MOJUK: Newsletter ‘Inside Out’ No 59

No Justice in the UK, is there Justice in Strasbourg?

When video and audio surveillance don't work a good old fashioned 'cell confession' will!

I’m Richard Roy Allan, born in 1965 and presently detained in HMP Frankland.

On 3 February 1995, Mr David Beesley, store manager, was-shot dead in the manager's office of a Kwik-Save supermarket in Greater Manchester.

On 18 February 1995, myself and another man, by the name of Leroy Grant, were arrested on suspicion of having committed a late-evening robbery at the "Late Saver" shop, Cheadle. At the time, we were in possession of an 8mm Beretta replica handgun. Charged in connection with this offence, Leroy admitted to the offence and several other late night shop robberies. I denied involvement in any of the offences. On or about 20 February 1995, an anonymous informant told the police that I had been involved in the murder of David Beesley.

On 20 February 1995, myself and Leroy appeared in custody at the Stockport Magistrates' Court and were further remanded in custody to re-appear on 23 February 1995. On 20 February 1995, Detective Chief Inspector Dunn requested permission for the cell and the visiting areas used by myself and Leroy to be bugged with audio and video technology, alleging that all regular methods of investigation to identify David Beesley's murderer had failed. The Chief Constable of the Greater Manchester Police granted authority on the same day for an unlimited period for both the police stations at Stockport and Cheadle Hulme. On 13 March 1995, similar authority was sought and obtained for such equipment to be placed in Stretford Police Station where I was then held.

During this time, visits to myself by a female friend, were recorded by audiotape and on video in the prison visiting area between 12 to 28 March 1995. Myself and Leroy were held for long periods in the same cell and recordings taken of our conversations from 20 February to 12 March 1995.

On 23 March 1995, H. was brought to Stretford Police Station. H. was a long-standing police informant with a criminal record who was arrested on 21 March 1995 for unrelated offences. He was placed in my cell for the purpose of eliciting information from me.

H. had every incentive to inform on me. Telephone conversations between H. and the police included comments by the police instructing H. to "push him for what you can" and disclosed evidence of asserted police coaching. After 20 April 1995, he associated regularly with me at Strangeways prison.

On 28 June 1995, I was taken from the prison to be interviewed by the police concerning the Kwik-Save robbery. I was attended and advised by my solicitor. During the course of the interview, I was invited to comment on the recordings made in February and March 1995. I made no comment to any question. I was interrogated at length by the police in an attempt to "rattle" me, such that I would be more talkative and vulnerable to H. upon my return to the prison. H. had been fitted with recording devices. The recording thereby obtained was adduced in evidence at my trial.

I was interviewed again with my solicitor present on 29 June and 26 July 1995 and remained silent to the allegations.

On 25 July 1995, H. made a 59 page witness statement, detailing his conversations with myself and was released on bail on 4 August 1995. His sentence was postponed until after he had given evidence at my trial. The high point of H.'s evidence was the assertion that I had admitted my presence at the murder scene. This asserted admission was not part of the recorded interview and I disputed it. The thrust of my case was that I was discussing robberies and did not accede to H.'s efforts to channel the conversation into a discussion of the murder. The audio and video recordings (or transcripts thereof) were utilised in the trial of myself. No evidence, other than the alleged admissions by H, connected myself with the killing of Mr Beesley.

In January 1998, I was tried on one count of murder and a count of conspiracy to rob before a jury.

During the trial, my counsel challenged the admissibility of extracts from covert tape and video recordings of conversations of the myself with Leroy Grant and my girlfriend, under sections 76 and 78 of the Police and Criminal Evidence Act 1984 ("PACE").

The judge concluded that there was evidence on the tapes from which the jury could infer that I was involved in the events of 3 February 1995, and it was not so unreliable that it could not be left to the jury to assess for themselves. The judge also rejected the my counsel's arguments under sections 76 and 78 of PACE that the evidence from H. was obtained by oppression or by such impropriety as to render it inadmissible. He considered that the use of an informant to talk and listen to myself over a substantial period of time did not result in any unfairness to me.

The fact that H. might be considered as having much to gain in giving evidence was also a matter to be left to the jury in their assessment of the reliability of his evidence. The evidence was accordingly admitted before the jury. The judge's ruling on the admissibility of the evidence was given on 26 January 1998, after a voire dire and consisted of a judgment of 18 pages.

In his summing up to the jury on 10 and 11 February 1998, the trial judge gave directions on the way in which the jury should assess the reliability of the disputed evidence. He told them that they were to judge whether the police had deliberately wound me up during the interview on 28 June 1995 and how to approach the evidence of H.:

The judge also directed the jury concerning the possible drawing of inferences from the my silence in the police interview on 28 June, 29 June and 26 July 1995, pursuant to section 34 of the Criminal Justice and Public Order Act 1994. He reminded the jury that the defence had contended that my silence had been adopted on legal advice because of the view that oppressive interrogation techniques were being used:

On 17 February 1998, after the jury had deliberated for a total of twenty one and a half hours, I was convicted of murder before the Crown Court at Manchester by a 10-2 majority and sentenced to life imprisonment.

I lodged a notice of appeal, asserting, inter alia, that the judge ought to have excluded evidence of the audiotape and videotape recordings of my conversations with Leroy Grant and my girlfriend and the evidence of H. I also argued that the judge had erred in his directions as to the circumstances in which the jury could draw inferences from my failure to respond to police questions in interviews of 28 and 29 June, when the police strategy was to "spook" myself into a state of garmlousness when I was returned to prison, where I had a conversation with H.

On 31 July 1998,I was refused leave to appeal against this conviction by a single judge. My renewed application was refused by the Court of Appeal (Criminal Division) on 18 January 1999. In the court's judgment of that date, Lord Justice Rose found that the trial judge gave a very careful and impeccable ruling as regards the admissibility of the tapes and evidence of H. and that he had considered all the matters which he should have considered and had not considered any matter which he ought not to have considered. There was no basis for holding that the exercise of his discretion had been so flawed that the Court of Appeal should intervene. In so far as my complaint that the judge should have warned the jury not to take into account my failure to answer police questioning in the light of the police strategy to "spook" me. Lord Justice Rose found that the judge had given an entirely appropriate direction to the jury in the circumstances of the case.

So having reached the end of the legal road in the UK, I applied to the European Court of Human Rights to hear my case. below is a breakdown of my complaint and the relevant law.

B. Relevant UK domestic law and practice

The Home Office Guidelines

Guidelines on the use of equipment in police surveillance operations (The Home Office guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application.

They provide, inter alia:

"In each case, the authorising officer should satisfy himself that the following criteria are met:

the investigation concerns serious crime;

normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried;

there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;

use of equipment must be operationally feasible.

In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is. commensurate with the seriousness of the offence."

The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings.

The Police Act 1997

The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1998.

Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 ("RIP A"). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.

The Police and Criminal Evidence Act 1984

Section 76 provides: '

(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession that might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession, notwithstanding that it might be true, was no obtained as aforesaid."

Section 78(1) provides as follows:

"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."

Complaints under the European Convention on Human Rights

Richard Roy Allan, complains of violations of Article 8 of the Convention as regards the use of audio and visual devices within his cell and the prison visiting areas, and upon H. to record conversations between the applicant and his co-defendant, Mr Grant, H. and his woman friend respectively.

Richard Roy Allan, alleges that there is no effective remedy in domestic law for the said violations of Article 8 of the Convention as required by Article 13.

e also complains of violations of Article 6 of the Convention as regards:

- the use cf the foregoing recordings as evidence in the trial proceedings;

- the use of a fellow prisoner (H.) planted within the applicant's cell to' question the applicant and thereafter as a witness in the proceedings;

- the fitting of H. with recording equipment on one of the days he held conversations with the applicant; and - the inadequate direction of the judge to the jury by which he told them that they could draw inferences from his silence to police questioning.

The Law: European Court of Human Rights

Richard Roy Allan, complains of the use of covert audio and video surveillance within his cell, the prison visiting area and upon a fellow prisoner and of the use of materials gained by these means at his criminal trial. He invokes:

Article 8 of the Convention:

"1. Everyone has the right to respect for his private ... life,...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ..."

Article 13 of the Convention:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

Article 6 of the Convention:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." .

These are the findings of the European Court of Human Rights on the admissabillity of my complaint.

The UK Government accept that the measures taken in bugging my cell and the prison visiting area and placing devices on the applicant's cell-mate H. constituted an interference with his right to respect for private life and that these measures were not at that time "in accords" with the law" as required by Article 8 of the Convention. They also conceded that I did not have an effective remedy in domestic law for these matters as required by Article 13 of the Convention.

As regards my complaints under Article 6 however, the Government submit, relying on the case of Khan v. the United Kingdom (no. 35394/97 [Section 3] ECHR 2000-V), that the admission at trial of recorded evidence obtained secretly by the police under the Guidelines did not violate this provision. The surveillance had been lawful in domestic terms, there was no reason to suppose that the tapes were not an accurate reflection what was said, they had not been obtained under any form of pressure and that I had an opportunity under domestic law to challenge their use. Furthermore, the tapes were not the only evidence against myself and the jury were made fully aware of any possible deficiencies in this evidence. Concerning the testimony of H., the Government point out that questions of admissibility of evidence are for domestic courts. Issues of H.'s credibility and reliability '." fully argued and explained to the jury which was in a good position to determine Whether any findings of fact could be drawn from his statements. My counsel had been able to cross-examine H. There was accordingly no unfairness contrary to Article 6 &sect 1 in the use of this evidence at trial.

I noted the Government's concessions under Articles 8 and 13 of the Convention limited to issues of lawfulness. However, I dispute that the bugging of a my cell for five weeks was necessary in a democratic society, particularly after they knew that I had realised that my cell was being bugged.

As regards the use of the evidence from the surveillance, at trial, I submitted that the remarks recorded on tape were not an accurate reflection of the Kwik-Save murder, referring to discrepancies with regard to what in fact happened. The tapes were also used in the police interviews to unsettle myself and set me up for adverse inferences in the event that I exercised my right to silence. The police used H. not as an inanimate listening post but as a means of conducting surreptitious interrogation, circumventing the protections for a suspect who has availed himself of legal advice and exercised the right to silence. My conviction was based_substantially, if not decisively, on the evidence of H. who was a persistent criminal under threat of sentencing which would depend on his role in the applicant's trial. This was in all the circumstances unfair and oppressive.

The European Court has examined my complaints and the submissions of the Home office and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. The court also says that the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 & sect 3 of the Convention. No other grounds for declaring it inadmissible have been established.

My complaint that the judge's direction to the jury concerning my right to silence deprived me of a fair trial contrary to Article 6 & sect 1 of the Convention, was thrown out as being out of time.

I don't know when my case is going to be heard my brief does not keep me informed the way he should do. The person who was handling my case has left the firm the barrister who brought my case has also left to become a judge.

I am absolutely gutted of this as I do not have a clue who will represent me in Strasbourg, when my case is heard. A phone call/letter from my solicitors would be nice but it never comes. Considering the severity of my case and the admission of guilt by the Home Office, you would think they would get a move on.

With out a shadow of doubt I am innocent but days roll by endlessly and being 'Inside and Innocent' is no compensation for being 'Outside and Innocent'.

Richard Roy Allan

MC 1731

HMP Frankland

Brasside

DH1 5YD

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"We cannot aspire to opportunities to progress when access is denied by the prison psychology dept."

I was interested to read MOJUK's info the press article written by Nigel Morris. The concluding paragraph stated that the prison service failed to get 5,000 sex offenders through treatment programmes.

' I had a pre-tariff Parole hearing last year and both they and the Cat "A' Team recommend that I repeat the Sex Offenders Treatment Programme (SOTP) in order to achieve downgrading and thus begin to progress through the system. More than a year after my Pre-Tariff Parole Hearing I was assessed by the prison psychologist here at Full Sutton regarding my suitability for the course, so I was shocked to be told by this prison psychologist who also stated that I repeat the SOTP course that I was not suitable! The basis for this seems to pivot on the fact that I committed the offence under the influence of a spiked drink and have maintained for almost 20 years that I suffered memory impairment and this was consequently underlined by an independent psychologist 2 years ago in his report. In fact he stated that it was fruitless to try and retrieve a memory when one was not logged in the first place. On the last SOTP I was fed things I was not convicted of to 'assist my memory' and this resulted in a successful Judicial Review, as the SOTP course had resulted in the prison tampering with my index offence!! The course tutors had the gall to state that I had not made sufficient progress!

Prisoners were encouraged to reinact their offences in those days and this sent many prisoners over the edge. I understand now that they have abandoned the reinactment stage as part of the SOTP course. Perhaps more as a result of prison staff complaining they were traumatised by being present during the grisly aspects of the course, and I believe that compensation was awarded to some staff for trauma suffered at that time. I was just one prisoner that self harmed under the influences of the way the course was run in those days. The psychologists led me to believe that if I went along with their creative suggestions in relation to my offence I would 'make progress'. It was a ploy that backfired on them when my legal action proved successful.

Now years later I am told that whilst not being deemed suitable for the repeat SOTP  despite the recommendations of the Cat 'A' Team, The Parole Board, and the prison psychologist (remember), I am to be reassessed again in 2 years time, when I will be over my tariff. I hope that the prison psychologist can furnish myself, the relevant bodies who recommended I repeat this course, and my legal team with the medical evidence on which their assessment was based which assumes that my memory will have rectified itself in 2 years time. In the meantime I am in a Limbo situation, caught between the Home Office recommendations of what I should do to progress and the prison psychology dept here at Full Sutton who are in contradiction with each other, leaving me in the middle. After 20 years I am being treated just the same as a prisoner who has sat back for 20 years and done nothing as I have remained static in my Cat 'A' status, yet I have shown willing to partake and do the courses. Nothing I have done has made any difference, and I and many Cat 'A' prisoners face the prospect of dying in jail if what we do leaves us in the same unchanged position.

I fear that at my next Parole Hearing the issue of me not meeting their own specified requirements will raise its head and I and not the Prison Service will be blamed. As for the Cat 'A'  situation, well I heard from them last night that I am to remain Cat 'A' due to 'not having made sufficient progress on courses I have done, completed and passed' plus not done the repeat SOTP which is presently being denied to me by a prison psychologist who recommended that I do it. Work out the logic if you can!

So spot the difference in the real prison picture. In prison you can do the courses and pass, or choose not to do the courses, or the courses are denied you when the Home Office says you should do them, but for some of us it makes no difference what’s so ever. The point I want to make is don't blame the prisoners. We cannot aspire to opportunities to progress when access is denied by the prison psychology dept. Ironically the Cat 'A' Team has stated in writing that it is not essential to do Offending Behaviour Programmes in order to have ones' security category downgraded. It's rather like the Parole Board stating that maintaining innocence is not a bar to release. The reality is very different.'

Yours Faithfully,

Full Sutton Prisoner

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Conditions in jails 'close to breaching Human Rights Act'

Nigel Morris, The Independent, 08 August 2002

Overcrowding and squalid conditions in jails may be breaching prisoners' human rights, the chief inspector of prisons believes.

Anne Owers criticised ministers for packing offenders into cramped and crowded prisons without tackling the issues that led them to break the law in the first place.She said the rapid rise in the prison population, now standing at a record 72,000, could leave the Prison Service open to a legal challenge alleging that inmates suffer "inhuman and degrading" treatment.

"My feeling, and that of many governors, is that we are much nearer to breaches of the Human Rights Act than a year ago. It is something the Government should alert the Prison Service to," she said in an interview with this week's New Statesman magazine.

"We're getting closer to a situation where human rights becomes a critical issue. Because of overcrowding, there could now be cases which cause serious human rights concerns."

She said: "When there are so many people coming into prison, you can't risk-assess whether they are dangerous to themselves or others. I saw one cell recently shared by a man with a permanent catheter and a young prisoner who was self-harming. That is degrading."

Ms Owers, the former director of the human rights group Justice, said: "We lock up 23,000 more people than if we were any other European country, yet 50 per cent of men are reconvicted in two years and 70 per cent of young adults. Can we please see what we need to put in its place? There is this sense overcrowding is driving the agenda."

The Prison Service also set a target for reducing the number of assaults on prisoners, but there were 6,684 recorded incidents in 2001-02, 10 per cent higher than the stated aim.