Makin, R v

Material must be disclosed where it assists a defendant to present a tenable case in the best possible light, or could lead to further enquiries that might establish innocence or prevent a miscarriage of justice. If disclosable material attracts public interest immunity, the prosecution must seek the judge’s ruling.

A concern about a prosecution witness does not require disclosure before a guilty plea where it neither undermines the prosecution case nor assists the pleaded defence. In the absence of a disclosure duty or another proper ground, a freely entered guilty plea should not be vacated.

The respondent pleaded guilty in the Crown Court at Newcastle-upon-Tyne to two counts of being knowingly concerned in the fraudulent evasion of duty on cigarettes. The plea was entered on an agreed basis which treated him as a facilitator rather than the principal organiser.

The following day the prosecution offered no evidence against two co-defendants. It later emerged that, before the plea, the prosecution had received information raising concerns about Grzegorz Wach, a prosecution witness. The respondent applied unsuccessfully to vacate his pleas and appealed.

The central issue was whether the prosecution had been obliged, before the pleas, to disclose or warn the defence of those concerns.

1. Appeal dismissed. The court held that there was no obligation to disclose the information concerning Wach, nor to warn the defence that unspecified concerns existed, before the respondent entered his guilty pleas.

2. The applicable disclosure obligation was construed liberally. Material falls to be disclosed if it assists the defence to advance a tenable case in the best possible light, or if it may assist further enquiries which could show innocence or avoid a miscarriage of justice. Where material meeting that test is subject to public interest immunity, the prosecution must seek a ruling from the judge.

3. On the facts, the concern about Wach did not meet that test. Wach’s evidence was not necessary to the prosecution case against the respondent. The defence did not show how disclosure of the concern could have assisted its case, including its allegation of entrapment by a participating informant.

4. Accordingly, the absence of disclosure created no basis for permitting the respondent to vacate his freely entered pleas. The later decision not to proceed against the co-defendants did not alter that conclusion.

5. The court added that disclosure duties continue throughout proceedings, including on appeal. Once there was no longer a proper reason to conceal Wach’s identity, the prosecution should have explained both why the co-defendants’ cases had been dropped and why it considered that no pre-plea disclosure duty had arisen.

• Court of Appeal (Criminal Division): dismissed the appeal against the refusal to permit the respondent to vacate his guilty pleas.
• Crown Court at Newcastle-upon-Tyne: His Honour Judge Lancaster refused the respondent’s application, heard on 23 January 2003, to vacate his guilty pleas.