Diagnosis on third-party disclosure


This month's column considers recent changes to disclosure of third-party material in Crown Court proceedings



Q I have practised mostly in the magistrates' court, where third-party disclosure issues do not often arise. What is different in the Crown Court?

A The legislation is the same - the Criminal Procedure and Investigations Act 1996 (CPIA). However, section 5 obliges the defendant to serve a defence statement in the Crown Court within 14 days of the Crown purporting to comply with its section 3 initial disclosure obligations.



While the magistrates' court may hold a pre-trial review, the bench will not have read the witness statements and is unlikely to have much legal knowledge, district judges excepted. This means such a hearing is conducted with an impassive audience. In the Crown Court, the equivalent plea and case management hearing is conducted by a judge who is or has been a practitioner. He/she has had the chance to read the statements, see the exhibits and read the defence statement, and will be conversant with the issues in the case.



The judge will take the defence statement as a starting point to decide what the

issues of the case really are and why third-party material

is relevant.



Judges are interventionist and often robust in their approach to good case management. That means they ask awkward questions

of parties who have not complied with their Criminal Procedure Rules (CrPR) or disclosure obligations and know when they are not getting a sensible or accurate answer. Moreover, they tend to persist in questioning until they get one. Advocates who bluster or offer excuses will lose the court's respect - which is very valuable currency in the higher courts.



Q Crown Courts often have practice directions and protocols. Are there any

in this field?

A Yes. All solicitor-advocates need to be familiar with Disclosure - a protocol for the control and management of unused material in the Crown Court (obtainable from www.dca.gov.uk). It should also be noted that third parties have human rights, including the right to be heard (see section 16 of the CPIA) and judges will be alert to those considerations, in particular the right to respect for privacy under article 8 of the European Convention on Human Rights.



Q I want to see the victim's medical records - my client says she is exaggerating her injuries. We have had medical evidence served on us, but not the notes.

A Paragraphs 52-62 of the protocol govern the release of third-party material. The Crown is not obliged to disclose material it does not have in its possession in connection with the case against your client, nor material not inspected in connection with the case. Unless a prosecutor reasonably suspects that the material is likely to be undermining or assisting, he need not seek disclosure of it, R v Alibhai & others [2004] EWCA Crim 681. So, if the material is not in the hands of the Crown, it will not be disclosable unless the prosecutor seeks a third-party order himself. This s/he will not do if there are no grounds to believe that it contains anything disclosable to the defence.



With medical records, the same applies - if there is nothing likely to be undermining or assisting, they will not be disclosable. It should be noted that victims and witnesses do not forfeit their right to privacy just because they have become drawn into a Crown Court trial (see paragraph 62).



Q I act for X, who faces historic sex-abuse allegations. We want to see the victims' educational and social services records. Can we?

A 'Wanting to see' is not the test for disclosure. The test is that set out at sections 3 and 6 of the CPIA. Bulk disclosure will not be given, even if the test under the CPIA is satisfied.

You need to specify which documents you want and why you believe they come within the CPIA. An open-ended

trawl will not be permitted.



Q I recently sought third-party disclosure but it was refused, as the judge said what was in the social services records was not admissible. Is such an order valid?

A Yes. Disclosure will not be ordered unless the material would be 'immediately admissible' in evidence - see paragraph 60 of the protocol and R v Reading JJ ex parte Berkshire County Council [1996] 1 Cr App R 239.



Q Does chapter 11 of the Criminal Justice Act 2003 (admissibility of hearsay with leave of the court) make a difference to the test for disclosability?

A Apparently not, so long as 'immediately admissible' remains the guiding principle.



Q We are seeking disclosure of records from a company that is the complainant in a criminal trial. It will not disclose, citing 'commercial sensitivity'. What can we do?

A The same argument was run by Microsoft in Alibhai. Commercial confidentiality is a consideration under article 8, but secondary to the test under the CPIA and the defendant's right to a fair trial. A court should always order disclosure if it tends to show the accused is innocent, otherwise there is a risk of a miscarriage of justice (see R v Keane 99 Cr App R 1).



Q The local authority has said it will seek its costs against my firm if our application is not successful. But my client is publicly funded. What will happen?

A The local authority is entitled to its costs, and costs here follow the event. The protocol makes it clear that inappropriate applications will be penalised in wasted costs (paragraph 59), as well as having to pay the opponent's costs.



Q When should a third-party application be made?

A As soon as the necessity of making it becomes apparent. The protocol deplores 'the objectionable practice of defence applications being made in the few days before trial' (paragraph 59). Taking late steps to apply often jeopardises trial dates and defeats the aim of effective trial management.



Q Are there any other protocols etc that I should be aware of?

A Yes. The Attorney-General's Guidelines on Disclosure (April 2005) are important. They can be downloaded from www.lslo.gov.uk and cut and pasted into a skeleton argument. Rule 25 of the CrPR governs the mechanics of any third-party public interest immunity application that is made by issuing a summons under section 2 (personal attendance of a witness) or section 4 (for production of documents) of the Criminal Procedure (Attendance of Witnesses) Act 1965. The contents of a summons are covered by rule 28 of the CPR.



This column was prepared by the Solicitors Association of Higher Court Advocates (SAHCA). For details of SAHCA, membership enquiries or advocacy questions, contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, e-mail: hilary@hradmin.co.uk