A number of high-profile investigations have seen some of the best known commercial institutions placed under intense scrutiny. If and when any trials result from this, the issue of disclosure could prove vital in determining the outcome.
Here, Aziz Rahman examines the law on disclosure and how it is used.
Some famous commercial names have recently faced unwanted attention.
Tesco faced questions about its profits reporting and senior staff were ushered out of the door. HSBC has been accused of tax avoidance, money laundering, sanctions busting and mis-selling while Rolls-Royce, GlaxoSmithKline and Alstom have seen their profiles dented due to bribery allegations.
Prior to any trials that result from such allegations, the issue of disclosure is massively important. For the defence, disclosure of material that the prosecution possesses but does not plan to use in court could be as important as that which is openly available.
Any defence team needs full access to all such information. We regularly represent clients accused of business crime offences involving millions of pounds and it is always vital that we see everything the prosecution has. And anything relevant possessed by banks, administrators or other interested parties. We take a pro-active approach and by using the law on disclosure we gain all that we require to successfully defend our client.
The Criminal Procedure and Investigations Act 1996 (CPIA) introduced a three-stage disclosure process and the Criminal Justice Act 2003 amended the CPIA so that the Crown serves ‘initial disclosure’ – material “which might reasonably be considered capable of undermining the case for the prosecution…or of assisting the case for the defence.” The defence then serves a defence case statement (DCS) (which now has to be more detailed than the CPIA required) and this may then require more disclosure by the prosecution. The DCS is a crucial chance for a defence to obtain material that may strengthen a case. Under the Criminal Justice and Immigration Act 2008, the DCS also has to detail what specific factual issues are to be contested.
The prosecution can mount its own challenges relating to disclosure. It can go before a judge without the defence being present to seek a Public Interest Immunity (PII) application to allow them not to disclose certain information to the defendant’s legal team on grounds that it affects national security, journalists’ sources, crime prevention or children.
The prosecution either tells the defence it is making a PII application and the category of material it intends to withhold - so the defence can make representations to the judge - or it lets the defence know the application is being made but does not divulge precise details. In very rare cases, the prosecution can make a PII application without the defence knowing. When it comes to PII and disclosure, R v H & C  2 AC 134 is the main case. Rahman Ravelli represented H in the case; which went to the House of Lords and led to a seven-stage test for judges. The Lords decided that the prosecution, not the courts, should primarily decide on issues of disclosure. This leads to a risk that the prosecution will, for its own convenience, consider any sensitive material to be irrelevant. Crucially, defence teams can counter this by applying to the court for disclosure under s8 of CPIA. And the Lords emphasised in R V H & C (2004) the ‘Golden Rule’: any material which weakened the prosecution case or strengthened the defence’s should be disclosed.
While 2006’s Protocol for the Control and Management of Unused Material advised both prosecution and defence not to bombard the legal system with mountains of unused material or disclosure applications, the Attorney General’s Guidance, 2005 (“AG’s Guidelines”) –stemming from our case R V H & C (2004) – offers greater practical guidance. The AG’s Guidelines cover PII and how officers should handle large amounts of seized material; specifically the use of the form MG6C (or MG6D for sensitive material) when scheduling all relevant unused material.
The Attorney General’s 2007 supplement to his guidelines covered how digitally-stored material should be scheduled and disclosed to the defence. Paragraph 26 says once digital material has been examined it should be retained or returned. If it is retained, it is because it could be evidence or relevant to the investigation. Disclosure in current cases can now hinge on how much of this material should be on the MG6C. Paragraph 5.1 of the CPIA Code of Practice says “the investigator must retain material obtained in a criminal investigation which may be relevant to the investigation.” Listing all items stored on retained hard discs, memory sticks or other computer accessories can be time consuming for investigators. Added to this, there are often legal arguments about the relevance of digital material that prosecutors have not placed on the MG6C.
Defence teams looking to achieve the maximum available through disclosure should refer prosecutors to Lord Justice Gross’ “Review of Disclosure in Criminal Proceedings’’ of 2011, which was supported in 2012’s “Further Review of Disclosure’’. These documents emphasise the prosecutors’ job to schedule material; including any huge amounts of digital material. They state that proper procedures should be introduced, such as using search terms to find appropriate files, if it is not possible to examine every document. Importantly, they add that material retained but not used should be listed in the MG6C schedule.
Any future trials relating to HSBC and Tesco are likely to see much emphasis on disclosure. It is crucial in so many business crime cases. For that reason, preparation, vigilance and a strong use of the law regarding disclosure are essential if a defence team is to contest the case on a level playing field.