The Law, practice and developmet of supergrass evidence in England
The First Supergrass
In 1973 Bertie Smalls made legal history. He was a leading member of a gang of London bank robbers. Following his arrest he offered to help the police by naming his accomplices in return for his liberty. The Director of Public Prosecutions subsequently gave him a written assurance of immunity from prosecution and Smalls gave evidence for the prosecution in no less than three trials resulting in 16 convictions. The press provided the label ‘supergrass’ and it stuck. There is no particular definition for determining when a ‘grass’ becomes a ‘supergrass’. The only difference in reality is that a supergrass will be responsible for putting a number of defendants in the dock by providing information from the inside by admitting to involvement in crime and testifying against his former associates.
One of the defendants in the Smalls trials appealed. It was contended that the Courts should not admit evidence of accomplices who could still be influenced by continuing inducements. The Court rejected this but said that the police themselves should never give immunity and the DPP should only do so sparingly; R v Turner (1975) Cr. App. R 67. In reality the Court was expressing its preference for those turning Queen’s Evidence to first of all plead guilty, thus reducing the obvious risks in relying on such evidence. As will be seen, things have changed.
The Dangers of ‘Grasses’
Arguably the supergrass is the most unreliable of all the categories of informer. Tackling supergrass evidence is never easy as fact and fiction are often interwoven in a series of so-called “de-briefing interviews” taken by the police, where the informant is expected to reveal the totality of his criminal history right back to childhood. This purging process is simply a kind of insurance policy enabling the Crown so say to the jury; ‘this man is a criminal, but he is honest now about all of his wrong-doing, and that means you can believe him when he tells you about the present case’. The more the supergrass reveals the more material there is to attack or use in cross-examination. In this de-brief material defendants can discover the shocking truth that the man they regarded as a long-time friend had a past which they never had any inkling of, for example a series of sex offences or a history of past informing.
Wherever the truth lies, the informer knows he has committed himself once the debrief process is underway; the Rubicon is well and truly crossed. It becomes imperative to ensure that those he will put in the dock are convicted – he becomes a man with a motive, not least because in such cases the sentencing of the supergrass does not happen until after the defendants in the dock have had their trial. If they are acquitted then that could affect the Judge’s view of him. On the other hand, a successful prosecution is bound to lead to a very significant discount in the sentence. Thus, in any supergrass trial, the credibility of the informant will be the principal issue for both sides and the witness can be expected to face very critical and hostile cross-examination.
The defence need ammunition for the attack. To that end the defence should be demanding, at the earliest possible stage, disclosure of formal records of the authorities’ dealings with the supergrass. If the supergrass is himself in prison then it may be possible to include in this category of disclosure his prison records as that material can assist the defence, e.g. in showing visits from police officers etc, see R v McCartney, Hamlett & Ors, (unrep.) [2003] EWCA Crim 1372.
In a drugs supergrass case in Leeds that the authors of this article were defending in, the extent of this type of disclosure was found by the trial Judge to include transcripts of the telephone calls made by the supergrass from prison. This in turn showed remarks made by the supergrass suggesting police involvement in special visiting arrangements and even a proposed temporary prison leave. Evidence like this of potential inducement or reward can provide powerful cross-examination material, or even a platform for an argument to exclude the supergrass evidence. In that case the Crown, failed to ensure certain recorded prison telephone calls were kept, and then had little choice but to offer no evidence against our client as the Judge had ruled large parts of the supergrasses’ evidence inadmissible.
In another notorious murder case at the Old Bailey involving one of the authors the telephone records demonstrated that the informant, during his debriefing interviews, would on occasion telephone the lead investigation officer. This led to an almost irresistible inference on the facts of that case that what he said on tape was influenced by what the police wanted to hear – his evidence was excluded which was a principal factor in the case being subsequently dropped by the prosecution.
It is important to remind the prosecution at the earliest possible stage that they have a duty to retain this sort of material; i.e. details about the life of the supergrass from the moment of his arrest to date. As a supergrass trial will almost certainly be all about the credibility of the supergrass himself the defence must be pro-active in seeking as much information about the man as possible. For instance has he informed before, how was he rated then; i.e. reliable or unreliable? What is his prison disciplinary record, what do his prison Security Information Reports show, what prison visits has he had, what telephone calls etc etc? De-briefing notes, first accounts, meetings with officers etc are all disclosable but often need to be asked for.
The Serious Organised Crime and Police Act 2005
Sections 71 – 74 of SOCPA 2005 came into force on 1/4/06. These provisions, for the first time enabled ‘specified prosecutors’ to offer immunity from prosecution to certain offenders in return for assistance (s71) and enables prosecutors to agree to limit the use of statements given by informants – i.e. immunity (s72). The Act also enables significant reductions in sentences to be agreed in advance when informants enter into written agreements to assist the prosecution – this will usually mean giving evidence (s73). In the past informers admitting their own role in a case would normally be sentenced after giving evidence against their accomplices. Under the new arrangements in the Act the informant can be sentenced in advance but the prosecution can bring the informer back to Court for a ‘review’ of his sentence if he “knowingly fails…to give assistance” (s74), e.g. he gets his reduction then changes his evidence at trial.
R v P; R v Blackburn [2008] 2 Cr. App. R (S) 5 was two joined appeals; it remains the leading case on sentence reduction for those assisting the prosecution. One of these cases related to information given by a prisoner serving a 17 year sentence for drugs offences who gave assistance in a notorious un-connected murder allegation. One of the authors of this article acted for a defendant in that murder case – in that case the allegations of the supergrass were being challenged.
The supergrasses’ sentence for the drugs related matter had already been reduced by the Court of Appeal to 15 years after he initially provided information. This was under the old rules. SOCPA then came into force and the informant entered into a formal written agreement with the prosecution – that enabled him to have his sentence ‘reviewed’ by the Crown Court. As a result of his witness statements in the murder case his sentence was massively reduced – to 5 years.
Subsequently, not only was everyone in the murder case acquitted (the prosecution had to drop the case following disclosure problems in relation to a supergrass witness) it transpired during very lengthy legal argument that a senior investigator had, at the outset, given a potential supergrass a significant “head start” – i.e. indicating what he wanted to hear from potential witness. These cases show that where the stakes are high – with massive reductions available – so too the risks of injustice increase exponentially. In R v Hyde [2013] NICA 8, a Northern Ireland terrorist related case the Court of Appeal considered a SOCPA informant deserved a reduction of around 75%. This is especially so where the informant has exposed himself to considerable personal risk.
Covert Human Intelligence Sources
Article 8 of the European Convention on Human Rights guarantees an individual’s right to privacy. The State can only infringe this guaranteed right – e.g. by listening to your conversations, following you etc, if it is for a reason prescribed in Article 8(2), e.g. “for the prevention of disorder or crime” and then only if the interference is ‘proportionate’ and “in accordance with the law”. This last part (lawfulness) has landed the UK in trouble in Strasbourg, especially in the 1980s and 1990s. The result was the Regulation of Investigatory Powers Act 2000 (RIPA). Under RIPA the different types of surveillance are labelled as either ‘directed’, ‘intrusive’ or ‘covert human intelligence source’ (CHIS). There is a Covert Surveillance Code of Practice which sets out the rules and procedures for authorisation of each type of covert surveillance.
A CHIS is defined as a person who establishes or maintains a personal relationship with a person for the covert purpose of using the relationship with a person or covertly disclosing information obtained by the use of such a relationship or as a consequence of such a relationship; i.e. an informant. This clearly includes under-cover officers but may also include the use of civilian informants.
The use of a civilian CHIS comes with all sorts of problems – not the least the real danger of entrapment by an offender who knows he has to do something to land a bigger fish to get himself off the hook for other matters.
In one case the authors were involved in Reading the client’s specific instructions were that a named individual planted some incriminating evidence at an address where he was arrested. This was reflected in the Defence Case Statement and the prosecution were forced to produce a witness statement from the named person admitting that in fact he was a police informant.
In R v Thorne (1978) 16 Cr. App. R 6 the Court of Appeal found that even though evidence given by an accomplice is not supported or corroborated by other evidence a jury may convict, provided that the trial Judge gives them an adequate warning as to the dangers of doing so. In practice most Judges in supergrass cases are likely to give some kind of warning to the jury, especially if it can be plainly shown that the witness will receive, or has received, a benefit by giving evidence; Chan- Wai-Keung v R [1995] 2 Cr. App. R 194, PC. It is this use of strong jury warnings that kept the supergrass trials systems alive; see also R v Gibson [2006] EWCA Crim 1.
Supergrass cases can be the most difficult for both prosecutors and defenders alike. Defenders especially must work hard to test the veracity of the debriefing process and the history of the informant. The work has to start at the very outset; if experience has taught us anything it is that the efforts made at the early stages which often produce results further down the line – the Bertie Smalls of this world are here to stay.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence case at 33 Chancery Lane Chambers, London. He is a contributing author to Covert Human Intelligence Sources, (2008 Waterside Press) and has extensive experience in all aspects of the Proceeds of Crime Act 2002. He is ranked in both Legal 500 and Chambers & Partners.
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli have been ranked by Legal 500 as an 'excellent' firm with Aziz Rahman being described as 'first class and very experienced'. The firm is also ranked in Chambers & Partners.
