Sandhu v R

A conviction is not unsafe merely because prosecution material was disclosed late, or because an evidential irregularity occurred. The decisive question is whether the material could have assisted the defence or undermined the prosecution, and whether the defence had a fair practical opportunity to meet it.

Late disclosure of admissible text messages did not prevent a fair trial where their contents were undisputed and relevant witnesses could be called. Misinformation about unexamined forensic material did not render the trial unfair where the suggested benefit of further examination was speculative. A judge should not advance an uncanvassed explanation in summing up, but such an error will not undermine a conviction where the issue is secondary and the evidence of guilt is strong.

The appellant was convicted at the Crown Court at Cambridge of possessing cocaine with intent to supply and was sentenced to five years’ imprisonment. Cocaine was found beneath the driver’s seat of a car he was driving. The prosecution also relied on cash found at his home, his fingerprint on the carrier bag containing the drugs, and text messages said to support an intention to supply.

He denied knowing that the drugs were in the car. On appeal he challenged the late disclosure and use of police observation evidence and text messages, the handling of fingerprint evidence, and an aspect of the summing up concerning the provenance of cash. He also sought leave to appeal against sentence. The central issue was whether those matters had rendered his trial unfair or his conviction unsafe.

1. The appeal against conviction was dismissed. The court granted leave to appeal against conviction but held that none of the alleged irregularities made the conviction unsafe.

2. The undisclosed observations of the appellant before his arrest neither weakened the prosecution case nor assisted the defence. Their only suggested use was to enable the appellant to shape his account to match them. The appellant had given a no-comment interview and an uninformative defence statement, despite being invited to give detailed particulars of his movements. A different question could have arisen had he first committed himself to an account matching the observations.

3. The late disclosure of text messages was unjustified, but it did not deprive the appellant of a fair trial. The messages would have been admissible if disclosed earlier. Their contents were undisputed, and the defence was able to call two of the relevant correspondents to provide innocent explanations. There was no realistic basis for an expert examination of the telephones or for an adjournment.

4. The defence had been wrongly told that wrapping around the drugs had been examined for fingerprints, when it had not. That was regrettable, but a further examination might only speculatively have identified another person and would not resolve whether the appellant knew that the drugs were in the car. The judge’s direction not to speculate caused no unfairness.

5. The judge was unwise to suggest, without first hearing counsel, a possible explanation for the cash paid into the bank. The provenance of the cash was nevertheless secondary. The prosecution evidence was strong, including the valuable drugs hidden under the driver’s seat, the appellant’s changing account, and the messages received immediately after his arrest. The conviction was safe.

6. Leave to appeal against sentence was refused. The five-year sentence was appropriate for a knowing courier carrying a valuable quantity of cocaine.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted, but the appeal was dismissed; leave to appeal against sentence was refused ([2012] EWCA Crim 1187).
• Crown Court at Cambridge: The appellant was convicted of possession of cocaine with intent to supply and sentenced to five years’ imprisonment.