Clarke & Anor, R. v

In a post-conviction appeal based on fresh evidence, a contested claim for disclosure, including a claim of public interest immunity, may be determined by a single judge under section 23(1)(a) of the Criminal Appeal Act 1968. That power includes ordering, or declining to order, production of documents. A three-judge court remains necessary to determine the appeal against conviction, but a two-judge court may conduct its preparation.

The procedure requiring the appellate court reviewing a Crown Court public-interest-immunity ruling to be constituted by the same judges as hear the appeal does not govern a first-instance post-trial disclosure exercise. A refusal by the single judge is subject to the appellant’s statutory right to have the application determined by the full court.

In 1988, Andrew James Clarke and Geoffrey Brian Sheppard were convicted at the Central Criminal Court of arson arising from fires at three Debenhams stores. In 2014, some 26 years out of time, they applied for leave to appeal against conviction.

The applications relied entirely on fresh evidence concerning Robert Lambert’s undisclosed status as an undercover police officer. The applicants contended that disclosure at trial would have enabled them to advance an agent provocateur defence. Extensive further disclosure was likely, with public interest immunity claimed over redacted and withheld material.

The applications could not be heard before 2018. The preliminary issue was whether disclosure disputes concerning fresh evidence could be determined by a single judge, rather than by the three-judge constitution that would determine any appeal against conviction.

1. Directions were given and the applications for leave to appeal remained adjourned. The court decided the procedure for determining disclosure disputes arising before the eventual hearing of the applications.

2. A continuing common-law duty of fairness requires disclosure after conviction of new material which might provide arguable grounds for contending that a conviction is unsafe. Public interest immunity may justify only the minimum derogation from full disclosure consistent with a fair process. The court, rather than the Crown, determines whether otherwise disclosable material must be withheld.

3. Under section 55 of the Senior Courts Act 1981, three judges are required to determine an appeal against conviction. A two-judge constitution may nevertheless perform all steps required to prepare such an appeal.

4. Section 23(1)(a) of the Criminal Appeal Act 1968 is the principal power governing fresh evidence in these applications. It permits the court to order production of documents necessary for determination of the case. It also encompasses deciding whether documents should be produced where the Crown contests relevance or relies on public interest immunity, even though no disclosure ruling was made at trial.

5. By section 31(2)(i), that document-production power may be exercised by a single judge. The full court, a single judge or the Registrar may therefore direct that the single judge determine the disclosure application. The single judge need not sit on the eventual appeal, although in this case Holroyde J was expected to do so.

6. Section 31(3) provides a safeguard: an applicant may require an adverse refusal by the single judge to be determined by the Court of Appeal. The single judge may also adjourn a matter for the full court if the Crown wishes to advance further argument. Where the single judge is to sit on the appeal, the remaining two judges may determine such a challenge.

7. The procedure in R v McDonald [2004] EWCA Crim 2614, requiring the same constitution to review material considered in a Crown Court public-interest-immunity exercise, addressed a different situation. It did not apply where post-trial disclosure and immunity questions were being determined for the first time by this court. The court noted, without deciding the point for these applications, that section 23(4) could later permit evidence to be taken before a single judge.

• Court of Appeal (Criminal Division) In this interlocutory judgment, the court held that a single judge could determine post-trial disclosure applications under section 23(1)(a) of the Criminal Appeal Act 1968. The applications for leave to appeal against conviction were adjourned for a further preliminary hearing.

• Central Criminal Court On 17 June 1988, before HH Judge Neil Denison QC, both applicants were convicted of arson. No citation for that decision was stated in the judgment.