Devon Francis’s convictions dating from 1993 on three counts of possessing a Class A drug with intent to supply and one of being concerned in the production of a controlled drug were overturned following an appeal on 10 September 2009, since the evidence of Detective Constable Breakwell and other members of the West Midland Drug Squad could no longer be regarded as reliable.
The Crown did not contest the appeal.
Mr Francis is represented by Maslen Merchant of Hadgkiss, Hughes & Beale Solicitors, 83 Alcester Rd Moseley, Birmingham B13 8EB.
This is not the only case in which convictions have been overturned because of the unreliability of DC Breakwell. Others are mentioned in the following judgment. It would appear that DC Breakwell may have been in the habit of planting incriminating evidence on suspects. However disciplinary charges against him were not pursued since he retired, suffering from ‘ill health’.
Neutral Citation Number:  EWCA Crim 2268; No: 200902348/B4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Thursday, 10th September 2009
B e f o r e : LORD JUSTICE ELIAS, MR JUSTICE SIMON, MR JUSTICE COULSON
R E G I N A v DEVON LLOYD FRANCIS
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
Mr P Wilcock appeared on behalf of the Appellant
J U D G M E N T (As Approved by the Court) Crown copyright©
LORD JUSTICE ELIAS: This is a reference to this court from the Criminal Cases Review Commission. It relates to the safety of four drug counts.
The basis of the appeal is that subsequent to the appellant’s conviction, one of the police officer who was a primary witness in the case and whose evidence was challenged at trial has been discredited as a witness of truth. It is submitted that it is in the interests of justice that this fresh evidence be admitted, under section 23 of the Criminal Justice Act and that once admitted, it is said that it compels the conclusion that these convictions are unsafe. The Crown does not oppose the appeal. We are fully satisfied that it is a plain case where the evidence should be admitted, the appeal should be upheld and the conviction should be quashed. We will set out the background and the circumstances relatively briefly.
The appellant was arrested in March 1991 and charged with four drugs offences, three counts of possessing a Class A drug with intent to supply and one of being concerned in the production of a controlled drug (“the 1991 counts”). He was due to be tried in October 1992 but that trial was aborted. He was released on bail. He was kept under observation by the police and was subsequently rearrested and charged with three further drugs offences (“the 1992 counts”) together with three other persons.
The appellant and these others were tried on a joint indictment containing all seven charges in May and June 1993. The jury failed to agree. In November 1993 there was a successful application for severance of the 1991 counts, that is the earlier ones, against the appellant alone. The trial of the 1992 counts took place in December 1993 and the appellant was convicted on all three counts. On 17th December 1993 he was retried with respect to the March 1991 counts and was convicted on all four counts. It is those convictions that are now in issue. He was sentenced on all seven counts in March 1994, to 15 years’ imprisonment on each of the 1992 offences concurrent with each other, and with the sentence of 8 years’ imprisonment imposed with respect to each of the 1991 counts.
The four counts under challenge, to a say little more about them, were these. First, possession of about 7.5 grams of cocaine with intent to supply, found in his underpants. Second, possession of almost 116 grams of cocaine recovered from premises in Havelock Road with intent to supply. Third, being concerned in the production of cocaine at the same premises. This was based principally on the facts that drugs production paraphernalia were found. Fourth, a charge relating to 15 grams of cocaine which had been recovered from a training shoe at the same premises.
The prosecution case is that the flat was clearly used to produce crack cocaine. The appellant had an obvious connection with it: he had the keys to the flat; a Giro of his was found at the premises as were gas and electricity and numerous other bills. It was said that his girlfriend had visited the block of flats during the afternoon of his arrest. The defence of the appellant, although the appellant himself did not give evidence, was that the police had wrongfully considered him to be a drug dealer. They had stopped and searched him but found no drugs on an earlier occasion. On that occasion Detective Constable Breakwell had threatened he would plant drugs on the appellant if the circumstances should arise in the future. He had made an official complaint about that.
At all times he alleged that the drugs allegedly found in his underpants had in fact been planted on him by Detective Constable Breakwell. He said he knew the occupant of Havelock Road, he was a friend, but he had nothing to do with the criminal activities. He also alleged that the police had placed the flat keys on the ring of his own keys in order to implicate him. He denied that his girlfriend had gone to the flat. Havelock Road was in fact occupied by someone who was originally his co-defendant, who pleaded guilty to offences of being concerned in the production of controlled drug and possessing cocaine with intent to supply.
A key witness in the prosecution was Detective Constable Breakwell. In March 1996, that is after this conviction, he together with other of officers of the West Midland Drugs Squad were investigated in an operation known as Operation Gunter. The allegations included theft of money following raids on suspects’ houses, theft of drugs, planting of drugs, perjury, misuse of informants and theft of police property. Some of the allegations were in fact made by fellow officers.
Detective Constable Breakwell faced at least ten disciplinary charges. He was acquitted of one. The other nine were not pursued due to his ill health and he then retired from the force. Since then he has in a number of cases been treated as an unreliable witness. In May 1996, in R v Southall, no evidence was offered in a case in which he was a prosecution witness. This case was referred to in the reported case of R v Whelan, which involves an allegation that Detective Constable Breakwell had planted a bag of herbal cannabis in the loft of a house he was searching.
In that case the prosecutor on appeal conceded that the Crown would not have relied upon these officers had their alleged misconduct been known at the time of trial. The court noted that that was a perfectly proper stance. He was also treated as unreliable in the later case of R v Fraser  EWCA Crim 3180. Again, it was said that he had planted drugs in order to sustain convictions against the appellant. The court noted that it would be impossible in the circumstances to be satisfied that the convictions were safe. Auld LJ said this:
“It is sufficient to say that his conduct in other suspected drug cases has become the subject of a number of disciplinary investigations and the alleged irregularities were such as to persuade the Crown Prosecution Service that it would be wrong to proceed with a number of trials and to contest appeals in cases in which he had been an investigating officer …”
As we have said, the question is whether it is now in the interest of justice to receive this evidence relating discreditable activities and whether it may afford a ground of appeal. We have no doubt that we ought to admit the evidence and the convictions cannot possibly be considered safe. It is plain that Dr Breakwell’s evidence was crucial in this case as regards the first count and it was always the appellant’s contention that the officer had planted drugs on him. We are also satisfied and the Crown concedes, that it is not possible to separate that count from the others in the circumstances. The cocaine found on his person linked him to the drugs found at the property. It was really the Detective Constable’s evidence that was therefore crucial in establishing his involvement in the matters covered by counts 2, 3 and 4. Further, the jury were asked to consider the matter broadly. It is plainly their view on the one count would be likely to have some influence with their analysis of the evidence as a whole. Accordingly, for these reasons we are satisfied that the evidence should be admitted. The convictions are not safe and they must be quashed.
There are certain potential difficulties with regard to the effect of quashing these convictions on the sentence imposed on the appellant in 2007. That may seem rather odd given the 15 year sentence latterly imposed in respect of the 1992 counts. It is not necessary for us at this stage to indicate how that appeal may now be pursued. We mention it for two purposes. One is to explain that this is why the Commission has brought this appeal. It is not simply an academic appeal but does potentially have some practical significance, and secondly, we are asked to indicate that we think that the appeal in relation to the sentence should be expedited. We are sympathetic to that, but as yet we have seen no notice of appeal, but if and when it comes it will be proper to indicate that we had indicated here that it would be desirable for it to be expedited.