Participating sources

Simon McKay, of McKay Law Solicitors and Advocates, examines the minefield of participating sources later prosecuted for offences.

The case of R v Delroy Denton (2002) is a salutary tale of some of the unique problems a covert human intelligence source can cause, not just in terms of participation in criminality but also the relationship with handlers and disclosure in related criminal proceedings.
The details of the case make disturbing reading. Denton was in the country illegally and had been involved in serious violent offending in Jamaica, his country of origin. He was originally arrested for drug-related offences and possessing an offensive weapon. He had exceeded the terms of his visa and been using a false name. He agreed to act as a police informer and subsequently supplied the police with intelligence about the activities of ‘Yardie’ gangs operating in London. He was engaged in what the Court of Appeal later described as “a very dangerous game”. In 1994 he was arrested for and charged with rape. He was reporting back to handlers with valuable and important intelligence. In February 1995, the rape charge was dropped.
In April 1995, a woman called Marcia Lewes was found dead, the victim of serious sexual assault and extensive stab wounds. Denton was arrested and charged with her murder. However by November 1995 these proceedings had been discontinued. Considerable concern was aroused by the victim’s family who later brought civil proceedings against the Metropolitan Police Service (MPS). Denton was then re-arrested and charged again with the murder.
Prior to the murder Denton had informed against a man called Graham. He was the uncle of a prosecution witness in the case against Denton. Neither the defence nor prosecution disclosed the fact that Denton had been an informer, although there was evidence that at least one member of the press had discovered the fact during the trial as had members of the public. Denton was convicted, the case against him described by the court as “overwhelming”. He appealed.

Considerable concern
The Court of Appeal raised considerable concern about the facts, expressing that it was difficult to resist the view that Denton had been allowed to prolong his stay in the UK because of his usefulness as an informer and this was a disturbing feature of the case. However, it was equally difficult not to conclude that the prosecution witness concerned may have had a motive for lying in evidence because of Denton’s role as an informer against her relative. Despite this, there could not be any obligation on the Crown to disclose a fact that is already known to the defendant himself or seeking a ruling from a judge on the issue.
It was unlikely the police were concerned about disclosure being made by Denton to his legal team, although the Court of Appeal raised concerns about the level of satisfaction of the police evidence on this issue. Even if the officers had told Denton not to disclose the fact he was an informer, he was not bound to do so. In the final analysis, while there was a lost opportunity for Denton’s legal team to cross-examine Graham’s relative, to do so would have meant his own character would go in. In any event the witness had been largely discredited.
There are a couple of practical points that came out of the judgment. Firstly, the Court of Appeal stated that once it became obvious that rumours abounded that Denton was an informer, and that certain prosecution witnesses were aware of this, the matter ought to have been drawn to the attention of the judge and probably the defence.
Secondly, handlers need to ensure they protect themselves from allegations by a source that certain advice has been given to him or her by officers. In this case there was no unassailable record of the conversations between police officers and Denton and the officers were vulnerable under cross-examination as a result. Where any meetings take place between handlers and sources the importance of good record keeping is obvi