Lewis, R. v

A finding by the European Court of Human Rights that a pre-Human Rights Act criminal procedure breached Article 6(1) does not itself make a conviction unsafe under section 2 of the Criminal Appeal Act 1968. The appellate court must determine safety on the facts of the case.

Entrapment does not automatically require a stay for abuse of process. The defence bears the burden of establishing abuse on the balance of probabilities. A fully informed and unqualified guilty plea, entered after a lawful ruling that no undisclosed material could assist the defence, ordinarily affords no basis for an appeal against conviction.

The appellant pleaded guilty at Croydon Crown Court in 1996 to three counts of having custody of counterfeit currency notes with intent. Before the pleas, the trial judge rejected an application to stay the proceedings for abuse of process based on alleged entrapment. He also refused further disclosure following an ex parte public-interest-immunity hearing and declined to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984.

After the appellant had been sentenced, the European Court of Human Rights held that the procedure used to determine disclosure and entrapment had breached Article 6(1). The appellant was granted a substantial extension of time to appeal his convictions. The central issue was whether that finding, and the circumstances of the trial, rendered the convictions unsafe.

1. Appeal dismissed. The court applied the statutory question under section 2 of the Criminal Appeal Act 1968: whether the convictions were unsafe. A Strasbourg finding that the proceedings breached Article 6(1) was relevant, but did not itself establish that the convictions were unsafe or wrongful.
2. The convictions pre-dated the coming into force of the Human Rights Act 1998. Following Lambert [2002] 2 AC 545, Kansal (No 2) [2002] 2 AC 65 and Lyons [2003] 1 AC 976, the Act had no retrospective effect. The appellant could therefore not establish unsafety merely from the later Strasbourg finding.
3. The court held that entrapment does not necessarily amount to an abuse of process requiring a stay. The defence bore the burden of proving abuse on the balance of probabilities. The disclosed recording showed the appellant’s willingness to supply substantial quantities of counterfeit currency. There was no evidence that he had been pressured, and nothing suggested that the trial judge’s ruling had been tainted by undisclosed material. In light of H and C [2004] 2 AC 174, the appellant could not challenge English public-interest-immunity procedures as inherently unfair; no exceptional basis for special counsel was shown.
4. The evidence of possession and intent was overwhelming. The appellant had pleaded guilty, after legal advice and with knowledge of the prosecution evidence, to offences for which he had no defence unless the abuse application succeeded. Applying Chalkley v Jeffries [1998] 2 Cr App R 79, that unambiguous plea provided no basis for an appeal against conviction.
5. The court added, obiter, that an application for an extension of almost seven years should preferably have been referred to the full court, or at least determined after inviting Crown representations.

• Court of Appeal (Criminal Division): In this judgment, [2005] EWCA Crim 859, the court dismissed the appeal against conviction.
• European Court of Human Rights: In 2003, the court found a breach of Article 6(1) in the procedure used to determine disclosure and entrapment, but stated that the finding did not establish a wrongful conviction.
• Croydon Crown Court: In 1996, the appellant’s application for a stay for abuse of process and his application under section 78 of the Police and Criminal Evidence Act 1984 were refused. He then pleaded guilty and received a total sentence of four and a half years’ imprisonment.