England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Tuesday, 19th December 2000

1. LORD JUSTICE MAY:Robert Henry Doubtfire, the appellant, is now aged 35 or thereabouts. On 16th February 1994, following a four-week trial in the Crown Court at Maidstone before HHJ Croft and a jury, he was convicted by a majority decision of ten to two. On 3rd June 1994, he was sentenced to a period of 25 years' imprisonment on count one of an indictment which charged him as being knowingly concerned in the fraudulent evasion of the prohibition on importing a class A drug, Ecstasy. He was also convicted on count two of being knowingly concerned in the fraudulent evasion of prohibition of importing a class B drug, Amphetamine, for which he received 12 years' imprisonment, concurrent with the 25 year term on count one. He was ordered to pay £13,900 towards the cost of the prosecution, that sum of money having been found in a safe at his premises. The court has certified in this case that there was no benefit found under the Drug Trafficking Offences Act 1986.
2. He appealed to the Court of Appeal against both conviction and sentence, and on 30th November 1995 the Full Court, presided over by the then Lord Chief Justice, Lord Taylor CJ, dismissed his appeal against conviction but reduced the sentence from 25 years' imprisonment to one of 20 years. There was a co-accused called Mr Van Pattenhoe who was likewise convicted, he unanimously. He was sentenced to a total of 25 years' imprisonment. His appeal against conviction was similarly dismissed and his sentence also varied to 20 years. There was, in his case, a confiscation order made under the Drug Trafficking Offences Act. There was another defendant, for whom the jury was unable to reach a verdict, and not guilty verdicts were eventually entered in respect of him.
3. This appeal comes before this Court some six years after the trial and something over seven years after the appellant was first in custody on account of this matter, because on 6th June of this year his case was referred to the Court of Appeal for a second time, as it turns out, by the Criminal Cases Review Commission acting under section 9 of the Criminal Appeals Act 1995.
4. The summary of the prosecution case, which the Criminal Cases Review Commission gave in a statement of reasons put before this Court, was in these terms:

"On 6th May 1993 Metropolitan police officers were conducting observations on an industrial estate in Dagenham as part of an operation known as operation 'slow'. At about 6.15am in the morning of 6th May, they saw Mr Doubtfire arrive in a small truck and enter unit number 5. About ten minutes later another man, called Waite, arrived in a white Astra van and entered the unit. A tanker arrived at the same time driven by Mr Van Pattenhoe, who was a Dutch national. The shutters of the unit were raised and the tanker went inside. Just before 7.00am Mr Doubtfire came out of the unit and walked to the rear. The shutters began to rise and the police entered. They searched the premises and found a number of holdalls and boxes containing drugs. The three men were arrested. The police also found a black holdall containing tools, including a rivet gun and a broken screwdriver. Customs and Excise were notified shortly after the defendants' arrests and assumed responsibility for the prosecution. Examination of the tanker revealed that it contained cleverly concealed secret compartments."

5. The evidence of the police at the trial was that they were maintaining observation on the estate because of information which had been received about lorries going onto the estate. This information was said to have been received in March from a member of the public. They received further information from Mr Marshall, who ran a business on the estate, that a tanker came onto the estate on 18th March 1993 and entered unit 11. The prosecution said that the police had no information which led them to expect that a tanker would arrive on 6th May, and no information that drugs were involved, although officers testified that they had begun to suspect drugs when they realised that a foreign tanker was involved.
6. The prosecution alleged that Mr Doubtfire and Mr Waite were part of a team who made arrangements for the unloading of the drugs, helped with the unloading and reclosing of the tanker, and arranged for the onward transmission of the drugs. Mr Van Pattenhoe was said to be the driver who arranged for the drugs to be concealed in the tanker and who made the trips to England. The prosecution case was that the consignment which formed the basis of the indictment was not the first consignment the team imported from Holland; and the prosecution relied upon activities on previous occasions, particularly on 18th March, when Mr Marshall reported a tanker on the estate, to support the inference that the defendants were knowingly concerned.
7. There was a lot of evidence which included forensic evidence, evidence of phone calls and diary entries at the time of this and earlier visits of the tanker to England. There was other evidence of the alleged involvement of Mr Doubtfire and Mr Waite in the planning for the Ecstacy importation and the earlier importation which the prosecution suggested took place on 18th March 1993. Witnesses who were called included a Mr Bernard Hogan, a Mr Marshall, a Mr Lennon, and evidence from a shutter repair company.
8. During the course of the proceedings the prosecution made applications to the trial judge in the matter of public interest immunity, seeking orders that would not oblige them to disclose information to the defence. One such application occurred on Wednesday, 19th January 1994, when prosecuting counsel made an application for public interest immunity for material in the case. After hearing from prosecution counsel in an ex parte hearing, the trial judge allowed each defence counsel to address him ex parte in turn, in order to indicate the nature of his client's defence before hearing again from prosecuting counsel; the latter course being one which the Court of Appeal, in this case, subsequently said was undesirable. There were further ex parte applications during the proceedings when the prosecution counsel attended the judge and matters were discussed.
9. Mr Doubtfire's defence essentially was that he accepted that he had unloaded boxes and holdalls from the tanker. The issue for the jury was whether he knew that the material they were unloading contained drugs. His case, in effect, was that he had been used by a man called Bill Stone and/or by the prosecution witness Bernard Hogan. He, Mr Doubtfire, was a self-employed builder. He had been doing a considerable amount of contract work for WF Stone, who he knew as Bill Stone. He gave a lot of evidence about repairs to the shutter, the telephone calls and the diary entries. He denied that he was on the estate on 18th March when the tanker had arrived on that day, and he gave detailed evidence about what he was doing on 6th May.
10. It was part of his case that Mr Hogan and/or Mr Stone must have known that the importation was occurring, and cross-examination by his counsel of Mr Hogan was directed to that and similar material. Mr Van Pattenhoe also had a defence which is not material to the present application.
11. As we have said, the matter came before the Court of Appeal in 1995. The appeal against conviction was dismissed, the appeal against sentence to a limited extent succeeded.
12. Mr Doubtfire, the appellant, applied to the Criminal Cases Review Commission on an application form which was received by them on 23rd April 1997, and he provided the Commission with a detailed account of his concerns about his conviction, together with associated documentation. He raised, in summary, a number of matters which he suggested cast doubt on his conviction and sentence. The Commission summarised some of them in these terms:

"Mr Doubtfire believes that information relevant to his defence was withheld, in particular information relating to Mr Stone, the involvement of the Dutch police and Mr Hogan. According to him, the correct procedure for determining claims for public interest immunity was not followed. He has made an application to the European Court of Human Rights, and again he was aware of fresh evidence arising from the inquiry conducted in the Netherlands as to the identity of others who were involved in this and other importations."

13. The Criminal Cases Review Commission has carried out a most extensive and careful investigation into the appellant's application. Their conclusion, in referring to the matter under the Criminal Appeal Act 1995 to this Court, is expressed in these terms:

"As a result of the Commission's enquiries, the Commission has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the Crown to the trial judge in the course of ex parte hearings. The Commission considers that this failure was material to Mr Doubtfire's defence and to his mitigation. This matter has not been considered previously by the Crown Court or the Court of Appeal."

14. The detailed reasons for reaching that conclusion are contained in a confidential annex to the reasons given by the Criminal Cases Review Commission, which has been provided to this Court and to the Customs and Excise, but which has not, upon public interest immunity grounds, been provided to Mr Doubtfire or to those representing him. This Court has considered, in private, reasons in support of that non-disclosure. The appeal is therefore brought necessarily in ignorance of the details of why the Commission reached the conclusion that it did, but in the knowledge of its conclusion in the terms of which we have just set out.
15. Mr Emmerson, in ignorance of those details, said, most understandably, that without sight of the material the defence is unable to develop submissions on the relevant impact of the material. However, he submits that the non-disclosure must be sufficient itself to render the conviction unsafe and to lead this Court to allow the appeal and quash the conviction. He submits that where the prosecution or investigating authorities withhold relevant evidence without seeking the prior approval of the trial judge, this constitutes a violation of Article 6 of the European Convention on Human Rights. Such a violation cannot be remedied by the conduct of an ex parte hearing before the Court of Appeal, for which he refers to the case of Rowe and Davis v United Kingdom [1999] 30 EHRR 1.
16. Mr Emmerson submits that it follows that in the present case there has been a breach of Article 6, and in considering the impact of such a breach on the safety of the conviction the correct approach, he submits, is that set out in the case of R v Togher and Others (9th November 2000), and he refers there to the judgment of the Lord Chief Justice in that case. He helpfully refers us to a quite extended passage from the judgment. It is only necessary, for present purposes, just to read a short passage of the Lord Chief Justice in that case as follows:

"We would suggest that, even if there was previously a difference of approach, that since the 1998 Act came into force, the circumstances in which there will be room for a different result before this court and before the ECHR [European Court of Human Rights] based on the respective tests we employ will be rare indeed. Applying the broader approach identified by Rose LJ [in Mullen] we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe."

17. Mr Emerson relies upon that for the submission that that is the test that should be applied. He submits that, in view of the admitted breach of Article 6 in this case, the appellant's conviction is liable to be quashed without the necessity for a detailed consideration of the impact of the non-disclosure on the correctness, or otherwise, of the jury's verdict.
18. In the unusual circumstances of this case the prosecution, through Mr Barnard, do not seek to uphold this conviction. This court has seen and considered the details which led the Commission to reach the conclusion which we have quoted. Those details persuade us that the appellant's trial was materially unfair in the way in which the Commission describes. That is sufficient for our conclusion that this appeal should be allowed and the conviction quashed.
19. We have considered whether it is right that this Court should elaborate on that conclusion by giving detailed reasons, by reference to the confidential material which has been put before the Court, to explain why we have reached that conclusion. We are persuaded that the balance of competing public interest in this case falls on the side of not making that material public, and not making public the detailed reasons for the Commission's conclusion.
20. We have found that particular point a difficult one, and we have sought by consideration both among ourselves and with Mr Barnard whether there is in any way a halfway house in this case. We have, with some regret, reached the conclusion that there is not, and in reaching that conclusion we are acutely aware of the clear fact that justice is required to be conducted openly and in public, and that exceptions to this should only occur in cases where there is indeed an overriding public interest which so requires it.
21. We also take account of Mr Emmerson's submission that the appellant and his advisors should, where possible, be enabled to judge the true merits of a claim for compensation. But as Mr Emmerson in the end said, he is persuaded that if it becomes necessary an appropriate forum in that respect might be elsewhere. The question of compensation is not a matter for this Court today.
22. We are also acutely aware that this is a case where the appellant has spent seven and a half years in prison, and in other circumstances would unquestionably be entitled to a detailed explanation of why it was that we are persuaded to quash his conviction and allow his appeal. In the result, as we have said, this Court is satisfied that the appellant's trial was materially unfair, because there was a failure by the prosecution in respect of its disclosure obligation in the context of submissions made by the Crown to the trial judge in the course of ex parte hearings. We accordingly allow this appeal and quash the conviction.
23. MR EMMERSON: My Lord, the only minor point of detail is that your Lordship will recall Mr Doubtfire was ordered to pay £13,900 towards the costs of the prosecution in the first set of proceedings. I regret to say that I am not in a position to make submissions to your Lordships as to the effect of the reference back on what would ordinarily be the consequence of a successful appeal against conviction, but I am working on the assumption that the conviction, having been quashed, the order for costs is likewise quashed.
24. LORD JUSTICE MAY: That would have to go with it, would it not?
25. MR EMMERSON: I think that must be right.
26. LORD JUSTICE MAY:Yes, I think that is accepted, Mr Emmerson. Thank you very much, we are grateful to both of you.