B & G, R. v Re Interlocutory Application,

A Crown Court may, during a preparatory hearing in a serious and complex fraud trial, make ancillary orders to give effect to a public-interest-immunity non-disclosure ruling. It may in principle restrain use of material inadvertently disclosed.

Such restraint is justified only where justice requires it. The court must consider whether the status quo can realistically be restored and whether the order would impair legal advice, client confidence, privilege, effective review of public-interest immunity, or fairness between co-defendants. An order preventing lawyers from discussing material they have seen with their clients was inappropriate where those consequences made restoration impracticable and unjust.

Five defendants faced charges of conspiracy to defraud and conspiracy involving the Theft Act. Following an ex parte public-interest-immunity hearing, the trial judge ordered that sensitive material should not be disclosed.

After the prosecution inadvertently disclosed an unredacted passage to lawyers for two defendants, the judge prohibited those lawyers from disseminating or using the information, including in communications with their clients. The jury was later discharged for unrelated reasons.

The judge treated the later hearing as a preparatory hearing and granted the two affected defendants leave to bring an interlocutory appeal. The central issue was whether the Court of Appeal had jurisdiction, whether the Crown Court had power to make the restraint order, and whether the order was just and appropriate.

1. The appeals were allowed. The hearing after the jury had been discharged was a preparatory hearing for trial-management purposes under Criminal Justice Act 1987, section 7(1)(d). The court therefore had interlocutory jurisdiction.

2. The Crown Court had power to make the original non-disclosure order and ancillary orders supporting it. That power arose from sections 3(6) and 7(5) of the Criminal Procedure and Investigations Act 1996, together with section 45(4) of the Supreme Court Act 1981.

3. A Crown Court could in principle restrain use of material inadvertently disclosed before a criminal trial. The civil authorities showed that the governing question was what justice required, including whether it was too late to restore the status quo. The court did not define the full circumstances in which that power might be exercised.

4. On the facts, restraint was neither just nor equitable. It would prevent lawyers who knew the information from taking instructions, advising their clients, or deploying the material. It created an unworkable and difficult-to-police information barrier, risked damage to lawyer-client confidence, impeded informed submissions on the continuing public-interest-immunity issue, and caused unfairness between co-defendants.

5. Davis, Johnson and Rowe 97 Cr App R 110 was not distinguishable merely because the present case involved inadvertent disclosure rather than an undertaking. The judge was also wrong to decide that restrained representatives could continue to act. That was for the individual barrister or solicitor to decide in light of matters, including privileged matters, which might not be known to the court.

6. The order of 19 May 2004 was to be quashed, but its effect was temporarily continued while the court heard submissions on the position of those who had seen the information and on proposed certification questions.

• Court of Appeal (Criminal Division): By interlocutory appeals, the court allowed the challenges to the Crown Court order of 19 May 2004 and directed that it be quashed, subject to an interim continuation pending further submissions: [2004] EWCA Crim 1368.

• Crown Court: Following an ex parte public-interest-immunity ruling on 21 April 2004, the trial judge made an order on 19 May restraining lawyers who had inadvertently received sensitive material from communicating or using it. He granted leave to appeal to B and G.