Ebcin & Ors v R

A fair trial does not require co-accused to enjoy equal tactical advantages. Where jointly indicted defendants advance conflicting cases, the trial judge may order separate trials if that is the fairest practicable course overall.

An alleged disclosure failure does not make a conviction unsafe where there is no further material capable of undermining the prosecution case or reasonably assisting the defence. The appointment of special counsel is exceptional and is primarily a matter for the trial judge. A Lucas direction is inappropriate where the alleged lie is simply the defendant’s denial of guilt, but an erroneous direction will not invalidate a conviction unless it renders it unsafe.

Five men were jointly indicted for knowingly being concerned in the importation of nearly 10 kilograms of heroin, contrary to section 170(1)(b) of the Customs and Excise Management Act 1979. A co-accused, Duzgun, asserted that he had acted as an informant. Disclosure of material relating to that assertion, including intelligence from another source, created sharply conflicting defences.

The trial judge severed the proceedings. Ebcin and Gencer were convicted together, Ozturk was later convicted, and Duzgun and another co-accused were acquitted. The applicants sought permission to appeal against conviction, alleging inadequate disclosure, unfair severance, refusal to appoint special counsel, evidential error, an inappropriate lies direction, and unfairness connected with Duzgun’s acquittal and prior conviction.

1. Applications for permission to appeal refused. The convictions were not unsafe on any proposed ground.

2. On disclosure, the court did not need to determine the precise correctness of the prosecution’s formulation of its disclosure test. Having examined the sensitive undisclosed material and received ex parte submissions, it was satisfied that no further material relating to Duzgun might have undermined the prosecution case or reasonably assisted the applicants’ defences. Any additional material would in any event have added little to the substantial material already available concerning Duzgun’s earlier failed informant defence.

3. Severance did not deny the applicants a fair trial. Fairness does not require parity of tactical advantage between jointly indicted defendants. The judge had to select the fairest practicable compromise between mutually hostile defences, the proposed admission based on intelligence from another source, and the risks arising from Duzgun’s informant case. His experienced assessment was unimpeachable.

4. Special counsel was not required. In light of R v H [2004] AC 134, such an appointment requires exceptional circumstances and is primarily for the trial judge. It would also have been inappropriate to appoint special counsel merely to assist with severance, which fell to be decided in an open hearing with each accused represented.

5. The complaint concerning evidence of co-accused acts and declarations disclosed no unfairness. The applicants accepted that, on the facts, the point went to fairness rather than admissibility and that the observation evidence had been fairly admitted.

6. The judge should not have given Gencer a Lucas direction. There was no separate, collateral proven or admitted lie; the alleged lie was his denial of guilty knowledge, the very issue for the jury. The strong observation evidence nevertheless meant that the error did not render the conviction unsafe.

7. Duzgun’s acquittal was irrelevant to Ozturk’s trial absent an exceptional feature affecting, for example, the credibility of a confession or prosecution witness. Counsel’s response to Ozturk’s repeated references to that acquittal was perhaps unwise, but the powerful evidence against Ozturk meant that it could not make his conviction unsafe.

• Court of Appeal (Criminal Division): Applications for permission to appeal against conviction refused.
• Central Criminal Court: Following severance, Ebcin and Gencer were convicted together and Ozturk was convicted in a later trial before His Honour Judge Gordon. Duzgun and Aslam were acquitted.