Beardall & Anor, R. v

Fresh material disclosed after trial warrants intervention only where it creates a real doubt about the safety of the conviction. Where the material might have supported an abuse-of-process application, the court must ask whether it could have had a causative impact on a tenable application and thereby on trial fairness.

Entrapment requires improper state participation in creating crime. A legitimate, thorough investigation and lawful cooperation by warehouse operators do not establish entrapment or abuse merely because an officer had a greater investigative role than was originally disclosed. The appellate court must ultimately decide safety, while testing its conclusion by asking whether the fresh material might reasonably have affected the jury's verdict.

The appellants were convicted in the Crown Court at Southampton of conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979. The prosecution alleged their knowing participation in a large fraud involving the diversion of duty-suspended spirits from bonded warehouses.

On appeal, they relied on fresh material and alleged non-disclosure. They contended that Customs officers, warehouse personnel and an alleged organiser had created or facilitated the offending, so that there had been entrapment or another abuse of process. The central issue was whether the new material rendered the convictions unsafe.

1. The appeals were dismissed. The court held that the convictions remained safe.

2. The alleged Costello affidavits could not be admitted under section 23 of the Criminal Appeal Act 1968. Police enquiries convincingly showed that their contents were false. The affidavits therefore gave no support to the allegation that Watkins-Burton had acted as an informer or organiser for Customs.

3. The court applied the entrapment principles in R v Looseley; Attorney General’s reference (No.3 of 2000) [2002] 1 Cr.App.R 29. It considered the nature of the offence, the reason for the operation, and the nature and extent of official participation. The investigation was a legitimate and organised inquiry into major fraud. The later disclosures did not establish inducement, participating informers, or improper involvement by the Belgian or United Kingdom bond operators.

4. Bernie Small’s role in Operation Crystal was more substantial than had initially been stated. However, the material already disclosed at trial revealed his significant involvement. The further material did not show that he controlled the operation, corrupted the investigation, or concealed conduct capable of supporting a tenable abuse-of-process application. The case was materially different from the LCB cases, including Patel, Villiers and Ors [2001] EWCA Crim 2505 and Gell & Others [2003] EWCA Crim 123.

5. Applying R v Pendleton [2002] 1 WLR 72, the court made its own assessment of safety and tested it by asking whether the fresh material might reasonably have affected the jury. It would not have done so. Nor would it have had a causative impact on a tenable abuse argument. No abuse of process justified quashing the convictions.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction: [2006] EWCA Crim 577.
• Crown Court at Southampton — the appellants were convicted on 5 April 2001 of conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979.