ME, R v

A convicted defendant seeking further post-trial disclosure or renewed examination of material must show a concrete good reason for reopening the issue. The public interest in finality means that a bare assertion that further material may assist the defence is insufficient. A request is properly refused where the material was served before trial, the applicant identifies no specific missing item, and there is no evidential basis for suggesting that the original download was inadequate or that a fresh examination would reveal additional relevant material.

The applicant had been convicted at Woolwich Crown Court of three counts of rape and sentenced to ten years’ imprisonment. He later sought a substantial extension of time to apply for leave to appeal.

The sentence appeal had been abandoned. Most proposed conviction grounds were also abandoned, but the applicant sought disclosure to support a remaining proposed ground. He requested access to his seized mobile telephone for a defence download and the raw data from the prosecution’s earlier download. He alleged, without identifying material beyond one text message, that further communications might assist him.

The central issue was whether there was good cause to require a further disclosure exercise after trial.

1. The application for further disclosure was refused. The court held that no good cause had been shown for a fresh examination of the applicant’s telephone or disclosure of the raw download data.

2. The court applied the finality principle summarised from R (on the application of Nunn) v Chief Constable of Suffolk Yorkshire Police [2014] UKSC 37. Where post-trial material in the prosecution’s possession may assist the defence or undermine the prosecution, disclosure may be required. However, a convicted defendant must provide a proper basis for reopening disclosure.

3. All material downloaded from the applicant’s handset had been served well before trial. Apart from one identified text message, he had not alleged at trial, in his initial grounds, or in the present application that any particular communication was missing or that the material presented to the jury was unbalanced.

4. There was no evidential basis for suggesting that the original download had been incompetently performed, or that improved techniques would now recover further relevant data. The request rested on speculation, including press reports concerning the investigating officer’s involvement in other cases. That did not establish a basis for further disclosure.

5. The court gave the applicant until 13 August 2019 either to abandon the applications for an extension of time and leave to appeal against conviction, or to lodge focused amended grounds with any necessary further applications. The respondent was permitted to respond by 27 August 2019.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 1353, refused the applicant’s post-trial disclosure application and gave directions concerning any focused application for leave to appeal against conviction.
• Crown Court at Woolwich: On 8 March 2016 the applicant was convicted of three counts of rape. On 27 April 2016 he was sentenced to ten years’ imprisonment.