Burke, R. v

A conviction is not unsafe merely because withheld material might have affected the jury’s decision. The Court of Appeal must decide for itself whether the material causes it to doubt the safety of the verdict, after assessing the whole of the evidence.

Bases of plea that may undermine the prosecution case or assist a co-defendant’s defence should be disclosed. Their non-disclosure may mislead a jury where the prosecution relies on contacts occurring outside a co-conspirator’s admitted involvement. Nevertheless, convictions remain safe where the properly available evidence provides a compelling basis for guilt.

The appellant was convicted at Liverpool Crown Court of conspiracies to supply cocaine and heroin. Her case was referred by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995.

The prosecution had relied substantially on the appellant’s contacts with alleged conspirators at significant times. Four co-defendants had pleaded guilty on bases that limited their involvement in particular drug seizures. Those bases had not been disclosed to the appellant or the jury.

The appeal concerned whether the non-disclosure, and the resulting inconsistency between the prosecution case and the limited pleas, rendered either conviction unsafe.

1. Appeal dismissed. The court held that the bases of plea of Christopher Burke, Keith Burke, John Mullally and Russell Burke should have been disclosed. They were capable of undermining the prosecution case or assisting the appellant’s defence under the Criminal Procedure and Investigations Act 1996.

2. The omission gave the jury a misleading impression. The formal admissions presented the co-defendants as having accepted unrestricted participation in the conspiracies. In fact, the Crown’s case relied on contacts at times when particular co-defendants had limited or denied their involvement. The appellant was also deprived of material capable of supporting her defence of innocent association.

3. Applying Mushtaq Ahmed v The Queen [2010] EWCA Crim. 2899, the question was not whether the undisclosed material might have affected the jury. The court had to decide for itself whether it caused doubt about the safety of the verdicts.

4. The cocaine conviction was safe. The Dover evidence was unaffected by the limited pleas, and the evidence concerning that seizure, Knowsley and Radisson provided a compelling basis on which the jury could find the appellant guilty.

5. The heroin evidence, viewed in isolation, was less strong because Christopher Burke had not admitted involvement in the Speke seizure and Keith Burke had not been proceeded against on that count. However, the court was satisfied that the appellant’s overwhelming involvement in the continuing cocaine conspiracy, together with the evidence concerning the Suffolk seizure and Christopher Burke’s admitted participation in it, meant that the heroin conviction was also safe.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court dismissed the appeal against conviction.

• Court of Appeal (Criminal Division) — A single judge refused leave to appeal on 20 February 2007. The full court refused the renewed application on 25 January 2008, reported as R v Baker and others [2008] EWCA Crim. 334.

• Crown Court at Liverpool — On 6 July 2006 the appellant was convicted of conspiracy to supply cocaine and conspiracy to supply heroin. On 7 July 2006 she was sentenced to concurrent terms of 20 years’ imprisonment.