In this article we attempt to give a short explanation of the recent history of disclosure and developments in Public Interest Immunity (PII) so that those facing the current regime(s) may better understand the reality of what is expected of them, and what they can hope to gain from the current processes. Disclosure of so-called unused material is often very important to Defendants who are very interested in knowing about material which the prosecution does not intend to use.
In the early 1980s, the situation was simple, 'unused material' i.e. material the prosecution were not going to use, was made available to the defence if it was relevant. Sensitive material could be withheld and that decision was made by the prosecutor - not the Court. Then the early 1990's produced the first of the real watershed 'miscarriage' cases; R v Ward  1 WLR 619. The Court of Appeal laid down a more generous disclosure regime - 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. The case of the M25 three (R v Davis, Rowe and Johnson  1 WLR 613, 617) refined the PII regime. There were now 3 types of PII applications, the first two are still used 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.
- 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 in practice the Rules are replaced by the new Criminal Procedure Rules, which largely replicates the old system. It is arguable that the 3rd procedure, the most severe has, despite being include in the new Rules, in fact been abolished by the House of Lords decision in R v H & C (see below).
Criminal Procedure and Investigations Act 1996:
This is the Act which will apply in virtually all cases being prosecuted today. The CPIA introduced a 3 stage disclosure process starting with primary prosecution disclosure then service of the Defence Case Statement 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 Defence Case Statement 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 Defence Case Statement ("DCS") document 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. Further, the long established rule that the defence, in general terms, never had to disclose their witnesses is gone - this includes address and dates of birth, see s6C of CPIA and R (Kelly) v Warley JJ  EWHC 1836 (Admin).
R v H & C and the Golden Rule
In the case of Edwards and Lewis v UK the ECHR held that the ex parte PII procedures adopted in those cases violated the applicants' right to a fair trial (Article 6). The defence cases involved allegations of entrapment by the police and the Court felt that the ex parte process was not a fair way to deal with the issues as the Judges had to make findings of fact before deciding upon disclosure. Those findings of fact were reached after hearing only one side - the prosecution. The answer, the Strasbourg Court suggested, might lie in the appointment of a 'special' or 'independent' counsel to argue the Defendant's case but who would be duty bound not to reveal the sensitive issues that he has heard about to the defence.
R v H & C  2 AC 134 was the first domestic case that successfully relied on the argument for special counsel (the authors represented H). The case eventually went to the House of Lords and a seven stage test was laid down for Judges considering disclosure and PII. This effectively limited the use of special counsel to exceptional cases only.
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 disclosure of the same, the material is not disclosed and even the Court is excluded. The defence however still has a right to apply to the Court for disclosure 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.
A 'Protocol' on disclosure was published. Its aim was to set down clear guidance on how Judges and the parties to a criminal case should deal with the issue of disclosure of 'unused' material. It advocated a 'sea-change' in the approach to the handling and management of unused material. There was concern that too much was being disclosed which was leading to spiralling costs and lack of proper scrutiny.
The 'Review' and Computer Evidence
The Protocol does made it clear that many so called Defence Statements, had been so lacking in detail that they hardly qualified for the title. Now Judges are told that they have a duty to make sure DCSs are up to the mark and if not the defendants can expect their juries to hear adverse comments about their defence, as well as affecting the prospects of any application for further disclosure.
In September 2011 Lord Justice Gross published the latest judicial guidance on disclosure; "Review of Disclosure in Criminal Proceedings". This is especially useful in providing guidance on very heavy complex cases where disclosure has always been an issue. The Review followed from a number of high profile cases where the prosecutions had failed following disclosure issues - see R v Rees (2011) the axe-murder acquittal at the Old Bailey (Jonathan Lennon was junior counsel for Rees) - see page 38 of Review. This latest guidance touches on the issue of dealing with masses of 'unused' (i.e. not used by the prosecution) material held in computers seized from suspects/defendants.
Often it is simply not possible for the police to examine every single document so they can detail what they have. The Review gives examples of good practice including data sampling, agreed key search terms and search software etc. This topic had already some guidance in July 2011 in the form of a supplement to the Attorney General's Guidelines dealing with digitally stored material - this places obligations at an early stage on investigators dealing with large volumes of digital material:
51. In some enquiries it may not be practicable to list each item of material separately. If so, these may be listed in a block and described by quantity and generic title. Even if the material is listed in a block, the search terms used and any items of material which might satisfy the disclosure test are listed and described separately. In practical terms this will mean, where appropriate, cross referencing the schedules to your disclosure management document.
52.The remainder of any computer hard drive/media containing material which is not responsive to search terms or other analytical technique or not identified by any "hits", and material identified by "hits" but not examined, is unused material and should be recorded (if appropriate by a generic description) and retained.
Large fraud cases are now coming to prosecution where these guidelines are being applied. Already there is some indication that investigators simply want to return material without properly scheduling the vast amount of material they don't want to use. There will be argument on these new Guidelines and their proper implementation.
It is vital that pressure is put on the Crown at an early stage to keep proper records of all material, and dispose of nothing. It is surprising that we still have to give that advice these days but the pressures on the prosecution in the digital age are significant. Under the Guidelines the defence are expected to co-operate with the Crown - if you can show that that co-operation has only been one way then there is the beginning of an argument for it not being possible for a fair trial to take place.
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. This is especially true in cases where large amounts of digital material have been stored - as the defence should engage with the prosecution straight away with what proper procedures should be fairly adopted in dealing with that material. If that engagement is not properly done the accused have little recourse later. As always early preparation is the key.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence case at 23 Essex Street Chambers. 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.
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, he acted for H. Rahman Ravelli are members of the Specialist Fraud Panel and have recently been ranked by Legal 500 as an 'excellent' firm with Aziz Rahman being described as 'first class and very experienced'.
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