Andrew Emory Tate & Anor, R (on the application of) v Director of Public Prosecutions

A prosecutor may owe a qualified common law duty to consider early disclosure before statutory disclosure duties arise, including in extradition cases. Whether disclosure is required is an intensely fact-specific, multi-factorial judgment balancing the reasons for disclosure against the reasons for withholding it.

Judicial review of such a decision attracts a substantial margin of discretion. A precautionary decision to protect vulnerable complainants may be rational where the suspect’s profile creates a risk of public identification. Article 6(3)(a) requires the fairness of the criminal proceedings to be assessed as a whole. Delayed disclosure will not ordinarily establish an arguable breach at an early stage where sufficient particulars have been given, disclosure is promised upon surrender, and the trial court can address any later unfairness.

Andrew and Tristan Tate sought judicial review of the Director of Public Prosecutions’ refusal to disclose, before their surrender from Romania, the identities of complainants in proposed English prosecutions for rape, assault and human trafficking offences.

They argued that the refusal was irrational and breached Article 6(3)(a) of the European Convention on Human Rights. The DPP maintained that the complainants were vulnerable, that disclosure created a real risk of public identification and interference with justice, and that the claimants would be informed of the identities after surrender and before their first appearance.

The court determined whether either ground was arguable and whether permission to apply for judicial review should be granted.

1. Permission refused. Neither irrationality nor breach of Article 6 was arguable.
2. The statutory disclosure regime under Criminal Procedure and Investigation Act 1996 had not yet arisen. The provisions of PACE Code C concerning information before interview also did not apply because the claimants had not been interviewed.
3. Nevertheless, the common law may impose a qualified duty to consider early disclosure. The question is fact-specific and requires a continuing, multi-factorial assessment of the reasons for disclosure and the reasons against it. The possible utility of identifying complainants before extradition did not create an unqualified right to that information.
4. The substantial restraint ordinarily applied to prosecutorial decisions in judicial review also applied to an early disclosure decision. Any prejudice caused by late disclosure could be assessed by the trial court, including on an application to stay proceedings for abuse of process.
5. The decision was rational. An experienced specialist prosecutor had met the complainants and was entitled to assess their vulnerability without obtaining expert medical evidence. The claimants’ public profile was relevant to the potential harm from disclosure, and a precautionary approach did not require a finding that disclosure was more likely than not.
6. The rejection of undertakings and security was also rational. The claimants were outside the jurisdiction, no clear legal mechanism secured the proposed payment, and the arrangement did not remove the risk of harm. The prosecution had also taken account of the delay by preserving relevant lines of inquiry and electronic material.
7. For Article 6(3)(a), fairness had to be assessed holistically. The claimants had received sufficient extradition particulars, would receive the complainants’ identities upon surrender, and could seek a stay or appeal if later disclosure caused significant unfairness. No arguable breach was established at this stage.

First-instance judicial review proceedings. Permission to apply for judicial review was refused by the High Court (Administrative Court).