Lines that should not be crossed…
The Court of Appeal has sent out a clear warning to lawyers and their clients that courts will not tolerate failure to meet deadlines and to comply with the Criminal Procedure Rules (CPR).
Giving the lead judgment in R v Boardman  EWCA Crim 175, Sir Brian Leveson (who chaired the Phone Hacking Inquiry), quoted from his own recent report Review of Efficiency in Criminal Proceedings:
“It can not be right that a ‘culture of failure’ has developed in the courts, fed by the expectation that deadline will not be met. If a deadline is not met, there must be good reason for it… A failure to tackle this culture leads to a general indifference to rule compliance.”
Sir Brian Leveson upheld the trial judge’s decision not to allow the prosecution to rely on evidence served a few days before trial. This effectively brought the case to an end and so the defendant was acquitted.
Mr Boardman was charged with a number of counts of stalking. It was alleged that he had sent texts and made calls to a number of women from a mobile top up phone that were sexually explicit and abusive. He denied sending the texts and making the calls.
The police obtained communications data for the incoming and outgoing calls of the top up mobile phone used to commit the offences and the defendant’s mobile phone for the period of the alleged crimes. This data was downloaded onto a CD. The prosecution sought to rely on evidence of similar use to justify the inference that the same person was using both phones
The case papers were served on 14 March 2014, part of which had a list of exhibits that included the call data CD. However, despite numerous requests by the defence, the CD was not supplied until 13 October 2014, two days before trial.
The defence applied to adjourn the trial because it would take three weeks for an expert to examine the data and report. The trial judge refused to adjourn the trial but ordered the prosecution could not rely on the call data evidence. The appeal by the prosecution to overturn the judge’s ruling was dismissed.
While this ruling was against the prosecution, Sir Leveson made it clear that both the defence and prosecution will be penalised if they do not comply with court directions and the CPR. The ramifications of this case are not just relevant to mainstream crime.
In contested cases there can often be disagreement over disclosure of material that HSE is not relying upon (referred to as ‘unused material’). In health and safety cases much can be about the interpretation of evidence and its relevance. It is not uncommon for HSE to maintain that evidence is not disclosable based on its understanding of the case.
As Sir Leveson observes in Boardman, the prosecution and defence can be interested in aspects of evidence for different reasons. Therefore, in future expect defence teams to rely on this judgement when pressing HSE on disclosure.
The landscape of health and safety cases is changing. For all offences committed after 12 March 2015 the magistrates can impose unlimited fines. Thus the days of companies delaying their decision on plea until the first hearing in the Crown Court (if the magistrates decline jurisdiction) are over. Companies will need to decide early on the plea, and if not guilty then be ready to comply with court directions, e.g. for the service of a defence case statement and expert evidence.
While it can often take some time for HSE to decide whether to prosecute, a company should not just sit back and hope the matter will go away. If a company is likely to defend, then it needs to start preparing early so that if prosecuted it will be in a position to meet the court’s timetable for trial.
First published in the May edition of SHP Magazine http://www.shponline.co.uk/