Joof & Ors v R

Prosecutors and police must not evade disclosure duties by declining to investigate material that may undermine the prosecution or assist a defendant. Labelling a complaint as sub judice does not justify postponing necessary enquiries. Where a prosecution depends on an essential witness, material capable of seriously undermining that witness’s credibility, or the integrity of those handling the witness, must be disclosed. Non-disclosure of such material may deprive the defence of a proper basis to challenge the prosecution case and require convictions to be quashed.

Five defendants were convicted at the Crown Court at Leicester, before Treacy J, of the murder of Kevin Nunes and were sentenced to life imprisonment.

The prosecution case depended on four witnesses, particularly Simeon Taylor, who was the only prosecution witness said to have seen the shooting. Following applications for leave to appeal, the Court of Appeal directed an investigation by the Criminal Cases Review Commission. The appeal proceeded first on findings concerning the handling of Taylor by Staffordshire Police’s Sensitive Policing Unit.

The central issue was whether serious undisclosed material concerning Taylor, his handlers, and the unit’s records and practices had undermined the convictions.

1. The appeals were allowed. The convictions were quashed, and the respondent properly did not seek a retrial.
2. The court held that the decision to defer complaints about the handling of Simeon Taylor because their investigation might generate disclosable material was wrong. The disclosure obligations under the Criminal Procedure and Investigations Act 1996 and the Attorney-General’s Guidelines cannot be avoided by refusing to make enquiries of a person who may have material capable of undermining the prosecution or assisting the defence.
3. The complaints were wrongly characterised as sub judice. That label did not justify postponing investigation pending trial.
4. The Costello Report, and the availability of DI Anderson to give evidence, should have been disclosed, with redaction if necessary. The report raised serious concerns about the credibility of Taylor, the integrity of those responsible for handling him, the reliability of their records, possible inducements, and the possibility that Taylor had acquired knowledge of the prosecution case from police sources.
5. Because Taylor was an essential prosecution witness, the undisclosed material would have enabled the defence to mount a substantially different challenge to his evidence and to the integrity of the witness-handling system. Had it been available, the prosecution might not have proceeded, or the trial judge might have stopped the case for gross prosecutorial misbehaviour. The court described the non-disclosure as very serious and comparable in character to Maxwell [2010] UKSC 48.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 1475, allowed the appeals and quashed all five murder convictions. The respondent did not seek a retrial.
• Crown Court at Leicester: Treacy J presided over a trial ending on 11 January 2008 in convictions for murder. On 14 January 2008, each defendant was sentenced to life imprisonment.