England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 31st October 2007

1. LORD JUSTICE LATHAM: Have you got a copy Mr Bird of your note to me?
2. MR BIRD: Yes, my Lord. My Lord should also have one from my learned friend as well.
3. MR KNOWLES: I have a note from him.
4. MR BIRD: I am sorry, it is my fault.
5. LORD JUSTICE LATHAM: Do not worry.
6. Thank you both of you for the notes. I think Mr Knowles that I am not going to be able to give to you any further information than Mr Bird has indicated. I have thought carefully about it together with my colleagues yesterday, but there are, I am afraid, difficulties if I go further and I am afraid I am going to have to deal with it as suggested by Mr Bird.
7. At a hearing on 11th October 2007, this court considered the position of disclosure in this case. As a result of the position as seen by this court, the Crown indicated that it no longer sought to resist Mr Haskayne's appeal against conviction. The consequence was that we adjourned the matter from that date in order to give both sides an opportunity to consider the form of any judgment which this court considered appropriate in disposing of the reference.
8. We have had notes from both the respondents and the appellant, and having considered those notes we propose to say as follows.
9. Mr Haskayne was convicted on 21st December 1995 at the Maidstone Crown Court, before His Honour Judge Simpson and a jury, of two counts of being knowingly concerned in the importation of drugs on 4th December 1994. The drugs consisted of 107 kilograms of ecstasy and 3.5 kilograms of amphetamine. The street value was about £6 million.
10. They had been transported in five holdalls aboard a coach from the Continent to the United Kingdom, which had been chartered by Mr Haskayne's company, Montravel. Mr Haskayne was acting as the tour leader on the coach and a co-defendant, Moore, was a passenger. At the trial he pleaded guilty.
11. After conviction, Mr Haskayne was sentenced to 18 years' imprisonment. He appealed against both conviction and sentence. On 14th February 1997 the full court refused leave to appeal against conviction. On 26th March 1997 his appeal against sentence was dismissed.
12. On 25th July 2006 the Criminal Cases Review Commission referred the conviction back to this court. By then Mr Haskayne had been released from custody.
13. The reasons for the referral were not provided to Mr Haskayne but were contained in the confidential annex to the Commission's statement of reasons, which was provided to the court and to the Crown. In an open note of 30th October 2006, the Crown was able to tell Mr Haskayne of the Commission's concern that:

"There was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the prosecution to the trial judge in the course of ex parte hearings. The Commission considers that this failure meant that the judge was not given access to material that might have assisted Mr Haskayne's defence."

14. The ex parte hearings referred to took place on 23rd November 1995. The Commission, the Crown and the court have all tried to obtain a tape or transcript of the ex parte hearings, but none has been located. What happened at and in the run-up to those hearings has had to be reconstructed from available documents, but largely also from the memories, often imperfect, of those involved.
15. On 31st October 2006 the Court of Appeal invited the Attorney-General to appoint special counsel who was to have access to all the material, including sensitive material that was still available. Mr Penny was appointed, considered the material and provided written submissions to the court on 4th October 2007.
16. Having considered the material now available, in the light of the special counsel's submissions and the preliminary observations of the court at the ex parte hearing on 11th October 2007, the Crown then announced that it had decided no longer to resist the appeal and that it conceded the conviction was unsafe. The reasons for this decision cannot be given in detail due to the sensitivity of the material concerned. The court and special counsel are aware both of the nature and the content of that material, but Mr Haskayne is not. What this court can say, however, is that the material related to a significant part of the Crown's case at the hearing and was clearly relevant to the way in which the prosecution put the case, both to Mr Haskayne and to the jury.
17. There is no doubt that had that material been made available to counsel at the time of the trial, it is inconceivable that it would not have been disclosed to the judge, and inconceivable that counsel would have put the case to the jury in the way that he did. The Crown have openly conceded that there was a failure accordingly of disclosure not simply to the court, but to those who were appearing for the prosecution at the time. We think that that should be made abundantly plain. In other words, no criticism can properly be made either of the counsel at the trial or the judge. But the position is clearly such that since that material related to a clear basis upon which the prosecution put the case to the jury, the verdict could not have been safe. It was on that basis that the Crown conceded the matter as it did on the last occasion.
18. Accordingly, we quash the conviction.
19. To that extent, Mr Knowles, we have been able to help you, but it is only a little bit I know.
20. MR KNOWLES: I am grateful.
21. JUDGE MOSS: Mr Bird, you are content with that?
22. MR BIRD: Yes.
23. LORD JUSTICE LATHAM: I thought it was important that we should make it abundantly plain that it was not the fault of those counsel who were concerned in relation to disclosure at the time of the original hearing.
24. MR BIRD: My Lord, from our point of view, my Lord knows from the earlier note to the court, we were unable to come to a firm conclusion as to precisely what happened, but (inaudible).