Austin, R. v, Court of Appeal - Criminal Division, June 27, 2013,  EWCA Crim 1028
|Issuing Organization:||Criminal Division|
|Actores:||Austin, R. v|
|Resolution Date:||June 27, 2013|
Neutral Citation Number:  EWCA Crim 1028Case No: 2011/06524/ C1IN THE COURT OF APPEAL (CRIMINAL DIVISION)ON APPEAL FROM WINCHESTER CROWN COURTHis Honour Judge Cutler CBET20097029Royal Courts of JusticeStrand, London, WC2A 2LLDate: 27/06/2013Before:PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE IRWINandMR JUSTICE MALES- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Miss Sasha Wass QC & Mr R Leach (instructed by The Crown) for the RespondentMr Tim Owen QC (instructed by Hughmans Solicitors) for the AppellantMr Hugo Keith QC instructed by the Attorney GeneralHearing dates: 1 November 2012, 17 December 2012, 25 March 2013Written Submissions Received 4 and 7 April 2013- - - - - - - - - - - - - - - - - - - - -Approved JudgmentMr Justice Irwin: 1. 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.2. 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. Co-accused3. 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. 4. Joseph White, Sanjib Mozumder and Leon Baum were acquitted of conspiracy to transfer the proceeds of criminal conduct.Overview of the Case5. 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. 6. 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. 7. 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. 8. In addition to the actual movement of money into accounts associated with the appellant, the prosecution also relied upon a document (``Statement General July 30th 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. 9. 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. 10. The issue for the jury was whether the appellant handled money which he knew represented criminal property.Background: the Cocaine Case11. 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. 12. 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  EWCA Crim 2614, leading to open and closed judgments: see R v Austin and others  EWCA Crim 1527. There was a subsequent hearing on 2nd October, leading to open and closed judgments on 9 October 2009: see R v Austin and others  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 15th 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.13. On 29th 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 29th 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 3rd 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 3rd September 2010.Pre-trial Submissions in the Money Laundering Trial14. 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.9 May 201115. 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.16. 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.10 May 2011 17. 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.11 May 201118. 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). 19. 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. 20. 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 ``relies on the integrity of prosecution counsel, knowing that high standards are expected, and indeed delivered...nothing revealed in the paperwork which I have gives me a basis to have any allegation against the prosecution's integrity such as to give a basis of this application concerning disclosure..'' Prosecuting counsel had told him that there was nothing to disclose. She had discharged her duties on disclosure. There was nothing in the material he had seen ``to displace my duty to put my trust on issues of disclosure firmly in the hands of Miss Wass.''16 May 201121. 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.22. 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).17 May 201123. 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.25 May 201124. 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. 25. 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. 26. 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.27. 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. 28. 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.29. 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.Prosecution Evidence At Trial30. 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.31. 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. 32. 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. 33. 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 Defence Case34. 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.35. 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.36. He was asked about various properties and said Mozumder arranged the funding.37. 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. 38. 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.39. 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.40. 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.41. 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.42. 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.43. 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.The Summing-Up44. 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.Grounds of Appeal45. 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:``The appellant's conviction is unsafe because:The Judge acted incompatibly with the appellant'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 appellant in circumstances where the judge had read and been influenced by his reading of the two unredacted CACD judgments handed down in June and October, 2009 in the course of an earlier appeal in relation to the cocaine charge. He had relied on assurances from Prosecuting 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.''Appointment of Special Counsel for the Appeal46. 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:``Was it incompatible with Article 6 for the trial judge to refer to and rely upon the closed court of appeal judgments, and to fail to order the prosecution to make available (presumably to the court for the purposes of a PII application, or to the defence) further material said to be relevant to the abuse argument (namely the advice from Jonathan Laidlaw QC and the accompanying materials)? Should special counsel have been appointed? Alternatively, should the judge have recused himself, having read the Court of Appeal judgments?If so, were the convictions rendered unsafe because (i) taking into account all the circumstances of the money laundering trial, there is a real possibility that the jury would have arrived at a different verdict had the necessary disclosure been made and/or (ii) the trial process was unfair on account of the procedure adopted during the disclosure/abuse of process rulings.''In our view Mr Keith's formulations are helpful but may best be addressed by asking a series of questions. The first series of questions concern the role of the judge. Disclosure and abuse of process47. 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.48. 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.49. 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. The Role of the Judge50. 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?51. 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  1AC 42 and Mullen  QB 520 (hereafter ``Bennett/Mullen abuse''). 52. 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.53. 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. 54. 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  2AC 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.''55. 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  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. 56. 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.57. 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.58. 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.59. 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.60. 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.61. 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  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.''62. 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.63. 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. 64. 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.What was the possible role of Special Counsel? Should Special Counsel have been appointed?65. 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.''66. 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''.67. 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 6.68. 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.''69. 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''.70. 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. 71. 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. 72. 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 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.73. 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.''74. 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.''75. 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. 76. 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. 77. 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. 78. 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. The Role of Special Counsel on Appeal79. 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  EWCA Crim 2614, May  EWCA Crim 97, Nichols  EWCA Crim 1797 Wayne Bradley Collegan  EWCA Crim 2459 and Ebcin  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. 80. The practice as to the use of Special Counsel at the appeal stage was reviewed by this court in R -v- Chisholm  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''.81. 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.''82. 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. 83. 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. The Case-specific Submissions of Special Counsel84. 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.''85. 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...
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