The Current Position on Disclosure in This Case

PROSECUTION

V

DEFENDANT

IN THEMAGISTRATES’ COURT

SKELETON ARGUMENT FOR THE DEFENCE DEALING WITHINADEQUATE INITIAL DETAILS OF THE PROSECUTION CASE (IDPC)

The Issue

1. Whether the prosecution have complied adequatelywith theirCrimPR(Criminal Procedure Rules) Para 8.3 obligations in relation to service of the initial details of the prosecution case (IDPC)toenable the provision of legal advicefor the defendant to enter aplea on the charge.

The current position on disclosure in this case

The Prosecution (IDPC) is inadequate for the following reasons (details below):

As a result of these defects it is impossible to advise properly in accordance with the defence’s professional obligations or to adequately comply with theCrimPRor assist the Court in the case management of this case. The problem is one for the Prosecution to solve not the defence.

The Law

1. The CrimPR 2015 Rules 1 and 2.1, 3.1 and 8 apply to all criminal proceedings i.e. theCrimPRreferto ‘criminal cases’ that must be dealt with justly - including summary proceedings. It makes no distinction between summary, either way or indictable only (except where it is specifically referencing such.)

2. Under Rule 1.2.—

(1) Each participant, in the conduct of each case, must―

(a) prepare and conduct the case in accordance with the overriding objective i.e. criminal cases be dealt with justly,

(b) comply with these Rules, practice directions and directions made by the court;

and

(c)at once inform the court and all parties of any significant failure.

3.1 Under rule 8.2.—

(1) The prosecutor must serve initial details of the prosecution case on the court officer—

(a) as soon as practicable; and

(b) in any event, no later than the beginning of the day of the first hearing.

(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—

(a) as soon as practicable; and

(b) in any event, no later than the beginning of the day of the first hearing.

(3) Where a defendant does not request those details, the prosecutor must make them available to the defendant at, or before, the beginning of the day of the first hearing.

3.2 The CPS own website says:

‘Principle

A defendant charged with an offence that can be tried in the magistrates' court is entitled to receive details of the prosecution case before:

• deciding whether to elect trial at Crown Court;
• deciding whether to consent to summary trial; or
• being put to plea, if s/he is under 18’

3. 3 Thefailurewe seek to address is the failure of the prosecution to adequately comply withCrimPRPara 8.3 which provides –

‘Initial details of the prosecution case must include—

a) where, immediately before the first hearing in the magistrates’ court, the defendant was in police custody for the offence charged—

(i)a summary of the circumstances of the offence, and (ii) the defendant’s criminal record, if any;

(b)where paragraph (a) does not apply—

(i) a summary of the circumstances of the offence,

(ii) anyaccount given by the defendant in interview,whether contained in that summary or in another document,

(iii)any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,

(iv)the defendant’s criminal record, if any,

and

(v)any available statement of the effect of the offence on a victim, a victim’s family or others'.

(Our emphasis)

3.4 The case of R. v Stratford Justices Ex p. Imbert Queen's Bench Division [1999] 2 Cr. App. R. 276which held that there was no requirement for advance disclosure of witness statements in summary proceedings (and that the absence of advance disclosure did not usually render a trial unfair) is now inconsistent with later rules and the currentCrimPRPara 8.3 which specifically provides for the service of initial details of the prosecution caseincluding the service of ‘available statements’ under 8.3.(iii).

In this age of digitalisation we consider failure to disclose ‘available material’to be in breach of the CrimPR and the spirit thereof. If the police consider they have discharged their own evidential obligation by placing such evidence in the hands of the Prosecution lawyers there is no excuse whatsoever for this available material not to be served upon the court and defence.The Criminal Procedure Rule Committeewhich consists of 18 members including the DPP and is chaired by the Lord Chief Justice has laid down the content of the rules and reference to old decisions contradicting the modern rules is we submit a questionable practice especially where any principle contained or referred to therein is expressly covered by the new CrimPR. To be blunt old law and precedents must be read in the context of the modernCrimPRand the latter must prevail or there would be serious inconsistency between the new and old. There would be little point in issuing newCrimPRif where inconsistent with older judicial decisions they are rendered ineffective. A constant looking backward from the currentCrimPRto older inconstant Judicial comment will cause confusion and undermine the rules.The new CrimPR must surely prevail over inconsistent prior judicial comment for the sake of certainty unless or until any part of the CrimPR is expressly ruled by the senior courts to be wrong in which case the rules would need to be revised.

3.5 Under 8.3. (iii) It is for the prosecutor to consider whether the statement is ‘material to plea’, allocation, or sentence. However that does not mean the prosecution should be allowed to interpret what is ‘material’in a perverse manner without regard to their obligations under the overriding objectives. For example the statements sent to the prosecutor by the police/investigator upon which the charge is based and upon which the prosecution intend to rely must by any objective standard be:

a) Material and

b) Available.

3.6 InR. v DPP Ex p. Lee[1999] 2 All E.R. 737 it was recognised that prosecutors should keep the need for disclosure under review even before the duties imposed by the CPIA take effect. What might need to be disclosed is material which, for example, could assist the defence in applying for bail, making an early application to stay proceedings, or locating witnesses whose memory might fade, such as eyewitnesses. In DPP v Ara[2002] 1 W.L.R. 815 the police were held to be under a duty to disclose to the defendant's solicitor material which might assist him in advising his client whether or not to accept a caution. This obligation arises at a point prior to the need to consider serving a defence case statement triggering secondary disclosure. That obligation we submit has even more force now we have in force CrimPR 8.3 (III).

3.7This prosecution need to review,as describedin R. v DPP Ex p. Lee,the disclosure prior to ‘the duties imposed by the CPIA (do) take effect’we submit must also apply to and reflect the newCrimPR8.3 (III) duty to provide’ initial details of the prosecution case’. We today put the Prosecution on notice that we ask them to comply with that duty and serve missing evidence which must be clearly material given the inadequacy of the information so far served.

3.8 The court in R v Calderdale Justices (on the application of Donahue) 18 October 2000 held that the magistrates had erred in refusing the defendant's request for adjournment when a video of the incident had not been given to the defendants. The purpose of the prosecution disclosing such information was to enable the defendant to make an informed choice as to his plea and mode of trial. The Crown conceded that a video was a 'document, for the purpose of the relevant rule.

In R (on the application of DPP) v Croydon Magistrates Court (2001) the court did not follow Calderdale but held that 'DNA profiling' as referred to in the case summary did not constitute a 'document' which the prosecution were required to serve.

3.9 We therefore submit that where other evidence and or statements can be seen from the circumstances of this case to beclearly availableand or obtainable whether in digital form or otherwise then under 8.3.(iii) they should be served today or court should consider adjourning the case to another date to enable the Crown to comply.

3.10We trust the court will accept our respectful submission that an advisory note to Magistrates or local guidance or advice in any form may be given but cannot overrule theCrimPRor the court’s duty to enforce them nor can the burden of proof be reversed for administrative convenience and any suchadvice can only be relevant insofar as it is compatible with the rules thathave a statutory underpinning and therefore represent the will of Parliament.

4. Even before the new 2015 CrimPR, the Magistrates’ Court Disclosure Review May 2014 conducted by the Senior District Judge (Chief Magistrate), Judge Riddle and His Honour Judge Kinch QC, referred to the problem of defective disclosure of evidence at paragraph 103:

‘Failure to engage with the prosecution and court sufficiently at the first hearing was a complaint raised by a number of those whom we consulted. It must, however, be conceded that this is frequently due to them having insufficient papers at this stage and thus being unable to take instructions.’

This is one of those occasions.Further in Para 104

‘However, the extent to which the case can be fully case managed depends on the CPS providing sufficient information. Thus the CPS should provide the papers and the court must ensure that the case is fully managed, subject to limitations in paperwork.’

The information provided we submit is insufficient to case manage fully as the material required byCrimPRPara 8.3 referred to in 3 above herein is lacking and as such the Defence cannot assist with identifying the issues in the case.

5. The Parties are required underCrimPR3.3 to actively assist the Court in fulfilling its duty. A failure to provide the material provided for underCrimPR8.3 makes it impossible for the parties to assist with issues, witnesses etc and as such makes it impossible to assist case management. Thisfailure by the Crown is running against the very principles and purpose of the Rules.

6. The defence simply ask for the CrimPR’s to be properly enforced.

7. Part 8 of theCrimPRdoes not allow late compliance with the prosecution service of IDPC) obligationsor provide the Court with discretion to allow variation of time for the primary Initial details upon which the Prosecution intend to rely to be served. The prosecution has failed to comply with their duty and it is for them to remedy this failure not for the defence to be placed under pressure to cope with the prosecution failure and breach. The rules do permit adjournments however to remedy this under Part 3 of theCrimPR(see below)

8. The Magistrates’ Court Disclosure Review May 2014 conducted by the Senior District Judge (Chief Magistrate), Judge Riddle and His Honour Judge Kinch QC at paragraph 91 says.

‘With the digitalisation of case files, there are strict time frames within which the police must send electronic files to the CPS after charge; the CPS must then review them and prepare and serve the initial details of the prosecution case (IDPC) on the court and defence in advance of the first hearing.

We understand that all too often this material is served on the day of the hearing, which is unhelpful. If the first hearing is to be effective, with the aim of achieving proper case management, details of the case should be available to the defence in advance of this date, save in unavoidable circumstances, such as overnight custody cases.’

The defence agree. We also point out that this should include ‘available statements’ as perCrimPR8.3 b) (iii), as per paragraph 3 above. If there was sufficient evidence for the prosecution to decide to prosecute the court is entitled and we respectfully submit should ask ‘where is that evidence and why has it not been disclosed to the defence in accordance with your duty under the rules?’

9. The recent Law Society practice note warned of the professional implications and dangers of advising clients without sight of adequate disclosure. See:. We respectfully submit that court should not place us in such difficulties in this case by insisting that we advise on a plea without the provision of adequate IDPC placing us in potential breach of our professional obligations to our client and the court placing itself, we submitas a participant,in the breach of theCRIMPR.

10. There is nothing in Part 8 that allows for the Parties to depart from the requirements underCrimPRPara 8.3 set out in this document above. The Rules do provide for variations of requirements elsewhere in theCrimPR– see for example: “Court’s power to vary requirements under this Part3.8.” etc. but there is no such provision in Part 8 dealing with IDPC This is a problem for the Prosecution and their failure to provide IDPC not a problem for the defence.

11. Note the words of Lord Wolf M.R. in R. v. Immigration Appeal Tribunal, ex p. Jeyeanthan; Ravichandran v. Secretary of State for the Home Department [2000] 1 W.L.R. 354 reproduced in Archbold 2016 Edition at paragraph 1-266:

“It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation”.

To insist upon the defendant entering a plea without advice and when starved of evidence which the prosecution are,under theCrimPRPara 8.3 required to provide,is something we submit the court should treat with ‘considerable reservation’as per Lord Wolf’s MR comments.

12. Due to poor quality of IDPC in this case it should be the Prosecution seeking to remedy this today or at some later date. The power to adjourn is provided for in the rules (see below).

13. Although the rules have been said by Lord Leveson to require a plea to be taken on every hearing if not already taken, the rules do provide for exceptional circumstances. The Court will note that rule 3.9 provides :

3.9.—(1) At every hearing, if a case cannot be concluded there and then the court must give

directions so that it can be concluded at the next hearing or as soon as possible after that.

(2) At every hearing the court must, where relevant―

(a) if the defendant is absent, decide whether to proceed nonetheless;

(b) take the defendant’s plea (unless already done) or if no plea can be taken then find out

whether the defendant is likely to plead guilty or not guilty;

(Emphasisadded)

From this the Court’s attention is drawn in particular to the following:

(i)The Rule envisages possible scenarios where a case must be adjourned (“if a case cannot be concluded” and “if no plea can be taken”)

(ii)The requirement at 3.9(2) is clearly intended to be a list of possible steps, not a check-list (they only apply “where relevant”)

(iii)In any event the Rule only requires an “indication” as to whether the defendant is “likely to plead guilty or not guilty” where a plea cannot be taken.

We submit that where the Initial details of the prosecution case areas inadequate as in this case that it is impossible to properly advise on plea that this is exactly the scenario envisaged by this rule.

14. The power to grant an adjournment is contained in rule 3.5:

“3.5.—(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any stepactively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.

(2)....

(f) fix, postpone, bring forward, extend, cancel or adjourn a hearing;

...

(6) If a party fails to comply with a rule or a direction, the court may—

(a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;

(b) exercise its powers to make a costs order; and

(c) impose such other sanction as may be appropriate.”

Thus a defendant in requesting an adjournment or pleading not guilty if it is refused, in the face of the Court or prosecution failure to comply with the rules, would be following legal advice based upon theCrimPRPara 8.3, theCrimPRPara 3.5 and the Law Society practice note.

15. 1 The Court is reminded of its obligations underCrimPR1.1 and 3.2:

CrimPRPR 1.—‘(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

Dealing with a criminal case justly includes―

(a) acquitting the innocent and convicting the guilty;

(b) dealing with the prosecution and the defence fairly;

(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(e) dealing with the case efficiently and expeditiously;

(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and

(g) dealing with the case in ways that take into account―

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases.’

15.2 Article 6(3) referred to in c) above provides:

‘Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’

15.3 We submit that it is clear that the incorporation of this reference in theCrimPRto Article 6 of the European Convention on Human Rights specifically dealing, as it does with ensuring that the defendant ‘understands and in detail, of the nature and cause of the accusation against him’must suggest there should be served adequateinitial details of the prosecution case (IDPC) to enable the provision of legal advice for the defendant to enter a plea on the charge. That is not the case here for reasons explained.