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Defence And Disclosure

2 August 2013

Very often, disclosure can be one of the most vital aspects of a case. Here we consider the law on disclosure and examine some of the pitfalls that still beset prosecutors, even today, after years of ‘landmark’ case law.

TO MANY, the court process may seem remarkably simple: the prosecution outlines its case against the defendant and produces its evidence to support the allegations, the defence team produces its evidence to challenge the claims being made against its client and then a jury considers its verdict and announces it in open court. All very cut and dried. Or so it would seem.

For every case that is that straightforward there is at least another that is way more complex. And while the disinterested observer may not be aware of it as a trial is about to start, often the unused material - the potential evidence that the prosecution does not intend to produce in court - is more important than what is relied upon. It is disclosure of this unused material in the hands of the prosecution that can be the key to the success of the defence case.

Complex cases such as fraud involve voluminous financial information and require detailed examination and analysis of masses of data, in-depth scrutiny of documents and the questioning of potential witnesses and the defendant. If a defence team is not, for whatever reason, able to gain access to all the aforementioned material then they are trying to mount a legal fight with one hand tied behind their back.

As an example, Rahman Ravelli Solicitors has just earned a client an acquittal in a multi-million pound fraudulent trading case after a six-week trial. The trial involved detailed assessments and analysis of the business practices of our client; a man in the motor trade who the banks accused of selling vehicles that he had no right to sell. In this particular case, the prosecution was basing its case on thousands of pages of material but we were aware that millions of pages relating to our client’s business were in the hands of administrators. Added to this, we knew that our client had thousands of documents. Some of the banks involved in the case had their own mountains of paperwork and the prosecution was bringing in folders of new, unseen documentation just before their witnesses were due to give evidence.

By being pro-active in making the relevant applications to the court, at the right time, we were able to ensure we saw everything we needed to in order to mount what was a successful defence for our client. But such success can only be obtained if a defence team is fully versed in the law on disclosure. Knowing this, along with developments in public interest immunity (PII), is the only way to gain the very most from disclosure.

Criminal Procedure and Investigations Act 1996

The CPIA introduced a three-stage disclosure process, starting with ‘primary’ prosecution disclosure then service of the ‘Defence Case Statement’ (DCS) followed by the Crown reacting with ‘secondary’ prosecution disclosure. These terms are still mis-applied, often by criminal practitioners today – in fact they no longer exist. The Criminal Justice Act 2003 amended the CPIA so that the Crown now serve ‘initial disclosure’ – this is material “which might reasonably be considered capable of undermining the case for the prosecution…or of assisting the case for the defence.” Thereafter, the defence still have to serve a DCS but it is required nowadays to be much more detailed than before; see s6A and 6E of CPIA. This may prompt further disclosure by the prosecution; s7A.

Defence Case Statement

The vital importance of getting the DCS right cannot be under-estimated. In substantial cases disclosure will always be an issue and will often be critical – get the DCS wrong and you may have lost any number of tactical advantages flowing from disclosure. The Criminal Justice and Immigration Act 2008 further amended the CPIA so that the DCS has to plead what specific factual issues are to be fought – no longer will general terms suffice.

Public Interest Immunity

Of course the prosecution will sometimes have sensitive information in its hands. Does this sensitive information advance the defence case or undermine the prosecution’s case? If the answer is ‘no’ then that may be the end of the matter. However, if the prosecutor him or herself recognises that, for example, the existence of an informant, is going to potentially assist the defence case, then a decision on whether to disclose this obviously sensitive information must be made. If the prosecution decide the information, despite its potential relevance, should not be disclosed then a ruling must be sought – i.e. a Public Interest Immunity (“PII”) application must be made. Such applications are made to a Judge without the defence being present.

There are 3 different types of PII applications, although in reality only the first two are used in modern times. They are:

• Where the prosecution tells the defence about the PII application and what category of material it is about. The defence can then make its representations to the Judge.

• The defence is told about the application but not what category of material is involved, as stating it would reveal what the Crown wants kept secret.

• Where - and only in exceptional cases – even revealing that an ex parte application has been made would “give the game away’’, leading to the ex parte hearing taking place without the defence knowing.

R v H & C and the Golden Rule

R v H & C [2004] 2 AC 134 is the seminal case on disclosure and Public Interest Immunity (PII). Rahman Ravelli represented H. The case went all the way to the House of Lords and a seven-stage test was laid down for Judges considering disclosure and PII.

The Lords decided that the prosecution, and not the Courts, should primarily decide on issues of disclosure – i.e. a prosecutor will decide first of all if material is relevant and if it isn’t there is no need to disclose or see the Judge, never mind seek a PII ruling if the material is sensitive. This leads to the danger that the prosecution will simply decide that material which is sensitive is actually not relevant anyway and, therefore, even if the defence have asked for some specific information, the material is not disclosed and the Court is excluded. To counter this the defence still have their right to apply to the Court for disclosure (under s8 of the Act) and the Lords reminded the Crown that the starting point is the ‘Golden Rule’, i.e. that any material which weakened the prosecution case or strengthened that of the defence should be disclosed and that that rule should be read fairly widely.

The Protocol & the Attorney General’s Guidance

The Protocol for the Control and Management of Unused Material was issued in 2006. It advocated a ‘sea-change’ to the approach to be taken in relation to the disclosure of unused material. The guidelines were a steer to the Courts and prosecutors not to overburden the system with reams of unused material and to encourage the defence to think about their applications for disclosure and not make inappropriate applications.

It is the Attorney General’s Guidance, 2005 (“AG’s Guidelines”), however, that provides more substantive practical guidance and it is still cited in argument today. The Guidance flowed from our case of R v H & C. It gives instructions in relation to PII hearings but also real practical advice to officers dealing with large amounts of seized material. Within unused material there may be ‘gems’ that support a defence case or damage the prosecution case – there may also be nothing at all of relevance. In order to properly assess the material, all relevant unused material gathered by the investigators should be scheduled – this is on a form called an MG6C (or MG6D for sensitive material). Examining carefully the MG6C schedules in detail should be an intrinsic task in defending in virtually every case.

Nearly a decade after R v H&C, disclosure remains the most troubling issue in criminal litigation on both sides and is still the cause of the Court of Appeal quashing convictions due to prosecution faults in the disclosure process. Perhaps one of the reasons for this is that in recent years the amount of material seized in large investigations can be truly massive, especially where computers are seized. Guidance on how to cope in the digital age was released in 2011.

The ‘Supplement’ and the ‘Gross Review’

Where officers raid a number of premises in co-ordinated raids they may end up seizing several computers. Clearly not all the data on the computers will be relevant to the investigation. The police can still seize the computers and take them away to conduct a ‘seize and sift’ procedure later, see ss50 – 51 Criminal Justice and Police Act 2001. But what happens then?

In July 2007 the Attorney General published a ‘Supplement’ to his Guidelines; The Supplementary Attorney General’s Guidelines on Disclosure: Digitally Stored Material. This provides a Code for officers and prosecutors on how to deal with vast quantities of digitally stored material, and how such material should be scheduled and disclosed to the defence. Paragraph 26 makes it clear that digital material, once examined, should either be retained or returned; see also sections 53-55 of the 2001 Act. Broadly speaking if it is retained it is because it is evidence, potential evidence or is relevant to the investigation. So, how much should be put on the vital MG6C document?

This is the cause of disclosure problems in cases being tried now – we say the answer lies in the CPIA Code of Practice. This provides at para 5.1: “the investigator must retain material obtained in a criminal investigation which may be relevant to the investigation.” So if material is ‘relevant to the investigation’ it will be retained - if it is retained it should be listed in the itemised MG6C schedule, see para 28 of AG’s Guidelines and para 42 of Supplementary Guidance.

The problem for the Crown is that this can create enormous practical difficulties as it will be a huge drain on resources to properly list items on retained hard-discs. Prosecutors and police forces are supposed to work together where large volumes of material have been seized but there are cases where it appears that the prosecution are permitting the investigators not to list on MG6Cs material from hard discs which they say is entirely irrelevant to the case.

The Crown in such cases should be reminded of their duties. Reference should be made to Lord Justice Gross’ ‘Review of Disclosure in Criminal Proceedings’, in September 2011 – more recently supported in the ‘Further Review of Disclosure’ in November 2012. These documents re-iterate that the scheduling process in large and complex cases will not be easy but nonetheless the prosecution have to ‘get a grip’ and get on with it. Where there is truly a mammoth amount of digital material and it is impossible or impractical to look at every document then processes can be put in place, e.g. search terms can be used to find appropriate files but, crucially, anything else retained but not used should be listed in the MG6C schedule, even if only using wide or generic terms, para 52 of Supplementary Guidance. If that is not being done then there may be important documents, emails etc that you are completely unaware of. The prosecution must be reminded in the strongest terms of their duties here where there is any concern that proper scheduling of unused digital material is not as comprehensive as it might be.

In Practice

What does all this mean? Disclosure and PII has always been a difficult topic and one that we are likely to have to re-visit after the first challenges to the new system have been settled. Basically, the rule for all defendants facing trial where disclosure is likely to be an issue is early preparation and, in large cases with much electronic material, vigilance to ensure the Crown are following the proper disclosure and scheduling processes. If that engagement is not properly done the accused have little recourse later.

Therefore early preparation, steadfast application of the rules of disclosure and an all-encompassing view of the case are essential if the defence is to succeed.


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