DS & TS, R v [2015] EWCA Crim 662

Case No 2014/05942/B3[2015] EWCA Crim 662
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
His Honour Judge Bowers
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/04/2015
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE MACDUFFMR JUSTICE JEREMY BAKER
Between
ReginaAppellantDS and TSRespondent
T D Roberts QC and Richard Bennett for AppellantN J H Lumley QC for RespondentsHearing Hearing date : 18 March 2015
JudgmentLord Thomas of Cwmgiedd, CJ :Introduction
[1]This court has had to consider for the second time within the last two months serious failures by the prosecution in relation to the provision of material which led a judge to bring the case to an end. In the first case, Boardman [2015] EWCA Crim 175 the court upheld the decision of the Crown Court judge to refuse to allow evidence to be served late in circumstances in which it was clear such a decision would lead to the prosecution discontinuing the case; the failures in that case in relation to the provision of evidence had been grave and in disregard of clear directions of the court. In the present case, the failures in relation to disclosure had, as will appear, been grave and led to the trial being stopped on the eighth day on the direction of the judge. The judge had subsequently stayed the proceedings as an abuse of the process of the court. In this appeal the prosecution seeks leave under s.58 of the Criminal Justice Act 2003 (CJA 2003) to appeal against that stay.

The allegations and evidence in the instant case

[2]Daryl and Thomas S, both brothers, were charged with rape, false imprisonment and assault by penetration.[3]The case against them involved allegations involving two women, Lisa V and Elkie T. In each case Daryl S started a relationship with the women. The relationship with Lisa (who had been a police community support officer until 2010) began at the end of 2009. It was the Crown’s case that the relationship deteriorated when Daryl S became threatening and abusive. It was alleged by Lisa V that in May or June 2010, after the alleged break up of their relationship, Daryl S raped her. According to Lisa V he then inveigled his way back into her life and the relationship continued. It was alleged that on an occasion between July and September 2010 there was an occasion on which a “threesome” occurred during which Daryl S had sexual intercourse with Lisa in the presence of Thomas S, Thomas S penetrating her vagina with his fingers, Lisa V performing oral sex upon Thomas S and then Daryl S lying underneath her, and penetrating her anus while at the same time Thomas S lay on top of her and penetrated her vagina. There was a further allegation of rape in December 2010 when Lisa V alleged that after another separation she allowed Daryl S to stay the night and he raped her.[4]In the course of 2011 there were two occasions upon which Daryl S attacked her. On the first occasion he was convicted of common assault and on the second occasion he was again convicted of common assault and possession of a bladed article. He was sentenced by the Magistrates to 20 weeks imprisonment. When Lisa V was interviewed in connection with these assaults in May 2011, Lisa V told the officer in those cases, who was the same officer as the officer in this case, that she had been raped, but she did not want to pursue it.[5]Whilst awaiting trial for the offence of assault committed against Lisa V, Daryl S commenced a relationship with Elkie T. The allegation against Daryl S was that on 30 July 2012 Elkie T tried to run away from him following an argument. It was said that Daryl S prevented her from leaving and dragged her upstairs as a result of which he was charged with false imprisonment. The following morning Daryl S raped her.[6]It was the case of both defendants that the allegations made against them were lies.

The history of the proceedings

(a) July 2012 – March 2014

[7]On 30 July 2012 Elkie T reported the rape. She was ABE interviewed. She also stated that Daryl S had been violent to her, controlling and possessive. Daryl S was arrested on 31 July 2012 interviewed and bailed. He recommenced the relationship with Elkie T, unknown to the police. On 3 September 2012 he was charged with a count of rape and false imprisonment relating to Elkie T. The case was sent to York Crown Court, subsequently being transferred to Teesside to secure an earlier trial date. On 26 October 2012, a schedule of unused material was served with 17 items on it.[8]On 13 December 2012 there was a plea and case management hearing; Daryl S pleaded not guilty. The trial was listed for 13 March 2013. The officer in the case was a Detective Constable; he was also the disclosure officer.[9]On 21 February 2013 a conference took place between counsel, the reviewing CPS lawyer and the officer in the case. By that time the police were aware that the relationship between Daryl S and Elkie T had been resumed, but that it had then broken down again. During that conference the officer in the case also informed counsel that Lisa V, at the time she had made allegations of assault against Daryl S, had made allegations of rape in 2011 but had not wanted to pursue them (as we have set out at paragraph 4 above). In early March 2013, Elkie T was interviewed under the ABE process again about the resumption of the relationship; Lisa V was also interviewed under the ABE process about her relationship with Daryl S and set out the allegations which we have outlined. An application was made to the court in respect of the allegations of Lisa V. On 8 March 2013 the trial date was vacated. A date for a further pre-trial hearing was fixed for 7 June 2013 with a provisional trial date of 1 July 2013.[10]On 3 June 2013, items 18-21 and 22-24 were added to the schedule of unused material. No papers had been served by the CPS by 7 June 2013. The matter was adjourned and the provisional trial date vacated. Determined attempts were made by the court at Teesside to manage the case, papers were served and the allegations charged in respect of Lisa V and those charged in respect of Elkie T were joined in the same indictment. Significant delays then occurred. Joinder was ordered on 27 September 2013. Further significant delays then occurred. On 2 December 2013, the case was listed for trial on 25 March 2014 with an 8 day estimate. No defence statement was served on behalf of Daryl S relating to the allegations of Lisa V either then or at any time before the trial date of 25 March 2014.

(b) Second listing of the trial: 25 March 2014

[11]On the morning of the trial, 25 March 2014, although the proposed edits for the ABE interviews had been agreed by counsel for Thomas S, nothing had been done in respect of Daryl S, despite repeated requests by the prosecution. Daryl S’s counsel asked for further edits and said the trial would take 10-15 days rather than the 8 days which had been estimated earlier. It was not practical to edit the ABE; the trial was taken out of the list. We have not named solicitors or counsel concerned as we have not heard their account, but their conduct of this matter on behalf of Daryl S appears to have been in serious breach of their obligations to the court, respectively as the solicitors and the advocate in the case.[12]When the proposed edits to the ABE interview were being discussed by counsel for Daryl S, counsel for Daryl S made a hand written request for disclosure. This was handed to the officer in the case who added some entries to the unused schedules; these were given to counsel for Daryl S, but not to counsel for Thomas S as he had by then left.[13]There was a further hearing on 8 July 2014 when bail terms were varied. There is no explanation as to why it was not until 23 October 2014 that the case was listed again before the judge. The edits were agreed and the trial fixed for 3 November 2014.

The events immediately before and during the trial

[14]Shortly before the trial was due to start Mr Lumley QC was instructed on behalf of Daryl S. He took the view that primary disclosure was incomplete. He made requests to the prosecution for documents and information which were properly required to be disclosed.[15]As a result of those requests, on the first day of the trial the officer in the case was asked to attend. He came with three boxes of material which neither counsel nor the CPS had seen. Counsel for the prosecution, Mr Bennett, required the officer in the case to prepare a revised schedule of unused material based on material in the possession of the police. This resulted in a revised schedule containing over 25 further items (items 25-50). Although the revised schedule was expressed as being complete, it was not.[16]On the first day of the trial, 3 November 2014, the jury was sworn in by 11.35 a.m. Nothing further happened. Nothing happened on the morning of the second day, save for discussion on issues to do with disclosure; all that took place in the afternoon was the prosecution opening between 2.29 and 3.09 p.m. On the third day, the two ABE interviews of Elkie T were played; these were finished by 12.45 p.m. and the hearing adjourned. On the fourth day, Elkie T was examined in chief and cross examination commenced; it was not completed as another witness (Elkie T’s mother) was interposed. Elkie T’s cross examination continued on the fifth day, but she was sent home early as the failure to provide further disclosure impeded the cross examination; another witness (Elkie T’s stepfather) was interposed.[17]Counsel for the prosecution therefore asked that a senior police officer and another detective constable attend and carry out a full and independent disclosure exercise. On the fifth day of the trial, 31 items were added to the schedule of unused material, taking the number to 82. On the sixth day of the trial, a further 8 items were disclosed; the evidence of Elkie T was completed. On the seventh day of the trial, a further 14 items were added to the disclosure schedule; counsel for Daryl S made it clear that he could not cross examine any further witnesses until the disclosure was reviewed and completed. The jury were sent home at 11.48 a.m. and the case adjourned till the following day. The judge was highly critical of the way the case had been conducted by the CPS and the police.[18]On the eighth day of the trial, 12 November 2014, the judge on the application of the defence decided to discharge the jury on the basis that the interests of justice and a fair trial demanded that disclosure had to be completed before the defence could cross examine the complainants and the officer in the case. In any event, the judge considered that the patience of the jury had been stretched beyond breaking point. The judge adjourned the defence application for a stay on the grounds of abuse of process until 27 November 2014.[19]After the adjournment of the trial and before the hearing of the application for a stay, another disclosure officer reviewed the disclosure. This resulted in further additions to the schedule of unused material (items 107-129), including schedules of all recorded contact between the police and each of the defendants. One of the items then disclosed was an extract from a crime file of the Humberside Police relating to a caution given on 16 May 2011 to Lisa V for perverting the course of justice; this related to her agreeing to say she was the driver of a car and not her father in relation to a speeding offence. Another item disclosed was the fact that the mobile phone of Elkie T had been seized, but there had been no analysis of its contents. The further schedule was made available to the defence on 26 November 2014, the day before the hearing of the application for a stay.[20]By the time of the hearing for the stay the judge was satisfied, as he found in his ruling, that disclosure was as complete as it reasonably could be and in the state in which it should have been prior to the trial.[21]It was in those circumstances that the argument took place before the judge as to whether the case should be stayed. He gave his decision on 12 December 2014 staying the proceedings for abuse of process.

The ruling of the judge

[22]The judge set out in his written decision instances where(a) the investigation had been inadequate and(b) where the disclosure had been inadequate. The judge was very critical of the way in which the case had been investigated. For example no record of Lisa V’s first complaint had been made; the officer in the case could not remember making any note and made no formal record of any comments. His evidence had been that he had only been a detective on the unit for a week and did not know what else he could or should do. There was no written record of a conversation between the officer in the case and Lisa V between her first and second ABE interviews. There had been no diarised entry relating to every contact between the officer in the case and the witnesses in the case.[23]The judge considered that what was material to the application for a stay was the failure to make proper disclosure as distinct from the failure to conduct a proper investigation. For example, Lisa V had been employed as a Police Community Support Office but had misused the PNC and had been cautioned for attempting to pervert the course of justice in respect of the speeding offence to which we have referred at paragraph 19 above; that had only been disclosed during the course of the trial. No disclosure of telephone contact had been made, nor were proper notes disclosed in respect of early contact and interviews with the complainants. However, as we have set out, the judge was satisfied by the time of the hearing that everything had been disclosed.[24]The judge also considered allegations of bad faith that had been made against the officer in the case and others. It is not necessary to set these out as the judge concluded that he was quite satisfied that there was no firm evidence of bad faith on the part of the officer in the case or any other person in the prosecution.[25]There was, he found, clear evidence of gross incompetence, a clear lack of training and lack of supervision but there was no evidence of targeting or harassment of the defendants or the prosecution being pursued with an ulterior motive. The position was that all of the documents should have been disclosed prior to the trial.[26]The judge then considered whether there should be a stay. The factors he took into account were the following: i) The fact that Elkie T, her mother and stepfather had given evidence was not fatal to a fair trial, as re-trials did take place. He concluded that Elkie T had been a strong witness and had been unflustered by many of the text messages and phone messages put to her in cross examination. It could therefore be argued that the defence had not lost the benefit of any element of surprise in the matters put to her. ii) The officer in the case had been cross examined about the deficiencies in his record-keeping and had been alerted to some of the issues. He was to that extent forewarned and forearmed and better able to deal with criticisms levelled by the defence. iii) The gravity of the charges and the circumstances in which the allegations had been made obviously gave rise to the need to examine phone records, texts and social media communications in cases of this kind. It was therefore obvious to the police and CPS that disclosure should have been put in the hands of persons who were trained and capable of dealing with the complexities of disclosure. The officer in the case was ignorant of the duties and responsibilities of disclosure and even lacked basic training. The CPS had been no better placed and failed to treat disclosure with the respect and importance it deserved. iv) He had in the many years of being an advocate practising before the criminal courts and a judge never encountered a case where there had been such a total and abject failure to deal with disclosure. He described what had happened as a charade which made a mockery of the judicial system. Public money was squandered, mainly because of the abject failure of the CPS to organise disclosure at any stage prior to trial. v) He readily accepted that the defendants had lost all faith in the honesty, integrity and independence of the prosecution or its ability to prosecute the case fairly and objectively. vi) Although he accepted it could be argued strongly in any future trial that the issues could be fairly and properly explored before a jury, that was only possible if a court ignored completely the history of the case to date. vii) The more important issue was whether it was fair to allow the prosecution the opportunity, having regard to its total incompetence and disobedience of the principles of disclosure. The court had exercised a considerable degree of tolerance and patience towards the prosecution, only to discover the position was not capable of being rectified within a reasonable time. viii) This had been an exceptional case which demanded a robust response from courts to protect their own integrity and independence and to register a profound disapproval of the prosecution’s conduct in the case.

The judge therefore concluded:

“I have come to the conclusion that the failures in this case are so fundamental and far-reaching as to make this a truly exceptional and unique case. Notwithstanding the seriousness of the charges, I take the view that this abuse is so exceptional the court ought to mark its wholesale condemnation of the prosecution by allowing a stay and refusing the prosecution the right to pursue the case.”
[28]The judge made clear that none of what had happened was the fault of counsel for the prosecution, Mr Bennett. On the contrary he had done all he could to assist with dedication and determination. We would endorse that view; Mr Bennett was of the utmost assistance to this court on the hearing of the appeal in explaining to us with great clarity and in some detail what had happened in the course of the proceedings.

The arguments on the appeal

[29]The argument of the prosecution was that if there had been reprehensible conduct on the part of the prosecution in failing to comply with its obligation to make pre-trial disclosure of unused material, the court ordinarily ought to grant an adjournment and make an order for wasted costs against the prosecution. It should not have imposed a complete stay of proceedings, unless there had been bad faith or where the failure had irreversibly tainted the integrity of the justice system. In the present case the judge had concluded that it was possible fairly to try these defendants. It was submitted that the court should not use a stay to discipline the police. Reliance was placed on the judgment of Lord Nicholls of Birkenhead in R v Loosely Attorney General’s Reference No 3 of 2000 [2002] 1 Crim App R 29 at paragraph 17 where the judge said:
“I should add that when ordering a stay and refusing to let a prosecution continue, the court is not seeking to exercise disciplinary powers over the police although staying a prosecution may have this effect.”
[30]It was submitted on behalf of the defendants that the court should not interfere with the judge’s exercise of his discretion. The importance of the disclosure process in any criminal trial could not be overstated. The failings in disclosure ought to have been obvious to the prosecution at an early stage; this serious case should not have been used as a training ground for an inadequate and inexperienced officer.[31]It was further submitted that the disclosure in respect of the caution administered to Lisa V for perverting the course of justice had still not been made and certain other disclosure was wanting. We therefore made an order that this be done and any further disclosure be made by 20 March 2015. It was a step that a Court of Appeal should not have been required to take. We also directed that the Chief Constable of North Yorkshire and the Chief Crown Prosecutor for Yorkshire and Humberside make statements dealing with disclosure by the same date. We allowed counsel time to make further submissions thereafter.

The further disclosure made after the hearing of the appeal

[32]We received on 20 March 2014, a statement from the Deputy Chief Crown Prosecutor for Yorkshire and Humberside (in the absence of the Chief Crown Prosecutor) and the Chief Constable for North Yorkshire. Each gave an account of what had happened in relation to disclosure of material in relation to Lisa V’s caution. The schedule served on 26 November 2014 had indicated a statement would be obtained from the officer who had administered the caution as to why a caution had been given for such a serious offence. We return to this issue at paragraph 64.ii) below. Nothing had been done between then and the hearing of the appeal to obtain the statement. The statement from the officer in the Humberside Police who administered the caution was obtained on 19 March 2015 and served with a further disclosure schedule (items 130-133) on 20 March 2015. Another statement relating to the caution had been promised. Nothing had been done, but this was also rectified on 19 March 2015 by the provision of the statement.[33]In the review that took place following the order of this court, two statements relating to the assault of which Daryl S was convicted were also listed and disclosed as items 130 and 131. It was accepted that they should have been disclosed much earlier.[34]In addition, a phone from Elkie T had been seized on 31 July 2012 as we have set out at paragraph 19. It was not examined until 14 November 2014. As at 26 November 2014, when the last schedule before the abuse hearing was served (as also set out at paragraph 19) the data had not been reviewed. The Chief Constable explained that a police officer had since reviewed the data and concluded that there was nothing that assisted the defence or undermined the case for the prosecution.[35]In submissions made after the provision of this further material, Mr Lumley QC made very powerful submissions, highlighting the fact that it had taken an order of this court to secure proper disclosure and the mistaken approach of the North Yorkshire Police, even at that juncture, to deal with issues in accordance with proper practice. His criticism of the Chief Constable and the Chief Crown Prosecutor was entirely justified.

The legal principles

(a) A stay for abuse of process

[36]The law as to the power of the court to make a stay as set out at paragraph 13 of the judgment of Lord Dyson in the Supreme Court in R v Maxwell [2011] 1 WLR 1837:
“It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will ‘offend the court's sense of justice and propriety’ (per Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 , 74 g ) or will ‘undermine public confidence in the criminal justice system and bring it into disrepute’ (per Lord Steyn in R v Latif [1996] 1 WLR 104 , 112 f ).”
[37]Lord Dyson went on at paragraph 23 to refer to the speech of Lord Steyn in Latif at p.112G to 113B where Lord Steyn made clear that proceedings could be stayed not only where a fair trial was impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. There were an infinite variety of cases, but a judge must weigh in the balance the public interest in ensuring that those that were charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court would adopt the approach that the end justified the means.[38]In his dissenting judgment in Maxwell, Lord Brown referred at paragraph 107 to a summary by Professor Andrew Choo of the approach of the courts of England and Wales to the cases where it would be contrary to the public interest and integrity of the criminal justice system that a trial should take place. That summary was as follows: “The courts would appear to have left the matter at a general level, requiring a determination to be made in particular cases of whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree.

(b) Consequences of failing to follow directions of the court

[39]Although the way in which the judge decided the case was on the basis of the stay for abuse of process, it is highly material to consider the recent judgment of this court in R v Boardman to which we referred at the outset of the judgment. In that case the defendant had been charged with a number of counts of stalking. The case was not progressed properly or in accordance with the Criminal Procedure Rules or Directions of the court. A few days before the listed trial date significant evidential material was served and required expert analysis which would take three weeks. The defendant applied to adjourn the trial and the prosecution agreed that it was appropriate to do so. However the judge ruled that due to delay on the part of the prosecution, the evidence which consisted of evidence of telephone call data records and telephone call cell site evidence would be excluded pursuant to the provisions of s.78 of the Police and Criminal Evidence Act 1984 (PACE). The ruling effectively brought the prosecution to an end. As a result the Crown Prosecution Service applied for leave to appeal the terminating ruling under s.58 of the CJA 2003.[40]The judge had found that there had been a lamentable failure on the part of the prosecution; it had failed to provide the proper data to which the defendants had been entitled. The case should not have been put off for a period of nine months and in the circumstances it would be unfair to allow the telephone evidence in. At paragraph 38 this court said: “The directions at the Plea and Case Management hearing were plain; the CPS were not entitled to expect that no sanction would follow unless the case had been brought back to the court for a further[41]It was contended by the prosecution that the nature of the failure by the prosecution in Boardman could be distinguished from the failure in the present case. That case related to a failure by the prosecution to serve primary evidence. It also related to a failure to follow a timetable for the service of evidence which resulted in evidence being served at such a time that it would have been unfair to admit it.[42]However, although the failure in Boardman was a failure to abide by the directions of the court as to the service of evidence, that is no basis for distinguishing the approach a court should take. The obligations of the parties under the Criminal Procedure Rules are clear. To differentiate between a failure to abide by a specific direction and a failure to follow the Rules would be to place an undue premium on the court making an order rather than expecting the parties to carry out their duties without such an order. Nor is it right to make a distinction in principle between a failure by the prosecution to serve evidence on time and the failure to make proper disclosure. Both have the potential to affect the fairness and orderly conduct of a trial and to undermine public confidence in the integrity of the criminal justice system. As we shall explain, one of the critical factors is the effect of the prosecution failure on the ability of the judge to hold a trial that is fair to the prosecution, to the complainant (or victim) and to the defendant.[43]Thus, although the way in which the judge proceeded in Boardman was by refusing to admit the evidence under s.78 of PACE, and the present case involved a stay for abuse of process, the court should approach both types of application on the same basis, namely by balancing the material considerations and determining whether it was in the interests of justice, including the interest in the integrity of the criminal justice system, that the proceedings should be allowed to continue. It is where continuation would offend the court's sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute that a court should make an order which would have that effect.[44]We have no doubt that there are failures of the prosecution where the court should act so that the proceedings do not continue. In Boardman the failure was clearly such as to undermine confidence in the criminal justice system and to bring it into disrepute.

Our approach to the present case

[45]The present case was, on the findings of the judge, not a case where the judge concluded that a trial would be unfair. He accepted that in any future trial issues could fairly and properly be explored before the jury. In his view the issue was simply whether it was fair to allow the prosecution, having regard to its total incompetence and disobedience of the principles of disclosure, to continue. To allow a further trial would be to appear to condone the prosecution’s past faults and to indulge its failures.[46]In our judgement, however, it is necessary to examine more widely the various factors and to balance the public interest in ensuring that those charged with grave crime should be tried and the rights of the complainants against the need to ensure the proper integrity of the criminal justice system and the fairness of any future trial.[47]We turn to examine those factors. We do so on the basis that(1) the judge decided that he could not conclude on the evidence that there was a lack of good faith on the part of the police and that the other failures in the investigation were and remain matters which are separate from the issues on disclosure and therefore form no part of the grounds for a stay;(2) the judge concluded a fair trial was possible in a reasonable time; a date had provisionally been fixed.

(a) The gravity of the charges

[48]There can be no doubt that the offences in this case are of significant seriousness. They involve multiple counts of rape in circumstances where the relationships were alleged to have been abusive.

(b) The denial of justice to the complainants

[49]There can be no doubt that a stay of the proceedings would result in a denial of justice to the complainants in circumstances in which they were in no way to blame.

(c) The importance of disclosure in sexual offences

[50]It has always been apparent in cases of historic sexual abuse, disclosure will be important and proper steps be taken to ensure that it is dealt with in an orderly manner.[51]It should have been apparent to the North Yorkshire Police, given the widespread use of social media, that it is likely that in many cases of sexual offending which arise contemporaneously that what is contained on social media is likely to be relevant and sometimes of great importance. Moreover the volume of such material can be significant, given the ability of “smart phones” and other hand held mobile devices to contain so much information, quite apart from the records held by the mobile phone network providers.[52]In the present case, the Vodafone call records of Elkie T’s telephone amounted to some 502 pages of A3 papeer; these were amongst the items placed onto the unused material schedule at the end of the first day of the trial. As is not infrequently the case, there is often in texts, e-mails or photographs transmitted through “smart phones” substantial material which describes the nature of the relationship between those involved and what has occurred physically between them, either in direct communication between them or in descriptions to other persons. The failure to make earlier disclosure of these records obtained by the police of their own accord is heavily relied on in the present case. Similar reliance is placed on the way the data from the phone of Elkie T was dealt with by the police as described in paragraphs 19 and 34 above.

(d) The necessity for proper attention to be paid to disclosure

[53]In R v Olu Wilson & Brooks [2010] 1 Cr App R 33, [2011] 1 Cr App R 33 and R v Malook [2011] EWCA Crim 254, [2012] 1 WLR 633, [2011] 3 All ER 375, this court pointed to the importance of proper procedures being put in place for an intelligent approach to disclosure and the necessity for disclosure officers to receive proper training (see in particular paragraph 35 of the judgment in Malook).[54]It was the finding of the judge that the officer in the case had exhibited gross incompetence and there was clear evidence of a lack of training and supervision.[55]We have received a statement from the Chief Constable of North Yorkshire Police. Although he dealt with the steps recently taken to address the specific failures in disclosure to which we have referred at paragraphs 32-35, he only dealt with the position of the officer in the case as follows:
“I and subsequently North Yorkshire Police take the responsibilities of the Criminal Procedure and Investigations Act very seriously. Police Officer and Police Staff involved with criminal investigations are aware of their positive and on-going obligations during an investigation. In the event of failings positive action is taken.”
[56]He went on to say that the officer in the case had been charged with misconduct and gross misconduct on 12 December and 17 January 2015. In the light of the allegations of bad faith made by the defence, this should have been disclosed to this court at the hearing of the appeal. It is impossible to understand why this was not done, given the presence of a senior officer at the hearing.[57]Moreover the Chief Constable did not deal with the judge’s references to lack of training and lack of supervision. This is a serious and inexplicable omission, particularly as the officers brought in after the commencement of the trial did not deal with disclosure in a manner that was competent.[58]In view of the observations in Olu and Malook and the Review by Lord Justice Gross of disclosure published in September 2011, every police force should by now have in place a detailed programme for training and supervision in relation to disclosure, particularly in serious cases of this kind.[59]Lack of training and supervision in relation to disclosure in a police force is a highly material factor in determining whether confidence in the criminal justice system has been undermined. In the absence of any explanation from the Chief Constable of North Yorkshire, we are unable to conclude, in the light of the findings made by the judge, that the failure in this case was due simply to one off failures by the officer in the case. We must therefore proceed on the basis that it was a serious failure for which the Chief Constable must bear the responsibility. Therefore the serious failures by the North Yorkshire police in this case are a material factor in determining whether confidence in the criminal justice system has been undermined by the way in which that police force has dealt with the duties of disclosure.[60]The CPS has given no explanation for its failure to deal properly with disclosure, even after the judge imposed a stay and an appeal was pending to this court. This is a regrettable omission. Again this is a factor capable of undermining confidence in the criminal justice system.[61]It is to be noted that neither the Chief Constable of the North Yorkshire Police nor the Deputy Chief Crown Prosecutor attribute the failings to a lack of resources provided to them. There are therefore no extenuating circumstances that can explain or excuse the failures.[62]Mr Lumley QC asks, in relation to the fact that it took the order of the Court of Appeal to compel simple steps to be taken, “how can the wider public have any confidence in the integrity of the disclosure process in this case?” It is a powerful point.

(e) The nature and materiality of the failures

[63]It is next important to examine the material impact of the failures. There can be no doubt that the piecemeal disclosure made during the course of the trial was disruptive, made the task of defence counsel impossible, tested the jury’s patience and led to the judge deciding that the trial had to be stopped. The same comment can be made in relation to the quantity of the items that had not been disclosed; they add to these difficulties.[64]However of much greater weight as a factor is the materiality and importance to the case of the way in which disclosure was made. There were, in our judgment, two categories of document to which it is necessary to refer: i) The first was the Vodafone call records of Elkie T’s telephone. Some 502 pages of A3 paper were disclosed at the end of the first day of the trial. It is clear that these records (and similar records that had been obtained from the defendant’s telephone) might be material to the credibility of the complainant. For example, we were told that on one of the defendant’s telephones, shortly after one of the alleged rapes, Elkie T had sent photographs of herself to the defendant and invited him to commit certain acts with her. Moreover, the telephone records might help establish the location of Elkie T on various days. ii) The records relating to Lisa V’s misuse of the North Yorkshire police computer systems and her arrest and prosecution for perverting the course of justice were highly material to her credibility. However, this was a matter known to Daryl S; he had reported her actions in perverting the course of justice to the police in May 2011 and it was his action that had led to her arrest. There was therefore no doubt that her conduct in perverting the course of justice could have been used by counsel for the defence to impugn the credibility of Lisa V. If there had been insufficient information, the lack of disclosure could have been something raised with the court. Moreover some of the material requested (such as the statements in relation to why a caution had been used) could be viewed as an attempt by the defence to make the prosecution provide evidence for the defence. In the result, therefore, the documentation which had not been disclosed which was material was, in our judgement, restricted to the significant telephone records; it was, however, material only relevant to issues of credibility.

(f) The failures by the defence lawyers prior to November 2014

[65]As we have set out at paragraph 11, the solicitors for Daryl S and his counsel were in breach of their obligations under the Criminal Procedure Rules and of their duties to the court. After Mr Lumley QC was instructed shortly before the trial in November 2014 the defence of Daryl S has been conducted with the utmost skill and diligence.[66]It is clear that service of a defence statement, proper compliance with the Criminal Procedure Rules and the duty of the defence to raise issues with the court are all material to the proper conduct of criminal proceedings. As the President of the Queen’s Bench Division made clear at paragraph 40 of the judgment in Boardman, the failure of the defence to comply with their duty was an important factor to be brought into account. If the defence have not brought to the Court’s attention what they contend is a failure by the prosecution in sufficient time for it to be remedied in advance of the trial, this may be a critical factor. Thus the failure by the defence in this case before the instruction of Mr Lumley QC is a factor to be brought into account.

(g) The waste of court resources and the effect on the jury

[67]It is evident from the account we have given of the trial that a considerable amount of court time was wasted as a result of the failures by the police and CPS. As the President of the Queen’s Bench Division also made clear in Boardman at paragraphs 1 and 2 the scarce resources available must not be wasted or used inefficiently.[68]The judge rightly drew attention to the effect on the jury on the way in which the trial had to proceed. There can be little doubt that the confidence of the jurors in the administration of justice would have been shaken.

(h) The availability of other sanctions

[69]The obvious sanction would be the making of a wasted costs order against the CPS or an order against the North Yorkshire Police under s.19B of the Prosecution of Offences Act 1985 as referred to in the decision of this court in R v Applied Language Solutions [2013] 1 WLR 3820, [2013] 2 Cr App R 16.[70]It was made clear to us that the CPS would not contest the making of a wasted costs order. Although we have had no submissions from the Chief Constable of the North Yorkshire Police, there would appear to be strong grounds for considering making an Order under s.19B.[71]This is a material consideration in this case. However, the fact that this is the second occasion within two months that prosecution appeals have been brought to this court arising out of a failure to provide materials, the adequacy of the sanction needs greater consideration. As the failure relates to a failure in criminal procedure, we will ask the Criminal Procedure Rule Committee to consider whether any other sanctions can be imposed through new Rules on those charged with the prosecution of a case, and, in the absence of any power to provide for sanctions through new Rules, to set out whether any other steps or sanctions they consider should be taken to secure compliance with the Rules. We will also direct that copies of the decision in Boardman and this judgment be sent to those with ultimate responsibility for the police and CPS, given the very serious failures that have arisen in these cases.

Conclusion on the balancing factors

[72]In our judgment there is a very strong public interest in these grave offences being tried and the complainants having their allegations determined at trial. The documents that were not disclosed were of the limited materiality which we have explained; that is to be contrasted with the failure in Boardman to serve evidence. On the other hand the conduct of the CPS and the North Yorkshire Police force has been reprehensible; the sanctions which a court can impose on them to secure adherence to basic principles of justice lack proportionality. Nonetheless a fair trial is possible and a lack of proper compliance with the Criminal Procedure Rules by those representing Daryl S before November 2014 played its part in what happened. Balancing these considerations, we have concluded that on this occasion it would not be in the interests of justice to stay these proceedings on the basis that their continuation would undermine public confidence in the administration of justice. We have every sympathy with the position in which the judge was placed; we fully understand his robust and justified condemnation of the CPS and the North Yorkshire Police, but after reviewing all the circumstances and looking at other considerations to which the judge did not refer, we consider that on this occasion the proceedings should continue. We set aside the stay.[73]We trust that the judgments of this court in Boardman and in this case will receive the closest study by all Chief Crown Prosecutors and all Chief Constables. There should be no recurrence of failures of this kind by either the CPS or any police force.

order

the resources of the court cannot be expected necessarily to extend to what might be described as the provision of a ‘yellow card’. Obviously, every case will depend on its own facts but the willingness of this court to support trial judges in the exercise of their discretion in discharging these responsibilities is equally clear in cases of this nature.” This court held that the judge had been fully entitled to reach the conclusion that he did and was entitled to support from this court. The court however pointed out that under the Crim PR 1.1 the defence had a duty to alert the court to the problems of non-disclosure. The court would be astute to ensure that defence applications for what amounted to interrogatories or the pursuit of inconsequential material would not amount to an abuse of the process of the court.

Cited in 4 later judgments