MO, & Ors, R. v [2011] EWCA Crim 2854

[2011] EWCA Crim 2854Case No 201103688 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
HER HONOUR JUDGE DOWNING
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2011
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE STADLENHIS HONOUR JUDGE MORRIS QC(sitting as a Judge of the Court of Appeal Criminal Division)
Between
THE QUEENAppellantMO, CH, JM, DB AND HSRespondents
APPLICATION BY THE PROSECUTION FOR LEAVE TO APPEAL UNDER SECTION 58 OF THE CRIMINAL JUSTICE ACT 2003
Carey Johnston QC (who did not appear below) and Brendan Morris (instructed by the CPS) for AppellantMark Tomassi and Roderick James for MOM McCarthy and K Missouri for CHT Buxton for JMC Conway and N Ornstin for DBP Phillips and J Flannigan for HSHearing Hearing date: 16 November 2011
Approved Judgment

Introduction

[1]On 5 July 2011 Her Honour Judge Downing, sitting in Croydon Crown Court, made a terminating ruling staying the trial of the respondents, on the ground that failures of disclosure by the prosecution had led to an abuse of the process. The prosecution applied for leave to appeal against her ruling and, if leave was granted, for her ruling to be set aside and a fresh trial ordered. The application was heard by us on 16 November 2011.[2]At the beginning of the hearing of the prosecution application, we said we would hear the full submissions of counsel on the application for leave and the substantive appeal if leave was granted, i.e., we would treat the hearing as a rolled-up hearing of application and appeal. It was accepted that the prosecution had satisfied the procedural requirements in section 58 of the Criminal Justice Act 2003. All of the respondents opposed the prosecution application and appeal.[3]Having heard the submissions of counsel for the prosecution and each of the respondents, we announced our decision to give leave and to allow the appeal. We made an order for a fresh trial pursuant to section 61(4)(b) of the Criminal Justice Act 2003. We stated that we would give our reasons in writing, and we now do so.

The prosecution

[4]The respondents were tried on an indictment containing 4 counts charging that they were knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, namely class A and class B drugs. More particularly, they were charged with being concerned in the importation of very large quantities of cocaine, heroin and amphetamines.[5]The prosecution case on count 1 is that MO, CH and JM, together with DB, an employee of freight forwarding company Alpha Freight, arranged between January and July 2008 26 importations of cheap goods using CH’s company Minerals of Europe (MOE), which apparently has an address in the Czech Republic. Cheap goods were exported and re-exported and moved between various warehouses in the UK, the premises of Alpha Freight, a warehouse company in Ipswich (TMH) and two warehouses in Holland. These movements were to give the impression of legitimate trade.[6]The last of the importations came to the UK on 23July 2008 at the port of Harwich. When searched it was found to contain 16 kg of powder (later found to be 9.037 kg of cocaine) hidden in boxes of shoes. The defendants were later arrested.[7]It was alleged that MO was the main organiser in the UK and that he instructed CH, JM and DB to organise the 26 importations. CH was MO’s right hand man and dealt with the set up of the companies, including MOE and false e-mail addresses that the group used to hide behind. JM was MO’s representative in Holland organising the warehouses and looking after MOE’s interests. DB was responsible for arranging all 26 movements for MOE.[8]On Counts 2, 3 and 4, the prosecution case was that in November 2008 MO, CH, JM and DB joined with HS to organise a second series of importations, one of which on 28 November contained cocaine, heroin and amphetamine sulphate. DB was responsible for introducing HS to the others. CH hijacked the name of a genuine company based in Estonia called KSI Invest in order to carry out the importations in November 2008. He also used false names and e-mail addresses to communicate with HS. The drugs in the importation were recovered within a load of photocopying paper and reject vacuum cleaner parts. In this operation HS provided logistics for the group for £100 per movement.[9]The defences of the respondents included allegations that MOE had been “hijacked” by others. By hijacked is meant that persons who are not authorised by those traders illicitly use their names for their illegal purposes. The impression is given that those with actual authority to act on behalf of these traders are arranging the transactions in question, when in fact the unauthorised third parties are responsible for them. Thus documents that suggest that other persons associated with MOE or Alpha Freight hijacked other companies may advance the respondents’ defences.[10]In addition, there are cut-throat defences. Documents suggesting that co-defendants have been involved in illegal transactions or have hijacked other companies may assist a defendant to show that he was duped by a co-defendant or defendants, or by others, and acted innocently.

The trial

[11]This was the second trial of these respondents on these charges. It began on 6 June 2011. The first trial had been stopped by the same judge after completion of the evidence, on the basis that unfairly prejudicial material had gone before the jury.[12]The offences with which the respondents are charged are very serious indeed. The fact that the trial was a second trial was, of course, relevant to the questions of disclosure. One might have expected that everything that had to be disclosed had been disclosed in the first trial. On the other hand, the duty of disclosure is a continuing one, and new relevant material may come into existence after an aborted trial, or a review of disclosure may lead to additional disclosure. In addition, the nature of the defences of the respondents became clearer during the first trial, and therefore the issues to which material was relevant emerged or became clearer.[13]When the judge made her ruling, the prosecution had not yet closed their case. This was relevant to the question whether any late disclosure, whether or not due to a previous failure adequately to fulfil the prosecution’s duty of disclosure, prevented the trial from being fair.[14]The respondents’ complaints of failures of disclosure that were the immediate cause of the judge’s ruling related to five items, conveniently referred to as Item 212, Operation Galling, Item 793/Durtnell material, Item 795/Operation Wapiti and Krom and the Ayers/Alpha cigarette importation material. These complaints were not the first that the respondents had made: far from it. But it is necessary to consider these items before addressing the question whether the judge’s ruling was based on correct factual findings, and if so, whether her ruling was one that was sensibly open to her.

Item 212

[15]Item 212 in the police schedule of non-sensitive unused material (“the schedule”) was described as “Job number AI3177 for Minerals of Europe dated 03/06/08 (PA/2/07/05/2009)”. It was marked as irrelevant. The reviewing officer’s signature was dated 11 February 2010. This exhibit was produced by Peter Ayers, Managing Director of Alpha in a witness statement dated 07/05/09 in which it is referred to as job number A13177 with a reference to MOE. Peter Ayers was a suspect in the case, arrested, interviewed but not charged. The witness statement was not served in evidence and formed “material” placed on the unused schedule. It was provided by way of disclosure to the defence. The exhibit PA/2/07/05/2009 was a file. The cover sheet of the file had been copied and provided to the defence by way of disclosure. The copy had been made by photocopying the document through the exhibit bag rather than by opening the exhibit bag. As a result of a request for disclosure on 15th June 2011, the bag was opened the same day by the exhibits officer (N. Tonks) and it was copied for disclosure to the defence. This was the first time the exhibit bag had been opened since the exhibits officer had sealed it on 8th May 2009 (day after the Ayers witness statement). It was then that it was discovered the file contained 4 sheets of paper that had not been specifically reviewed by the disclosure officer as they should have been.[16]The four documents within the file show that DB of Alpha was arranging the collection and shipment of goods for MOE from a warehouse in Holland to an address in Liverpool. They included an e-mail to him, purportedly from MOE in the name of T. Roben. During the trial, evidence had been called from a Mr. Hughes (of Advance Transport, the company used by Alpha to collect and deliver the load), who had produced an e-mail from Alpha/Browne. The Alpha/Browne copy of that e-mail was within the file. Submissions on behalf of CH were to the effect that this document now cast the e-mail produced in evidence by Hughes in an entirely different light and would enable those whose defence was “hijack” to advance the proposition that the documents in the file had been falsified. There was also an e-mail which was from “T. Roben” of MOE to DB.[17]The prosecution accepted that these documents should not only have been properly considered by the disclosure officer but that they should have been disclosed as meeting the disclosure test. The material “might reasonably be considered capable of assisting” the defence of e.g. DB (innocent dupe) to show that the second respondent, CH (who was engaged in a cut-throat defence together with MO and JM which involved the suggestion that Browne/Alpha had been involved in hijacking and misusing the MOE name to import the drugs) was connected to MOE and this shipment as there were documents on the second respondent, Hill’s computer suggesting that he used the alias “T. Roben”.[18]This was a serious failure on the part of the prosecution. The prosecution stated that the deficiency in disclosure had been corrected and a thorough review of the unused material undertaken to ensure that there were no other similar examples where files had not been reviewed either properly, or at all. No such instances were uncovered.[19]The prosecution contend that the judge wrongly concluded that there had been a conscious decision to disclosure only one of the five pieces of paper making up the file.[20]The prosecution submitted that the consequences of their failure timeously to disclose Item 212 would have been the potential recall of the witness Hughes. All respondents who wished to produce the documents would have been able to do so. MO, CH and JM would have been able to cross examine DB on the file contents and/or to comment upon them to the jury and DB would have been able to use them as further confirmation that he was acting on instructions from those who ran MOE and, in this instance, draw attention to the link to CH. Any issues arising out of the late disclosure could properly have been dealt with during the trial process itself. There was, it was submitted, no prejudice suffered by any respondent by reason of this late disclosure.

Operation Galling

[21]Operation Galling related to the importation of cannabis concealed in a load collected by Europa Freight from a warehouse in Holland from a company called SG1 Fieldfayre. Europa Freight performed a similar role in relation to the importation as Alpha Freight had done in the instant case. No one from Europa Freight was implicated in the Operation Galling offence. The modus operandi was very similar to that in the instant case and the material tended to show that this importation was linked to the first three respondents, using the CH’s company, SG1 Fieldfayre (in place of MOE) and the same Dutch warehouse used by MOE. The importation containing the concealed cannabis was preceded by a number of otherwise legitimate importations to provide an air of legitimacy to the importations.[22]The prosecution accept that Operation Galling material passed the disclosure test as it might reasonably be considered capable of assisting DB, whose defence was that he was an innocent dupe used by others including MO, CH and JM, to apply to adduce the material as evidence of their bad character. The material would enable him to show that the freight forwarders in this series of importations, Europa Freight, who were in a similar position to his in relation to the MOE importations, had been innocent dupes used by MO, CH and JM, and would undermine the assertions in their defence that he had been or might have been involved in hijacking the MOE name and misusing it to import drugs. It was for that reason that Item 796 and the case summary were disclosed in May 2011.[23]The prosecution assert that it had not been apparent to them until some way into the second trial that DB intended to present a cut-throat defence vis-à-vis MO, CH and JM, It was only on 14June, when a request for further disclosure regarding Operation Galling was made on behalf of DB, that it appeared to the prosecution that DB would do so. Until then, the prosecution assumed that the defences in the second trial would be those advanced during the first trial. DB’s defence had been conducted in such a way that it had appeared he was reluctant, or unwilling, to do anything that might have had a detrimental effect on the cases of the first three respondents. DB did not give evidence in that trial.[24]Similarly, during the first trial MO, CH and JM had not mounted an open-cut throat attack upon DB. However, in the second trial, as a result of their joint s.8 applications it became clear that their defences involved a positive assertion that DB was involved in the hijacking of MOE and the subsequent importations The potential for DB to run a cut-throat defence in response was then seen by the prosecution as a distinct possibility.[25]On behalf of JM, it is contended that it should have been obvious to the prosecution that any material that incriminated DB could be helpful to his case. We agree.[26]The first disclosure by the prosecution in relation to Operation Galling was on 19 May 2011, as item 796 in the Schedule. The description of the item was as follows:
“MG5 Case summary from SOCA Op GALLING. Barry MacKAY, Jason MacKAY, Grant SINCLAIR and Karl AUSTIN were jointly charged with an offence of being concerned in the Fraudulent Evasion of Restriction in respect of the Importation of Class C Controlled Drugs, namely Cannabis. On Saturday 25th October 2008, the drugs were imported from a warehouse at Slotenmakerstraat 7, Naaldwijk, Holland, from a company called Fieldfare SG1. The drugs were concealed in pallets of a variety of low value goods including ceramic, candles, children’s boots and other sundries. The drugs were delivered by Europa Freight to the Bungalow, Broadstreet Common, Peterstone, Cardiff CF3 2TN, where they were separated from their coverload, and distributed by Austin to the other 3. This is the same address that received the last minerals of Europe shipment. ”
[27]The possible links to the present case were evident from that description: as mentioned above, SG1 Fieldfayre was CH’s company, and the Dutch warehouse used was that used in the instant case.[28]The first request for Operation Galling material in the second trial was in the joint section 8 application made by MO, CH and JM dated 6 June 2011, received by the prosecution the following day, seeking the indictment, the outcome of the proceedings, observation logs, videos and photographs of the suspects and all documentation relating to the transport of the consignment. No request for further disclosure in relation to this material was then made on behalf of DB or HS. Application to the judge was made on behalf of MO, CH and JM before the prosecution had responded to their written request. On 8 June, the judge ordered disclosure of the entirety of the case papers of Operation Galling, some 3,500 pages, plus the case papers in Operation Wapiti (also 3,500 pages) and R v Ward (200 pages), to which we refer below: in all over 7,000 pages. On the following day, the judge expressed the hope that defence counsel would focus their requests for disclosure of these case papers, but she did not formally modify the order she had made for their entire disclosure.[29]The prosecution assert that the potential assistance of the Operation Galling material to the HS became apparent only after receipt of his request for disclosure dated 20 June 2011 in which its potential use was set out in detail. The terms of this request do not suggest that the relevance of this material to his case had previously been obvious, and it is significant that the document was served “to complement” his previous defence case statements. The prosecution responded in writing.[30]The judge severely criticised the prosecution for their failure to disclose clearly that there had been 18 “innocent” consignments before the importation of drugs (i.e., a similar modusoperandi to that in the instant case) and their failure to identify the links with MO, CH and JM. However, the fact remains that the disclosure that was made was sufficient for counsel for DB to formulate, by 27 June 2011, a detailed written application based on that disclosure to adduce evidence of the bad character of MO and CH. In fact, Mr Morris had alerted counsel for DB and HS to the relevance of the Operation Galling material to their cases before 14 June.

Item 793: R. v. Ward – Durtnell material

[31]Entries 793 and 794 on the Schedule, sent by letter on 26 April 2011 to all the respondents were as follows:
“Case summary (MG5) from City of London Police relating to the investigation of a £600,000 fraud/theft from Museum of London, and the resulting purchase of Nokia mobile phones. The transport of the phones was arranged by Daniel BROWNE of Alpha International Freight forwarders on 20th June 2008. The accused for this offence is Mr Paul WARD. Paul WARD also owned JER Trading, 34, Heathfield, Stacey Bushes, Milton Keynes. JER trading is believed to have received part of a Minerals of Europe shipment on 1st July 2008. The shipment is believed to be 28 pallets of wine or bottles. Statement from Daniel BROWNE on 04/07/2008 in relation to his involvement in a City of London investigation into a fraud and the movement of mobile phones that were purchased with the criminal proceeds.”
These items were marked as irrelevant and therefore not disclosable (“DNUPCOADC”: “Does Not Undermine Prosecution Case Or Assist Defence Case”).[32]The case summary to which this item referred was served on all respondents on 10June 2011 pursuant to the judge’s order made on 8 June, when she ordered all the case papers to be disclosed – some 3500 pages.[33]One of the lines of enquiry followed after the first trial of this prosecution related to the company that had received part of the load in one of the importations that preceded the importation of drugs in Count 2. The prosecution discovered that the recipient company was JER Trading Ltd and that a man called Ward was connected to that company. Evidence in the instant case showed that both MO and JM had connections to JER Trading and to the movement of those goods. On 26June 2008 MO received by text the JER company address and telephone number, and on 30 June 2008 he sent these details by text to JM an hour before the goods arrived at JER Trading.[34]Further checks on Ward showed that he was a suspect in a City of London Police fraud investigation. The prosecution made enquiries of the City of London Police which revealed an investigation in which Ward and others were suspected of involvement in a long firm fraud and a fraud/theft of monies from the Museum of London. The Museum of London had been duped into paying funds properly due to a company called R. Durtnell & Sons Ltd into a bank account falsely set up in the same name. Those funds had been laundered into the bank account of a company associated with Ward (Cygen Ltd) and then used to purchase mobile phones. The connection or link to the instant case was that the transportation of the mobile phones had been arranged through Alpha Freight by DB. He had provided a witness statement to the City of London Police and was a witness in the case.[35]The connection to DB resulted in the disclosure officer obtaining the case summary and a copy of DB’s witness statement in that case and recording them as items 793 and 794. The description of Item 793 highlighted the link to DB. It did not, however, indicate that the theft/fraud on the Museum of London had involved identity theft of the Durtnell name. That aspect of the Ward case was only evident from the case summary itself (not at that time provided to the defence). The entry at 793 also highlighted the connection between Ward and JER Trading Ltd which was not, in fact, part of the Ward case but information obtained as a result of the ongoing enquiries and thus properly recorded on the Schedule.[36]In relation to the Ward-Durtnell material, the submission of MO, CH and JM was that evidence of identity theft unconnected to them but connected to DB that involved the transportation of illegal goods “might reasonably be considered capable of assisting” their defence of “hijack” of MOE. It supported the suggestion that those at Alpha, including DB, had been responsible for the misuse of the company name. This material could assist the defence of the MO, CH and JM by undermining DB’s case that he acted on their instructions. It was also contended that any information indicating that someone connected to JER might have been involved in other illegal activity linked to Alpha without any connection to them would assist their defence of “hijack”.[37]The prosecution submitted that the initial disclosure decision had been a reasonable one. JER Trading and Ward had not featured in any of the other 25 importations in evidence in the instant case, nor in any other part of it; there were no known telephone connections between Ward and Martin Van Der Ven or Peter Ayers (Alpha), the people it was contended by the first three respondents who could have hijacked and misused MOE; there were no connections between Ward and any of the logistics companies in the instant case. Save for commonality between Ward’s use of the Durtnell identity and the alleged hijacking by persons unknown of MOE, the cases were factually different. The fraud had no connection to drugs, to the movements of drugs, to warehouses in Holland, to travel to Holland or any connection to the logistics companies used in the 26 importations. The only connection was to the fourth respondent, DB in relation to the shipment of the phones which in themselves represented criminal proceeds at several removes from the original fraud/theft. There was no other evidence of any connection between Alpha/DB and Ward or the bogus Durtnell. His connection had been clearly and accurately described in the unused schedule entries, as had the fact that he had provided a witness statement.[38]We consider that once the prosecution knew that the case of any of the defendants was that DB was solely responsible for the offences, the material within these items showing that he had been involved was disclosable. However, the connection was not obvious, for the reasons put forward by the prosecution. The fraud involved was not “hijacking” as it was said to be in the present case, but rather identity fraud: opening a bank account in the name of a company without its authority and diverting payments due to that company to the false bank account.[39]Furthermore, it was unnecessary to order disclosure of the entirety of the case papers, a wholly disproportionate direction creating much work and incurring substantial costs. Indeed, it might have been possible for an agreement to have been made as to the salient facts.[40]In any event, however, all the material had been disclosed by the time the judge made her order under appeal.

Item 795 : Op Wapiti and Krom-RK/5

[41]Enquiries after the first trial led the police to take a witness statement from Ronald Krom. The statement, dated 9 November 2010, was served in evidence on 20December 2010. Krom was employed by Abacus International, a freight forwarding company used by DB of Alpha to move goods which were related to importations in evidence in the case. One was from Belgium to the Dutch warehouse used by MOE at Slotenmakerstraat (movement 3 of 26). Krom produced a number of exhibits RK/1-to 8.[42]RK/5 was a Consignment Movement Record (CMR) found within a file relating to a different job (RK/4). It was fully described in the witness statement as relating to :
“Movement of 4 pallets to Extra Logistics NV-SA Cyriel Bussystraat 1 B -1800 vilvoorde from AMG Warehousing, Northwield Airfield North Wield Basset Essex. The CMR shows the collection of 4 pallets on the 12th February and delivery on the 13th February 2008. It also shows handwriting in box 4 which shows Minerals of Europe Slotenmakerstraat 9 Naaldwijk.”
[43]Exhibit RK/5 was placed on the unused schedule as Entry 792. The description of the document did not mention that the name “MOE” and the warehouse had been handwritten on the document itself. However, the reference to MOE was explicit. We do not consider that there was any failure of disclosure in relation to RK/5, which in any event had been disclosed to all parties on 24March 2011.[44]Further police enquiries established that the consignment had been sent by Ashwillow Ltd and was paid for by Simon Eagle. Eagle was one of seven suspects alleged to have conspired to cheat the HMRC of duty payable on tobacco products. This investigation was Operation Wapiti. The allegation against Eagle was that he had allowed his bank account to be used by others in order to channel the funds used to pay for the importation of tobacco from Bulgaria to the UK, where it was rebranded. He was acquitted at trial. The company Ashwillow Ltd did not feature in Op. Wapiti.[45]The case summary in Operation Wapiti was placed on an updated unused schedule as Item 795 and the unused schedule was sent by letter on 26April 2011 to all respondents. Item 795 set out the following information:
“HMRC Op Wapiti case summary dated 20th July 2009. This document details the case against an OCG that arranged for the production of counterfeit tobacco products. The investigation ran between 2006 to July 2008. During this time the OCG purchased tobacco from Bulgaria, transported it to the UK and produced fake branded hand rolling tobacco pouches. This OCG was appeared to be funded by a company called Crossways Investments. This company was owned by Simon Peter Eagle. Simon Eagle was arrested and charged with excise fraud offences. He was acquitted at trial at Norwich Crown Court. Simon Eagle is associated with a company called Ashwillow which sent 4 pallets of photographic equipment to Belgium on 13/02/2008. 3 months later this equipment was sent to a warehouse associated with Minerals of Europe. ”
[46]The description of the item made clear that the link between Op. Wapiti and the instant case was Eagle’s association with Ashwillow Ltd and a consignment of photographic equipment which had been sent from Essex to Belgium, and then sent on to a warehouse associated with MOE. Simon Eagle had no known connection to any of the other logistic companies in the instant case and did not feature in any of the other 25 movements or any other part of the case. There was no known connection between Simon Eagle, and Peter Ayers or Martin Van Der Ven, the men who it was being suggested by the first three respondents might have been responsible for the hijacking and misuse of MOE to import drugs.[47]The case summary (Item 793) was disclosed to all parties on 10th June 2011 pursuant to an order of the judge. It did not show the connection between Eagle and Ashwillow Ltd. It was only the actual entry on the unused schedule at item 795 that would alert the defence to the connection between Eagle/Ashwillow and MOE. The prosecution point out that the Operation Wapiti case papers would not have revealed this connection as Ashwillow Ltd was unconnected to the alleged offence of which Eagle was acquitted. Furthermore, that offence was wholly different from those alleged in the present case: it did not involve the importation of class A drugs and there were no other known connections.[48]The Judge ordered disclosure of all the Operation Wapiti case papers. This too would appear to have been an excessive, disproportionate order. In fact, the prosecution had responded to requests for disclosure regarding this material.[49]We do not consider that the prosecution’s conduct in relation to the Operation Wapiti papers should have given rise to any justifiable complaint on the part of the respondents.[50]In her decision, the judge referred to “the Krom material” without identifying any findings she had made or conclusions she had reached in relation to it. RK/5 had been served on all parties on the 24March 2011. It was recorded on the unused schedule dated 11April 2011 as item 792. The updated unused schedule was provided to the defence under cover of a letter dated 26th April 2011. It is clear that the document had reached the defence as counsel for CH intended to use it in cross examination of Mr Krom.[51]We do not see that the prosecution conduct in relation to the Krom material could have justified the judge’s conclusions.

The Ayers/Alpha cigarette importation material

[52]The existence of this material was disclosed to the defence during the second trial.[53]The prosecution considered Peter Ayers to be a suspect in the instant case. The searches for disclosure purposes had used his full name rather than his surname alone. The importation of cigarettes seized by Customs in 2007 was not identified during these searches. During the trial, as a result of a request on behalf of HS for details of other suspected or known illegal loads facilitated by Alpha, a further search of the systems was made which revealed that Peter Ayers’ wife, Yvonne Ayers, was connected to this importation through Alpha in that she was named in clearing documents. These facts were disclosed to the respondents by email on 15 June 2011. She was not the only party connected to the importation. She had no convictions and the prosecution did not consider her to be a suspect in the instant case.[54]The judge made no specific findings in relation to the disclosure of this material. While the search for material relating to Ayers was deficient, we do not see how it could support a finding of wholesale disregard of the duty of disclosure.

Missing material

[55]The learned trial Judge as various points in her ruling mentioned concerns in relation to unused material that might have been missing, lost, discarded or no longer available. At page 11B of the transcript of her ruling on 5 July 2011 she referred to “genuine fears that …. material which might have been available is not and may never be complete”. On the same page she referred to “circumstances where age may have staled the evidence or where known material has been lost”. At page 13 she said:
“Who knows what documents have long since been discarded and lost.”
[56]The prosecution submit that there was no evidence before the judge that any document or any category of document was missing, had been lost or discarded. They say that there was no evidence that any category of unused material that might no longer be available would have been available when the unused schedule and any updated unused schedule had been compiled and provided to the respondents.[57]If the judge in her ruling wished to rely on a finding that material had been lost or discarded or ceased to be available for any reason, it was incumbent on her to identify the material in question and the grounds for her finding. As it is, we have none, and it follows that we cannot accept that she had a justifiable concern that there had been any such material.

The voir dire

[58]On 23 June 2011 the judge directed a voir dire on the issue of disclosure, to be held on 28 June. She expected counsel for the prosecution to call the disclosure officer, at least, but she did not direct that he give evidence. Counsel declined to call evidence. While the prosecution were entitled so to do, this was, as was pointed out during the hearing of this appeal, a tactically unwise decision. However, it did not involve the flouting of an order of the judge, As the judge seems to have appreciated, it could not of itself give rise to a finding that there had been a wholesale failure in the process of disclosure. Whether there had been had to be examined on the basis of identified failures, and their scope, the importance of the material in question, and the effect on the trial of the respondents considered. The judge was told by prosecution counsel that there had been a review of unused material, in which counsel had been involved, and that no other errors in disclosure had been found. There was no reason to doubt that assurance.

Our conclusions

[59]The respondents rightly emphasise that the judge, having presided over the first trial as well as the trial in question, was in the best position to assess whether the prosecution had complied or were complying with their duty of disclosure, and the extent and significance of their failures. They also, rightly, point out that her direction was made in the exercise of a discretion with which this Court may interfere only if it was exercised on a mistaken factual basis or discloses an error of law or of principle. We fully accept these submissions, and we also accept that this Court must be cautious before interfering with such a terminating ruling.[60]Nonetheless, we have no doubt that the judge’s ruling could not be supported. In a case such as the present, the disclosure duty of the prosecution may be, and was in this case, onerous. It is for the judge to ensure that requests for disclosure are focused and not disproportionate. Orders for the entirety of case papers to be disclosed, when the point to be made from them is relatively circumscribed, are inappropriate. Moreover, deficiencies in disclosure may be censured, and were in this case, but it does not follow that the trial should not continue.[61]In our judgment, the judge did make unjustified criticisms of the prosecution. The most obvious example is her repeated reference to lost or missing material, for which she did not give any justification and which the respondents have not sought to justify.[62]Furthermore, the inference of wholesale failure in disclosure was not justified by the relatively few instances to which the judge referred. The judge’s rulings were long on generalisations and short on analysis.[63]Given that there was 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 was established that the respondents would not have a fair trial. Late disclosure should have been considered on that basis. Late disclosure is not the same as non-disclosure. It is not unusual for it to take place during a trial, and the question will then arise whether it can be coped with during the trial with or without an adjournment. We have seen nothing to indicate that the late disclosure in this case could not have been accommodated during this trial. Indeed, when the point was put to him, Mr McCarthy candidly accepted that he could not contend that CH could not have had a fair trial. Given the similarity between his case and that of MO and JM, it is difficult to see that the same would not apply to them. Similarly, Mr Buxton, for JM, accepted that he had plenty of time to deal with the Wapiti material. As mentioned above, Mr Conway had been able to use the Operation Galling disclosed material to formulate a detailed application on behalf of DB to adduce bad character evidence in relation to MO and CH. Only if any late disclosure could not be fairly accommodated, the question of discharging the jury would arise. The charges facing the respondents are very serious indeed, as is reflected in the fact that each of them is represented by two counsel, and it would require an exceptional case to go further than to discharge the jury and to make a terminating ruling. We have seen nothing to justify that ruling.[64]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.[65]For the above reasons, we gave leave and allowed the appeal. We indicated that any fresh trial should be before a different judge, and preferably in a different court.[66]We add that Mr Tomassi candidly suggested that the problem of the prosecution in this trial was one of resources. Looking just at the representation at the trial, Mr Morris was opposed by no less than ten counsel. The CPS should consider whether their prosecuting team was sufficient.