Alibhai & Ors, R v

A third party which co-operates closely with an investigation does not thereby become a prosecutor for disclosure purposes. The prosecution must nevertheless consider seeking third-party material where there is reason to think it may undermine its case or assist a known defence.

A disclosure failure makes a conviction unsafe only if it is capable of affecting a real issue or the fairness of the trial. A stay for abuse requires exceptionally serious prosecutorial misconduct or misuse of power. An indictment may be amended at any stage where its allegations are unsupported or unclear, provided that the amendment causes no injustice.

The appellants were convicted at the Crown Court at Reading, before Jack J and a jury, of a common-law conspiracy dishonestly to deal in counterfeit Microsoft products. Alibhai and Bakir appealed principally on disclosure grounds concerning material held by Microsoft, the FBI and the prosecution witness, Dan McGrath. They alleged undisclosed inducements, banking and telephone records, and material from a California investigation in which McGrath acted as an informant.

Collier also challenged the amendment of the indictment, which removed an allegation of importing goods, and contended that the evidence disclosed more than one conspiracy. The central questions were whether disclosure failures made the trial unfair or the convictions unsafe, and whether the indictment had properly been amended.

1. The appeals were dismissed. The convictions were safe. Third parties such as Microsoft and the FBI did not become prosecutors merely because they co-operated with the National Crime Squad. Under the Criminal Procedure and Investigations Act 1996, the ordinary disclosure duties applied to prosecution material in the prosecutor’s possession. The absence of relevant third-party material could nevertheless render a trial unfair.

2. The Attorney General’s Guidelines required consideration of obtaining third-party material only where there was reason to think that it might be disclosable if held by the prosecution. They did not impose an absolute duty to obtain every potentially relevant document. Applying the approach in R v H, [2004] UKHL 3, material that was neutral or damaging to the defence was not disclosable.

3. Microsoft’s earlier disclosure conduct was properly described as unsatisfactory, but the later disclosure enabled the defence to deploy the pressures upon McGrath. The jury knew of the possible criminal and civil consequences for him and received a strong warning about his reliability. There was no evidence of a formal deal or of undisclosed pressure capable of making the trial unfair. The refusal to exclude McGrath’s evidence under section 78 of the Police and Criminal Evidence Act 1984 was a proper exercise of discretion.

4. The delayed telephone and banking material enlarged an already substantial case that McGrath was dishonest, but did not materially alter the fairness of the trial. The defence had not sought to postpone or interrupt McGrath’s cross-examination pending the telephone records, and his recall would not have assisted. The California material was neither reasonably suspected to be disclosable nor, once disclosed, relevant to the defence.

5. The indictment was defective in the broad sense used by section 5(1) of the Indictments Act 1915, because the evidence did not support an allegation that Collier knew of an agreement to import goods. Its amendment caused no injustice. The Crown was also entitled to allege one wider conspiracy, notwithstanding subsidiary arrangements and the fact that different participants joined at different stages.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction: [2004] EWCA Crim 681.
• Crown Court at Reading (Jack J): following a jury trial, convicted Alibhai, Bakir, Collier and Dias of conspiracy dishonestly to deal in counterfeit Microsoft products.