Clarke & Anor v REGINA

Clarke & Anor v. REGINA

Smart Summary (Beta)

Factual and Procedural Background

On 17 June 1988, at the Central Criminal Court before Judge Denison QC, two applicants were convicted of arson relating to fires at multiple retail stores occurring on 12 July 1987. The estimated damage was substantial, and the applicants were alleged to have planted incendiary devices as members of an activist group. Sentences of imprisonment were imposed on both applicants. Around 2011, public allegations emerged concerning undercover police operations targeting political activists, including the involvement of an undercover officer named Robert Lambert. In December 2014, more than 26 years after the convictions, the applicants sought leave to appeal on grounds of non-disclosure of Lambert's role, arguing they would have advanced a defence of agent provocateur had this been known. A similar issue arose for one applicant regarding another undercover officer related to a 1995 conviction.

In March 2015, an Inquiry into undercover policing was established by the Home Secretary under the Inquiries Act 2005, chaired by Sir Christopher Pitchford. The application for leave to appeal has been affected by the Inquiry and ongoing police investigations. The applications were referred to the Full Court by a Single Judge, with two preliminary hearings held in 2016. Directions were sought to facilitate the progress of the applications, which were adjourned for a further preliminary hearing in 2017. The timing of the substantive hearing remains uncertain, influenced by the Inquiry's progress and police investigations, with hearings not expected before 2018 and possible further delay.

Legal Issues Presented

Whether leave to appeal should be granted based on fresh evidence relating to undisclosed undercover police involvement.
The scope and procedure for disclosure of documents and evidence related to undercover policing operations post-conviction.
The appropriate constitution of the court to determine complex disclosure issues arising from fresh evidence applications.
The exercise of powers under section 23 of the Criminal Appeal Act 1968 regarding production of documents and examination of witnesses by a single judge.
The application and limits of Public Interest Immunity (PII) claims in post-conviction disclosure contexts.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Nunn) v Chief Constable of Suffolk Constabulary & another [2014] UKSC 37; [2015] AC 225	Common law duty of disclosure continues post-trial alongside statutory duties; fairness principle governs disclosure of new material casting doubt on conviction.	Established framework for ongoing disclosure obligations and the prosecutor's duty to consider disclosure of fresh material relevant to safety of conviction.
R v Ward [1993] 1 WLR 619; (1993) 96 Cr App R 1	Court's authority to decide on Public Interest Immunity (PII) claims over non-disclosure of material.	Confirmed that the court, not the Crown, determines whether PII justifies withholding material.
R v Davis Rowe & Johnson (1993) 97 Cr App R 110	Procedure for PII claims including hearing applications possibly without defence presence; importance of continuity in judicial consideration of PII issues.	Guided the court on managing PII applications and the desirability of the same judge or court constitution handling related applications and hearings.
R v H & C [2004] 2 AC 134; [2004] UKHL 3; [2004] 2 Cr App R 10	Compatibility of PII procedures with Article 6 ECHR; minimum necessary derogation from full disclosure; use of Special Counsel if needed.	Outlined principles for balancing public interest and defendant’s right to a fair trial in PII claims.
R v McDonald [2004] EWCA Crim 2614	Procedure for appellate review of trial court PII decisions; importance of same court constitution reviewing PII material; appointment of Special Counsel.	Provided procedural guidance for appeals involving PII issues, emphasizing review by the same court hearing the appeal.
R v Austin [2013] EWCA Crim 1028	Application of PII principles and appellate review procedures.	Referenced as an example of the application of established PII procedures in appellate context.
R v Yassin [2016] QB 146; [2015] EWCA Crim 1277	Inherent or implicit powers of the Court of Appeal to avoid real injustice in exceptional circumstances.	Considered but not applied in the present case as circumstances did not warrant use of inherent powers.
R v Erskine [2010] 1 WLR 183; [2009] 2 Cr App R 29	Use of single judge to hear expert evidence on commission before appeal hearing.	Supported the procedural approach of hearing complex evidence by a single judge to facilitate appeals efficiently.
R v Saunders (1973) 58 Cr App R 248	Evidence taken on commission by a single judge as part of the appeal process.	Illustrated benefits of single judge evidence-taking on commission in appeals.

Court's Reasoning and Analysis

The court analysed the complex procedural context of post-conviction appeals based on fresh evidence involving undercover policing operations, emphasizing the unprecedented nature of disclosure issues given the historic events and volume of material. It recognised the ongoing duty of disclosure under common law principles as affirmed in R (Nunn), alongside statutory frameworks and the role of Public Interest Immunity (PII) claims. The court considered the practicalities and judicial resource implications of determining disclosure issues, concluding that a single judge could exercise certain powers under section 23 of the Criminal Appeal Act 1968 to order production of documents and examination of witnesses, with safeguards allowing the applicants to challenge adverse decisions. The court distinguished the present case from those involving appellate review of trial judge PII decisions, allowing more flexible procedures. It also acknowledged established precedents supporting hearing expert evidence on commission by a single judge to streamline complex appeals. The court thus set out a procedural framework balancing fairness, public interest, and judicial efficiency for managing these applications.

Holding and Implications

The court did not make a final determination on the substantive applications for leave to appeal at this stage but provided guidance on procedural management. It held that the powers under section 23 of the Criminal Appeal Act 1968 may be exercised by a single judge to handle disclosure and evidence issues arising from fresh evidence in post-conviction appeals. This approach is consistent with safeguarding the interests of justice and efficient use of judicial resources. The applicants retain the right to challenge any refusal of disclosure by the single judge before the Full Court. The decision does not set new precedent on the substantive merits of the appeals but clarifies procedural mechanisms to manage complex disclosure issues in historic cases involving undercover policing.

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