Vernett-Showers & Ors v The Crown

In appeals arising from controlled heroin deliveries, departure from a paradigm delivery is not a legal checklist or a conclusive defect. It may create suspicion and require careful examination of whether the delivery was genuine. A delivery is not genuine if the supplier knew it was under official control or if the participating informant was the supplier.

Where material that should have been disclosed, or qualifying fresh evidence, might reasonably have affected the jury’s verdict, the conviction is unsafe. The separate question of gross prosecutorial misconduct also turns on safety. Disclosure duties depend on the prosecution case and the defence actually advanced; they do not generally require an unrestricted search of historic material.

The court determined linked appeals arising from controlled deliveries of heroin from Pakistan. Most appeals reached the court following references by the Criminal Cases Review Commission. Mohammed Kurshid Khan received leave to appeal.

The appellants had been convicted, or in two instances had pleaded guilty, in separate operations. The appeals concerned alleged non-disclosure, fresh evidence, the genuineness of the controlled deliveries, and alleged prosecutorial misconduct. Umar Masud had previously been refused leave to appeal before his case was referred by the Commission. Mohammed Ramzan’s earlier appeal had been dismissed in R v Farooq; R v Ramzan [1995] Crim LR 169.

The court allowed the appeals of Masud, Nisar Ahmed, Rizwan Ahmed and Ramzan. It dismissed the appeals of Vernett-Showers, Sabir, Bakhtiar Ahmed, Beg, Khan, Ryan and Mumtaz Ahmed. The central issue was whether the undisclosed material or fresh evidence might reasonably have affected the jury’s decision to convict, or disclosed gross misconduct that rendered a conviction unsafe.

1. Disposition. The court allowed the appeals of Umar Masud, Nisar Ahmed, Rizwan Ahmed and Mohammed Ramzan. The Crown conceded the appeals in Operations Pastie and Dire. The remaining appeals were dismissed.
2. Applicable approach. The court applied the safety inquiry in Pendleton [2001] UKHL 66. The inquiry asks whether undisclosed material that ought to have been disclosed, or fresh evidence satisfying section 23 of the Criminal Appeal Act 1968, might reasonably have affected the jury’s verdict. A separate route asks whether gross misconduct by investigators or prosecutors nevertheless leaves the conviction safe.
3. Controlled deliveries and disclosure. The court clarified Choudhery and Others [2005] EWCA Crim 1788. Its paradigm controlled delivery was not a binding guideline or benchmark. Missing features may justify suspicion but are not determinative. The prosecution had to disclose known material tending to undermine the genuineness of a delivery or to support the defence actually raised. It was not required, absent a specific defence, to conduct an extensive historical trawl for material of merely theoretical assistance.
4. Application. In Operation Notorious, important undisclosed material concerning Khan’s relationship with Haji, the possibility of a set-up, and the background to the operation could reasonably have affected Masud’s verdict. The court allowed his appeal without deciding whether the drug liaison officers had committed gross misconduct.
5. In Operation Pastie, the non-disclosure of material concerning Ali and the aborted Rainman II operation could have strengthened both the abuse argument and the defence before the jury. Evidence which concealed Ali’s role was arguably inaccurate. The convictions were unsafe despite the earlier judicial authorisation of non-disclosure.
6. In Operation Dire, the jury had been left with the false impression that Nasim Khan was an arms-length supplier unaware of the controlled delivery. Material showing his knowledge and financial interest had not been disclosed. That directly affected Ramzan’s set-up defence, so the conviction was unsafe.
7. The other convictions were upheld because the evidence was overwhelming or the alleged omissions neither supported the defence actually run nor might reasonably have affected the verdict. The alleged conduct in those cases fell well short of gross prosecutorial misconduct.

• Court of Appeal (Criminal Division): In this joint judgment, the court allowed the appeals of Masud, Nisar Ahmed, Rizwan Ahmed and Ramzan, and dismissed the remaining appeals.
• Criminal Cases Review Commission: With the exception of Khan, whose appeal proceeded with leave, the appeals reached this court following Commission references.
• Earlier appellate proceedings: Khan and Ryan had unsuccessful appeals against conviction determined on 25 May 1995. Ramzan’s earlier appeal was dismissed in R v Farooq; R v Ramzan [1995] Crim LR 169. Masud’s earlier applications for leave to appeal were refused before the Commission referred his case in 2006.
• Crown Court proceedings: The convictions and guilty pleas arose from separate controlled-delivery prosecutions before Crown Court judges between 1991 and 1996.