Late Disclosure, “Alternative Perpetrator” Bad Character, and the High Threshold for Unfair-Trial/Stays in Complex Conspiracy Trials

1. Introduction

In Nuttall & Anor, R. v [2026] EWCA Crim 1013, the Court of Appeal (Criminal Division) (Edis LJ, Bryan J and HHJ Rosa Dean) refused applications for leave to appeal arising out of convictions in the Central Criminal Court for conspiracies connected with highly realistic bomb hoaxes targeting two barristers acting together for the National Crime Agency in contested civil recovery proceedings, alongside associated financial and device-access offences.

The first applicant sought leave to appeal conviction and sentence; the second applicant sought leave to appeal sentence only. The appeal on conviction advanced complaints about (i) disclosure and investigative scope, (ii) the exclusion of non-defendant bad character as “alternative perpetrator” material, (iii) alleged imbalance in the summing up, (iv) alleged evidential uncertainty on a conspiracy to transfer criminal property count, and (v) alleged pressure on the jury due to interruptions and scheduling issues during deliberations.

2. Summary of the Judgment

  • Leave to appeal conviction refused on all grounds: the court found no arguable unfairness from disclosure timing or investigative scope; no error in excluding non-defendant bad character under Criminal Justice Act 2003, s.100; no merit in criticisms of the summing up; ample basis for the “criminal property” conspiracy conviction; and no realistic basis to infer jury pressure.
  • Leave to appeal sentence refused for both applicants: the sentencing judge was entitled to treat the offending as an exceptionally serious attack on the administration of justice, to sentence close to the statutory maxima for the hoax-bomb conspiracies, and to impose consecutive terms for the money-transfer conspiracy and for the Regulation of Investigatory Powers Act 2000, s.53 offences.

3. Analysis

3.1 Precedents Cited

(a) “Horseferry Justices” (abuse of process, limb 1)

The applicant framed the disclosure/investigation complaints as requiring a stay for “Horseferry Justices limb 1” abuse of process—i.e. the category where a fair trial is said to be impossible (distinct from the “integrity of the justice system” category). The Court of Appeal rejected the submission: once the material was ultimately disclosed and the defence was able to deploy it before the jury, the asserted “forensic disadvantage” did not approach the level of irredeemable unfairness needed to justify a stay or to render the verdicts unsafe.

(b) “Lucas direction” (lies and their evidential use)

The judgment addresses criticism of where the trial judge placed a Lucas direction in the summing up in relation to lies by a co-defendant. The Court of Appeal treated the direction as proper and necessary given the evidence of dishonesty and saw no unfair “judicial scorn”: the direction served its orthodox function—guarding against the jury treating lies as automatically probative of guilt and reminding them that lies can have innocent explanations.

3.2 Legal Reasoning

(a) Disclosure timing and “reasonable lines of enquiry”

The court’s reasoning is pragmatic and trial-focused. It accepted that in long, complex trials it is not uncommon for evidential areas to be “re-visited” as additional material emerges. The key points were:

  • Ultimately-disclosed material, ultimately deployed: the complained-of documents and communications were, in the end, before the jury to the extent the parties wished to use them.
  • Timing alone rarely equals unfairness: a loss of “cross-examination impact” may be a genuine forensic frustration, but it does not, without more, undermine safety where the jury still receives the material and can evaluate it.
  • Defined investigative scope can be reasonable: the investigation’s focus on matters linking both targeted barristers acting together was treated as rational given the evidence about the nature of the targeting.
  • Section 8 CPIA 1996 context: the court noted the disclosure issues were managed through the established statutory framework (including a s.8 application substantially resolved by agreement) and an abuse application was refused.

(b) Non-defendant bad character: s.100 as a control on “alternative perpetrator” narratives

The attempted introduction of adverse material about a third party (a worldwide freezing order and related allegations) was rejected at trial and upheld on appeal. The Court of Appeal endorsed two s.100 conclusions:

  1. Not “important explanatory evidence” (s.100(1)(a) and (2)): the jury could understand the case without it.
  2. No “substantial probative value” (s.100(1)(b)) absent an evidential link to motive/hostility towards the victims: bad character material about a possible “alternative perpetrator” does not become probative merely because it paints that person as disreputable; it must connect to an issue of real significance (here, who inspired the conspiracy) through some concrete route—such as demonstrated hostility towards the victims or a credible advantage from targeting them.

The court also stressed appellate restraint: such admissibility evaluations are highly fact-sensitive and the trial judge is “steeped in the detail” and best placed to assess whether evidence would assist or distract.

(c) Summing up: emphasis on defence points and the management of weak co-defendant evidence

The court rejected the “unbalanced summing up” argument. Two aspects of its reasoning are notable:

  • It is not unfair to repeat or highlight a defence forensic position: criticism that the judge repeatedly referred to a particular defence cross-examination theme was met with the observation that emphasis on counsel’s own case theory is not normally a ground of complaint if accurately and neutrally presented.
  • Accurate summary is not “pouring scorn”: where a co-defendant’s evidence is inherently unpersuasive, a fair summary cannot sanitise it. The issue is judicial comment or unfairness, not whether the evidence itself sounds implausible when recounted.

(d) Conspiracy to transfer criminal property: sufficiency and clarity

The applicant argued the jury were left to speculate as to which transactions were criminal and whether payments were for services or “hush money”. The Court of Appeal’s answer was direct:

  • There was clear evidence of money paid through the intermediary as overt acts in furtherance of the conspiracy.
  • The money became criminal property at the moment it was received by the recipient as a benefit from criminal conduct, regardless of whether characterised as payment for earlier offending or as payment to secure silence (itself criminal).

(e) Jury deliberations: interruptions, employer pressure, and speculation

The court treated the deliberation complaints as speculative. Interruptions, employer letters, and impending diary conflicts are “absolutely routine” in long overrunning trials. Absent any note from the jury indicating coercive pressure or inability to continue, the court would not infer an improper deadline effect, even with a majority verdict.

3.3 Impact

  • Disclosure appeals will focus on outcome fairness, not forensic elegance: the judgment reinforces that late disclosure, even if suboptimal, is unlikely to found an unsafe verdict where the material ultimately reaches the jury and can be used.
  • s.100 “alternative perpetrator” discipline: parties seeking to point to a third party must show more than general wrongdoing; they must articulate an evidential bridge to the charged events (motive, hostility, opportunity, connection). Otherwise, the material is vulnerable to exclusion as distraction.
  • Sentencing for hoax explosive conspiracies: the case underlines that where the purpose is to intimidate legal actors and disrupt ongoing proceedings, courts may properly treat the offending as approaching the statutory maximum in gravity, even if the indictment does not include a perverting-the-course-of-justice count.
  • RIPA s.53 consecutive punishment: the court reaffirmed the appropriateness of consecutive sentences where refusal to provide access details obstructs investigation in serious offending.

4. Complex Concepts Simplified

Abuse of process (“Horseferry Justices limb 1”)
A stay for abuse of process is exceptional. “Limb 1” refers to cases where the court concludes a fair trial cannot be held. Even serious procedural failings may not qualify if the problem can be cured (for example, by disclosure being given and the defence being able to use it before the jury).
Non-defendant bad character (CJA 2003, s.100)
Evidence that someone else is a “bad person” is not admissible just to suggest they might have done it. The evidence must either be necessary to understand other evidence, or have substantial probative value on an important issue—typically requiring a concrete link to the alleged offending.
Lucas direction
A warning about how to treat lies: a lie does not automatically prove guilt, because people may lie for many reasons (panic, shame, protecting others). The jury must decide what, if anything, the lie really shows.
“Criminal property” and payment for crime
Money can become “criminal property” when it represents a benefit from criminal conduct. If a person receives money as payment for committing crime (or to maintain silence about it), the receipt can mark the point at which the property is treated as criminal for the purposes of transfer offences.

5. Conclusion

Nuttall & Anor, R. v [2026] EWCA Crim 1013 is a robust appellate affirmation of trial-management realism: (i) late disclosure and bounded investigative choices will not readily translate into unsafe verdicts where the jury ultimately hears the relevant material; (ii) s.100 strictly controls attempts to float an “alternative perpetrator” through general discreditable conduct absent a genuine evidential connection; (iii) routine deliberation disruptions do not, without concrete indications, support allegations of pressured verdicts; and (iv) sentencing can properly reflect the exceptional seriousness of hoax explosive conspiracies aimed at intimidating legal participants and impeding justice, with consecutive terms for related money-transfer and device-access offences.