Owens & Anor, R. v

Late prosecution evidence may be admitted despite non-compliance with a case-management order where it falls within the indictment and, after proper consideration, causes no unfairness or undue prejudice. Documents may constitute real evidence when used as circumstantial facts rather than to prove the truth of their contents, provided there is a sufficient evidential connection with the defendant.

Failure to comply with the sampling safeguards in Schedule 5 to the Hydrocarbon Oil Duties Act 1979 can make the analysis inadmissible. A conviction nevertheless remains safe if the improperly admitted analysis added nothing to the other compelling evidence. A conviction is unsafe through counsel's advocacy only where the inadequacy deprived the accused of an adequate defence and a fair jury assessment.

The appellants, brothers Gary and Mark Owens, were convicted at Leeds Crown Court of conspiracies to evade hydrocarbon-oil duty by laundering red diesel fuel and to launder the resulting proceeds. Gary received six years' imprisonment and Mark four years, each comprising consecutive sentences on the two counts.

The appeals challenged late service and admission of material relating to the Doran brothers and Kinler Ltd, the refusal of a no-case submission for Mark, the admission of analysis of fuel sampled from Mark's car, alleged adverse publicity, alleged inadequacy of Mark's final speech, the summing-up, and sentence. The central issues included whether the Doran documents were admissible as real evidence, whether statutory sampling requirements rendered the analysis inadmissible, and whether any error made Mark's convictions unsafe.

1. Appeals dismissed. The judge was entitled to permit the late additional evidence to be considered on its merits. It fell within an indictment which already covered the earlier period. The appellants ultimately assimilated the material without prejudice, and the judge was entitled to conclude that admitting it was in the interests of justice.
2. The documents recovered from the Dorans were properly admitted as real evidence. Following the explanation in R v Lydon, (1987) 85 Cr App R 221, documents may be circumstantial evidence of an association without proving the truth of what they assert. There was a substantial web of links between the documents, the fuel sales, Kinler Ltd, the appellants and the Desmonds. The Crown used the material within that limited purpose.
3. Mark's no-case submission was correctly rejected. Applying R v Galbraith, (1981) 73 Cr App R 124, the circumstantial evidence was neither tenuous nor inherently weak. It included documentary, physical, forensic and vehicle links. The jury were properly left to determine whether Mark knowingly joined each conspiracy, with clear warnings against guilt by association.
4. The analysis of fuel in Mark's car was wrongly admitted. Under Schedule 5 to the Hydrocarbon Oil Duties Act 1979, compliance with the applicable sampling and notice requirements was a condition precedent to admissibility. Mark's ownership was identified shortly after sampling, so the absence of registration in his name did not excuse failure to serve notice. The convictions were nevertheless safe because the analysis added nothing material to the independent evidence linking him to the conspiracies.
5. There was no basis to impugn the fairness of the trial through counsel's final speech, the handling of publicity, or the summing-up. The consecutive sentences properly reflected totality and disclosed no unjustified disparity.
6. The court also rejected a proposed compromise of the appeals. Under section 2 of the Criminal Appeal Act 1968, the court must itself determine whether a conviction is unsafe; it cannot dispose of an appeal through an unreasoned bargain between the parties.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence: [2006] EWCA Crim 2206.
• Leeds Crown Court: HHJ Dobkin convicted both appellants on 6 April 2005 of two conspiracy counts and sentenced Gary to six years and Mark to four years' imprisonment on 5 May 2005.