Barkauskas v R

Non-disclosure of sensitive covert-identification methodology does not render a criminal trial unfair where public interest immunity is properly established, the court rigorously examines the material, and the defence retains sufficient open material and other evidence with which to challenge the prosecution case.

Evidence with no material bearing on the issues may properly be excluded where it would generate extensive satellite litigation. An inadvertent reference to irrelevant and minimally prejudicial material will not require discharge of the jury if a clear direction can cure any prejudice. Judicial frustration with counsel does not itself make a trial unfair unless it affects the fairness of the proceedings.

Following a re-trial at Snaresbrook Crown Court, Franckevicius was convicted of conspiracy to steal motor vehicles, conspiracy to receive stolen goods and handling stolen goods. Barkauskas was convicted of conspiracy to receive stolen goods.

They sought leave to appeal against conviction. Their principal complaints concerned public interest immunity protecting covert vehicle-identification markers, further expert evidence, directions on expert evidence, the exclusion of footage concerning an officer in a separate operation, an inadvertent reference to pepper spray, and the judge’s conduct towards defence counsel. Franckevicius also sought leave to appeal against his nine-year sentence.

The central issues were whether the applicants had received a fair trial and whether their convictions or sentence were unsafe.

1. The applications for leave to appeal against conviction and sentence were dismissed.

2. The judge had conducted a thorough and fair public interest immunity exercise. The covert-marker methodology was properly withheld. The court had scrutinised the material, including the audit trail, and had kept trial fairness under review. The vehicles and parts were not identified solely by covert markers. The defence had open material available to it and the prosecution case also rested substantially on overt indicators, surveillance, number-plate-recognition evidence, physical exhibits and paperwork. The absence of disclosure of the methodology, and the absence of a special advocate, did not undermine fairness.

3. The complaint about further expert evidence was unfounded. Nearly all supplementary material from the prosecution expert arose from defence requests. Subject to the restriction on covert markers, matters requiring clarification could generally have been tested in cross-examination. The expert directions, settled after discussion with counsel, were adequate.

4. The judge was entitled to exclude footage of an officer using force during an arrest in a distinct police operation. It had no sufficient probative connection with the issues in this trial and would have generated disproportionate satellite litigation. Nor did the inadvertent reference to CS spray require the jury’s discharge. The judge was entitled to find it inadvertent, and her robust direction to disregard irrelevant material cured any negligible prejudice.

5. The relationship between the judge and defence counsel had deteriorated. It would have been preferable for the judge to limit criticism in the defendants’ presence and to avoid substantive email exchanges. However, the criticism did not occur before the jury and did not affect the fairness of the trial.

6. Franckevicius’s role as mastermind was supported by the evidence. Consecutive sentences for the two conspiracies were justified. The judge had reduced otherwise appropriate sentences to avoid double counting and to reflect totality, so the total sentence of nine years was not excessive.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 1210, dismissed the applicants’ applications for leave to appeal against conviction and dismissed Franckevicius’s application for leave to appeal against sentence.
• Snaresbrook Crown Court: Following a re-trial before Her Honour Judge Kaul QC, convicted Franckevicius and Barkauskas of the relevant conspiracies and imposed sentences including a total of nine years’ imprisonment on Franckevicius and five years’ imprisonment on Barkauskas.