LAW REPORT

Regina v Blackledge and others; Court of Appeal (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Macpherson of Cluny and Mr Justice Kay); 7 November 1995

In prosecutions for conspiracy to evade the prohibition on the export of certain goods to Iraq, the failure by the prosecution to disclose documents that showed that the British authorities were turning a blind eye to such exports was a material irregularity which deprived the defendants from making properly informed decisions on how to run their defence.

The Court of Appeal (Criminal Division) allowed four appeals against convictions of conspiring in the exportation of goods with intent to evade the prohibition on their exportation.

The appellants were charged with a conspiracy between 1988 and 1990 relating to the exportation of goods to Iraq which were prohibited by the Export of Goods (Control) Orders 1987 and 1989. The events allegedly occurred when licences were obtained for the shipment of the goods to Jordan, when their true destination was Iraq.

At preliminary hearings before their trial, the appellants pleaded not guilty and made clear that their case was that the authorities were aware of Jordan being used as a conduit for exports to Iraq. Their request for disclosure of policy and guideline documents governing the grant of export licences during that period was resisted by the Crown on the ground that there were no Department of Trade and Industry documents that showed that the authorities were turning a blind eye to such exportation.

When the trial judge rejected the defence submissions, the appellants changed their pleas to guilty, having received indications they would then receive suspended sentences.

As a result of acquittals in another case concerning similar offences, documents were disclosed by the Ministry of Defence, Foreign and Commonwealth Office and Security Services which showed that it was well known that Jordan was allowing itself to be used as a conduit for supplying military equipment to Iraq and that the authorities were turning a blind eye to military equipment being shipped via Jordan to Iraq.

The appellants appealed against their convictions on the ground that if those documents had been disclosed at their trial they would not have pleaded guilty; and the non- disclosure prevented them from making properly informed decisions about their defence.

Anthony Morris QC and Christopher Melton (John Budd & Co, Blackpool); Geoffrey Robertson QC and Peter Clarke (Irwin Mitchell, Sheffield); Ian Macdonald QC (Simons Muirhead Burton); John Aspinall (Preston & Redman, Bournemouth) for the appellants; Edmund Lawson QC and Stephen Kramer, who did not appear below (Customs and Excise Solicitor) for the Crown.

Lord Taylor CJ, giving the court's judgment, said that the documents now before the court ought to have been made available before the trial. This was not a case of the defence seeking disclosure simply in the hope that some undefined defence might emerge. If there were any suggestion in the documents that the defence claim might be correct those documents would be disclosed or if they could not be, the prosecution would be stopped.

The court could not say that if all the material had been before the jury they would necessarily have acquitted but the documents would have enabled the defendants to present an arguable case along the lines they had already indicated before seeing the documents. The documents might have left a jury in doubt as to whether the appellants' conduct was condoned by one or more limbs of the executive. The failure to disclose the documents amounted to a material irregularity.

Documents in the possession of one or other governmental department involved in the inter-departmental consideration of licences were to be regarded as in the possession of the Crown as an indivisible entity.

It was common ground that even an unequivocal plea of guilty was not necessarily a bar to an appeal against conviction. Having considered all the unusual circumstances of the case - the material irregularity, the judge's ruling based on an unawareness by him and by prosecuting counsel of the undisclosed documents, and the pressures leading to the changes of plea, the convictions could not be regarded as safe and satisfactory. The appeals must be allowed.