MO, & Ors, R. v

A terminating ruling based on prosecution disclosure failures is justified only where it is established that the defendant cannot receive a fair trial. Late disclosure is not the same as non-disclosure. The court must assess whether the material can fairly be accommodated through active case management, including focused disclosure, recall of witnesses, an adjournment, or other trial directions.

Disclosure deficiencies may warrant criticism, but an inference of wholesale failure requires identified and justified findings. Orders for the wholesale disclosure of case papers are inappropriate where focused material will address the relevant issue. A terminating ruling is exceptional, particularly in a serious case.

The respondents faced serious charges of being knowingly concerned in the fraudulent evasion of import restrictions on class A and class B drugs. The proceedings were a second trial. The first had been stopped after prejudicial material reached the jury.

On 5 July 2011, at the Crown Court at Croydon, Her Honour Judge Downing made a terminating ruling and stayed the second trial for abuse of process. She relied on alleged prosecution failures to disclose unused material concerning several other investigations and documents.

The prosecution applied under Criminal Justice Act 2003 for leave to appeal and to set aside the ruling. The central issue was whether the identified disclosure failures meant that the respondents could no longer receive a fair trial.

1. Leave was granted and the prosecution appeal was allowed. The terminating ruling was set aside. A fresh trial was ordered under section 61(4) (b) of the Criminal Justice Act 2003.
2. The court accepted that an appellate court must be cautious before interfering with a trial judge's discretionary terminating ruling. It may nevertheless intervene where the ruling rests on an unjustified factual basis or an error of law or principle. Here, the judge's concerns about lost or missing material had no identified evidential foundation. The relatively few disclosure errors did not justify an inference of wholesale disclosure failure.
3. The prosecution had committed a serious error in failing promptly to review and disclose Item 212. Some other material was potentially disclosable once the cut-throat defences were clear. However, the court rejected material complaints concerning Operation Wapiti and the Krom material. It also held that the disclosure orders for entire case files had been disproportionate where the relevant points were limited.
4. A terminating ruling required proof that the respondents could not receive a fair trial. The relevant distinction was between late disclosure and non-disclosure. The court had to consider whether late material could be accommodated during the trial, with or without an adjournment. The prosecution had not closed its case, the material had been disclosed by the time of the ruling, and the respondents could have recalled witnesses, used the documents, cross-examined co-defendants, or made appropriate submissions.
5. The case instead required active case management and focused disclosure requests and orders. There was no basis to conclude that such orders would have been disregarded. The fresh trial was to be before a different judge and, preferably, at a different court.

• Court of Appeal (Criminal Division): Granted the prosecution leave to appeal under the Criminal Justice Act 2003, allowed the appeal, set aside the terminating ruling, and ordered a fresh trial.
• Crown Court at Croydon: On 5 July 2011, Her Honour Judge Downing made a terminating ruling staying the respondents' second trial for abuse of process arising from alleged disclosure failures.