Director of Public Prosecutions v Wood

For summary criminal disclosure, primary disclosure occurs when the prosecutor serves a statement under section 3 of the Criminal Procedure and Investigations Act 1996, not when a schedule of unused material is served. A late defence statement may still be a statement under sections 5 or 6, although its deficiencies may limit the disclosure properly sought. Section 8 disclosure requires a real issue in the defence statement to which the requested material might reasonably assist. Material retained solely by a commercial supplier is not prosecution material merely because the supplier has contractual relations with the police. Non-disclosure does not automatically make a fair trial impossible or justify a stay for abuse of process.

These were two appeals by way of case stated brought by the Director of Public Prosecutions against decisions of district judges in unrelated prosecutions for driving with excess alcohol. In each case the reading came from an Intoximeter EC/IR breath-testing device, and the disputed material was held by Intoximeters UK Ltd.

In Wood, the district judge ordered disclosure of unedited machine printouts and later stayed the proceedings for abuse of process. In McGillicuddy, similar disclosure orders were made and proceedings were stayed. The appeals concerned defence statements, the relevance of material concerning type approval and reliability, the statutory meaning of prosecution material, and whether non-disclosure made a fair trial impossible.

The court allowed both appeals and remitted the cases for hearing before different district judges.

1. Primary disclosure occurs when the prosecutor discloses relevant material or gives, or purports to give, a statement that there is no such material. A schedule of unused material is not itself the event starting time for a defence statement.
2. A late defence statement may still be a statement under sections 5 or 6. However, disclosure must relate to an issue actually raised in the statement. Here, reliability and type approval had no free-standing relevance because the defence did not identify a relevant issue concerning driving or alcohol consumption.
3. Type approval is not itself a defence to an excess-alcohol charge. Alleged alterations justify disclosure only if material could show that they were sufficiently fundamental to take the device outside the approved description. A particular-device reliability argument may be relevant, but the requested material must potentially show that the reading was below the prosecutable level.
4. Intoximeters UK was a third party, not the prosecutor, police, CPS, or disclosure officer. Material solely in its possession was not prosecution material under section 8 merely because of contractual supply and maintenance arrangements. The district judges therefore had no power under section 8 to order its disclosure.
5. The stays were unjustified. Where relevant material is held by an unwilling third party, the prosecutor should consider a witness summons under section 97 of the Magistrates’ Courts Act 1980. Non-disclosure does not itself establish that a fair trial is impossible.

The judgment records appeals by way of case stated from decisions of district judges. The High Court allowed both appeals and remitted the cases for hearing before different district judges.