Hadley & Ors, R. v

Where prosecution material may undermine the prosecution case or assist the defence, it must be disclosed under the Criminal Procedure and Investigation Act 1996. On an appeal based on non-disclosure, the court asks first whether disclosure was required and then whether the omission rendered the conviction unsafe.

An appellant need only show that the undisclosed material was capable of affecting the mind of a properly directed reasonable jury. It need not be shown that it would necessarily have changed the verdict. A retrial may nevertheless be ordered where the charge is serious, a fair trial remains possible, and the disclosure failure can now be remedied.

The appellants were tried at Sheffield Crown Court for conspiracy to supply heroin. Philip Hadley, Anthony Hadley and Joseph Skidmore were convicted; Colin Mallows had pleaded guilty. The prosecution had conducted lengthy video surveillance of a wood yard, but disclosed only part of the recording made on the day drugs were found in a van.

Further recordings, the officer’s contemporaneous notebook and a schedule were later disclosed during confiscation proceedings. The appellants contended that the material could support a case that another person had placed the drugs in the van and could undermine police evidence. The central issues were whether the material should have been disclosed, whether the convictions were unsafe, and whether a retrial was required in the interests of justice.

1. The appeals against conviction were allowed. The convictions of Philip Hadley, Anthony Hadley and Joseph Skidmore were quashed. The court directed that a fresh indictment be preferred for a retrial.

2. The surveillance recordings, the blue book and the schedule ought to have been disclosed. Once the defence statement denied that Philip Hadley placed the drugs in the van, material capable of supporting the possibility that another person did so could assist the defence and undermine the prosecution. The prosecution had failed to assess the recordings in light of that case, despite specific requests concerning Karl Lapko.

3. The correct safety question was whether the undisclosed material was capable of affecting the mind of a properly directed reasonable jury. The court accepted the approach in R v Alibhai [2004] EWCA Crim 681, R v Ward (1993) 96 Cr App Rep 1 and R v Smith [2004] EWCA Crim 2212. It was neither necessary nor appropriate for the court to decide what inferences should ultimately be drawn from the recordings. Those were matters for a jury. The material was capable of assisting the appellants and damaging prosecution witnesses; the court could not be confident that the verdicts would have been the same if it had been available.

4. Under section 7 of the Criminal Appeal Act 1968, a retrial was required in the interests of justice. The conspiracy charge was very serious, the evidence could substantially be presented again, and the now-disclosed material could be used at a new trial. The disclosure failures warranted serious criticism, but they did not make a retrial unfair or oppressive. Any abuse-of-process application based on the reasons for those failures was for the trial court. Further submissions were invited concerning Mallows’s sentence application.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 2544, the court allowed the conviction appeals of Philip Hadley, Anthony Hadley and Joseph Skidmore, quashed their convictions, and ordered a retrial.
• Sheffield Crown Court: Philip Hadley, Anthony Hadley and Joseph Skidmore were convicted of conspiracy to supply heroin. Colin Mallows had pleaded guilty. Sentences were imposed on 12 October 2004.