Crown Prosecution Service v LR

A defendant must be afforded a proper opportunity to discuss, in private and confidence, with legal advisers the prosecution material on which the case depends. Where that access is integral to preparation for trial, the prosecution must propose satisfactory arrangements. Lawyers’ limited possession of prohibited material for that purpose is protected by the relevant legislation and professional undertakings may regulate its custody.

Orders of a Crown Court judge made to secure a fair trial must be obeyed. Prosecution non-compliance will normally lead to exclusion of the affected evidence or, where the case depends on it, a stay for abuse of process. Only exceptionally could the prosecution properly refuse an order as so inimical to justice that no reasonable judge could have made it.

The Crown Prosecution Service appealed under section 58 of the Criminal Justice Act 2003 against a Portsmouth Crown Court ruling that proceedings against LR should be stayed as an abuse of process.

LR denied making or possessing indecent photographs of children. His case included that some images depicted adults and that any images of children had been placed on his computer by another person. The prosecution’s proposed arrangements would have required LR and his lawyers to view the images at court while a police officer remained nearby.

The judge rejected those arrangements because they imperilled confidential legal consultation. He ordered the prosecution to prepare identical copies for the court and defence, subject to safeguards. The CPS refused to comply and offered no alternative arrangement. The central issue was whether the resulting stay was justified.

1. Appeal dismissed. The Crown Court was entitled to stay the prosecution after the CPS refused to comply with its order. The order was directed to securing the minimum access required for LR to prepare his defence fairly.

2. A defendant is entitled to private and confidential discussions with legal advisers, without observation or supervision by police officers or CPS representatives. Where prosecution material is the basis of the case, the defendant and lawyers must have access to it during those discussions. Otherwise informed advice and proper trial preparation cannot be achieved.

3. The prosecution, as the holder of the material, must propose satisfactory arrangements for confidential access. In the absence of an agreed arrangement, the judge decides whether the facilities are sufficient. The CPS’s proposal did not meet that elementary requirement, and it offered no workable alternative to the judge’s order.

4. Orders of Crown Court judges made in the interests of a fair trial must be obeyed. The normal consequence of prosecution disobedience is exclusion of the affected evidence or, where the whole case depends on it, a stay. It will be exceptionally rare for an order to be so inimical to justice that the prosecution may properly refuse to comply and challenge a consequential stay.

5. The court rejected as unrealistic the concern that CPS or police employees acting under the order might face prosecution. The Protection of Children Act 1978 and the Criminal Justice Act 1988 recognise protected possession by lawyers for professional purposes. Lawyers and jurors should be trusted to use the material only for the authorised purpose. Necessary safeguards include limiting copies, retaining and controlling the material securely, and returning it to the CPS when the trial ends.

The court added that the precise practical arrangements will vary. Technology may permit confidential access without hard copies, but any arrangement must preserve both confidentiality and the strictly limited lawful purpose of possession.

• Court of Appeal (Criminal Division): The prosecution appeal under section 58 of the Criminal Justice Act 2003 was dismissed.

• Crown Court at Portsmouth: Judge Pearson ruled on 15 January 2010 that the proceedings should be stayed as an abuse of process after the CPS declined to comply with an order securing defence access to the images.