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31 October 2018

The effect of non-disclosure of evidence relating to communications and the appointment of special counsel (R v Knaggs and others) (Originally published on Lexis PSL)

4 mins

What are the practical implications of this case? (i.e. how the case may influence how practitioners advise their clients).

This was a complicated case which involved a number of legal issues. In this case, the Court of Appeal was ultimately unconvinced that the CPS’ failure to disclose certain material in the original trial had led the trial judge to incorrectly rule particular evidence admissible.

This judgment effectively illustrates the ongoing challenges defence practitioners face regarding the way in which the disclosure process is managed by the Crown Prosecution Service (CPS).

The judgment also illustrates the high threshold required to be met before the Courts will appoint Special Counsel. Finally in suggesting that the evidence in the case was so overwhelming that the issue of excluding evidence was potentially irrelevant, the Court of Appeal continues to speculate as to the bases on which juries convict in Crown Court Trials.

What was the background (i.e. the facts necessary to understand the following questions) 

Knaggs, Hadley, and Rich were convicted of conspiracy to import cocaine. They were each given custodial sentences ranging from 14 to 20 years and were granted leave to appeal their convictions on two grounds. These related to mobile phone and email communications between alleged conspirators, namely:

  • mobile telephone calls which were said to have been intercepted by the Dutch Authorities (“the Dutch Intercept Ground”); and

  • a Yahoo email account (slimjim25@ymail.com), which was said to be used to communicate via draft emails (“the slimjim Ground”).

During the original trial the CPS had relied on evidence obtained by interception of telephone calls by the Dutch Authorities. If the telephone calls had been recorded in the UK they would have been inadmissible under the Regulatory Investigatory Powers Act 2000 (“RIPA”).

The Defence submitted that the Prosecution had not proven that the phone calls were Dutch intercepts and suggested that they were in fact UK intercepts. They requested disclosure of material to support this argument.

In response the Prosecution asserted that they had served all the relevant information that would establish that the intercepts had been lawfully obtained and were admissible, and that there was no documentation in their possession which could or may assist the Defence in arguing to the contrary.

The Crown Court Trial Judge was satisfied that the material relied upon by the Prosecution was reliable and had been obtained in the proper way and ruled that it was admissible.

In the Court of Appeal proceedings, the Respondent (Prosecution) served new material that was relevant to the Dutch intercept issue. The Appellants (Defence) argued that this suggested that there had in fact been serious non disclosure of materials concerning whether evidence had been lawfully obtained.

This meant that there was a possibility that obtaining the material had been a breach of RIPA and that the phone calls should not have been admissible. The Appellants contended that Special Counsel should be appointed and claimed it was unfair that the Court had seen the newly disclosed evidence when the Appellants had not.

This, they submitted, amounted to an Article 6 ECHR problem. The Appellants sought to adduce fresh evidence said to bring context to the newly-disclosed material.

What did the Court decide?

The Court ultimately concluded, having themselves viewed of the newly disclosed material that there was nothing in relation to either the Dutch intercept Ground or the Slimjim Ground that should have been disclosed by the Respondent that had not been so disclosed.

It was therefore the Court’s view that there was no material in relation to which Special Counsel might assist the Appellants or the Court. As such, the Court held, the appointment of Special Counsel was unnecessary.

The Court suggested that the Appellant’s submissions indicating an Article 6 breach were “misconceived”. It stated that the Court’s decision to review the material without the Appellants having had access to it was made in line with previous authorities and that, in any event, the Appellants had not been deprived of any material which would have allowed them to pursue admissibility arguments.

The Court agreed with the Respondent in that, ultimately, the telephone and email evidence was only one aspect of the case against the Appellants. The Court further held that “[…]in any event, even if excluded…the remainder of the case against the Appellants was overwhelming.”

The article can be accessed on Lexis PSL here

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