Austin, R v

Before we do so, however, we emphasise that it is important to keep firmly in mind the distinction between the issues of disclosure and abuse of process. Disclosure is concerned with the question of what material should be disclosed to the defence with a view to its being deployed before the tribunal of fact, whether that is the jury dealing with the issue of guilt or innocence, or the judge dealing with an issue such as whether proceedings should be stayed for abuse of process. It is the everyday experience in criminal proceedings that a judge may be required to examine material which is prima facie disclosable in order to rule on whether disclosure to the defence should be withheld, for example on grounds of public interest immunity, and it may (although only exceptionally) be appropriate for this purpose for a special counsel to be appointed. If the judge does so rule, that material will play no further part in the trial, and the judge will put it out of his mind for the purpose of any subsequent rulings in the case, including any ruling on abuse of process. All this is well established.

Abuse of process is different, because it involves a substantive determination of the case. For a judge to determine an abuse argument by reference to material which he had seen, but which the defence has not seen, undoubtedly creates a difficulty. As we shall explain, it is unnecessary in this appeal to determine whether that difficulty can be overcome by the appointment of special counsel.

Although we shall have to consider the procedure adopted in the court below, it is well established that the question of breach of Article 6 must be determined by reference to the proceedings as a whole, including any appeal. Mr Owen accepted, rightly in our view, that if it can now be said as a result of the proceedings in this court that there was nothing further which required to be disclosed, and nothing in the unredacted judgments seen by the judge which would have been capable of assisting the defence in their abuse of process arguments, the appeal must be dismissed. Whatever criticisms might have been made of the procedure below, there would then be no breach of Article 6, and no reason to doubt the safety of the appellant's conviction.

What are the permissible steps for a judge confronted with this problem: a claim of abuse of process where allegedly relevant material is not disclosed to the defence? Should he see that material? If he should not, but he has, should he recuse himself?

Part of the context for the answers to those questions is the nature of the abuse of process claimed. Unsurprisingly, that could not be specified by the defence in their applications to HHJ Cutler since they had not seen the material in question: quod est demonstrandum. However the thrust of the applications made by Mr Lederman could be taken to comprise two propositions: firstly, that failures of disclosure might threaten the fairness of the trial since the Defendant might not be informed of material which would undermine the prosecution or assist the defence but secondly, at least by implication, that there had been abuse of executive power as recognised in Horseferry Road Magistrates Court ex parte Bennett [1994] 1AC 42 and Mullen [2000] QB 520 (hereafter “Bennett/Mullen abuse”).

A key starting point for the case must be the limited extent to which failures of disclosure may cause injustice in a trial where all the primary facts were agreed and the only relevant issue is the Defendant’s state of mind. Abuse of process of the Bennett/Mullen type can arise in any case, although such a claim might be thought to lose much of its potency where the facts are agreed and the intention of the defendant is the only issue. A successful claim of Bennett/Mullen abuse represents an unusual defence, if defence is the correct term, since it leads to an acquittal which does not detract from or at least succeeds irrespective of, the Defendant’s guilt. The learned trial judge nowhere articulated these matters of context but he must be taken to have had them in mind.

The position of the Crown is clear. The trial judge erred in the procedure he adopted. He should not unilaterally have obtained or read the Court of Appeal judgments, and thus put himself in possession of material which was not disclosable to the defence under the Criminal Procedure and Investigation Act 1996 [“CPIA 1996”]. During the preliminary hearings the learned judge was entitled to accept (and should have accepted) the assurances of leading counsel for the prosecution that there was no material to disclose to the defence, capable of supporting the abuse of process argument. It is the Crown’s responsibility to carry out the duties of disclosure. The mechanism whereby a trial judge can inspect unused material is limited, and judicial involvement can only properly be triggered by an application, either by the prosecutor (sections 3(6) or 7(8) of the CPIA 1996) or by the defence (section 8(2)) of the Act. There is no provision for a trial judge to superintend the decisions of disclosure made by the prosecution on his own motion by inspecting unused material himself.

Miss Wass emphasises that the well defined procedures arising from the provisions of the CPIA 1996 must be followed closely. Before an application is made by the Crown under either of the sub sections named, the approach is outlined in R –v- H and C [2004] 2 AC 134. As Lord Bingham emphasised (paragraph 35):

“Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands.”

The Crown summarise their submissions in three short propositions:

a.

There is no mechanism under the current legislation for a trial judge to oversee disclosure decisions made by the prosecution even if there might be a “feeling of judicial unease”.

b.

The trial judge is only permitted to inspect unused material at the invitation of one of the parties.

c.

If the prosecution assert there is no material which passes the disclosure threshold, there is no mechanism [whereby] an inquisitive judge can interfere with that decision in the absence of an application to do so under Section 8 of the CPIA.

Counsel for the Appellant begins by suggesting that disclosure obligations are not confined within the four corners of the CPIA 1996. Partly in reliance on the publicly available CPS disclosure manual, Mr Owen QC suggests that there are common law duties of disclosure arising both before the formal charging and prosecution process and as long as criminal proceedings remain, whether at first instance or on appeal; see R –v- Makin [2004] EWCA Crim 1607. Mr Owen relies also on the obligations of the judge to ensure a fair trial process compatible with Article 6 of the European Convention of Human Rights.

The Appellant argues that the trial judge ought not to have embarked on the exercise of reading the closed judgments without first raising with all parties how he intended to proceed. Mr Owen sympathises with the “instinct” that led the judge to read the judgments, but his position remains he should not have done so unilaterally. The Appellant’s argument is that the judge should have appointed Special Counsel to address the disclosure issues but not to deal with any substantive abuse issue. The submission is that Special Counsel cannot appropriately deal with any substantive issue in a trial, since the consequence would be a trial based, in part, on material of which the Defendant is unaware.

In the written submissions from Mr Keith QC, he adopts, in effect, the position of counsel for the Appellant so far as procedural but not substantive issues are concerned. Mr Keith goes on to submit that it is clear from the relevant transcript that the judge read the closed judgments for two purposes: firstly in order to assess whether there was information in the possession of the prosecution that should have been disclosed (subject to PII) but also for the purposes of determining the abuse of process/stay application. On the basis that the material might well be regarded as borderline relevant and deserving of a ruling from the court, Mr Keith submits that the former purpose was arguably permissible. However he also submits that it was not permissible for the judge to read and rely upon that material to decide the substantive issue of abuse of process. Mr Keith treats the extent of reliance on the material for the latter purpose as a separate issue. We return to that below.

It follows that all parties submit that it was an error on the part of the judge to read this material without disclosing his intention to read it in advance and seeking submissions on his approach. Despite the evident care he took in relation to the very difficult issues before him and the understandable concern he had to ensure the fairness of the proceedings we agree that he erred as the parties suggest.

What should have been the approach to the judge? His first task was to address disclosure. Given the particular history in this case, it was inevitable and right, that the trial judge should have a high level of concern about disclosure. The essence of the defence position was that failures of disclosure had led to the successful appeal and subsequent abandonment of the drugs prosecution, and that the same team were in charge of disclosure in the money laundering trial. The defence knew that the disclosure errors in the earlier case were serious, but did not know what they were. The only obvious basis on which an abuse of process application could succeed in relation to the money laundering would be that the material relevant to disclosure in the earlier case would prove relevant to disclosure failures in the latter case, or providing a basis for a claim of Bennett/Mullen abuse in the latter case. In considering either possibility, the judge’s first task was to satisfy himself there had been proper disclosure in the money laundering proceedings, before moving on to consider whether the abuse of process application could be fairly disposed of.

In our judgment, it would have been better if the judge had made clearer the distinction between the application for disclosure and the application to dismiss for abuse of process. In relation to the application for disclosure, he could have left the issue on the basis of his acceptance of the assurance Ms Wass QC had given, as we have set out at paragraph 20 above. It would not then have been necessary to read the judgment of the Court of Appeal.

However he might also have informed the parties that by reason of the unusual history he wished himself to review the relevant material from the earlier case in order to satisfy himself that proper disclosure had been made in the latter case. In our judgment, if he had indicated that to all parties, he would have been entitled to proceed to read the closed judgments from the Court of Appeal for that purpose. Logically, if he was to consider that material, he should also have reviewed the relevant material relating to the discontinuance of the drugs prosecution, again in order to consider the question of disclosure. In our judgment such a step would have been entirely proper and in accordance with the principles set out in R v- H and C [2004] 2 AC 134, and in particular those passages in the speech of Lord Bingham, in paragraphs 32 and 33 as to process, and paragraphs 34 to 37 as to substance. The Judge could and should have had in mind the first two steps laid out in paragraph 36 of the speech of Lord Bingham:

“(1)

What is the material which the prosecution seek to withhold? This must be considered by the court in detail.

(2)

Is the material such as may weaken the prosecution case or strengthen that of the defence? If no disclosure should not be ordered. If yes, full disclosure should [subject to PII and consequential considerations] be ordered.”

It is clear from what he said during his rulings, that if the judge had proceeded in that way and reached a conclusion without the appointment of Special Counsel, he would have concluded that disclosure of the closed Court of Appeal judgments was not called for. It is likely he would have said the same in respect of the “Laidlaw” material. In our judgment such decisions would have been a reasonable and proper conclusion for him to reach.

We have summarised the approach of the judge to these very difficult questions through the sequence of rulings he gave, in paragraphs 15 to 29 above. It is clear that he considered the question of disclosure first, and separately from the question of abuse of process. He ruled on disclosure first, concluding there was no obligation on the Crown to disclose the closed judgments. The extent of his reliance on this material in relation to the abuse argument is by necessary inference, also clear: the closed judgments were not disclosable, because they contained nothing which might support the Defence or undermine the case for the Crown.

Before turning to the question of the appointment of Special Counsel, we address one other matter. No one in the appeal has pressed the argument that the trial judge should have recused himself, once he had read this material. We would reject any such argument. As Lord Bingham observed in R –v- H & C (paragraph 35):

“If the disclosure test is faithfully applied, the occasions on which a judge will be obliged to recuse himself because he has been privately been shown material damning to the defendant will …….be very exceptional indeed.”

This judge had been shown no material in private which was damning of the defendant. It is very hard to conceive of circumstances in which a judge should recuse himself because he has seen material said to be damning, or potentially damning, of the approach taken by the prosecution.

In Edwards and Lewis –v- United Kingdom (2005) 40 EHRR 24 the Grand Chamber of the European Court of Human Rights considered the question of the appointment of Special Counsel. Section C of the judgment considers the relevant portions of the “Review of The Criminal Courts in England and Wales” by Sir Robin Auld and quotes the recommendation made in the report for a system of appointment of Special Counsel. The court noted that:

“The entitlement to disclosure of relevant evidence is not ……an absolute right. In any criminal proceedings there may be competing interests such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.”

In paragraph 53 of Edwards and Lewis the court went on to observe that in that case:

“It appears that the undisclosed evidence related or may have related to an issue of fact decided by the trial judge.”(paragraph 57).

The trial judge in that case was considering the question of entrapment into the relevant offences. If the judge had been persuaded that the police in that case had acted improperly, the prosecution would in effect have had to be discontinued. In other words, the undisclosed evidence may well have borne directly on the commission of the offences in question. No Special Counsel had been appointed, and because of the PII ruling, it was not possible for the Defence representatives to argue the case on entrapment in full before the judge and the defence “were thus denied the opportunity to counter the allegations [of entrapment] which might have been directly relevant to the judge’s conclusions that the applicant had not been charged with a “state created crime”.

In those circumstances, the court considered that the procedure to determine issues of disclosure of evidence and entrapment did not provide equality of arms or adequate safeguards to protect the interests of the accused and therefore violated Article 6.

The decision of the Grand Chamber was preceded by that of the Fourth Section of the ECtHR in Edwards and Lewis–v- United Kingdom (unreported) 22 July 2003. It was that earlier decision which led the trial judge in R –v- H and C to rule that special independent counsel should be appointed to represent those defendants, at an ex parte public interest immunity hearing. The decision of the House of Lords was an interlocutory appeal from the trial judge’s ruling. The decision of the Grand Chamber was not available at the time of the hearing before the House of Lords, but the Appellants based their case squarely on the earlier decision in Edwards and Lewis:

“32.

The appellants contended that, taken at its narrowest, the principle established by Edwards and Lewis is that it is incompatible with article 6 for a judge to rule on a claim to PII in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings. It was argued that the Edwards and Lewis principle applies wherever the defence rely on entrapment to stay the proceedings or exclude evidence, but does not apply to entrapment only and is not confined to determinative rulings. It was however acknowledged that there is no absolute rule which requires the appointment of special counsel in any particular kind of case.

33.

These submissions, in our opinion, seek to place the trial judge in a straitjacket. The consistent practice of the court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, but to avoid laying down rigid or inflexible rules. There is no doubt as to the principles to be applied – the more important have been identified in earlier paragraphs of this opinion – and there is no dissonance between the principles of domestic law and those recognised in the Convention jurisprudence. It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case.”

It follows that Lord Bingham’s mind was firmly set against any fixed procedure or “straitjacket” in such circumstances. Judges must be prepared to apply the guiding principles looking at the facts of each case. The judge must address:

“….the parties’ respective cases…..they must be carefully analysed to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far reaching disclosure in the hope that material may turn up to make them good”.

In the ensuing paragraph, Lord Bingham goes on to consider principles which apply where material in question may weaken the prosecution case or strengthen the defence, but where there is a real risk of serious prejudice to an important public interest. The question then arising is whether the “defendant’s interest [can] be protected without disclosure, or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence”. When considering such a question:

“In appropriate cases the appointment of Special Counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see paragraph 22 above). In cases of exceptional difficulty the court may require the appointment of Special Counsel to ensure a correct answer to questions (2) and (3) as well as (4).”

In short, in very exceptional circumstances, Special Counsel may assist in applying the principles relevant to disclosure.

Two points are worth emphasising arising from this speech of Lord Bingham. Firstly, the House of Lords were emphasising the rarity of a case where the necessity for Special Counsel arises. Secondly, the whole discussion on the role of Special Counsel relates to disclosure and a decision of the judge as to admissibility, not a factual decision bearing on the substantive issue in the case, even one to be decided by the judge rather than the jury.

Special Counsel addressed this issue in careful written submissions: see paragraph 34. In his submission, “the issue of whether Special Counsel may engage in substantive issues at first instance in criminal proceedings is by no means clear.” Mr Keith submits that R –v- H and C is no authority for the proposition that Special Counsel may, even exceptionally, engage in arguing substantive issues, citing in support a passage from the speech of Lord Bingham in R (Roberts) –v- Parole Board [2005]2 AC 738. Roberts was a case turning on the role of the Special Advocate in a parole board hearing. In the course of a speech dissenting as to whether the procedure in that case had been unfair, Lord Bingham commented on the effect of R –v- H and C, in the following terms:

“In the third of the cases [R –v- H & C] ….the House held that a Special Advocate might, exceptionally, be appointed in a criminal case to help resolve an issue whether a trial could fairly be conducted if material favourable to the defendant were not disclosed to him. It was not suggested or contemplated that any part of the prosecution case against the defendant could be properly withheld from the defendant and his legal representative, a consideration which distinguishes that case from the present.”

Thereafter, although citing two or three further authorities which do not decide the point clearly, Mr Keith declined to make further submissions as to the ambit of engagement of Special Counsel, essentially in deference to the position of the appellant’s ordinary counsel.

When Mr Owen QC for the Appellant reformulated the Ground of Appeal for the renewed application for leave to appeal on 1 November 2012 the amended grounds read as follows:

“The Applicant’s conviction is unsafe because the learned trial judge acted in incompatibly with the applicant’s Article 6 right to a fair trial by resolving the abuse of process application in the money laundering trial without appointing Special Counsel to advance the interests of the applicant in circumstances where the judge had read and been influence by his reading of the two unredacted CACD judgment handed down in June and October 2009 in the course of the earlier appeal in relation to the cocaine charge and had relied on assurances from Prosecution Counsel as to the absence of bad faith on the part of the prosecution team which were themselves based on knowledge of the unredacted judgments and other material which was never disclosed to the defence.”

Paragraph 5 of the amended grounds reads in part:

“…..it is frankly impossible to understand why the same procedure [i.e. appointment of Special Counsel] was not necessary when the abuse argument in the money laundering trial was being considered by a Judge who had chosen to have access to and to rely on closed material generated in the cocaine trial when determining that argument.”

However, by the time of the substantive argument before us the Appellant’s position had changed. Acknowledging the submissions made by Mr Keith QC, Mr Owen now takes the position that Special Counsel should have been appointed to deal with the disclosure issues, but that it would have been impermissible to appoint Special Counsel to deal with the substantive issue of abuse of process. Mr Owen’s position now is essentially simple. Certainly in the absence of a statutory scheme, presumably accompanied with specific safeguards, it is wrong in principle for any substantive issue in criminal proceedings to be decided on the basis of information which is not communicated to the defendant. The appointment of Special Counsel cannot cure such a defect. The proper role of any Special Counsel who might have been appointed by Judge Cutler would and should have been confined to the review of disclosure.

We have considered carefully all the arguments on this aspect of the case. In our judgment it would have been permissible for HHJ Cutler to appoint a Special Counsel to help address the question of disclosure, given the unusual history in this case. However, there was no obligation on him to do so. It was open to the judge to conclude without Special Counsel that disclosure had been properly discharged. It may be that the appointment of Special Counsel to consider disclosure would have been a reassurance to the Appellant. However, in our view this was a question of judgment for the judge which he could properly exercise either way.

We pause to emphasise that the application for Special Counsel made by Mr Lederman QC did not make any, or any clear distinction between the issues of disclosure and abuse of process. Had the distinction been made, the task of the trial judge might have been easier.

We reach no conclusion as to whether Special Counsel in such a case as this can properly engage in a substantive issue such as abuse of process. The question is important and difficult but it is not necessary for our conclusion on this appeal. This judgment is not a precedent for such a step.

As all parties have recognised, where an appeal is brought in connection with an issue of PII or disclosure, the Court of Appeal will review all the material before the trial judge: see McDonald [2004] EWCA Crim 2614, May [2005] EWCA Crim 97, Nichols [2005] EWCA Crim 1797 Wayne Bradley Collegan [2005] EWCA Crim 2459 and Ebcin [2005] EWCA Crim 2006. It is essential that the Court of Appeal should have the capacity to view material which is undisclosed to an appellant, since otherwise the appeal process would be emasculated. The function of the Court of Appeal is different from that of a jury, in that the prime consideration for the Court of Appeal is the safety of a conviction. In such circumstances the choice for the court is stark: either to review undisclosed material which remains undisclosed to an appellant and his representatives, or to appoint Special Counsel to see the material and argue on an appellant’s behalf, subject to the necessary limitations.

The practice as to the use of Special Counsel at the appeal stage was reviewed by this court in R –v- Chisholm [2010] EWCA Crim 258. In that case, at paragraphs 44 to 52, Toulson LJ gave the court’s views in the form of “some tentative observations about the use of Special Counsel in an appeal against conviction”.

In an important passage in paragraph 46, the court said this:

“At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material, will be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court may consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons: the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have; the court might want to know whether special counsel having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or appellant’s ordinary counsel. The court might also wish to know whether special counsel would want to raise some other point unknown to the appellant’s ordinary counsel relating to what happened in the closed proceedings. Or, there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case.”

It is significant to note that Mr Owen QC makes the respectful submission that the court was in error in the passage quoted above. He says the court was wrong to countenance a role for Special Counsel going beyond consideration of disclosure and entering into any substantive issue, even at an appellate level. We understand this principally to derive from the view that the role of Special Counsel can never extend so far, without a breach of Article 6.

Although an attractive argument, we consider there are definite problems with this line of reasoning. Not infrequently, the Court of Appeal must consider material which cannot be revealed in order to decide whether a conviction is or may be unsafe. As the court emphasised in Chisholm, the court will often be able to reach a view about the propriety of what happened and the safety of the conviction without any need for Special Counsel. However, it must be an added safeguard for an appellant in an appropriate case, that the assistance of Special Counsel can be sought. Mr Owen’s argument would preclude that possibility in every case. For our part, we associate ourselves with the observations made in Chisholm and need add nothing to them, save perhaps to commend the help given to us by Special Counsel in this appeal.

In successive tranches, Mr Keith QC read and considered the closed judgments of the Court of Appeal, the opinions of Mr Laidlaw QC on disclosure failures in the first trial with the supporting documentation, and finally the undisclosed material in the money laundering case. He has therefore had the fullest possible access to potentially relevant material. As Mr Keith has himself emphasised, he has not given neutral assistance to the court: he is not an amicus curiae. Rather, he has been acting as described in paragraph 47 of Chisholm in a “role ….essentially the same as would be that of the Appellant’s ordinary counsel if that counsel had been privy to the same information.”

An important starting point is that Mr Keith recognises that:

“It is, however, not clear to what extent [the trial judge] did rely upon the closed Court of Appeal judgments or, rather, to what extent his reading of those judgments was positively adverse to the defence arguments.”

Later in his submissions, Mr Keith notes that the judge expressly stated on 17 May that he had taken the closed judgments into account for the purposes of disclosure, affirming that if any of the information assisted the defence he would have used it to that end. On 25 May, the judge concluded that the closed judgments included no finding of manipulation or bad faith on the part of the prosecution of the drugs offences. Mr Keith goes on to submit that:

“the contents of the closed judgments were, in effect, damaging because although they did not refer to material that positively damaged or was prejudicial to, the appellant, they formed a central part of the judge’s reasoning for rejecting the substantive abuse application. Whether the closed judgments were disclosable or not on the basis that they would have assisted the defence made no difference. The appellant was traduced by material he could not deal with ….”

With respect to Mr Keith, we reject that argument. The position is rather simpler than that suggested. The defence raised a suggestion of abuse of process. The judge looked at material which, if it had undermined the prosecution position on the claim of abuse or was capable of lending support to the suggestion of abuse, would have been disclosable, subject to PII considerations. The judge found there was no such material. That is not a finding which “traduces” the appellant. It was simply a finding that the closed judgments of the Court of Appeal were not capable of supporting the claim of abuse. This was not a case where the defendant was making specific factual allegations amounting to abuse which were then contradicted by detail contained in undisclosed material. We would add that our reading of the Judge’s ruling on the abuse argument is that the unredacted judgments were not central to his reasoning. Rather they fortified the conclusion he would have reached in any event.

Mr Keith goes on to make critical submissions based on his reading of the undisclosed Court of Appeal judgments, the opinion of Mr Laidlaw QC and the underlying material. We think it worth reproducing the submissions in full:

“56.

It is obvious that Advice disclosed serious failings. These are summarised below. The nature and relevancy of these failings must be considered against the issues that arose in the money laundering trial the following year.

57.

In the money laundering trial, there was no issue but that there had been a theft (Prosecution Opening, para 17) and it was common ground that the Appellant had received those monies that were said to be the proceeds of crime (see PerfectedAdvice on Appeal 24 January 2012, para 9) and which had passed through Equity Holdings. His case was that he had been investing the money on behalf of Bryer, and that he had not been aware that the money had been stolen from Commerzbank

58.

The defence argued that, regardless of the evidence, the prosecution had so tainted itself in the course of the drugs trial that it could not be trusted in the money laundering trial and, indeed they had perverted the process by deliberately pursuing the Appellant for money laundering when it became ‘evident that their pursuit of him in the drugs case was in jeopardy’ (Skeleton argument on abuse of process 17 March 2011, para 21).

[closed]

59.

It is correct to say that there were distinct overlaps in the identity of some of the NCS officers in both trials and, in this regard, the Crown skeleton dated 16 November 2010, at para 41, is deficient in that it fails to mention NCS officers Hodder, Holden, Osland, McCabe, and Winning who were common, it seems, to both investigations, and the fact that DC Morris, who was the case officer in Operation Hobart was in fact the SIO in Operation Torrens and that Leana Mould, who was a disclosure officer in Hobart, was the Operational Manager in Torrens.

[closed]

60.

Thus even if the conduct of the above individuals or agencies, individually or cumulatively, could be characterised as bad faith, misconduct or as an abuse within the meaning of Mullen or ex parte Bennett, there is no material from which to argue that the money laundering trial was thereby tainted.

61.

Although there was a clear overlap in both investigations, as the chronology above shows, and the evidence in the second trial may well have been gathered by the Hobart team, the failings identified above do not appear to be in any way connected with any of the NCS officers involved in the second trial or with the assembly of, and reliance upon, the evidence adduced in that trial, which was of course concerned with the receipt of monies from a theft in Germany. The failings in the first trial related either to Colombia or to the inadequate response by the CPS, NCS and counsel to the primary disclosure failings [closed], and Special Counsel has seen no material to suggest that the disclosure exercise in the money laundering trial was similarly tainted.

62.

For the reasons set out above, neither the Advice nor the accompanying materials can arguably be said to be ‘material’ to the argument that was raised before HHJ Cutler, namely that the prosecution team were ‘tainted beyond redemption’ as a result of the serious disclosure failings in the cocaine case, and that it manipulated the process of the court by deliberately discontinuing the cocaine trial so as to avoid scrutiny of its actions and by then choosing to prosecute Mr Austin only for money laundering.

63.

Accordingly, no issue arises therefore as to whether they should be the subject of any application by the prosecution to the Court of Appeal for permission to withhold disclosure in these proceedings.

64.

It is for the Court of Appeal to determine whether, in light of the nature of the contents of the Advice and its accompanying material, the convictions before HHJ Cutler were rendered unsafe.”

Mr Keith has also submitted that the court should openly describe the nature of the advice from Mr Laidlaw QC, so far as is consistent with the public interest. We agree, and do so now, not least because the nature and content of the advice is relevant to our conclusions on the safety of the conviction.

The advice was prepared between December 2009 and July 2010 in an “iterative form”. It was shown in draft to all those necessary to ensure its factual accuracy. The advice reviews in great detail the material which properly fell to be disclosed for the purposes of a retrial of the cocaine allegations. It did so on the assumption that reliance was to be placed on the Colombian intercept material, or in the alternative, if that material was withdrawn, the advice focused on what was disclosable for the purposes of an anticipated application of abuse of process. Mr Laidlaw had access to and analysed the contemporaneous documents from the time of the intercepts and afterwards. He also reviewed all the relevant witness statements, legal opinions, notes made in conferences and meetings, and exchanges between the different organisations and personnel involved. He saw the closed material available to and the submissions made to the Court of Appeal in 2009.

Mr Laidlaw’s opinion reached the conclusion that there had been serious and multiple incidences of non-disclosure at the first trial, and serious procedural irregularities in the PII process in 2009. The failures of disclosure were attributable to significant and acknowledged failures by the Crown between 2004 and 2005, in communicating between various entities of the Crown. However, particularly important for present purposes, those failures of communication were confined to issues connected with the intercept material concerning the drugs offences. These failures potentially affected the provenance, authenticity and reliability of the intercept material, but affected no other evidence. There was no basis for concluding that the disclosure obligations of the prosecuting authorities or anyone else had been breached in any other regard. In the event, the conclusion was that the intercept evidence had to be withdrawn because it could not successfully be dealt with.

Had the assumption been that the trial judge would rule that the role of Special Counsel could be enlarged at the drugs re-trial so as to advance substantive arguments at a closed abuse of process hearing, then the advice was that the opinion and all the accompanying material could and should be provided to the trial judge and Special Counsel.

That then was the nature of the Laidlaw advice and the thrust of the material which underlay it. It is of great importance to the instant appeal that Mr Keith QC reached the following conclusion at the end of his consideration of this body of evidence:

“Although there were repeated errors, and bad judgment, the advice reveals no evidence of deliberate non-disclosure, or attempts to hide material, or of deliberate misleading. Special Counsel is unable to gain say that conclusion.”

On the basis of our review of that material, we unhesitatingly concur with that conclusion. Taken as a body, the closed judgments of the Court of Appeal in 2009 and the opinion of Mr Laidlaw QC with its supporting material, which has been made available in full to us, revealed nothing which would be disclosable as undermining the prosecution case in the money laundering proceedings or supporting defence allegations of abuse of process in the money laundering proceedings. All of the failings identified are wholly discrete from the investigation into the money laundering or the evidence presented at the trial before HHJ Cutler. Even within the four corners of the drugs case, we emphasise that there is nothing to support allegations of bad faith.

Finally, in considering the role and submissions of Special Counsel in this appeal, it is appropriate to address the unused material that was in the possession of the prosecution at the time of the money laundering trial. HHJ Cutler paid no regard to any prosecution material withheld in the course of the money laundering case. However, out of an abundance of caution, on 28 February 2013 we requested Special Counsel to examine the unused material from the money laundering investigation, and Mr Keith has done so. He concluded that all of the items appeared to be sensitive and/or confidential, and were properly withheld. Mr Keith paid particular attention to the possibility of documents appearing to relate to the course, direction or conduct of the investigation. He found none. He also paid special attention to any item that appeared to relate to any of the personnel who had been concerned in the material non-disclosure during the drugs case. He found no such documents.

It is axiomatic that we should consider this question by reference to the criminal proceedings as a whole, including the appeal process. At one point, Mr Owen submitted that the consideration by the trial judge of undisclosed material both as to disclosure and as to the substance of the issue on abuse of process represented an irredeemable breach of Article 6. However as we have already indicated, he moderated that position in the course of the hearing, and accepted that if there was nothing further which required to be disclosed, and nothing in the unredacted judgments capable of assisting the defence in their abuse arguments, the appeal must be dismissed.

The Crown throughout took a directly contrary view to the Appellant’s original submission. As we have already observed, Miss Wass submits that the judge should have accepted the assurances of counsel as to the propriety of the decisions on disclosure taken by the prosecution. There was no need for the judge to look at any of the material: the Crown had performed their duty properly. She criticises the judge’s unilateral decision to look at the closed judgments, but submits this is neither here nor there. All he did was to reassure himself the Crown had taken the correct decision. There was no material that would tend to undermine the prosecution or assist the defence. Since the only way in which the relevant material might even hypothetically undermine the prosecution or support the defence, was in relation to the abuse of process claim, it was unsurprising that the judge’s view on disclosure should find its echo in his decision on abuse of process.

We have already indicated our view of the submission from Special Counsel that the use of the closed judgments “traduced” the appellant. Our view of this submission may bear a little expansion in the context of considering a potential breach of Article 6. As we have already stated, the two potential issues of relevance here were inadequacy of disclosure in the money laundering case or abuse of process of the Bennett/Mullen type. The decision as to the adequacy of disclosure in the money laundering proceedings is clearly not a “substantive” issue in the criminal trial. This question is almost always decided without the defence having knowledge of the material sought to be withheld. As to the second issue, we have already emphasised the unusual nature of the “defence” which may be effective in stopping a prosecution even where it is acknowledged that the Defendant is guilty of the offence. While, at least theoretically, wrongful withholding of evidence capable of sustaining such a claim could represent a breach of Article 6, it could not even then be said to “traduce” the defendant. We do not consider that what took place here represented a breach of Article 6 at all.

Ultimately, the issue in this appeal concerns disclosure. Despite the somewhat tangled history, we consider the conviction is safe. The appeal must therefore be dismissed.

Despite the very careful and thorough way in which the judge approached the difficult issues, his decision to read the unredacted judgments of the Court of Appeal, without raising the issues with the parties, was an error. The history of disclosure in the drugs case plainly gave rise to real and understandable concerns on his part, as we have set out at paragraph 59. He considered it would be in the interests of all if he read the unredacted judgments to see if there were any implications for the proceedings before him. However, the right course would have been to raise with the parties the question as to whether he should obtain and read the judgments as a means of ensuring the propriety of disclosure in the trial before him and the fairness of those proceedings. As we have made clear, it would have been open to him simply to indicate he accepted the assurances of leading counsel for the Crown on disclosure. However, we fully understand why he might have wished to go further and see the material. Had he done so, applying the principle set out in R –v- H and C, there could have been no objection to him doing so.

On the facts in this case, it would have been open to the judge to accede to the application for Special Counsel to assist with the review of disclosure, if he thought that was proper. It is to be stressed that that is a step to be taken only rarely. It is emphatically not a step to be taken every time there is a claim of abuse of process, in a case where material is sought to be withheld on the ground of public interest immunity. Many judges might have declined the appointment of Special Counsel even in the particular circumstances arising in this case. In our view, that does not represent a breach of Article 6 and is a defensible view of such an application, even on these facts. If Special Counsel had been appointed, their remit should have been focused on disclosure. Real difficulties attend the engagement of Special Counsel at first instance in relation to a substantive issue when, in the nature of things, the defendant cannot know all the evidence. We reach no conclusion on that issue.

Our own view that, on the facts, no further disclosure was required coincides with that of Special Counsel. None of the withheld material undermines the prosecution or sustains the claim of abuse of process. This conviction is safe. The appeal is dismissed.