The recent case in the Court of Appeal of R v DS & TS has highlighted in stark terms the concern of criminal defence practitioners that there are insufficient sanctions available for a prosecution service which increasingly fails to comply with the most fundamental of disclosure obligations. The case also emphasises that even those failures which are serious and which cause severe delay to proceedings will not be sufficient to satisfy the extraordinarily high threshold for a stay on the basis of an abuse of process.
The case concerned serious allegations by two women, of rape, sexual assault and false imprisonment in the context of abusive relationships from 2009 to 2012 with the first defendant (D1). Further sexual offences (including rape) were alleged to have been committed by D1’s brother (D2) at D1’s invitation and insistence. Those allegations were denied by both D1 and D2. The matter came to trial at Teesside Crown Court on 3 November 2014 after three previous fixtures had been vacated.
A change in defence counsel for D1 triggered a review of material in the case, which raised serious concerns over the extent of primary disclosure and the completeness of the unused schedule. On the first day of trial, the police officer in charge of the case delivered three boxes of material which had been in the possession of police and which had not been previously provided to the CPS, and by extension had not been disclosed to the defence. Disclosure was ongoing throughout the conduct of the prosecution’s case and the schedule of unused material grew from 24 to 96 items during the course of the first seven days of trial. The jury was discharged on the eighth day after the trial judge adjourned the matter for an application by the defence for abuse of process. Before the application was heard, a further 33 items were added to the schedule, but the final schedule was only provided to the defence the day before the listed hearing.
In granting a stay on the grounds of abuse, the trial judge commented that “this abuse is so exceptional the court ought to mark its wholesale condemnation of the prosecution by allowing a stay and refusing the prosecution the right to pursue the case.” In effect, it appears the judge could see no other available sanction which would be proportionate to the level of harm and disruption caused by the abject failures of the prosecution.
On appeal, it was this justification which formed the basis of the Crown’s argument; that it was not for the court to use its powers to discipline the CPS or the police unless there had been bad faith or the conduct had “irreversibly tainted the integrity of the justice system.” This was an argument ultimately accepted by the appellate court justices, together with a determination that the documents which had failed to be disclosed (call records and evidence of a complainant’s bad character) were not of such a material nature as to render a trial in this particular case ineffective or unjust.
The decision in this case is broadly in line with the restrictive approach generally maintained by the courts and emphasises the concept that a fair trial is not just a right which is applicable to the defendant. The facts of the alleged offences were so serious that it was found to be in the public interest to proceed, despite the egregious nature of the procedural failings. It is perhaps unfortunate that the trial judge in this case incorporated his (justified) condemnation of the prosecution into his reasoning for a stay, when the precedent is clearly against such use of powers, most aptly summarised by Watkins LJ in Belsham when he stated that “a stay on the basis of an abuse of process must never be seen to be used simply as a form of disciplinary disapproval of the CPS. That it should be seen to be so is impermissible.” This principle was upheld and extended by the House of Lords the following year in the key case of Bennett v Horseferry Road Magistrates’ Court.
Despite the Court of Appeal maintaining the high threshold on the assessment of prejudice arising from non-disclosure, it is the justices’ obiter comments which resonate. Lord Thomas dismissed the reasoning given by the police and CPS for their failures (namely the lack of resources provided to them), stating that there were “no extenuating circumstances that can explain or excuse the failures.” Similarly, the failure of the defence to have “brought to the Court’s attention what they contend is a failure by the prosecution in sufficient time for it to be remedied in advance of trial” was held to be of critical importance to the final judgment.
There are key lessons in this judgment for both defence and prosecution. For the latter, it is further evidence of the courts’ increasing impatience with failures to comply with procedural rules and directions. This is in alignment with the recent Review of Efficiency in Criminal Proceedings, which encourages “reduced tolerance” for the recognised fact that “a ‘culture of failure’ has developed in the courts.”  For defence practitioners, a policy of keeping quiet about prosecutorial failings (either actual or foreseen) in the hope that the prosecution will collapse will not only be frowned upon by the courts, but may work adversely to the interests of a defendant client.
  EWCA Crim 662
 This was in contrast to the judgment in R v Boardman  EWCA Crim 175 in which the failure to serve evidence in the case was held by the Court of Appeal to justify a stay on grounds of abuse.
 R v Crown Court at Norwich ex parte Belsham (1992) 94 Cr. App. R. 382, QBD
  3 All E.R. 138, 151, HL.
 At para 199
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