Shah v R

In a criminal trial, a ruling admitting prosecution recordings after essential witnesses fail to attend may render the trial unfair where it rests on the assertion that the witnesses cannot be traced, but no proper efforts were made to trace them. Such an assertion implies that tracing steps have been taken. It is unnecessary to determine whether the failure was deliberate: gross incompetence producing the same misleading position can deprive the defendant of a fair trial.

The appellant was convicted at Manchester Crown Court in 1994 of conspiracy to evade the prohibition on importing diamorphine, and was sentenced to ten years’ imprisonment. His renewed application for leave to appeal against conviction was dismissed in 1996.

The Criminal Cases Review Commission referred the conviction to the Court of Appeal after obtaining material not available on the earlier application. At trial, the prosecution’s participating informant, his wife and a third associated witness were absent. Over objection, the judge permitted the prosecution to rely on unedited audio and video recordings of conversations involving the informant and the appellant, although the defence wished to cross-examine the missing witnesses.

The central issue was whether the prosecution’s failure to secure or trace those witnesses had made the trial unfair.

1. Appeal allowed and conviction quashed. The appellant did not receive a fair trial.

2. The three absent witnesses were central to the controlled-delivery operation. The informant had conducted the negotiations and his evidence had been described internally as crucial. The appellant’s defence was that he had been set up and believed he was dealing in homeopathic medicine rather than heroin. Cross-examination of the informant and the other witnesses was therefore material.

3. At trial, the judge was told that the witnesses could not be traced and allowed the prosecution to proceed using the unedited recordings. That representation implied that efforts had been made to trace them. The later material showed no evidence that the witnesses had been told the trial date or that meaningful attempts had been made to contact them. Contact details were available, and the informant and his wife in fact made contact during the trial.

4. The court held that the judge had been misled into believing that tracing steps had been taken. It could not determine with certainty whether this resulted from a deliberate decision not to bring the witnesses to court or from gross incompetence. Either explanation made the trial unfair. The conviction was accordingly quashed.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 2326, allowed the appeal following a Criminal Cases Review Commission reference and quashed the conviction.
• Crown Court at Manchester: The appellant was convicted on 28 March 1994 and sentenced to ten years’ imprisonment. A renewed application for leave to appeal against conviction was dismissed on 19 February 1996.