North Eastern Circuit Lecture

 

Saturday 6th October 2007 

 

“You can’t see anything,  but you can say what you like!!!”

 

 

Introduction

 

1.         When I was trying to think of a title for this talk – I was having some difficulty, because I am combining two different themes. On the one hand there is the constant theme (rightly or wrongly) that, when it comes to disclosure, there is a fairly controlled (perhaps even restrictive) approach and a great palaver in order to see anything that a third party possesses.   On the other hand there is the view that within (emphasis “within”) family proceedings it is important for there to be complete openness. 

 

 

2.         Hence the title “You can’t see anything, but you can say what you like!!!”

 

           

3.         I am consequently going to deal with two entirely separate areas of law. That is an ambitious journey. I shall not be offended, if, at the end of this journey, you tell me “I was bored rigid” I have to confess, this is not a particularly sexy subject. There is little I can do to make it racy.

 

 

4.         You will at the end be asked to complete a Feedback Form. We take your observations very seriously and try to act upon them. At the Sexual Offences seminar in December last year – there was a section for feedback on the various speakers. I was chairing the whole thing and there was a section for feedback on me. It was perhaps merciful that the feedback was anonymous.  One was returned “JR Rocks”. (I would love to know who that was!!)

 

 

5.         Sadly this subject is not something that “rocks” apart from perhaps “rocking you to sleep”. Sweet Dreams!!    (Be it noted – I am under no illusions that most of you are here for points and not education).

 

 

6.         I am therefore very mindful of what Oscar Wilde wrote –

 

            “Education is an admirable thing, but it is well to remember from time to time,     that nothing that is worth knowing can be taught”

 

 

 

 

Education is an admirable thing.

 

What I am about to talk about may (for some) be worth knowing.

 

And, I doubt I can teach you much.

 

 

7.         I am going to raise some points, which appear to me to be important, but, there is really no substitute for your own researches when a problem arises in one of your cases.

 

 

8.         The disclosure of third party material – is an important subject and something which we all have to deal with increasingly in our daily work. This is particularly so when there are likely to be – perhaps – more prosecutions of individuals accused of abusing those with special needs or learning disabilities.

 

 

9.         It is now more common for such prosecutions to be brought – and with the advent of “Intermediaries” in such cases, there will be new challenges ahead. I have now been involved in two cases where a child or young person with Aspergers Syndrome and other autistic problems has given evidence in a criminal trial. As you might imagine there was third party material in such cases held by LEA’s, therapists, health trusts and so on. These sorts of case produce a mountain of information which may be of relevance in the criminal court for one side or the other or both.

 

 

10.       I am going to deal with two areas:

 

(1)     Third Party Disclosure (material held by a non party – that is, not the prosecution) which is sought by either the defence or the prosecution).

 

(2)     At the end I am going to briefly deal with section 98 of the Children Act 1989.

 

 

 

Third Party Disclosure

 

11.       Disclosure generally has been a source of concern and debate for several years. It is quite apparent that the rules relating to disclosure generally have not always been understood or applied particularly well.

 

 

12.       I doubt that the Protocol for the Control and Management of Unused Material in the Crown Court (“The Protocol”) issued by the Court of Appeal is part of your diet of bed-time reading. It was not mine until fairly recently, when I had a case with disclosure problems.

 

 

13.       It is worth reading in its entirety. It certainly gives useful guidance about how to deal with disclosure generally and condescends to detail in respect of a number of issues.

 

 

14.       It is in the Third Supplement of Archbold 2007 (starting at Paragraph N-52 at page 893).

 

 

15.       It is also worth looking at the Attorney General’s Guidelines on Disclosure of 2005 (“The A-G Guidelines”), if a problem on disclosure arises in any case you are dealing with.  They are at A-242 on page 569 of the 3rd Supplement of Archbold.

 

 

16.       I am not going to deal with the CPIA aspects of disclosure. That is when and what must be disclosed by the prosecution of its own material.

 

 

17.       The sort of material that is usually the subject of Third Party Disclosure is very varied. The most common, of course, is social services material or education records or medical files. Much of what is contained on those files may be irrelevant, but there might be (and frequently is), something of great relevance to one side or the other.

 

 

18.       May I echo what the Protocol says at paragraph 52:

 

            “The disclosure of unused material that has been gathered or generated by a      third party, is an area of law that has      caused some difficulties”

 

 

19.       Those difficulties seem to me to be these:

 

(1)               There is no obligation on a third party (as opposed to the prosecution) to disclose anything. Frequently a third party will not hand anything over unless a court orders them to do so.

 

 

(2)               The party making the application for disclosure does not always know the procedure or the law in relation to making an application for disclosure. (This, of course, does not apply to graduates of this seminar).

 

 

(3)               Who is responsible for obtaining the material when it is known about (the prosecution or the defence)?

 

 

(4)               The issue of third party disclosure is not always considered when the Trial Timetable is being set.

 

 

 

20.       May I make it clear that I am not going to deal with anything to do with the occasions when Legal Professional Privilege is claimed by a third party.                 

 

 

21.       It seems to me that four points arise:

 

            Who is going to obtain the third party material?

 

            What happens when the Third Party refuses disclosure?

 

            What happens when PII is claimed?

 

            How are the rights of the subject of the third party material       respected by the           courts?

 

 

Who is going to obtain the third party material?

 

22.       There was the view (and still is in some quarters of the CPS) that if the material is likely to be of assistance to the defence then it is for them to seek to obtain it.

 

 

23.       Let me give an example:

 

            Suppose a young man aged 20 called Johnny (who has learning difficulties)        confides to his therapist that he was       sexually and physically abused, several years ago, when he was at a residential special school, by his teacher.

 

 

            Johnny is persuaded to make a complaint to the police. In his video       interview he asserts that a teacher and (who      was also the scout master at the             school) abused him over a 5 year period.

 

            The account is clear enough and the decision to prosecute is made.

 

            Ordinarily – the police would obtain the school files or some of them which        reveals that Johnny (at least according to the records) has a vivid imagination       and was something of a trouble maker at school. These limited records (what     the police have) are disclosed to the defence with the consent of the LEA (in            accordance with a local protocol).

 

            The police suspect there is more (perhaps even from the therapist) – but do not             obtain it. They feel it is, or is      likely, to be irrelevant or not very helpful to          their case. The police and the local CPS say to the defence – if you want it you get it.

 

 

24.       At one time that was an acceptable approach – at least under the A-G Guidelines issued in 2000 – but not now.

 

 

25.       In 2000 it was the responsibility of the prosecution to “consider” whether it was appropriate to seek access to the material.

 

 

26.       That is not the position now. Paragraph 51 of the 2005 Attorney Generals Guidelines makes it plain that where the prosecution believe that a third party has material which might be capable of undermining the prosecution case or of assisting the case for the accused prosecutors should take what steps they regard as appropriate to obtain it.

 

 

27.       Thus, the still commonly held assumption, that if the material was thought to help the defence, it is for them to obtain it, is outmoded and wrong.

 

 

28.       The police (and the prosecution generally) must seek to obtain relevant material.

 

 

29.       Quite frankly (as someone who prosecutes from time to time) I have always thought that it is vitally important for the prosecution to know about any minefield that might blow them out of the water, before it is detected in the midst of a trial.

 

 

30.       Normally, therefore, the prosecution should seek to obtain the relevant material.

           

 

What happens when the third party refuses to disclose?

           

31.       Frequently each court centre or circuit has a protocol for dealing with third party disclosure – particularly in relation to social services material and so forth. I will call this “voluntary disclosure” (although that is not an entirely accurate description of it).

 

 

32.       Very often the police are allowed access to certain parts of a file, or there are minutes of multi agency meetings. These are important components of increased cooperation between the different parts of the child protection machinery of the state.

 

 

33.       Once that material is in the hands of the prosecution the test for disclosure is the same as for any other unused material in a criminal case which is – that material must be disclosed which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused – in other words the normal CPIA test.  It is very important to bear in mind the date when the relevant criminal enquiry started because there are different tests. I am not going to set them out – there is very helpful guide at paragraph 10 of the Protocol.

 

 

34.       Now, just because the prosecutor has the material does not mean that he must hand it over without reference to the third party

 

 

35.       Paragraph 54 of the A-G Guidelines makes it plain that consultation must take place with the third party before disclosure is made. This is done in order for the third party to raise PII points.

 

 

36.       If those points are raised then it is for the judge to determine them. I shall come to PII shortly.

 

 

37.       I now come to the point where third party disclosure is refused.

 

 

38.       Let me give an example:

 

            Let us return to the case of Johnny and the allegedly abusive schoolmaster.

 

            Let us assume the Social Services have handed over the relevant portions of      their file. But within them is revealed that there was some form of disciplinary       hearing at the    special school in relation to the school master, after        which he           was dismissed.

 

            The Governing Body of the Special School to which Johnny went refuse to        hand over the files relating to     that hearing or reveal what it was about apart    from the fact it involved “several boys and was an unhappy period in the            schools history which they would rather put behind        them”. There is a hint of   sexual scandal and dirt being wafted under the carpet.

 

 

39.       What is to be done?

 

 

40.       The material is in the hands of the third party and not the prosecution so the CPIA test is irrelevant at present.

 

 

41.       The correct mechanism is to be found in section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 where a person or body can be compelled to produce any document which is likely to be material evidence for the purposes of criminal proceedings.

 

 

42.       The procedure for obtaining this is set out in Part 28 of the Criminal Procedure Rules which I am not going to set out or explain. I simply call them to your attention.

 

 

43.       Apart from the procedural aspects the most important point to make is that the reasons why the party seeking the material asserts that it is “likely to be material evidence”.

    

 

44.       I should add that in the magistrates court the procedure is found within section 97 of the Magistrates Courts Act 1980.

 

 

45.       Both section 2 and section 97 of the two Acts demand that the material that is sought must be “likely to be material evidence”.

 

 

46.       I am not going to give a long explanation or discourse on how the superior courts have dealt with this. The one thing that rings through all of the cases is that the party seeking the material must not be on a fishing expedition, and, there are potentially costs implications if it is found that they are.

 

 

47.       It will be remembered that the wording includes the word “likely” which has been interpreted as meaning a “real possibility” and not a probability. That was established in H (L) [1997] 1 Crim App R 176.  Judges seem to know what these finely tuned phrases mean. I rather suspect it means that the application must relate to documents that have a good chance of being material evidence –  that is – relevant evidence.

 

 

48.       The other important point is that the document has to be admissible evidence – the word “evidence” is used in section 2 and section 97. A piece of information within a document which is only useful for cross-examination is not admissible and therefore cannot be material evidence. This is clear from the case of R v Reading Justices ex parte Berkshire County Council [1996] 1 Crim App R 239.

 

 

49.       Equally, a previous inconsistent statement that might become admissible in the trial under Lord Denman’s Act (the 1865 Criminal Procedure Act) seems not to be disclosable by a third party (see R v Derby Justices ex parte B [1996] 1 Crim App R 385.

 

 

50.       I have to say that these cases trouble me. I have fears that if these provisions are strictly executed there is a potential for injustice. The words of President Ulysses S. Grant (the 43rd President of the United States of America at his inaugural address in 1869) are perhaps apposite:

 

            “I know of no method to secure the repeal of bad or     obnoxious laws so

            effective as their stringent execution”.

 

 

51.       There appears to be a solution to the problem of the seeming stringency of the law as understood by the mid 1990’s QB Divisional Court and in my experience by some judges who had a limited understanding of the law (of course, none present today – full-time or part-time – are in that group).  The solution is, I think, to be found in section 117 of the Criminal Justice Act 2003.

 

 

52.       Business records are admissible under section 117 of the Criminal Justice Act 2003. There was a fore-runner to these provisions within section 24 of the Criminal Justice Act 1988. Records held by the Social Services and LEA’s are likely to be business records within the meaning of the Act.

 

 

53.       It is to be noted that only factual matters are be admissible – not opinion.

 

 

54.       The rules in relation to a section 2 application apply to both the prosecution and defence.

 

 

55.       So what happens when the Summons under section 2 lands on the desk of the third party?

 

 

56.       Some parties (usually local authorities) are very helpful and will flag up potentially material documents. Some parties argue that there has not been compliance with section 2.

 

 

57.       May I therefore refer to the case of R v W(G) and W(E) [1997] 1 Crim App R 166 where the Court of Appeal gave guidance as to how these matters should be dealt with.

 

 

58.       There is no substitute for looking at the authority itself, but the following appear to be the main points:

 

 

(1)         The issue whether the files contain anything which is potentially material admissible evidence, necessarily involves the question whether the item has relevance to an issue in the trial.

 

(2)         The party in possession of the material is entitled to say there is nothing relevant, but he must also say why he asserts that.

 

(3)         The judge may accept that assertion, or look at the documents himself. An assurance by a member of the Bar (instructed by the local authority or whoever) that there is nothing relevant is frequently accepted. I have to say I have certain worries about this, as counsel for the local authority never has quite the same feel for what is or is not relevant as the trial judge or prosecution counsel.

 

(4)         If the judge does not accept the assertions of the third party, or has concerns about the matter, he must look at the documents himself.

 

(5)         After the “materiality” test is passed the judge must then go on to consider the frequently raised issue of PII.

 

 

 

What happens when PII is claimed?

 

59.       PII is thought to be a great mystery. It can be.  I am not going to address the entire issue of PII and its ramifications. I hope it will be less of a mystery by the end of this.

 

 

60.       I am simply going to cover the area which most often comes within the remit of criminal courts – that is social services papers or education or medical files about a person who is the subject of criminal proceedings – usually the alleged victim.

 

 

61.       A local authority or such-like body usually has a duty to claim PII. They have no option. There are several reasons for this, as it seems to me:

 

 

(1)      These bodies are public authorities who have duties towards individuals which are highly invasive in to the private lives of others.

 

(2)      The invasive work involves the welfare of children or vulnerable adults.

 

(3)      Their officers (usually social workers) have an obligation to record as much information as possible from all sorts of sources in order to fulfil their statutory and other obligations.

 

(4)      To reveal this information as a matter of course would be very damaging to the child in question and materially affect the family who the social services are trying to assist.

 

(5)      Sources of information need to be protected – it may be from other family members or friends. It may be from neighbours who give information in confidence. These sources may dry up if there was no obligation of confidence placed upon the third party.

 

(6)      Professional advisors might feel inhibited if they became aware that their comments or views would be disclosed as a matter of routine.

 

 

62.       Thus, there is a plain justification for this form of PII. It is based upon the public need for confidentiality. That public interest is, of course, not absolute.

 

 

63.       How must a court proceed?

 

 

64.       The courts in common law jurisdictions have a love affair with two concepts “reasonableness” and “balancing exercises”. I suppose the new buzz word in the legal lexicon is “proportionality”. Mercifully, I am only concerned with one of these concepts out of this triumvirate of inchoate concepts.

 

 

65.       The one I am concerned with is the “balancing exercise”. Quite whether the concept of a balancing exercise will remain in its full blooded form following the intervention of the House of Lords in a separate area of PII remains to be seen.

 

 

66.       It would seem that the court is required to balance the public interest of maintaining confidentiality of the information within the documents, and the counter-veiling public interest, that justice must be done in all cases, particularly those involving the liberty of the subject.

 

 

67.       Although, this is not the test propounded in as many words (or more accurately) as few words – I would suggest that a valuable rule of thumb is to ask: whether a fair trial is possible if the information which is the subject of the PII application is not disclosed.

 

 

68.       There are two case on this which I merely draw to your attention: the first is Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36 and R v Bruschett [2001] Crim LR 471. However, these two cases need to be looked at again having regard to the guidance given by the House of Lords in a comparatively recent case.

 

 

69.       The guidance from the House of Lords in R v H and C [2004] 2 AC 34 on the correct procedure for PII hearings, will have relevance to PII applications in the sorts of case we are considering. The guidance in that case, was not specifically to do with social services material, but the guidance can be modified to the sort of cases that I am dealing with today.

 

 

70.       I would suggest the following as a useful discipline:

 

(1)               The court must examine the material in detail that is asserted to be covered by PII.

 

(2)               If the relevant material is disclosed, is there a real risk of serious prejudice to an important public interest. If the answer is “no” then the material should be disclosed.

 

(3)               If the answer is “Yes” the issue to be determined by the court is whether a fair trial is possible without the information being disclosed.

 

(4)               If a fair trial is possible without disclosure of the information at the outset of the trial – the information and the decision in respect of it must be kept under review as the case unfolds. 

 

 

71.       Thus, PII issues need to be looked at in the context of the question as to whether a fair trial can be achieved if the relevant material is not disclosed.

 

 

72.       Whether that would produce different results from the balancing exercise test is open to debate – I rather suggest it would not.

 

 

73.       It is also important to note that when the prosecution has material to which PII may attach, they must give the party who claims PII an opportunity to make representations about that issue. Certain it is that they cannot give the documents back to the third party to avoid disclosure of what would otherwise be relevant and disclosable material under the CPIA.

 

 

 

How are the rights of the subject of the third party material to be respected?

 

74.       In all of this we tend to forget that an individual (usually a rather vulnerable one) is the subject of all of this. They have a private life and a family life that must be respected by the court. Just because they make a complaint in a sexual case does not mean they waive their rights to privacy under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1951.

 

 

75.       I do not think it would be helpful to trawl through paragraph 62 of The Protocol – but if you have a case involving this, it is well worth reading it with care.

 

 

76.       In the 2006 case of R (TB) v The Combined Court at Stafford [2006] EWCA 1645 the courts have gone further than merely enjoining the courts to be acutely aware of the rights of the alleged victim. They have held that in certain circumstances the views of a person whose Article 8 rights are enjoined should be able to make representations. The case related to medical records of a complainant in a sex case and the court took the view that she was entitled to make representations about the disclosure of certain medical records relating to her mental state which might have a bearing on her credibility.

 

 

77.       I do not have the time or the inclination to go through this case in detail – save to say that there is a new Part 28 of the Criminal Procedure Rules dealing with this.

 

 

78.       Basically the court was saying that the rights of confidentiality (at least in relation to medical records) belong to the patient. A court must not override a right of that kind unless it is proportionate to do so. The court had to secure a fair trial of the defendant (which is one public right) and also balance the alternative right of the complainant to have his confidentiality respected. Consequently, when the rights of confidentiality are challenged the complainant has the right to be heard and make oral representations. I am deliberately taking this very shortly, because it is my view, that the reasoning in this case is confined to cases where the right of privacy attaches to an individual as opposed to the public interest. Problems are bound to arise where a local authority has a medical report on its files. The point to make is this – that there should not be any unnecessary disclosure of private or personal information. And in considering whether a right of privacy can be maintained the person or body in whom the right reposes, must be heard by one means or another.

 

 

79.       I am very conscious that this is something of a whistle stop tour through this area of law, but I hope some of this has been of use.

 

 

80.       I now want to turn to a completely different area – section 98 of the Children Act 1989.

 

 

 

Section 98 (2) of the Children Act 1989

 

81.       Section 98(2) of the Children Act 1989 is the second part of a provision governing the use that can be made of evidence or material in private family proceedings. The first part in sub-section (1) is one side of the coin whereby no one can refuse to answer a question in those private (Children Act) proceedings on the grounds that it might incriminate himself. The other side of the coin is set out as follows:

 

 

            “A statement or admission made in such proceedings shall         not be admissible          in evidence against the person making it --- for any offence other than      perjury.”

 

 

82.       That is a bold statement of the law. It would seem to say in plain terms that if a person says something incriminating about himself in those private family proceedings, it can never be used against him

 

 

83.       Certain judicial pronouncements on this provision have been made which need to be considered. It is important to note that there is no reported case of the Criminal Division of the Court of Appeal on this provision. I have considered the judgment of Mr Justice Wall (as he then was) in the case of In Re AB [2002] EWHC 2198 (FAM) given on 4th November 2002.

 

 

84.       The problem in that case stemmed from an admission of wrongdoing by a mother to a paediatrician who was preparing a report for family proceedings in the Family Division.  Mr Justice Wall made the point that there cannot be total confidentiality in respect of material before the family court. He explains in forceful terms the ambit of section 98(2) at paragraphs 53 – 61 of his judgment. What it comes to is this:

 

(1)    The sort of confession made by the mother to the paediatrician is covered by section 98(2) of the 1989 Act. The sub-section is not limited in its scope simply to admissions made in evidence.

 

(2)    The police are permitted to use the information (if released to them) to ask questions of the mother, but if she chooses to make no reply then that interview would unlikely to be admissible in criminal proceedings – although that is ultimately for the Crown Court judge.

 

(3)    If the mother confessed to the police that could be used against her. The confession would not have arisen in section 98(2) proceedings but in a police interview.

 

 

85.       What is to be done if there is no admissible confession in this case? Is the criminal court powerless and thus a wholly bogus defence could be presented to the criminal court – potentially?

 

 

86.       The answer to that appears to be – nothing, unless the police have other material upon which to base their case.

 

 

87.       There is one important proviso and it is this: if a mother (who has previously confessed to injuring her child in private family proceedings and thus is protected by section 98(2)) gives evidence in a criminal trial which is contradictory, it is open to use the otherwise protected material to contradict her statement in the criminal proceedings; see  In re L (Care – Confidentiality)  [1999] FLR 165. That would, however, be a matter for the trial judge in the Crown Court.

 

 

88.       A mother (for example) would not be able to peddle an inconsistent case in the Crown Court, because if she did the confession would be capable of being used to contradict her case. To decide otherwise would enable her to present a potentially perjured case.

 

 

89.       It is my view that a judge in the criminal proceedings could be persuaded to permit the use of the confession in the above situation. However, it has to be accepted that the document cannot be used as primary evidence (in the sense described). It can be use as a shield to deflect any potential perjury or a misleading case, but it cannot be used as an active weapon. The use of this artillery in the criminal trial is solely within the province of the Crown Court Judge.

 

 

90.       I do not believe that section 98(2) is a repository for bogus defences in the Crown Court. The section taken as a whole is designed to facilitate open disclosure in the family courts as there is a very considerable public interest to protect children. On the other side it is no business of the family courts to permit criminals to peddle bogus defences because their confession to wrongdoing cannot ever be used against them.

 

 

91.       The balance has probably been struck just about right.

 

 

 

Conclusion

 

92.       I have dealt with two very disparate areas of law – one perhaps more immediately relevant than the other. I hope it has been of help.

 

 

92.       I trust – therefore – that the title I chose of “You can’t see anything, but you can say what you like!!!” is not exactly true. With that said it is, perhaps, within the experience of us all, that “truth” is a very moveable feast!!

 

  

 

JEREMY RICHARDSON QC

 

6th October 2007

 

 

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