Disclosure and abuse of process in the context of serious fraud litigation and other criminal cases

The recent Court of Appeal case of R & Others [2015] EWCA 1941 examined the relationship between prosecution failures in disclosure and abuse of process. The Court, presided over by Sir Brian Leveson, examined the proper approach to disclosure in the context of those large cases (in particular serious fraud) where huge amounts of data were held by the Crown. In the instant case, which was a prosecution appeal hence the lack of factual detail, the Judge had stayed the proceedings as an abuse of process but erroneously (so said the Court) on the grounds of delay. It reviewed the various leading authorities, statutory authority, practice directions and guidelines on the question of disclosure in the context of criminal proceedings from which it derived the following principles:

1. The prosecution is and must be in the driving seat at the stage of initial disclosure;
2. The prosecution must then encourage dialogue and prompt engagement with the defence;
3. The law is prescriptive of the result not the method;
4. The process of disclosure should be subject to robust case management by the judge, utilizing the full range of case management powers;
5. Flexibility is critical.

In this case, the Court judge had given too much weight to the delay in the case and had not considered the fundamental question of prejudice in the context of the impact of the prosecution failings on the ability of the defendants to have a fair trial. Importantly, the Court observed that “there is clear authority for the proposition that such delay may be cured by a reduction in sentence”.

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