Director of Public Prosecutions, R (on the application of) v Crown Court at Caernarfon & Anor

An order for disclosure of unused material under the Criminal Procedure and Investigations Act 1996 requires a proper evidential basis for concluding that the material might undermine the prosecution case, assist the defence, or represent a reasonable line of enquiry. A bare assertion by an undisclosed or potential expert that all available footage is needed to form an opinion does not satisfy that test. Where expert evidence is relied upon in support of the application, the expert’s report must be served so that the court can evaluate it. An interlocutory disclosure ruling may exceptionally be challenged by judicial review where the issue has wider application, is independent of the ultimate result, and cannot otherwise be challenged.

The Director of Public Prosecutions challenged an interlocutory disclosure ruling made by the Crown Court at Caernarfon during an appeal against a speeding conviction. The interested party sought disclosure of several hours of unused video footage recording the operation of a prescribed speed-measuring device on other vehicles. The footage relating to the interested party’s vehicle had already been disclosed.

The Crown Court ordered disclosure because a potential defence expert was said to require the complete recording before expressing an opinion. No expert report had been served in support of the application. The issues were whether judicial review was available and whether the disclosure order satisfied the statutory and procedural requirements.

1. Judicial review. The challenge was properly brought despite the interlocutory nature of the Crown Court ruling. The issue had potentially general application, did not depend on the outcome of the underlying appeal, and there was no other effective means of challenging the ruling.
2. Disclosure test. Unused material is disclosable only where it might reasonably be considered capable of undermining the prosecution case or assisting the accused. The disclosure regime under sections 3, 7A and 8 of the Criminal Procedure and Investigations Act 1996, together with CrimPR Part 15, Part 19 and the Attorney General’s Guidelines on Disclosure, provides a balanced mechanism for securing a fair trial without imposing unnecessary burdens.
3. The principles stated in R (on the application of DPP) v Manchester and Salford Magistrates’ Court [2017] EWHC 3719 (Admin) applied. There must be a proper evidential basis for concluding that the material sought could undermine the prosecution or assist the defence, or that it represents a reasonable line of enquiry. It is insufficient merely to assert that an expert needs the material.
4. Expert evidence. Under CrimPR rule 19.3(3), a party relying on expert evidence in support of an application must serve the expert’s report as soon as practicable and with the application. The potential defence expert’s opinion was central to the application, but no report had been served. The judge therefore had no proper evidential basis on which to assess the disclosure request.
5. The fact that the unused footage was in the possession of the police, unlike the material in Manchester and Salford Magistrates’ Court, did not affect the governing principle. Nor had the Crown Court ordered production under CrimPR Part 19.3(d); it had ordered disclosure of all the footage on the flawed basis that an expert needed it.
6. The application succeeded. The Crown Court’s disclosure order was quashed. No order was made concerning the limited siting-check footage because no specific application for that material had been made, although the prosecution accepted that it would comply with such a request.

The claim was a judicial review of an interlocutory disclosure ruling made by His Honour Judge Huw Rees at Caernarfon Crown Court on 3 October 2018. The High Court quashed that ruling.