No. 2004/02548/B1, 2006/06192/B1, 2005/01105/B1, 2006/02613/B1
2006/05736/B1, 2007/00510/B1, 2006/05925/B1, 2007/00528/B1, 2007/00527/B1

Neutral Citation Number: [2007] EWCA Crim 308
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  25  January  2007

B e f o r e:

LORD  JUSTICE  HOOPER
MR  JUSTICE  GIBBS
and
MR  JUSTICE  RODERICK  EVANS

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R E G I N A

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RECEP  YILMAZ
DAVID  POWELL
MARTIN  ROBERT  CLAYTON
LEON  GERALD
NAJAN  DAR
MERT  GOREN
SEAN  HARRISON
JOHN  RAE
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A P P E A R A N C E S:

MR J WOOD QC and MR J LYONS
appeared on behalf of THE APPELLANT RECEP YILMAZ
MR T OWEN QC and MS Q WHITTAKER
appeared on behalf of THE APPELLANT DAVID POWELL
MR A AMER appeared on behalf of THE APPELLANT MARTIN ROBERT CLAYTON
MR J ORNSTIN appeared on behalf of THE APPELLANT LEON GERALD
MR R BANKS appeared on behalf of THE APPELLANT NAJAN DAR
MR I BOURNE QC appeared on behalf of THE APPELLANT MERT GOREN
MR A HACKING QC and MR MERCER
appeared on behalf of THE APPELLANT SEAN HARRISON
MR S GARCHA appeared on behalf of THE APPELLANT JOHN RAE
MR P WRIGHT QC and MR W EMLYN-JONES
appeared on behalf of THE CROWN
MR M EGAN QC appeared as SPECIAL COUNSEL

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JUDGMENT
Thursday  25  January  2007

LORD JUSTICE HOOPER:
1.  The appellants, with the leave of this court or in the case of Goren and Harrison following a reference by the Criminal Cases Review Commission, appeal against their convictions for offences involving the supply of Class A controlled drugs, namely heroin.  We are grateful to the CCRC for the swift way in which they prepared their report following a concession by the respondent to which we will return shortly.

2.  The appellant Yilmaz was convicted on four counts of conspiracy to supply Class A controlled drugs (counts 1-4).  The seriousness of those offences is sufficiently demonstrated by reference to the fact that he received a total sentence of thirty years' imprisonment.

3.  The appellant David Powell was convicted of conspiracy to supply heroin (count 1).  Again the seriousness of the offence is shown by the penalty of twenty years' imprisonment.

4.  The appellant Martin Clayton was convicted of counts 2, 3 and 4 and was also sentenced to a total of twenty years' imprisonment.

5.  The appellant Leon Gerald was convicted of count 4 and sentenced to ten years' imprisonment.  There have been subsequent confiscation proceedings.  It is unnecessary to go into the detail.  For example, Yilmaz was ordered to pay a sum of £847,000 by way of confiscation.

6.  The appellant Mert Goren was convicted on count 1 and sentenced to fifteen years' imprisonment.  Najan Dar was convicted on count 2 and was sentenced to ten years' imprisonment.  Sean Harrison, following a retrial, was convicted on count 1 and sentenced to fourteen years' imprisonment.  At the same trial John Rae was convicted on count 1 of the indictment and likewise sentenced to fourteen years' imprisonment.

7.  The respondent does not oppose the appeals.  In the light of our intention to order retrials, we shall give only brief reasons for allowing the appeals and quashing the convictions.  We have already made an interim order under the Contempt of Court Act.  We now make a further order that there shall be no publication of anything said in the proceedings today or earlier proceedings in the Court of Appeal until the conclusion of any retrial or further order.  There is one exception to that: the fact that these appeals have been allowed and the convictions quashed.

8.  The respondent has prepared a note for the court which outlines their approach to these appeals.  On 21 December 2006, new leading counsel was instructed on behalf of the respondent.  On 9 January 2007, the matter was considered in consultation and the respondent's position is now as follows.  The respondent takes the view that the disclosure process at trial was flawed and incomplete.  It is conceded that there was unused material which ought to have been reviewed by counsel and was not, and that if it had been so reviewed it would have been placed before the trial judge during the PII application.  Inevitably it was not.  The respondent does not take the view that this material was deliberately withheld from counsel.  It was physically at court and was available for inspection, but its potential relevance was not then properly appreciated.  In the light of the post-trial reflection on the matter by new counsel, and having received the assistance of Mr Egan QC, who has been appointed Special Counsel, the respondent takes the view that the material which was not seen by the judge falls into a category of material which may have been discloseable but for a ruling on an application for PII.  It cannot said to be insignificant; nor can it be said that it could not possibly have assisted the defence.  The respondent accepts that this is not a case falling within the principle of R v Botmeh [2001] EWCA Crim 2226.  The respondent accepts that this court cannot decide whether or not the trial judge's rulings on disclosure would have been different had all the potentially discloseable material been placed before him.  The respondent makes it clear that the outcome may have been precisely the same; but, on the other hand, it may not have been.  It is therefore conceded that the Court of Appeal could not reach a decision that the trial judge's rulings would not have been different. For this reason the respondent concedes that the convictions are unsafe.  Any different ruling on disclosure may have been capable of affecting the outcome of the trial.

9.  We agree with the respondent's approach to these appeals.  For those reasons we allow all of the appeals against conviction and we quash those convictions.

10.  The respondent now seeks a new trial for all of the appellants.  It has been submitted this morning on behalf of Yilmaz and others that the court should adjourn consideration of the application for a new trial to allow the appellants further time to prepare their submissions.  The appellants were made aware of the respondent's position last Friday and of the reasons.  Those reasons have been repeated today (Thursday) and there is nothing of any substance which has in our view been added to them.

11.  The appellants ask this court to consider making disclosure of material which this court has considered during the course of PII hearings and which might assist the appellants in resisting the application for new trials.  With the help of Mr Egan we have considered that request.  We conclude that there is no undisclosed material which should at this time be disclosed to the appellants to enable them to revisit the respondent's application.  Our attention has been drawn particularly to the third paragraph of the note prepared by the respondent for today's hearing in which the respondent expresses the view that the material has not been deliberately withheld.  It is submitted on behalf of the appellants that this court should decide whether or not the withholding was deliberate.  We shall assume for the purposes of this application that if there was material before this court which showed that there had been gross prosecutorial misconduct, then we might well not order a new trial.  There is no such material.  We shall assume that there is material to which Mr Egan has drawn our attention which, after full examination, could possibly lead to a conclusion that there had been such misconduct.  That, in our view, does not affect our decision whether to order a new trial.  At a new trial the judge will have to consider all the undisclosed material which might undermine the prosecution case or assist the defendants and, having done so, will have to decide the order to be made to ensure that the defendants have a fair trial.  In our view it would not be appropriate or a sensible use of the time of this court to do that which, in the event of a retrial, the judge will have to do anyway.  Indeed it may be, we know not, that the trial judge orders further disclosure enabling the defendants to make further submissions on the material.  If we found no such conduct it would, we presume (without having heard argument) be open to the defendants to renew any application before the trial judge, particularly if fresh material then became available.

12.  We turn to the other written arguments which have been advanced on behalf of the appellants, particularly by Mr Wood QC and Mr Owen QC, to oppose the application for a new trial.  We have already referred to paragraph 6 which deals with the issue of further material.  Likewise in paragraph 7 it is submitted that the appellants lack the information to make meaningful submissions on this issue.  We have already considered that and have decided to order no further disclosure.  Paragraph 8(1) asks:

		"Is it implicit in the Crown's reasoning .... that in relation to type 2 material, had the trial judge made different rulings concerning disclosure, this would have had such an impact on the conduct of the trial so as to make the verdicts unsafe?"

As Mr Wood accepted in the course of argument, this is not a case in which the court has concluded that there was a failure to disclose material which would have had such an impact on the conduct of the trial.  This court has decided no more than it could have had such an impact.

13.  In subparagraphs (iii), (iv) and (v) of paragraph 8 a number of questions are asked about the conduct of the prosecution in the course of this appeal.  Subparagraph (v) states a wish to consider whether the procedure proposed by the Crown constitutes an improper device to reconcile different competing interests outside the conventional appellate process.  In subparagraph (iii) it is said that time is needed in order to consider whether what has happened is a manipulation of the court's process by the Crown to concede the appeal in the manner that it does.  

14.  We have considered the application for an adjournment to enable the appellants to answer these questions.  In our view no such adjournment will assist.  We have considered the issues set out and on the material which has not been disclosed, and will not at this stage be disclosed, there is no question of any manipulation of the appeal process.  Nor is there anything to suggest that the Crown has used some improper device in the manner in which they have gone about considering the question.

15.  In subparagraph (ix) there is reference to Special Counsel and various questions are asked about Special Counsel.  Mr Egan, who has been of great assistance to us throughout the hearing of this appeal, has again assisted us this morning in the absence of the appellants and their counsel.

16.  We see no merits in those arguments.  We see no justification for granting an adjournment.

17.  We turn to section 7 of the Criminal Appeal Act 1968 which gives this court the power to order a retrial if the interests of justice so require.  In R v Graham [1997] 1 Cr App R 302, 318, Lord Bingham CJ said as to this section:

		"It is apparent that the conditions which permit the court to order a retrial are twofold: the court must allow the appeal and consider that the interests of justice require a retrial.  The first condition is either satisfied or it is not.  The second requires an exercise of judgment, and will involve consideration of the public interest and the legitimate interests of the defendant.  The public interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to or oppression of the defendant.  The legitimate interests of the defendant will often call for consideration of the time which has passed since the alleged offence, and any penalty the defendant may already have paid before the quashing of the conviction."

There can be no doubt that in respect of all of the appellants the matters alleged against them are extremely serious.  Indeed, the minimum sentence received by any one of the appellants was a sentence of ten years' imprisonment.

18.  It has been argued in the case of Dar and Gerald that further considerations must be taken into account, having regard to the fact that they played (as it appears from the sentences passed upon them) a lesser role than others.  They were the two who received sentences of ten years' imprisonment -- sentences which they began to serve some time in 2004.  We are told that Gerald is eligible to apply for parole shortly and it is submitted that his period of imprisonment may come to an end before the conclusion of the trial.  Mr Banks points out that trials of this kind are complicated and that it is not easy to find court space and time, as well as judge and counsel time, for the hearing of them.  He referred us to R v Saunders (1973) 58 Cr App R 248, and he also drew our attention to the decision in R v Grafton (Times, 6 March 1992) which casts some doubt on the value of Saunders when trials have become longer and so much more complicated than they were in 1973. 

19.  We bear in mind that any appellant who is ordered to be retried may make a bail application.  We take the view that in the case of all of these appellants the interests of justice require a new trial and that such a retrial can be conducted without unfairness to or oppression of any of the appellants.

20.  We therefore allow the appeals and we quash the convictions.  Mr Wright, we must specify which offences are quashed and on which offences the appellant is to be retried.  Is this right?  In the case of Yilmaz, counts 1-4?

MR WRIGHT:  Yes, my Lord.

LORD JUSTICE HOOPER:  Powell, count 1?

MR WRIGHT:  Yes.

LORD JUSTICE HOOPER:  Clayton, counts 2, 3 and 4?

MR WRIGHT:  Yes.

LORD JUSTICE HOOPER:  Gerald, count 4?

MR WRIGHT:  Yes.

LORD JUSTICE HOOPER:  Dar, count 2?

MR WRIGHT:  Yes, my Lord.

LORD JUSTICE HOOPER:  Harrison, count 1?

MR WRIGHT:  Yes.

LORD JUSTICE HOOPER:  Rae, count 1?

MR WRIGHT:  Yes.

LORD JUSTICE HOOPER:  We direct that a fresh indictment be preferred.  We direct that the appellants be re-arraigned on the fresh indictment within two months.  We make representation orders for the retrial.  To the extent that the defendants had leading counsel at the trial, they can have them again.  To the extent to which they did not, then any application for leading counsel should be made to the trial judge.  The defendants shall have the same representation orders for the retrial as they had for the trial.  We will turn to the issue of custody or bail in a moment.

The venue for the retrial should be determined by the Presiding Judge of the South-Eastern Circuit.  Would it assist if we were to say that one would hope that it could be conducted more centrally than at Woolwich Crown Court?

MR WRIGHT:  My Lord, yes.  It is a sentiment with which all parties concur.

LORD JUSTICE HOOPER:  We invite the Presiding Judge to consider whether or not the trial can be conducted in Central London, mindful of the fact that trials (as this trial was) at Woolwich involve a considerable extra expenditure of time and money, as well as inconvenience.  We are mindful of the cost of travel and the time taken to travel, etc, for everyone.

MR WRIGHT:  My Lord, may I just raise one matter, please, in respect of Rae?  He faced trial upon an indictment that reflected count 1 in the indictment, but he was tried on a second indictment, and therefore although your Lordship has directed that he be retried on count 1, effectively he is to be retried upon the indictment which is quashed, namely the count of conspiracy that is in precisely the same terms as count 1 of the joint indictment.

LORD JUSTICE HOOPER:  Yes, that is right.

MR WRIGHT:  And we will in due course seek leave to join Rae to the principal indictment, so that there is a single trial in respect of each of the defendants. 

LORD JUSTICE HOOPER:  That is a matter for the trial judge rather than for us?

MR WRIGHT:  It is, my Lord.  Your Lordship can direct that there be a fresh indictment in respect of the retrial, but, looking at section 8, I do not think your Lordships have the power within section 8 to order that there be a joint trial in respect of two fresh indictments that are signed by leave of this court.

LORD JUSTICE HOOPER:  Then all that we can say is that we would expect there to be one retrial, but that is a matter for the trial judge.

MR WRIGHT:  Yes.

LORD JUSTICE HOOPER:  I do not know how many of the defendants know that there was some evidence concerning the jury in the Yilmaz trial?  Some of you will know that, some of you will not.  We direct that the trial judge be given that information to consider the orders that he or she may wish to make in the light of it.  We say no more about that material.  Anyone who does not have the material no doubt can be provided with it by those who have it, or by the respondent.

MR WRIGHT:  My Lord, may I say that there are two aspects to it.  They are both within the public domain in that matters raised by Yilmaz in his additional grounds of appeal and there was an inquiry by the Cambridgeshire Constabulary in respect of it and a report as a consequence, and there were also matters that were dealt with during the trial in respect of the concerns expressed in respect of a lady member of the jury who brought matters to the attention of the court and they were ventilated in court.  Those are matters which may, we take the view, fall therefore to be determined by the trial judge, having regard to section 44 of the Criminal Justice Act.

LORD JUSTICE HOOPER:  We do no more than to invite the trial judge to consider that material.

MR OWEN:  My Lord, can I indicate that the material that was supplied to those representing Yilmaz by this court were all redacted  statements, including the names and addresses of the jury.  I wonder if your Lordship should order that any further distribution --

LORD JUSTICE HOOPER:  We are grateful to you for raising that with us.  Those who have not yet received it will receive a redacted copy insofar as names and addresses are concerned.

There are two more matters.  We invite the Presiding Judge of the South-Eastern Circuit to consider whether to appoint a High Court Judge to deal with this case.  In our view there are very good reasons in this case, of which we are now aware, for appointing a High Court Judge to try the case.  I do not think anyone would dissent from that?

The other point is Special Counsel.  The trial judge, His Honour Judge Dunn QC, did not appoint a Special Counsel.  We have said on more than one occasion that we have been immeasurably helped by the appointment of Mr Egan as Special Counsel.  It would have been extremely difficult and time-consuming for us to conduct this appeal without his assistance.  Indeed, we know that Mr Wright has been assisted by Special Counsel drawing strands together and presenting arguments.  We would invite the trial judge to consider appointing a Special Counsel.  We would go further and invite him or her to consider appointing Mr Egan who already has an encyclopedic knowledge of the case.

MR WRIGHT:   My Lord, may I just deal with one matter concerning the mechanics of complying with the direction and as to preferring the fresh indictment and the defendants being arraigned on it?  Having regard to the directions that your Lordship has given in respect of this matter coming before the Presiding Judge for consideration of those various other ancillary aspects to the case, could I ask that consideration be given to directing at this stage that the matter be listed at the Central Criminal Court before a judge when the indictment may then be properly put before the court and the defendants may be arraigned upon it comfortably within that two-month period?

LORD JUSTICE HOOPER:  Can that be done by video-link?

MR WRIGHT:  I see no reason why it could not be done by video-link.

MR LYONS:  My Lord, can I indicate that Mr Yilmaz is being held in Full Sutton currently and there is no provision there for a video-link.

LORD JUSTICE HOOPER:  I do not think we can make a direction, but we  can invite the Presiding Judge to make sure that this case is listed well within the two-month period, preferably at the Central Criminal Court if that is possible.

MR LYONS:  Yes, we would certainly prefer it within 28 days to avoid the prospect of there being any additional delay or difficulty that arises in this case.

LORD JUSTICE HOOPER:  Shall we direct that a transcript of everything that we have said since starting our judgment, including this helpful debate, be transcribed and made available to you all, and in particular to you for presentation to the Presiding Judge?

MR LYONS:  Thank you.  My Lord, may I rise the question of a representation order for this appeal?  Under regulation 19(6) the court can determine the date that the representation order should start and there was a hiatus between the refusal of leave to appeal and the grant of a limited representation order in summer of last year when those acting for Mr Yilmaz did so pro bono and I would invite your Lordship to extend the representation order to cover that period.   
LORD JUSTICE HOOPER:  What period are you wanting it to go back to?   
MR LYONS:  From the refusal of leave to appeal.  
 
LORD JUSTICE HOOPER:  I think in the special circumstances of this case the amount of work that you and Mr Wood and your solicitors had to do, we will do that.  
 
MR BANKS:  There are two matters I would raise with your Lordships.  First, in relation to the next few weeks, could I ask that we know where we can send the relevant papers for the applications that we have?  We could send them to the Central Criminal Court, but we do not know which court it is.  While the Presiding Judge is considering it, can we have an address?  

LORD JUSTICE HOOPER:  We direct that any applications for bail should be dealt with at the Central Criminal Court pending any decision by the Presiding Judge, and any other applications which are needed.  
 
MR BANKS:  My Lord, I am very grateful.  
 
MR JUSTICE GIBBS:  For your assistance, the regional listing co‑ordinator for the South‑Easturn Circuit is situated at the Old Bailey, so if it were to be moved you could easily find out where to.   
MR BANKS:  Thank you very much indeed.  This was a Central Criminal Court case originally.  That seems the logical place for it to go.  I am grateful for your assistance.  Could I ask that you order that the prosecution serve the prosecution case on any party who at the moment may not have a full set of papers?  That means that we could know that we have a full set and be ready for any applications and any hearings that we have because it is now some time since the last hearing at Woolwich.  
 
LORD JUSTICE HOOPER:  We are not going to make an order.  We are sure that between you and Mr Wright you can work out what you have not got and what you need.  
 
MR BANKS:  Those are the two matters.  When the rest of these matters are concluded, could I ask for bail?  
 
LORD JUSTICE HOOPER:  You can ask for it.  Have you given the appropriate notice?  
 
MR BANKS:  No, I have not and I can do, but, as you know, this is at very short notice.  
 
LORD JUSTICE HOOPER:  The normal procedure followed in this court in this kind of case is for applications for bail to be made by anyone who wishes to make such applications to a Crown Court Judge who has all the material, the prosecution is ready with conditions and there are sureties or whatever it might be, so that it can all be dealt with.  It is not normally appropriately done in this court.  That can be done as quickly as you want ‑‑ provided you give notice.  
 
MR BANKS:  I will give notice, but of course bail does not arise until we know that the conviction has been quashed.  
 
LORD JUSTICE HOOPER:  It has been quashed.  
 
MR BANKS:  It has been quashed.  
 
LORD JUSTICE HOOPER:  Yes, so you can make an application as soon as you like, on giving proper notice, to the Central Criminal Court.  
 
MR BANKS:  Very well.  
 
LORD JUSTICE HOOPER:  That applies to everyone, but it would be helpful, if anyone is going to make an application for bail, that the applications are made at the same time so that one judge can deal with any applications.  Mr Banks, will you make sure that if anyone is making an application, you all make it at the same time?  You look after that.  
 
MR BANKS:  It can be a bit difficult because many people are in trials that are currently being conducted.  
 
LORD JUSTICE HOOPER:  Do your best.  Mr Owen?  
 
MR OWEN:  My Lord, can I raise the terms of the Contempt Order?  On reflection it seems to me that it would be safer and more appropriate for you to limit it to the quashing of the convictions and the ordering of a retrial.  If the fact of a retrial is not known, there is a risk of further publicity and adverse publicity through the press not being aware that there is to be retrial.  
 
LORD JUSTICE HOOPER:  That is a convincing reason.  
 
MR OWEN:  In all the circumstances it is probably on reflection best to do it that way.  
 
LORD JUSTICE HOOPER:  So the order is that what may be published is the fact that the appeals have been allowed, the convictions quashed and retrials ordered in respect of all of the appellants?  
 
MR OWEN:  Yes.  

LORD JUSTICE HOOPER:  Thank you, Mr Owen.  
 
MR WRIGHT:  We would agree, with respect, for that very reason.  
 
LORD JUSTICE HOOPER:  Thank you.  Anything further?  Yes, Mr Bourne?   
MR BOURNE:  Just one further matter, please.  In relation to Goren and Harrison, your Lordships will of course know that we were alerted ‑‑ that is Mr Hacking and I ‑‑ to the proceedings back in November, but because the cases were still with the Criminal Cases Review Commission we have both been on standby for the last three months and we wondered whether in the circumstances your Lordships would consider making a defendant's costs order in their cases only for the period between the notification in November of these proceedings and the grant of the representation order yesterday?  I understand that that is a power that you have to make at your discretion.  
 
LORD JUSTICE HOOPER:  Yes, there will be a defendant's costs order for Harrison and Goren.  Mr Hacking?  
 
MR HACKING:  We assume that Mr Wright is going to serve us with a complete set of papers on which the Crown rely for the retrial?  I do not know where my papers are.  What I do know is that they were all completely badly paginated.  Mr Wright, who has worked very hard since 21 December, will no doubt give instructions to his team that as soon as the ambit of the evidence on which they rely is paginated with the respective files, we will all get it.  It is a lot of work, but we cannot have Mr Banks' idea of going round various cupboards in our solicitors' archives and producing something.  
 
LORD JUSTICE HOOPER:  I am sure you can all discuss it outside and reach some convenient solution to the problem which does not involve the destruction of rain forests.  
 
MR WRIGHT:  My Lord, may I raise just one matter which is ancillary to all of these proceedings?  Beysongu was a defendant on the original indictment.  He did not face trial.  He was absent.  He was not tried in his absence.  We of course will have to consider ‑‑ I say now so that all can reflect upon it ‑‑ we will have to consider whether it is appropriate on the retrial to seek leave to join Beysongu to that indictment and to try him in his absence.  Those are matters that I only raise now so that no one is taken by surprise by it in due course.  
 
LORD JUSTICE HOOPER:  Right.  Thank you all very much.  Powell is privately represented.  In his case is there a legal representation order?  
 
MR OWEN:  There is not a representation order for the appeal in his case, but there needs to be for the retrial.  The position is that there is money under restraint, which is available to fund representation and in those circumstances a legal aid order has not been granted for him in these proceedings.  
 
LORD JUSTICE HOOPER:  Should we make a defendant's costs order?  If you think that that is appropriate to do, having regard to the money under restraint, would you make an application in writing?  
 
MR OWEN:  Yes, we will.  
 
LORD JUSTICE HOOPER:  For the attention of Miss Rorke.  

MR OWEN:  Thank you.

LORD JUSTICE HOOPER:  Thank you.