Defendant appealing – Whether judge erring in admitting surveillance evidence at trial
R v Turner: Court of Appeal, Criminal Division: 8 May 2013
The defendant and the deceased had been in a short but turbulent relationship that had been steadily deteriorating. The defendant's violent reaction to the deterioration of the relationship had been well established through text messages, voicemails and physical violence he had inflicted upon the deceased. On 6 May 2011, the defendant and deceased spent the evening and night together with friends.
In the early hours of 7 May, the deceased and the defendant left together to go to his family home. They were arguing. Later that same morning, the ambulance service were called by the defendant's mother and attended the defendant's address. The deceased was found lying on a bed with two pillows under her neck. She was dead at the scene. A postmortem was carried out and a pathologist concluded that the deceased had possibly died as a result of asphyxiation involving neck compression. The physical findings recorded by the pathologist were reviewed. The findings were consistent with pressure being applied to the neck of the deceased by manual application or forearm pressure, and the absence of any marks indicative of a struggle suggested that her ability to resist had been limited in some way.
The defendant was arrested and made no comment during interview. A pillow case found at the scene appeared to be a 'face mask' of the deceased and later DNA testing matched the deceased's saliva in the 'mouth area' of the mask. Mucus from the deceased had also been found in the shirt worn by the defendant that evening. However, the postmortem evidence did not conclusively exclude the possibility that the deceased had died from natural causes. On 17 May 2011, authorisation was given and approved for the use of intrusive surveillance in the defendant's home. It was valid for three months. During that time, the defendant made significant admissions of his responsibility for the death of the deceased.
The surveillance also revealed strong evidence that the defendant and his parents had been conspiring together to pervert the course of justice (see - of the judgment). At the trial, the covert surveillance evidence was admitted by the judge despite resistance from the defence, who contended that the indictment should be stayed as an abuse of process arising from the use of intrusive covert surveillance. The defendant was subsequently convicted of the murder of the deceased. The defendant's attitude to the deceased after he had killed her demonstrated that he had not had the slightest glimmer of remorse for what he had done or its impact on the deceased and those who loved and knew her. No credit had been appropriate for a guilty plea. He was sentenced to life imprisonment with a minimum term of 16 years. He appealed against conviction and sentence.
In respect of the conviction, the defendant contended that the judge had been wrong in admitting the surveillance evidence. The prosecution should have been stopped as an abuse of process. Alternatively, the evidence derived from the surveillance had been unfairly admitted in evidence when it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 (the 1984 act). In respect of the sentence, the defendant contended that there had been no justifiable basis for departing from the statutory starting point of 15 years as a minimum term. The appeals would be dismissed.
(1) If covert surveillance was likely to result in the acquisition of knowledge and matters subject to legal privilege, the appropriate authorisations or approval could not be made unless there were exceptional and compelling circumstances justifying it. Although it was permissible for covert surveillance to be authorised even if the result might involve the acquisition of legally privileged matters, the risk should be recognised, and so far as possible removed entirely.
Unless the risk could be entirely removed, it was necessary for steps to be taken and for the application to explain the steps which would be taken to ensure that any such information would not be used, either for the purposes of further investigations or during the course of any subsequent criminal trials. It was clear that arrangements for covert surveillance had to focus meticulous attention on a need to preserve legal privilege, and where, for one reason or another, the relevant precautions had failed, to ensure that the interests of the potential defendant during the course of the investigation itself, or at any other subsequent trial, were not prejudiced in consequence (see ,  of the judgment).
In the present case, the lawfulness of the approval to surveillance granted could not be impugned. The surveillance had been lawful. The relevant disclosure had taken place. The record of incriminating conversations had been unchallenged. There might be extreme cases in which the prosecuting authorities might interfere so significantly with the legal privilege of a defendant that the very integrity of the administration of justice might be undermined. That, however, had not happened in the present case. Lawful covert surveillance had produced damaging evidence against the defendant. The process had worked lawfully. There had been no grounds to justify a stay (see  of the judgment).
(2) None of the evidence of the conversation between the defendant and his family adduced in evidence had been tainted by unfairness falling within section 78 of the 1984 act. The only unfairness had been that the defendant had chosen to say the things that he had because he had not realised that they were being recorded. The object of covert surveillance of the kind deployed in the present case was to discover the truth, and, the evidence of what the defendant had said about the death of the deceased had been before the jury whilst anything containing even a whisper of conversations protected by legal privilege had been excluded. That had not been unfair (see  of the judgment).
(3) There was no basis for criticism of the judge in sentencing. The judge had reflected on all the relevant issues. With the starting point clearly in mind, she had carefully considered all the relevant features bearing on her decision. At the end of a trial in which she had had ample evidence from the defendant's own mouth, both in the form of texts, and in the form of conversations during the covert surveillance, and in his evidence at trial, to assess the defendant's criminality and his attitude to the crime he had committed. No basis for interfering with her decision had been shown (see - of the judgment).
Anthony Donne QC and Justin Gau (instructed by D'Angibau Solicitors, Poole) for the defendant; Timothy Mousley QC and Simon Jones (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown.