More, R. v

Factual and Procedural Background

This opinion concerns an application for leave to appeal, and if granted, the substantive appeal by the Appellant against convictions for murder and conspiracy to cause grievous bodily harm relating to events on 19 June 2003. The Appellant was convicted at the Crown Court at Chester in December 2021 and sentenced to life imprisonment with a minimum term of 24 years for murder and 14 years concurrently for conspiracy.

The convictions relate to the attack and death of the victim at a farm in Cheshire, where a group of men tortured the victim and seriously injured another individual. The prosecution case was that the Appellant and co-accused acted under the direction of a co-accused who planned the attack in revenge over a drug deal gone wrong. The Appellant's defence was that he was an undercover documentary film maker investigating criminal activity and police corruption, believing that the co-accused directing the attack was a rogue police informant, and that he left the scene before the violence occurred.

The trial involved complex issues around the disclosure of sensitive material, including stolen police intelligence documents ("NCIS material") and material from a police operation ("Operation Picking"). The prosecution disclosed an agreed fact late in the trial (agreed fact 145) concerning the shooting of one co-accused and his reported status as a suspected informant within criminal circles. This late disclosure raised concerns about the adequacy and integrity of the disclosure process.

The Appellant's application for leave to appeal raised grounds including the fairness of the judge's summing up, the late disclosure of material relevant to his defence, and the effect of such disclosure on the safety of the convictions. The Court conducted multiple hearings, including ex parte hearings on notice to the defence, directed further disclosure of materials (including unredacted documents), and considered submissions from both parties before granting leave to appeal.

Legal Issues Presented

1. Whether the summing up by the trial judge was so unbalanced and unfair that the conviction was unsafe.
2. Whether there was an absence of integrity in the prosecution's disclosure process, warranting appointment of special counsel and/or further directions.
3. Whether the late disclosure of agreed fact 145 and the 2023 material affected the fairness of the trial and rendered the conviction unsafe.

Arguments of the Parties

Appellant's Arguments

• The summing up was biased, with judicial comments erroneously presented as prosecution arguments and unfairly supporting the prosecution case.
• The late disclosure of material, including agreed fact 145, raised legitimate concerns about the integrity of the disclosure process and the fairness of the trial.
• The late disclosure could not undo the prejudice caused by prosecution evidence and cross-examination undermining the Appellant's belief that the co-accused was an informant.
• A thorough review of the disclosure process and materials was necessary, potentially requiring special counsel.

Prosecution's Arguments

• The summing up was fair and balanced, accurately summarising the prosecution and defence cases.
• Although there was late disclosure, the overall disclosure process was properly conducted and no further material remained undisclosed.
• The defence had extensive opportunity to use agreed fact 145 at trial, and the conviction was safe.
• The issue at trial was the Appellant's belief about the co-accused's status as an informant, not the co-accused's actual status, which the prosecution rightly refused to confirm or deny.
• The prosecution opposed the appointment of special counsel, asserting no further disclosure was required.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed review of the trial record, evidence, disclosure history, and submissions. It emphasised that the central issue was the Appellant's belief about the co-accused's status as a police informant, not the co-accused's actual status, consistent with established policy of neither confirming nor denying informant status to protect public interest.

Regarding the summing up, the Court found that the judge fairly and accurately presented both prosecution and defence cases, including the Appellant's documentary film maker defence, and reminded the jury of their role as fact-finders. The Court rejected complaints that judicial comments improperly supported the prosecution or misrepresented defence arguments.

On disclosure, the Court acknowledged the serious concerns raised by the late disclosure of agreed fact 145 and related materials. It noted the complexity and length of the investigation and the challenges posed by the Appellant's long absence from the jurisdiction. The Court directed extensive reviews of the Operation Picking material, resulting in the disclosure of additional material (the 2023 material) and unredacted documents. Despite these concerns, the Court found no evidence of deliberate misleading by the prosecution and concluded that the disclosure process, while imperfect, did not undermine the fairness of the trial.

The Court analysed the effect of the late disclosure on trial fairness, concluding that although the late disclosure was regrettable, it did not render the convictions unsafe. The prosecution was entitled to challenge the Appellant's claimed belief that the co-accused was an informant, and the jury was properly instructed to consider the evidence, including the late disclosed agreed fact. The Court found no basis to order further disclosure or appoint special counsel.

Holding and Implications

The Court GRANTED LEAVE TO APPEAL but ultimately DISMISSED THE APPEAL AGAINST CONVICTION.

The Court held that the summing up was fair and balanced, the disclosure process—though involving late disclosure—did not render the trial unfair or the convictions unsafe, and no further disclosure or special counsel appointment was warranted. The late disclosure of agreed fact 145 and the 2023 material did not materially affect the safety of the convictions.

The direct effect is that the Appellant's convictions for murder and conspiracy to cause grievous bodily harm stand. No new precedent was established beyond the application of existing disclosure principles and standards for assessing summing up fairness and disclosure adequacy.