Disclosure Failure: The Court Of Appeal Make It Plain That Compliance With CPR Is Critical
There have been two important recent judgments from the Court of Appeal concerning prosecution appeals over terminating rulings following serious disclosure failures. Both have been dealt with by strong Court of Appeals and both have emphasised the Court’s increasing concern about waste and inefficiency within the criminal justice system and the consequently critical importance for both the prosecution and the defence of meeting the requirements of the CPR or other directions of the court.
In R v Boardman  1 Cr. App. R. 33 the defendant faced stalking charges in the Magistrates Court concerning sexually explicit and abusive text messages and telephone calls received by multiple women complainants. In his defence statement he denied that the phone used in the offences either belonged to him or had ever been knowingly used by him. The Crown evidence included a master CD of the call data from the phone but despite repeated requests the CD was only provided to the defence a few days before the trial was due to start. The defendant sought an adjournment on the grounds that a defence cell site expert needed to consider the call data from the disputed phone against that of a second phone accepted to have been used by the defendant. The trial judge refused the adjournment but excluded the call and cell site data thereby effectively ending the prosecution.
The prosecution unsuccessfully appealed to the Court of Appeal. In a judgment delivered by the President of the Queen’s Bench Division the Court decisively upheld the decision of the trial judge and reinforced the fact that whenever appropriate it will seek to support trial judges in the exercise of their discretion in discharging their case management powers. The President made reference to the recent Review of Efficiency in Criminal Proceedings and stressed the responsibility on all involved in the criminal justice system to maximise the use of limited resources and to ensure that cases were progressed as efficiently as possible. The Court stated that “the CPS were not entitled to expect that no sanction would follow (a failure to meet a requirement) unless the case had been brought back to the court for a further order: the resources of the court cannot be expected necessarily to extend to what might be described as the provision of a “yellow card””.
Importantly the Appeal Court also issued a double warning to defendants seeking to raise non-disclosure arguments. Firstly the President said that where the defence fails to alert the court to an issue in a timely manner with the effect that the court is deprived of the opportunity of resolving it and maintaining the trial date a trial judge can use as a factor to support a decision rejecting a complaint of prejudice consequent upon the need for an adjournment. Secondly, the President added that any attempt “to create a trap for the prosecution generally, or the CPS in particular, by the over-zealous pursuit of inconsequential material which does not go to the issue, …in the hope that the CPS will fall down and that an application can be made which has the effect of bringing the prosecution to an end…is itself an abuse of process of the court and judges will be assiduous to identify it and impose sanctions on those who seek to manipulate the system.”
In a latter case R v DS and TS  EWCA Crim 662 the Appeal Court entertained another prosecution appeal in a case where grave failures in the unused material disclosure process had led to the trial judge stopping the trial on the eighth day and subsequently staying the proceedings as an abuse of process.
The case concerned two men charged with rape and other serious related offences. There were two complainants and the defence of both men was that the allegations were lies. The case had taken nearly two years from a PCMH on 13th Dec 2012 to an effective trial date on 3rd Nov 2014 with multiple failures to comply with important directions by both the prosecution and the defence.
Disclosure had been handled in a piecemeal manner and by the time of trial substantial defence requests were still outstanding. The OIC attended on the first day with 3 new boxes of material which neither prosecution counsel or the CPS had seen. The trial nonetheless started but substantial time was then lost on a daily basis largely as a result of ongoing disclosure problems with more and more items disclosed. After several days prosecution counsel asked that senior police officers attend court and carry out a full and independent disclosure exercise. On the eighth day of the trial the judge discharged the jury on the basis that the interests of justice and a fair trial demanded that disclosure had to be completed before the defence could properly cross examine.
In reviewing the disclosure failures on a subsequent abuse of process application the trial judge noted that whilst disclosure had by then been finally completed there was clear evidence of gross incompetence and a lack of training and supervision. He considered that all the documents should have been disclosed prior to the trial and that critical material had been served late (including the fact that one of the complainants had a caution for attempting to pervert the course of justice). He concluded: “Notwithstanding the seriousness of the charges, I take the view that this abuse is so exceptional the court ought to mark its wholesale condemnation of the prosecution by allowing a stay and refusing the prosecution the right to pursue the case.”
On this occasion the prosecution appeal succeeded. In delivering judgment the Lord Chief Justice noted that as this was not a case where the judge had concluded that a trial would be unfair but rather that a stay was necessary to protect the integrity of the criminal justice system it was necessary to examine the relevant factors and to review his balancing decision.
In doing so and upholding the appeal the Court expressed the view that the late disclosed documents were of limited materiality and only relevant to issues of credibility. The Lord Chief Justice contrasted the position with that in Boardman where he noted that the failure had been to serve central evidence. Additionally he identified that there had been a significant failure by the defence to identify, request and pursue disclosure items in a timely fashion. Referring again to Boardman judgment he repeated the Court’s position that where the defence have not brought to the Court’s attention what they contend is a prosecution disclosure failure in sufficient time for it to be remedied in advance of trial, this may be a critical factor in determining a substantive application founded on alleged prejudice caused by the failure.
Interestingly, although something of a side issue, the Lord Chief Justice considered that the conduct of the CPS and the police in the case had been reprehensible and said that the view of the Court was that the current sanctions (i.e. a wasted costs order) which a court can impose on them to secure adherence lacks proportionality. He said that the Court will ask the Criminal Procedure Rule Committee to consider whether other sanctions can be imposed via the introduction of new rules.