Hadley & Ors, R. v [2006] EWCA Crim 2544

[2006] EWCA Crim 2544Case No 2005 05754
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE MURPHY QC
200406245B5
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 October 2006
Before
LORD JUSTICE MOORE-BICKMR JUSTICE GRIGSONHIS HONOUR JUDGE MOSS QC
Between
THE QUEENRespondentPHILIP WILLIAM HADLEYAppellantsANTHONY EDWARD HADLEYAppellantJOSEPH SKIDMOREAppellantCOLIN MALLOWSAppellant
Mr. Robin Spencer Q.C. and Mr. Charles Benson (instructed by Draycott Browne) for Philip HadleyMr. Anthony Barraclough and Mr. Ian McMeekin (instructed by Draycott Browne) for Anthony HadleyMr. Alan Conrad Q.C. and Miss Rachel Smith for Joseph SkidmoreMr. T. H. Stead for Colin MallowsMr. Sean Morris and Mr. Richard Wright (instructed by the Crown Prosecution Service) for CrownHearing Hearing dates: 16 and 17 th October 2006
Judgment

Background

[1]In July 2002 police officers from the National Crime Squad began keeping observations on movements at a wood yard in Rotherham. The main focus of their attention was the first appellant, Philip Hadley, the owner of the business, whom they suspected of being involved in the distribution of prohibited drugs on a substantial scale. In due course the police set up an observation post from which they could keep watch on the movement of traffic and persons into and out of the yard. In October 2002 a video camera was installed in the observation post to enable a recording to be made of what went on within the scope of the camera’s view and in November a second camera was added to enable different views to be recorded simultaneously. The cameras were installed by the police Technical Support Unit and were monitored by one of the officers involved in the surveillance exercise, D.C. Cheetham.[2]On 21st February 2003 the fourth appellant, Colin Mallows, who managed a poultry farm in Mansfield, was seen by the police arriving at the wood yard on a motorcycle. He spoke to Philip Hadley and, according to another of the officers who was taking part in the observations at that time, D.C. Hardwick, handed him a package which Philip Hadley placed inside a white van already loaded with timber. Shortly afterwards the van was driven out of the yard and was followed by the police to the business premises of Philip Cox who traded under the name “The Joy of Koi”. The police searched the van and found 2kg of heroin in a white plastic carrier bag lying among the timber. Philip Hadley, his brother, Anthony Hadley (the second appellant), who was a partner in the timber business, Philip Cox and the driver of the van, Anthony Skidmore, were all arrested.[3]Later the same day the police carried out searches at a number of different locations. A search was made of Philip Hadley’s home where the police found two bundles of bank notes to a value of £240 and £1,950 respectively. Some bank notes had previously been found on his person. A substantial proportion of the various notes seized were contaminated with heroin. The police also searched the home of the third appellant, Joseph Skidmore, where they found £6,000 in bank notes in a sweet tin, a separate bundle of bank notes to the value of £2,000 and a third bundle of bank notes to the value of £13,000 in a cash box. A high proportion of the notes in each case were contaminated with heroin. When Mallows returned home at about 6.00 p.m. that day he found police officers waiting for him. Having been arrested on suspicion of possession of drugs with intent to supply, he took the officers to where 27kg of heroin were hidden.[4]As a result of these events Philip Hadley, Anthony Hadley, Cox, Mallows Joseph Skidmore and Alan Skidmore were jointly charged on an indictment containing a single count of conspiracy to supply heroin. On 29th April 2003 Mallows pleaded guilty. The trial of the remaining defendants began at Sheffield Crown Court before His Honour Judge Murphy Q.C. and a jury on 23rd August 2004. Alan Skidmore was acquitted on the direction of the judge following a successful submission of ‘No case to answer’. On 11th October Philip Hadley Anthony Hadley and Joseph Skidmore were all unanimously convicted of the offence with which they were charged. The jury were unable to agree in the case of Cox and were therefore discharged from reaching a verdict in his case. On 12th October Philip Hadley was sentenced to 16 years’ imprisonment, Anthony Hadley to 12 years’ imprisonment, Colin Mallows to 10 years’ imprisonment and Joseph Skidmore to 6 years’ imprisonment.[5]Applications by Philip Hadley, Anthony Hadley and Joseph Skidmore for leave to appeal against conviction and sentence and an application by Colin Mallows for leave to appeal against sentence have all been referred to the Full Court by the Registrar. In addition Philip Hadley requires an extension of time of about one year and Joseph Skidmore an extension of time of about 19 months. We indicated to counsel at the opening of the hearing that we were minded to grant those applications and that we wished to hear argument in relation to the substantive appeals. Grounds of appeal against conviction[6]Although the grounds of appeal differ in detail, one allegation is common to all, namely, that the Crown failed to disclose material that would have undermined the case for the prosecution or assisted the case for the defence and that as a result the convictions are unsafe. This complaint lies at the heart of all the appeals against conviction and we shall therefore consider it first. In addition Anthony Hadley put forward a separate ground of appeal asserting that he was not given proper advice by those representing him at the trial about the consequences of a failure to give evidence and that as a result he did not make an informed and free choice about giving evidence. However, that ground has since been abandoned. Like the other appellants Joseph Skidmore relies on the Crown’s failure to give proper disclosure, but he also alleges that the way in which the forensic evidence was prepared and presented by the Crown together with the failure of his legal representatives to have that evidence independently examined rendered his trial unfair. The duty of disclosure[7]The investigation into the offences charged in the indictment began in 2002 and the prosecution’s duty of disclosure was therefore governed by the Criminal Procedure and Investigation Act 1996 in the form which it took prior to its amendment by the Criminal Justice Act 2003. Section 3 of the Act provided, so far as is material for present purposes, as follows:
“3. The prosecutor must – (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused . . . . . ”
The prosecution was under a duty to make such disclosure, known as “primary disclosure”, as soon as reasonably practicable after the case was transferred for trial. (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused . . . . . ”[8]In cases where the accused served a defence statement the prosecution was obliged under section 7 of the Act to provide disclosure (known as “secondary disclosure”) of any additional material in its possession relevant to the case put forward by the accused. Section 7 (again, so far as material for present purposes) provided as follows:
“(2) The prosecutor must – (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused’s defence as disclosed by the defence statement given under section 5 or 6, . . . . . . ” (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused’s defence as disclosed by the defence statement given under section 5 or 6, . . . . . . ”
[9]The duty of disclosure imposed by sections 3 and 7 of the Act fell to be discharged well in advance of the trial, but section 9 also imposed on the prosecution a duty to keep the position under review throughout the proceedings. So far as is material it provided as follows: “(2) The prosecutor must keep under review the question whether at any given time there is prosecution material which –(a) in his opinion might undermine the case for the prosecution against the accused, and(b) has not been disclosed to the accused and if there is such material at any time the prosecutor must disclose it to the accused as soon as is reasonably practicable. . . . . . . . . . . . . . . . . . . . . (5) The prosecutor must keep under review the question whether at any given time there is prosecution material which – (a) might reasonably be expected to assist the accused’s defence as disclosed by the defence statement . . . . and (b) has not been disclosed; and if there is such material at any time the prosecutor must disclose it to the accused as soon as is reasonably practicable.” (a) in his opinion might undermine the case for the prosecution against the accused, and (b) has not been disclosed to the accused (a) might reasonably be expected to assist the accused’s defence as disclosed by the defence statement . . . .

(b) has not been disclosed;

[10]Detailed guidance on the discharge of the prosecution’s duties in relation to disclosure were published in the form of the Attorney-General’s Guidelines issued in November 2002, but it is unnecessary to refer to them in detail. The disputed material[11]The material which has given rise to these appeals was all derived in one way or another from the surveillance of activities at the wood yard between 8th October 2002 and 21st February 2003. In order to describe it properly it is necessary to say a little more about the process by which the observations in question were made and recorded.[12]The cameras installed in the observation post operated continuously and only needed to have the cassettes changed daily. Adjustments could be made to alter the camera angle and field of vision. Responsibility for changing the cassettes and for summarising their contents fell to D.C. Cheetham. In general he replaced the tapes each day, although there were occasions when other duties made it impossible for him to visit the observation post. When that happened one or two days were lost. Broadly speaking, however, the police obtained by this means an almost continuous video record of movements at the wood yard between 8th October 2002 and 21st February 2003. On some, but by no means all, occasions officers kept a visual watch from the observation post as well as making a video recording in the manner just described.[13]D.C. Cheetham viewed each tape shortly after retrieving it from the observation post and made a brief summary of its contents in a blue A4 notebook (the “blue book”) which he kept for the purpose. The contents of the blue book were later reproduced in the form of a schedule by one of the police typists. As a result of this process three separate kinds of material came into existence:(i) 155 original video recordings,(ii) the summary of their contents contained in the blue book and(iii) the schedule. The Crown’s case[14]It was the Crown’s case that Philip Hadley, with the assistance of his brother, Anthony Hadley, had been supplying heroin on a wholesale basis through the wood yard using Mallows as the warehouseman to hold the stocks of drugs and Joseph Skidmore as the banker to hold cash obtained from sales. Apart from the evidence of the comings and goings at the wood yard on 21st February and the discovery of the consignment of heroin in the van when it arrived at Cox’s premises later that day, the Crown relied on evidence of meetings between Philip Hadley and Mallows, which were said to have occurred for the purpose of planning deliveries, and the mobile telephone traffic passing between those said to be involved in the conspiracy. The defence statement[15]One of Philip Hadley’s associates was a man called Karl Lapko who had worked at the wood yard until December 2003. On 4th June 2003, prior to the service of the defence statement, the solicitors acting for Philip Hadley wrote to the Crown Prosecution Service asking for, among other things, disclosure of all observation logs, notes and records in their original form insofar as they related to the defendants and associates such as Karl Lapko. The response was that those and other materials were subject to public interest immunity.[16]On 4th August 2002 Philip Hadley served a defence statement in which he denied any knowledge of the drugs that had been found in the van or any involvement in drug trafficking and said that D.C. Hardwick was lying when he stated that he had seen Mallows hand over a packet to him on 21st February. He said that his meetings with Mallows on which the prosecution relied were entirely innocuous. He suggested that the bank notes found on his person and at his home had been innocently contaminated or that there had been deliberate interference with the exhibits. Although it was not stated in express terms, it was clear from the defence statement that Philip Hadley’s case was that the heroin had either been put in the van by someone else who had had access to the wood yard that morning or by the police themselves. He did not suggest that the drugs had been put into the van by Karl Lapko. The prosecution’s assessment of the disputed material[17]Following the service of the defence statement those representing Philip Hadley repeated their request for disclosure of all observation logs relating to the defendants and Karl Lapko. That led to an application by the prosecution for an order prohibiting disclosure on the grounds of public interest immunity of a range of material brought into being as a result of the surveillance exercise. In the skeleton argument prepared on behalf of Philip Hadley for the hearing it was said that the material which had been requested would be likely to assist his case for two reasons: first, because it was likely that those who had been making use of the wood yard as a transit point for drugs had been observed there and, secondly, because it would enable Hadley to put Mallows’ activities into their proper context. In the event, however, the judge did not reach the point of deciding whether the material should be withheld on the grounds of public interest immunity because the application went off on the question whether a special independent advocate should be appointed to represent the interests of the defendants. That question went on appeal first to this court and then to the House of Lords whose decision was given on 5th February 2004.[18]One might have expected that the prosecution would then have invited the judge to continue the hearing and to rule on the question of public interest immunity, but in fact the application was not pursued any farther. It seems that at some point the prosecution had come to the view that the observation material was not disclosable in any event because it neither undermined the case for the prosecution nor assisted the case for the defence. Apart from the tape of 21st February the view was taken that none of the videos (and therefore nothing in the blue book or the schedule) showed anything more than the ordinary day to day operations of a wood yard. The recording of events which took place on 21st February assisted the prosecution’s case, but not that of the defence and was therefore not disclosable, either as primary or secondary disclosure. The prosecution itself did not wish to put those videos in evidence because it did not wish to compromise police methods or reveal the location of the observation post. It was content to rely on the evidence of D.C. Cheetham and D.C. Aitken who had been keeping a visual watch on the wood yard from the observation post that day.[19]In view of the conclusions to which we have come in this case that may seem a surprising view for the prosecution to have taken, especially after the defence statements had been served and in the light of the specific requests to disclose surveillance evidence relating to Lapko, but the explanation lies in the fact that no one on the prosecution side had viewed the video tapes, apart from the two that had been recorded on 21st February 2003, since D.C. Cheetham made his summary of their contents in the blue book. All that had happened was that D.C. Cheetham had told the disclosure officer, D.C. Mace, that the videos showed nothing more than the ordinary day to day operations at a wood yard. D.C. Mace had passed that information on to the Crown Prosecutor who in turn had passed it on to counsel. In the light of that information counsel did not think that the time and cost of viewing all the tapes could be justified, having regard to the large number involved. Everyone worked from the schedule, but no one apparently thought to check whether the summaries in the blue book and the schedule fairly captured all the information relevant to the issues arising in the trial.[20]On the third day of the trial, before calling the policemen who had been keeping a visual watch on the wood yard on 21st February to give evidence, the prosecution applied to the judge for an order that the location of the observation post should not be disclosed in the public interest and the judge duly made such an order. At that stage he did not know that any video recordings had been made, but the next day when making an application in chambers relating to other matters the prosecution volunteered that a video recording had been made from the observation post of events taking place at the wood yard on 21st February. Leading counsel told the judge that the video had not been, and would not be, disclosed because in the opinion of the prosecution it neither undermined the case for the prosecution nor assisted the case for the defence. Having received an explanation from counsel, the judge was satisfied that the video need not be disclosed. It should be noted, however, that the judge was not told of the existence of the other videos, the blue book or the schedule. It seems that they were regarded by the prosecution as providing no information additional to that contained in the videos of 21st February and thus as neither undermining the prosecution case not assisting that of the defence. The discovery of the material[21]On 26th August D.C. Cheetham was called to give evidence. When he was asked by counsel for Philip Hadley whether he had made any video recording of what he was seeing, he answered “No”. Not surprisingly, the judge, who by that time knew that a video recording had been made, held a further application in private to consider whether it should be disclosed and, inevitably, counsel for the prosecution accepted that there was no alternative in the circumstances but to disclose it. The occupier of the premises where the observation post was located was approached and gave his agreement and eventually copies of the video were made available to the defence the next day. No reference was made at that stage to the blue book or the schedule. Unbeknown to counsel for the appellants, however, the copies of the videos provided by the prosecution on 27th August (and subsequently shown to the jury) were incomplete because they started at 10.59 whereas the original recording began at 03.18. Although counsel for the prosecution referred in open court to the existence of other video tapes covering previous weeks and months, defence counsel were assured that they showed nothing beyond the ordinary activities of a wood yard and so no application was made by the appellants for their disclosure. The tapes for the period 17th to 21st February 2003 were sought by counsel for Cox for reasons that related to his case alone.[22]Following the conviction of the appellants confiscation proceedings were brought against them in which Philip and Anthony Hadley set out to show that the wood yard was a genuine business from which much of their income had been derived. For that purpose they sought access to any further records of police observations which, it was said, would be likely to support their case. The prosecution resisted that application on the grounds that it was not disputed that the wood yard was a legitimate business, but the judge made an order for disclosure of all the videos showing movements at the yard during the period of the surveillance and related materials. It was only when disclosure had been made (which itself took some time) and there had been time to digest the material that those representing the appellants became aware of the number of recordings that had been made and of the discrepancies between the contents of the recordings and the schedule. The nature of the undisclosed material[23]It is necessary at this stage to say something more about the nature of the undisclosed material. The videos themselves show many instances of people and vehicles arriving at, moving around and leaving the wood yard. Of themselves they may appear to be of little interest or relevance, but they acquire potentially greater significance when taken in conjunction with the schedule. For example, it is now established that Lapko was already known to the police and might therefore be expected to have been identified and mentioned if he appeared in any of the videos. However, although Lapko appears in the videos on numerous occasions between 8th October and 20th November, there is no mention of him during that period either in the schedule or the blue book. On some occasions he can be seen talking to associates who appear with sufficient clarity to be identified.[24]The material relating to 21st February 2003 is of a similar nature. During the morning a man who may be Lapko can be seen at the wood yard in circumstances which could have provided him with an opportunity to place a bag in the van being used to deliver wood to Cox. In addition, there are certain discrepancies between what can be seen in the video and what is recorded in the schedule. For example, the schedule contains information that does not appear in the video or the blue book. Conversely, there is material of potential significance in the video to which there is no reference in the schedule. The most obvious example is the shot of D.C. Hardwick walking along Hooton Road in the direction of Charles Street at a time that raises serious questions about the accuracy of some of his evidence. The parties’ submissions[25]The appellants submitted that the videos, the blue book and the schedule should all have been disclosed as secondary, if not primary, disclosure, and at the latest following the disclosure of the video of 21st February, because they tended to assist their case and to undermine the case for the prosecution. It was apparent from the defence statement served by Philip Hadley that it was the appellants’ case that D.C. Hardwick was lying and that someone other than Philip Hadley had put the drugs in the van; and it was also clear from the specific requests for disclosure made even before the defence statements had been served that the appellants were interested in the movements of Lapko. The undisclosed materials, they submitted, contained evidence that would have tended to cast doubt on the credibility of D.C. Cheetham; they would also have lent some support to the suggestion that Lapko had been involved in some kind of criminal activity at the wood yard during the preceding months and had had the opportunity to put the drugs in the van on the day of the raid. The appellants submitted that if the evidence had been available to them at the trial it would have had a significant effect on how they presented their cases and might have led the jury to a different conclusion. The convictions are therefore unsafe.[26]The Crown submitted that there were two quite independent questions for consideration on this limb of the appeal: whether the material in question should have been disclosed and, if so, whether the failure to disclose it may have affected the outcome of the trial and so renders the convictions unsafe. In support of his submission that these questions are to be considered separately Mr. Morris drew our attention to the decision of this court in R v Craven [2001] 2 Cr. App. R. 12. That was a case in which the court was satisfied that, although there had been a failure to disclose material, the conviction was not unsafe in the light of all the evidence available at the time of the appeal. He submitted that the interpretation which the appellants placed on the videos was nothing more than speculative. The material was therefore not disclosable. The appellants had always had enough information to enable them to put forward the argument that Lapko might have been responsible for putting the drugs in the van, but had chosen not to do so. Even if the undisclosed material was capable of assisting the defence case, it would not have affected the jury’s verdicts having regard to the other evidence before them. Discussion and conclusions[27]The question we have to consider is whether the convictions are unsafe. We accept Mr. Morris’s submission, therefore, that we should approach the matter by asking ourselves, first, whether the material in question should have been disclosed, and if so, whether the failure to disclose it renders the convictions unsafe. It does not necessarily follow that because the first question is answered in the affirmative the second must also be answered in the same way, as the decision in Craven demonstrates. Craven was an unusual case in that additional evidence of a compelling nature which supported the conviction had become available by the time of the appeal. Nonetheless, we recognise that there may be other cases in which the nature and degree of the assistance capable of being derived from the undisclosed material will be insignificant in the context of the other evidence before the jury and that as a result the court is left in no doubt that it would not have affected the outcome. Thus in R v Alibhai [2004] EWCA Crim 681 the court recognised in paragraph 57 that “even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction as unsafe if the non-disclosure can properly be said to be of “insignificance in regard to any real issue”: see R v Maguire, (1992) 94 Cr App Rep 133 at page 148.”[28]We have already described the general nature of the undisclosed material in the present case. Once Philip Hadley had served a defence statement denying that he had put the drugs in the van on 21st February it inevitably became the appellants’ case, whether expressly or as a matter of necessary implication, that they had been put there by someone acting independently of him and without his knowledge. Any material which might tend to support that conclusion, whether it implicated the police or someone else, would therefore assist their case and undermine that of the prosecution.[29]We have viewed those parts of the video recordings which are said to contain the material which most strongly supports the appellants’ case. It is unnecessary to refer to all of them since a selection will suffice for present purposes. In order to understand what follows it is necessary to give a brief description of the premises comprising the wood yard.[30]The wood yard occupies the whole width of a site between Thomas Street and Charles Street fronting on to Hooton Road. There are steel railings along the front of the site which extend down Thomas Street and Charles Street. At the front of the site (that is, along the boundary with Hooton Road) there is an open area behind which is a large building with a semi-circular roof which lies parallel to Hooton Road. This was referred to as the “hangar” and was used to store timber. One end of the hangar abuts Charles Street. There is an entrance to the site from Charles Street which is fitted with metal gates. This is wide enough to accommodate lorries and gives access to the open area in front of the hangar. At the end of the hangar which abuts on to Charles Street there are doors of sufficient size to accommodate vehicles. Extending from the side of the hangar over part of the open space to the front of the site is a large rectangular covered area with a metal roof from which there is also access to the hangar.[31]Among the videos we viewed are those which are said by the appellants to show the following:(a) on 8th October 2002 Karl Lapko opens the metal gates to yard at about 8.15 accompanied by his brother, Mark. At 9.09 he emerges from the hangar while talking on his mobile phone and walks out into Charles Street where he meets another person. At 10.16 Mark Shirtcliffe arrives at the yard in a white Astra van and speaks to Lapko. At 11.06 he takes a white package from the rear of the van which he carries into the hangar before leaving the yard two minutes later;(b) on 10th October 2002 Lapko opens the yard at 8.32 accompanied by David Dodson. At 15.56 Lapko locks up the yard and leaves in the company of his brother who is carrying a package. At 16.18 Lapko returns to the yard on his own, walks in the direction of Thomas Street and out of view of the camera. He returns in time to leave the yard at 16.19;(c) at 13.18 on 15th October 2002 Shirtcliffe arrives at the yard driving a Cherokee Jeep; he leaves at 13.26 without having bought any wood. At 14.30 Shirtcliffe returns to the yard in the white Astra van; on leaving the vehicle he is holding in his hand a white or grey bag. He leaves the yard again in less than a minute, having delivered whatever was in the bag;(d) at 14.29 on 17th October 2002 an unidentified man wearing a beige jacket walks towards the metal gates from inside the yard. He talks to Lapko for over 15 minutes, pausing from time to time to look around as if he is expecting someone to arrive. At one point he walks out into Charles Street as if he is looking for someone. He leaves without any wood;(e) on 18th October 2002 a vehicle known to have been used by Lapko pulls up outside the wood yard. Lapko and his brother Mark both get out. Karl Lapko unlocks the gate and goes to the post box from which he removes a package and also some mail. Both men walk further into the yard out of camera shot before returning to the car two minutes later. (The schedule states that the yard was not opened all day);(f) on 9th December 2002 at 9.16 Lapko pulls up outside the yard in a black Honda. He waits in the car for a few minutes until a dark coloured Audi arrives at 9.25 driven by Carl Hildebrandt. Hildebrant parks in front of Lapko and walks back to speak to him, possibly handing him a package;(g) on 13th December 2002 a grey LandRover Discovery driven by Tony Simpson drives to the gates of the yard to be met by Lapko who appears to be waiting for him. Lapko is carrying a white package which he hands to Simpson who puts it in his car and drives away;(h) at 10.02 on 21st February 2003 the white van in which the drugs are later found is reversed into the hangar to be loaded with wood. At 10.08 Lapko drives into Charles Street in a white pick-up truck and parks outside the entrance to the hangar. At 10.48 Philip Hadley arrives in a white Discovery with Michael Skidmore. Hadley and Lapko leave in the Discovery at 10.50, returning to the yard at 11.33 in Hadley’s Jaguar. Very shortly after their return the van, now loaded with timber, is reversed into the open area in front of the hangar. At 11.36 the white pick-up leaves the yard, driven by Lapko.[32]Although there is a large measure of agreement about what is shown in the videos, the Crown, as Mr. Morris made clear, does not accept that everything which the appellants say they show can actually be seen. In particular, he emphasised that the Crown does not accept that Lapko can be seen at the wood yard on the morning of 21st February. However, we are satisfied that any dispute about what can and cannot be seen in the videos is one for a jury to decide with the benefit of such other evidence as may assist their interpretation. Only if we were satisfied that a video was incapable of being interpreted in the light of all the surrounding evidence in the manner for which the appellants contend would we be justified in rejecting their submissions as to its content, and that is not the case with any of the videos we have viewed. Moreover, the discrepancies between the videos, the blue book and the schedule are themselves evidence which is capable of damaging the prosecution witnesses.[33]When considering the potential impact of the undisclosed material it is necessary to bear in mind that individual items of evidence cannot be treated in isolation but have to be considered in the context of the other evidence in the case, including the rest of the undisclosed material. In the present case that means the blue book and the schedule as well as the statements of the prosecution witnesses, in particular those of D.C. Hardwick and D.C. Cheetham. It is important to emphasise, however, that the question for us is not what we ourselves would make of the undisclosed material, but whether it is capable of affecting the mind of a reasonable jury properly directed. In R v Alibhai the court said in paragraph 57:
“. . . . . in a case where a complaint is made of non-disclosure of documents, it is not always necessary for an appellant to demonstrate that the disclosure of the material would have affected the outcome of the proceedings. As was observed in R v Ward, (1993) 96 Cr App Rep 1 at page 22:- “Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.”
We accept that in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the defence.” (emphasis added). “Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.”[34]A similar statement of principle is to be found in R v Smith [2004] EWCA Crim 2212 in which Latham L.J. said in paragraph 17:
“Moore in his evidence during their trial asserted that he had not expected any reward. The documents which have now been disclosed would have provided significant cross-examination material which could have undermined that assertion. Whether or not it would have done so is not a matter about which we can speculate. The appellants were entitled to disclosure of that material which could have had an effect on the verdicts of the jury.”
[35]We accept and adopt those statements of the law which we think must follow from the fact that the appellant is entitled to succeed if he can satisfy the court that the failure to disclose the material in question renders his conviction unsafe. For that purpose it is sufficient for him to satisfy the court that it was capable of affecting the jury’s mind, not that it must have done so. In those circumstances it is both unnecessary and undesirable to embark on a lengthy discussion of the evidence itself and the inferences that might be drawn from it. Unless the Crown can satisfy us at this stage that the material was not capable of assisting the defence, exactly what can and cannot be seen in the videos, what inferences can be drawn from them and from any discrepancies which may be shown to exist between the videos themselves, the blue book and the schedule and to what extent, if at all, they affect the credibility of the prosecution witnesses are all matters for the jury at any trial that may take place in due course. It is sufficient for present purposes to say that we are wholly unpersuaded that the undisclosed material was incapable of assisting the defence case; on the contrary, we are satisfied that, depending on the view the jury took of it, it was capable of assisting the appellants’ case and of undermining the case of the prosecution. It ought therefore to have been disclosed.[36]That brings us to the question of the safety of these convictions. Mr. Morris very properly accepted that, if the disclosure of the material might have affected the jury’s decision, the convictions could not stand. However, he submitted that disclosure would have made no difference at all in this case with the result that the convictions are safe. His argument rested on two main grounds. The first was that the appellants had sufficient evidence at their disposal to enable them to put forward the argument that Lapko had put the drugs in the van and had considered doing so, but had rejected it because in the light of other evidence it created more problems than it solved. The second was that in the light of D.C. Hardwick’s evidence that he had seen Philip Hadley put the drugs in the van the appellants could not avoid challenging the police evidence head on and could not therefore avoid the potentially damaging allegation that the police had planted them.[37]Given the importance of disclosure in ensuring a fair trial, the court is likely to be slow to accept that the safety of the conviction is unaffected if it is satisfied that a substantial volume of disclosable material has been wrongly withheld from the accused, as was the case here. The very fact that the material was capable of undermining the case for the prosecution or assisting the case for the defence means that it was material which the accused was entitled to put before the jury for their consideration and unless the court can be satisfied that the evidence tending to establish the defendant’s guilt was so strong that the undisclosed material could have made no difference to the outcome, it cannot be sure that the jury would have reached the same conclusion if it had had that material before it.[38]In the present case we are not satisfied that the convictions are safe. Despite Mr. Morris’s submission that the conclusions which the appellants seek to draw from the video evidence are entirely speculative, we think that the evidence of Lapko’s activities at the wood yard is capable of supporting a case that he was responsible for putting the drugs in the van, just as evidence of meetings between Philip Hadley and Mallows, which might in other circumstances be entirely innocuous, is capable of supporting the Crown’s case that they were involved in a conspiracy to supply drugs. We accept that there were inherent difficulties and dangers for the appellants in seeking to cast the blame on Lapko, but we cannot be confident that they would not have advanced such a case if this additional material had been at their disposal, or that, if they had done so, the jury would have reached the same verdicts. It is true that the defence had to challenge the evidence of D.C. Hardwick in any event, but given the nature and circumstances of his observation that could have been achieved without going so far as to allege that the drugs had been planted by the police.[39]Mr. Morris did not seek to draw a distinction between the cases of the three appellants, accepting, correctly in our view, that if the conviction of Philip Haley was unsafe it must follow that so too were the convictions of Anthony Hadley and Joseph Skidmore. In those circumstances it is unnecessary to consider the additional arguments put forward on behalf of Anthony Hadley and Joseph Skidmore, though we can see some force in Mr. Barraclough’s submission that there appears to have been a failure on the part of all concerned to consider Anthony Hadley’s position separately from that of his brother. For the reasons we have given the convictions of all three appellants must be quashed. Retrial[40]That raises the question whether we should order a retrial in this case. The jurisdiction to direct that there be a retrial is found in section 7 of the Criminal Appeal Act 1968 and is to be exercised when “the interests of justice so require”. In R v Graham [1997] 1 Cr. App. R. 302 Lord Bingham C.J. pointed out at page 318 that this “ . . . . . . requires an exercise of judgment, and will involve consideration of the public interest and the legitimate interests of the defendant. The public interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to or oppression of the defendant. The legitimate interests of the defendant will often call for consideration of the time which has passed since the alleged offence, and any penalty the defendant may already have paid before the quashing of the conviction.”[41]On the face of it there are good reasons why we should order a retrial in this case. The offence with which the appellants were charged is of a very serious nature, as is reflected in the sentences imposed by the trial judge, and it is generally in the public interest that those reasonably suspected of having committed serious crimes should be brought to trial. Counsel for the appellants submitted for a variety of reasons, however, that in this case it would not be in the wider interests of justice for a retrial to be held. In the light of their submissions two principal questions arise for consideration: whether the appellants can still receive a fair trial and whether, having regard to the manner in which the prosecution has dealt with disclosure hitherto, it would be in the interests of justice to allow it a further opportunity of putting forward the case against these appellants.[42]It is convenient to dispose at the outset of one point raised by Mr. Conrad Q.C. on behalf of Joseph Skidmore. It has now become clear that soon after the trial had ended the bank notes recovered from the appellants were delivered to the Bank of England and destroyed. The materials in which some of the notes had been wrapped were also destroyed. As a result none of them are available to be produced as exhibits at any retrial. Mr. Conrad sought to suggest that that might affect the fairness of any retrial, at least so far as Skidmore was concerned, but we are unable to accept that. The bank notes and their wrappings were examined by a forensic scientist instructed by the Crown who produced a written report of her findings. They were also made available to the defence for independent examination and we understand that a report was produced by the defence expert which was used as the basis of cross-examination, although the maker of the report was not called to give evidence. Apart from the fact that the packaging itself was apparently not examined, we were given no reason to think that the examinations carried out by the forensic scientists were not exhaustive and fully documented or that if the materials were still in existence the defence would wish to carry out some new tests that had not previously been considered. The latter point applies in the case of the packaging just as much as it does to the notes themselves. In those circumstances we do not think that the fairness of any retrial would be adversely affected by the absence of those exhibits. Concerns which have been expressed about the integrity of the exhibits is a matter that should properly be pursued in the context of the trial.[43]Although Mr. Spencer Q.C. (unlike Mr. Barraclough) did not concede that it would still be possible for the appellants to receive a fair trial, the main thrust of his submissions was that it would not be in the wider interests of justice to order a retrial in view of the serious shortcomings in the prosecution’s approach to the duty of disclosure in the context of the original trial, a submission that was strongly supported by both Mr. Conrad and Mr. Barraclough. He also drew our attention to the fact that the appellants have already been in custody for two years and that a retrial could not be expected to take place until the middle of 2007 at the earliest. In the meantime Philip Hadley’s businesses have been disrupted and his assets frozen as a result of the confiscation proceedings.[44]The delay that is likely to occur in bringing the matter to a fresh hearing is regrettable, but it would not of itself persuade us that it would be unjust to order a retrial in this case. The witnesses for the prosecution are all professionals of one kind or another and much of the evidence is in documentary form or the subject of contemporaneous records. Subject to one matter to which we shall come in a moment, this is not a case, therefore, in which there are likely to be difficulties in putting the same evidence before a fresh jury. Nor is this a case in which the appellants have already served the majority of their sentences. Joseph Skidmore, who was sentenced to 6 years’ imprisonment will be entitled to early release in the latter part of 2008 and will become eligible to apply for parole towards the end of 2007. If his case stood alone, therefore, there would be more to be said for refusing a retrial, but given the nature of the case we do not think that it would serve the interests of justice to exclude him from any retrial. We recognise that a significant amount of time has already elapsed since the events giving rise to the alleged offence, but against that there has to be balanced the serious nature of the charge and the other factors to which we have referred. We do not consider that it would be unfair or oppressive to the appellants for a retrial to be held. Finally, we should say that we reject the submission that a retrial would be unfair because the prosecution may now be able to make good previous deficiencies in its case or because the appellants may be unable to recapture the atmosphere that is said to have surrounded the police evidence at the original trial. The purpose of the trial process is to reach a correct decision, not one that is the result of procedural or tactical shortcomings on either side.[45]We accept that serious criticism can be made of the way in which the prosecution approached its duty of disclosure in this case. The only person who had viewed any of the videos (other then the videos of 21st February 2003) prior to the trial was D.C. Cheetham, and that only for the purposes of summarising their contents following their removal from the observation post. Each video lasted about 24 hours, but the summary of its contents in each case is very brief and no doubt reflects the particular interests of the surveillance team at the time. Thereafter everyone on the prosecution side worked from the schedule and appears to have accepted D.C. Cheetham’s assurance that the videos themselves showed nothing beyond ordinary activities at a wood yard. No attempt was made to review the videos in the light of the defence case, notwithstanding repeated requests from those acting for Philip Hadley for disclosure of any material relating to Lapko. More surprisingly still, it is clear that prior to the trial no one apart from D.C. Mace had viewed even the videos of 21st February, in the latter part of which D.C. Hardwick can be seen walking back along Hooton Road after he said he had seen Philip Hadley put the drugs in the van, contrary to the description of his movements that he had given in his statement. That material came to light only because D.C. Cheetham gave a false answer in cross-examination.[46]Mr. Spencer was highly critical of all those involved in the disclosure process and invited us to hear evidence from the various police officers concerned in the production and review of the material in order to investigate the process in much greater detail. He asked to be allowed to cross-examine them about the basis on which D.C. Cheetham had made his original summary in the blue book, about what information he had given to D.C. Mace, about the nature and extent of any discussions between D.C. Mace and the other police officers involved in the case, about the nature and extent of any discussions between D.C. Mace and representatives of the Crown Prosecution Service and counsel for the prosecution and about the overall supervision of the disclosure process by the supervising officer, D.I. Tattershall. All this was directed to discovering to what extent the shortcomings we have identified were the result of carelessness or incompetence on the part of those responsible for disclosure and to what extent they may have been attributable to decisions taken in bad faith or amounting to deliberate misconduct.[47]In substance Mr. Spencer’s submission amounted to an assertion that there had been an abuse of process in this case of a kind which made it unfair for there to be a retrial and the cross-examination of the police officers was designed to support that argument. However, the primary issue on which the appeal depended was whether there had been a failure by the prosecution to give proper disclosure, not why. It was unnecessary, therefore, for the disposal of the appeal for us to examine the reasons for what had gone on except to the limited extent necessary in order to understand the case. That being so, we declined to hear evidence from the police witnesses because we did not think it appropriate for this court to hear evidence and argument that ought more properly be addressed to the trial court in support of an application for a stay of proceedings on the grounds of abuse of process.[48]Nonetheless, there remains the question whether it is in the wider interests of justice for there to be a retrial in this case, or whether such an order should be refused in order to emphasise the importance of proper compliance by the prosecution with the duty of disclosure. Perhaps the first point to make is that this is not one of those cases in which the prosecution’s shortcomings cannot be remedied. Nor is it one of those cases (such as R v Mullen [1992] 2 Cr. App. R. 143) in which it could be said that the appellants should never have been prosecuted at all. It is true that the existence of the undisclosed material came to light fortuitously, but that material has now come to light and has been made available to the appellants. It will, therefore, be available for them to make whatever use of it they wish at any retrial and if it is thought that there is yet further material that should be disclosed, the appellants are better placed now than they would otherwise have been to make the necessary application.[49]We have little doubt that lessons have been learnt from what has occurred in this case and in all the circumstances we do not think that the interests of justice would be served by refusing to order a retrial in this case simply in order to make a point. However, it will remain open to the appellants to make whatever applications to the trial judge they think appropriate, including an application to stay the proceedings on the grounds of abuse of process if they consider that there is sufficient evidence to support it. We were told that D.C. Hardwick is currently unwell and may not be fit to give evidence in the near future. However, that of itself does not provide a reason for refusing to order a retrial since we do not know what his state of health may be when the time comes for him to give evidence. It is a matter which the prosecution and the defence will have to keep under review as the case progresses.[50]The delay by Philip Hadley and Joseph Skidmore in lodging their notices of appeal was itself a result of the failure to disclose the existence of the surveillance videos. We therefore grant the extensions of time which they seek and we give each of the appellants leave to appeal against conviction. We quash the convictions of Philip Hadley, Anthony Hadley and Joseph Skidmore and direct that a fresh indictment be preferred for the purposes of a retrial. We invite further submissions from counsel representing Colin Mallows as to the course that we should take in relation to his application in the light of our decision.

Cited in 2 later judgments