Richards & Ors, R. v

Initial disclosure under Criminal Procedure and Investigations Act 1996, section 3 is governed by its statutory outcome, not by a prescribed method. In a case involving vast electronic material, the prosecution need not read or schedule every file. It may use a properly considered and proportionate strategy of sampling, search terms and appropriate technology, while recording and explaining its approach.

The prosecution leads initial disclosure, but the defence must engage and the judge must actively manage the process. Case management must not collapse the statutory stages of initial disclosure, defence statements, further disclosure and the continuing disclosure duty. A stay for abuse of process based on delay requires serious prejudice that makes a fair trial impossible; delay, inconvenience and prosecutorial incompetence alone do not suffice.

HMRC investigated an alleged large-scale tax mitigation scheme involving carbon-emissions certificates, limited liability partnerships and claims for tax loss relief. The prosecution alleged that the respondents dishonestly created a sham structure and used it to place substantial tax revenue at risk.

After extensive disputes about disclosure of approximately seven terabytes of seized electronic material, Sir Vivian Ramsey stayed the proposed prosecution as an abuse of process. He concluded that the prosecution had failed to provide a usable, CPIA-compliant electronic dataset and that a fair trial was no longer possible.

The Crown gave notice of intention to appeal under the Criminal Justice Act 2003. The central issues were the extent of initial disclosure in a document-heavy criminal case and whether delay and disclosure failures justified a permanent stay.

1. Appeal allowed. The stay was lifted and the proceedings had to resume in the Crown Court. The judge's ruling was unreasonable because it proceeded on an incorrect understanding of the requirements of initial disclosure under Criminal Procedure and Investigations Act 1996, section 3.

2. Section 3 requires disclosure of unused prosecution material which might reasonably undermine the prosecution or assist the accused. It does not require disclosure of neutral or adverse material. The statutory scheme is staged: initial disclosure is followed by defence statements, possible specific-disclosure applications and a continuing duty of review.

3. In a case involving very large electronic datasets, the prosecution is not required to perform the impossible by reading every word or byte. It may use proportionate sampling, search terms and other suitable analytical tools. Its scheduling and record-keeping duties must reflect that approach, while separately identifying potentially disclosable material and explaining the strategy used. On the facts, the Crown had sufficiently discharged its initial disclosure obligations by September 2011.

4. The prosecution must formulate and explain its disclosure strategy, encourage defence engagement and drive the case towards a defence statement. The judge retains full active case-management powers at the initial-disclosure stage and may direct a response to an inadequate prosecution approach. Those powers must, however, respect the statutory sequence and must not give the defence wholesale access to material beyond the section 3 test.

5. The two abuse-of-process limbs remained distinct. A stay for inability to receive a fair trial required serious prejudice, not merely unjustified delay, bail conditions or personal distress. This largely documentary case could still be tried fairly. Nor was there deliberate misconduct or bad faith sufficient to make a trial offend justice or propriety. Prosecutorial incompetence did not justify extending the abuse jurisdiction.

6. Leave was granted under the Criminal Justice Act 2003, section 57(4). A Queen's Bench judge was to be nominated to manage and try the resumed proceedings, including any necessary preparatory hearing, defence statements and further disclosure.

• Court of Appeal (Criminal Division): The Crown's appeal under the Criminal Justice Act 2003 was allowed. The court reversed the stay, lifted it and directed that proceedings resume: [2015] EWCA Crim 1941.
• Crown Court at Southwark: Sir Vivian Ramsey stayed all counts of the draft indictment as an abuse of process by a ruling dated 1 May 2015, on the basis of disclosure failures and delay.