Calum jones trial

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In the present case, on the judge's findings, one could not sensibly say that the offences charged were "offences that have in substance been artificially created by the misconduct of those whose duty it is to uphold the law".

He concluded, on an overall assessment of the evidence, that it had not been established that the conduct of the police crossed the boundary between causing an offence to be committed and providing an opportunity for the appellants to commit an offence. Nor were the actings of the police so seriously improper that to allow the appellants to stand trial would constitute an affront to public conscience and compromise the integrity of the justice system.

He therefore refused their pleas in bar of trial. In reaching that conclusion, the judge applied the correct test; and, on the evidence, his conclusion is one that he was entitled to reach. Hiscox UK, and by putting them into a state of fear and alarm and apprehension that [the] painting would not be returned to them or would be damaged or destroyed if they did not pay to you a sum of money". It is libelled that, in pursuance of the conspiracy, the accused took various steps relative to the return of the painting in exchange for at least two million pounds.

The first step is said to have occurred on 30 July, when all five accused met at the offices of Boyds and discussed and agreed the means of carrying out the extortion. Thereafter, Mr Ronald took the lead and, on 10 August, contacted Mark Dalrymple, a loss adjuster acting for the insurers. He told him that he could arrange for the return the painting within 72 hours. Undercover police then became involved and Mr Ronald negotiated with them for the return of the painting.

A written agreement was drafted. On 3 and 4 of October, Mr Graham and Mr Doyle collected the painting and delivered it to the offices of Boyds, where all five accused are said to have reset the painting.

There is an alternative charge of attempted extortion based upon a similar libel. By 22 December, certain Minutes giving notice of Preliminary Issues had been lodged. It was decided that these could be dealt with during the first week of the trial diet. In respect of the appellants, their Minutes state that they wish to raise Devolution Issues relative to Pleas in Bar of Trial "on the basis that it would be oppressive for proceedings to be continued against" them. The Minutes narrate, inter alia , that the undercover police "actively encouraged" the appellants to engage in the activities now forming the criminal libel.

It is averred that "it would be oppressive and unfair for the proceedings to be continued against" the appellants and that the proceedings are incompatible with articles 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms.

On 30 April, the Trial Judge repelled the pleas, but granted leave to appeal. The appeal was heard over two days on 25 and 26 August From the outline chronology provided by the Trial Judge and his other findings and "discussion", the following narrative can be constructed. In this regard, there was no substantial dispute about most of the Judge's primary findings in fact; although an earlier determination had permitted transcription of the whole of the evidence adduced before him.

The inferences drawn by the Trial Judge from the primary facts were, on the other hand, vigorously challenged. Messrs Graham and Doyle had known Mr Ronald for some time.

He had acted as their solicitor. Mr Jones and Mr Boyce are solicitors in Scotland. Messrs Graham and Doyle claimed to have information about the painting from "J" and "Frank". On 30 July , a meeting involving all five accused took place at Boyds' offices. Mr Jones, who gave evidence at the hearing, had been instructed to attend by his senior partner, Mr Boyce, because some drafting might have been required.

Mr Boyce had certain materials, which had been sent to him by Mr Ronald, notably: "Heads of Agreement"; a PowerPoint presentation entitled "The Art Repatriation Project"; and a lecture entitled "The law and practice of rewards to recover stolen art", coincidentally delivered by Mr Dalrymple. The Trial Judge records Mr Jones' evidence of what occurred at the meeting, which he accepted, as follows:.

The repatriation of the painting was conditional upon the negotiation of a reward. The Heads of Agreement narrate that the painting had been stolen from the original thieves as part and parcel of a failed property transaction; that the second thieves wished to repatriate the painting and had asked the accused Graham and the accused Doyle to assist then; and that both the accused Graham and the accused Doyle had experience of repatriating stolen property.

The Heads of Agreement also record that the protection of the parties from investigation by the authorities was central to the safe transmission of the painting from the custody of the second set of thieves to the custody of the solicitors. At the meeting it was explained that the accused Ronald, the accused Graham and the accused Doyle were looking for advice that the project outlined would be legal in Scotland. Nor had it ever been suggested that they should receive any share of a reward paid".

It was made clear by Mr Boyce that he did not want to know the identity of the persons with whom Messrs Graham and Doyle were in touch. The balance of the reward above that figure was to be split into five shares. Interestingly, neither Mr Boyce nor Mr Jones made a file note of the meeting; but the meeting had been secretly recorded by the others.

It was Mr Jones' position in evidence that he had not considered that what was involved might be illegal, but the Trial Judge was not convinced of that. He states:. He explained in some detail why he reached that view.

But, so far as the proposed transaction is concerned, he observes:. He proposed a meeting at the offices of Boyds, part of his legal team, to "negotiate the successful and speedy return of this precious artwork though an informal mediation type process". Mr Dalrymple contacted the police and then withdrew from the situation. Two undercover policemen became involved with Mr Ronald.

These were David Restor, who claimed to be an art expert, and John Craig, who claimed to be a loss adjuster. Their general instructions were contained in a Report Book which gives guidance to undercover officers and includes the following:. Police Officers are entitled to use the tool of infiltration of groups or organisations. In such a case it is proper for the undercover officer to show interest in, and enthusiasm for proposals made even though they are unlawful, but, in so doing, they must try to tread the difficult line between showing the necessary interest and enthusiasm to keep their cover and pursue their investigation and actually becoming an agent provocateur.

Invariably this means you enter a criminal conspiracy or become part of a pre-arranged criminal offence. Police Officers must bear in mind that the court will scrutinise carefully the role of the Officer in undercover operations and take into account the circumstances in which evidence was obtained. The principle of fairness will be applied by the court. Police Officers must be conversant with Article 6 the right to fair trial and Article 8 the right to respect for private and family life of the European Convention on Human Rights".

Any such arrest would be ancillary to the main objective. As soon as they heard of the contact between Mr Ronald and Mr Dalrymple, the police were suspicious of the actings of Mr Ronald and those he purported to represent. The Trial Judge also accepted that the undercover police, who were under the supervision of senior officers, acted in good faith throughout the events which then followed. He accepted too that, but for the use of undercover techniques, it is unlikely that the painting would have been recovered.

He regarded the use of such techniques as "both sensible, from an operational point of view, and proportionate" para [98]. Mr Ronald told him that he was dealing with "volatile" people. He said that he had not approached the police as he had no instructions to do so and thought that this might not be helpful. This ended Mr Restor's involvement. Over several weeks, Mr Ronald negotiated the terms of the return of the painting with Mr Craig.

Mr Craig pretended to be authorised to act for the Duke of Buccleuch. The place of delivery at Boyds' offices had been suggested by Mr Ronald. Mr Ronald also raised the side issue of his "legal expenses".

This extraordinary document is in the following, amongst other, terms:. II Marshalls have been given access to a work of art the 'Picture' that is believed to be the Painting; and. IV The Intermediary has agreed to pay the legal costs and expenses of Marshalls Solicitors in facilitating the return of the Painting which shall be agreed in a side letter.

For the avoidance of doubt, the individuals undertaking the task of moving the Picture to the agreed location will be deemed to be acting under and in terms of this Agreement to facilitate the safe repatriation of the Painting and the Intermediary acknowledges that they are acting as his servants or agents at that point in time.

In the event that the Facilitators' agents are intercepted by the law enforcement authorities and the Picture is removed from the control of the Facilitators' agents and subsequently discovered to be the Painting, the Completion will be deemed to have taken place and the Funds will be released to the control of Marshalls. Mr Ronald had arranged that. This level of sum had been mentioned in earlier negotiations with a man called Brown. Further calls two days later included references to Mr Doyle being "flaky".

The contract had not been signed. That was the only time that Mr Craig actually met any of the accused prior to the ultimate gathering at Boyds' offices on 4 October Mr Graham stated that he would only be involved if "we're doing it all proper".

Mr Craig re-assured him that it was "above board", meaning that what was being done was in accordance with the contract, which he said had been delivered to Boyds and the Duke's solicitors. This assurance was what Mr Ronald had wanted him to give. Mr Graham was worried about being followed after he was given the painting.

He suggested that he might take it to the nearest police station, but Mr Craig said that he did not want him to do that. He said that he would explain why this was so, but Mr Graham had talked across him and the conversation had moved on. He had said it because he knew Mr Ronald did not want the police involved. Mr Craig accepted that Mr Graham could have taken it that he was being re-assured by Mr Craig about the legality of what was to happen.

Subject of course to the discussions that had taken place earlier as to the level of the reward that would be payable, those contractual arrangements were presented to John Craig and accepted by him. They describe a transaction which would have been lawful in Scotland if a the accused Ronald and his clients, the accused Graham and the accused Doyle had not engaged in any criminal activity, when acquiring information about or taking possession of the stolen painting, or seeking and negotiating a reward, and b John Craig had been duly authorised by the Duke of Buccleuch to negotiate and arrange for the payment of the reward.

Leaving to one side the position as between the Duke of Buccleuch and the insurers, which would have been for them to resolve, as far as the law of Scotland is concerned, there would have been nothing unlawful involved in the Duke of Buccleuch as the owner of the stolen painting or on behalf of all the owners of the painting paying, and the accused Ronald taking receipt of, a reward of the sum specified in the contract. The provisions of the Theft Act have no application in Scotland".

He gave these items to Mr Graham. Mr Graham gave them to "J" at an unnamed pub. From the latter case, the Judge derived certain principles as follows:. Where there has been an abuse of executive power amounting to an affront to the public conscience then criminal proceedings will be stayed. A prosecution founded upon entrapment would be an abuse of the court's process. State-created crime is unacceptable and improper.

Undertaking that balancing exercise involves a comprehensive review of the whole operation in which the agents of the state became involved with the accused.

When dealing with a plea in bar of trial on the ground of entrapment, the Court must assume that the accused has carried out the criminal conduct alleged against him and that he did so freely and with the necessary intent. Depending on the evidence led, the Court could conclude that some but not all of those being prosecuted on the same indictment had been entrapped. When the onus is discharged by an individual accused the plea in bar of trial on his behalf falls to be sustained.

The relative weight and importance of relevant factors depends upon the particular facts of the case, including the accused's own circumstances. The use of pro-active undercover techniques by the police is required in the investigation of some categories of criminal activity more than with others. The secrecy of and the difficulty in detecting the particular criminal activity under investigation are relevant considerations. So also is the question of whether the strategy adopted by the police, or undercover agents, involved their acting in a manner that might be encountered by those engaged in the course of criminal activity.

However the extent to which that approach may be helpful depends on whether members of the public are liable to have found themselves in the situation in which undercover agents were operating. The police must act in good faith. Reasonable suspicion on the part of the police that a crime has been committed, or may be about to be committed, is one way of testing for the existence of good faith. Supervision involves that the investigation is authorised and that undercover agents are monitored by a supervising officer.

If an officially authorised investigation is taking place or has previously taken place into offences of a similar nature, then good faith can be established, even if an individual accused is someone to whom no personal suspicion had previously been attached.

He rejected the submission that, prior to 4 October , there were no grounds for suspecting criminality on the part of Mr Jones at Boyds given the terms of the letter of 11 August, the nature of the contract and the place of delivery. The Trial Judge held that. In so holding, he stressed that the contract governing the return of the painting had been drawn up by Mr Jones and Mr Ronald. Mr Craig had simply accepted its terms. Thus, reasoned the Trial Judge, the information attributed to Mr Craig, which is alleged to have caused Mr Jones to allow the painting into his offices on 4 October, originated from what he and Mr Ronald had written in the contract.

The Trial Judge was not persuaded that the evidence demonstrated any more than that Mr Jones was deceived into thinking that Mr Craig was a loss adjuster representing the Duke of Buccleuch, who had discussed with Mr Ronald the arrangements for the return of the stolen painting. Mr Craig had simply gone along with what Mr Ronald and Mr Jones wanted to him to do in the terms of the contract. The Trial Judge continues:. In my opinion it has not been proved that John Craig incited the accused Jones to act in a manner that he would not otherwise have agreed to act, after he agreed to assist the accused Ronald in the project in which the accused Graham and the accused Doyle were also involved.

As far as the meeting at Euston Station is concerned there was no suggestion in the evidence that the accused Jones had been told anything about what happened during that meeting prior to 4 October. Whether what the accused Jones did constituted actings from which a jury would be entitled to conclude that he committed the charges he faces is not a matter for me.

Likewise whether such a conclusion should be drawn, from what the accused Jones did, is another issue that it is not for me to decide". Since the police had encouraged and allowed the painting to be taken to Boyds' offices on 4 October, when they knew that Mr Graham and Mr Doyle would not be acting as the agents of the owner, Mr Jones had been drawn into the commission of the crime of reset, which was a crime he would not otherwise have committed. Therefore, it was submitted, the plea in bar of the whole indictment still required to be sustained in the absence of the Crown amending that part of the indictment to exclude Mr Jones.

But the Trial Judge rejected this submission, again on the basis that he was not persuaded that Mr Craig or the police did any more that provide Mr Jones with the opportunity of committing the offences, including that of reset. Thus, the Trial Judge concludes:. In these circumstances I repel the plea in bar of trial on his behalf and refuse the Minutes lodged in his name".

His colleague Mr Graham had done so. It is necessary to consider some of the observations made by the Trial Judge on Mr Graham's evidence before looking specifically at his findings on Mr Doyle's Minute.

He accepted that Mr Craig had lied during the meeting in the Euston pub and had misled Mr Graham not only about his being a loss adjuster acting on behalf of the Duke of Buccleuch, but also about a number of matters he claimed to have done in that capacity. The Trial Judge expresses "serious reservations" about the credibility of some of the evidence given by the Mr Graham, especially in relation to his assertion that he would only have proceeded with the project if he had had legal advice that it was lawful to do so.

But he did reach the conclusion that what Mr Craig said during the Euston meeting went further than merely reassuring Mr Graham that Mr Craig was who he claimed to be. Rather, what he had said "was calculated to have encouraged the accused Graham, and others to whom he might report, to remain involved in the venture" para [].

On the other hand, he also accepted that had Mr Craig not been authorised to proceed as he did, it might have led to Mr Ronald becoming suspicious and, had that happened, the whole operation to recover the stolen painting might have been imperilled para [ ]. The Trial Judge concluded that, but for Mr Craig's actions at the meeting, "it is possible that one or both of the accused Graham and the accused Doyle would not have been prepared to proceed with the venture in the manner and on the dates that they did" para [] , but "in the absence of any evidence from the accused Ronald or the accused Doyle, I am not prepared to reach any firmer conclusion".

He continues:. On the assumption that the accused Doyle committed the offences of which he was charged, I am satisfied that he did so by taking advantage of the opportunity presented by John Craig about which he was informed. If prior to 3 October and 4 October , the accused Doyle received a report on the meeting at Euston Station from the accused Graham and listened to the recording of that meeting at Euston Station, I accepted that what he understood John Craig to have said was calculated to have encouraged him and may have encouraged him to remain involved in the venture of returning the stolen painting to Scotland.

On those issues, I am not persuaded that he has discharged the onus of proof which is on him. In these circumstances, I have reached the view that the position of the accused Doyle in respect of his Minute is no stronger than that of the accused Graham.

In these circumstances, I repel the plea in bar of trial on his behalf and refuse the Minute in his name". It was not a substantive defence R v Looseley supra , Lord Nicholls at para It assumes that the accused did the act with the necessary intent, but the commission is brought about by the state's own agents. Fairness was relevant but not determinative. It could be that one accused should be prosecuted but another not. The court is concerned with the conduct of the police rather than the accused and whether the decision to prosecute amounts to an abuse of executive power R v Looseley supra , Lord Hoffman at para The Crown had alleged conspiracy in advance of the undercover police operation, but it was only after that police involvement that this appellant became involved.

The reset of the painting was committed at the instance of the police. The appellant had said that the painting could not be lawfully possessed without the owner's authority. Mr Craig had said that he had been authorised by the owner to appoint the others as the owner's agents and the appellant had relied upon that assurance. The police had done more than provide the appellant with an opportunity to commit a crime, they had instigated the offence R v Looseley supra , Lord Hutton at para , especially by offering a sum of money well in advance of what would have been offered by a real loss adjuster.

The police had caused the appellant to commit an offence which he would otherwise not have committed R v Looseley supra , Lord Hoffman at para 81 , notably the reset. As long as that libel remained against the appellant, the trial should be barred. It was accepted that, without that libel, the appellant could not advance the current argument. Next Post. Contact us for a free initial consultation Name.

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