now makes that the tapes were a fabrication composed of recordings from different sources .

Even if the judge ’s ruling of DATE was wrong , and I submit that it was not , it did nor prevent the defence from calling evidence to prove that there were signs that the tapes were fabricated or that PERSON Knaggs’ voice was not on them . In the event the evidence of the officers who were responsible for recording and sealing the tapes was never challenged and PERSON did not seek to call any of the CARDINAL witnesses he now says are available to prove that he was not in the car when the tapes indicated that he was . ”

It continued :

“ ... At some of the many hearings involving Mr GPE it has been suggested that because some of the DAT tapes allegedly contain words derived from an intercept those tapes are inadmissible . I should make it clear that the prosecution categorically deny that this is the case but even if it is , it would not affect the admissibility of the great body of the recordings . The telephone records relied on by the ORG did not include any material associated with an intercept if there was one . It consisted of material produced by the service providers although a small part of it had originally been produced as what is known as intelligence billing during the course of the enquiry and was in a different format to the normal .... ”

An appeal hearing took place on DATE . According to the judgment of ORG , at the oral hearing the applicants submitted , first , that the judge ’s ruling in relation to the application of sections CARDINAL and CARDINAL ORG was wrong in law and effectively amounted to a breach of their right to a fair trial under LAW ; second that the judge was wrong to refuse the application to stay the proceedings as an abuse of process or , alternatively , to permit the evidence under the probe to be produced in evidence ; and third , that there was now evidence that PERSON had been lying in the course of the evidence that he had given at the trial . Mr GPE further submitted that he should be entitled to vacate his guilty plea . Similarly , a summary of the hearing prepared by prosecution counsel and dated DATE , provided to the ORG by PERSON in support of his application , indicates that the oral applications for leave to appeal were made on the grounds that :

“ ( a ) ORG Judge PERSON was wrong to rule that he had no power to order the prosecution to disclose whether or not there was an interception in this case ; ( b ) that if the ruling referred to in ( a ) was correct it made the trial unfair within the meaning of LAW ] ; ( c ) that the judge was wrong to rule that the probe tapes were admissible ; ( d ) in the case of GPE , that the judge was wrong to reject his application to change his plea and ( e ) in the case of PERSON that fresh evidence existed to throw doubt on the credibility of [ W. ] ” .

Leave to appeal was refused on CARDINAL DATE . Summarising the evidence against the applicants , Lord Justice PERSON , delivering the judgment of the court , noted :

“ CARDINAL . The evidence against the applicants fell essentially into CARDINAL parts . Firstly , there was what might be called ordinary surveillance evidence ; that is , evidence of what the police saw and heard over a period from DATE to CARDINALth DATE . It is not necessary for the purposes of this judgment to go in detail through that evidence , but we shall touch on it when dealing with the overall story . The second part of the evidence was the evidence obtained from a probe which had been placed in PERSON Knaggs’ PERSON car on or DATE . That probe picked up all conversations within the car and also PERSON , if one can put it that way , of mobile telephone conversations . Finally , there was the evidence of [ W. ] .

Put together , that evidence showed that these applicants were clearly closely connected . There was abundant evidence of meetings , abundant evidence of telephone conversations , and , as we shall see , there were occasions when members of the conspiracy were caught in possession of drugs . ”

As to Judge PERSON ’s ruling on the applicants’ application relating to sections CARDINAL and CARDINAL ORG , ORG noted :

“ DATE . It is important to put that application in its context . By then , the position was that the material which had been obtained from the probe , which had been recorded initially on CARDINAL tapes , one of which was the master tape and the other was the working tape , had been re - recorded from the working tape to provide copies of what had been heard to any defendant who wished to have a copy and check it . And transcripts had been made from those tapes and of course were available . It is apparent from the material that we have that CARDINAL reports on those tapes had been provided to those advising PERSON by a Mr Campbell by the date upon which the ruling with which we are concerned was made . At no time at that stage was it apparent that any challenge was going to be made to the reliability or accuracy of either the tapes , the copies or the transcripts , or at least no relevant ones . As far as PERSON was concerned , there was indeed no defence statement .

The nature of the application that was made in those circumstances is of some importance . What was being suggested was that the reports from Mr ORG had identified the possibility of an intercept ... , the existence of such an intercept being prima facie protected from disclosure in any form under LAW .

CARDINAL Mr PERSON , who was appearing for PERSON at the time , in the first place was asking for , in effect , disclosure of whether or not an intercept had taken place . The context in which he made that application was ( as one can see from page CARDINAL of the transcript ) in order to enable him to put forward an argument in relation to the installation of the probe that it was not necessary for the probe to be installed , which is a requirement under Part II of that Act , on the basis that the intercept would be able to inform surveillance in a way which would mean that it was not necessary for the probe to be installed . The application was undoubtedly understood in that way by the judge . And when Mr PERSON ’s submissions were distilled , they came to a request for either an admission that an intercept had taken place , together with the dates over which it was active , or confirmation that no such intercept had occurred . He and other counsel expressly eschewed making any request for what might be called the content of any intercepts that may have taken place . It follows that the judge was essentially only concerned with the question of whether or not it was permissible to answer the CARDINAL questions which were posed by Mr Ryder . Section CARDINAL , Mr Garside QC submitted to the judge on behalf of the prosecution , precluded the judge from answering those questions , or requiring any other person to answer those questions . The judge agreed , and in our judgment that conclusion was entirely correct . ”

Latham LJ noted that the applicants submitted before ORG that the sections CARDINAL and CARDINAL ruling had produced substantial unfairness because they were precluded from being able to put before the jury material which might have in some way undermined the integrity of the probe material . He continued :

“ CARDINAL . ... But , as will have been appreciated from what we have already said , that was not the basis upon which the application was made . It was clearly made in order to support at that stage the argument that the application for the installation of the probe had not been a proper application because the material could have been obtained in some other way . ”

He noted :

“ DATE . The application , however , does raise this matter ... namely that there was material in the evidence of PERSON which arose out of his conclusion that there might have been an intercept which could be said to have been material which could have undermined the prosecution assertion that the taped material was material which could be relied upon as being an accurate recording and transcription of the material obtained by the probe and the probe alone .

For the reasons that we have given , that does not strictly arise as a problem in this case because that was not what was being submitted at the time . But it seems to us to be necessary to say that , when CARDINAL looks at the material upon which that assertion is based , it is difficult to see how , ultimately , it could have cast any real doubt upon the reliability of the probe evidence overall . But that is an aside for the purposes of these applications . And , in particular , that comment only relates to the CARDINAL reports in existence at that time . Accordingly , as far as the applications are based on the judge ’s ruling in relation to sections CARDINAL and DATE , the submissions do not succeed . ”

NORP The court also found that the decision not to stay the proceedings did not result in the applicants’ trial being unfair , emphasising at the outset :

“ CARDINAL . ... It is important , it seems to us , to repeat what we said earlier , which is at this stage in the proceedings there was no challenge to the reliability of the evidence produced by the probe , and it was on that basis that the judge approached the matter .

Although there was no challenge to the integrity , so to speak , of the material produced by the probe , there was a root and branch attack on the credibility and behaviour of the QUANTITY police officers who gave evidence and who were the main police protagonists in relation to this aspect of the case ... ”

Nor did the decision to admit the probe evidence result in unfairness :

“ CARDINAL . Turning to the ruling in relation to section CARDINAL , it is important to remind ourselves once again that at this stage there was no challenge to the integrity of the material produced by reason of the probe . As the judge himself said : in those circumstances how could it be unfair for this material to go before the jury ? The defendants were in a position to explain what was heard on the tapes as being innocent , if they could ; they were in no way precluded from doing so . They could , for example , have called evidence in relation to the people who were at the other end of the telephone conversations if it was considered that it was necessary in the interests of their defence to do so . It is significant to note in that context that part of the application before us DATE from PERSON is an application to call CARDINAL witnesses to say that the telephone conversations either did not take place when they were said to have taken place or were in a different form , or , alternatively , were related to matters other than drugs matters . Those were all witnesses available to Mr PERSON and his advisers at the time had they wished to call them . Clearly , in those circumstances there could be no unfairness arising out of the admission of what was evidence which had not been obtained by way of entrapment or vitiated in any other way of that sort . It follows that the challenge insofar as it relates to the judge ’s rulings in that respect must also fail . ”

Leave was also refused in respect of the remaining grounds of appeal .

In DATE ORG ( “ SOCA ” ) suspected , on reasonable grounds , that PERSON , in detention at ORG , was involved with others in a conspiracy to import cocaine into GPE . On DATE a number of arrests were made . At the request of SOCA , prison security entered Mr GPE ’s cell and removed him to the segregation unit . He remained in the segregation unit until DATE .

During Mr Knaggs’ absence from his cell , prison security and SOCA searched the cell . The search was carried out under lawful authority and all material within the cell , including legal correspondence , was seized and placed in bags with tamper - proof seals . This was done pending an examination of the material by independent counsel , whose task it was to identify any items subject to legal professional privilege , which were then returned to Mr GPE . The exercise produced disputed material , which was subsequently held for assessment by a Circuit Judge .

Section CARDINAL of the Regulation of Investigatory Powers Act CARDINAL ( “ RIPA ” ) provides for the authorisation of directed surveillance , i.e. covert surveillance involving observing an individual in public . Section CARDINAL ) provides that such authorisation should not be granted unless the police officer believes that the authorisation is “ necessary ” and that the surveillance is proportionate to what is sought to be achieved by carrying it out . Authorisation is “ necessary ” for the purposes of section CARDINAL ) if it is necessary , inter alia , ( a ) in the interests of national security ; ( b ) for the purpose of preventing or detecting crime or of preventing disorder ; ( c ) in the interests of the economic well - being of GPE ; or ( d ) in the interests of public safety .

NORP Under paragraph CARDINAL of the Code of Practice adopted pursuant to section CARDINAL of the Criminal Procedure and Investigations Act CARDINAL , the officer in charge of an investigation must ensure that material relevant to the investigation is recorded in a durable or retrievable form .

Under section CARDINAL(CARDINAL ) RIPA , senior authorising officers are given the power to grant authorisations for carrying out intrusive surveillance , i.e. surveillance which involves observing an individual in private or which is carried out by means of a surveillance device . Section CARDINAL ) provides that such authorisation should not be granted unless the officer believes that the authorisation is “ necessary ” and that the surveillance is proportionate to what is sought to be achieved by carrying it out . Authorisation is “ necessary ” for the purposes of section CARDINAL(CARDINAL ) if it is necessary ( a ) in the interests of national security ; ( b ) for the purpose of preventing or detecting serious crime ; or ( c ) in the interests of the economic well - being of GPE . Section CARDINAL ) requires that in considering whether the test in section CARDINAL ) has been met , the officer should consider whether the information which it is thought necessary to obtain by intrusive surveillance could reasonably be obtained by other means . Under section CARDINAL(CARDINAL ) , authorisation of intrusive surveillance can be renewed . Prior to any renewal , there must be a review .

Section CARDINAL of LAW CARDINAL also provides for authorisation for police action if it is necessary for the action specified to be taken for the purpose of preventing or detecting serious crime and the taking of the action is proportionate to what the action seeks to achieve .

Section CARDINAL(CARDINAL ) RIPA makes it an offence intentionally and without lawful authority to intercept any communication in the course of transmission by a public telecommunications system . Pursuant to section CARDINAL(CARDINAL)(b ) an intercept will have lawful authority if it occurs in accordance with a warrant under LAW . Section CARDINAL ) allows the Secretary of ORG to issue a warrant to secure the interception of communications described in the warrant . Section CARDINAL(CARDINAL ) provides that a warrant shall not be issued unless the Secretary of ORG believes that the warrant is “ necessary ” and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct . Under section CARDINAL(CARDINAL ) , a warrant is “ necessary ” if it is necessary , inter alia , ( a ) in the interests of national security ; or ( b ) for the purpose of preventing or detecting serious crime . Section CARDINAL(CARDINAL ) requires that in considering whether the test in section CARDINAL(CARDINAL ) has been met , the Secretary of ORG should consider whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means .

Section CARDINAL RIPA imposes a duty on specified persons to keep secret , inter alia , the existence and content of an interception warrant ; the details of its issue and any renewal ; the steps taken in pursuance of the warrant ; and everything in the intercepted material and any “ related communications data ” . Those subject to this obligation include anyone holding office under the ORG . Section CARDINAL(CARDINAL ) establishes that disclosure in contravention of the section constitutes an offence .

Section QUANTITY “ related communications data ” in this context as so much of any communications data as are obtained by , or in connection with , the interception and relate to the communication or to the sender or recipient , or intended recipient , of the communication . “ Communications data ” are defined in section ORG RIPA as traffic data comprised in or attached to a communication for the purposes of any telecommunications system by means of which they are being or may be transmitted ; any information which includes none of the contents of a communication and is about the use made by a person of a telecommunications service or in connection with the provision to or use by a person of a telecommunications service ; or any information not otherwise included that is held or obtained by a person providing a telecommunications service in relation to persons to whom he provides the service .

Section CARDINAL of the Official Secrets Act DATE provides :

“ ( CARDINAL ) A person who is or has been a ORG servant or government contractor is guilty of an offence if without lawful authority he discloses any information , document or other article to which this section applies and which is or has been in his possession by virtue of his position as such .

( CARDINAL ) This section applies to any information , document or other article—

( a ) the disclosure of which—

( i ) results in the commission of an offence ; or

( ii ) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody ; or

( iii ) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders ; or

( b ) which is such that its unauthorised disclosure would be likely to have any of those effects .

( CARDINAL ) This section also applies to—

( a ) any information obtained by reason of the interception of any communication in obedience to a warrant issued under LAW DATE or under the authority of an interception warrant under LAW , any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in , or has been obtained by reason of , any such interception ... ”

Section CARDINAL of ORG “ PACE ” ) provides :

“ ( CARDINAL ) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it .

( CARDINAL ) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence . ”

Section CARDINAL RIPA covers the admissibility of evidence relating to or obtained from an interception warrant . Section CARDINAL(CARDINAL ) provides that :

“ Subject to section CARDINAL , no evidence shall be adduced , question asked , assertion or disclosure made or other thing done in , for the purposes of or in connection with any legal proceedings which ( in any manner)–

( a ) discloses , in circumstances from which its origin in anything falling within subsection ( CARDINAL ) may be inferred , any of the contents of an intercepted communication or any related communications data ; or

( b ) tends ( apart from any such disclosure ) to suggest that anything falling within subsection ( CARDINAL ) has or may have occurred or be going to occur . ”

Section PERSON ) refers to :

“ ( a ) conduct by a person falling within subsection ( CARDINAL ) that was or would be an offence under LAW ) or ( CARDINAL ) of this LAW or under LAW DATE ;

( b ) a breach by the Secretary of ORG of his duty under section CARDINAL(CARDINAL ) of this LAW ;

( c ) the issue of an interception warrant ... ;

( d ) the making of an application by any person for an interception warrant ... ;

( e ) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant . ”

Section CARDINAL(CARDINAL ) sets out the persons referred to in section PERSON ) :

“ ( a ) any person to whom a warrant under this LAW may be addressed ;

( b ) any person holding office under the ORG ;

( c ) any member of ORG ;

( d ) any member of ORG ;

( e ) any person employed by or for the purposes of a police force ;

( f ) any person providing a postal service or employed for the purposes of any business of providing such a service ; and

( g ) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service . ”

Section CARDINAL RIPA sets out exceptions to section CARDINAL RIPA . The relevant subsections of section CARDINAL provide that :

“ ( CARDINAL ) Nothing in section CARDINAL(CARDINAL ) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to—

( a ) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution ; or

( b ) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone .

( CARDINAL ) Subject to subsection ( CARDINAL ) , where in any criminal PERSON

( a ) a relevant judge does order a disclosure under subsection ( CARDINAL ) , and

( b ) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so ,

he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice .

( CARDINAL ) Nothing in any direction under subsection ( CARDINAL ) shall authorise or require anything to be done in contravention of section CARDINAL(CARDINAL ) . ”

The Interception of Communications Code of Practice , adopted pursuant to section QUANTITY , provides guidance as to the application of sections CARDINAL and CARDINAL ORG . At LAW , the LAW states :

“ CARDINAL.CARDINAL The general rule is that neither the possibility of interception nor intercepted material itself plays any part in legal proceedings . This rule is set out in LAW , which excludes evidence , questioning , assertion or disclosure in legal proceedings likely to reveal the existence ( or the absence ) of a warrant issued LAW ( or ORG DATE ) . This rule means that the intercepted material can not be used either by the prosecution or the defence . This preserves ‘ equality of arms’ which is a requirement under LAW . ”

The Code goes on to consider the operation of the exceptions set out in CARDINAL :

“ CARDINAL Section CARDINAL contains a number of tightly - drawn exceptions to this rule . This part of the Code deals only with the exception in subsections ( CARDINAL ) to ( CARDINAL ) .

CARDINAL Section CARDINAL(CARDINAL)(a ) provides that intercepted material obtained by means of a warrant and which continues to be available , may , for a strictly limited purpose , be disclosed to a person conducting a criminal prosecution .

CARDINAL This may only be done for the purpose of enabling the prosecutor to determine what is required of him by his duty to secure the fairness of the prosecution . The prosecutor may not use intercepted material to which he is given access under section CARDINAL(CARDINAL)(a ) to mount a cross - examination , or to do anything other than ensure the fairness of the proceedings .

CARDINAL If intercepted material does continue to be available at the prosecution stage , once this information has come to the attention of the holder of this material the prosecutor should be informed that a warrant has been issued under LAW and that material of possible relevance to the case has been intercepted .

CARDINAL Section CARDINAL(CARDINAL)(b ) recognises that there may be cases where the prosecutor , having seen intercepted material under subsection ( DATE ) , will need to consult the trial Judge . Accordingly , it provides for the Judge to be given access to intercepted material , where there are exceptional circumstances making that disclosure essential in the interests of justice .

CARDINAL This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to him alone , under this subsection . This is an exceptional procedure ; normally , the prosecutor ’s functions under subsection ( DATE ) will not fall to be reviewed by the judge . To comply with section CARDINAL(l ) , any consideration given to , or exercise of , this power must be carried out without notice to the defence . The purpose of this power is to ensure that the trial is conducted fairly .

CARDINAL The judge may , having considered the intercepted material disclosed to him , direct the prosecution to make an admission of fact . The admission will be abstracted from the interception ; but , in accordance with the requirements of section CARDINAL(l ) , it must not reveal the fact of interception . This is likely to be a very unusual step . The LAW only allows it where the judge considers it essential in the interests of justice .

CARDINAL Nothing in these provisions allows intercepted material , or the fact of interception , to be disclosed to the defence . ”

In Attorney General ’s Reference No . DATE [ DATE ] ORG CARDINAL , ORG was asked for its interpretation of the prohibition in section CARDINAL(CARDINAL ) ORG . The reference arose from legal proceedings in a criminal case which took place before the entry into force of ORG when interception was regulated by ORG DATE ( “ LOC ) . Although the ORG had introduced regulation for interception of public telecommunications systems , interception of private telecommunications systems remained unregulated under the ORG regime and no warrant was required for such interception . The question asked centred on whether , and if so to what extent , a criminal court could investigate whether intercept material relied on by the prosecution had been obtained by intercepting a private , as opposed to a public , telecommunications system . During a criminal trial , the prosecution had sought to admit evidence arguing that interception had taken place on a private telecommunications system . The defence case was that the interception had taken place on a public telecommunications system and so the evidence was inadmissible . At the trial , the defence submitted that section CARDINAL RIPA prevented them from asserting that the interception had taken place on a public system , but did not prevent the prosecution from adducing evidence that it had taken place on a private system . The defence asked the judge under section CARDINAL PACE to exclude prosecution evidence that the interception had taken place on a private system , on the grounds that it would not be fair to admit that evidence and shut out the defence case to challenge that the interception had taken place on a private system . The judge acceded and as a result , the prosecution were obliged to offer no evidence and the defendants were acquitted .

Lord GPE of PERSON delivered the leading judgment in Attorney General ’s Reference No . DATE . He concluded :

“ CARDINAL . The inclusion in section PERSON ) of an offence under LAW ) of the LAW poses an obvious problem of interpretation given the very sweeping language in which section CARDINAL(CARDINAL ) is expressed . The requirement in section CARDINAL(CARDINAL)(a ) that the conduct must be by a person falling within subsection ( CARDINAL ) , and the listing in that subsection of persons and bodies involved in the warrantry regime , strongly suggest that the focus of the prohibition is , as in LAW , on that regime . It is also relevant to recall that interception of a private telecommunication system is only criminal under section CARDINAL ) if without lawful authority and section CARDINAL ) expressly provides that section CARDINAL(CARDINAL)(a ) shall not prohibit the disclosure of the contents of a communication if the interception of that communication was lawful by virtue of section CARDINAL or section CARDINAL . In other words , disclosure is not prohibited if the interception was lawfully authorised under those sections . It would be absurd to conclude that there could be no enquiry to establish whether the interception was lawfully authorised or not , and whether or not the interceptor ’s conduct was excluded from criminal liability under section CARDINAL(CARDINAL ) ... Given the obvious public interest in admitting probative evidence which satisfies the requirements of sections CARDINAL ) , CARDINAL and DATE , and the absence of any public interest in excluding it , I am satisfied that a court may properly enquire whether the interception was of a public or private system and , if the latter , whether the interception was lawful . If the court concludes that it was public , that is the end of the enquiry . If the court concludes that it was private but unlawful , that also will be the end of the enquiry . If it was private but lawful , the court may ( subject to any other argument there may be ) admit the evidence .

Lord PERSON of GPE , noting that the principal objective of LAW appeared to be to preserve the secrecy of the warrant system , considered that the warrant system would not be damaged where , for example , a challenge by the defendant to the assertion that the interception had been lawful under LAW CARDINAL(CARDINAL ) ( consent of both parties to the interception ) suggested that an offence had been committed under LAW ( see paragraph CARDINAL above ) . He considered that section PERSON ) permitted a challenge to the lawfulness of the interception by the defence .

Lord PERSON noted :

“ DATE . It is true , as Lord PERSON has pointed out , that the inclusion in section PERSON ) of an offence under LAW ) of the LAW creates a linguistic difficulty given the language in which section CARDINAL(CARDINAL ) is expressed . In my view , however , this point is decisively outweighed by a purposive interpretation of the statute . No explanation for resorting to purposive interpretation of a statute is necessary . One can confidently assume that ORG intends its legislation to be interpreted not in the way of a black letter lawyer , but in a meaningful and purposive way giving effect to the basic objectives of the legislation . So approached the answer to the central question is obvious : a court may enquire into the question whether tapping took place on a private system . ”

In R ( on the application of ORG ) v . The Governor of ORG and another [ CARDINAL ] SC CARDINAL , ORG applied Attorney General ’s Reference No . DATE , noting :

“ CARDINAL . In Attorney - General ’s Reference ( No . DATE ) ... the ORG , in view of the absurdity that would otherwise result , refused to give its literal interpretation to a statutory provision which , literally read , precluded the defence from asking questions to establish that there had been interception ( consequently illegal ) on part of a public telecommunications system , but allowed the prosecution to call evidence to the effect that the interceptions had taken place wholly within a police private telecommunications system ( and were therefore legal ) . The linguistic difficulty was ‘ decisively outweighed by a purposive interpretation of the statute’ ... ”

Section CARDINAL of LAW DATE ( “ the DATE LAW ) provides for the lodging of fresh evidence in the context of a criminal appeal :

“ ( CARDINAL ) For the purposes of an appeal under this Part of this Act the Court of Appeal may , if they think it necessary or expedient in the interests of justice—

( a ) order the production of any document , exhibit or other thing connected with the proceedings , the production of which appears to them necessary for the determination of the case ;

( b ) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the ORG , whether or not he was called in those proceedings ; and

( c ) receive any evidence which was not adduced in the proceedings from which the appeal lies . ”

Pursuant to section CARDINAL ) , the Court of Appeal shall , in considering whether to receive any evidence , have regard in particular to :

“ ( a ) whether the evidence appears to the ORG to be capable of belief ;

( b ) whether it appears to the ORG that the evidence may afford any ground for allowing the appeal ;

( c ) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal ; and

( d ) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings . ”

The Criminal Procedure Rules DATE applicable at the time of the appeal provided , at Rule CARDINAL :

“ ( CARDINAL ) Notice of an application by the appellant ... –

( a ) that a witness who would have been a compellable witness at the trial be ordered to attend for examination by the court ; or

( b ) that the evidence of a witness be received by the court ;

shall be in the form set out in the Practice Direction and shall be served on the Registrar ; save that where a notice of an application under sub - paragraph ( a ) or ( b ) is given together with a notice of appeal or notice of application for leave to appeal , it shall be served on the ORG officer .

( CARDINAL ) An application as aforesaid may be made to the court orally . ”

The Lord Chief Justice ’s ORG indicated that the relevant form which had to be completed in respect of an application for fresh evidence was “ Form W ” . The details to be included in Form W were the name and address of the appellant , the particulars of the witness , the evidence to be given by the witness together with a copy of the witness statement and an explanation of why the evidence was not given at trial .

Considering the operation of section CARDINAL of LAW in R v. ORG [ DATE ] ORG CARDINAL , Lord PERSON of PERSON noted :

There was no real issue between the parties to this appeal concerning the construction of section PERSON ) and ( CARDINAL ) . The term ‘ ORG is used to describe the formal act of admitting the evidence referred to before ORG . Deciding whether or not to receive the evidence is the first task the court must usually undertake when application is made that it should do so under section CARDINAL(CARDINAL)(c ) . In considering whether or not it should receive such evidence , usually called ‘ fresh evidence’ , the court must have regard in particular to the matters listed in ( CARDINAL)(a)(d ) . These are matters to which , as practice had developed over DATE , the courts had come to pay attention : see R v Parks [ DATE ] CARDINAL WLR CARDINAL at DATE . They are matters of obvious significance . When considering an application to receive the fresh evidence of a witness , the court will have before it a written statement of the evidence which the witness will give : see form CARDINAL , prescribed by rule CARDINAL of ORG DATE ( SI DATE No CARDINAL ) . If the statement does not appear to the court on reading it to be even capable of belief , there will be little purpose in proceeding further . The statement may be obvious nonsense . Similarly , if it does not appear to the court when it reads the statement that it might , even if fully accepted , afford any ground for allowing the appeal ( that is , for thinking that the conviction may be unsafe ) there will again be little point in proceeding further . It is obviously relevant to consider whether the fresh evidence would be admissible at the trial , although ORG has held that section CARDINAL(CARDINAL)(a ) is not limited to admissible evidence ( R v D and J [ DATE ] CARDINAL CrAppR CARDINAL ) . ORG will always pay close attention to the explanation advanced for failing to adduce the evidence at the trial , since it is the clear duty of a criminal defendant to advance any defence and call any evidence on which he wishes to rely at the trial . It is not permissible to keep any available defence or any available evidence in reserve for deployment in ORG . Thus the practice of the court is to require a full explanation of the reasons for not adducing the evidence at the trial ( R v PERSON [ DATE ] CrimLR CARDINAL ) . It is however clear that while the court must , when considering whether to receive fresh evidence , have regard in particular to the matters listed in section CARDINAL(CARDINAL)(a)-(d ) , and while in practice it is most unlikely to receive the evidence if the requirements of ( a ) , ( b ) and ( c ) are not met , the court has an overriding discretion to receive fresh evidence if it thinks it necessary or expedient in the interests of justice to do so . ”