R v R
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWCA Crim 1941 |
| Docket Number | Case No: 201502254-63 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 December 2015 |
[2015] EWCA Crim 1941
THE PRESIDENT OF THE QUEEN'S BENCH DIVISON
( Sir Brian Leveson)
Lord Justice Gross
and
Lord Justice Fulford
Case No: 201502254-63 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hearing dates: 19, 20, 21 October 2015
This is a series of extracts from the judgment of the court to which each of the members of the constitution has made a substantial contribution. The full judgment may not be reported until the conclusion of the trial because of the restrictions on reporting proceedings of this type: these provisions are contained within s.71 of the Criminal Justice Act 2003. However, because important issues of practice are involved, we have lifted the restrictions in part to enable publication of the following extracts in order to give guidance on the proper approach to disclosure and abuse of process. Identifying features of the case have been removed. As a result the relevant part of the judgment may be reported prior to the conclusion of the trial, albeit in this anonymised form.
Introduction
Writ large throughout this case is the ability of the criminal justice system fairly to manage cases (likely, in the main, to encompass allegations of very substantial fraud) which comprise or comprehend a vast electronic database through the techniques of disclosure which have been developed through the Criminal Procedure and Investigations Act 1996 ("the CPIA") and the various protocols and guidelines which have been issued in an attempt to do so. Thus, it is common ground that, in this prosecution, many computers have been seized containing some 7 terabytes of data. The prosecution case has long since been served, as have prosecution case summaries, updated as time has passed. For five years, however, while proceeding in the Crown Court, the case has not progressed beyond what has been contended is necessary for primary disclosure. Neither has this state of affairs come about for want of judicial intervention.
Ultimately, [the judge] stayed the prosecution in respect of all counts of a draft indictment (which had not reached the stage of being preferred) as an abuse of process. … This is an application by the prosecution for leave to appeal that decision on the grounds that the judge had adopted an incorrect approach to the issue of initial disclosure and, in any event, having regard to the issues in the case and all the circumstances, had been wrong to stay the entire prosecution.
In the light of the issues as to the extent of the present operation of the law relating to disclosure in cases of this type, we invited the Attorney General to intervene: he did so and we are grateful for the assistance that [has been] provided. Furthermore, because of concerns expressed about the impact of decisions of the Legal Aid Agency in relation to the case, we also invited representations and received submissions from that quarter. In the event, it quickly became clear that decisions as to legal aid had not, in fact, had any impact on the conduct of the case and we deal with such issues only very briefly.
The Law Relating to Disclosure
The prosecution has long been under a duty to disclose to the defence any unused material in its possession, that is to say material that is not part of its formal case against the defendant, which either weakens its case or strengthens that of the defendant. The central importance of proper disclosure of unused material was underlined by Lord Bingham in R v H [2004] UKHL 3, at paragraph 14:
"Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made."
This duty was put on a statutory footing in section 3(1)(a) Criminal Procedure and Investigations Act 1996 (" CPIA") which provides a single test for disclosure and requires the prosecution to:
"…disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."
"Prosecution material" is defined in section 3(2) as material:
(a) which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.
The scheme of the statute proceeds in stages; the primary disclosure required by section 3 is intended to be followed by the service of a defence statement setting out the nature of the accused's defence, including any particular defences on which he intends to rely, and indicating the matters of fact on which he takes issue with the prosecution ( section 6A CPIA). Where the prosecutor has complied, or purported to comply with section 3, and the defendant has been charged with an indictable offence, the service of a defence statement is compulsory (section 5(1), (5) CPIA).
Disclosure of unused material does not end there. Once the defence statement has been served, the defendant may make an application for specific disclosure under section 8 CPIA of any material which he has reasonable cause to believe should have been disclosed pursuant to section 3. Moreover, the prosecution is under a "continuing duty of disclosure", pursuant to section 7A, which requires it to keep under review the question of whether at any given time there is material which satisfies the test in section 3.
As noted in R v H [2004] at paragraphs 17 and 35, section 3 does not require the prosecutor to disclose material which is either neutral or adverse to the defendant; self-evidently, a defendant cannot complain of non-disclosure of material which would lessen his chances of acquittal. More than that, prosecutors have been consistently discouraged from disclosing material that they are not obliged to disclose, not least to avoid over-burdening and distracting the trial process with unnecessary materials.
The legislation does not prescribe the method of disclosure, or the process to be adopted by the prosecution; rather it is focussed on the end result: disclosure which complies with section 3. There is however an ample framework of law and guidance, now to be found in the Criminal Procedure Rules ("CrimPR"), the CPIA Code of Practice 2015 ("the Code"), the Attorney General's Guidelines on Disclosure 2013 ("the 2013 Guidelines") and the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, December 2013 ("the Protocol"), the latter incorporating recommendations contained within the Review of Disclosure in Criminal Proceedings, September 2011, conducted by Gross LJ ("the Review"). For present purposes, nothing turns on the amendments to these various sources post-dating the events with which we are concerned.
These materials offer amplification of what the CPIA actually requires, and what would go beyond that. They serve as guidance for the operation of the statutory regime, and how the prosecution ought to go about its task. For present purposes, it is crucial to examine the guidance provided in relation to cases such as this where the unused material is made up of vast quantities of electronic files which would, realistically, be impossible to read and assess in the usual way. How is the prosecution to comply with its obligation under section 3 if it has not read – and could not be expected to read – all the material it has seized? In order to deal with this question it is worth setting out the framework in detail.
The scene is set by the Criminal Procedure Rules, underlined by Gross LJ at paragraph 31 of his Review:
"The Rules now consolidate the Court's case management powers and furnish a guide to the underlying culture intended to govern the conduct of criminal trials. Accordingly, the Rules are or should be of the first importance in the proper application of the disclosure regime."
In particular, Rule 3.2 imposes a duty on the Court to further the overriding objective "by actively managing the case" which includes "the early identification of the real issues". Rule 3.11(a) requires the Court to establish, with the active assistance of the parties, what disputed issues they intend to explore.
Into that picture fits the Code of Practice, required by section 23(1) CPIA, the latest iteration of which records in the Preamble its purpose to set out "the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation and which may be relevant to the investigation, and related matters". Most notably, the Code sets out the procedure for dealing with relevant prosecution material. First, paragraph 2.1 defines material as relevant if:
" …it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case."
The Code goes on to provide (at paragraph 6.2) that:
"Material which may be relevant to an investigation, which has been retained in accordance with this code, and which the disclosure officer believes will not form part of the prosecution...
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