Richards and Others [2015] EWCA Crim 1941
Full transcript (published 1 May 2018)
This is a series of extracts from the judgment of the court to which each of the members of the constitution has made a substantial contribution. The full judgment may not be reported until the conclusion of the trial because of the restrictions on reporting proceedings of this type: these provisions are contained within s.71 of the Criminal Justice Act 2003. However, because important issues of practice are involved, we have lifted the restrictions in part to enable publication of the following extracts in order to give guidance on the proper approach to disclosure and abuse of process. Identifying features of the case have been removed. As a result the relevant part of the judgment may be reported prior to the conclusion of the trial, albeit in this anonymised form.
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. Thus, it is common ground that, in this prosecution, many computers have been seized containing some 7 terabytes of data. The prosecution case has long since been served, as have prosecution case summaries, updated as time has passed. For five years, however, while proceeding in the Crown Court, the case has not progressed beyond what has been contended is necessary for primary disclosure. Neither has this state of affairs come about for want of judicial intervention.
Ultimately, [the judge] stayed the prosecution in respect of all counts of a draft indictment (which had not reached the stage of being preferred) as an abuse of process. … This is an application by the prosecution for leave to appeal that decision on the grounds that the judge had adopted an incorrect approach to the issue of initial disclosure and, in any event, having regard to the issues in the case and all the circumstances, had been wrong to stay the entire prosecution.
In the light of the issues as to the extent of the present operation of the law relating to disclosure in cases of this type, we invited the Attorney General to intervene: he did so and we are grateful for the assistance that [has been] provided. Furthermore, because of concerns expressed about the impact of decisions of the Legal Aid Agency in relation to the case, we also invited representations and received submissions from that quarter. In the event, it quickly became clear that decisions as to legal aid had not, in fact, had any impact on the conduct of the case and we deal with such issues only very briefly.
The court went on to make detailed observations in relation to disclosure.