Court considers how to approach disclosure exercise for purposes of appeal


Re: R v Clarke [2017] EWCA Crim 37

The applicants were seeking to appeal historic convictions based on new evidence that alleged that persons connected with their convictions were undercover police officers. No issue arose as to ruling on disclosure at the time of trial because there was no suggestion that any rulings had been made by the trial judge. The Court of Appeal had to consider how to approach the disclosure exercise for the purposes of the appeal. That exercise potentially involved a significant amount of material that already existed, alongside further material that may arise in the near future. The disclosure exercise for the appeal was therefore likely to be an ongoing exercise potentially considering a large amount of material. The Court considered the ruling in R v McDonald [2004] EWCA Crim 2614, which suggested that disclosure issues for an appeal would require the full constitution of the Court. Significantly. whether that meant that in exercising any powers of disclosure under the Criminal Appeal Act 1968, s 23, the full constitution of the Court hearing the final appeal had to consider and rule on all issues of disclosure leading up to that appeal.

The case of R v McDonald could be distinguished. In this case the Court of Appeal was not involved in a review of the trial judge’s decision on disclosure. Therefore contested disclosure issues relating to this appeal would not involve a review of earlier decisions, but through the process of the Court ordering or not ordering the production of documents pursuant to its ordinary disclosure powers under the Criminal Appeal Act 1968, s 23. That disclosure exercise could be carried out by a single judge and need not be done by the same constitution as the full appeal court. Furthermore, under the Criminal Appeal Act 1968, s 31(3), the applicants would be able to challenge any decision of non-disclosure pursuant to the appeal, by the single judge, to the full Court. Therefore appropriate safeguards to protect the interests of the applicants would be in place.

Matthew Ryder QC was involved in this case.