Practice and Procedure


PUBLISHED November 13, 2003

The trial judge's ruling on material which was the subject of public interest immunity had been correct and the appellant's conviction was safe.Appeal against a conviction in Kingston Crown Court in August 2000 of three counts of conspiracy to supply class A drugs for which the appellant ('N') was sentenced to fifteen years' imprisonment on each count to be served concurrently. The prosecution alleged that N had been the leader and organiser of a drug dealing operation in a London club. Crucial prosecution evidence came as a result of the deployment of a probe at N's flat and a video camera to provide a record of who went to the flat. The probe and the camera had been deployed pursuant to authorisations approved by a surveillance commissioner pursuant to the Police Act 1997. The prosecution alleged that the recordings from the probe provided an almost continuous record of what had transpired in the flat between 30 April 1999 and May 1999. At trial N had applied to exclude the evidence of the probe under Police and Criminal Evidence Act 1984 on the basis that the tape had been manipulated to included material from different recordings and evidence obtained from an unlawful search of N's flat on 12 February 1999. After a lengthy voir dire the judge ruled that the material relied on to approve the probe was subject to public interest immunity and was not disclosable. On appeal N submitted, as he had done at trial that: (a) an allegation of dishonesty on the part of the police justified an inquiry into the circumstances surrounding the approvals given for the surveillance; (b) as N had been prevented from seeing the material he had been deprived of a fair trial under Art.6 of the European Convention on Human Rights. The grounds of appeal were that: (i) the judge had been wrong to permit the evidence which was the result of the probe to be given in evidence; (ii) the combined effects of rulings made by the judge in the public interest immunity hearings and under s.9 Interception of Communications Act 1985 produced such unfairness to N as to render his conviction unsafe.HELD: (1) The judge had used the correct test that any information relevant to the defence case that might weaken the prosecution case had to be placed in the hands of the defendant if he/she was to have their case fairly presented and that all secret or confidential systems should not be revealed to an accused and thereby put in the public domain thus aiding serious criminal enterprises in the future. It followed that the judge had to have been satisfied that the material in no way helped the defence or undermined the prosecution and accordingly was not disclosable. (2) Having seen the material the judge was correct to have held that the material in question attracted public interest immunity and that there was nothing in it to help N or undermine the prosecution. Therefore his decision to permit the results of the probe to be given as evidence was correct. The judge expressly stated that he did not rely on any material which he had read as part of the public interest immunity enquiry. The first ground of appeal was rejected. (3) The crucial issue in regard to the second ground of appeal was whether or not the prosecution had in its possession any recorded material containing the voice of N which could have been used to manipulate the tapes produced from the probe. The inhibitions in relation to questions relating to the interception of communications, which the defence relied on as establishing unfairness, affected both the prosecution and the defence leaving an area of uncertainty which was of more forensic advantage to the defence than the prosecution. That ground of appeal was misconceived and accordingly rejected.Appeal dismissed.

[2003] EWCA Crim 3186