Police misconduct doesn’t always mean that accused walks free

28 July 2011 by

R v Maxwell [2010] UKSC 48 – read judgment

This case concerned the question of what should happen to a conviction when it turns out that it is based on pre-trial malpractice by the police (this time involving evidence from a “supergrass”), where there is nevertheless other strong evidence of the defendant’s guilt. If the pre-trial irregularity is sufficiently serious materially to affect the trial but not to render the conviction unsafe, should the Court of Appeal retain the power to order a retrial? Or should the conviction should be quashed?

In this case the appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. His evidence was crucial to the arrest and prosecution of the appellant.

It emerged that  the police had conspired to pervert the course of justice in concealing and lying about a variety of rewards and benefits received by Chapman. It was revealed, for example, that the police had paid him sums of money, taken him to brothels, allowed him to consume drugs in their company and not investigated allegations that he had committed violent attacks.

On 25 November 2008 the Criminal Cases Review Commission made a reference to the Criminal Division of the Court of Appeal on the ground that the convictions in the appellant’s case had been procured by gross prosecutorial misconduct on the part of the police. On 1 December 2009, the Court of Appeal quashed the convictions of the appellant and his brother, but only after the appellant had made a series of admissions of guilt freely and voluntarily to various persons.

Judgment in this case was handed down in November last year but the Supreme Court withheld its reasoning until the completion of the appellant’s retrial. On 16 June 2011, in Leeds Crown Court Paul Maxwell pleaded guilty.

The following report is based on the Supreme Court summary:

The issue in this appeal was whether the Court of Appeal was right to order a retrial in respect of the appellant. The circumstances in which a court may order a retrial are set out in section 7(1) of the Criminal Appeal Act 1968,  which provides:

Where the Court of Appeal allows an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.

The court held that had the findings of the CCRC relating to gross police misconduct had been revealed during the trial, the trial judge might have stayed the prosecution as an abuse of process or applied section 78 of the Police and Criminal Evidence Act 1984 to exclude Chapman’s evidence altogether, in which case the appellant and his brother would have been acquitted. However, the court also held that the admissions made by the appellant between 1998 and 2004 constituted clear and compelling evidence of his guilt. In light of this the Court of Appeal found that it was in the interests of justice to order a retrial of the appellant.

The Supreme Court dismissed the appeal by a majority of 3:2., Lords Brown and Collins dissenting.

The Court’s reasoning 

By section 7 of the Criminal Appeal Act 1968, Parliament has given the Criminal Division of the Court of Appeal the power to order a retrial where, having regard to all the circumstances of the particular case, in its view the interests of justice so require. The “interests of justice” is not a hard-edged concept. Rather, it requires an exercise of judgment in which a number of relevant factors have to be balanced against each other. A decision of the Court of Appeal as to whether the interests of justice require a retrial should only be upset on appeal if it was plainly wrong in the sense that it is one which no reasonable court could have made or if the court took into account immaterial factors or failed to take into account material factors: [18]-[19]. The majority of cases under section 7 of the 1968 Act do not involve any issue of prosecutorial misconduct. Indeed, no case was cited where the court had to consider the relevance of prosecutorial misconduct in the original proceedings to the question of whether the interests of justice require a retrial. Usually, under section 7 the court will consider the gravity of the offence, the length of time the appellant is likely to serve in custody if reconvicted, the appellant’s age and health, and the wishes of the victim of the alleged offence: [20].

Where prosecutorial misconduct is involved the Court of Appeal may treat the case as to some extent analogous to an application to stay proceedings as an abuse of process where it offends the court’s sense of justice and propriety to try the accused. However, the tests for when the court should stay proceedings for abuse of process and when it should order a retrial are not coterminous. The question of whether the interests of justice require a retrial is broader than the considerations involved in an application for a stay: [21], [44].

It is common ground that the prosecution’s case at a retrial would not be based on any evidence which was the product of the misconduct. However, the new evidence constitutes admissions made by the appellant which would not have been made but for the original misconduct which led to his conviction. The Court of Appeal was right to consider that the “but for” factor was no more than a relevant factor and that it was not determinative of the question whether a retrial was required in the interests of justice. In deciding whether to order a retrial, there were several relevant factors which had to be weighed in the   balance. The balancing act is fact-sensitive and ultimately requires an exercise of judgment. The Court of Appeal carried out the balancing exercise precisely and with great care. They held that there were strong reasons for not ordering a retrial given the egregious misconduct by the police. However, they concluded that the public interest in convicting those guilty of murder prevailed on the facts of this case. In particular this was because of the gravity of the alleged offence and the existence of new and compelling evidence untainted by the police misconduct. The fact that a differently constituted Court of Appeal might have come to a different conclusion is not material.

Accordingly, the decision of the Court of Appeal was not plainly wrong and its judgment should not be interfered with: [23]-[38], [45]-[47], [50]-[60].

Lord Brown, with whom Lord Collins agreed, would have allowed the appeal. They would have held that since the appellant would not have made the admissions but for the prosecutorial misconduct and in light of the enormity of the police misconduct, it is inappropriate that the case should be retried on new evidence: [102]-[105].


As the various judgments indicate, the power of a criminal court to stay proceedings as an abuse of process in order to safeguard an accused person from injustice and oppression has long been recognised. The landmark case was the decision of the House of Lords in R v Horseferry Road Magistrates’ Court Ex p Bennett [1994] 1 AC 42, where the appellant was unlawfully brought to this country as a result of collusion between the South African and British police and on arrival here arrested and brought before magistrates to be committed for trial. There was no doubt that the individual in that case was going to be able to receive a fair trial. However the difference between Bennett  and the present case lies simply in the fact that the impropriety came to light before he was tried and proceedings were stayed after his successful application for judicial review. But Maxwell was not an abuse of process case but one concerning the power of the court to order a retrial on finding that the original trial had been tainted by prosecutorial misconduct. So the distinction between the two cases may be said to be one of retrospectivity; because the appellant’s trial went ahead, and he consequently voluntarily confessed his guilt,  the chain of causation between the police impropriety and his subsequent conviction was broken.

This is also a very different set of facts to those which concerning the campaigners in the Ratcliffe appeal. The police misconduct there was capable of amounting to entrapment and the failure to reveal details about this to the defence led to the acquittal. In an entrapment case, the police act is one which leads directly to the commission of the alleged crime itself. Such a scenario was considered by the House of Lords in R v Looseley [2001] 1 WLR 2060 which decided that to lure, incite or pressurise a defendant into committing a crime which he would not otherwise have committed would be unfair and an abuse of process.

It is admittedly to draw a bright line between these categories of cases.  The Privy Council grappled with this question in  Warren v Attorney General of Jersey  [2011] UKPC 10, an abuse of process case in which the facts were similar to those in Maxwell. Police tracking the defendants for drug offences had used an audio device prohibited under Jersey law. But for this unlawful misconduct of the police, the prosecution in that case could not have succeeded and there would have been no trial. The Board had the benefit of the (not yet publicised) reasoning in the Maxwell judgment and there was general agreement that in abduction and entrapment cases, the court will generally conclude that the balance favours a stay, and their Lordships agreed with the Supreme Court majority in Maxwell that the “but for” test should not be determinative as to whether a stay should be granted on grounds of abuse of process. Indeed  However, Lord Brown, explaining his reasoning in Maxwell, points out that his use of the “but for” test differed in an important respect from that of the majority:

the defendant in Maxwell, but for the police’s misconduct, would never have made the confessions that were to form the basis of his retrial; it was accordingly the misconduct itself which induced Maxwell to act to his detriment. By contrast the misconduct here [in the Jersey drugs prosecution] had no effect whatever upon the appellants’ conduct. The present case is a “but for” case only in the sense that, but for the unlawfully obtained evidence, the appellants would not have been prosecuted or convicted: the Crown would not have had sufficient evidence. [Warren , 76]

Without going as far as to say that the “fruit of the poison tree” is invariably inadmissible, Lord Brown  was clearly of the view that Maxwell was on all fours with the wrongful extradition and entrapment cases and that the same “but for” test applied – because “but for the prosecutorial misconduct which initially secured the appellant’s conviction and then ensured the failure of his appeal, he would never have made the series of admissions upon the basis of which it is now sought to prosecute him afresh” (para 102).

In Maxwell itself Lord Brown noted that a “critical consideration” was that if a trial were to go ahead and a conviction secured upon the admissions made by the appellant,

those responsible for corrupting the original process would still be seen thereby to have achieved their ends and in the long term to have engineered the appellant’s conviction. … The court should be astute to avoid giving the impression that it is prepared, even in this limited way, to condone such unforgivable executive misconduct as occurred here.

But this posits a public whose sensitivities regarding the machinery of justice border on the paranoid. Only  a conspiracy theorist would jump to the conclusion that, by ordering a retrial in circumstances such as these, where a voluntary confession of guilt has been made in respect of the commission of a very serious crime, the court had in mind some sort of endorsement of police misconduct.

The only justification in other words for refusing a retrial on the grounds of the misconduct in such a case “would be to mark the court’s disapproval of that historical misconduct and to discipline the police. But that is not the function of the criminal courts.” (per Lord Dyson, para 24) . The role of the criminal courts is not the same as that of the Criminal Cases Review Commission; they are not there to reprimand the police by acquitting the accused “pour decourager les autres”; in such a scenario it is not the police who are punished but the public which is endangered by the release of a technically guilty criminal; as Lord Dyson put it –

the question of whether the interests of justice required a retrial of this appellant should  [not] depend on the fortuity of whether the offending police officers were disciplined and/or prosecuted for their appalling misconduct.

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