England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
INTERLOCUTORY APPLICATION UNDER
SECTION 9(11) OF THE CRIMINAL JUSTICE ACT 1987
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
(HHJ SWIFT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th June 2003

Lord Justice Kay:

1. On 10 April 2003 the court heard an application on behalf of David McHugh for leave to appeal against a ruling made by His Honour Judge Swift sitting in the Crown Court at Liverpool on 3 March 2003. We refused that application and as indicated we now give our reasons in writing.
2. Mr McHugh was at the time one of 10 people awaiting trial in the Liverpool Crown Court on allegations of conspiracy to defraud. The fraud alleged was one arising out of the operation of a debt collecting agency.
3. The matter with which the proposed appeal was concerned raised the question of the prosecutor's duty of disclosure to an accused of a co-accused's defence statement and the judge's power to control such disclosure.
4. At the hearing on 3 March 2003, the judge was invited to rule that the prosecution should not disclose the defence statement served on behalf of Mr McHugh to any co-accused. The judge's ruling was in the following terms:

"It seems clear to me that so far as disclosure of these documents is concerned they have come into the hands of the Crown. The Crown must look at each individually, relate them to what the Crown understands the situation to be so far as each individual is concerned and must make a decision applying the Crown's statutory duty. I have no power to direct the Crown not to discharge a statutory duty."

5. The two grounds that Mr Radcliffe QC on behalf of Mr McHugh sought to raise were:

i. The judge was wrong to rule that the prosecution were under a duty to consider whether they were required to disclose a defence statement served by a co-accused; and

ii. The judge was wrong when he concluded that he had no power to monitor or supervise the Crown's duty regarding disclosure and could not prevent the Crown disclosing certain material if they so decided.

6. On 27 March 2002 Judge Swift had directed that a preparatory hearing should take place pursuant to Section 7(1) of the Criminal Justice Act 1987 ("The 1987 Act"). The preparatory hearing commenced that day with the arraignment of the accused as was required by Section 8 of the 1987 Act. At the hearing the judge ordered the prosecution to supply the court and each defendant with a case statement in accordance with Section 9(4) of the 1987 Act.
7. On 30 June 2002, the prosecution served their case statement. At the resumed preparatory hearing on 19 July, the defendants were ordered to serve a defence statement in accordance with Section 9(5) of the 1987 Act. Mr McHugh served his defence statement on 5 November. Each of the co-accused had by that date already served their defence statements.
8. In R v Tariq & Ors (1991) 92 Cr App R 277, the Court of Appeal considered a case in which a judge at a preparatory hearing made an order that the appellant and his co-accused cross served their respective case statements on each other. The Court of Appeal concluded that he had no power to make such an order. This was because Section 9(5) of the 1987 Act permitted a judge to order the giving of such a statement to "the court and the prosecution" but there was no mention of any power to direct a defendant to serve a copy of the statement on another defendant.
9. In the light of this decision, Judge Swift quite properly made no order for service of defence statements on any co-accused.
10. On 22 November 2002, this court gave judgment in Cairns, Zaidi and Chaudhary [2002] EWCA Crim 2838, [2002] 1 WLR 796. The court in that case was considering a different question namely the duty of the prosecution to disclose any information in their possession to the defence under Section 7 of the Criminal Procedure and Investigations Act 1996. Since a defence statement served on the prosecution might disclose information that either undermined the prosecution case against a co-accused or alternatively might assist the defence of a co-accused, the question was clearly raised whether the prosecution were in possession of information that they were under a duty to disclose. The court concluded at paragraph 78:

"… if the prosecutor, having received the defence statements of co-defendants, forms the view that a defence statement of one might reasonably be expected to assist the defence of another defendant, then in those circumstances the obligation under section 7 to make secondary disclosure would cover that defence statement. We emphasise that that does not mean automatic disclosure of defence statements by the Crown in all cases where more than one defendant is being tried. The Crown has to make the usual judgment under Section 7(2) of the 1996 Act. But if the terms of that sub-section are met, such defence statements should be disclosed, subject of course to any issue of public interest immunity which may arise."

11. The court then continued:

"79. We are strengthened in this conclusion about the proper approach to defence statements under Section 7(2) by a consideration of the provisions of Article 6 of the European Convention on Human Rights. In particular one notes that Article 6(3) provides that:

"Everyone charged with a criminal offence has the following minimum rights…

(b) to have adequate time and facilities for the preparation of his defence.

82. In Jaspers v Belgium [1981] 27 DR 61, the commission held that this required the prosecution to disclose any material in its possession which might assist an accused person in exonerating himself. That is not restricted to material acquired by the prosecution in any particular way. This court is under an obligation as was the trial court, to interpret legislation (so far as it is possible to do so) in a way which is compatible with the convention rights: see Section 3(1) of the Human Rights Act 1998. If a breach of an accused rights under article 6 is to be avoided, the interpretation of the prosecutions obligations under Section 7 of the 1996 Act which we have adopted earlier in this judgment must be applied, and it is for the reasons already indicated clearly possible to adopt such an interpretation."

12. In the light of this judgment some of those charged sought from the prosecution disclosure of other defendants defence statements.
13. As a result on 17 January 2003, a Crown Prosecutor from the CPS casework directorate wrote to the applicants solicitors saying:

"An approach has been made to the prosecution with the regard to the disclosure of defence statements, which have been served in this case.

This approach is based on the ruling of the Court of Appeal in the case of Cairns, Zaidi and Chaudray... which is authority for say doing that the prosecution should in certain circumstances disclose the defence statements of one co-accused to another.

At first sight, the decision appears to conflict with the decision in R v Tariq… which says that a judge has no power to order a defendant to serve his defence statement on a co-defendant.

It is my view that Traiq is distinguishable from Cairns, Zaidi and Chaudray and that it is the latter authority, which should be followed, in the instance case. Following the spirit of disclosure laid down in R v Keen (1994) and other authorities, I am of the opinion that there ought to be full disclosure of all

defence statements in this case. This opinion is based on the desire to ensure fairness as between the defendants.

I would be grateful for your comments on this proposed course of action and ask that you reply in writing within 14 days of the date of this letter indicating whether you agree or object to the proposal. Failure to respond will be taken as agreement."

14. Whilst it would appear that some of the defendants were content with this approach, those representing the applicant objected to the course proposed and in due course the matter came before Judge Swift on 3 March 2003.
15. On that occasion Mr Chruzscz QC was appearing for the prosecution. He had only recently been instructed in the case and he had had little time to fully grasp all the detail of this complex fraud case. He indicated to the judge that the letter of 17 January 2003 proposing disclosure of all the defence statements in their entirety was wrong but in accordance with the duty of disclosure imposed upon the prosecution, it would be necessary to examine the contents of each defence statement and decide whether or not there was material contained in any such statement that either might reasonably be expected to assist a co-accused or which undermined the prosecution case against a co-accused. If there was, then there was a duty on the prosecution to disclose the relevant parts of the defence statement to the co-accused being material by then in the possession of the prosecution.
16. The judge having heard Mr Chruzscz, supported as he was by other counsel representing some of the co-accused, ruled in the way that we have set out in paragraph 4.
17. The appeal that the applicant sought permission to bring against that decision was an appeal pursuant to Section 9(11) of the Criminal Justice Act 1987. That section permits an appeal against the determination by the judge of any question of the admissibility of evidence or any other question of law relating to the case. It does not permit an appeal against purely administrative directions given by the judge in the course of his management of the case. In any case the judge is entitled to give such directions and no appeal lay against those directions before the trial in any case whether or not made in the course of a preparatory hearing pursuant to Section 9 of the 1987 Act.
18. Thus before there is a right of appeal, it is necessary to identify what was the point of law relating to the case determined by the judge. The only one that the court can identify is contained in the last sentence of his ruling, namely that he had no power to direct the Crown not to discharge a statutory duty.
19. In so far as the grounds allege that the judge "concluded that he had no power to monitor or supervise the Crown's duty regarding disclosure and could not prevent the Crown disclosing certain material if they so decided", it is quite apparent that the judge did not make any such determination. His ruling was that the Crown must disclose matters in accordance with their statutory duty and that he had no power to direct the Crown not to discharge its statutory duty. That is a very different matter. Thus the second proposed ground of appeal must inevitably fail.
20. As to the first ground that the judge was wrong to rule that the prosecution were under a duty to consider whether they were required to disclose a defence statement served by a co-accused, or any part of such a statement, the law in relation to this matter was clearly settled in the case of Cairns. A defence statement in the possession of the Crown may contain material that the prosecution are under a duty to disclose. Therefore the judge was entirely right to rule that the prosecution were obliged to consider whether they were required to disclose any defence statement. In the light of the decision in Cairns, we were in no doubt that this ground although raising a point of law determined by the judge was nonetheless a ground that was unarguable. Accordingly we refused permission.
21. We think it necessary only to record a number of other matters in respect of which there was argument advanced before us. Both Mr Chruzscz for the prosecution and Mr Edis QC who appeared at the application on behalf on one of the co-accused contended that a failure to reveal material contained in a defence statement which effects a co-accused may breach Article 6(3) The European Convention of human Rights, which affords the co-accused to have adequate time and facilities for the preparation of his defence. As Mr Chruzscz points out if the prosecution were not under a duty to disclose such material, they could decide to conduct their case so that it avoided raising a matter in the knowledge that a co-accused would subsequently raise it to the advantage of the prosecution but of which the defendant had no prior warning. It would in effect amount to the prosecution laying a trap for the defendant. We can see the force of that argument although it was unnecessary for us to deploy it since we had already concluded that this application had to fail.
22. Equally, it would have had to be considered whether the trial judge, who was aware of the material was under a duty himself to order its disclosure to a defendant where the material affected that defendant's position. Royce J in the case of R v Esposito and others heard in the Crown Court at Liverpool on 20 December 2002 concluded that a judge might have to take such a step. Although we do not need to reach a firm conclusion on the matter, it would seem to us that it is likely that he is right.
23. Mr Radcliffe addressed a part of his argument to the timing of disclosure and argued that a defence statement only became disclosable at the point when the defendant gave evidence adverse to another defendant. We simply do not accept that to be right. The court will do nothing to discourage prompt disclosure that enables a case to be conducted fairly and efficiently particularly since the defendant can not be prejudiced by early disclosure. If he subsequently goes in the witness box and gives evidence in accordance with his defence statement, then knowledge of it by a co-accused cannot possibly be to his disadvantage. If on the other hand, he departs from his defence statement and says something different from that which appears in it, then it is accepted that the co-accused must at that stage be provided with the material to show the departure. Hence it is difficult to envisage circumstances in which it could prejudice a defendant for his defence statement to be revealed to a co-accused if ultimately that is to happen.
24. We have no doubt that this application was wholly without merit and that the judge and the prosecution were entirely right in their stance on this matter. There is a growing tendency to mount artificial hurdles to the smooth running of criminal cases and we thought that this application was an example of that unwarranted tendency.