McHugh, R v

A prosecutor who holds a co-defendant’s defence statement must consider it under the Criminal Procedure and Investigations Act 1996. The relevant material must be disclosed where it might reasonably assist another defendant’s case or undermine the prosecution case against that defendant. This does not require automatic disclosure of every defence statement.

An appeal under the Criminal Justice Act 1987, section 9(11), lies only from a determination of a legal question. It does not lie from ordinary case-management directions. A judge cannot direct the Crown not to perform a statutory disclosure duty.

The appellant was one of ten defendants awaiting trial for conspiracy to defraud arising from a debt-collection agency. At a preparatory hearing, he served a defence statement on the prosecution. Some co-defendants then sought disclosure of other defendants’ statements.

The Crown initially proposed complete disclosure, but later accepted that it had to examine each statement and disclose only material meeting its statutory disclosure duty. The Crown Court ruled that it could not prevent the Crown from discharging that duty. The appellant sought permission to appeal under section 9(11) of the Criminal Justice Act 1987.

The central issues were whether the Crown had to consider disclosure of a co-defendant’s defence statement, and whether the judge had determined a reviewable legal question about controlling that disclosure.

1. Permission to appeal was refused. The only legal determination capable of appeal under section 9(11) was that the judge had no power to direct the Crown not to discharge a statutory duty. The judge had not ruled that he lacked all power to monitor disclosure, nor had he made the wider determination asserted by the proposed second ground. Ordinary administrative case-management directions were not separately appealable.

2. The first ground was unarguable. The court followed Cairns, Zaidi and Chaudhary [2002] EWCA Crim 2838, [2002] 1 WLR 796. A defence statement received by the prosecution may contain material which assists a co-defendant’s defence or undermines the prosecution case against that co-defendant. The prosecution was therefore obliged to consider each statement for disclosure. Disclosure was not automatic; the statutory test governed whether relevant material had to be disclosed.

3. R v Tariq & Ors (1991) 92 Cr App R 277 did not conflict with that conclusion. It established that section 9(5) of the Criminal Justice Act 1987 did not empower a judge to order defendants to serve their defence statements on one another. The judge had properly made no such order. That limitation did not prevent the prosecution from disclosing material which it was independently required to disclose.

4. The court also rejected the submission that disclosure should await adverse evidence from the maker of the defence statement. Prompt disclosure promotes a fair and efficient trial. The court could not envisage prejudice where the statement would ultimately have to be disclosed, including where its maker later departed from it in evidence.

5. It was unnecessary to decide whether non-disclosure could breach article 6(3) of the European Convention, or whether a trial judge aware of relevant material must order disclosure. The court nevertheless considered the former argument forceful and stated that R v Esposito and others was likely right that a judge might have to order disclosure in an appropriate case.

• Court of Appeal (Criminal Division) — refused the appellant permission to appeal in [2003] EWCA Crim 1766.
• Crown Court at Liverpool — on 3 March 2003, HHJ Swift ruled that the Crown had to consider its statutory disclosure duty and that the court could not direct it not to discharge that duty.