Olu & Ors. R. v

A failure to comply with the statutory disclosure regime does not itself make a conviction unsafe. The appellate question is whether the deficiencies caused unfairness, breached Article 6, or affected the safety of the verdict. Disclosure of investigative material must be conducted thoughtfully, with the prosecutor identifying the issues and guiding the disclosure officer; the trial judge must control disputes closely.

An admission in a caution may be challenged when relied on as bad-character evidence. Where it is disputed, the court must scrutinise the fairness of admitting it under section 101(3) of the Criminal Justice Act 2003. If the jury could find that the defendant did not commit the cautioned offence and is otherwise of good character, they should receive the appropriate conditional good-character direction.

Olu, Wilson and Brooks were tried with two others at Reading Crown Court for the murder of Robert Spence and the attempted murder of Emmanuel Connor. The prosecution alleged that members of a group arriving from Bristol armed themselves from a BMW and attacked the victims with knives. Olu, Wilson and Brooks were convicted on both counts and received life sentences.

Olu appealed against conviction. Wilson and Brooks renewed applications for leave to appeal. They contended that deficient prosecution disclosure made the trial unfair and that the convictions were unsafe. Olu also challenged the admission of a 2006 caution for possession of a knife and the absence of a full good-character direction. Further grounds concerned the sufficiency of the evidence and minimum terms.

1. Appeal dismissed; renewed applications refused. The disclosure process was seriously deficient and did not comply with the statutory regime. In particular, the material should have been approached through identification of the real issues, not by a box-ticking exercise. Initial accounts and contacts with eyewitnesses, and material supplied to or generated by an expert, required proper scheduling and disclosure. Late disclosure on this scale was unacceptable.

2. Nevertheless, disclosure failures require an appellate court to decide whether the trial was unfair, whether Article 6 was breached, or whether the convictions were unsafe. The trial judge had taken firm control of the disclosure disputes, required reviews and particularisation, and dealt fairly with the deficiencies. The undisclosed hospital conversation did not identify the speakers or support a case of collusion. The deficiencies, including those concerning the Kalagate expert material, therefore caused no unfairness and did not affect safety.

3. An admission in a caution, when relied upon as reprehensible conduct, may be challenged. A defendant should give notice under rule 35.3(4)(b) of the Criminal Procedure Rules. A caution differs materially from a conviction, particularly where the admission was made without legal advice. When the Crown seeks to deploy such an admission in a murder trial, the court must carefully exercise its discretion under section 101(3) of the Criminal Justice Act 2003.

   The caution was admissible only as evidence capable of showing a tendency to possess a knife in a public place, rather than a propensity to murder. Its admission was within the trial judge’s discretion because Olu could explain the alleged inducement and the jury were directed to ignore it unless sure that he committed the earlier offence.

4. The judge should, however, have given a conditional good-character direction. If the jury accepted Olu’s account of the caution, he was to be treated as a person of positive good character and directed on the favourable relevance of that character. The omission did not render his conviction unsafe, given the strength of the evidence and the judge’s reminders of his otherwise good character.

5. There was sufficient evidence to leave both counts against each defendant to the jury. The armed group’s advance and use of weapons permitted a finding that Olu foresaw an intent to kill. Evidence concerning the BMW, CCTV, clothing and blood also justified leaving the cases against Wilson and Brooks to the jury. There was no proper criticism of the minimum terms.

• Court of Appeal (Criminal Division) Dismissed Olu’s appeal against conviction and refused Wilson’s and Brooks’s renewed applications for leave to appeal. It also rejected the challenges to sentence.

• Crown Court at Reading Before Her Honour Judge Zoe Smith, Olu, Wilson and Brooks were convicted of murder and attempted murder. Each received life imprisonment, with concurrent life sentences for attempted murder.