Bakac, R v

A conviction is not rendered unsafe by an alleged disclosure deficiency where the defendant could fairly advance the defence, including through admissions made by the prosecution, and was not unfairly disadvantaged by the absence of further material. An appellate court will uphold a disclosure and public-interest-immunity ruling where no legal error or unfairness is shown.

A renewed application for leave to appeal that is wholly without merit may justify a loss of time order, particularly where it fails to address the single judge’s reasons and has caused other cases to be delayed.

The applicant and a co-accused were convicted at Manchester Crown Court of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979. They had collected more than 20 kilograms of heroin from a lorry at motorway services.

The applicant’s defence was that the journey was to obtain bullet-proof vests for his co-accused, who was allegedly at risk from the Tottenham Boys gang. Before trial, he sought further disclosure and challenged a public-interest-immunity ruling concerning police intelligence about the gang. The prosecution made admissions which assisted the defence, but the trial judge refused further disclosure.

A single judge refused leave to appeal. The applicant renewed the application to the Full Court, contending that inadequate disclosure and erroneous rulings had made his conviction unsafe.

1. The renewed application for leave to appeal against conviction was dismissed. The court held that the applicant had been able to present his defence. The prosecution’s admissions enabled him to place the relevant case about the alleged gang threat before the jury. His co-accused’s unwillingness to join every admission did not prevent that course.

2. The trial judge had reviewed the public-interest-immunity ruling and was entitled to conclude that no further disclosure was required. Although the judge had considered the principles in R v H [2004] 2 AC 134, the Full Court’s conclusion rested on the practical fairness of the trial. The applicant suffered no unfair disadvantage from the absence of additional material. There was no arguable inadequacy or unfairness in the disclosure, and no error of law in the ruling.

3. The evidence was strong independently of the conflicting accounts given by the two defendants. It supported the jury’s conclusion that both were knowing participants in the heroin-importation conspiracy. The disclosure grounds therefore cast no doubt on the safety of the conviction.

4. A loss of time order was made. The renewed application was wholly without merit. It did not address the single judge’s reasons or explain why they were wrong, and its preparation and listing had delayed more deserving cases. The court directed that 42 days already spent in custody should not count towards the applicant’s sentence.

• Court of Appeal (Criminal Division): The Full Court dismissed the renewed application for leave to appeal against conviction and made a 42-day loss of time order in [2017] EWCA Crim 971.
• Court of Appeal (Criminal Division): Cheema-Grubb J, sitting as the single judge, refused leave to appeal on the papers.
• Crown Court at Manchester: On 21 June 2016, the applicant was convicted of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979 and was later sentenced to 16 years’ imprisonment.