Disclosure In Private Prosecutions
There are two areas of responsibility: the responsibility to record and retain prosecution material and the responsibility to review and disclose prosecution material. “Prosecution material” is defined in section 3(2) of the Criminal Procedure and Investigations Act 1996 [‘CPIA’] as material:
(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or (b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.
Where the state prosecutes a case, the recording function is undertaken by a police disclosure officer and the reviewing function by a government lawyer, sometimes advised by prosecution counsel.
As a minimum a private prosecutor would be well advised to put in place a disclosure framework replicating the state’s arrangements. A scrupulously fair disclosure process is less vulnerable to criticism by the court and defence, and may avoid lengthy and expensive abuse of process arguments and appeals. It is worth remembering that, in a state prosecution, the complainant has no role in disclosure other than, in some cases, providing material to the disclosure officer. A disclosure process that separates the private prosecutor her/himself from the recording, retention and reviewing of prosecution material is considerably more robust than one that allows the private prosecutor to superintend or guide the process.
The approach of private prosecutors to disclosure has been considered by the Court of Appeal and High Court regularly in the context of disclosure when starting a prosecution with an application for a summons. Some wider principles emerge:
– Advocates and solicitors who have conduct of private prosecutions stand in the place of the state prosecutor and have the same obligations as a Minister of Justice.
– The court must be able to rely on such advocates to act in accordance with their professional codes and the duties owed to the court.
– Their duty to the court and the public transcends their duty to their client, the private prosecutor.
– Their duty includes the obligation to ensure that all relevant material is made available both for the court and defence, and to ensure that the proceedings are fair.
Those acting for private prosecutors must manage the tension between representing the prosecutor as an individual and a victim of crime, and running the prosecution as a Minister of Justice.
Recording & retention
The CPIA Code 2015 applies not only to police officers but to “a person other than a police officer who is charged with the duty of conducting [a criminal] investigation”.
It requires the disclosure officer to record on a schedule all material that may be relevant to the investigation. Material may be relevant if:
“it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case”.
Each item should be listed separately, numbered consecutively and described on the schedule. The aim is for the schedule to give the reviewing prosecution lawyer enough information to decide whether s/he needs to view the material before determining whether it meets the disclosure test. Block listing is permissible where it is not practicable to list many similar items separately. Where a large volume of material has been searched rather than considered in full, the strategy and analytical techniques used to search the material should be recorded, and any items that might meet the disclosure test listed separately.
The disclosure officer should draw the prosecutor’s attention to any material that may satisfy the disclosure test.
It is difficult, for an individual private prosecutor to demonstrate sufficient independence to act as “disclosure officer”. As a rule, the person recording and retaining material ought to be a member of the legal team and not the actual private prosecutor. Steps should be taken to ensure that it can be shown that the disclosure officer has full access to relevant documentation and is not dependent on the private prosecutor’s assessment of what is relevant, which might be thought to be consciously or unconsciously biased.
The individual reviewing unused material in a public prosecution would usually be a Crown Prosecution Service Lawyer or, on occasion, prosecution counsel. The person reviewing material should not be the person who assembled and recorded it. The involvement of two distinct individuals is an important safeguard that ought to be replicated in any private prosecution team. One option is to allocate the recording and retention function to a solicitor in the team and the reviewing function to (disclosure) counsel.
Section 3 CPIA requires the prosecutor to disclose previously undisclosed material to the accused if it:
“might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused”.
Some useful considerations, set out in the Attorney General’s Guidelines on Disclosure 2013, are:
– Could the material be used in cross-examination?
– Could it support submissions to exclude evidence or stay proceedings?
– Could it suggest an explanation for the defendant’s actions?
– Has it a bearing on scientific or medical evidence in the case?
If there is no such material, the prosecutor must serve a written statement to that effect.
The CPIA does not require the prosecution to provide copies of the schedule of unused material to the defence but in practice this is always done.
Review and disclosure is a continuing process. In particular, the issues in the case may not become fully apparent until a defence statement is served. Whenever any development occurs affecting the prosecution’s understanding of the issues in the case, whether in a defence statement or as a result of questions put or evidence given at trial, the prosecutor must always have an eye to disclosure. This requires the presence at court throughout the trial of someone who is conversant with all of the unused material, whether that is prosecution counsel, a disclosure junior, or the lawyer who conducted the reviewing and disclosure process before trial.
Large volumes of material
Many criminal cases now involve enormous quantities of prosecution material. The obvious examples are document-heavy cases of financial crime, and cases where very many media devices have been seized and downloaded, resulting in thousands or even millions of pages of data.
The most important thing when arranging disclosure in such a case is to ensure that there is a full record of what has been done and why. As discussed at length in R v R & Others  1 WLR 1872, there can be no objection to the use of search tools where it is practically impossible to review material in its entirety, but the methodology of the sampling or searching must be disclosed.
The practice now in cases where disclosure will be of any complexity at all is for the prosecution to produce a Disclosure Management Document and provide it to the defence and court. The purpose of the document is to set out what the prosecution are doing in order to comply with its disclosure obligations under the CPIA. Such a document assumes a particular importance in a private prosecution, where the usual division of work between the police and prosecution lawyer does not apply, and where it is important to establish that a fair procedure is being followed.
The document should, generally speaking, deal with the following areas:
– What are the identified issues in the case?
– Is any material being searched or sampled rather than reviewed in full?
– If so, what software is being used to undertake the searches?
– What search terms are being used?
– If any material requires translation, how will that be achieved? Will the material be translated in full and then reviewed in full, or is there to be a searching or sampling process in the original language?
– Is there any material pertaining to the defendant that may be subject to legal professional privilege? If so, how will it be identified and isolated?
– What if any enquiries have been made with third parties who may hold relevant material?
The defence should be invited to comment on any search terms being used and, if appropriate, to suggest additions.
Legal advice and litigation privilege may need to be considered in relation to internal prosecution communications. Privilege is a notoriously difficult area and it would be impossible to give any general advice about what communications in a private prosecution may attract privilege and in what circumstances a limited waiver would be appropriate. As ever, early and effective legal advice is key.
A communication may attract legal advice privilege where it is a communication between client and lawyer for the purpose of giving or receiving legal advice.
A communication between lawyer and third party may attract litigation privilege, whether in the context of civil or criminal litigation, if three conditions are satisfied: (1) litigation is in progress or reasonably in contemplation; (2) the relevant communication or document is made or created with the sole or dominant purpose of conducting that litigation; and, (3) the litigation is adversarial, not investigatory or inquisitorial: R v Jukes  2 Cr App R 9.
A large proportion of communications between the individual private prosecutor and the prosecution solicitors and counsel may fall within this category. This can cause difficulties when the communications contain information that meets the disclosure test.
There are a number of practical steps that can be taken to lessen difficulties in this area. Notes and records of witness interviews and drafts of witness statements (with the individual private prosecutor or any other prosecution witness, used or unused) should be scheduled and, where they meet the disclosure test, disclosed. It would be unwise to adopt the method of interviewing a witness and then having an investigator draft a witness statement for the witness’ approval based on the contents of the interview unless the interview is recorded on tape or video and that record disclosed. All communications between the prosecution solicitors and any witness, including the private prosecutor, should be recorded and the records scheduled with a view to providing disclosure notes should the test be met.