Malook, R v

In a sentence appeal following a Newton hearing, the fresh-evidence test applicable to conviction appeals does not govern. The appellate court must decide whether the sentencing judge would have made the same findings if the undisclosed material had been available. If not, it must itself conduct the Newton hearing afresh, because it has no power to remit that issue.

Serious failures of record keeping and disclosure may require close scrutiny, but do not by themselves establish dishonest suppression. An appellate court will ordinarily not disturb properly directed factual findings from a Newton hearing save in exceptional circumstances. It may, however, qualify a finding that goes beyond what the evidence properly establishes.

The appellant pleaded guilty at Sheffield Crown Court to conspiracy to supply a Class A drug and possession of criminal property. Following a four-day Newton hearing, the judge found that he had led a nationwide heroin enterprise throughout the charged period and sentenced him to 21 years’ imprisonment.

On his application for leave to appeal against sentence, the appellant alleged deliberate police withholding and non-disclosure of material from related Gloucester proceedings. He also challenged the finding that he had no legitimate income while in Dubai. The Court of Appeal received evidence concerning disclosure and proposed fresh evidence concerning income. The central question was whether the undisclosed interview material would have affected the judge’s findings about the appellant’s identity in telephone calls and his role in the conspiracy.

1. Leave was granted. The court rejected the allegation that police officers had dishonestly suppressed evidence or conspired to pervert the course of justice. It found serious deficiencies in record keeping and disclosure, including the non-disclosure of Dewey’s interviews. Those failures arose from an inadequate system and lack of competence, rather than deliberate or malicious conduct.
2. The court received the disclosure material in the interests of justice under section 23 of the Criminal Appeal Act 1968. It held that the fresh-evidence approach for conviction appeals in Pendleton [2001] UKHL 66 was inapplicable. The correct question was whether the Crown Court judge would have made the same Newton findings if Dewey’s interviews had been available. If not, this court would have had to conduct the hearing afresh because it had no power to remit it.
3. The undisclosed interviews would not have affected the finding that the person called “D” in the relevant calls was the appellant. The case summary had already disclosed much of Dewey’s account, no request for the interview had been made, and the interviews required substantial caution. The remaining evidence, including the appellant’s admitted participation, lack of visible legitimate income and cash discovered at premises linked to him, supported the finding of continued involvement.
4. The court refused to admit late evidence from Mr Khan about possible Dubai earnings. The appellant had long known that his income was in issue, had not pursued the material promptly, and admission would require an adjournment and would be unfair to the Crown while rebuttal evidence was resisted.
5. Applying the restrained appellate approach stated in Ahmed (1984) 6 Cr App R (S) 391, the court upheld the substance of the Newton findings. However, the finding that the appellant was the head of the conspiracy had to be qualified. The evidence showed that he was at its centre, at a much higher level than Shoukat Yakoub, and one of those in charge. The court reserved submissions on the appropriate sentence for that role.

• Court of Appeal (Criminal Division). On an application for leave to appeal against sentence, the court granted leave, rejected the principal disclosure and income challenges, qualified the finding that the appellant was the sole head of the conspiracy, and reserved sentencing submissions.
• Sheffield Crown Court. Following a Newton hearing before HH Judge Keen QC, the appellant was found to have led the drug enterprise and was sentenced to 21 years’ imprisonment. A subsequent confiscation order assessed benefit at £4.038 million and available assets at £196,039.34.