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21 February 2018

Gareth Underhill and Tim Nutley secure not guilty verdicts following HMRC disclosure failings.


This case highlighted the importance of instructing counsel who know the intricacies of the law surrounding disclosure and are prepared to pursue material relentlessly on a defendant’s behalf.

Gareth and Tim represented two out of five defendants being tried at Aylesbury Crown Court on a charge of being knowingly concerned in the evasion of excise duty. The alleged offence dated back to December 2014, when HMRC officers seized 2.9 million cigarettes, disguised in pizza boxes, at a warehouse in Milton Keynes. The estimated duty evaded was more than £680,000.

When interviewed by HMRC officers, both defendants denied knowledge of the cigarettes, explaining they were offered what appeared to be legitimate work. Before and during the trial, requests were made for material in possession of HMRC which may assist the defendants. It consequently became apparent that material capable of assisting defendants was surfacing for the first time.

Matters crystallised some 12 days into the trial, when the defence sought assurances that all relevant material had been reviewed and disclosed. HMRC conceded that this assurance could not be given unless the whole disclosure process was started afresh, which would take 10 weeks.

In refusing the Crown’s application to adjourn (and restart) the trial, Recorder Shane Collery commented that the five defendants had had the matter hanging over them for three years. He ruled that the case had reached a point “looking at the overall justice, inconvenience and great expense caused” where it was “not right there should be a further adjournment to allow more time to get right what should have been done in the first place”.

Disclosure failings are very much in the public eye presently, and the courts will be prepared to take a robust approach in appropriate cases. Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings and his judgments in cases such as R v Boardman [2015] EWCA Crim 175 have played a key role.