Knagg & Ors, R. v

An appellate court may inspect undisclosed material itself to decide whether disclosure was required and whether a conviction is safe. The appointment of special counsel remains exceptional and is required only where fairness cannot otherwise be secured.

Evidence lawfully obtained abroad is not automatically barred merely because United Kingdom authorities supplied information to foreign authorities. Its admissibility depends on the circumstances and on fairness under PACE. Fresh evidence may be refused where, even taken at its highest, it cannot support an unsafe-conviction appeal. A conviction remains safe if the remaining admissible evidence is overwhelming.

Four appellants challenged convictions for conspiracy to import cocaine following trials and a retrial in the Crown Court at Birmingham. The challenges concerned Dutch recordings of telephone calls involving Hadley and Rich, and draft communications recovered from a Yahoo email account known as slimjim.

They alleged continuing non-disclosure, unlawful acquisition of the two bodies of evidence, and a consequent abuse of process. Ruiz-Henao also sought renewed leave to appeal on the basis that his retrial had breached article 6 because he had represented himself without an interpreter or adequate facilities.

The court reviewed material produced under section 23 of the Criminal Appeal Act 1968. The central questions were whether any further disclosure or special counsel was required, whether the challenged evidence undermined the convictions, and whether Ruiz-Henao’s retrial was unfair.

1. All conviction appeals were dismissed, and Ruiz-Henao’s renewed application for leave to appeal was refused. The court was satisfied that every conviction was safe.

2. The court was entitled to inspect undisclosed material for the limited purpose of deciding whether it ought to be disclosed, whether special counsel was needed, and whether all relevant material had been produced. That course was consistent with R v H [2004] 2 AC 134, R v Chisholm [2010] EWCA Crim 258 and R v Austin [2013] 2 Cr App R 33. Having scrutinised the material, the court found no undisclosed material which might assist the appellants or undermine the prosecution. Special counsel and a further adjournment were therefore unnecessary.

3. The Dutch calls were foreign intercepts, lawfully authorised in the Netherlands. Informal co-operation and information-sharing between British and Dutch authorities did not itself engage the statutory bar on United Kingdom interception evidence. Applying the approach in R v Aujla [1998] 2 Cr App R 16 and R v P [2002] 1 AC 146, the trial judges were entitled to admit the calls under section 78 of PACE. The fresh Dutch evidence did not justify its admission under section 23 of the Criminal Appeal Act 1968.

4. The Yahoo material was not shown to be the product of unlawful live monitoring or interception. The evidence explained that the account was preserved and later searched by snapshots, and that deleted material could remain on Yahoo’s server. The appellants’ expert evidence was speculative and provided no factual basis to challenge admissibility. The trial judges were entitled to admit the slimjim evidence and to reject the associated abuse-of-process challenge.

5. Ruiz-Henao had not been denied a fair trial. The trial judge was entitled to conclude that he had engineered the breakdown with his legal team, that he had chosen self-representation, and that his English and the facilities available to him were sufficient for a fair retrial. There was no arguable breach of article 6 of the European Convention on Human Rights.

6. Independently, even if either or both challenged evidential categories had been excluded, the remaining prosecution case was overwhelming. That provided a separate basis for holding the convictions safe.

• Court of Appeal (Criminal Division): Dismissed all appeals against conviction and refused Ruiz-Henao’s renewed application for leave to appeal.
• Court of Appeal (Criminal Division): At directions hearings, granted leave to Knaggs, Hadley and Rich and later joined Ruiz-Henao’s appeal: [2014] EWCA Crim 735; [2015] EWCA Crim 1007; [2017] EWCA Crim 1068.
• Birmingham Crown Court: Knaggs, Hadley and Rich were convicted on 20 February 2012 after trial before HHJ Inman QC. Ruiz-Henao was convicted after a retrial before HHJ Chambers QC on 13 November 2012.