Case No: 20031134 B3
Neutral Citation Number: [2004] EWCA Crim 1607
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at Newcastle-upon-Tyne
His Honour Judge Lancaster
T20020368
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 23rd June 2004
Before :

THE RIGHT HONOURABLE LORD JUSTICE HOOPER

THE HONOURABLE MR JUSTICE LEVESON

HIS HONOUR JUDGE METTYEAR sitting as a judge of the Court of Appeal Criminal Division

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Between :

	R	Appellant	
	- and -		
	Stephen Christopher Makin	Respondent	

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Mr K Metzger for the Appellant
Mr S Jackson QC  for the Respondent

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Judgment
Lord Justice Hooper:
1.	Late afternoon on 20 November 2002 in the Crown Court at Newcastle-upon-Tyne before His Honour Judge Lancaster the appellant changed his plea to guilty, albeit on a limited basis, to two counts of being knowingly concerned in the fraudulent evasion of duty charged on cigarettes being counts 1 and 3 of the indictment.  He pleaded not guilty to count 2 and a verdict of not guilty was entered.  There were 3 co-defendants; Robert Graham, indicted on count 1 only to which he also pleaded guilty.  The two other defendants were John Foster indicted on counts 1 and 3 and Jerzy Snioszek indicted on count 3.  Following the pleas by the appellant and Graham, a jury was empanelled to try the co-defendants. On the following day, counsel for HM Customs and Excise, Mr Simon Jackson, without giving any reasons or explanation in open court, offered no evidence against Foster and Snioszek and verdicts of not guilty were recorded.  The appellant, who was on bail waiting sentence for the two offences to which he pleaded guilty, was not present and the hearing was not adjourned for him to be present.  
2.	The appellant naturally felt aggrieved.  He had pleaded guilty.  His co-defendants, Foster and Snioszek, had pleaded not guilty.  The day after the he had pleaded guilty, the case was dropped against his co-defendants without any reason being given in public.  Not unnaturally the appellant wanted to know why.  Was he not told something which he ought to have been told before he pleaded guilty? Why had the case also not been dropped against him?  Given the recent well-publicised history of problems relating to disclosure by the Customs and Excise, had he been misled into pleading guilty?  
3.	The appellant made an application to vacate his plea of guilty.  That application was heard and rejected  on 23 January 2003. 
4.	We turn to he facts. In 2001 a person fitting the description of the appellant approached the directors of a company called Sign Co. UK Ltd with a view to renting a unit adjacent to their commercial premises in Seaham, County Durham.  The man, known to them as Steve, agreed to rent the unit for £600 per month stating that he was in the second hand furniture business.
5.	On 6 September 2001 a trailer arrived at Harwich Port and was collected by a tractor belonging to John Foster Freight Services.  Although a firm of builder's merchants were the nominated recipients of the load, armchairs, they had no knowledge of the consignment.  The delivery address for the trailer was the unit in Station Road Seaham, rented, so the prosecution said, by the appellant.  There was evidence that two of the armchairs were hollow and, on the prosecution’s case, had been used to conceal the importation of cigarettes by the appellant.  This formed part of count 1.
6.	On 22 September 2001 a trailer arrived a Harwich containing furniture consigned to G&A Furniture.  When examined by Customs officers it was found to contain two million cigarettes concealed in the three-piece suites.  A George Tweddell arrived to collect the trailer on the orders of John Foster, the co-defendant and a haulier.  Tweddell produced a fax from G&A Furniture given to him by John Foster requesting delivery of sofas “to the same spot as last time”.  Tweddell was given a note by customs asking Foster to contact them.  This note was subsequently found in the pocket of a coat at the appellant’s home.  Scientific analysis showed that fabric samples from the armchairs delivered on 6 September and on these suites were identical.  This also formed part of count 1.
7.	Count 2, no longer relevant, related to the events of 13 September when Customs officers searched the appellant’s yard and found large amounts of vodka and cigarettes on which duty had, according to the prosecution, not been paid.  
8.	We turn to count 3.  On 23 October 2001 the appellant in a white van met up on the A1 with Snioszek, a Polish national, driving an articulated lorry.  The van and the lorry were then driven to a warehouse in Leadgate near Consett rented by the co-defendant and haulier, Foster.  Some three hours later, Customs and Excise entered the warehouse.  The appellant, Foster and Snioszek were in the process of getting access into the roof of the trailer in which officers found concealed 392,800 cigarettes.  The revenue due and evaded on the consignment was some £66,000. 
9.	The total amount of duty evaded on counts 1 and 3 was, according to the prosecution, £400,000.
10.	Following his arrest, the appellant made no comment in interview.  
11.	On 17 October 2002, solicitors for the appellant served, on his behalf, a defence statement.  Paragraph 1 stated that the nature of his defence  was that he had been the subject of entrapment.  It also claimed that there had been a participating informant involved in the offences.  
12.	On 11 November 2002, there was a pre-trial hearing concerned with, amongst other things, the issue of disclosure.  During the course of the hearing Mr  Jackson invited counsel for the appellant to make clear with more precision what the appellant’s defence statement meant, so that the prosecution could consider the question of secondary disclosure.  Counsel for the appellant, Mr Daneshyar, said that the appellant’s defence was “entrapment”, “in other words it was an agent provocateur who had gone beyond merely investigating and in fact had actively undertaken control deliveries certainly in relation to the delivery of 23 October...” (page 5 of transcript of 11 November, volume 1, tab 5).  Counsel said that the appellant was unable to identify who it was although the appellant knew him and “there are suspicions”.  The person concerned was “under the pay of the Customs and Excise”.  Reference was made by counsel to Foster having being approached by two officers for Customs and Excise on 21 October and upon him declining to make a statement “two days later a lorry load of cigarettes arrived”.  
13.	Following the 11 November hearing a further defence statement was sent which arrived with the Customs and Excise on the 15 November.  Paragraph 1 stated that it superseded the previous statement submitted on behalf of the defendant on 17 October 2002.  The statement continues:
“2.  It is submitted that the Defendant is a victim of a setup by a participating informant who had gone beyond the role of an investigating officer and had induced the defendant to participate in the commission of the offence which he otherwise would not have committed.  In the circumstances it is the defendant’s case that he was at all times acting under the influence of an agent provocateur.” (page 144 of volume 1)
In paragraph 3 the defence statement enlarged upon the background to the seizure on 23 October 2002.  It referred to Foster’s alleged refusal to cooperate and continued:
“It is submitted that the delivery was a controlled delivery and that the defendant was set up by a participating informant that had gone beyond the role of a passive informant.”
14.	The Crown then made further disclosure which included material relating to four earlier operations which the Customs and Excise had undertook against the appellant. The prosecution also gave disclosure of aspects of a current operation involving the surveillance of the appellant.   
15.	The trial had been due to start on 18 November but was put back by one day.  On the Tuesday there was a PII hearing.  That hearing is not relevant to the issues under consideration in this case.  No order for disclosure was made.  The Crown however indicated in open court that it would no longer rely on the evidence of the witness Sydney.  The Crown offered to tender him for cross examination but no longer regarded him as a witness of truth.  Following negotiations between counsel for the appellant, now Mr Metzger, and Mr Jackson, the appellant pleaded on a written and agreed basis which had been the subject of negotiation.  Although the prosecution had placed the appellant as the ringleader, the effect of the written basis of plea was to put the appellant in the position of a facilitator who would be rewarded by receiving an unspecified proportion of the cigarettes smuggled.
16.	The basis of plea read:
“The Defendant, Stephen Christopher Makin, proposes to plead guilty to Counts 1 and 3 of the Indictment before the Court on the following basis:-
The Defendant was approached by person, or persons, unknown none of whom have been arrested or charged in these proceedings, and asked to provide transport and storage facilities for the relevant containers on 22nd September and 23rd October 2001.

He was provided with funds to facilitate the arrangements and received separate payment for his services through receiving a proportion of the cigarettes from each load.
He was asked to arrange for the containers to be taken to the storage facility (yard) from where as far as he knew the goods were to be transported onwards.  The arrangements for onward transportation were to be made by other parties.
The Defendant had no direct link with parties in Europe and was not concerned with that aspect of the transportation of the containers to the United Kingdom.”
17.	On the next day, there was a PII hearing and, following it, no evidence was offered against the haulier, Foster, on Counts 1 and 3 and the lorry driver, Snioszek, on count 3.  As we have already said, this was done in the absence of the appellant and no explanation at all was given by the prosecution in open court for what, on the face of it and in the light of the evidence, was an extraordinary thing to do.
18.	We turn to the ruling on the application to vacate.  HHJ Lancaster set out the history of the proceedings and continued:
“On the third day of the trial, the Crown made a further PII application in the light of what I was told was new material then in its possession, and of course Mr Jackson, quite properly, was aware of his obligation which continued about disclosure.  The defendants, Mr Foster and Mr. Snioszek, knew about the application.  Mr Makin and Mr Graham didn’t.  The Crown’s view was that it was not necessary to give them notice as their position was not affected by the application in the light of the Defence statements and the basis of plea.  When that application was made, again I did not order disclosure of any material.  The Crown considered the situation generally, as I understand it, and decided not to proceed against Mr Foster and Mr Snioszek and offered no evidence against them.  By that time, if my memory is right, I think they had been put in charge of the jury, and in the light of the Crown’s position I directed the jury to enter not guilty verdicts in respect of the two defendants, Mr Foster and Mr Snioszek.  The effect of that procedure and that process has brought the current applications in front of me now.
Essentially, on behalf of both defendants, it has been submitted that it looks rather suspicious because, particularly in the case of Mr Graham, it is said that his position was not so different from Mr Foster’s, with whom he was closely bound up, submits Mr Duffield, and he says that the reality is that the defendant Mr Graham should be allowed to vacate his plea.  Mr Metzger, in effect, takes his view.  His client essentially does not trust the Customs and Excise and the way in which they conduct investigations.  He doesn’t trust that they are always open about disclosure.  Mr Metzger is aware of past cases where there have been some disclosure difficulties which have resulted in trials collapsing, and he submits that whatever the Crown, whatever the information the Crown had in relation to Mr Foster and Mr Snioszek should accrue to his benefit so that he can reconsider his position, be properly advised as to whether or not he wants to be tried on the indictment by a change of plea or whether the Defence can properly say to the court that the court’s process has been abused, and he says because one is dealing here with information that the Defence don’t know the court has to be extra vigilant when considering matters such as this.
I start with this point.  First of all, the process of the court is important.  The principle of open justice is a principle which has to be honoured in the public interest.  Often in cases such as this, as the Court of Appeal observed in the case of Doubtfire, there are conflicting public interests which compete against the principle of open justice, and often a court has to deal with matters which the defendant is not fully aware of beyond the fact that an application has been made to a Judge about some material which it is thought it is in the public interest he should not see.  I am very conscious that whenever the Court has to look at such material it has to bear in mind the interests of a defendant at all times and keep reviewing the defendant’s interests in the light of any information which a Judge receives which the defendant is not privy to, and in looking at this application, as I have said, I am fully aware of that.
In the course of their submissions, counsel for both defendants referred me to the case of Early, and the head note, as I have got in front of me now, makes this point; that “It is a matter of crucial importance to the administration of justice that prosecuting authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty.  When inadequate disclosure was sought to be supported by dishonest prosecution evidence then the Court of Appeal would not be slow to set aside the pleas of guilty following such events.  I see the force of that point and of course honour it in full.
But there was an earlier decision of the Court of Appeal made in two cases called Mullen and Toher, where this general principle was enunciated by the Lord Chief Justice, Lord Woolf, that “freely entered pleas of guilty would not be interfered with by the Court of Appeal unless the Prosecution’s misconduct was of a category that justified this, that a plea of guilty was binding unless the defendant was ignorant of evidence going to innocence or guilt and that ignorance of material which went merely to credibility of a Prosecution witness did not justify reopening a plea of guilty.”
Now, pausing there, a number of questions seem to arise.  Firstly in this: was the Prosecution guilty of any misconduct?  In my view the Prosecution has not been guilty of any misconduct.  Secondly, was there evidence which was not disclosed which went to innocence or guilt?  In my view there is no material that would go to those matters in relation to these defendants, and of course it is not suggested here that any Prosecution witness has been guilty of perjury, and I bear that in mind.  So, it seems to me that, looking at those matters, and bearing in mind the general considerations that I have already alluded to, that these pleas were freely entered on the basis on which they were entered and there is nothing in the Prosecution’s conduct which would cause those to be doubted, and in those circumstances it seems to me that the applications to vacate the pleas should be refused and accordingly I refuse to allow the defendants to vacate their pleas of guilty.  I would add this: that there is ample material to show that they are both guilty of the offences to which they have pleaded guilty.”

19.	Following the ruling, Mr Jackson was asked by counsel to say whether, if the appellant and Graham had not pleaded, the prosecution would have dropped the case against them as it did against the other two.  Mr Jackson said:
“The Crown doesn’t want to get drawn into answering hypothetical questions, and I don’t see, with respect, that there is an obligation on the Crown to do.
20.	HHJ Lancaster did not require him to answer the question.  Before this court, Mr Jackson made it clear that the decision would not necessarily have been the same.  The appellant was, in its view, the ring-leader and it did not follow that the prosecution would have offered no evidence against him.    
21.	The appellant sought leave to appeal. When the matter first came before this court, Potter LJ presiding, on 13 February 2004 on referral from Cox J, the appellant and his advisers were no wiser.  Having been told that a man by the name of Grzegorz Wach had been convicted of Customs offences in July 2003, the court invited Mr Simon Jackson QC, as he now is, to consider granting disclosure to the appellant if the reasons said to support the earlier non-disclosure were no longer applicable.
22.	Disclosure was subsequently made, the effect of which was that before the appellant had pleaded, Customs and Excise received information a man called “Gregor” was actively involved in smuggling.  Customs and Excise proceeded on the assumption that the man Gregor was or could well be Grzegorz Wach, who was a prosecution witness in the case against the appellant and whose attendance at trial had been required by the appellant to give oral evidence.  At the time the prosecution appear to have proceeded on the assumption that he was required to give oral evidence only by the other three co-defendants (as he was) but not by the appellant.  
23.	No importation took place over the weekend.  Mr Jackson was informed about the “question mark” about Wach on the Monday.  He did not, at that stage, tell the judge nor did he say anything to the defendants’ counsel.  Although it was not known at this time whether the information was sufficiently dependable for reliance to be placed on it, that in our view does not affect the outcome of this appeal on the facts of this case.  If there were concerns about Wach and if there was an obligation to “warn” the appellant and Graham before plea that (at the least) there were unspecified “problems”, the fact that the information was not at that stage deemed necessarily dependable or accurate, does not affect the outcome of the appeal.  It seems to us that the solution to the issue is not dependant upon the nature of the uncertainty of the information but whether, given the information, there was an obligation to give some warning to the  appellant before he pleaded. 
24.	Mr Metzger submitted, that if such a warning had been given, the appellant would not have pleaded at that stage.  We proceed on that assumption.
25.	By Wednesday 21 November, when Mr Jackson was due to open the case against Foster and Snioszek, the concerns about Wach were now such that the prosecution had decided that he could not be relied upon as a witness of truth.  Given that by now that Wach was being investigated, the prosecution took the view that it could not adopt the course which it had adopted in the case of Sidney namely, simply to tell the defence that the prosecution did not intend to rely on Wach.  Faced by this dilemma , the prosecution went to the judge in a PII hearing to explain the problems.  With the approval of the judge, the prosecution then dropped the case against  Foster and Snioszek without, as we have said, giving any explanation in open court.  
26.	For the hearing of the appeal, the appellant has been given almost full disclosure of what had happened.  A few minor details irrelevant to the appeal were withheld, with our approval.  During the course of the oral hearing on 17 May, transcripts of the PII hearings of 21 November and 23 January were also disclosed with some minor editing (blanking-out of the portions not to be disclosed), which we approved. Mr Metzger did not submit that he was handicapped by the editing. 
27.	When we asked Mr Metzger why the witness Wach was fully bound along with 29 other witnesses, he said that there was no challenge to the evidence and frankly stated that any cross-examination would be a “fishing exercise”.
28.	The thrust of the appellant’s case is that prior to the defendant pleading to counts one and three on Wednesday 20 November, the prosecution, at the least, should have warned the appellant that there were problems with a witness or, alternatively, at the least, gone to the judge to seek a direction as to what to do.
29.	We have looked at the statement made by Wach with care.  He worked for G&A and was involved as such in the two importations with which we are concerned. We accept Mr Jackson’s submission that the case against  the appellant was not dependent upon his evidence.  Mr Metzger did not argue to the contrary.  Not calling him as a witness would not have undermined the prosecution’s case against the appellant. 
30.	Mr Jackson invited us to apply the disclosure test imposed upon the prosecution in a liberal manner and we so do.   With this in mind and for the purposes of this case, it is sufficient to say that there is an obligation to disclose material if it assists the defence by allowing the defendant to put forward a tenable case in the best possible light or if the material could assist the defence to make further enquiries and those enquiries might assist in showing the defendant’s innocence or avoid a miscarriage of justice (see the authorities set out in Archbold, 2004, paragraph 12-44C).  If the material falls to be disclosed but is subject to PII, then the prosecution must seeks a ruling from the judge. We apply that test, as we must in this case and as Mr Jackson invites us to do, with the second defence statement referred to in paragraph 13 above very much in mind.   
31.	Mr Jackson considered the issue of disclosure at the time as the following passage from the transcript of the PII hearing on 21 November shows:
“In the context of Mr. Makin’s pleas, the Crown were obviously acutely conscious of the timing of the receipt of the information and looked carefully at his plea and what he was saying, and the Crown concluded that in the light of what he was saying in terms of his plea, an issue of disclosure did not arise in respect of Makin or Graham.”
32.	Mr Metzger was unable to show how the application of the test would have resulted in an obligation to disclose the question mark over Mr Wach or the existence of problems.
33.	We have no doubt that there was no obligation to disclose that question mark, on the facts of this case, to the defence nor to warn the defence, before plea, that there were unspecified problems. 
34.	 It is submitted that the learned judge ought to have allowed the appellant to withdraw his plea and it is submitted that at the hearing of 23 January he did not apply the correct test.  Further it is submitted that without the defence being informed as to why no evidence had been offered against the two co-defendants without them being informed as to what information the prosecution had before the plea, the defence were not in a position to properly argue in favour of the application for the pleas to be withdrawn. 
35.	In our view the principle issue which we have to decide is whether or not the prosecution had a duty to disclose that which they knew before the appellant pleaded guilty.  We have found no such duty.  In the absence of any other reason to permit him to vacate his plea, and there is none, there was no basis on which it would have been an appropriate exercise of judicial discretion to permit the appellant to vacate his plea.  On that basis,  the submission that the defence had not been able properly to argue the matter has no substance.  
36.	For these reasons we dismiss the appeal.  We add only this.  The duty of disclosure continues as long as proceedings remain whether at first instance or on appeal.  In our view, as soon as there was no longer a reason for concealing the identity of Wach, the prosecution should have given an explanation as to why the case was dropped against the co-defendants and why it was felt that there had been no obligation to make at least some disclosure before the appellant pleaded guilty.  It may well be that there was no reason to conceal his identity after he had been arrested and charged in June 2003.  PII still attached to the identity of Wach when the PII hearing took place on 23 January 2003.  The appellant has had to come to this court to obtain disclosure and much time and money has been spent investigating the circumstances which led to the appellant to feel understandably aggrieved.