Lee v R

Disclosure errors do not render a conviction unsafe or require a stay for abuse of process where the errors are cured in time for a properly informed and fair trial. Disclosure is ordinarily a prosecution-led process. Judicial review of material is exceptional and is appropriate only for genuinely borderline questions of disclosability.

An alleged conspirator should be named in a count only where the evidence is capable of establishing that person’s participation in the alleged agreement. Association with an accused person, or generalised suspicion arising from other conduct, is insufficient. Unproven and irrelevant allegations concerning a non-defendant do not meet the statutory requirements for bad-character evidence.

The appellant was convicted at Southwark Crown Court of two conspiracies to cheat the public revenue. The allegations concerned fraudulent allocation of unallocated VAT payments held by HMRC to companies connected with the appellant and to Apex Datacomms. He received concurrent sentences of 30 months’ and 54 months’ imprisonment.

He appealed against conviction on grounds concerning disclosure, the investigation of Terence Sabine, the formulation of a conspiracy count, and rulings on non-defendant bad-character evidence. He also challenged the assessment of his culpability and alleged sentence disparity. The central issue was whether the disclosure and investigative shortcomings, or the trial rulings, made the convictions unsafe.

1. The appeals against conviction and sentence were dismissed. Although the disclosure process was flawed and sometimes dilatory, there was no evidence of prosecutorial bad faith. The substantive defects were cured in time. The appellant had the material needed to advance his case that Sabine, rather than he, may have conspired with Green, and the trial remained fair.

2. The prosecution’s original decision to investigate those who had submitted or signed false HMRC paperwork was proportionate and sustainable. Later material made it arguable that Sabine should have been questioned, but it did not show that the appellant’s convictions were unsafe. The evidence against the appellant, particularly on the Apex Datacomms count, was independent of any possible role for Sabine.

3. The trial judge was correct not to inspect sensitive BTP material. Applying R v H [2004] 2 A.C. 134, disclosure is ordinarily prosecution-led; neutral or damaging material should not be brought before the court, and judicial rulings are reserved for truly borderline cases. The Court itself exceptionally reviewed the material and found it wholly unrelated.

4. The Crown should name a co-conspirator only where the evidence is capable of establishing an agreement with that person in relation to the count. Sabine’s directorship and contact with Green did not provide sufficient evidence that he participated in the count 2 fraud. His possible involvement in other misallocations could not affect the separate Apex Datacomms conspiracy.

5. The judge correctly excluded evidence that Sabine was a target of an unrelated investigation and evidence of his recent arrest. It was neither important explanatory evidence nor substantially probative. The uncertain evidence concerning a second misallocation to Sabine was also properly excluded because it would have created an unfair and distracting ancillary dispute, while substantial admissible material about Green’s other misallocations was before the jury.

6. The sentencing judge was entitled to assess the appellant as highly culpable. His planning, sustained involvement and important role linking Green with others justified that conclusion. The 54-month sentence was within the applicable guideline approach, was not undermined by the sentences imposed on co-defendants, and was not manifestly excessive.

• Court of Appeal (Criminal Division). The court dismissed the appeals against conviction and sentence: [2019] EWCA Crim 2052.
• Crown Court at Southwark. The appellant was convicted on counts 2 and 3 of conspiracy to cheat the public revenue and received a total sentence of 54 months’ imprisonment.