Information Disclosure: Pre-trial Abuse of Process Hearings

Jim Shannon Excerpts

Wednesday 22nd May 2019 Westminster Hall

[Dame Cheryl Gillan (Chesham and Amersham) (Con)]

I beg to move,

That this House has considered the disclosure of information in pre-trial abuse of process hearings.

As usual, it is a pleasure to serve under your chairmanship, Mr Robertson. I am pleased to welcome the Minister, who will respond. I am very pleased to have secured this debate, to raise a matter that concerns a constituent of mine, Mr Tom Perry.

The Minister will be aware of the problems arising from failures of disclosure that continue to confront the criminal justice system. Those problems received the attention of the Attorney General in his 11 December 2017 review, which reported on 15 November last year. One of the worst cases, which was reported in The Times on 21 May last year, concerned five defendants who spent seven years in jail after being wrongly convicted of the murder of Mohammed Afsar. Unfortunately, there is another aspect to that disclosure problem, which, despite repeated requests from my constituent, the Attorney General has so far refused to examine to his satisfaction. I applied for this debate to try elicit a response to the concerns of my constituent, who is in the Public Gallery.

Although my constituent’s case is long since over, the abiding issue is the dual and interconnected problem of a non-disclosure by the defence in criminal proceedings in situations where a duty of disclosure rests on the defendant and his or her legal team, and the apparent impossibility of procuring corrections by solicitors and counsel of such failures of disclosure and of erroneous submissions consequently made by them to the court. The procurement of such corrections is part of the professional disclosure obligations that counsel must make to prevent the possibility of a court being misled.

Generally, in criminal proceedings, the duty of disclosure rests not on the defendant but on the prosecution. Exceptionally, however, in cases where the defendant wishes to make an application for an indictment against him to be stayed on permissible grounds under our criminal law and procedure—principally, that to allow the indictment to proceed to trial would amount to an abuse of process—a duty of disclosure rests on the defendant and their legal team to make a full disclosure of all relevant matters, whether or not they are entitled to such an order being made for their benefit.

One class of case in which that frequently occurs is that of non-recent child abuse. Applications for stay indictments in those cases are most often heard in non-evidential proceedings, in which oral submissions are made to the judge only, without any evidence actually being given. As the judge is wholly dependent on the oral submissions made to him, the absence of the production of evidence makes it easier to mislead a court than would otherwise be the case. I am told that there is growing evidence of malpractice arising from this procedure.

[Jim Shannon (Strangford) (DUP)]

I thank the right hon. Lady for giving way—I spoke to her beforehand to seek her permission to intervene. Does she agree that, although the courts have an overriding duty to promote justice and prevent injustice, the duty to stay an indictment must be used only in extreme and clear circumstances, to ensure that there is no abuse of the judicial process?

[Dame Cheryl Gillan]

In the context of the debate, the hon. Gentleman makes a very valid point.

My constituent, Mr Perry, was heavily involved in the case of Caldicott School, which was heard in Aylesbury Crown court. As a pupil there in the ’60s, he and many other boys suffered very considerable and grave child abuse that has been the subject of criminal proceedings. The Minister may recall that in that case, the defendant, former headmaster Mr Wright, was eventually tried and convicted on 17 December 2013, and was sentenced to eight years imprisonment on 6 February 2014.

I say “eventually”, because there were two indictments brought in this case. The first was in 2003 and the second in 2012—tried in May and June 2013 and re-tried in November 2013. Of the two indictments, only the second proceeded to trial. The first was stayed by an order made by his honour Judge Connor, following the application of the defendant and his legal team, at a non-evidential pre-trial abuse of process hearing in Aylesbury Crown court on 26 September 2003.

In criminal proceedings, an order to stay an indictment results in the termination of that indictment. The counts that related to the extensive abuse suffered at Caldicott School by my constituent, as well as by four other former pupils, were contained in the first indictment, which was stayed. That meant that the history of abuse suffered at the school by my constituent and the other former pupils was never heard in open court. Not unnaturally, my constituent and the other former pupils were deeply unhappy with that outcome.

My constituent was even more unhappy about that negative outcome because it later emerged that the court had been gravely misled by the failure of the defence, which applied for the stay, to disclose relevant information to the court. With that information, his honour Judge Connor might not have considered the stay of the indictment justified. My constituent tells me that all the details of that were set out in correspondence with the Crown Prosecution Service at the time and copied to the office of the Attorney General.

It emerged in particular that before the hearing in September 2003, the defence solicitors, Blaser Mills, had engaged in private correspondence with the school on the subject of the availability of the school pupil records to the defence. Had that correspondence been disclosed to the court, it could have assisted the prosecution in opposing the application for the stay and, in all probability, would have undermined the grounds of the application to stay the proceedings on the indictment. However, neither the judge nor the prosecuting counsel ever saw the correspondence because it was never produced in open court, even though, according to the transcript of the proceedings, the counsel for the defendant, A. J. Bright QC, had it with him in court and was aware of its contents.

The contents of the hidden correspondence only became known publicly five years later, when in November 2008, the school released it into the public domain. It then became apparent to everyone involved in those proceedings how the non-disclosure meant that the court had been misled and, in effect, deceived into making the order for the stay of the original indictment. That situation was bad enough, but according to my constituent, what followed was arguably worse still.

With the trial on the second indictment looming, my constituent and his co-complainants, who had resigned themselves to the impossibility of their cases ever being heard in open court, were naturally concerned about the position of the other five former pupils whose abuse at Caldicott School was the subject of the second indictment. Their concerns grew when it became known that the defence intended to argue that the second indictment should be stayed on the same grounds as had applied to the first indictment. Accordingly, they repeatedly pressed the CPS to ensure that those submissions made to the judge and accepted by him in the September 2003 abuse of process hearing should be formally corrected to the court.

Their argument was that those submissions, which the defence already knew to be false at the 2003 hearing, were now known to be wrong by all parties and the public at large following the release into the public domain of the correspondence between Caldicott School and the defence solicitors, Blaser Mills. Formal correction of those false submissions was needed to prevent the possibility of the court being misled in the same way that it had been in 2003.

Attention was drawn to the explicit wording of both the Solicitors Regulation Authority handbook and the Bar Standards Board handbook—I have made the relevant sections of both available to the Minister—and to the professional obligation resting on all solicitors and counsel, as officers of the court, to correct submissions of fact made to the court once they are known to be erroneous, to prevent the court from being misled further. It was noted that no one, not even those responsible for making the wrongful submissions in the first place, has been heard to deny that false submissions had been made at the September 2003 hearing or that the effect of that was that the court was misled and proceeded to rule on the basis of false information.

To my constituent’s complete and abiding astonishment, the CPS did absolutely nothing. While not disagreeing that the defence had acted improperly by telling the judge that the pupil records could not be obtained from the school, or even tacitly accepting that the court had been misled by that, it took no action at all. However, not only were the records available but, in the hidden correspondence that the judge never saw, the defence had actually relinquished its request to be given them.

In addition, the Solicitors Regulation Authority and the Bar Standards Board took no action. Likewise, the Office of the Attorney General, from which at least my constituent might have expected some intervention, given the failure of the regulatory bodies to deal with the situation, did nothing. Only at a much later stage, when the defendant, following his conviction and sentence, applied for leave to appeal to the Court of Appeal, did the CPS finally agree with the complainants that, if leave to appeal conviction were granted and if the defence were to argue that the grounds of the imposition of the stay of the indictment in September 2003 were relevant to the appeal—in fact, it transpired that the defence did intend to argue exactly that—it would finally take action. It would require corrections to be made to the false submissions made in 2003 by counsel and solicitors for the defence in order to ensure that the Court of Appeal would not be misled in 2014. However, the appeal did not proceed and in the event, therefore, those corrections were never made.

At the request of my constituent, I have referred to what he considers—as I do—the embarrassing irregularities that unexpectedly and unusually came to light in the Caldicott School case, and those have a public profile. I have been led to believe, however, that similar problems were experienced in a number of other cases of lesser profile. My constituent has generously offered to provide the Minister with the details, if she so wishes.

It is too late now for the complainants in the Caldicott School case to be accorded the simple justice of the correction of known false submissions that were made to the court, that derailed the first indictment and that they believe denied them justice in 2003.