Barkshire & Ors, R. v

In a criminal prosecution, the Crown must disclose material which might reasonably be considered capable of undermining its case or assisting the accused, as required by Criminal Procedure and Investigations Act 1996, section 3. The duty includes material that may support an available defence, challenge the prosecution’s account, or found an abuse-of-process submission.

A conviction is unsafe where non-disclosure deprives the defence and jury of such material and thereby renders the trial unfair. Where that conclusion disposes of the appeal, the appellate court need not determine a separate unresolved question about the substantive availability of a necessity or justification defence.

Twenty appellants were convicted at Nottingham Crown Court of conspiracy to commit aggravated trespass arising from a planned occupation of Ratcliffe-on-Soar power station. The essential facts of the planned protest were largely admitted. The trial proceeded on the basis that necessity or justification was available as a defence.

After the convictions, material concerning an undercover police officer, Mark Kennedy, emerged. It included recordings and a police statement which had not been disclosed. The appellants appealed on the ground that the non-disclosure had made their convictions unsafe.

The central issue was whether the undisclosed material was capable of assisting the defence or undermining the prosecution case so that the trial had been unfair.

1. The appeals were allowed and all convictions were quashed. The Crown had failed to disclose material relating to the role and activities of the undercover officer, Mark Kennedy, which was capable of assisting the defence and undermining the prosecution case.

2. Section 3 of the Criminal Procedure and Investigations Act 1996 required disclosure of material which might reasonably be considered capable of undermining the prosecution or assisting the accused. The court treated that duty as a fundamental protection of trial fairness, consistent with H and C [2004] AC 134.

3. The recordings and statement could have supported the appellants’ case that the proposed action was directed to reducing carbon emissions rather than publicity, and that it was intended to be non-violent, safe and proportionate. They also disclosed the officer’s potentially significant participation in the activity for which the appellants were prosecuted. The material was pertinent to a possible abuse-of-process submission based on entrapment and to the available necessity or justification defence.

4. Because the defence and jury had been unaware of this potentially helpful material, the trial was unfair and the convictions unsafe. The court did not reconsider the preliminary ruling which had permitted the defence, although it expressed reservations about it and stated that the scope for political belief to justify criminal conduct would require consideration on another occasion.

5. The court declined to conduct a further disclosure inquiry. Multiple police, CPS and independent reviews were already investigating the events, and a court-led inquiry would add little while wasting resources and disrupting those processes. Ancillary defence costs orders had been made.

• Court of Appeal (Criminal Division): Allowed the appellants’ appeals and quashed their convictions because material non-disclosure had rendered the trial unfair.
• Nottingham Crown Court: On 14 December 2010, a jury convicted the 20 appellants of conspiracy to commit aggravated trespass.