Knaggs & Ors, R v

On a post-conviction disclosure application, the prosecution must disclose unknown relevant material which might assist an appellant and make further inquiries where there is a real prospect that they might reveal such material. The directions court must decide disclosure requests without determining whether that wider duty has ultimately been met.

An asserted failure to prove lawful authority for obtaining communications does not itself justify a disclosure order. The question is whether there is material which might assist the appellants. If the prosecution elects to prove lawful authority or the absence of live monitoring, the means of proving that assertion are ordinarily for it to choose.

The appellants had been granted permission to appeal their convictions on grounds concerning the admissibility of communications between alleged conspirators. The communications comprised recorded prison PIN calls, Dutch-intercepted mobile calls and material from a Yahoo email account.

This was a disclosure and directions hearing. The court considered requests for material said to bear on the lawfulness of the interception or monitoring of each form of communication. It also considered a Criminal Cases Review Commission report concerning a possible juror connection with HMP Lowdham Grange.

The central issues were whether further disclosure or inquiries should be ordered, and what directions were required before the substantive appeals.

1. Disclosure and directions were given; the substantive appeals were not determined. The court declined most of the appellants’ requested disclosure directions. It ordered copies of the relevant Dutch court orders or authorisations and directed further CCRC inquiries concerning the possible juror issue.

2. Applying the common-law duty stated in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] 3 WLR 77, the respondent had to disclose unknown relevant material which might assist the relevant appellants, and make further inquiries where there was a real prospect of finding such material. The court emphasised that its rulings on particular requests did not decide whether the respondent had complied with that overarching duty. That issue remained for the constitution hearing the appeals.

3. For the prison calls, the respondent asserted compliance with section 47 of the Prison Act and the relevant provisions of the Prison Rules 1999. In the absence of apparent contrary material, and following a further witness statement, the court did not order further disclosure. The prosecution’s choice to prove lawful authority did not permit the court to direct the evidential content of its proof.

4. The same principle applied to the Dutch intercepts. The absence to date of the examining magistrates’ orders or BOB file did not itself support an inference that undisclosed material might assist the appellants. However, because the Dutch prosecutor confirmed that the relevant orders or authorisations existed and could be supplied, the court ordered their provision pragmatically.

5. For the Yahoo account, the court held that the respondent had sought the technical material through the United States authorities and that the existing evidence strongly asserted there had been no unlawful live monitoring. It declined to require a further request. Paragraph 60 of the Attorney General’s Guidelines permitted reasonable informal steps to obtain relevant foreign material; lack of formality alone was not a valid criticism.

• Court of Appeal (Criminal Division): permission to appeal the convictions on communications-evidence grounds was granted in [2014] EWCA Crim 735. In this judgment, the court determined related disclosure applications and gave directions for the substantive appeals.
• Lower court: the convictions under appeal are referred to, but the judgment gives no citation or further details of the trial decision.