Procedure - Disclosure - Aggravated trespass - Whether conviction unsafe

R v Barkshire and Others: Court of Appeal, Criminal Division (Lord Chief Justice Lord Judge, Mr Justice Treacy, Mr Justice Calvert-Smith): 20 July 2011

The instant case concerned the prosecution’s duties in relation to disclosure. Twenty defendants were tried for ­conspiracy to commit aggravated trespass.

The offences concerned a political protest. The defendants had intended to invade a power station at Ratcliffe-on-Soar to protest against climate change.

That power station discharged some 150,000 tonnes of carbon into the atmosphere each week. The defendants had been involved in a sophisticated plan to enter and occupy the power station for a week, during which time the discharge of carbon would have been significantly diminished in the hope of possibly shutting down the power station.

The prosecution case was that the defendants had engaged in a publicity stunt and that they had conspired to commit aggravated trespass. The evidence against the defendants was unchallenged and the essential facts were not in dispute. The defence case was described as ‘the justification of necessity’.

Pursuant to section 3 of the Criminal Procedure and Investigations Act 1996, the prosecution had a duty to disclose material which ‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused’. However, the question arose as to whether the prosecution had failed to fulfil that duty in relation to its key witness, K. He was a police officer who was at the heart of the prosecution case.

K had been authorised to act undercover to infiltrate the activists’ group, to be engaged in driving and dropping off the activists prior to them committing offences, and to withdraw from the vicinity of the power station to avoid arrest and to avoid becoming a witness. His authorisation also included the requirement to liaise with the Crown Prosecution Service, an obligation with which he had not fully complied. K had successfully infiltrated the group.

However, K surpassed the remits of the authorisation he had been given. He personally participated in the first reconnaissance at the power station in January 2009 and in subsequent reconnaissances. He was said to appear to be an enthusiastic supporter of the proposed occupation of the power station and to have acted, arguably, as an agent provocateur. It was conceded by the prosecution that K had played a significant role in assisting, advising and supporting the very activity for which the defendants were prosecuted. He was one of 114 persons arrested in connection with the action.

Pertinent to the instant appeal, recordings made by K of some of the briefings which had taken place with the activists, which tended to undermine, at least in part, the prosecution case, had not been disclosed to the judge or the jury at the trial.

In particular, the recordings showed that the activists had placed great emphasis on achieving their objective of bringing about an enormous reduction in carbon emissions, that their intended activities were directed to the saving of life and to the avoidance of injury. It was also clear that during the course of the briefings, those who were present were advised that they did not need to get involved if they did not wish to do so and the importance of safety and non-violence, and the avoidance of criminal damage to property had been underlined.

At the end of the case, the judge, unaware of that undisclosed material, directed the jury that ‘each defendant was innocent if they reasonably believed that it was necessary to do what they were doing in order to avoid the imminent threat of serious injury to himself or herself or others, and that in the circumstances that they believed them to be, it was reasonable and proportionate to do what they were going to do’. The defendants were convicted.

During the trial of six further defendants, solicitors acting for them, who had also acted for the defendants, were informed by the CPS that the previously undisclosed material concerning K had come to light. The trial of those six defendants collapsed. Several inquiries were commissioned or conducted in respect of the failure to disclose relevant material to the CPS by the police. The defendants appealed against conviction.

It fell to be determined whether the convictions were rendered unsafe by the non-disclosure of relevant material which tended to undermine the prosecution case and assisted the defence case. It was submitted on behalf of the defendants that the proper course was for the Court of Appeal to adjourn the hearing of the appeal to allow the full process of disclosure, which should have taken place before the trial, to take place, so as to allow the defendants and the public to be better informed about the facts.

The appeals would be allowed.

It was a critical aspect of the trial process, as reflected in authority, that the prosecution was obligated to ensure the disclosure of material, which, in the words of the section 3 of the 1996 act, might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case of the accused. That material included anything available to the prosecution which might undermine confidence in the accuracy of evidence called by the prosecution, or which might provide a measure of support for the defence at trial.

In the instant case, the failure of the prosecution to make proper disclosure of material relating to the role and activities of the undercover police officer, K, as well as of material which had to potential to provide support for the defence case or to undermine the case for the prosecution, where the materials were pertinent to a potential submission of abuse of process by way of entrapment and had the capacity to support the defence of necessity and justification, had rendered the trial unfair and the convictions unsafe.

The convictions would be quashed. Ancillary costs orders in favour of the defence would be made. R v H; R v C [2004] 1 All ER 1269 applied.

Per curiam: Given the parlous state of the national economy, the court could not avoid reflecting on whether the numerous reviews and investigations into this case and what went wrong with it may amount to overkill. The course suggested on behalf of the defendants, of adjourning the hearing of the appeal to allow disclosure to take place, will amount to an inquiry into what went wrong with the disclosure process.

There are cases where that course would be appropriate, but the instant case is emphatically not one of them. The kind of inquiry the court is being invited to undertake simply cannot be justified and would be a waste of the court’s limited resources. Other cases, awaiting hearing, would be delayed.

The ongoing inquiries would be disrupted by the demands this court would have to make to procure the further disclosure which would be a necessary concomitant of its own inquiry. The interests of justice will be well served, without any further inquiry by this court.

Matthew Ryder and Benjamin Newton (assigned by the registrar of criminal appeals) for B, CW, PK, H, R, D and C; Matthew Ryder and Daniel Friedman (assigned by the registrar of criminal appeals) for L, K, LK, W, J, S and SS; Matthew Ryder and Sarah Elliott (assigned by the registrar of criminal appeals) for ES, JS, MS, DG, PM and B; Tim Owen QC and Alan Blake (instructed by the Crown Prosecution Service) for the Crown.