Kassar, R v

A prosecution failure to disclose material held by an investigating authority may require a conviction to be quashed where the material was relevant to assessing the role of a person central to the prosecution case. The conclusion is especially warranted where the material was not disclosed to either prosecuting counsel or the trial judge and was therefore never assessed at trial.

In July 1993, the appellant was convicted at the Crown Court at Newcastle of two counts of being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine. He received concurrent sentences of 24 years’ imprisonment and a confiscation order.

The Criminal Cases Review Commission referred the convictions to the Court of Appeal under section 9 of the Criminal Appeal Act 1995. The Commission identified a prosecution disclosure failure concerning Customs and Excise material relevant to Mr Asare’s role in the importations. After a private public-interest-immunity hearing, the prosecution did not contest the appeal. The central issue was whether that non-disclosure required the convictions to be quashed.

1. The appeal was allowed and the convictions were quashed. The court accepted the Commission’s conclusion that the prosecution had failed in its disclosure obligations concerning information and material held by Customs and Excise which was relevant to assessing Mr Asare’s role in the importations.
2. The court had examined some of the material in a hearing in chambers, without the appellant or his legal advisers. It noted that the material had not been disclosed to prosecuting counsel or the trial judge, and so had not been assessed by either at the trial.
3. Mr Asare was central to the prosecution case. In those circumstances, the disclosure failure required the appeal to be allowed.
4. The court declined to consider any other grounds of appeal. It would give fuller reasons in a judgment confidential to the prosecution only.

• Court of Appeal (Criminal Division): following a reference by the Criminal Cases Review Commission, the court allowed the appeal and quashed both convictions.
• Crown Court at Newcastle: on 14 July 1993, the appellant was convicted on two counts concerning the fraudulent evasion of the prohibition on importing cocaine.