Practice and Procedure


PUBLISHED May 28, 2003

Appeal against conviction allowed, despite guilty plea, where relevant but sensitive material had not been revealed to the defence.Application for leave to appeal out of time against conviction. The appellant ('M') had pleaded guilty of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A controlled drug. M was sentenced to three years' imprisonment. M had been caught smuggling the drug into the UK and on arrest made allegations about the circumstances which caused her to be carrying drugs. Although these could have amounted to a defence of duress, she chose not to raise that defence. On 10 February 2003 the solicitor acting for the customs and excise wrote to M's solicitors to inform them that material had recently been brought to his attention of which he was not previously aware. Had he been aware of it before the case was heard, he would have regarded it as disclosable, but highly sensitive and therefore likely to attract public interest immunity. That information was now placed before the court.HELD: (1) The court was satisfied that there was material which it would have been the prosecution's obligation to disclose, but was so sensitive that it would not have been disclosed, and rather than disclose it, the prosecution would either not have prosecuted at all or, if proceedings had been commenced, would have offered no evidence. (2) The circumstances in which an appeal might be successful were not confined to those identified in R v Forde (1923) 2 KB 400 as was clear from R v Togher & Ors (2001) 1 CAR 457. The court had to consider whether the appellant had a fair trial. It was difficult to see how the appellant could be said to have had a fair trial when it was now the case for the prosecution that she should not have been tried at all. Furthermore if, when advising in relation to plea, her legal advisers had access to all of the relevant material, it was clear that she would have been strongly advised not to plead guilty and there was no reason to think that she would have refused to accept that advice. (3) In the particular circumstances of this case it was open to the court to set aside the plea of guilty and to allow the appeal against conviction.Appeal allowed.

[2003] EWCA Crim 1542