Criminal

Non-disclosure of evidence relevant to defence - unfairness not cured by public interest immunity hearing at trial - Court of Appeal entitled not to give full reasons for allowing an appeal where overriding public interestR v Doubtfire: CA (May LJ, Sullivan and Hallett JJ): 19 December 2000The defendant and another were charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs.At trial, the defendant claimed lack of knowledge and sought to challenge the prosecution case that it knew of relevant events merely as a result of information provided by the public, claiming that there must have been a participating informant during police investigations and before the case was taken over by Customs and Excise.The prosecution applied to the judge ex parte for a ruling as to the immunity of certain information.Having heard the prosecution, the judge gave the defence the opportunity to explain its cases in chambers and then ruled as to immunity.

The defendant was convicted and his appeal dismissed: R v van Tattenhove; R v Doubtfire [1996] 1 CrAppR 408.The Criminal Cases Review Commission referred the case back to the Court of Appeal, attaching a confidential annex which was not disclosed to the defendant or his representatives but was considered by the Court of Appeal during a public interest immunity hearing.Ben Emmerson QC (assigned by Registrar of Criminal Appeals) for the defendant.

David Barnard (instructed by the Solicitor, Customs and Excise) for the prosecution.Held, allowing the appeal, that, although there was a strong public interest in open justice, the court had on occasion to weigh in the balance other competing public interests; that, exceptionally, the balance weighed against the court's giving its full reasons for allowing an appeal; and that it was sufficient to state that the trial had been materially unfair because there had been a failure in respect of disclosure in the context of submissions made at the ex parte public interest immunity application during trial, and the material in the confidential annex, which the court had considered in private and had not been available to the trial judge or at the earlier appeal hearing, confirmed that there had been unfairness.