Montague-Darlington, R v

On 11^th April 2002 in the Crown Court at Croydon this appellant pleaded guilty to a single count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A controlled drug, namely cocaine, and she was sentenced to three years imprisonment. Out of time she sought leave to appeal against her conviction, and her application was referred to the full court by the Registrar.

On 19^th May 2003 we granted the necessary extension of time, granted leave and allowed her appeal, for reasons which we now give.

The appellant is 31 years of age and normally she lives in the West Midlands with her child. On 16^th January 2002 she arrived at Gatwick Airport from the Caribbean with Herbert Brooks who, she said, was her boy friend. Both were arrested and she was required to provide a sample of urine. It tested positive for cocaine and she then passed a total of 90 packages which she had swallowed. They contained 366 grams of cocaine at 100% purity, with an estimated street value of £32,232.

On 17^th January 2002 the appellant was interviewed in the presence of her solicitor, and made a number of allegations as to the circumstances which caused her to be carrying drugs. Both her solicitor and her counsel advised her that if what she said was true it would be possible to raise the defence of duress with some prospects of success, but the appellant chose not to follow that course, and when sentencing her Judge Ellis gave her credit not only for her plea of guilty but also for recognising that the pressure she was under fell short of the defence of duress. Taking into account all of the matters of which he was aware the judge passed what he described as “a lower sentence than would otherwise be the case” and no complaint is made in relation to the length of sentence.

On 10^th February 2003 the solicitor acting for the Customs and Excise wrote to the appellant’s solicitors to inform them that material had recently been brought to his attention of which he was not previously aware. Had he been aware of it before the case was heard he would have regarded it as disclosable, but highly sensitive and therefore likely to attract public interest immunity. He suggested that the appellant might wish to appeal against conviction out of time, and thus the matter came to the attention of the Registrar.

For the purposes of the hearing before us we have been able to see not only the material which was before Judge Ellis, but also additional material, and we have had the benefit of submissions from Mr Barnard for the Customs and Excise, and Mr Milne for the appellant. In the result we are satisfied that, as Mr Barnard contends and as was envisaged in the letter of 10^th February 2003-

(1)

There is material which it would have been the prosecution’s obligation to disclose:

(2)

the sensitivity of the material is such that it would not have been disclosed, and rather than disclose it the prosecution would either not have prosecuted at all or, if proceedings had been commenced, would have offered no evidence.

If the appellant had not pleaded guilty we would, without hesitation, have allowed the appeal, but she did plead guilty and obtained substantial credit for doing so. Does that make any difference? Mr Milne submitted to us that it should not do so because she pleaded guilty for pragmatic reasons, before other arrests had been made, and when, if we can put it this way, the cards appeared to be very much more heavily stacked against her.

This court will only rarely entertain an appeal against conviction where there has been a plea of guilty, but the circumstances in which an appeal may be successful are not confined to those identified by Avory J in Forde (1923) 2 KB 400, as is clear from the recent judgment of this court in Togher [2001] 1 Cr App R 457. The court has to consider whether the appellant had a fair trial. It is difficult to see how the appellant can be said to have had a fair trial when it is now the case for the prosecution that she should not have been tried at all. Furthermore if, when advising in relation to plea, her legal advisers had access to all of the relevant material it is clear that she would have been strongly advised not to plead guilty, and there is no reason to think that she would have refused to accept that advice.

We are therefore satisfied that in the particular circumstances of this case it is open to us to set aside the plea of guilty, and to allow the appeal against conviction. For obvious reasons we have not considered it necessary or desirable to deal with the content of the sensitive material, and both counsel accept that we should not do so.