Austin, R v

A trial judge should not obtain and read closed material unilaterally when determining disclosure or abuse-of-process applications. In an unusual case, the judge may, after notifying the parties, review such material to determine whether disclosure has been properly made. The appointment of special counsel to assist with disclosure is exceptional and discretionary.

Article 6 fairness is assessed by reference to the criminal proceedings as a whole, including the appeal. A procedural error below will not render a conviction unsafe where appellate review establishes that no further disclosure was required and that the withheld material neither undermined the prosecution nor supported the alleged abuse of process.

The appellant was convicted at Winchester Crown Court of conspiracies to conceal and convert the proceeds of criminal conduct arising from the laundering of money stolen from Commerzbank. The sole issue at trial was whether he knew that the money was criminal property.

Before trial, he sought disclosure and a stay for abuse of process. He relied on disclosure failures in an earlier, separate cocaine prosecution. The trial judge read unredacted closed judgments from the earlier appeal without first informing the parties, declined to appoint special counsel, and rejected the disclosure and abuse applications.

On appeal, special counsel reviewed the closed judgments, related advice and the unused material. The central issue was whether the procedure below breached Article 6 and rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe. Article 6 compliance had to be assessed by reference to the proceedings as a whole, including the appeal. The appellate review established that no withheld material required disclosure, undermined the prosecution case, or supported an abuse-of-process allegation.

2. Disclosure and abuse of process are distinct. Disclosure concerns material that may be used before a tribunal of fact or on an interlocutory issue. A judge may inspect material for the limited purpose of deciding disclosure, subject to the proper procedure, and must then exclude it from later decisions if disclosure is refused. Abuse of process, by contrast, involves a substantive determination and creates difficulty if it is resolved by reference to material unknown to the defence.

3. The trial judge erred by obtaining and reading the closed judgments without first raising that proposed course with the parties. He could instead have accepted the prosecution’s disclosure assurance. Alternatively, given the unusual history, he could have notified the parties and reviewed the material to satisfy himself that disclosure in the money-laundering proceedings had been properly discharged. That course would have accorded with R v H and C [2004] 2 AC 134.

4. The appointment of special counsel at first instance to assist with disclosure would have been permissible, but was not obligatory. It is a rare and fact-sensitive safeguard, not a routine consequence of an abuse allegation. Any such appointment should have been confined to disclosure. The court deliberately reached no conclusion on whether special counsel could properly argue the substantive abuse issue at first instance.

5. At the appellate stage, the court may review undisclosed material when assessing the safety of a conviction and may seek special counsel’s assistance where justice requires. The court approved its observations in R v Chisholm [2010] EWCA Crim 258.

6. The prior cocaine-case disclosure failures were confined to intercept evidence in that case. They did not taint the money-laundering investigation or its evidence. The material revealed errors and poor judgment, but no deliberate non-disclosure, bad faith or manipulation. There was therefore no breach of Article 6 and no basis to doubt the convictions.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court held that, notwithstanding the procedural error below, the convictions were safe after review of the relevant closed and unused material.
• Winchester Crown Court: The appellant was convicted on 21 October 2011 of conspiracy to conceal and conspiracy to convert the proceeds of criminal conduct. Before trial, the judge rejected applications for further disclosure, appointment of special counsel and a stay for abuse of process.