On 21 December 2015 the Court of Appeal released a series of extracts from their judgment in R. v. R. and others ( EWCA Crim 1941.) Although the full judgment may not not be reported until the conclusion of the trial the Court lifted reporting restrictions in part in order to give guidance on the proper approach to disclosure and abuse of process.
The case had been ongoing in the crown court for five years and had not progressed beyond what had been contended as necessary for primary disclosure. No indictment had been put to the defendants. Ultimately, the trial judge had stayed the proceedings as an abuse of process because of the delay in the case. The Crown appealed that decision.
The Court of Appeal addressed the operation of the disclosure regime where the unused material is made up of vast quantities of electronic files which would be impossible to read and assess in the usual way. (Computers seized in the case contained seven terabytes of data.) The question was posed as follows:
“How is the prosecution to comply with its obligation under section 3 if it has not read – and could not be expected to read – all the material it has seized?”
Having reviewed the statutory framework on disclosure and the court’s case management provisions the court drew the following conclusions about the current law and practice on the disclosure of unused material:
- The prosecution is and must be in the driving seat at the stage of initial disclosure
The prosecution is required to take a grip on the case and its disclosure requirements from the outset adopting a considered and appropriately resourced approach to giving initial disclosure. This must include the overall disclosure strategy, selection of software tools, identifying and isolating material that is subject to legal professional privilege and proposing search terms to be applied. The prosecution must explain what it is doing and what they will not be doing at this stage, ideally in the form of a “Disclosure Management Document.” Such a document is intended to clarify the prosecution’s approach to disclosure and to identify and narrow the issues in dispute.
- The prosecution must then encourage dialogue and prompt engagement with the defence
The duty of the defence is to engage with the prosecution and to assist the court in fulfilling its duty of furthering the overriding objective.
- The law is prescriptive of the result, not the method
The prosecution is not required to do the impossible, nor should the duty of giving initial disclosure be rendered incapable of fulfilment through the physical impossibility of reading (and scheduling) each and every item of material seized; common sense must be applied. In this regard the court recognised that the prosecution is entitled to use appropriate sampling and search terms and their record-keeping and scheduling obligations are modified accordingly. The court strongly endorsed the approach adopted in R. v. Brendan Pearson and Paul Cadman  EWCA Crim 3366. The right course at the stage of initial disclosure is for the prosecution to formulate a disclosure strategy, canvass that strategy with the court and the defence and to utilise technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized.
- The process of disclosure should be subject to robust case management by the judge, utilising the full range of case management powers
The judicial task of active and effective case management is emphatically not confined to the secondary or subsequent stages of disclosure. Indeed, the court is both entitled and obliged to give orders and directions to address the failing with which it is confronted. The judge’s aim, apart from seeking to hold the prosecution to its duty of giving initial disclosure and insisting on defence engagement, must be to drive the case as expeditiously as possible towards the stage where a defence case statement is required, the issues can be crystallised and questions of further disclosure dealt with on a reasoned and and informed basis.
- Flexibility is crucial
Disclosure is not to be conducted as a “box-ticking” exercise. Indeed, in a document heavy case there can be no objection to the judge, after discussion with the parties, devising a tailored or bespoke approach to disclosure. However, the scheme of the CPIA 1996 must be kept firmly in mind and should not be subverted.
The court recognised that in an appropriate case where there is a discrete dispute of law (not fact) as to the approach to be adopted by way of disclosure, consideration might be given to a preparatory hearing, although it emphasised that preparatory hearings should be “very few and very far between.”
Abuse of process
The court reviewed the authorities on abuse of process. In the instant case the delay had resulted from the prosecution failure to provide CPIA compliant primary disclosure. The court considered that prosecutorial failings are not relevant to a consideration of first limb abuse, whether the defendant can have a fair trial, and are only relevant to second limb abuse, whether or not it would be fair to try the defendant. Moreover, the authorities make it clear that where delay is said to be the basis for a stay, serious prejudice must be shown: unjustified delay by itself is not a sufficient reason. In the instant case the trial judge had placed greater weight on personal prejudice rather than considering whether there was serious prejudice in the sense that the defendant’s will be deprived of a fair trial.
In relation to second limb abuse the court noted that conduct or results that may merely be the result of state incompetence or negligence should not necessarily justify the abandonment of a trial of serious allegations. In the instant case there there had been no deliberate misconduct or bad faith on the part of the prosecution.
In concluding that there had been no abuse in the case the court concluded with the following warning:
“To allow successful abuse of process applications where neither prosecutorial misconduct of the type identified in the authorities nor delay such as would prejudice a fair trial can be established would, however, provide a perverse incentive for those charged with criminal offences to procrastinate and seek to undermine the prosecution by creating hurdles to overcome all in the hope that, at some stage, a particular hurdle will cause it to fail.”