Appeal - Drug offences - Disclosure - Defendants charged with importing drugs

Prosecution Appeal; R v O and ­others: CA (Crim Div) (Lord Justice Stanley Burnton, Mr Justice Stadlen and Judge Morris QC (sitting as a judge of the Court of Appeal, Criminal Division): 8 December 2011

The defendants were charged with four counts of importing large quantities of cocaine, heroin and amphetamines.

At the first trial the judge stopped the case at the completion of the evidence on the grounds that unfairly prejudicial material had gone before the jury. At the second trial of the defendants, before the close of the prosecution case, the same judge made a terminating ruling staying the trial on the grounds that failures of disclosure by the prosecution had led to an abuse of process.

The failures of disclosure related to five items. The prosecution accepted that the documents in question should have been considered for disclosure and that they ought to have been disclosed, as they met the test for disclosure in that they ‘might reasonably be considered capable of assisting’ the defence. The prosecution applied for leave to appeal against the terminating ruling, pursuant to section 58 of the Criminal Justice Act 2003. Leave was granted.

The prosecution contended that the judge had wrongly stayed the trial in circumstances where the deficiency in disclosure had been corrected and where a thorough review of the unused material had been undertaken to ensure that there were no further examples where files had not been reviewed properly or at all. The appeal would be allowed.

The duty of disclosure was a continuing one. New and relevant material might come into existence after an aborted trial, or a review of disclosure might lead to additional disclosure. Issues to which material was relevant might emerge or become clearer after a first trial when the nature of the defence was clearer. However, orders for the entirety of case papers to be disclosed, when the point to be made from them was relatively circumscribed, were inappropriate.

Moreover, discrepancies in disclosure might be censured, but it did not follow that the trial should not continue. It was not unusual for late disclosure to take place during a trial. The question would then arise as to whether it could be coped with during the trial with or without an adjournment. It was for the judge to ensure that requests for disclosure were focused and not disproportionate. A judge should not make a terminating ruling unless it was established that the defendants would not have had a fair trial. Late disclosure should be considered (see [12], [60], [63] of the judgment).

In the instant case, there had been a serious failure on the part of the prosecution to disclose evidence. However, the judge’s ruling could not be supported. In a case such as the instant one, the disclosure duty of the prosecution might be, and had been, onerous. It had been for the judge to ensure that requests for disclosure were focused and not disproportionate. The judge had made unjustified criticisms of the prosecution. The inference of wholesale failure in disclosure was not justified by the relatively few instances to which the judge had referred. The judge’s rulings had been long on generalisations and short on analysis.

Given that there had been no allegation of bad faith on the part of the prosecution, and in particular prosecution counsel, the judge should not have made her ruling unless it had been established that the defendants would not have a fair trial. Late disclosure should have been considered on that basis. Late disclosure was not the same as non-disclosure. It was not unusual for late disclosure to take place during a trial, and a question would then arise whether it could be coped with during the trial.

There was nothing in the instant case to indicate that the late disclosure could not have been accommodated during the trial. The charges facing the defendants were very serious and, in all the circumstances, there was nothing to justify a ruling to discharge the jury and to make a terminating ruling (see [18], [60]-[63] of the judgment). A fresh trial would be ordered before a different judge (see [65] of the judgment).

Per curiam: What this case called for was active case management, and where grounds for further disclosure were established, focused requests and focused orders for disclosure. There is nothing to indicate that any such orders would have been disregarded by the prosecution (see [64] of the judgment).

Mark Tomassi and Roderick James (instructed by Blackford) for O; M McCarthy and K Missouri for H; Thomas Buxton for M; C Conway and N Ornstin for B; P Phillips and Julia Flannigan for S; Carey Johnston QC and Brendan Morris (instructed by the Crown Prosecution Service) for the Crown.