Disclosure chaos – Fraud case collapses

Failures in disclosure in the criminal justice system have been front page news in the last few weeks.   The high profile collapsed trial of Liam Allen has been followed by others.  Last week, Alison Saunders, the Director of Public Prosecution, announced that all rape and serious sex offence cases will be reviewed with a view to ensuring fair trials for those accused.

However, the DPP and public at large need to be reminded that the failures in disclosure do not just relate to sexual offence cases alone.  The failures to disclose are endemic in the criminal justice system.   Consultants, Adam Mir & Narjis Butt and Tuckers’ Barrister, Brian Kennedy have just secured the acquittal of client Mr R following a series of disclosure failures in a high profile fraud case.

In this case, Mr R was arrested on suspicion of involvement in the fraudulent provision of loans and mortgages. His computer equipment was seized and he was subsequently charged with involvement in a £1.6m fraud and was sent to the Crown Court for trial.

At the beginning of the trial on 5th December 2017 the defence secured a stay of the indictment against Mr R. on the basis that the Prosecution had failed to comply with its obligations as to disclosure under the Criminal Procedure and Investigations Act 1996. The Prosecution sought to appeal the Stay and full skeleton arguments were lodged by the defence with the Court of Appeal. On 19th January 2018, one week before the appeal was due to be heard, the CPS abandoned their appeal and Mr R. was finally free of the criminal proceedings brought against him.

In these proceedings the Defence sought disclosure of the contents of Mr R and his co-Defendant’s computers, as well as phone data relating to telephones seized. The Crown did not disclose the material sought despite various requests for disclosure in three defence statements and frequent and focussed correspondence to the Prosecution seeking and chasing up disclosure.

“The citizen has his computer equipment seized and analysed by the police. They choose the material they find that goes towards the prosecution. The prosecution then refuses to allow the defence unfettered access to the defendant’s own computer (and that of his co-defendant) for the purpose of defending himself,” says Brian Kennedy. “Whilst we are delighted for our client in securing justice for him, given the public interest surrounding recent rape cases where prosecution late disclosure of electronic evidence was in issue, our case might well have shone a topical light on the disclosure regime under the CPIA as adhered to by the Prosecution, particularly in relation to potential electronic evidence be it on smart-phones or on computers.

This case also highlighted the importance of a defence team working closely together under pressure of time and in the client’s interests to persistently and doggedly seek pre-trial, by way of disclosure, as much material as possible to ensure a fair trial, and in the absence of such to successfully seek a stay of the proceedings against the client.”