Flook, R v

Where potentially relevant material is held overseas by an authority beyond the jurisdiction of the courts of England and Wales, the Crown must pursue reasonable lines of inquiry and take reasonable steps to obtain it. There is no absolute obligation to secure its disclosure. The Crown should record in writing the material position and the steps taken.

A judge must not fill an evidential gap in the prosecution case by introducing unproved assumptions about investigative methods. A summing up must also present the defence case clearly and fairly before identifying the challenges made to it. Serious departures from those requirements may render a conviction unsafe.

The appellant was convicted before HHJ Marron QC and a jury of conspiracies to import cannabis and cocaine, and received a total sentence of 26 years’ imprisonment. The Crown case alleged that he participated in a series of container shipments from South Africa to the United Kingdom, culminating in the seizure of cannabis and cocaine.

He appealed on three grounds: alleged failures in disclosure of material held by South African authorities; the judge’s comments about the effectiveness of HMRC examinations of earlier containers; and the fairness and balance of the summing up. The central issue was whether the conviction was safe.

1. Appeal allowed; retrial directed. The conviction could not be regarded as safe. The disclosure ground failed, but the errors concerning HMRC evidence and the summing up required a retrial.
2. Overseas disclosure. Under the Criminal Procedure and Investigations Act 1996, read with the applicable Code and guidance, the Crown’s duty in relation to material held outside the European Union by an authority beyond the court’s jurisdiction is to pursue reasonable inquiries and take reasonable steps to obtain material capable of undermining the prosecution or assisting the defence. It has no absolute duty to secure disclosure. The Court applied the approach described in R v Alibhai [2004] EWCA Crim 681, the relevance formulation in R v H [2004] UKHL 3, and the observation in R v Khyam [2008] EWCA Crim 1612 that English prosecuting authorities cannot compel foreign authorities to comply with domestic disclosure principles.
3. Where United Kingdom officers may inspect a foreign file but may not copy, note or list it, failure to obtain or list the material does not itself breach the duty, provided reasonable steps have been taken. The Crown must nevertheless record and explain the position in writing so that the defence and court can address fairness. On the facts, reasonable steps had been taken and there was no basis for a stay or for holding the disclosure ground to make the trial unfair.
4. HMRC evidence. The judge was entitled to refer to evidence suggesting that earlier containers may have contained drugs. He was not entitled to explain, without evidence, why scanning or x-ray examination might fail to detect concealed drugs. HMRC had declined to give such evidence, and the judge impermissibly filled a recognised weakness in the Crown case.
5. Fair summing up. The defence was not clearly stated as a coherent case. The judge instead interspersed the appellant’s evidence with pointed questions that appeared to be the judge’s own challenges, rather than the Crown’s. Although searching questions could properly have been identified and put fairly, this approach undermined the defence case. Together with the improper HMRC comments, it rendered the conviction unsafe.

• Court of Appeal (Criminal Division) — allowed the appeal in [2009] EWCA Crim 682, holding the conviction unsafe and directing a retrial.
• Crown Court — the appellant was convicted by a jury before HHJ Marron QC of conspiracies to import cannabis and cocaine.