16 October 2014
7 min read
Any article about defence case statements (DCS’s) necessarily requires a consideration of disclosure in criminal litigation generally. There is a huge amount of official material on the massive subject of disclosure; Court guidance documents, case law, reports and reviews etc. They all however all refer to one leading case — it is the seminal case on disclosure and Public Interest Immunity (PII); R v H & C  2 Cr. App. R 179. The authors represented ‘H’ in that case.
Many years on from that judgment disclosure remains a critical fault line in the larger and more complex prosecutions. In the years since R v H & C there has been an increased pressure on defendants to set out their defence in the DCS more fully, and to engage more with the prosecution — making the process less adversarial, though still certainly a battle.
Of course care must be taken in all cases, great or small, when committing your case to paper. But the fact is that so many additional factors are likely to turn on the drafting of the DCS in the larger cases that a very great deal of consideration will have to be given at an early stage to a case which may have taken the prosecution years to prepare.
The Criminal Prosecution & Investigations Act 1996 (CPIA) sets out the framework for prosecution and defence disclosure in criminal litigation. The Act is the starting point — next is the Code of Practice (“COP”) made under it. After R v H & C the Attorney General issued his own ‘Guidelines’ in 2005 and there have been numerous other guidance documents since; most importantly Lord Justice Gross’ Review of Disclosure in September 2011.
Section 6A of the Act deals with the contents of the defence Statement. The DCS must set out; the nature of the accused’s defence, including any particular defences upon which he intends to rely; the matters of fact on which he takes issue with the prosecution — and why; particulars of the matters of fact on which he intends to rely; any points of law and also notification of the details of any defence witnesses sought to be relied upon, (s6C). The degree of detail now required in a DCS is much more so than was originally the practice when the Act first came into force.
The problem for a defendant is that getting it wrong may well lead to cross-examination about why a defendant appears to be saying something ‘different’ — or not disclosed in the DCS. In front of the jury this can be devastating. But, worse than that, getting the DCS ‘wrong’ risks losing access to disclosure of material which can advance the defence case.
The issue that most frequently arises in long and complex cases is disclosure of “unused” material held by the prosecution — in other words the material the investigators have obtained but are not using to support their case.
By s3 of the Act the prosecution must; “disclose to the accused any prosecution material which has not been previously 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.” In deciding what material passes this test the prosecution consider the DCS. So in a simple case if X says it was B that stabbed A, not me, then any material tending to suggest that B was at the scene of the crime or is a violent man must be disclosed to X.
But what if X is not charged with GBH – what if he is charged, for example, with involvement in a conspiracy to defraud case involving a complex scheme that is, according to HMRC, a tax scam designed to rip-off the public purse? These scenarios are frequent enough. Usually a great deal of the facts will not be in dispute, what is in issue is something a lot more nebulous than whether X did something or not; the issue will be dishonesty. Advancing the defence case by maximising prosecution disclosure, when the real issue is something as a vague as the concept of dishonesty, means taking a very careful approach to the drafting of the DCS. In fact it is in cases such as these that the drafting of the DCS is absolutely critical to the entire defence case.
In dishonesty cases such as fraud allegations an early consideration of why the Crown’s central theory is flawed must be considered in depth. For example, if a financial advisor has been running an investment scheme which turns out to be a tax dodge then the central question for the defence may well be (depending on the facts) why an alternative theory is more plausible — e.g. that X himself has been duped and did not know the real nature of the scheme. This in turn will lead onto disclosure of material tending to show that others, who were also involved but not charged, performed a similar role, or that others appear to be more likely candidates for the role ascribed to X – leading to disclosure of e.g. email correspondence between those others revealing discussions about an aspect of the fraud where X is not named or included when he perhaps should be if what the Crown are alleging is true. It is finding the negatives as well as the positives that matters in such cases.
It will be appreciated that the more complex the case the simpler the issues tend to become — e.g. knowledge and dishonesty — but also the more difficult the disclosure is around those issues.
A classic example of the sort of problems encountered in the larger case is when the investigators have seized numerous computers and discs etc. Most of that digital material will be ‘unused’. A great deal of it will not even be considered. But, as it is in the unused material the defence are most likely to find their hidden gems, there must be a mechanism for the defence to at least know what the Crown have – even if it is not disclosed.
This is usually done with a schedule of unused material – basically a list of items arising from the investigation that are not part of the formal evidence in the case. The list is called an MG6C. The defence can ask for items from the MG6C which may, or may not lead to the prosecution agreeing to disclose those items, depending on relevance (which will usually depend on the contents of the DCS).
There have been significant problems in a number of recent prosecutions where vast amounts of material have been seized by the investigators and then not used. How do the Crown go about listing what remains? The answer lies in the Gross Review and the Attorney General’s Supplementary Guidance on Disclosure of Digitally Stored Material (July 2011). Explaining how this works in detail is impossible in this short article but the upshot is that the defence can (and should) engage with the prosecution about how they should examine the computers that have been seized — e.g. use of key search words etc.
This can present opportunities for the defence and a certain amount of tactical consideration is bound to apply. So, for example, if the prosecution persist with refusals of perfectly proper requests to examine a computer for a certain key word — or look for a certain category of document, then a marker — i.e. a warning sign to the Court, can be laid down indicating that the defence are concerned about the disclosure process. It is not immediately that those ‘markers’ become helpful but many months later when the prosecution may yet again be proving inefficient or difficult — by which time there are so more ‘markers’. The stage may well come that the defence can say that there have been legitimate concerns from the outset of the process and that those concerns remain; so much so that there may be enough to submit to the Court that the disclosure process being undertaken by the Crown cannot be trusted. Such applications should never be made lightly — but if they are well-founded then the only cure is to stop the case. The central document the Judge will look in assessing any such application will be the DCS.
The investigators will frequently have to liaise with third party agencies before charge. In the case of X above the agency concerned may be the old Financial Services Agency (now Financial Conduct Agency) but it can be any number of bodies such as local authorities or some other regulatory entity. The defendant will have engaged with that body at length pre-charge and that body may have expertise about the issue in hand that the police/HMRC just do not have — for instance The Pensions Regulator in a pensions fraud case.
Agencies like the FCA will often hand over very sizeable digital files of material to the prosecutors — of which only a portion is used in the case. This is fine — as long as there is a proper MG6C detailing what remains; if there isn’t one — it should be requested. Equally, the FCA may have, as in cases like our example, information which may help show that Mr. X was not the sort of candidate that the regulator were interested in. For example, the FCA may have investigated a number of similar cases but centred their investigations, not on those actually doing the selling, but on those who created the off-shore bank accounts and so on as they were the ones that could be demonstrated to have acted dishonestly. It is not a knock-out point — they rarely are, but a number of small points like that help persuade a jury that the experts who deal with these cases every day did not consider X to be the sort of man they were interested in — and thus nor should they.
When drafting the DCS it must be borne in mind there are duties under the AG’s Guidelines, as well as the COP to pursue “all reasonable lines of enquiry” and to retain material (COP; paras 3.5 and 5.1). Thus a defendant can force the prosecution to go to the third party agency and obtain the material that needed to make these sorts of points — and if they refuse they risk having the trial stayed.
There is no one size fits all. There is a danger that the drafting of a DCS will become an art form or that the judiciary will start treating them like civil pleadings — if it isn’t pleased you can’t rely on it. The issues at stake are far too important to allow that to happen but we are certainly moving in that direction. For those defendants facing large complex prosecutions their DCSs may well have to address a whole multitude of issues at an early stage. Preparation is everything.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases. He is based at 23 Essex Street Chambers in London. He is a contributing author to Covert Human Intelligence Sources, (2008 Waterside Press) and has extensive experience in all aspects of the Proceeds of Crime Act 2002 and is ranked by both Chambers & Ptnrs and the Legal 500.
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel and have been ranked by Legal 500 as an 'excellent' firm with Aziz Rahman being described as 'first class and very experienced'. The firm is also ranked in Chambers & Partners.