Boardman, R v

A trial judge may refuse an adjournment and exclude prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984 where late service has prevented the defence from properly meeting the evidence. The judge must apply the overriding objective in the Criminal Procedure Rules 2015, balancing fairness to the parties, the interests of victims and witnesses, efficient use of resources, and the seriousness and complexity of the case.

Serious prosecutorial failures in preparing and serving exhibited material may justify a terminating ruling. The defence must also raise disclosure problems promptly. It may not use disclosure obligations to require the police to undertake defence investigations.

The respondent faced charges of stalking based on abusive and sexually explicit calls and text messages allegedly made from a mobile telephone. The prosecution relied on call-data and cell-site material to connect that telephone with the respondent’s own telephone.

Although the material had been exhibited, the prosecution did not provide the defence with the relevant digital data until shortly before the listed trial. The defence sought an adjournment so that an expert could analyse it. The prosecution agreed, but the trial judge refused an adjournment and excluded the telephone evidence under section 78 of the Police and Criminal Evidence Act 1984. That terminating ruling ended the prosecution.

The Crown Prosecution Service sought leave to appeal under the Criminal Justice Act 2003. The central issue was whether the judge had exercised his case-management and exclusion discretion unreasonably.

1. Leave to appeal was granted, but the appeal was dismissed. The judge had been entitled to exclude the telephone and cell-site evidence. Under section 61(3) of the Criminal Justice Act 2003, the respondent was consequently acquitted of the offences subject to the appeal.

2. The trial judge had properly considered the overriding objective in the Criminal Procedure Rules 2015. He had taken account of efficient case management, the interests of the complainants, the respondent’s rights, and the prosecution’s serious failures to prepare and serve the material. The prosecution’s failings were relevant, not collateral. The respondent was entitled to exhibited material which was material to his defence, and the eventual need for a further substantial delay caused him real prejudice.

3. The Court rejected the contention that pressure on the CPS excused the failures. Effective case management requires parties to comply with directions without assuming that an additional court order, or a warning, will precede sanctions. Applying R v Jisl [2004] EWCA Crim 464, the Court confirmed that appellate courts will support trial judges who exercise their case-management responsibilities consistently with those principles.

4. The Court also gave guidance. The disclosure regime in section 8 of the Criminal Procedure and Investigations Act 1996 concerns material already held or inspected by the prosecution which might undermine its case or assist the defence. It does not enable the defence to require the police to carry out investigative work. Conversely, a defence which knows in sufficient time of a disclosure difficulty must alert the court; a judge may treat a late failure to do so as defeating a later complaint of prejudice from an adjournment. Attempts to seek inconsequential material merely to obtain a terminating ruling may themselves amount to an abuse of process.

• Court of Appeal (Criminal Division): in [2015] EWCA Crim 175, granted the Crown leave to appeal but dismissed its appeal from the terminating ruling.
• Crown Court at Chester: His Honour Judge Dutton refused an adjournment and excluded the telephone and cell-site evidence under section 78 of the Police and Criminal Evidence Act 1984, thereby making a terminating ruling.