D v R. [2011] EWCA Crim 987

Case No 201006493-B2[2011] EWCA Crim 987IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
H. H. Judge MENSAH
T20097066
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/04/2011
Before
LORD JUSTICE LEVESONMR JUSTICE TUGENDHATMR JUSTICE EDER
Between
DAppellantTHE CROWNRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
None of the parties or interested persons appeared or were representedHearing Hearing date: 15 April 2011
Judgment
[1]On 21 October 2009, in the Crown Court at Luton before Judge Mensah and a jury, this applicant was convicted of rape and subsequently sentenced to 5 years imprisonment. He has sought leave to appeal against conviction and an extension of time to do so on the basis that neither the Crown nor his own representatives took reasonable steps to obtain potentially relevant third party material. The case has not yet been placed before the single judge; an application has been made for directions concerning attempts to obtain that material in order to discover whether it does indeed afford an arguable ground of appeal.[2]The jurisdictional basis for the application is s. 23(1) of the Criminal Appeal Act which provides:
“(1) ... the Court of Appeal may, if they think it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;…”
[3]In the period which has elapsed since the application was listed, the parties have complied with a number of procedural directions designed to ensure that the appropriate parties were before the court and the issues correctly addressed. That has led to the resolution of the entire question of disclosure thereby avoiding the necessity of a contentious hearing. In the circumstances, however, before making no specific order, because an important issue of principle arises as to the approach which this court should adopt to such applications, we consider the matter on its merits.[4]The only relevant facts for the purpose of dealing with this application are as follows. The complainant, then aged 18 years, and the applicant, then 17, both were living at a hostel for young people run by the Bedfordshire Pilgrims Housing Association known as The Foyer. On 13 June 2008, the two were seen together to go to the applicant’s room and shortly thereafter the complainant alleged that she had been raped. Statements were taken and DNA and toxicology evidence sought. In due course the applicant was charged with rape.[5]On 18 May 2009, a Defence Case Statement contained a request that enquiries be made with social services and The Foyer to ascertain whether the complainant had previously made any allegation capable of throwing doubt on her credibility. The Crown’s informed response, dated 21 August 2009 revealed that social services were not aware of any such allegations having been made. As regards The Foyer, it was reported:
“The police do not have any records from the Foyer. The complainant has not given her consent for her records to be released. Material held by the Foyer is therefore third party material and f you wish to have access to this you will need to make an application to the Crown Court for third party material.”
[6]In error, no such application was made and counsel then appearing on his behalf concedes that, without discussing the issue with the applicant, he decided not to raise the matter with the court at trial. In a recent affidavit, he asserts that his failure to do so cannot be characterised as reasonable. More significantly, he also reports that for reasons which it is unnecessary to include within this judgment, it is now believed that the complainant may have made a number of complaints of having been the victim of offences both of a sexual and non sexual nature before and after this allegation which were allegedly investigated internally by The Foyer and found to be false with the result that they were not reported to the police.[7]That information has led to this appeal which is entirely conditional upon the accuracy of this belief. The grounds of appeal assert that the Crown did not do sufficient to comply with the Attorney General’s Guidelines which, if it is believed that it is reasonable to seek material in the hands of a third party which is not being disclosed, requires (at para. 52) the prosecutor to apply under s. 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 for a witness summons. Reference could also have been made to s. 8 of the Police and Criminal Evidence Act 1984 and to Schedule 1 which can compel disclosure for the purposes of a criminal investigation. In any event, following Alibhai [2004] EWCA Crim 681, it is argued that the margin of consideration as to reasonable steps to be taken was exceeded because the material went to the heart of the credibility of the main witness.[8]The question now for this court relates to the fact that the third party against whom disclosure is sought is not in a position adequately to advance arguments as to the balance to be struck between the rights of the defendant in a criminal case and the Article 8 rights of the complainant who initially objected to any material from The Foyer being disclosed. That issue came before a Divisional Court in R (on the Application of TB) v The Combined Court at Stafford [2006] EWHC 1645 (Admin) which had to consider an application for disclosure of psychiatric medical records in relation to TB, a complainant then aged 15 in a case involving an allegation of sexual activity with a child. Although the NHS trust advanced the argument that the confidentiality was that of the patient, in the context of a defence of invention and fantasy, the judge considered the records to be plainly relevant and that the gravity of the criminal allegation took precedence over issues of confidentiality. He ordered disclosure.[9]The Trust notified the Official Solicitor who was concerned about the infringement of the TB’s Article 8 rights and sought to challenge the judge’s ruling. The judge then invited TB to attend court which she did, missing school; no effort was made to ensure that she was represented although TB was able to telephone the Official Solicitor from the court. Rather than delay the trial, undeniably under pressure, TB then reluctantly agreed to disclosure. The trial proceeded with all information available.[10]On an application for a declaration that the complainant was entitled to service of the application and the right to make representations as to the order, it is not surprising that the court (May LJ and Forbes J) “strongly deprecated” what had happened before the judge. May LJ put the matter in this way:
“25. … [P]rocedural fairness in the light of Article 8 undoubtedly required in the present case that TB should have been given notice of the application for the witness summons and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on the defendant. TB was not given due notice or that opportunity, so the interference with her rights was not capable of being necessary within Article 8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention rights. … 27. I would firmly reject the suggestion that it would have been sufficient for the interests of TB to be represented only by the NHS Trust. The confidence is hers, not theirs. Their interests are different. They have a wider public interest in patient confidentiality generally and may have particular interests relating to her care which could conflict with hers. Mr Lock submits that the Trust should be able to advance these wider public interest submissions against disclosure without having the role cast on it of acting also as an advocate for the patient’s confidentiality. I agree. I agree also that the Trust should not be saddled with the heavy burden of making enquiries of the patient, finding reasons why he or she might object and putting those reasons before the court. … 28. In my view, the burden of protecting TB’s privacy should not be placed on the Trust. The burden resides with the court and she herself was entitled to notice and proper opportunity for representation.”
[11]This decision informed the drafting of Part 28 of the Criminal Procedure Rules which describes the procedure to be followed when such an application is made in the magistrates and Crown courts along with the hearing that will follow at which the third party will be able to identify the materiality of what, if anything, is in their possession, and the duties and rights (including issues of confidentiality) owed by the third party. These provide as follows: “Application for summons to produce a document, etc.: special rules 28.1.—(1) This rule applies to an application under rule 28.3 for a witness summons requiring the proposed witness—(a) to produce in evidence a document or thing; or(b) to give evidence about information apparently held in confidence, that relates to another person. (2) The application must be in writing in the form required by rule 28.4. (3) The party applying must serve the application— (a) on the proposed witness, unless the court otherwise directs; and (b) on one or more of the following, if the court so directs— (i) a person to whom the proposed evidence relates, (ii) another party. (4) The court must not issue a witness summons where this rule applies unless— (a) everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and (b) the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates. (5) This rule does not apply to an application for an order to produce in evidence a copy of an entry in a banker’s book. Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality 28.2.—(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that— (a) it is not likely to be material evidence; or (b) even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates, outweigh the reasons for issuing a summons. (2) The court may require the proposed witness to make the document or thing available for the objection to be assessed. (3) The court may invite— (a) the proposed witness or any representative of the proposed witness; or (b) a person to whom the document or thing relates or any representative of such a person, to help the court assess the objection.” (a) to produce in evidence a document or thing; or (b) to give evidence about information apparently held in confidence, (a) on the proposed witness, unless the court otherwise directs; and (b) on one or more of the following, if the court so directs— (i) a person to whom the proposed evidence relates, (ii) another party. (a) everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and (b) the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates. Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality (a) it is not likely to be material evidence; or (b) even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates, outweigh the reasons for issuing a summons. (a) the proposed witness or any representative of the proposed witness; or (b) a person to whom the document or thing relates or any representative of such a person,

Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality

[12]This topic is also subject to further elaboration in the Crown Court Protocol on Disclosure, drafted by a team led by Fulford and Openshaw JJ published under the auspices of this court. In describing the procedure to be adopted, whether by the Crown or the defence, it is necessary to identify the additional issues that it is envisaged might arise. They are expressed in these terms:
“57. It should be understood that the third party may have a duty to assert confidentiality or the right to privacy under article 8 of the ECHR where requests for disclosure are made by the prosecution or anyone else. … 60. It should be made clear … that ‘fishing’ expeditions in relation to third party material – whether by the prosecution or the defence – must be discouraged and that, in appropriate cases, the court will consider making an order for wasted costs where the application is clearly unmeritorious and ill-conceived.”
[13]For our part, although the provisions that govern proceedings in this court are contained in s. 23 of the Criminal Appeal Act (to which we have referred), we consider that an equivalent procedure should be followed while recognising that it should be wholly exceptional for this type of application to be made following conviction so that the court will require detailed and convincing explanation for the earlier failure to ensure that appropriate investigations had been undertaken. It should not be assumed that the court will be prepared to embark on this exercise without very good reason.[14]For the purposes of this hearing and this case, however, it is unnecessary to resolve the question whether the Crown should have taken further steps or, indeed, whether the defence can be criticised for failure to follow up the request made of the Crown not least because it does not appear to be suggested that, at that time, there was any basis (other than pure speculation) that this complainant might have previously made false allegations of a sexual nature. Against that background and without deciding whether either the Crown or the defence could be criticised in this case, it is necessary to consider what steps this court should take given the circumstances that have arisen. In that regard, we note that in Brushett [2001] Crim LR 471, it was made clear that disclosure should be granted where there had been false allegations by the subject of the report in the past or where there had been sexual activity with another adult.[15]Following service of the Notice of Appeal, the court wrote to a senior member of staff at The Foyer giving notice of today’s hearing for disclosure based upon the assertion that the Foyer held material detailing allegations that the complainant had made both prior and subsequent to the complaint in this case and of the hostel’s investigations into these allegations. It was suggested that it would be open to The Foyer to lodge the relevant material with the Registrar on the basis that it would be made available only to the court “unless and/or until a disclosure order is made in relation to any of the material at which point such material as the court ordered to be disclosed would be copied to the parties”. The letter also enclosed a letter to the complainant informing her of the application and offering her an opportunity to provide her views either in writing or by attending the hearing, suggesting that she may wish to contact the CPS.[16]In the event, those steps have proved successful. The court requested any information related to any allegation both prior to or since the allegation made in this case against the applicant together with details of any investigation that the hostel made into the allegation. The Foyer chose to lodge with the court what it is contended in a statement from the Deputy Manager is “the only paperwork that The Foyer holds in relation to [the complainant] that falls under the topics requested in the letter from HMCS”. At the same time, the complainant has been involved in the process and we have been told that the consequence (which we trust has been with informed consent) has been that this material has been disclosed both to the Crown and, now, to the applicant’s legal advisers.[17]It is in those circumstances that we make no order on the application.