Nawaz, R. v

On an appeal against conviction, the question is whether the conviction is safe, not whether the appellant is guilty. Where fresh or undisclosed material might reasonably have affected the trial jury’s decision, the conviction is unsafe and must be quashed. This includes material capable of undermining the credibility, motives or account of a participating informant where the defence alleges a set-up. Once the lack of safety is established, the appellate court need not determine additional allegations of abuse of process or entrapment. An exceptional earlier decision to determine such issues does not require that course in later appeals.

Five appellants had been convicted in separate controlled-delivery prosecutions involving heroin imported from Pakistan. Their cases involved participating informants whose evidence and history were central to the prosecution cases and to defences that the appellants had been set up.

Following references by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the Crown reviewed the material and did not resist the appeals. It accepted that material had not been disclosed and that informants had given false or materially misleading evidence about matters bearing on their credibility and the origin of the alleged conspiracies.

The central issue was whether the newly disclosed material might reasonably have affected the trial juries’ guilty verdicts, and whether the court should additionally determine allegations of abuse of process and entrapment.

All five appeals were allowed and the convictions were quashed.

1. The governing issue was the safety of each conviction, rather than the appellants’ guilt. Applying R v Pendleton [2002] 1 Cr App R 34, the court asked whether the fresh and undisclosed material might reasonably have affected the verdict of the trial jury. The Crown accepted that it could not exclude that possibility in any appeal, and the court agreed.
2. In Osman’s case, the participating informant had falsely denied any other involvement with drugs. Material capable of exposing that falsehood had not been disclosed after it became relevant. The jury had therefore received a false impression of a witness whose credibility was material to the set-up defence.
3. In the Shahzad and Latif appeals, undisclosed telephone material indicated that the informant had lied about how he came to know a person linked to the alleged supply chain. That lie could undermine his account of how he met Shahzad and thus the totality of his evidence. In Nawaz’s case, undisclosed material concerning Roshan and Kiramat could have supported the set-up defence and contradicted the favourable impression of their motives presented at trial. In Rasool’s case, the undisclosed contemporaneous explanation for an earlier aborted operation materially undermined the informant’s account and credibility.
4. The court did not adjudicate on the further grounds alleging abuse of process, prosecutorial misconduct or entrapment. R v Choudhery & Others [2005] EWCA Crim 1788 was an exceptional case in which wider issues required determination. Taking account also of R v McIlkenny (1991) 93 Cr App R 287, the court held that no further ruling was necessary once the convictions had been found unsafe. The merits of those additional grounds remained undecided.

• Court of Appeal (Criminal Division): Following Criminal Cases Review Commission references, all five appeals were allowed and the convictions quashed.
• House of Lords: The convictions of Shahzad and Latif had previously been upheld in [1996] 1 WLR 270.
• Court of Appeal (Criminal Division): The convictions of Shahzad and Latif had previously been upheld in [1995] 1 Cr App R 270.
• Crown Courts: Osman was convicted at Inner London Crown Court on 19 March 1993; Shahzad and Latif were convicted in March 1991; Nawaz was convicted at Birmingham Crown Court on 26 September 1994; and Rasool was convicted on 6 December 1996.