Director of Public Prosecutions v Wood

Disclosure under the Criminal Procedure and Investigations Act 1996 is confined by the statutory definition of prosecution material. Material retained solely by an independent third party is not in the prosecutor’s possession merely because the third party supplies or maintains equipment under contract with the police. A defendant must identify a real defence issue to which the requested material could materially contribute. General challenges to type approval do not justify disclosure. A stay for abuse of process cannot rest on non-compliance with an order that should not have been made.

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. The readings were obtained from type-approved Intoximeter EC/IR devices. In both cases the district judges ordered disclosure of unedited machine records held by Intoximeters UK Ltd and stayed the proceedings when the company declined to provide them.

The appeals concerned defence statements, the relevance of material about reliability and type approval, whether third-party material was prosecution material under section 8 of the Criminal Procedure and Investigations Act 1996, and whether non-disclosure made a fair trial impossible.

1. Appeals allowed. The cases were remitted for hearing before different district judges.
2. Primary disclosure occurs when the prosecutor discloses material that might undermine the prosecution case or gives a written statement that no such material exists. A later schedule of unused material does not trigger the defence-statement period. A late statement may still be a statement under sections 5 or 6.
3. A section 8 application must relate to an issue actually raised in the defence statement. General allegations cannot justify far-reaching disclosure. In McGillicuddy’s case, the statement did not raise an issue about driving, alcohol consumption or mouth alcohol.
4. Type approval itself was not a defence. Disclosure required material capable of showing that an alteration removed the device from the approved description, or that particular unreliability could reduce the reading below the prosecutable level.
5. Intoximeters UK Ltd was a third party, not the prosecutor, the CPS, a disclosure officer or part of the prosecution team. Contractual relations did not create possession or constructive possession for section 8.
6. The stays were unjustified. The district judges should have considered a witness summons under section 97 of the Magistrates’ Courts Act 1980. Even if material could not be obtained, that would not automatically make a fair trial impossible.

These were appeals by way of case stated from decisions of district judges in the magistrates’ courts. The High Court allowed both appeals and remitted the cases for hearing before different district judges.