Knagg & Ors, R v, Court of Appeal - Criminal Division, August 07, 2018, [2018] EWCA Crim 1863

Resolution Date:August 07, 2018
Issuing Organization:Criminal Division
Actores:Knagg & Ors, R v
 
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Neutral Citation Number: [2018] EWCA Crim 1863

Case No: 201201781 C1, 201201650 C1, 201201652 C1, 201206962 C1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

BIRMINGHAM CROWN COURT

T20107637, T20107805.

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/08/2018

Before :

LADY JUSTICE SHARP

MR JUSTICE SWEENEY

and

MR JUSTICE BRYAN

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Between :

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Tim Owen QC & Helen Law (instructed by Draycott Browne Solicitors) for Knaggs and (instructed by Olliers Solicitors) for Hadley & Rich

Christopher Harding (assigned by The Registrar) for Ruiz-Henao

Peter Wright QC & Julia Faure Walker (instructed by CPS) for the Respondent

Hearing dates : 20-21 December 2017

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Mr Justice Sweeney :

Introduction

  1. On 20 February 2012, after a trial lasting some five months before HHJ Inman QC in the Crown Court at Birmingham, Knaggs (now in his mid-forties), Hadley (now in his late fifties) and Rich (now in his mid-forties) were each convicted of conspiracy to import cocaine (Count 1). Cassim Koubari, Melvin Smit, and Michael Phillips were all acquitted on that Count. Rich and Knaggs were acquitted of a similar offence alleged to involve them and others unknown (Count 2), and Hadley was acquitted of five charges of conspiracy to import specified Class A & B drugs seized from a lorry at Dover and from a warehouse in Rotterdam (Counts 3-7). On Count 1, Knaggs was later sentenced by the trial judge to 20 years' imprisonment, Hadley to 18 years' imprisonment, and Rich to 14 years' imprisonment - in each case less 568 days spent on remand. Anthony Perger, who had pleaded guilty to Count 1 before the trial, was sentenced to 5 years 6 months' imprisonment - also less 568 days spent on remand.

  2. In a second trial before HHJ Chambers QC, which began on 27 February 2012 and concluded on 28 March 2012, the jury were unable to reach a verdict in relation to Jesus Ruiz-Henao (``Ruiz-Henao'') on Count 1, but acquitted his brother Hector Ruiz-Henao (``Hector'') on that Count. On 13 November 2012, after a re-trial before the same judge in the Crown Court at Birmingham, Ruiz-Henao (who is now in his late fifties) was convicted on Count 1. He was later sentenced by HHJ Chambers QC to 16 years' imprisonment, concurrent to a sentence that he was already serving, and a Serious Crime Prevention Order was imposed for a period of 5 years. After eventual extradition from France, Duberley Navaez-Alvarez (``Alvarez'') pleaded guilty to Count 1 and was sentenced to 8 years' imprisonment.

  3. Knaggs, Hadley and Rich now appeal against conviction by leave of the Full Court (Rafferty LJ, Sweeney J and the Common Serjeant) granted on 20 February 2014 (see [2014] EWCA Crim 735) upon two Grounds - each of which is concerned with the disclosure / admissibility of evidence relating to communications between alleged conspirators, namely:

    (1) Mobile telephone calls, principally between Rich and Hadley, which were said to have been intercepted by the Dutch authorities in the period from 16-24 October 2009 (``the Dutch intercept Ground'').

    (2) A Yahoo email account with the address slimjim25@ymail.com, which was said to be used by Hadley, Rich and Alvarez to communicate via draft emails in the period from 14 May 2009 to 1 November 2009 (``the slimjim Ground'').

  4. On behalf of Knaggs, Hadley and Rich (and ultimately adopted on behalf of Ruiz-Henao) it is asserted that the Dutch intercept and slimjim Grounds concern distinct and equally pivotal parts of the Respondent's case and that the material now available shows, in relation to both alleged methods of communication, that there was, and continues to be, serious non-disclosure by the Respondent of materials relevant to the lawfulness of the way in which the evidence was obtained - which materials were properly disclosable at trial, at least in relation to admissibility and abuse of process issues, and which (in accordance with e.g. R (Nunn) v Chief Constable of Suffolk Constabulary [2014] 3 WLR 77) remain disclosable in this appeal. It is said, by reference to R v Alibhai [2004] EWCA Crim 681 at [57], that the failure to disclose itself renders the convictions unsafe, but that the substance of the undisclosed materials would also in turn have enabled the Appellants to bolster their application for specific (but still undisclosed) exculpatory material, which further taints the safety of the convictions. It is therefore clear that compliance or otherwise by the Respondent with its duty of disclosure is at the heart of this appeal.

  5. At the hearing in this Court on 20 February 2014, leave was also granted to Knaggs, Hadley and Rich to pursue a third Ground, which was concerned with the disclosure / admissibility of evidence of recordings of prison Personal Identification Number (``PIN'') telephone calls between Knaggs and Hadley. However, after the service of further evidence, that Ground was eventually abandoned. Leave was refused in relation to various other Grounds advanced by Knaggs, Hadley and Rich - including one which was concerned with alleged misconduct by the one-time Officer in the Case from SOCA, Mr Bill Butterworth. A final Ground, which related to a possible jury irregularity, was the subject of investigations by the CCRC, consequent upon which, ultimately, it was pursued no further.

  6. At, and following, a Disclosure and Directions hearing on 19 May 2015, this Court (Rafferty LJ, Sweeney & Dingemans JJ - see [2015] EWCA Crim 1007) variously declined:

    (1) An invitation by the Respondent to assume that (contrary to its case) the evidence in relation to each method of communication was unlawfully obtained, and then to determine whether, on that basis, the Appellants' convictions may be unsafe.

    (2) To order the Respondent to make any further disclosure, save where such was volunteered, with the pragmatic exception of copies of the relevant Dutch court orders / authorisations in relation to relevant telephone intercepts, which were ordered to be provided.

  7. The Court then set a timetable to bring the appeal to a full hearing on the first available date after 29 January 2016. However, thereafter the Appellants were given time to make further investigations of their own.

  8. At a further Directions Hearing on 11 July 2017, this Court (Rafferty LJ, Sweeney J and HHJ Zeidman QC - see [2017] EWCA Crim 1068) variously, and for the reasons given in its judgment:

    (1) Granted a renewed application for leave to appeal against conviction made by Mr Harding on behalf of Ruiz-Henao (which was limited to Ruiz-Henao's Grounds 6 & 7 - i.e. the Dutch intercept and slimjim Grounds), and formally joined his appeal with that of Knaggs, Hadley and Rich.

    (2) Noted that, following the provision to Knaggs, Hadley and Rich of the relevant Dutch court orders / authorisations, it was accepted that the requisite formal authority to intercept telephone calls made and received in Holland was in place at all material times.

    (3) Declined to grant orders sought on behalf of the Appellants that the Respondent take all reasonable steps to obtain:

    (i) An un-redacted version of the BOB (i.e. investigatory) file from the Dutch Public Prosecutor.

    (ii) Copies, in so far as they were not part of the BOB file, of all the intelligence passed between the United Kingdom and Dutch authorities in relation to the October / November 2009 Dutch investigation.

    (iii) Copies of any records held by SOCA concerning the obtaining of phone intercept evidence in relation to any of the Appellants - including, but not limited to, the obtaining of such evidence abroad.

    (4) Concluded, after considering the decisions in R v H [2004] 2 AC 134, R v Chisholm [2010] EWCA Crim 258 and R v Austin [2013] 2 Cr App R 33 (``Austin No.3''), that it would be a matter for the constitution of the Court which ultimately heard the full appeal to decide whether it was appropriate for the Court itself to inspect any of the undisclosed unused material, and then to decide (after any appropriate assistance from counsel on both sides) whether the appointment of Special Counsel was required in order to:

    (i) Review the material sought in relation to the Dutch intercept, together with the material in the Respondent's hands about contact between the UK authorities and Yahoo, and/or the US authorities concerning the Yahoo evidence, including correspondence and intelligence.

    (ii) Make submissions as to onward disclosure to the Appellants; further material that ought to be obtained; and / or to make submissions at the full hearing in support of the Appellants' appeal.

  9. After the hearing on 11 July 2017 it became clear that, prior to that hearing, Ruiz-Henao had given instructions that there should also be a renewed application for leave to appeal against conviction on his Ground 5 (which raised an Article 6 issue), but that, through no one's fault, Mr Harding had not been aware of that, and so had not made a renewed application on that Ground.

  10. The full hearing of the appeal was ultimately fixed for 19 & 20 December 2017. It was decided that Ruiz-Henao's renewed application in relation to his Ground 5 would be heard then. The Respondent did not require any of the Appellants' witnesses in relation to the Dutch intercept and slimjim Grounds to be called. We asked that one, Mr Dieben (a Dutch attorney whose evidence relates to the Dutch intercept Ground), be available, if required, on the second day.

  11. On 15 December 2017, exercising our power under s.23(1)(a) of the Criminal Appeal Act 1968, we formally requested the Respondent to bring to Court any material in its possession that touched on the Dutch intercept and slimjim Grounds - in case we wished to review it, or any of it, during the appeal.

  12. On 18 December 2017 the Respondent sent an email to the Appellants, and to the Court, which stated...

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