An update on ‘R v R’

Many who practise in this area  are already familiar with  the Court of Appeal’s recent decision in the case of R v R [2015] EWCA Crim 1941. The case concerns an allegation of substantial fraud and is perhaps more extraordinary for the time it has taken to progress through the Courts. Five years passed between the case being sent to the Crown Court and the year when the abuse of process application led to the indictment being stayed. In that time arraignment had yet to take place. The abuse application was based upon the Crown failing to comply with its duty under Section 3 of the CPIA. The Court of Appeal overturned the terminating ruling.

In its redacted judgement the Court of Appeal seeks to direct the approach at the Crown Court to disclosure in cases where, given the scope of the material, it is impossible or impractical for the prosecution to inspect all the material which it had seized during the course of the investigation. The essence of the Court’s ruling is that in a case of this type neither its scope nor size will, nor ought, lead to an inability to comply with section 3 CPIA. In the words of the Court and quoting earlier reviews, “It is essential that the burden of disclosure should not render the prosecution of economic crime impractical. ”

In the course of its ruling the Court identified the following principles which in future, if followed, would avoid the ‘debacle’, as it was described, which occurred in the present case:

• The prosecution is and must be in the driving seat at the stage of initial disclosure. To fulfil its duty under Section 3, the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure;
• The prosecution must then encourage dialogue and prompt engagement with the defence;
• The law is prescriptive of the result, not the method;
• The process of disclosure should be subject to robust case management by the judge, utilising the full range of case management powers;
• Flexibility is critical.

A number of these features are already followed in practice and those practising within the field must wait to see  how, and if, this collective will lead to compliance in cases of this scope; appropriate resource may be key to any effective compliance.

It is of course of note that these principles apply to primary obligations placed upon the prosecution by Section 3 of The Act. The  ruling does not appear to alter the prosecutor’s obligations which are triggered by the provision of defence case statements. They will, at that stage, be obliged to provide material which “undermines or assists.” Scope or size of the task, then required, is unlikely to provide either haven or excuse.

As part of the Crown’s appeal the Court re-visited the issue of abuse of process and the appropriateness of ‘a stay’ in cases which are absent prosecutorial misconduct. The Court expressed concern in the following terms:

“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…”

The Court went on to emphasize that the defence had not engineered the delay but the ruling gives the clear impression that delay, even to these extremes, was insufficient to give rise to ‘a stay.’ Where there is inefficiency which leads to delay other sanctions (such as the  exclusion of evidence or even ‘sentence reduction’ upon conviction) are available and ought be deployed if deemed appropriate.

Inevitable commentary has followed the publication decision. Amidst the disbelief as to the length of delay, some concern was raised as to the Court’s jurisdiction to act given that, in the words of the Court, the indictment was no more than a draft as it had not been preferred. It is understood that those privy to the decision have now clarified that the indictment was in fact preferred and that the Court does appear to have had the requisite jurisdiction.

An application for leave to appeal the decision to The Supreme Court has been refused.