Austin, R v

On 21 October 2011 in the Crown Court at Winchester, after a trial before HHJ Cutler CBE and a jury, the appellant was convicted of conspiracy to conceal the proceeds of criminal conduct (count 1) and conspiracy to convert the proceeds of criminal conduct (count 3). He was acquitted of one count of conspiracy to transfer the proceeds of criminal conduct (count 2) and another (count 10) was ordered to lie on the file in the usual terms.

On 12 December 2011 he was sentenced to 8 years imprisonment on each count (concurrent). On 13 January 2012 the sentence was varied to reflect an error in respect of the credit to be allowed for time spent on remand. The varied sentence was 5 years and 248 days imprisonment. It was directed under s240 of the Criminal Justice Act 2003 that 53 days spent on remand were to count towards sentence. A Serious Crime Prevention Order was made for a period of 5 years and he was disqualified from being a company director for 10 years.

At an earlier trial in July 2011, Raymond Jewitt and Anthony Heald were convicted of 3 counts of conspiracy to conceal the proceeds of criminal conduct (counts 1-3). They were sentenced to a total of 5 years and 3 years imprisonment respectively. Both abandoned applications for leave to appeal against conviction following refusal by the single judge. Leigh Greest pleaded guilty to one count of conspiracy to conceal the proceeds of criminal conduct (count 1) and was sentenced to 2 years imprisonment.

Joseph White, Sanjib Mozumder and Leon Baum were acquitted of conspiracy to transfer the proceeds of criminal conduct.

The Appellant appeals against conviction by leave of the Full Court granted on 17 December, 2012 (President Queen’s Bench Division, Irwin and Kenneth Parker, JJ.

The case involved the laundering of (part of) the proceeds of a theft from Commerzbank in Frankfurt, Germany. The prosecution case was that on 15 August 2000, $15,583,128.57 was stolen by two of the bank’s employees, Matthew Holmes and Donald Somers. The theft took place by way of an electronic transfer made from the Commerzbank account in favour of Wolpert Consultants, who held an account at a bank in Amsterdam.

The error was not detected until 21 October 2001. Following a police investigation, it was discovered that on 30 August 2000 $10,129,033 was transferred from Wolpert Consultants to accounts in Australia which were controlled by Roger Bryer, an Australian citizen and a prime mover in laundering the stolen money. Commerzbank money was moved from Australia to bank accounts in Cyprus and Jersey for the benefit of Equity Holdings, a company controlled by the appellant and his co-accused Mozumder. From Equity Holdings the money passed to a firm of solicitors in London called Georgiou Nicholas and was used to purchase property for the benefit of the appellant (and Mozumder) through their firm, Austin Daniels Estate Agents. Between January and September 2001, eight payments totalling £1.6 million passed through the solicitors. Seven were made through Equity Holdings in Cyprus and the eighth through a company called IPG.

In addition to the actual movement of money into accounts associated with the appellant, the prosecution also relied upon a document (“Statement General July 30^th 2001”) seized from Bryer’s home address in Australia, which identified those who were receiving the stolen money. It suggested that the appellant was to receive in excess of Aus $12 million of the funds that had been transferred to Australia from Wolpert.

The defence case was that the appellant was investing the money on behalf of Bryer and had no knowledge that the money was stolen. He accepted receiving money through Equity Holdings for this purpose. He denied receiving any other stolen Commerzbank money and denied being the beneficiary referred to in the document seized from Bryer’s home.

The issue for the jury was whether the appellant handled money which he knew represented criminal property.

The appellant was not arrested for the money-laundering offences until July 2008. An investigation into his activities had begun in 2002 in relation to drugs, and in August 2003 he was arrested in relation to the importation of cocaine. He was convicted after trial in May 2006 and in June 2006 sentenced to 18 years imprisonment. In October 2009 the conviction was quashed on appeal for non-disclosure of relevant material and a retrial was ordered. The appeal was unopposed. In September 2010, prior to retrial on the cocaine indictment, the prosecution offered no evidence.

It is relevant to consider the process by which the cocaine case came to an end in a little more detail. The Appellant was granted leave to appeal by the CACD on 16 May 2008. There was a hearing in July 2009, following the procedure laid down in R v McDonald [2004] EWCA Crim 2614, leading to open and closed judgments: see R v Austin and others [2009] EWCA Crim 1527. There was a subsequent hearing on 2^nd October, leading to open and closed judgments on 9 October 2009: see R v Austin and others [2009] EWCA 1960. The issue in this appeal was a failure of disclosure in relation to intercept evidence bearing on the Appellant’s involvement in the cocaine importation. Special counsel, Hugo Keith QC, was appointed early in 2009 and represented the Appellant at both appeals. The findings of the court were summarised in paragraphs 18 to 24 of the open October judgment, and it is not necessary to repeat them here. As that judgment sets out, on 15^th September 2009, the Court received notice that the Crown no longer intended to resist the appeal, but would seek a re-trial. Full reasons for that stance were placed in a closed document, which was produced to the Court and to Special Counsel before the October appeal. After consideration, the Court granted a re-trial.

On 29^th April 2010, the Crown informed the defence that a full review of the unused material had been performed by Jonathan Laidlaw QC, who had been retained as leading counsel for the Crown. The Crown also informed the defence that they no longer intended to rely on the relevant intercept evidence at the re-trial. Although the Crown anticipated there would be renewed arguments of abuse of process, and indicated that open and closed processes would be required before the trial judge (Roderick Evans J), the Crown asserted that the decision no longer to rely on the intercept evidence meant that any possible prejudice had fallen away. On 29^th July 2010, a Note was served on the defence, indicating that it was proposed to place an advice by Mr Laidlaw and supporting documents before the trial judge, addressing disclosure and any possible abuse of process. Michael Birnbaum QC had been appointed as special counsel at the request of the judge, so that the material and the arguments based on it could be addressed on behalf of the Appellant. However, no such process took place, because on 3^rd August 2010, the Crown informed the defence that they had decided to drop the case. There was therefore never any hearing within the “cocaine” proceedings at which the abuse arguments and the disclosure issues in that case were substantively addressed. Verdicts of not guilty on these matters were recorded on 3^rd September 2010.

HHJ Cutler CBE was the judge assigned to try the money-laundering case, and he dealt with the preliminary stages of the matter in advance of the trial. Before the trial the defence sought to argue abuse on the basis that the two prosecutions, for cocaine importation and for money-laundering, involved the same police officers, particularly the same disclosure officers, and the same counsel. There were said to be overlaps in the material that the prosecution intended to rely on. It was argued that the court ought to examine the prosecution’s disclosure failings in the cocaine case and consider whether the appellant could have a fair trial in the instant case. It is necessary to consider the sequence of applications and surrounding events.

No transcript of this hearing was available to us, however the essential points were agreed to be accurately recorded in notes made by the Appellant’s solicitor. Mr David Lederman QC, then leading counsel for the Appellant began by asking for disclosure of the material which had led to the quashing of the cocaine convictions. The Crown’s response was that this was inappropriate, since there was nothing in the material reviewed which was discloseable, since nothing would serve to undermine the prosecution case or support the defence case on abuse relevant to the money-laundering trial. In the course of submissions, junior counsel for the Crown apparently indicated to the judge that “We may invite the court to re-read the closed judgment…”, suggesting that it was already known the judge had done so.

The Crown indicated that further material had come to light following the appeal in 2009, a reference we have no doubt to the material reviewed by Mr Laidlaw. Later the same day the judge indicated that he did not wish to look at that material, although he thought that “If I am to decide if there has been any impropriety I would have to see the material”. The defence encouraged him to do so, and argued for the appointment of special counsel.

On the following day, Ms Wass QC appeared for the Crown. She confirmed the history of review by Mr Laidlaw, and had ready for the judge a bundle of material derived from the Laidlaw review. She repeated the Crown’s position that there was nothing capable of supporting any allegation of bad faith, and therefore nothing which was discloseable. In the course of further argument, Ms Wass did suggest that the judge might refer to the closed judgments from 2009 as being helpful on “bad faith”. She invited the judge to rule on disclosure and “then move on to abuse arguments”. Leading counsel for the defence made it clear that he was not asking for any assurances from the Crown as to the propriety of disclosure, “we are asking for the evidence”. Although Ms Wass suggested that the judge might refer to the unredacted judgments, we were told that at no stage did he raise with the parties the question as to whether he should in fact do so. Instead, as we explain at paragraph 23, he obtained the judgments with the approval of the judges to whom he referred, but without informing the parties that he was going to do that.

On 11 May 2011, it was submitted on behalf of the appellant (and co-accused) that there had been an abuse of process. This submission amounted to an attack on the integrity of the prosecution team in the trial, by reference to the way in which the prosecution team had behaved in the earlier case. It was asserted that there had been manipulation and delay, as well as a deliberate failure to extradite Bryer, a potential co-accused. The Judge was asked to consider questions of disclosure to allow proper consideration of the available evidence in the application for abuse (2A-E).

The defence sought detail about what was contained in documentation seen by the Court of Appeal and the prosecution, which led to the cocaine trial appeal being allowed and a retrial being ordered. The defence relied on passages from the open judgment of the Court of Appeal (9 October, 2009: paras. 43-44) as demonstrating that the Court considered that arguments raised in closed session concerning retrial were serious and evenly balanced, and on a retrial there would be arguments on abuse of process as well as disclosure.

The Judge set out the chronology of the earlier trial and referred to the judgments of the Court of Appeal in July and October 2009. The Judge ruled that the defence were not entitled to disclosure of any of the material that had caused the prosecution to invite the Court of Appeal to quash the conviction in the cocaine case. He emphasised that it was necessary to be clear, in effect, as to where the obligations lay in relation to disclosure. The system

The Judge was invited to reconsider his earlier ruling of 11 May in the light of the fact that leading counsel for the Crown had not viewed all the material herself, but had relied on what she had been told and read. He found that prosecution counsel could not be expected to have looked at every item capable of constituting material for the purposes of the 1996 Act herself and must rely on being part of a team. She had had a system within the prosecution team of being kept properly informed and it was her judgment and not somebody else’s that led her to make the declaration she had. The Judge made no further orders for disclosure.

The Judge also rejected an application to declare the ruling he had just given, and earlier rulings concerning disclosure, to be a preparatory hearing (under s. 29 Criminal Procedure and Investigations Act 1996).

The Judge rejected an application that he should recuse himself on the basis that he had had access to the un-redacted Court of Appeal judgments. In the course of this application and ruling the Judge confirmed he had read the un-redacted 2009 judgments of the Court of Appeal. That had been done with the approval of Roderick Evans J, the senior Presiding Judge of the Western Circuit Royce J, and Aikens LJ. The Judge confirmed that he had relied on the judgments, at least in part, when considering the allegations of bad faith and abuse of process, and the question whether the events outlined in the judgments of the Court of Appeal might be thought to affect the fairness of the money-laundering trial.

It was submitted on behalf of the appellant and his co-accused that the whole indictment should be stayed as an abuse of process, firstly on the grounds of the integrity of the prosecution team and the allegation of manipulation, secondly on delay, and thirdly as to the failure to extradite Bryer.

In relation to the connection between the two prosecutions, the Crown responded by emphasising that different CPS teams were involved. The cocaine trial was commenced by the CPS at Eastleigh. Later the London CPS became involved in proceedings before the Court of Appeal, with the extra material and special counsel. The money laundering case was dealt with by the CPS in Birmingham. There were certain people common to both cases, but leading Crown Counsel was new to the prosecution team and had played no part in any of the previous proceedings. The separation was such that one prosecution “should not be tarred with whatever brush” might be deserved in the other case.

The Judge rejected the defence submissions. Even if he had found the prosecution had acted with bad faith in the cocaine trial, the Judge did not agree that that would infect the prosecution in the money laundering case. He referred to the judgments of the Court of Appeal in July and October 2009 in relation to the cocaine trial and the appointment of special counsel. The Judge found that there clearly might be disclosure issues to be examined in a retrial, had that taken place. The Judge concluded that it would not be right for him to say that this was some form of manipulation of the prosecution process. The activities of the prosecution had delayed the hearing of the money laundering trial by a year or so, because that trial had to await the outcome of the second cocaine trial. The Judge had had the advantage of seeing the unredacted judgments of the Court of Appeal for July and October 2009 and there was nothing in them that gave any foundation for personal accusations of manipulation, or bad faith, or lack of integrity, against any of those named within the prosecution team on the papers.

The Judge considered the delay which had been occasioned and concluded that the prejudice was not rightly categorised as so severe, considering the authorities, as to lead to the Court exercising its discretion to find it would be an abuse of process to proceed with the money laundering trials.

The Judge considered the position of Roger Bryer and concluded that the failure to extradite could not be categorised as any manipulation or abuse of the process. The Crown Prosecution Service had not behaved with expedition, but it was very difficult to see prejudice which had not already been cured by the severance of the money-laundering into two trials.

The Judge concluded that, with proper directions to the jury and “a proper consideration of the admissibility or otherwise of aspects of the evidence”, that this was a matter which could and should proceed to trial. The applications made by the defence were dismissed. The Judge declined to appoint special counsel.

The principal witnesses to the primary facts gave oral evidence. Donald Somers gave evidence as to his extradition from Australia to Germany to stand trial for the theft from Commerzbank. He did not dispute the theft. He made a statement to the Serious Organised Crime Agency in August, 2008. He was a merchant banker and had met Matthew Holmes, an Englishman, in October, 1999. He was friends with Leigh Greest (co-accused). Greest had a cocaine habit and other problems and was sacked in March 2000. Holmes had recognised that there was $15.5m in a list of unreconciled items. He (Somers) was involved with some of the planning but much of it was done by Bryer, who was the key player and pivotal to the entire operation. Holmes was just the one who pushed the button. Greest was to one side. Jewitt was going to legitimise $10.5m. He said he had no knowledge of the appellant or of Equity Holdings.

Martin Deaner was a businessman who met the appellant through Jewitt. At a meeting with Jewitt and the appellant, some time after October, 2001, he understood they had around $15m to invest. He was told the money was in a solicitor’s account in Holland or Belgium. Jewitt had earlier introduced him to Bryer. The meeting lasted about 10 minutes and it was predominantly Jewitt speaking, not the appellant. He drew up a contract but neither Jewitt nor Heald would sign it, which put him in difficulties. He did not take the matter any further.

David Munday was a broker and was introduced to Jewitt in relation to a transaction. He knew the appellant as Herbie but heard others call him “H”. When cross examined, he said the appellant was a very experienced property developer.

Stephen Cornmell was a forensic accountant who prepared the charts showing the routes the Commerzbank money had taken. He said it was clear that Bryer was a sophisticated operator, well versed in banking transactions. He had seen correspondence between Jewitt and Bryer, starting with Bryer giving Jewitt evidence proving the legitimacy of the money. He found there to be a connection between the two, some time before the money was stolen. Much of the Commerzbank money ended up with Georgiou Nicholas and went into property.

The appellant gave evidence. He worked with his brother and with Paul Castle. Castle had a dozen companies. The appellant’s job was to locate property in London or on the periphery of the city. In 1994 he became friendly with Mozumder and they set up an estate office together with his son, also called Herbert or Herbie, and Daniel Tobry, hence the name Austin Daniels.

Working for Austin Daniels, he would pop in a few times a day and then not for a week. His eldest daughter and son also worked there. He was still working for Castle and was paid a substantial wage by him. Equity Holdings and Investments (EHI) was incorporated in the Seychelles in 1998/99. He had no input into it and did not become a director. He left Mozumder to organise the paperwork because he was more comfortable finding properties. He believed EHI had a bank account but he did not set it up. Mozumder found the accountants and the solicitors, Georgiou Nicholas.

He was asked about various properties and said Mozumder arranged the funding.

He met Jewitt in 1998/99. Jewitt was interested in his (the appellant’s) property successes and suggested he had money to utilise in the property business.

He met Bryer on 26 October 2000. Bryer seemed to have connections with businessmen in high places. Six to eight weeks later he came to the offices at Austin Daniels and he introduced Bryer briefly to Mozumder. Jewitt and Bryer seemed to be close business partners. He had told Jewitt of his capabilities in the property business and that he was able to double money in five years. Bryer asked him what he knew about the property business and seemed interested in investing money in his business. He and Jewitt were going to liquidate some shares and invest 2-3 million in him (not Austin Daniels). There was no guarantee of profits. It was to be for 3-5 years. They could have their money back after three years but would get a maximum return after five. The money was going to go through EHI.

The deal was reduced to writing. There was a document on solicitors’ headed notepaper prepared at Jewitt and Bryer’s end. This document existed in 2001 but the Appellant had not seen it since his premises were searched.

He was asked about the card “Matt Holmes” found at his home in 2003 and said he did not know him. The first he knew of Commerzbank was when the police asked him about it in 2008. He knew nothing about the theft. He was not involved in any criminal conspiracy as charged.

When cross examined, he said it was correct that Mozumder was a shareholder and beneficial owner of EHI and that there was no connection on paper with him and EHI. His home was not registered in his name. His car was registered to Jewitt’s address although he did not know why. He suggested Jewitt may have taken over other people’s persona. He agreed that none of his wealth was held in his own name.

EHI was registered in the Seychelles for tax purposes and was in Mozumder’s sole name, because he trusted him. He agreed that £1.5 – 1.6m of stolen money had gone through EHI. It was going to be put in properties to be in the ownership of EHI or be linked with Austin Daniels. No properties would have a paper link with Bryer. As for the Statement General, he agreed that “H” could be him, but the document was not compiled by him. Although he received payments through EHI he did not know they were stolen.

It follows that the relevant financial transactions to substantiate the charges were not in issue. Nor was it in issue that the money had in fact been stolen as the Crown alleged. The only issue was the Appellant’s knowledge.

In summing up to the jury, particularly by reference to a number of charts and admissions, the Judge outlined the distribution and beneficiaries of the stolen money. The Judge reminded the jury that the company was not a shell company set up just to receive money from Bryer, but was an existing company which had been trading right the way through. The judge too emphasised that the issue was the Appellant’s knowledge.

The initial grounds of appeal, now abandoned, were wide-ranging. On 17 December 2012, Mr Owen QC, now acting for the Appellant, was granted leave by this Court to substitute a single ground, as follows:

Following application by Mr Owen and the direction of this court, Hugo Keith QC was once again appointed as special counsel and provided with all relevant material, open and closed. He was able to review all that the trial judge had seen, and indeed the material read and reviewed by Mr Laidlaw QC. In careful submissions in writing, both open and closed, Mr Keith refined somewhat the considerations arising from the substituted ground. He defined the issues as follows:

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):

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:

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):

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:

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

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:

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:

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:

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:

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:

Paragraph 5 of the amended grounds reads in part:

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:

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:

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:

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:

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.