Clark & Anor v R.

A conviction is unsafe where material non-disclosure may reasonably have led the jury to return a different verdict. The assessment must consider whether the undisclosed material could undermine evidence on which the jury may have relied, including its effect across related counts.

Under section 7(1) of the Criminal Appeal Act 1968, a retrial requires a balance of the interests of justice. The gravity of alleged police corruption and the strength of the remaining case may justify retrial despite delay, sentences already served and serious disclosure errors, provided that a fair trial can still be secured.

Two former police officers appealed convictions arising from alleged corrupt drug-related conduct. They had been convicted at the Central Criminal Court after a second trial in 2000. A previous appeal against conviction was dismissed in 2001, although the sentences were reduced.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the appellants contended that the prosecution had failed to disclose substantial material bearing on the credibility of Evelyn Fleckney, a principal prosecution witness. The court had to decide whether the convictions were safe and, if not, whether the interests of justice required retrials on counts 10 to 13.

1. The appeals were allowed and all convictions were quashed. The prosecution accepted that substantial undisclosed material would have been used by the defence and that it might reasonably have led the jury to different verdicts on counts 1 and 2. Those convictions were therefore unsafe, and the prosecution did not seek retrials on them.

2. The remaining convictions on the Guildford John counts were also unsafe. Although there was other evidence against the appellants, the court could not exclude the possibility that the jury had treated Fleckney’s evidence as support for other witnesses, or that conclusions reached on counts 1 and 2 affected its assessment of her credibility on the later counts.

3. Drury’s Briar Cottage convictions were likewise unsafe. The evidence was strong and Fleckney gave no evidence on those counts. However, the jury may have relied materially on adverse conclusions reached on the earlier counts when assessing whether Drury had corruptly abused his office. The court could not be satisfied that the convictions were safe.

4. The court ordered retrials on counts 10 to 13 under section 7(1) of the Criminal Appeal Act 1968. It balanced the lengthy delay, the appellants’ completed custodial terms and serious disclosure failures against the gravity of the alleged corruption and the remaining strength of the evidence. The disclosure failures did not amount, on the written material, to gross prosecutorial misbehaviour. A trial judge could protect fairness despite delay and publicity.

5. The order for retrial did not depend on the admissibility or reliability of the alleged post-conviction confessions. Contributions already paid towards legal aid were to be refunded, and outstanding contributions were no longer payable.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 2849, allowed the appeals, quashed all convictions and ordered retrials on counts 10 to 13.
• Criminal Cases Review Commission: Referred the convictions to the Court of Appeal on 23 February 2009 under section 9 of the Criminal Appeal Act 1995.
• Court of Appeal: On 11 April 2001, dismissed the appeals against conviction but allowed the appeals against sentence and reduced the total sentences. It later certified a point of law of general public importance and refused leave to appeal to the House of Lords.
• House of Lords: Refused leave to appeal on 11 February 2002.
• Central Criminal Court: On 3 February 2000, convicted the appellants after a second jury trial.