West, R v

A conviction is unsafe where information withheld under public interest immunity is subsequently shown to have had potential relevance and value to the conduct of the defence. The appellate court need not decide what a jury would ultimately have made of that material. It is enough that its non-disclosure may have deprived the defendant of a fair opportunity to present the defence.

Public interest immunity applications made without the defence require the most searching investigation of the underlying facts and equally careful consideration of the material’s possible relevance to the defence advanced.

The appellant was convicted at Chelmsford Crown Court of two offences of possessing Class A drugs with intent to supply and was sentenced to seven years’ imprisonment. His defence was that the drugs had been planted by a supplier or an associate.

The police search had followed undisclosed intelligence. Following a public interest immunity application, the trial judge ruled that further information about the source need not be disclosed and told the jury that no material supported the defence account.

On the renewed application for permission to appeal, the Court of Appeal required further investigation and held further hearings concerning the public interest immunity material. The central issue was whether the newly established information rendered the convictions unsafe.

1. Appeal allowed. The court granted permission, allowed the appeal against conviction and quashed both convictions. The Crown did not seek a retrial.

2. The further information obtained during the appellate public interest immunity hearings could not properly be disclosed because of its character. The court therefore expressed no view on the weight which a jury might have attached to it if disclosed.

3. Nevertheless, the material was of potential relevance and value to the conduct of the defence. It might have assisted the appellant in advancing his case that the drugs had been planted. This conclusion was unaffected by features of the trial evidence which might have caused the defence difficulty, including fingerprint evidence and aspects of the appellant’s account.

4. The Crown accepted that, had the prosecuting authorities possessed the full information at trial, they would have made no further disclosure but would have offered no evidence. That course would have resulted in an acquittal. In those circumstances, the convictions could no longer be regarded as safe.

5. The court added that the case demonstrated the need for police, prosecutors and courts to investigate fully the facts underlying a public interest immunity claim and to scrutinise the possible relevance of the material in the light of the defence being advanced. Particular caution is required where the application is heard in the absence of the defence.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction and quashed both convictions: [2005] EWCA Crim 517.
• Chelmsford Crown Court — convicted the appellant on 29 July 2002 of two counts of possessing Class A drugs with intent to supply and imposed seven years’ imprisonment.