Randhawa v R

Whether material compelled under a restraint order requires disclosure in a criminal trial must be assessed against the issues actually raised, the evidence and unused material, the defence case, and the way the trial was conducted. Material does not meet the disclosure threshold merely because it might provide possible ammunition for a theory that was not advanced at trial. Material concerning later conduct may be immaterial to an earlier charged conspiracy where it does not undermine the prosecution case or assist the accused on the live issues.

The appellant was convicted at Birmingham Crown Court of conspiracy to cheat the public revenue arising from a large missing-trader intra-community fraud involving mobile phones during 2005.

Before the trial, his co-defendant had supplied information under a restraint order. The order restricted the use of that compelled material and prohibited its disclosure to a co-defendant. The trial judge inspected it and held that it neither might undermine the prosecution case nor might assist the appellant.

On appeal, the appellant contended that material said to concern the co-defendant’s later trading could have supported his defence. The central issue was whether the non-disclosure rendered the conviction unsafe.

1. Appeal dismissed. The court upheld the conviction. It accepted that the compelled material could, for present purposes, be assumed to show that the co-defendant carried out a carousel fraud in 2009 after the appellant had ceased to be a director.
2. The assumed later conduct did not establish that the material met the disclosure threshold. The indictment concerned the first ten and a half months of 2005. The material had to be assessed in the context of the trial evidence, unused material, defence statement, cross-examination, and the way the defence had been put.
3. There had been no cut-throat defence. The appellant had not contended that the co-defendant knowingly participated in the charged fraud while he did not, and had not pursued questioning about the co-defendant’s later trading. The possibility that the material might have supplied some ammunition was insufficient.
4. The trial judge, and subsequently the prosecutor and disclosure officer after being permitted to inspect the material, had each concluded that it was not disclosable. The court saw no reason to investigate that conclusion further and therefore found no basis to regard the conviction as unsafe.

Postscript. The court identified, but did not determine, whether a restraint-order provision allowing compelled material to be disclosed to the prosecution for disclosure purposes could infringe the privilege against self-incrimination or create abuse-of-process issues if material crossed a protective information barrier.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed on 18 January 2012.
• Crown Court at Birmingham. The appellant was convicted by HHJ Inman QC and a jury on 24 June 2010 of conspiracy to cheat the public revenue.