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10 July 2000

A very British judicial inquiry

Why did Customs mess up the biggest British drugs prosecution ever? And why isn't anyone being hung

By Nick Cohen

Almost exactly a year ago, Operation Stealer, acclaimed as “the most successful drugs bust in British criminal history”, ended in ruin. An enormous sum, £50m, had been wasted. All the suspects were cleared. Negligence was found throughout the criminal justice system. Mr Justice Turner issued a condemnatory verdict against the forces of law and order that couldn’t be ignored, even in these hard times. Customs officers investigating the smuggling of drugs worth £65m had commissioned “a crime which is as socially corrosive and destructive as the importation of a massive quantity of high-purity cocaine”, he declared. The abuse of state power was so grave that the defendants must leave his court unpunished – although “there was abundant evidence to justify prosecution and, on one view, conviction”.

The covering up of illegal buggings of the suspects in central London hotels could not, for once, be blamed on those ever- popular scapegoats – a few rotten apples. Turner found a “scandalous” failure at the highest levels of the Customs Service. To make matters far, far worse, a member of the judiciary – Judge John Foley – and the Customs barrister – Michael Brompton – agreed to the exclusion of evidence needed by defence lawyers to argue the case for the accused. “There has been serious misleading of all the defence teams not only by Customs & Excise, but also by the Crown Prosecution team (or at least individual members of it) and even the trial judge. Whether the last named became involved wittingly or unwittingly may be for decision [later].”

Turner’s conclusions were sensational in their sweep. Clearly, there had to be an inquiry. The Attorney General told Judge Gerald Butler QC to inquire away.

Butler’s report has been published. It shows the official world at its best and worst. Butler lays out the facts with an admirable care and undoubted honesty that you would be hard-pressed to find in the public servants of many countries. Yet whenever the narrative presents him with the choice of drawing a harsh or soft inference against those in authority, he opts for the comforting alternative. Few apple carts (rotten or otherwise) are upset. It’s all very English.

“Butler called in Customs and Foley and prosecution lawyers, and asked them if they’d been naughty boys,” said Keith Dyson, a defence solicitor. “They said ‘no’, and he patted them on the head. He never interviewed me or the other defence lawyers. An opportunity to prevent miscarriages of justice has been missed.”

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To understand Dyson’s despair, you must understand the history of Operation Stealer. It was a disaster.

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On the night of 10 January 1995, 100 Customs officers raided a catamaran, the Frugal, as it lay off the Sussex coast. The boat was owned by Louis Dobbels, a convicted trafficker. There were no drugs on board. The officers kept searching, and at dawn got very lucky when they saw 309kg of cocaine and four passports bearing Dobbels’s features abandoned on a beach. The suspects had scarpered, but the detectives were convinced that they could nab the Mr Bigs: Brian Doran and Kenneth Togher, Dobbels’s alleged partners. Both had been watched for two years. Doran was spied checking into the Lanesborough Hotel in Victoria, under a false name, for meetings with Togher and Madeleine Mullen, Togher’s wife. When Doran popped out, Customs popped in and found great wads of cash and faxes detailing a trip to Panama in his room.

According to the newspapers, “everyone knew” that Doran and Togher were up to their necks in the booming drugs market; indeed, they were later to plead guilty to planning to import cocaine from Madrid. Doran was a linguist and former teacher who, inevitably, was nicknamed “the Professor”. He entertained like a prince in his native Glasgow, exiled himself to Spain, bought an eight-bedroom mansion in Marbella, put his six children through private school and had the thrill of seeing his daughter become a girlfriend of Shirley Bassey’s stepson and gain the associated social standing.

For all the appearance of Costa-del-Crime careers, a niggling problem with British law remained. It was not enough for “everyone to know” they were guilty. They were innocent until found guilty beyond reasonable doubt. And when the accusations about the Frugal‘s cargo came to court, the case against Togher, Doran and their associates looked far from overwhelming.

Much of it was of the “he says-she says” sort. Customs said that Togher had the map co-ordinates for a drugs drop in the Caribbean in his personal organiser. Togher said that Customs officers had typed them in. Customs said that Doran was travelling under an alias because he was cutting a deal with Dobbels. Doran said he had illicit business interests in Colombia that were nothing to do with drugs, and that he had assumed a false identity to protect himself.

Now, in normal circumstances, no sane person would prefer the word of spivs to the sworn testimony of Customs officers. But nothing about this case was normal.

It opened on 9 May 1996, and was stopped after a Customs officer introduced evidence tying the defendants to Dobbels that the prosecution lawyers knew nothing about.

After Judge Foley called the second trial to order, a superficially trivial issue obsessed the defence. Customs had bugged Doran, Togher and their associates when they stayed in three hotels. They got juicy gossip – there was a tape of a prominent Glasgow “heavy” masturbating while he had phone sex with a rent boy – but little that supported the charges against Doran and the rest.

The defence lawyers didn’t care. If the Customs’ word was to be taken as gospel, could the defence check if the spying was legal? Was it authorised in accordance with Home Office procedure? If so, could they please see the paperwork? Britain being the way it is, the demands on Customs were light. The agents needed only an authorisation – a “Category C form” – signed by a senior officer and written permission from the hotel managers to bug their guests.

Judge Foley refused to allow the defence to see the records – it was not in the “public interest” to do so. However, he cooed his assurances that everything was fine. He had had a private meeting with Michael Brompton from the prosecution, he told the court, and was “satisfied that appropriate authorisation within the Home Office guidelines was granted by the appropriate officers within Customs & Excise” for the surveillance in two hotels. As for the consent of the hotel managers, he had been “shown letters from all three hotels, and to make any sense of those letters, in my view, it means it will be obvious that authorisation was given by the hotels”. Brompton was as firm. “Your honour has seen the documents. The documents show that consent was properly granted and that nothing unlawful has occurred.”

The defendants were convicted and received sentences of up to 25 years. But Foley bungled his summing up, and the Court of Appeal said there must be a third trial. The case, whose cost to the public purse was getting close to the value of the drugs seized, was sent to Bristol Crown Court to be heard by Mr Justice Turner.

Despite the guarantees of Customs, Brompton and Foley, the appalled Turner found that there were no legal authorisations for the bugging. One form contained all the signatures required. Alas, it was a copy, not an original. In the case of two of the hotels, the Category C forms had not been signed by a senior officer. There was no form – signed or unsigned, original or copy – approving the bugging of the third. As for letters from hotel managers agreeing to the insertion of listening devices, they didn’t exist. There were merely letters from Customs thanking the hotels for their assistance.

Turner read Foley’s claims that the law had been obeyed with amazement. “It may be stretching the limits of credulity to accept that no prosecuting lawyer” intervened to rectify “the striking and uncorrected inaccuracy of the judge’s pronouncement. It demonstrates, at first reading, a degree of incompetence . . . that is hard to comprehend.”

Customs officers, as officers of the law, have an absolute duty to uphold the law. Brompton, as a prosecutor, has an absolute duty to tell the truth in court and to allow the defence to see evidence that may help their clients. Foley, as a judge, has an absolute duty to make sure that he investigates scrupulously before agreeing to the hiding of evidence.Yet here was a case where, according to Turner, “scandalous” and “incompetent” behaviour had produced “the undoubted commission of a crime”.

Butler doesn’t contradict Turner. He doesn’t deny that illegal bugging took place or that the court wasn’t told the truth. Rather, he finds that no one can be blamed for these regrettable mistakes.

Judge Foley wasn’t at fault. He was “misled”, says Butler. Should Brompton be blamed for misleading the judge? Not at all, retorts Butler, who deals with the prosecutor like a New Age stress counsellor empathising with a victim. The case was “difficult, complex and demanding; the burden placed upon Mr Brompton was considerable”. The prosecutor’s errors weren’t made “dishonestly or deceitfully”. Were, then, the Customs officers who Turner doubted had “complied with the obligation of honesty and integrity” at fault? Did they mislead Brompton? Certainly not, says Butler. “I have further concluded that it was never the intention of the investigators deliberately to mislead the court.” In other words, the business was a cock-up in which everyone thought they were behaving properly. Butler recommends that procedures should be tightened and suggests that Customs could lose the right to mount its own prosecutions. No reprimands or punishments are called for. No crimes were committed.

I’m sure he’s right on the last point at least. Turner said he didn’t believe that there was a criminal conspiracy to pervert justice. Yet when teachers fail, David Blunkett doesn’t need to prove that they’re criminals before naming and shaming, merely that a failure has occurred.

It may sound vindictive to wonder whether Butler should have been harsher. But there are reasons – beyond the huge waste of public funds – to be strict. I’m not asking you to feel sympathy for Togher and Doran – I don’t feel much myself. I will remind you that at the root of most miscarriages of justice is the failure to disclose evidence that can clear the accused. Successive governments have made it harder for defence lawyers to force the production of information. Good lawyers say that Lord Irvine’s slashing of legal aid will mean they will no longer be able to afford to bang their heads against the brick wall of state secrecy until a crack appears. The conviction of the innocent grows more likely by the month. Prosecutors and judges now know that, on the rare occasions when suppression of evidence is exposed, they will probably escape without a blemish to their reputation.

Butler’s only flash of anger comes when he discusses the reaction of defence lawyers to Foley’s insistence that he has seen the authorisations and must accept his word that Customs had obeyed the law. Doran’s counsel, David Lovell-Pank, replied: “I do not give a fig what you have seen. We have not been allowed to test it. Are you sure you have not been shown a forgery? Are you sure you have not been shown a letter that has been backdated? Are you sure about anything?”

In the light of the subsequent scandal, Lovell-Pank’s questions were prescient. But Butler criticises this “blazing” speech and praises Foley’s “judicial restraint” in refusing to respond. Insubordination is forbidden, even when it is a justifiable warning against the abuse of the courts. As our legal protections are chiselled away, perhaps we should, in turn, become a little angry – and frightened.