Legal

Legal perspectives: disclosure in major investigations In this feature complex cases understanding relevance Given in evidence Ever-more complex investigations are exposing trading standards officers lack of knowledge on disclosure, putting their cases at risk. Lee Reynolds outlines some pertinent dos and donts S ince being called to the Bar some 15 years ago, I have noticed a dramatic change in the nature, size and complexity of cases being investigated and prosecuted by trading standards departments. It is becoming increasingly common for trading standards (TS) to prosecute complex boiler room frauds and other major nancial crimes, which traditionally would have been dealt with by the Economic Crime Unit of the relevant constabulary. I, for example, am currently working for several TS departments on signicant fraud cases involving: PPI, insurance; pensions; Green Deal; solar panels; home audits; timeshares; and, believe it or not, a diamond and wine exchange fraud. This change has obvious time and resource implications for departments already feeling the economic pinch, but it is one that TS ofcers are embracing with vigour and determination. Unfortunately, one of the side-effects of investigating and prosecuting increasingly complex cases is the amount of documentation that has to be considered as part of the disclosure regime. Understanding the requirements of disclosure The defence often challenge the prosecutions disclosure regime and it can be fertile ground; if they are able to establish at trial that the lead officer handling disclosure does not understand the regime, then the case is often lost If you are the lead ofcer and therefore usually the disclosure ofcer in a major criminal case, it is extremely easy to get caught out if you dont have a clear understanding of the requirements. A sound grasp of disclosure is crucial, as it is an integral part of the criminal justice system; compliance helps to ensure that an individual receives a fair trial. It is not an exaggeration to say that it can and often does mean the difference between securing a conviction and not. When asked to act on behalf of a new authority prosecuting a complex case, I hold my breath the moment I am presented with the Schedule of Unused Material, as TS ofcers are often sadly unaware that this sometimes overlooked and neglected document reveals whether or not the author understands the disclosure regime. Conversely, as a defence barrister, it can be like an oasis in the desert to receive a schedule which, within moments of reading it, highlights that the author knows little or nothing about the rules of disclosure. I have seen some bizarre entries on such schedules, including a copy of Hello magazine, which had been seized from a dining table, and a cigarette butt taken from a property. I hoped, having seen the same, that the magazine contained a handwritten message of evidential importance, or that the cigarette had been sent for forensic analysis to aid identication, but sadly, this was not the case. As ofcers you have to remember that placing a document on the Schedule of Unused Material is a declaration that the document is relevant or may be relevant to the investigation. The fact that it is on the schedule marks it as an important document that might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused. Often the Schedule is treated by ofcers as an inventory of every document retained in a case that does not form part of the served prosecution evidence. While an inventory of case material is a valuable tool, this is a separate document and should never double as a Schedule of Unused Material. Use detailed descriptions When compiling Schedules of Unused Material, the disclosure ofcer must ensure that a full description of each item is given, and they must also include the reason the material is considered to be/may be relevant. A full description ensures that the item is readily identiable to the defence to allow them to make an informed decision as to whether they wish to inspect or request the item. In addition, listing detailed descriptions will also assist the disclosure ofcer in their continuing duty to review disclosure. There are items that should always be present on the Schedule of Unused Material; for example, a pocket notebook that contains contemporaneous notes from which the ofcer later compiled their statement. However, the presence of most documents on the Schedule of Unused Material will be determined on a case-by-case basis. To comply with the legal requirements found in the Criminal Procedures and Investigations Act 1996 and associated Codes of Practice, it is essential that ofcers have a rm grasp of the issues in the case. Without this knowledge, it is impossible to consider whether something is or may be relevant. By way of further clarication on the legal requirements of disclosure, the Attorney Generals Ofce published the Attorney Generals Guidelines on Disclosure (the Guidelines) in December 2013. This LEADERSHIP CONFERENCE document is refreshingly a comparatively easy read and one that should be considered A new Leadership Conference, hosted by CTSI and the Association of Chief Trading Standards by all TS ofcers. Officers, will be held on 29 January 2017. Lee In major cases, it may not be practical for Reynolds, a barrister at Apex Chambers, will one person to handle disclosure; sometimes be presenting a session on Managing risks a whole team must be established to trawl in prosecutions. the vast amount of information recovered. Book your place now at It is crucial that everyone is mindful of the www.tradingstandards.uk/leadershipconf same case issues during their examination of material, and that they apply the same test as far as relevance is concerned. As consistency is fundamental, there ought to be a lead disclosure ofcer, and the guidelines also suggest the preparation of a written disclosure protocol specically tailored to the needs of the case. The disclosure team should also hold regular meetings to ensure that the disclosure protocol is being adhered to, and to consider whether it is t for purpose or needs amending. The guidelines also suggest that the disclosure protocol should be served on both the court and the defence at an early stage. It should, in particular, highlight the approach taken in relation to digital information when appropriate. In certain cases it is virtually impossible to conduct a detailed examination of every item recovered, especially those involving the seizure of signicant digital material. Thankfully, the guidelines appreciate this difculty and deal with it in the following way: Where there is an enormous volume of material it is perfectly proper for the investigator/disclosure ofcer to search it by sample, keywords, or other appropriate search tools or analytical techniques, to nd relevant passages, phrases and identiers. Context of disclosure Often the Schedule is treated by officers as an inventory of every document retained in a case that does not form part of the served prosecution evidence The defence team is also expected to play an important role in the context of disclosure a relatively new and alien concept. The defence should now be invited to participate in dening the scope of the searches of digitally stored material to identify items that might reasonably be expected to undermine the prosecution case or assist the defence. It is suggested that, before initial forensic analysis, the investigator ought to inform the defence of the proposed search terms and invite them to suggest any further reasonable search terms. As stated above, the defence should also be informed, through the Disclosure Protocol document, of the method adopted in relation to other material. For example, I prosecute a signicant number of call centre cases that often involve the recovery of tens if not hundreds of thousands of calls. In such cases, listening to them all would be impossible given the time and resources available. Once the approach concerning the calls is properly considered by the investigative team usually based on a percentage scale of calls to be listened to, depending on call length the defence should also be told of them and asked to comment at that stage, rather than giving them the opportunity to take issue in court later. The guidelines highlight the signicance of the Defence Statement as the central document that identies the issues in the case. All too often, legal departments are served with Defence Statements which, for one reason or another, are not given to the disclosure ofcer. It can make for very interesting cross-examination of the disclosure ofcer for the defence, at least when it is established that they have never seen the Defence Statement and have made all pre-trial disclosure decisions without knowledge of the very document that claries the relevant issues. If you are the disclosure ofcer in a particular case, you need to ensure that your legal department gives you a copy, to consider the points raised in it fully, and provide any further disclosure. In addition, the guidelines also identify the importance of the statutory requirement to pursue all reasonable lines of enquiry, whether they point towards or away from the suspect. Once again, the failure by an investigating ofcer to follow reasonable lines of enquiry which, for example, may have been put forward by the defendant in interview, can lead to an uncomfortable cross-examination. It is suggested that following every interview, ofcers should evaluate and determine whether any lines of enquiry were raised and, if so, whether they are considered reasonable and what action should be taken. It is always prudent to document these considerations. Challenges to the disclosure regime In my experience, the defence often challenges the prosecutions disclosure regime, and it can be fertile ground. If they are able to establish at trial that the lead ofcer handling disclosure does not understand the regime, then the case is often lost. Abuse of process applications can also be successful where the disclosure regime is demonstrably failing. Having said that, disclosure need not be as difcult as it might rst appear; early team conferences to consider approach and resources are vital. This brave new world means any perceived problems in the disclosure can be brought to the attention of the defence and the court at an early stage, and a change of direction and emphasis can be made without compromising the integrity of the case. Credits Lee Reynolds is a barrister at Apex Chambers. Images: OJO Images Ltd / Alamy Stock Photo To share this page, in the toolbar click on You might also like Just deserts? November 2016