Practice and Procedure


PUBLISHED February 27, 2003

Undisclosed prosecution evidence would have affected the way the defendant put forward his defence. Therefore the court could not be sure that his conviction was safe.Renewed application for leave to appeal against conviction following refusal by the single judge. On 29 November 2001 at Maidstone Crown Court before HH Judge McKinnon the defendant ('H') was convicted of obtaining property by deception. On 20 December 2001 he was sentenced to 18 months' imprisonment suspended for two years and ordered to pay compensation to the victims of his crime. On 15 March 1998 the victims ('V'), a husband and wife, went to a hotel to meet with H to see two Rolex watches which they intended to buy. H produced the watches and told V that they were the only two in the world and had been commissioned for Arabs. H said they were worth in the region of ?90,000. A price of about £31,000 was agreed and paid for both of the watches. The watches were subsequently discovered to be fake. It was the prosecution's case that H had asked a man ('B') to obtain the watches for him and must have known they were fake because of the low price that he had paid for them. It was H's case that B had offered the watches to him. The first trial, in April 2001, was abandoned after the judge fell ill. At that trial B gave evidence that he had sold the watches to H for £10,500. He denied representing the watches as having been commissioned by Arabs and saying they were the only two of their kind. In July 2001, B's home was searched and he was arrested following the discovery of a substantial number of fake Rolex watches. In November 2001 the police contacted a woman who had bought jewellery from B, which experts had examined and discovered to be fake. It later emerged, though not before the conclusion of H's second trial, that she had apparently been deceived into buying a watch and bangle, represented as Cartier, by B. H applied for leave to appeal against conviction on the ground that the prosecution should have disclosed the material resulting from the search of B's home, particularly the evidence that the Cartier products were fake. If that had been disclosed it could have been used by H to attack B's credibility and to enable him to deal with the prosecution's contention that H had requested B to obtain the items for him. The prosecution contended that even if the material had been disclosed H would have been unlikely to have made use of it and even if he had used it, it would have made no difference.HELD: It was difficult to accept the prosecution's contention that the undisclosed material would not have been used. It was highly likely that it would have been used, to some effect, by H. It was equally difficult to conclude that the disclosure of the material would have made no difference to the outcome. If the evidence of the woman deceived by B into buying fake Cartier products was also taken into account it was impossible to be sure that the jury would have reached the same conclusion as they had.Leave to appeal granted. Conviction quashed.

[2003] EWCA Crim 761