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Disclosure and Financial Crime

Speaker: Joel Bennathan QC
Chambers: Doughty Street Chambers

Joel Bennathan QC
Doughty Street Chambers

This seminar will cover

Definition (S3 Criminal Procedure
and Investigations Act)
Disclosure refers to providing the defence with copies of, or access to, any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed.

Attorney General Guidelines [2013]
Attorney General Guidelines [2013] [para 6]:
In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:
a) the use that might be made of it in cross-examination;
b) Its capacity to support submissions that could lead to:
a) the exclusion of evidence;
b) a stay of proceedings, where the material is required to allow a proper application to be made;
c) a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR;
c) its capacity to suggest an explanation or partial explanation of the accused’s actions;
d) the capacity of the material to have a bearing on scientific or medical evidence in the case.

R v R [2015] EWCA Crim 1941
Fraud involving a vast electronic database with computers seized containing 7 terabytes.
The prosecution case has long since been served, as have case summaries. For five years the case has not progressed beyond primary disclosure.
Ultimately an abuse of process.

R (on the application of AL)
v SFO [2018] EWHC 856
Serious Fraud Office Deferred Prosecution Agreement with the company under which the SFO prepared a draft indictment against the company but with the approval of the Crown Court, suspended that indictment interviewing four senior executives, including the Defendant, suspected of wrongdoing.

SFO sought notes, company asserted legal privilege. Judge refused on basis that the notes were not in the “possession” of the SFO and as such the disclosure obligation in the Criminal Procedure and Investigation Act 1996 did not bite. Def sought JR.

Possible solutions
• Evidence held abroad
• Digital material

Disclosure Outside the Trial
Restraint orders and Restraint and Seizure
The CPIA rules are about prosecutions for criminal offences [section 1, CPIA]. Increasingly, alleged financial misconduct is litigated by other mechanisms such as:

Pre-trial, or pre-arrest, Restraint Orders [Sections 40(3) and 41 Proceeds of Crime Act 2002 [“POCA”]]
Applications by the police or HMRC etc to detain, retain and seize property that is suspected of/is found to be the proceeds of crime on intended for use in crime [Sections 303L and 303O of POCA].

Full speakers notes can be viewed in our Past Papers section of the Law Friends website