DISCLOSURE

New proceedings based on fresh evidence, which fundamentally changed the nature of the case, were not an abuse of process because they were not a collateral attack on the earlier proceedings. Accordingly, there had not been an opportunity, let alone a full opportunity, for the claimants to run their case.

[2017] EWCA Civ 1665

The court rejected a number of procedural and substantive challenges to the validity of a search and seizure warrant issued under the Police and Criminal Evidence Act 1984 Sch.1. The judge’s failure to give reasons for issuing the warrant was unfortunate, but not fatal. That said, judges should view the giving of reasons as part of determining an application for the issue of a warrant, and the Criminal Procedure Rules Committee would be invited to consider whether the standard forms to be used on such applications should be amended to direct the giving of reasons.

[2017] EWHC 2402 (Admin)

A sentence of 18 months’ imprisonment was imposed for numerous, deliberate breaches of a freezing injunction and a disclosure order including failing to deliver up a passport, and lies about ownership or interests in 30 bank accounts and eight properties.

[2017] EWHC 1860 (Ch)

In a terrorist investigation, the application for and issue of a search warrant, the subsequent search of an individual’s property and the seizure of goods had not been unlawful. The court gave guidance on the procedures in Northern Ireland for search warrant applications and the disclosure of information supporting applications for search warrants: an application by a property owner for disclosure of the information that had led to the granting of a warrant by a lay magistrate should be made to the magistrates’ court and heard by a district judge.

[2017] NIQB 61

A 12-month prison sentence for contempt of court was not manifestly excessive where a wealthy businessman had deliberately failed to comply with a court order to disclose his assets to the CPS while awaiting trial for fraud. The court endorsed the sentencing judge’s focus on the harm to the rule of law caused if a person in the man’s position simply flouted court orders.

[2017] EWCA Crim 820

A contemnor was committed to prison for 12 months for failing to comply with an order requiring her to disclose financial information in ongoing litigation. Although she had attempted to remedy her breach by producing information after the date for compliance, that information was false and misleading, and her deceitful behaviour showed a continuing disregard of the importance of court orders.

[2017] EWHC 1302 (Ch)

An offender who had pleaded guilty to conspiracy to commit fraud, but denied an offence of theft, had the theft conviction quashed where unbeknownst to him, the witness who had identified him had a previous fraud-related conviction. There was a real possibility that the jury would have reached a different verdict if they had known about the witness’ conviction.

[2017] EWCA Crim 751

The court considered, for the first time, the circumstances in which litigation privilege and legal advice privilege could arise against a background of potential criminal litigation rather than civil litigation.

[2017] EWHC 1017 (QB)

The revised statutory scheme for the disclosure of convictions, introduced under the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 following a finding that the original scheme violated ECHR art.8, remained deficient and in need of further amendment. The concept of the revised scheme did not necessarily offend art.8, but its operation in individual cases might. The provisions relating to disclosure of serious offences and multiple offences were not “in accordance with the law”.

[2017] EWCA Civ 321

The court refused an application made by various media organisations for disclosure of video recordings taken by a marine during the killing of a wounded insurgent in Afghanistan. The balance of the principles of open justice and the rights of the media under ECHR art.10 against the circumstances militating against disclosure lay against disclosure.

[2017] EWCA Crim 326

The claimant did not satisfy the criteria for eligibility for compensation under the Proceeds of Crime Act 2002 s.72 in relation to a restraint order which had been sought against him.

[2017] EWHC 301 (QB)

The court determined issues concerning the constitution of the court when ruling on disclosure under the Criminal Appeal Act 1968 s.23(1)(a) where the Crown contested disclosure on the basis of public interest immunity and where the documents had never been the subject of any ruling by the trial judge.

[2017] EWCA Crim 37

Certain amendments to particulars of claim were allowed where they did not distort and extend the trial. The amendments related to evidence that had arisen from German trades that were part of alleged VAT fraud involving the sale and purchase of European Union allowances under the European Emission Trading Scheme.

A conviction for murder was unsafe where the prosecution had failed to disclose during the trial a crucial element of a police report which severely undermined the evidence of a key witness. The remaining evidence was dubious and provided only a weak case.

[2016] EWCA Crim 1968

Although there had been a serious failure to disclose material which undermined the credibility and reliability of a complainant in a sexual assault trial, it was clear that the jury had not relied on the complainant’s evidence and the court did not accept that a jury might reasonably have come to a different conclusion had it been aware of the further material.

[2016] EWCA Crim 2030

A conviction for conspiracy to supply cocaine and heroin was safe despite the fact that the Crown had not disclosed the limited bases of the guilty pleas of four of the co-defendants. The Crown had relied on some contact between the appellant and the co-defendants notwithstanding their accepted bases of plea that they were not involved. However, there was such an additional weight of evidence pointing to the guilt of the appellant that the court had no doubt that her conviction was safe.

[2016] EWCA Crim 1954

The statutory provisions concerning the disclosure in an enhanced disclosure certificate of conviction information (and the parallel requirement for self-disclosure to an employer) where there was more than one conviction, irrespective of the age or subject-matter of the convictions in question, were in breach of ECHR art.8.

[2016] NICA 42

In care proceedings concerning a child whose parents were suspected of involvement in terrorism, the Metropolitan Police Service, which was conducting a criminal investigation, would be given permission to disclose information revealed in the proceedings to the Security Service; however, such permission would be subject to a condition that the information should not be disclosed to or discussed with any person outside the Metropolitan Police Service, the CPS or the Security Service without the court’s further permission.

[2016] EWHC 2400 (Fam)

It was almost inconceivable that statements made to the Air Accidents Investigation Branch in the course of an investigation could properly be the subject of an order for disclosure under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 reg.18 when the appropriate balancing exercise was carried out by the court. To hold otherwise would have a serious and obvious “chilling effect” which would deter people from answering the AAIB’s questions with the necessary candour.

[2016] EWHC 2280 (QB)

The Crown Court had not erred in ordering disclosure of the identity of a police informant to the defendants in various criminal trials. A fair trial required disclosure of the informant’s identity and there was no lesser method of disclosure which would adequately protect that interest. Further, following the order for disclosure, the CPS had not erred in deciding to continue with the trials. It had been entitled to find that following disclosure of the informant’s identity, the prosecution of each defendant would remain in the public interest.

[2016] EWHC 1872 (Admin)

The judge below had been wrong to conclude that consideration of the making of a protective costs order in favour of the appellant, who was appealing against his designation under the Terrorist Asset-Freezing etc. Act 2010 s.2(1) , should await the disclosure process. There was no reason why the matter could not be considered before the disclosure exercise took place.

[2016] EWCA Civ 568

The Independent Monitor’s decision to approve the disclosure by the police on an enhanced criminal records certificate of information about an individual’s acquittal for sexual offences was unreasonable as the decision had been unsupported by the evidence at the trial for the alleged offences and the judge’s summing up.

The statutory schemes for self-disclosure of convictions under the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 and for disclosure certificates under the Police Act 1997 Pt V both infringed ECHR art.8 because they went further than was necessary to achieve their aims and because they produced arbitrary results.

[2016] NIQB 43

When reviewing a police decision about information to be disclosed in an enhanced criminal record bureau certificate the independent monitor of the Home Office had failed to conduct a reasonable, statutorily compliant, independent review of the reliability of the material that was the foundation of the information said to be relevant and ought to be disclosed.

[2016] EWHC 655 (Admin)

The court refused permission to appeal against a restraint order made under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 in relation to UK bank accounts held by two Kuwaiti nationals. There was no evidence of bad faith on the part of either the Crown or the Kuwaiti authorities in seeking the order and there was a real risk of dissipation of assets in the event that the order were not maintained.

[2016] EWCA Crim 96

A criminal trial judge had been wrong to refuse to allow media access to CCTV footage which had been viewed extensively in open court. Under the open justice principle, the default position was that access to such materials should be permitted for the purpose of contemporaneous reporting. There was no real risk of the jury being swayed by references to the material in the press or on television and there was no evidence of any social media comment about the trial.

[2016] EWCA Crim 58

The Probation Service was not liable for physical and emotional abuse suffered by a woman who had begun a relationship with a prisoner on licence without knowing that he had murdered his partner. It had no duty of care to investigate more than it had when it had learned that the relationship might be happening, and no duty to disclose the prisoner’s offending to her.

Concessions made by the Crown as to the level of involvement of an individual who pleaded guilty to conspiracy to supply cocaine, did not render his conviction unsafe. While the concessions led to the conclusion that he had been wrongly sentenced at a significant organisational level, the evidence enabled a clear inference to be drawn as to his involvement. The appropriate sentence after trial was 15 years’ imprisonment, reduced to 10 on account of his early guilty plea.

[2016] EWCA Crim 42

The statutory regime that required disclosure of historic reprimands to potential employers seeking enhanced disclosure was in the absence of procedural safeguards to assess relevance and proportionality incompatible with ECHR art.8.

[2016] EWHC 295 (Admin)

Where an offender was accused of drug offences in England and the Czech Republic, and the CPS had decided it would be more appropriate for prosecution to take place in the Czech Republic, a district judge had not erred in refusing the offender’s application for a witness summons in connection with the English investigation for the purposes of the Extradition Act 2003 s.19B(3)(d).

[2016] EWHC 139 (Admin)

The Court of Appeal gave guidance on the proper approach to disclosure and abuse of process in criminal proceedings involving large quantities of documentation.

[2015] EWCA Crim 1941

A challenge to the validity of a caution for actual bodily harm was refused as although the police had mistakenly described the victim as having a broken nose, and not in reality a suspected broken nose, overall there had not been a clear breach of the Ministry of Justice Guidance Simple Cautions for Adult Offenders para.76.

[2015] EWHC 3642 (Admin)

It was justifiable for an enhanced criminal record certificate to include information regarding an individual’s acquittal for sexual assault when he was 15 years old. The seriousness and credibility of the information made it relevant, and despite the certificate’s impact on the individual, the brief passage of time since the incident meant that it was not disproportionate to disclose it.

Failures in pre-trial investigation procedure did not affect the safety of the conviction of soldiers found guilty of kidnapping, sexual assault, theft and assault occasioning actual bodily harm. The points raised had been put in such broad terms that it was impossible to gauge whether they contained any argument of merit, and they failed to reveal any persuasive reasons for concluding that the convictions were unsafe.

[2015] EWCA Crim 1566

The court considered its approach to applications for access to personal data under the Data Protection Act 1998 s.7(9) and to exemptions from disclosure under s.29.

[2015] EWHC 2484 (QB)

In discharging their core functions of investigating crime and obtaining evidence, the police did not owe a duty of care to potential witnesses in general. Further, the Merseyside police had not assumed responsibility for the safety of witnesses to a shooting incident. A negligence claim brought by the witnesses, relating to the disclosure of their address to the defendants by the CPS, could therefore not be sustained.

[2015] EWCA Civ 836

The automatic disclosure of the claimants convictions pursuant to the new provisions under the Police Act 1997 whereby a job applicant’s convictions could be disclosed to potential employers for certain exempted areas of employment, violated her ECHR art.8 rights. The scheme did not permit consideration of the relevance of the information to be disclosed or the proportionality of that disclosure and failed to strike a fair balance between the rights of the individual and the interests of the community.

[2015] NIQB 63

Although the prosecution’s failure to disclose to a defendant certain evidence which would have bolstered his case in his rape trial was deplorable, the evidence was not so significant as to have affected the safety of the rape convictions.

[2015] EWCA Crim 905

The disclosure by police to the Local Authority Designated Officer of information about a teacher’s past sexual misconduct with students was unlawful and in breach of the teacher’s ECHR art.8 rights where the information turned out to be false and the relevant officers had failed to verify it against the police database records. The criteria in the Police Act 1997 relating to enhanced criminal record certificates also applied to other forms of disclosure.

[2015] EWHC 1238 (Admin)

A defendant who had been convicted upon his guilty plea to the offence of conspiracy to cause explosions with intent to endanger life was refused permission to appeal when it subsequently emerged that an expert witness for the Crown had failed to disclose some addendums to his report. Non-disclosure was not, by itself, an abuse of court process. The defendant’s guilty plea, which had not been influenced by the expert evidence, amounted to an unambiguous and voluntary confession which unequivocally established his guilt.

[2015] EWCA Crim 714

The Secretary of State for the Home Department had acted lawfully in refusing, on the ground of national security, to accede to letters of request from a United States judge asking for evidence alleged to exist in intelligence files regarding a claimant extradited from the UK for trial in the US for conspiracy relating to terrorist attacks.

[2015] EWHC 166 (Admin)

Although there had been many lapses by the prosecution in the conduct of an accused’s murder trial, including impermissibly referring to inadmissible bad character evidence in cross-examination, the trial judge’s quick action had resulted in no harm being done. The prosecution’s further failure to disclose phone records also did not render the appellant’s conviction unsafe as that evidence had been, in the event, irrelevant.

[2015] EWCA Crim 500

The continuation of a prohibition order relating to property in the UK alleged to have been derived from criminal conduct was not conditional upon the US’s requests for mutual legal assistance being disclosed to the respondents. The court was satisfied that the requests identified relevant property, that they were confidential and that the respondents did not need to see them for fair disposal of the action.

The Child Sex Offender Disclosure scheme, the Management of Police Information Guidance and the Multi-Agency Public Protection Arrangements Guidance were schemes for the collection, ordering and possible disclosure of data by the police which were not arbitrary and provided adequate guarantees against arbitrariness. The schemes all represented public standards which could be applied to the management of personal data held by the police and were “in accordance with the law” for the purposes of the ECHR art.8. Moreover, they pursued legitimate aims and therefore represented a proportionate and justifiable interference with rights in accordance with art.8(2).

[2014] EWHC 4106 (Admin)

The strong public interest in preserving the integrity of criminal investigations and in protecting those who provided information to prosecuting authorities from any wider dissemination of that information outweighed the interests of a party bringing a claim for damages against the Serious Fraud Office in their disclosure, where that claimant had failed to advance a cogent or comprehensible case as to the relevance and probative value of those documents in unrelated proceedings.

[2014] EWHC 4199 (Comm)

The Metropolitan Police Commissioner’s refusal to expunge a caution, given for an offence of actual bodily harm by a mother against her very young daughter, did not breach the mother’s ECHR art.8 rights as it was a serious offence and was relevant information that a future employer should know about.

A company director and former president of a bank was held in contempt of court for breach of two worldwide freezing orders where he had failed to disclose details of his assets for almost a year after the stipulated deadline and had failed to take reasonable steps to ensure disclosure by the corporate defendants of which he was director. However, the bank had failed to prove that a transfer of the director’s legal interest in shareholdings had been carried out with his knowledge and with the intention of frustrating attempts at enforcement.

[2014] EWHC 3771 (Comm)

A doctor’s rights under ECHR art.8 would not be breached by the police disclosing information, which had been unlawfully obtained during their investigation into a patient’s allegation of sexual assault against him, to the General Medical Council for the purposes of its inquiry into the doctor’s fitness to practise.

[2014] EWHC 3810 (Admin)

Financial restriction decisions imposed by the Treasury with the purpose of hampering Iran’s nuclear and ballistic missiles programmes had an utterly damaging effect on an Iranian bank’s ability to function. Although national security considerations prevented full disclosure of allegations against the bank, it was entitled to disclosure of sufficient information to enable it to give effective instructions to special advocates.

[2014] EWHC 3631 (Admin)

A trial judge’s order under the Contempt of Court Act 1981 s.11 to protect sensitive information heard in camera in a murder trial, which had been made on national security grounds, would not be varied to enable the defendant to present a complaint to the European Court of Human Rights based on an alleged breach of his right to a fair trial.

[2014] EWHC 3558 (Admin)