An article by Jonathan Lennon and Aziz Rahman
Disclosure of so-called ‘unused’ material often lies at the very heart of the criminal litigation process. The right of the defendant to have access to material gathered by police in the investigation but then not used, must to be balanced with the need for the disclosure regime to be a transparent but efficient process, and not some expensive administrative nightmare for those charged with gathering material in criminal investigations. The various prosecution agencies still get the balance wrong from time to time especially in the bigger more complex cases.
Early Days: development of PII
The development of disclosure and Public Interest Immunity (PII) applications in this country has been marked by a series of seminal cases, some of them serious miscarriage of justice cases. In the first of the real watershed ‘miscarriage’ cases; R v Ward  1 WLR 619 the Court of Appeal laid down some ground rules; – all ‘material’ evidence was to be disclosed – i.e. “evidence which tends either to weaken the prosecution case or to strengthen the defence case.” The Court found that where there was sensitive material the Crown should normally inform the defence and the Court would rule on the claim. This would be after an ex parte (private hearing) between the prosecution and the Judge – i.e. a PII hearing. Another miscarriage case considered PII hearings; the M25 three case; R v Davis, Rowe and Johnson  1 WLR 613, 617. There were now 3 types of PII applications. They are still around today:
- The first (and for most cases) is where the prosecution tell the defence about the PII application and what category of material it is about. The defence are then entitled to make their own representations to the Judge before the ex parte hearing.
- The defence are told about the application but not what category of material is involved as that would, in effect, reveal that which the Crown contend should be kept secret.
- In exceptional cases, where even to reveal the fact that an ex parte application was to be made, could ‘give the game away’, then the ex parte, hearing could take place without notice to the defence.
This procedure was enshrined in statute in the Criminal Procedure and Investigations Act 1996 and the Rules made under the Act - though now see the Criminal Procedure Rules. Arguably, the 3rd procedure, the most severe, has in fact been effectively abolished by the House of Lords decision in R v H & C (see below).
Criminal Procedure and Investigations Act 1996
The CPIA introduced a 3 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.
R v H & C and the Golden Rule
R v H & C  2 AC 134 is the seminal case on disclosure and PII. The authors 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 be 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.
More than 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.
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.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases, 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.
Both authors represented ‘H’, in R v H & C.
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