R v DS and TS
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd |
| Judgment Date | 21 April 2015 |
| Neutral Citation | [2015] EWCA Crim 662 |
| Docket Number | Case No: 2014/05942/B3 & 2014/05944/B3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 April 2015 |
[2015] EWCA Crim 662
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
His Honour Judge Bowers
Royal Courts of Justice
Strand, London, WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
Mr Justice Macduff
and
Mr Justice Jeremy Baker
Case No: 2014/05942/B3 & 2014/05944/B3
T D Roberts QC and Richard Bennett for the Appellant
N J H Lumley QC for the Respondents
Hearing date: 18 March 2015
Lord Thomas of Cwmgiedd, CJ:
Introduction
This court has had to consider for the second time within the last two months serious failures by the prosecution in relation to the provision of material which led a judge to bring the case to an end. In the first case, Boardman [2015] EWCA Crim 175 the court upheld the decision of the Crown Court judge to refuse to allow evidence to be served late in circumstances in which it was clear such a decision would lead to the prosecution discontinuing the case; the failures in that case in relation to the provision of evidence had been grave and in disregard of clear directions of the court. In the present case, the failures in relation to disclosure had, as will appear, been grave and led to the trial being stopped on the eighth day on the direction of the judge. The judge had subsequently stayed the proceedings as an abuse of the process of the court. In this appeal the prosecution seeks leave under s.58 of the Criminal Justice Act 2003 ( CJA 2003) to appeal against that stay.
The allegations and evidence in the instant case
Daryl and Thomas S, both brothers, were charged with rape, false imprisonment and assault by penetration.
The case against them involved allegations involving two women, LV and ET. In each case Daryl S started a relationship with the women. The relationship with Lisa (who had been a police community support officer until 2010) began at the end of 2009. It was the Crown's case that the relationship deteriorated when Daryl S became threatening and abusive. It was alleged by LV that in May or June 2010, after the alleged break up of their relationship, Daryl S raped her. According to LV he then inveigled his way back into her life and the relationship continued. It was alleged that on an occasion between July and September 2010 there was an occasion on which a "threesome" occurred during which Daryl S had sexual intercourse with Lisa in the presence of Thomas S, Thomas S penetrating her vagina with his fingers, LV performing oral sex upon Thomas S and then Daryl S lying underneath her, and penetrating her anus while at the same time Thomas S lay on top of her and penetrated her vagina. There was a further allegation of rape in December 2010 when LV alleged that after another separation she allowed Daryl S to stay the night and he raped her.
In the course of 2011 there were two occasions upon which Daryl S attacked her. On the first occasion he was convicted of common assault and on the second occasion he was again convicted of common assault and possession of a bladed article. He was sentenced by the Magistrates to 20 weeks imprisonment. When LV was interviewed in connection with these assaults in May 2011, LV told the officer in those cases, who was the same officer as the officer in this case, that she had been raped, but she did not want to pursue it.
Whilst awaiting trial for the offence of assault committed against LV, Daryl S commenced a relationship with ET. The allegation against Daryl S was that on 30 July 2012 ET tried to run away from him following an argument. It was said that Daryl S prevented her from leaving and dragged her upstairs as a result of which he was charged with false imprisonment. The following morning Daryl S raped her.
It was the case of both defendants that the allegations made against them were lies.
The history of the proceedings
(a) July 2012 – March 2014
On 30 July 2012 ET reported the rape. She was ABE interviewed. She also stated that Daryl S had been violent to her, controlling and possessive. Daryl S was arrested on 31 July 2012 interviewed and bailed. He recommenced the relationship with ET, unknown to the police. On 3 September 2012 he was charged with a count of rape and false imprisonment relating to ET. The case was sent to York Crown Court, subsequently being transferred to Teesside to secure an earlier trial date. On 26 October 2012, a schedule of unused material was served with 17 items on it.
On 13 December 2012 there was a plea and case management hearing; Daryl S pleaded not guilty. The trial was listed for 13 March 2013. The officer in the case was a Detective Constable; he was also the disclosure officer.
On 21 February 2013 a conference took place between counsel, the reviewing CPS lawyer and the officer in the case. By that time the police were aware that the relationship between Daryl S and ET had been resumed, but that it had then broken down again. During that conference the officer in the case also informed counsel that LV, at the time she had made allegations of assault against Daryl S, had made allegations of rape in 2011 but had not wanted to pursue them (as we have set out at paragraph 4 above). In early March 2013, ET was interviewed under the ABE process again about the resumption of the relationship; LV was also interviewed under the ABE process about her relationship with Daryl S and set out the allegations which we have outlined. An application was made to the court in respect of the allegations of LV. On 8 March 2013 the trial date was vacated. A date for a further pre-trial hearing was fixed for 7 June 2013 with a provisional trial date of 1 July 2013.
On 3 June 2013, items 18–21 and 22–24 were added to the schedule of unused material. No papers had been served by the CPS by 7 June 2013. The matter was adjourned and the provisional trial date vacated. Determined attempts were made by the court at Teesside to manage the case, papers were served and the allegations charged in respect of LV and those charged in respect of ET were joined in the same indictment. Significant delays then occurred. Joinder was ordered on 27 September 2013. Further significant delays then occurred. On 2 December 2013, the case was listed for trial on 25 March 2014 with an 8 day estimate. No defence statement was served on behalf of Daryl S relating to the allegations of LV either then or at any time before the trial date of 25 March 2014.
(b) Second listing of the trial: 25 March 2014
On the morning of the trial, 25 March 2014, although the proposed edits for the ABE interviews had been agreed by counsel for Thomas S, nothing had been done in respect of Daryl S, despite repeated requests by the prosecution. Daryl S's counsel asked for further edits and said the trial would take 10–15 days rather than the 8 days which had been estimated earlier. It was not practical to edit the ABE; the trial was taken out of the list. We have not named solicitors or counsel concerned as we have not heard their account, but their conduct of this matter on behalf of Daryl S appears to have been in serious breach of their obligations to the court, respectively as the solicitors and the advocate in the case.
When the proposed edits to the ABE interview were being discussed by counsel for Daryl S, counsel for Daryl S made a hand written request for disclosure. This was handed to the officer in the case who added some entries to the unused schedules; these were given to counsel for Daryl S, but not to counsel for Thomas S as he had by then left.
There was a further hearing on 8 July 2014 when bail terms were varied. There is no explanation as to why it was not until 23 October 2014 that the case was listed again before the judge. The edits were agreed and the trial fixed for 3 November 2014.
The events immediately before and during the trial
Shortly before the trial was due to start Mr Lumley QC was instructed on behalf of Daryl S. He took the view that primary disclosure was incomplete. He made requests to the prosecution for documents and information which were properly required to be disclosed.
As a result of those requests, on the first day of the trial the officer in the case was asked to attend. He came with three boxes of material which neither counsel nor the CPS had seen. Counsel for the prosecution, Mr Bennett, required the officer in the case to prepare a revised schedule of unused material based on material in the possession of the police. This resulted in a revised schedule containing over 25 further items (items 25–50). Although the revised schedule was expressed as being complete, it was not.
On the first day of the trial, 3 November 2014, the jury was sworn in by 11.35 a.m. Nothing further happened. Nothing happened on the morning of the second day, save for discussion on issues to do with disclosure; all that took place in the afternoon was the prosecution opening between 2.29 and 3.09 p.m. On the third day, the two ABE interviews of ET were played; these were finished by 12.45 p.m. and the hearing adjourned. On the fourth day, ET was examined in chief and cross examination commenced; it was not completed as another witness (ET's mother) was interposed. ET's cross examination continued on the fifth day, but she was sent home early as the failure to provide further disclosure impeded the cross examination; another witness (ET's stepfather) was interposed.
Counsel for the prosecution therefore asked that a senior police officer and another detective constable attend and carry out a full and...
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