Yilmaz & Ors, R v

Where potentially disclosable unused material was not reviewed by counsel or placed before the trial judge on a public-interest-immunity application, convictions are unsafe if the appellate court cannot conclude that the disclosure rulings would have been unchanged and a different ruling could have affected the trial.

Under section 7 of the Criminal Appeal Act 1968, a retrial requires both an allowed appeal and an assessment that a retrial serves the interests of justice. That assessment balances the public interest in prosecuting serious crime against the defendant’s legitimate interests, including elapsed time and punishment already served, and requires that the retrial can proceed without unfairness or oppression.

The appellants had been convicted of conspiracies to supply heroin and received substantial custodial sentences. Two appeals reached the court following references by the Criminal Cases Review Commission.

The respondent conceded that the disclosure process at trial had been flawed and incomplete. Material which should have been reviewed by counsel had not been placed before the trial judge during the public-interest-immunity process. The central issues were whether the convictions were unsafe and, if so, whether the court should order retrials.

1. Appeals allowed; convictions quashed; retrials ordered. The court accepted the respondent’s concession that unused material, which might have been disclosable subject to a public-interest-immunity ruling, had not been properly reviewed or placed before the trial judge. It could not be regarded as insignificant or incapable of assisting the defence.

2. The case did not fall within the principle in R v Botmeh [2001] EWCA Crim 2226. The court could not determine whether the trial judge’s disclosure rulings would have differed had all potentially disclosable material been before him. A different ruling might have affected the conduct or outcome of the trials. The convictions were therefore unsafe.

3. The court refused further disclosure and an adjournment before deciding the retrial applications. There was no undisclosed material which then required disclosure to enable opposition to retrials, and nothing suggesting manipulation of the appellate process. The court assumed that gross prosecutorial misconduct could affect the propriety of a retrial, but found no material establishing it. The retrial judge would in any event have to review material capable of undermining the prosecution or assisting the defence, and make the orders necessary for a fair trial.

4. Applying section 7 of the Criminal Appeal Act 1968 and the approach stated in R v Graham [1997] 1 Cr App R 302, the court held that the interests of justice required retrials. The alleged offences were extremely serious. The time elapsed, sentences already served, the position of appellants with lesser apparent roles, and the availability of bail applications were considered. The court concluded that retrials could proceed without unfairness or oppression.

5. The court directed fresh indictments and re-arraignment within two months. It made representation orders for the retrials and left venue and associated case-management matters to the appropriate judicial authorities.

• Court of Appeal (Criminal Division): By [2007] EWCA Crim 308, allowed all appeals against conviction, quashed the convictions and ordered retrials.

• Crown Court: The appellants had been convicted of conspiracies to supply heroin. Harrison had been convicted following a retrial. No lower-court citation is stated in the judgment.