The right approach in complex cases (10 years on from R v H & C)
Any article about Defence Case Statements (DCSs) must necessarily involve a consideration of disclosure in criminal litigation. All of the guidance documents, and all of the important case-law on the topic of disclosure 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.
Ten years on from R v H & C it is apparent that disclosure is still a major fault line in the larger and more complex prosecutions.
The CPIA 1996 & Attorney General’s Guideleines
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 and next is the Code of Practice (“COP”) made under it. After R v H & C the Attorney General issued his own ‘Guidelines’ in 2005, (see now December 203) and there have been numerous other guidance documents since; importantly Lord Justice Gross’ Review of Disclosure in September 2011.
So what should be in a DCS? Section 6A of the Act deals with this. 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 on in his defence any points of law which he wishes to raise and also notification of the details of any defence witnesses sought to be relied upon by the defence (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. In R v Bryant  EWCA Crim 2079 the Lord Chief Justice was very critical of a DCS that consisted merely of a generalised denial of guilt accompanied by a statement that the defendant took issue with any witness giving evidence to the contrary – this was said to be ‘wholly’ inadequate.
The problem for a defendant is that getting it wrong may not only lead to cross-examination about why he is saying something ‘different’ to the jury than he put in writing previously, but it can have a huge impact on what disclosure he or she will get from the prosecution.
Issues Arising in Complex Cases
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 and ‘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 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? In a case like that, 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 dishonesty, requires defenders to take a very careful and considered approach to the drafting of the DCS.
Take a complex fraud case as an example; if a financial advisor has been running an investment scheme which the prosecution say was actually just set up to rip-off the investors then the central question for the defence may well be why an alternative theory is more plausible – e.g. that X himself has been duped by others and did not know the real nature of the scheme. That needs to be carefully stated in the DCS. 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 attributed to the defendant.
The more complex the case the simpler the issues become – knowledge and dishonesty - but the more difficult the disclosure process is around those simple issues. As Churchill said ‘out of intense complexities, intense simplicities emerge’ – but those complexities need detailed forensic consideration at an early stage if the DCS is going to be a worthwhile document.
A significant problem, for both prosecutors and defenders, is dealing with the vast swathes of material generated when the investigators have seized computers. The digital material will be examined by the investigators looking for evidence. Of course most of that digital material will become ‘unused’ – most of it will be completely irrelevant.
This can be a bigger problem for the defence who must have in place some system of dealing with the huge amount of digital data that it is available to inspect. That is because it is in the unused material that the defence are most likely to find their hidden gems. The starting point will usually be the schedule of unused material – this is basically a list of items seized or produced during a criminal investigation that are not part of the formal evidence in the case. The list is called an MG6C. Every item has a number and each item will have been considered for disclosure but refused on grounds of relevance, or sometimes items are marked as available for ‘inspection’. 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 in the MG6C? The answer lies in the Gross Review and, principally, the Attorney General’s Supplementary Guidance on Disclosure of Digitally Stored Material (July 2011 – now contained in the latest Attorney General’s Guidelines (December 2013). 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. The Guidelines provide that:
In cases involving very large quantities of data, the person in charge of the investigation will develop a strategy setting out how the material should be analysed or searched to identify categories of data. Where search tools are used to examine digital material it will usually be appropriate to provide the accused and his or her legal representative with a copy of reasonable search terms used, or to be used, and invite them to suggest any further reasonable search terms. If search terms are suggested which the investigator or prosecutor believes will not be productive - for example because of the use of common words that are likely to identify a mass of irrelevant material, the investigator or prosecutor is entitled to open a dialogue with the defence representative with a view to agreeing sensible refinements…
This notion of working with the prosecution at an early stage can present opportunities for the defence. 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 can be laid down with the Court that the defence are concerned about the disclosure process. It is not immediately that those ‘markers’ become useful tools but only many months later when the prosecution may yet again be proving inefficient or difficult. Then thought can be given to the history of requests and responses and thought can be given to whether an application can be made that the disclosure process cannot be trusted and therefore there can be no trial, or that a certain area of the evidence should be excluded. The central document the Judge will consider in assessing any such application will be the DCS.
THIRD PARTY AGENCIES
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 Financial Conduct Agency, but it can be any number of bodies such as local authorities or some other regulatory entity. The defendant may well 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, or they may know more about, e.g. the ‘scam’ at hand as it has been dealing with dozens of other similar cases aside the one that the police/HMRC are now asking them about.
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, in our example, information will may help show that Mr. X was not the sort of candidate that they the regulator were interested in. For example, the FCA may have investigated a number of boiler room type scams but centred their investigations not on those actually selling the apparently ‘dodgy’ shares, 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. A number of small points like that may help persuade a jury that the experts who deal with these cases every day did not consider X, or someone in his position, to be the sort of man they were interested in and thus nor should the jury.
Getting the ammunition to make that point though takes imagination and experience in drafting the DCS. When drafting the DCS it must be bourne 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 is needed to make these sorts of points – and if they refuse they risk having the trial stayed.
Ten years after R v H & C we find that these lessons have still not been fully learned by all prosecutors or even all defenders.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases. He is based at 33 Chancery Lane 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 & Ptnrs.