Latest failure to overturn SFO galvanises CPAW and enlarges accused’s access to exculpatory material

By David Corker, Corker Binning

Last week’s judgment in R (AL) v SFO [2018] EWHC 856 is the latest of several unsuccessful attempts to overturn a decision of the SFO by way of a judicial review (JR). However, in common with the Soma Gas and Oil challenge ([2016] EWHC 2471), this judgment is another example of the SFO losing by appearing to win.

This article concerns how this judgment has altered the law relating to third party disclosure in criminal proceedings. In a wide-ranging sweep of law and practice in the light of the advent of deferred prosecution agreements (DPAs), this was only one of several criminal fraud-related legal issues that the judgment addressed. The Admin Court in this case seized the opportunity to enlarge the rights of an accused to obtain disclosure of relevant information from an otherwise reluctant third party possessor of it.

A brief introduction will suffice. There is a plethora of law and guidance concerning the gathering and subsequent disclosure to an accused of prosecution unused material. This case does not affect any of this. Instead it concerns information relevant to an accused’s defence, but which is not (and never has been) in the possession of the Crown. The situation here was that the extensive notes of AL’s original witness interview were in the possession of a firm of solicitors (ABC LLP) acting on behalf of a client (XYZ Ltd). AL sought disclosure of these for the purpose of his defence in a prosecution of him being brought by the SFO. These third parties had refused to disclose these notes asserting that they were subject to XYZ’s legal privilege. The SFO was unwilling to interfere despite it regarding the privilege claim as dubious. Believing that these notes were exculpatory of him and that there was no other avenue by which this refusal could be challenged, AL sought this JR.

In refusing AL’s application, the Court held – albeit implicitly – that he had misunderstood the law concerning his entitlement to require the two third parties to disclose the notes. That contrary to his submission that the criminal law provided no remedy and so only an appeal based on broad public law principles was available, the Court held that s2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (2CPAW) provided a bespoke and adequate means of securing the notes’ disclosure. AL was thus mistaken to contend that there was a lacuna in the law concerning the protection of the rights of an accused which only a JR could fill.

2CPAW grants the Crown Court a power to issue a witness summons which compels a reluctant individual to either attend court and testify or to produce “material evidence”. A summons may be issued at the behest of the prosecution or defence. The courts have construed the ambit of this statutory power narrowly by holding that material evidence does not encompass material intended to be used in cross-examination. “Material” means admissible per se and not contingent upon what a witness may testify. The policy underlying this restrictive approach to the availability of this power was borne of a concern to prevent vulnerable witnesses, usually the alleged victim, from being forced to divulge private information about themselves to the accused.

As lawyers are oft to say, context is everything. For the Admin Court the spectre of an individual, AL, being refused access to potentially exculpatory material – at the behest of XYZ via ABC whilst the former had admitted its complicity in the same facts that had caused the SFO to prosecute AL and in doing so had obtained a DPA for itself – was not a vista which the Court was willing to countenance. In its view, the public interest or justice required a radically broader construction of the ambit of 2CPAW. XYZ’s commercial interests in keeping the notes secret when it had gained the advantage of a DPA which had converted its hitherto inculpatory conduct into exculpatory were deemed by the Court to be of no importance.

The Court held that the notes could be compelled via the witness summons route as they contained information which was capable of being used in cross-examination. The significance of this change can be illustrated as follows: whereas previously information establishing whether or not a witness had made a prior inconsistent statement to that contained in their witness statement prepared for the trial was not within range of a summons. Lacking certainty as to what the witness had exactly said on an antecedent occasion, the courts had held that the application for a summons was speculative (i.e. a line of inquiry which only might result in admissible evidence being obtained). Thus the material evidence criterion was not satisfied. Whereas now if there is a reliable basis for contending that the witness has made a prior account, then the notes or records of this are within range. If such notes are capable of being used in a cross-examination of the witness then the criterion is satisfied.

2CPAW has been galvanised by this judgment. It should now be a potent means of forcing disclosure from a third party who is likely to be in possession of possibly relevant material. For a company conducting an internal investigation via its lawyers where witnesses are interviewed and a record of their accounts created, probably those records will have to be disclosed to an accused if the conduct about which he/she is being prosecuted overlaps with what those lawyers had probed.