Pomfrett, R v

Freshly disclosed material does not render a conviction unsafe merely because it should have been disclosed. The appellate court must assess its overall effect, make its own safety assessment, and in a difficult case ask whether the material might reasonably have affected the jury’s verdict.

Counsel representing an accused who has voluntarily absconded may act on fresh instructions. There is no principled cut-off at absconding, although the trial judge must protect co-defendants from unfair manipulation. A sentence for conspiracy to cheat the public revenue is not capped by the maximum for a comparable statutory conspiracy; it must reflect the offender’s true role.

The appellant was convicted at Northampton Crown Court of conspiracy to cheat the public revenue through a missing-trader intra-Community VAT carousel fraud. He was a director and majority shareholder of Globalactive, a buffer company used in the trading chain, and received a sentence of 10 years’ imprisonment.

On appeal, the prosecution accepted that substantial material from a related investigation, Operation Vitric, should have been disclosed. The appellant also challenged the summing up, the ability of counsel for an absent co-defendant to receive fresh instructions, and contacts between junior prosecuting counsel and the trial judge.

The central question was whether the undisclosed material and the other alleged irregularities rendered the conviction unsafe. A renewed application challenged sentence in light of the newly available material concerning the wider fraud.

1. The appeal against conviction was dismissed. Applying R v Pendleton [2001] UKHL 66, the court assessed whether the undisclosed Operation Vitric material gave reason to doubt the conviction’s safety, and then tested that assessment by asking whether it might reasonably have affected the jury’s verdict. Although the material would have changed the trial’s context and the shape of parts of the cross-examination, it was overall damaging to the defence. It reinforced the inference that the appellant knowingly participated in the fraud rather than being an innocent dupe.
2. The summing up would have been better had the judge gathered the appellant’s defence into a short, coherent summary. No vital point was omitted, however, and the summing up, read with counsel’s closing speech, left the jury sufficiently aware of the defence. The judge should also prudently have canvassed new points with counsel, but the identified comments caused no material unfairness individually or cumulatively.
3. There is no principled distinction between instructions received by counsel before and after an accused absconds. A restriction on fresh instructions could prevent counsel from advancing the accused’s true defence or responding to new evidence. The judge must nevertheless supervise the proceedings to prevent unfair manipulation against co-defendants.
4. The court gave procedural guidance that any ex parte public-interest-immunity matter must comply fully with Part 25 of the Criminal Procedure Rules, be recorded, and be handled discreetly. Any unrelated meeting with counsel should occur on notice to, and with the agreement of, all counsel in the relevant case.
5. The renewed application for leave to appeal sentence was granted and the sentence appeal allowed. Following R v Ward [2006] 1 Cr App R (S) 66, the sentence for common-law conspiracy was not limited by the seven-year maximum for a statutory conspiracy. The fresh material nevertheless showed that the appellant was neither an organiser nor a principal financier of the wider scheme. His role was to run an important buffer company. The 10-year sentence was quashed and replaced by eight years’ imprisonment, with four days on remand to count.

• Court of Appeal (Criminal Division): The conviction appeal was dismissed. Leave to appeal sentence was granted, the 10-year sentence was quashed, and an eight-year sentence was substituted.
• Crown Court at Northampton: The appellant was convicted on 23 January 2008 of conspiracy to cheat the public revenue and sentenced on 28 January 2008 to 10 years’ imprisonment.