Haskayne, R v

A conviction is unsafe where material withheld through a failure of prosecution disclosure is clearly relevant to a significant basis on which the prosecution presented its case to the jury. This is especially so where, had the material been available, it would inevitably have been disclosed to the trial judge and would have changed the way the prosecution case was advanced. The absence of criticism of trial counsel or the trial judge does not cure the resulting unfairness.

The appellant was convicted at Maidstone Crown Court in December 1995 of two counts of being knowingly concerned in the importation of drugs. He received 18 years’ imprisonment. Leave to appeal against conviction was refused in 1997, and his appeal against sentence was dismissed.

In July 2006 the Criminal Cases Review Commission referred the conviction to the Court of Appeal. Its concern was that the prosecution had failed in its disclosure obligations in connection with ex parte hearings before the trial judge. The original recording could not be found, and the events had to be reconstructed from documents and recollection.

Special counsel reviewed the available sensitive material. The Crown then conceded that the conviction was unsafe. The issue was whether the undisclosed material affected the safety of the verdict.

1. Appeal allowed. The court quashed the conviction.

2. The sensitive material concerned a significant part of the Crown’s case and was clearly relevant to the way in which that case had been put both to the appellant and to the jury.

3. Had the material been available at the trial, it was inconceivable that it would not have been disclosed to the judge. It was also inconceivable that prosecuting counsel would have presented the case to the jury in the way they did.

4. The disclosure failure was not merely a failure to assist the court at the ex parte hearings. It also meant that the prosecuting advocates at trial had not received the material. The court made clear that no proper criticism could be made of either trial counsel or the trial judge.

5. Because the undisclosed material bore on a clear basis on which the prosecution had advanced its case to the jury, the verdict could not safely stand. The Crown’s concession that the conviction was unsafe was therefore accepted.

• Court of Appeal (Criminal Division): Following a Criminal Cases Review Commission reference, the court allowed the appeal and quashed the conviction: [2007] EWCA Crim 2797.

• Criminal Cases Review Commission: Referred the conviction to the Court of Appeal on 25 July 2006 because of concern about prosecution disclosure connected with ex parte hearings.

• Court of Appeal (Criminal Division): On 14 February 1997, the full court refused leave to appeal against conviction. On 26 March 1997, it dismissed the appeal against sentence.

• Maidstone Crown Court: On 21 December 1995, the appellant was convicted by a judge and jury of two counts of being knowingly concerned in the importation of drugs and was sentenced to 18 years’ imprisonment.