Third Party Disclosure Dr Chris Taylor

Disclosure of unused material in criminal cases regulated by the Criminal Procedure and Investigations Act 1996 (CPIA) CPIA never designed to cover third party material JOPI. 1.42. - “If a third party has information which may be relevant to a criminal investigation, the third party is under no duty under the Act to retain such material and reveal it to the investigator or prosecutor” s 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 or s 97 of the Magistrates' Courts Act 1980 Both mechanisms employ disclosure tests which are narrower than that under CPIA and which are not directly linked to “relevance” as defined by either CPIA or Codes of Practice This creates a difference of approach depending on whether disclosure is sought from a 3rd party by means of summons or from the prosecution under s 8

R (Cunliffe) v W London Magistrates' Court and Ors [2006] EWHC 2081 Admin "The central principles to be derived from those authorities are as follows: (i) to be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence; (ii) documents which are desired merely for the purpose of possible cross-examination are not admissible in evidence and, thus, are not material; (iii) whoever seeks production of documents must satisfy the Justices with some material that the documents are 'likely to be material' in the sense indicated, likelihood for this purpose involving a real possibility, although not necessarily a probability; (iv) it is not sufficient that the applicant merely wants to find out whether or not the third party has such material documents. This procedure must not be used as a disguised attempt to obtain discovery."

Items sought under the summons procedure must be ‘likely to be material evidence,’ (which the House of Lords in R v Derby Magistrates’ Court ex parte B [1995] 4 All ER 526 has construed to mean ‘immediately admissible per se.’) See, R v Brushett [2001] Crim LR 471 Result – a higher standard than for disclosure, see R v Reading Justices ex parte: Berkshire County Council [1996] 1 Cr App R 239; R v Alibhai and others [2004] EWCA Crim 681

Attorney General’s Guidelines 2005 Material held by Government departments or other Crown bodies 42. “Where it appears to an investigator, disclosure officer or prosecutor that a Government department or other Crown body has material that may be relevant to an issue in the case, reasonable steps should be taken to identify and consider such material…” Material held by other agencies 46. “There may be cases where the investigator, disclosure officer or prosecutor believes that a third party (for example, a local authority, a social services department, a hospital, a doctor, a school, a provider of forensic services) has material or information which might be relevant to the prosecution case. In such cases, if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused prosecutors should take what steps they regard as appropriate in the particular case to obtain it.”

But note Alibhai [2004] EWCA Crim 681 and the “Margin of consideration 47. “If the investigator, disclosure officer or prosecutor seeks access to the material or information but the third party declines or refuses to allow access to it, the matter should not be left. If despite any reasons offered by the third party it is still believed that it is reasonable to seek production of the material or information, and the requirements of section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 or as appropriate section 97 of the Magistrates Courts Act 1980 are satisfied, then the prosecutor or investigator should apply for a witness summons causing a representative of the third party to produce the material to the Court.”

R (on the application of TB) v Stafford Combined Court [2006] EWHC 1645 TB was the main prosecution witness in the trial of W for alleged sexual offences committed against her TB was 14 years old at the time of the alleged offences and 15 years old at the time of the subsequent proceedings In the mother prior to the trial she had had made a number of suicide attempts and was receiving psychiatric treatment from South Staffordshire NHS Trust (the first interested party) In November 2005, W’s solicitor applied to the Crown Court requesting a witness summons to be sent to the Director of Child and Mental Health Services of the Trust, requiring the production of TB’s medical and hospital records The grounds for the summons referred to TB’s history of self-harm and mental illness which may serve to undermine her credibility as a witness (defence based on fantasy/ fabrication)

Criminal Procedure Rules 28.3 (2) Subject to paragraphs (8) to (10), the application shall be made in writing to the Crown Court officer and shall -  (a) contain a brief description of the stipulated evidence, document or thing; (b) set out the reasons why the applicant considers that the stipulated evidence, document or thing is likely to be material evidence; (c) set out the reason why the applicant considers that the directed person will not voluntarily attend as a witness or produce the document or thing; and (d) if the witness summons is proposed to require the directed person to produce a document or thing -  (i) inform the directed person of his right to make representations in writing and at a hearing, under paragraph (5)

28.3 (3) The application shall be supported by an affidavit -  28.3 (4) A copy of the application and the supporting affidavit shall be served on the directed person at the same time as it is served on the court officer. 28.3 (5) The directed person may, within 7 days of receiving a copy of the application under paragraph (4) above, inform the court officer whether or not he wishes to make representations, concerning the issue of the witness summons proposed to be directed to him, at a hearing and may also make written representations to the court officer.

Disclosure of the records was challenged by the Trust at a subsequent PII hearing Disclosure of 23 pages of TB’s psychiatric records was ordered On being informed by the Trust, the Official Solicitor notified the parties that TB was being represented for possible Art 8 action Judge asked to state a case for consideration by High Court TB brought to court and consequences of delay explained From the Court TB telephoned the Official Solicitor and indicated that, although she did not want her records disclosed, she would agree to the disclosure rather than risk further delay to a trial which had already caused her considerable anxiety and distress Judicial review sought to obtain declaration that TB was entitled to notification and right to make representation

Article 8: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The application of Art 8 in relation to medical records is well recognised Z v Finland (1997) 25 EHRR 371 Campbell v MGN Ltd [2004] 2 AC 457 R (Axon) v Sec State for Health [2006] 2 WLR1130 Also the importance of patient confidentiality in respect of psychiatric notes - Ashworth Hospital Authority v MGN [2002] UKHL 29

It was held that: TB’s rights under Article 8 had been infringed This responsibility fell, not on W, but on the court as a “public authority” The failure to involve TB, as the person whose rights were involved, in the decision making process, meant that the infringement could not be viewed as “necessary” under Art 8.2. It was not sufficient for the interests of TB to be represented solely by the NHS Trust as the confidence was hers not theirs The interests of the two were different as the Trust may have broader concerns possible conflict possible issues under s 7 Data Protection Act 1998, as amended by Data Protection (Subject Access Modifications) (Health) Order 2000

Criminal Procedure (Amendment) Rules 2007 28.5 (1)  This rule applies to an application under rule 28.3 for a witness summons requiring the proposed witness – (a)  to produce in evidence a document or thing; or (b)  to give evidence about information apparently held in confidence, that relates to another person. (2)  The application must be in writing in the form required by rule 28.4. (3)  The party applying must serve the application – (a)  on the proposed witness, unless the court otherwise directs; and (b)  on one or more of the following, if the court so directs –  (i)  a person to whom the proposed evidence relates,  (ii)  another party. (4)  The court must not issue a witness summons where this rule applies unless (a)  everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and (b)  the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

28. 6 Application for summons to produce a document, etc 28.6  Application for summons to produce a document, etc.: court's assessment of relevance and confidentiality (1)  This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that – (a)  it is not likely to be material evidence; or (b)  even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates outweigh the reasons for issuing a summons. (2)  The court may require the proposed witness to make the document or thing available for the objection to be assessed. (3)  The court may invite – (a)  the proposed witness or any representative of the proposed witness; or (b)  a person to whom the document or thing relates or any representative of such a person,  to help the court assess the objection. Will this be sufficient? What impact will this have on existing arrangements and protocols?

“Intoximeter” Evidence and Third party Disclosure A series of recent decisions have considered the status of such material in the context of third party disclosure Questions include: To what extent should Intoximeter material be classed as “Prosecution material” for the purposes of CPIA? Can “commercial sensitivity” be used to defeat attempts to secure disclosure by means of summons? CPS issue specific guidance in an attempt to narrow the scope for defence challenges and requests for disclosure Emphasis for requirement that challenge be on grounds relevant to facts of case But potential for successful appeal – Kemsley v DPP [2004] EWHC 278 (Admin)

To what extent should Intoximeter material be classed as “Prosecution material” for the purposes of CPIA? Only material held or inspected by the prosecution/ police – yes, Director of Public Prosecutions v McGillicuddy [2005] EWHC 2986 Calibration/ maintenance records – no, Murphy v DPP [2006] EWHC 1753 (Admin); Director of Public Prosecutions v Wood [2005] EWHC 2986 Can “commercial sensitivity” be used to defeat attempts to secure disclosure by means of summons? “Had such an application (for a section 97 witness summons) been made, it would have had the effect of permitting the interests of the third party in the confidentiality of the material to be raised as a reason for the refusal of the summons or as 'just excuse' and the true materiality of the documents in question to be more fully explained. It would have been quite wrong to say that commercial confidentiality was irrelevant to ordering disclosure of material in the hands of a third party.”

It appears that arguments based on “type approval non-compliancy” will be difficult to sustain without clear evidence The defence would appear to be restricted to substantial modifications of the device which takes it outside the description of the device in the schedule to the relevant type approval order This was followed in DPP v Wood; DPP v McGillicuddy - "the stringent test required to show loss of type approval“ There is a presumption that the device is of the type approved, and the prosecution cannot be put to prove type-approval conformity by mere challenge As a result, attempts to secure further disclosure in order to raise doubts about the accuracy of the unit may be restricted

Third Party Disclosure Dr Chris Taylor