Grant & Ors v R

A failure to disclose material relevant to the credibility of a principal prosecution witness does not by itself make a conviction unsafe. The appellate question is whether timely disclosure could realistically have affected the verdict of a properly directed jury. That assessment must consider the whole trial context, including the witness’s earlier accounts, the timing of any expected benefit, information already available to the defence, and the scope for cross-examination. The prosecution’s disclosure duty is corporate and cannot be avoided because trial counsel lacked the information.

The appellants were convicted after a retrial at the Central Criminal Court. Grant and Downie were convicted of murder, and Williams of conspiracy to murder. Each received life imprisonment with a minimum term specified under section 269(2) of the Criminal Justice Act 2003.

The prosecution depended substantially on the evidence of a witness known as Susan Norwich. Before the retrial, she had been arrested and charged with serious drug offences. Following the appellants’ convictions, she received a suspended sentence after the police provided material recording her assistance as a prosecution witness.

The appellants appealed on the ground that the prosecution had failed to disclose material bearing on whether she expected assistance in her own case. The central issue was whether the non-disclosure created a real possibility of a different verdict.

1. The appeals against conviction were dismissed. The court accepted that relevant material had not been disclosed and that the conduct of two police officers in connection with assistance to Susan Norwich was improper. Trial counsel’s lack of knowledge did not remove the prosecution’s disclosure obligation. The obligation is corporate and applies to information held by any arm of the prosecution.

2. There is no separate disclosure standard for cases involving gang-related offending or reluctant witnesses. The court also held that an officer’s unauthorised involvement in providing assistance for a witness’s sentencing, including conduct contrary to the practice identified in R v X [1999] 2 Cr. App. R 125, was a serious irregularity. Impropriety alone, however, did not determine whether the convictions were unsafe.

3. The decisive inquiry was whether disclosure before trial, or before cross-examination, would likely have made a difference to the verdict of a properly directed jury. The possible effect on advocacy style or courtroom presentation was irrelevant. The court accepted that this was substantially a one-witness case and that the undisclosed material would have furnished further cross-examination.

4. On the particular chronology, however, Susan Norwich had first provided substantially the same account and had given evidence at the first trial before she committed the drug offences or could have expected sentencing assistance for them. The defence knew of her arrest and prosecution, and could have questioned her about any expectation of benefit. Her evidence had not become more incriminating at the retrial. In that context, express disclosure of the proposed assistance would not have left a conscientious jury in reasonable doubt about her credibility.

• Court of Appeal (Criminal Division) — Grant & Ors v R [2015] EWCA Crim 1815: appeals against conviction based on non-disclosure were dismissed.

• Central Criminal Court — following a retrial, Grant and Downie were convicted of murder and Williams of conspiracy to murder. The jury returned majority verdicts on 23 July 2010, and the appellants were sentenced on 26 July 2010.