Over the last two years I have written on disclosure failure issues in the Justice Gap, The law Society Gazette and other outlets including on this present site at Mintedlaw.wordpress.com. Disclosure failure has inevitably now been picked up by Parliamentary select committees and the mainstream media alarmed by the appalling danger of miscarriages of justice and near misses such as the Liam Allen case.
However this article is going to concentrate on a familiar theme of mine. The seemingly extreme reluctance of our judiciary to apply their own Criminal Procedure rules. Forgive my recycling this concept again but our courts resemble those of the old Soviet Union which pays lip service to a criminal code (the Criminal procedure Rules) whilst aiding and abetting the prosecution to ignore them. That is only a marginal exaggeration as I shall demonstrate with reference to recent case law.
In the Divisional Court case – The Queen (On the Application of the Director of Public Prosecutions) v Sunderland Magistrates’ Court, Jamie Leslie Hanson and The Queen (On the Application of Reza Kharaghan) v City of London Magistrates’ Court v Crown Prosecution 14 February 2018; a case more on ‘material mistake’ than disclosure, the court nevertheless reminds us what is at the very heart of the problem. It cites the words of Lord Justice Auld in introducing Criminal Practice Direction I General Matters 1A: as follows ‘The Overriding Objective provides that:
‘a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance’ and it is not just for a party to obstruct or delay the preparation of a case for trial in order to secure some procedural advantage, or to take advantage of a mistake made by someone else. If courts allow that to happen it damages public confidence in criminal justice. The rules and practice directions taken together, make it clear that that the courts must not allow it to happen.’
I know this is ‘old news’ but inevitably it is cited by courts as they find ways to punish the defence for Prosecution failure because, and with all due respect to Lord Justice Auld, many of us regarded such hostile comments (‘game’ /’sporting chance’) as the signal regrettably some in the judiciary were waiting for. An opportunity to undermine the burden of proof. An indication to the prosecution that however egregious their behaviour the defence will face an uphill struggle to challenge it, with the background mood music so hostile to attempts to simply hold the Prosecution to account of their failure.
In this 2018 Divisional court cited above the court reminds us, that:
‘if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early – If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.’
Let that sink in for a minute. You as a defendant or defence lawyer are penalised for the prosecution failure to serve evidence, as directed, by the rules and or the court, for the reason that you may be late in raising the issue. Suddenly blame for the prosecution failure is shifted to the defence who fail to mention this at an earlier stage under our old friend the ‘the overriding objective’.
What a fantastic ‘Alice in Wonderland’ world has been created by this. Never mind the failure of the prosecution to comply with their obligation to serve evidence under:
a) Rule 8.3 (initial disclosure)
b) Crim PR 14.5(2), imposing a continuing duty upon the prosecutor to ‘provide the court with all the information in the prosecutor’s possession which is material to what the court must decide’,
c) Crim PR 24.13 which provides that ‘any party who introduces a document in evidence, or who otherwise uses a document in presenting that party’s case, must provide a copy for each other party’ etc.
Never mind the breach offends all the requirements of:
d) Common law,
e) Article 5 and 6 of the European Convention on Human Rights (as Crim PR 1 (1) overriding objective explicitly recognises) and
f) EU Directive 2012/13 of 22nd May, 2012.
No, we must put all those protective disclosure abuse laws and rules aside because you as an overworked underfunded defence lawyer failed to do the prosecution job and that of the court, ( the latter as a ‘participant to proceedings’ not a passive onlooker. see below) You are late in notifying the prosecution failure and it is likely their failure becomes your own. (Let’s be honest and say the failure is almost always that of the prosecution).
What about a ‘stay’ for abuse of process?
In DPP v Spalluto – Divisional Court – 23 June 2015, the court said:
‘It was also important to bear in mind that abuse of process should not be used to punish the prosecution, particularly when considering whether the accused could receive a fair trial. When examining whether it would be unfair for the defendant to be tried, the prosecution’s actions might be so bad as to justify a stay of proceedings.’
That suggests an exceptionally high bar for the defence to reach.
This followed on from DPP v Petrie  EWHC 48 (Admin), (2015) 179 J.P. 251
Where an appeal by way of case stated was allowed on the ground that a stay of prosecution ought not to have been granted as the prosecution’s failure to provide CCTV footage. – As no one had ever viewed the footage,
‘the decision to grant a stay had been wholly speculative – as the facts did not disclose that anyone had ever viewed the footage, so that there had been no basis for stating that the footage might have, still less would have, assisted the respondent. Secondly, the trial could and should have proceeded on the basis of the available evidence; it was open to each side to call witnesses and it would have been open to the respondent (defendant) to take advantage of the fact that the CCTV footage which he had requested was not available.’
So even if there is a total failure to comply with the Rules and Law do not expect in normal circumstances to be successful in demanding a stay of prosecution unless there are particular factors involved. It is possible but difficult. I recommend a recently posted item by the excellent Barrister Colin Wells (author of ‘Abuse of Process 3rd edition published by Oxford University Press 2017’) which article you can find here: www.linkedin.com/pulse/disclosure-failures-abuse-process-colin-wells
In reality the Magistrates will look first to any other solution rather than a stay according to Petrie. That seems clear from these words in the decision:
‘the trial could and should have proceeded on the basis of the available evidence; it was open to each side to call witnesses and it would have been open to the respondent to take advantage of the fact that the CCTV footage which he had requested was not available through no fault of his own, considered. It would have also been open to consider an adjournment, if it was thought necessary, after the live evidence had been heard (paras 32, 34-36).’(Citing R. (on the application of Ebrahim) v Feltham Magistrates Court  EWHC Admin 130,  1 W.L.R. 1293)
This decision suggests that the trial will proceed with the defence able to comment adversely on the failure to produce the evidence. Too bad then that the missing evidence might have exonerated the defendant. You can raise it as a matter of reasonable doubt of course but that hardly compensates. You can seek an adjournment to secure the evidence but that is not automatically granted as you will have to overcome the interests of justice test that will justify the grant of an adjournment. ‘That should be a last resort after the consideration of other alternatives’, Crown Prosecution Service v Picton  EWHC 1108 (Admin), (2006) 170 J.P. 567.
What are these ‘other alternatives? Often this might involve the case being put back in the list for you to consider late service of evidence and take instructions thereon. Or you might succeed in having the case adjourned which will be at your own or the client’s expense in a fixed fee system. It ought to be the Crown’s application in my view as they created that disclosure crisis. But their failure is often rewarded by yet another adjournment rather than exclusion of evidence.
If you are extremely fortunate in the temperament of the Bench the Crown may be instructed to proceed with the late or non-served evidence being excluded. This however will not assist the defence if they believe the missing evidence will assist their case. Too bad. You are left as I have said with the very poor substitute of commenting on ‘what might have been’ in evidential terms and on the burden of proof that you would in any case ordinarily referred to in closing.
As a defence advocate you have to sometimes pinch yourself to remind one that you were not to blame for this disclosure debacle and yet you and your client are so often the victims of this prosecution failure. One has to ask, with the court acquiescing repeatedly by repeatedly smoothing the path for prosecution failure why should it ever change?
So how do we as defence lawyers protect ourselves from this procedural injustice?
We tie the prosecution and the courts down like Gulliver waking up on the Lilliputian beach. We play them at their own procedural game. Not defensively but aggressively. I don’t like to put it this way, but operate as if you have two potential enemies. A failing prosecutorial system and a court likely to reward that failure and penalise you unless you are very careful.
I would start at the case management hearing. Make sure that the PET form notes every single piece of evidence that you believe you will need and that it provides for appropriate time limits for service. You can vary these with consent. Make sure that it is clear that you will want a copy of that form. Just in case though, (I accept it is annoying), make a separate list on your attendance note of all these directions for service and the time limits.
Make sure that a note is made on your case management system for the time limit expiry date to come to your attention on the due date. It is frightening how easy it is for these vital dates to be missed or lost among a welter of e mails note or alerts in the busy working day. But winning or losing the case can depend upon attention to these details further down the line at the trial.
Having a due date reminder pop up as a reminder is utterly useless unless you then further action these in a meaningful way. What is a meaningful way? Obviously you would wish to send a chasing letter to the prosecutor but for reasons apparent from the case law extracts cited above it you must also send a copy of such letter to the court.
What courts often conveniently tend to forget is that as well the Prosecutor and the defence, the Court itself is defined as a ‘participant’ to the proceedings with a duty under the overriding objective under R 1.1 the Criminal procedure rules including (e) ‘dealing with the case efficiently and expeditiously’. The court is without question a ‘participant‘- R1.2 (2) ‘Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule’.
What does this mean? The duty of the court is in fact set out in the rules under S3.2. I set that rule out in full here for convenience:
‘3.2.(1) The court must further the overriding objective by actively managing the case.
(2) Active case management includes―
(a) the early identification of the real issues;
(b) the early identification of the needs of witnesses;
(c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case; and
(h) making use of technology.
(3)The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.’
There is a reason for my setting this out in full. What is it about those rules that suggest the courts can sit back and ignore multiple e mails drawing the courts attention to Prosecution failure to comply with disclosure? How often in fact do we hear that not only do the prosecution fail to respond but the courts remain silent almost to the point of indifference despite being kept informed? Some courts are better than others but many are happy to place all the blame on others without complying with the rules itself as a ‘participant’. They take no or little proactive role but are quick to criticise others.
Of course the defence play directly into the hands of both the court and the prosecution (unwelcome and unintended beneficiaries) if the defence fail to notify them of any failure on disclosure. That is why I argue above that it is essential that the defence have robust systems to chase and notify. We are fortunate at Tuckers Solicitors because we have award winning practice management and IT teams overlooking our systems. If a direction due date expires a reminder pops up and the allocated fee earner is prompted to generate an automatic letter both chasing the prosecution but crucially also copying in the court. The system also retains the audit trail. Whatever system you have it must focus on compliance with directions from both sides. You need to build up a history on the file of your efforts to seek compliance with court directions.
Sometimes, after a failure of both prosecution and court to respond to my chasing e mails I go to the length of sending a Defence Case statement. I do this not because it is necessary. It is not ‘necessary’ because we are simply chasing disclosure and or evidence that either the automatic or specific directions relate to. It may include other material triggered by the Schedule of unused material but I will often draft one irrespectively on occasion simply to drive the point home that there is an important basic failure by the prosecution to comply with the rules. The DCS can place the missing documentation in the appropriate context and when in written form or uploaded the Bench will have this document when they retire. I am a great believer in ‘having the last word’.
After one and no more than two chasing communications if the disclosure is not complied with then, I suggest, ask the court to list the case to mention this failure. The Case law above makes it imperative that you do. Remember the Divisional Court quoted above? ‘It is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.’ I have direct experience of legal advisors criticising a failure to list earlier despite having done so 3 clear working days before the trial. It was apparently late. So do not delay. List.
What will likely happen will be the court indulging the prosecution with more time to comply? The court will justify that, if it chooses to explain at all, with reference to the interest of the Complainant and the interests of justice. It is to be expected and understandable. But when you reach the trial date you will be armed with an impressive array, of missives and hearings that should make you entirely immune from criticism and which place you in a strong position to:
- Apply for exclusion of any evidence based upon missing material.
- Resist any prosecution application for an adjournment to fix their case with you relying on your audit trail when arguing Picton.
- Insist the prosecution call their evidence without the disclosure in question and if it proves fatal to their case to do so and they have to offer no evidence then so be it.
- Refuse any suggestion to put the case back in the list where your professional duty to take proper instructions would be compromised by such an ad hoc event.
If this is what you already do then my apologies for preaching to the converted but take heart that others are adopting this hard line with the Prosecution and courts. We should make punishing disclosure failure the norm not indulging it or blaming the defence. Enough is enough. We must fight back.
Of course in an ideal world we would not have to wage guerrilla warfare simply to achieve justice for our clients. There should be reforms. I have suggested:
a) The bar for successful applications to adjourn after failure to serve evidence must be elevated so that it becomes a real hurdle to overcome. An overwhelming majority – (96.16%) of practitioners (Solicitors and Counsel) surveyed by the CLSA took the view – that at a trial – the Crown should not be able to rely upon evidence served late which might put the defence under unreasonable logistical or time pressure without leave unless in exceptional circumstances. (Or it is agreed).
b) The Criminal Procedure Rules Committee should consult with the MOJ about changes to the wasted costs regime as suggested previously so that if a court regards an adjournment as not inimical to the interests of justice then proper compensation for the unwanted adjournment can be paid to the accused and to the defence lawyers (Not to the LAA). That may act as both a deterrent and an incentive to comply with disclosure rules where, such as in R. v Salt (Thomas) Court of Appeal (Criminal Division) 1 W.L.R. 4905;  2 Cr. App. R. 27;, the court described disclosure failure in in these terms: ‘the conduct of the CPS and the police as having been reprehensible.’
To be honest the egregious and commonplace failure to disclose evidence is an everyday occurrence in most courts to the point that it is danger of become a mundane event. But we the defence need to effect change in the culture of both the prosecution and the court by utilising their own rules and procedures. We need to make their experience in court not in the least a mundane routine experience but hellish for them in terms of outcome and auditing consequences. We are defence lawyers. We fight.