Crime and Disclosure

January 9, 2016

The Court of Appeal (Criminal Division) does not often find itself faced with issues concerning electronic disclosure. But in R v R [2015] EWCA Crim 1941, Sir Brian Leveson P has attempted to draw some lessons from ‘the debacle that has been the present case (with five years of litigation not reaching the stage when the indictment has been put)’ which he said ‘must not be repeated’. As most SCL readers will know but some from other jurisdictions might not appreciate, the criminal and civil rules on disclosure are quite different, albeit stemming from a common root.

We know little of the background facts in R v R, but the case concerns allegations of large-scale ‘economic crime’. The Court of Appeal judgment’s focus was on a ruling by the trial judge that the Crown Court trial should not proceed as it would amount to an abuse of process, principally because of delay. That ruling was appealed and the prosecution appeal was successful – which means the matter is proceeding to trial and explains the scarcity of background facts.

As Sir Brian Leveson P put it (at [2]):

‘Writ large throughout this case is the ability of the criminal justice system fairly to manage cases (likely, in the main, to encompass allegations of very substantial fraud) which comprise or comprehend a vast electronic database through the techniques of disclosure which have been developed through the Criminal Procedure and Investigations Act 1996 (“the CPIA”) and the various protocols and guidelines which have been issued in an attempt to do so.

A number of computers had been seized in the course of the investigation and some seven terabytes of data were involved.

In a criminal case, it is for the prosecution to provide initial disclosure; prosecution disclosure should include all relevant material that has not been used for the purpose of proving its case (unused material) but which might be of use to the defence. A number of miscarriages of justice have arisen from a failure of the prosecution to disclose and that has led to a well-defined series of principal legislation, rules, protocols and codes of practice. But, the CPS and courts are still struggling with the occasional case which throws up vast amounts of material. The Court in R v R considered that the crucial issue before it involved examining the guidance provided in relation to cases where the unused material is made up of vast quantities of electronic files which would, realistically, be impossible to read and assess in the usual way. How, the Court asks, is the prosecution to comply with its obligation if it has not read – and could not be expected to read – all the material it has seized?

Endorsing observations in a recent review of disclosure by Lord Justice Gross that the burden of disclosure should not render the prosecution of economic crime impractical and that ‘the tools are available; they need to be used’, Sir Brian Leveson P attempted to set out conclusions about the current law and practice on the disclosure of unused material (at [33] et seq). Extracts are set out below.

o   The prosecution is and must be in the driving seat at the stage of initial disclosure

33.The CPIA so provides and considerations of practicality demand it. It must be emphasised that at this stage, the true issues in the case may yet be unclear. It is no accident that the statutory scheme places the responsibility for determining whether material falls to be disclosed under section 3 CPIA on the prosecution.

34.In order to lead (or drive) disclosure, it is essential that the prosecution takes a grip on the case and its disclosure requirements from the outset. To fulfil its duty under section 3, the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure. Such an approach must extend to and include the overall disclosure strategy, selection of software tools, identifying and isolating material that is subject to legal professional privilege (“LPP”) and proposing search terms to be applied. The prosecution must explain what it is doing and what it will not be doing at this stage, ideally in the form of a “Disclosure Management Document”. This document, as recommended by the Review and the Protocol, is intended to clarify the prosecution’s approach to disclosure (for example, which search terms have been used and why) and to identify and narrow the issues in dispute. By explaining what the prosecution is – and is not – doing, early engagement from the defence would be prompted. Plainly such an approach requires early and careful preparation from the prosecution, tailored to the needs of the individual case. This approach is now embodied in the process for document heavy cases forming part of the Better Case Management (“BCM”) initiative. Moreover, it is reflected in the approach to “initial disclosure” (see further below) adopted by the Serious Fraud Office, ….

o   The prosecution must then encourage dialogue and prompt engagement with the defence

35.As is clear from the Rules, the duty of the defence is then to engage with the prosecution and thus assist the court in fulfilling its duty of furthering the overriding objective. It is plain that compliance with the test for initial disclosure calls for analysis of the likely cases of prosecution and defence. Absent such analysis, it would not be possible to form a view, even at this stage, of which materials would and which would not undermine the case for the prosecution and/or assist the case for the accused.

o   The law is prescriptive of the result, not the method.

36.This is particularly relevant in respect of case such as this where the prosecution has recovered vast volumes of electronic material. In our judgment, it has been clear for some time that the prosecution is not required to do the impossible, nor should the duty of giving initial disclosure be rendered incapable of fulfilment through the physical impossibility of reading (and scheduling) each and every item of material seized; common sense must be applied. In such circumstances, the prosecution is entitled to use appropriate sampling and search terms and its record-keeping and scheduling obligations are modified accordingly: we strongly endorse the approach adopted in Pearson (supra) and that contained in the extracts from the 2013 Guidelines to which we have referred.

37.The extent of the duty imposed on the prosecution at this stage, while obviously fact specific, must take account that it is initial disclosure with which the prosecution is then concerned. The right course at the stage of initial disclosure is for the prosecution to formulate a disclosure strategy, canvass that strategy with the Court and the defence and to utilise technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized. That searches and sampling may subsequently need to be repeated (to comply with the prosecutor’s continuing duty of disclosure under s. 7A CPIA or to respond to reasoned requests from the defence under s.8) is neither here nor there; the need for repeat searches and sampling does not invalidate the approach to initial disclosure involving such techniques. The problem of vast quantities of electronic documents has, in a sense, been created by technology; in turn, appropriate use must be made of technology to address and solve that problem.

38.The prosecution’s duties of record keeping and scheduling must likewise reflect the reality that not every one of perhaps many millions of e-mails is to be individually referenced. Thus, the 2013 Guidelines, at Annex A, paras. 45 – 46, reflecting the Code of Practice, qualify the requirement to keep a “record or log” of all digital material seized and subsequently retained as relevant to the investigation in cases “involving very large quantities of data”; in such cases, the obligation is to make a record of the “strategy and the analytical techniques used to search the data”. Similarly, the scheduling duty imposed on the disclosure officer separately to list each item of unused material (as contained in the Code) is modified in favour of “block listing” – albeit that it remains the prosecution’s duty to list and describe separately “the search terms used and any items of material which might satisfy the disclosure test”: 2013 Guidelines, Annex A, at para. A50.

o   The process of disclosure should be subject to robust case management by the judge, utilising the full range of case management powers.

39.Though decisions are for the prosecutor, such decisions or prosecution failures are not beyond challenge or somehow immune from the court’s case management powers. [Counsel] for the Attorney General, supported by [counsel for the prosecution], sought to advance the proposition that, at the stage of initial disclosure, judicial powers of case management were (in essence) limited to exhortatory observations or guidance; the danger otherwise was that case management powers, as contained in the Rules, would cut across the CPIA scheme. At the stage of initial disclosure, [it was submitted that]:

“It should not be for the judge to be devising the disclosure scheme ….when the issues haven’t been identified.”

40.We are wholly unable to accept these submissions. As [counsel for the first defendant] aptly put it, the effect of those submissions would be to marginalise the judge’s case management responsibilities as they apply at the stage of initial disclosure and would appear to exclude the power of the judge to enforce case management directions then made (or which the Judge would otherwise wished to have made).

41.In our judgment, the judicial task of active and robust case management is emphatically not confined to the secondary or subsequent stages of disclosure. The tenor of the Rules is quite to the contrary. So too are the various authorities, stretching back to R v Jisl[2004] EWCA Crim 696. Faced, for example, with a manifestly flawed, inadequate or inappropriate prosecution approach to initial disclosure, a judge is not constrained to limit intervention to exhortation and some veiled warning as to later consequences. The court is both entitled and obliged to give orders and directions to address the failing with which it is confronted. Neither is the judge required to watch the case become diverted from its proper course, powerless to stop it doing so until much time and costs have elapsed. The wording of s.3 was not intended to give the prosecution carte blanche to under-perform and, as experience has shown, prosecution failures in this area are of real concern: see, the Further Review conducted by Gross and Treacy LJJ, referred to above.

42.[Counsel for the Attorney General] relied on Crim PR Rule 3.5(1) which sets out the court’s case management powers is in these terms:

“In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.”

43.Referring to the obligations of the prosecution in relation to primary disclosure as described in CPIA, he emphasised the final words and argued that the exercise of case management powers at this stage would be “inconsistent with legislation”. That approach, however, is to misunderstand the simple principle that the Crim PR cannot override primary legislation. The language of Crim PR Rule 3.5(1) does not begin to restrict the panoply of the case management powers available to the judge at the initial disclosure stage. What the judge needs to do is to have regard to the context of the legislation in exercising those powers.

44.Thus, in the context of initial disclosure, it is incumbent on the judge to consider the obligations of the Crown at that stage, bearing in mind the difficulties (where such exist) of ascertaining the real issues in advance of a defence statement. Moreover, when exercising case management powers at this early stage, it is critical for the court to have regard to the structure of the CPIA scheme – initial disclosure (s.3), followed by a defence statement (s.5), the facility thereafter for a reasoned application by the defence for further disclosure (s.8) and the prosecutor’s continuing duty to disclose (s.7A). It should also be plain that, when making case management orders at the stage of initial disclosure, a judge should take care not to subvert the statutory scheme by confusing or conflating the various stages in the process.

47.…when exercising those powers, the judge must, of necessity, keep well in mind that he is then concerned with initial disclosure, with the corollary that the true issues in the case may as yet be unclear. The judge’s aim, apart from seeking to hold the prosecution to its duty of giving initial disclosure and insisting on defence engagement, must be to drive the case as expeditiously as possible towards the stage where a defence statement is required, the issues can be crystallised and questions of further disclosure dealt with on a reasoned and informed basis pursuant to sections 7A and 8 CPIA.

48.For its part, the respondents underlined that, whereas ss. 5, 6, 7A and 8 CPIA spoke of the situation when the prosecutor has complied or “purported to comply” with his obligations in question, the terms of s.3 simply provided for the prosecution to give initial disclosure – and said nothing about the prosecutor “purporting” to comply with this obligation. Too much should not be made of this point. First, in context, compliance with the prosecutor’s duty under s.3 must mean substantial compliance. Realistically, it cannot be supposed that cases will never proceed beyond the stage of initial disclosure merely because some documents have not yet been disclosed. A search for perfection in this area is likely to be illusory. Secondly, both ss. 5 and 6 provide for a defence statement to be given not only when the prosecutor has complied with s.3 but also when he has purported to comply with it. Progress can and should thus be made, even where it is or may be apparent that further prosecution disclosure might be required in the future. It also follows that cases are not doomed to proceed in compartmentalised, consecutive stages; progress can be made in parallel, both completing outstanding initial disclosure and illuminating the true issues in the case pursuant to ss. 5, 6, 7A and 8.

o   Flexibility is critical

49.Both the review and all other source materials on disclosure emphasise that it is not to be conducted as a “box-ticking” exercise; … In a document heavy case (whether electronic or paper), there can therefore be no objection in principle to the judge, after discussion with the parties, devising a tailored or bespoke approach to disclosure. That must certainly be preferable to dealing with the matter in a mechanistic and unthinking way.

50.There is also no reason in this regard why lessons cannot be learnt from advances in disclosure in civil procedure: see the Review at paras. 79 et seq. However, whatever the approach adopted, there is one overriding proviso: the scheme of the CPIA must be kept firmly in mind and must not be subverted. The constant aim must be to make progress, if need be in parallel, from initial disclosure to defence statement, addressing requests for further disclosure in accordance with s.8. If this proviso is overlooked, the real danger is that an apparently attractive “shortcut” will turn out to be a dead-end, leaving all concerned bogged down in satellite litigation over initial disclosure.

51.Properly applied, the application of these principles will keep the case within the statutory scheme, hold the parties to their duties thereunder and ensure that the proceedings are dealt with fairly, efficiently and expeditiously, in accordance with the overriding objective enshrined in the Rules.

52.… While it is right that attention must be paid to the format of the material supplied (see the Review, at para. 159), it is no part of the prosecution’s duty under s.3 to improve the material seized.

53.Before leaving this part of the case, three other issues must be addressed. The first is to underline one of the “Overarching Principles” set out in the Review of Efficiency in Criminal Proceedings (2015). The principle is “getting it right first time” and its relevance to the present case arises from the fact that the appellant’s stance before this court is substantially different from that adopted before [the trial judge].

54.…Save very exceptionally, a party is not permitted to acquiesce in an approach to the case before the judge at first instance and then renounce its agreement and advance a fundamentally different approach on appeal. Parties must get it right first time.

55.The second issue concerns the question of a preparatory hearing. As we have noted, this does not appear to be a case where the approach of the judge was imposed upon an unwilling party. The question does, however, arise as to what can be done to challenge an order made in a pre-trial hearing by a judge where, if the parties are left to a post-trial appeal and the judge turns out to have been wrong, the trial will have proceeded on a false footing, delay can be measured in terms of years and the costs in millions of pounds. Such considerations lead naturally to an inquiry as to whether a preparatory hearing could or should have been sought in this case, pursuant to s.29 of the CPIA. Had there been a preparatory hearing and had there been a dispute as to the approach in law to disclosure favoured by the judge, it could have been challenged by way of appeal from such a hearing rather than many years later by way of an appeal arising from the decision to stay proceedings; it is inherently likely that any such appeal would (or certainly could) have been brought to this court some years earlier.

56.It is plain from their responses to us that the parties did not even consider asking for a preparatory hearing. Additionally, the respondents submitted that a preparatory hearing would have done no good, given the very late change in the appellant’s case as to disclosure; on the face of it, there is force in this submission though it is very possible that an earlier appeal by way of that route might have brought about an earlier change in the Crown’s approach.

57.The observations which follow therefore look to the future rather than to the present case. In general, parties are discouraged from seeking preparatory hearings

58.We are bound to agree that preparatory hearings should be very few and very far between. Were it otherwise, a glut of interlocutory appeals would overload this court and timetables, both for the proceedings in question and other appeals, would be subject to serious disruption. In an exceptional case, however, where there is essentially a discrete dispute of law (not fact) as to the approach to be followed by way of disclosure, consideration might be given to a preparatory hearing. The advantage of doing so is that it would facilitate an interlocutory appeal to this court, with the attraction of preventing the case from proceeding on a false footing and saving the parties from very substantial losses of time and money.