HM CUSTOMS & EXCISE
C&E S3/96 15 February 1996
DISCLOSURE OF DOCUMENTS TO THE DEFENCE IN THE MATRIX CHURCHILL AND
ORDTEC CASES
BACKGROUND
Sir Richard Scott finds no deliberate withholding of documents known
to be relevant, nor that possible political embarrassment was a
reason for non disclosure. There is no evidence of a cover-up. He
does find certain shortcomings in some of the cases.
KEY POINTS
- At the time of Matrix Churchill and Ordtec there was a basic
duty of prosecution to disclose to the defence all relevant
material subject to consideration of public interest immunity
- The concept of relevance was not clearly defined by the legal
precedent at that time
- Documents can either establish innocence (in which case it is
improper to launch or continue a prosecution), assist a line of
defence or affect jury perception (ie. add general colour which
might persuade a jury to acquit).
MATRIX CHURCHILL
The Facts Some 90 items of material not used by the prosecution in
its case, consisting of several hundred pages, were made available
for inspection by the defence and copies provided on request. A very
wide-ranging and complex search of records in a number of government
departments was also launched by the prosecution. Departments were
successful in identifying 10,000 pages of documents for scrutiny.
These were scrutinised by the prosecution team (including independent
counsel). Following the trial judge's rulings on PII a further 634
were made available to the defence. Scott concludes none of the
documents covered by PII established innocence. When the Inquiry was
set up it examined 200,000 pages of material provided by departments.
Amongst this material, Sir Richard Scott found another 23 documents
of around 70 pages which he considered relevant but which had not
been disclosed. There is an unresolved difference of opinion between
Sir Richard Scott and Counsel regarding relevance of 5 documents.
None of this material was different in kind to that disclosed, nor
did it prove innocence although it would have provided further
support to lines of defence which the defendants were entitled to run
and which the jury may have found persuasive.
Disclosure Comments Sir Richard Scott notes the lack of knowledge
about disclosure rules in some departments. He criticises the way in
which requests were put by the prosecution; the lateness of some
documents put forward for consideration; the attitude of lawyers to
disclosure generally and the test being applied by prosecuting
counsel. He recommends new guidance and sets out his view on what it
should contain.
Response These criticisms must be viewed in the context of three
important points:
(i) The sheer scale of the exercise - 10,000 pages of material to
be identified and assessed - and the fact that the search did
succeed in identifying a vast array of documents. None of the
documents missed was different in kind to those found and
disclosed.
(ii) The documents in question were not documents generated for the
purpose of the criminal investigation. They were documents
which came into being and were circulated as part of the
day-to-day duties of officials in numerous Departments with
varying responsibilities. Government Departments, in common
with other private and public sector organisations, arrange
their systems according to operational requirements and not to
cater for the possibility that some documents somewhere in the
system might become relevant to a prosecution.
(iii) The law relating to prosecution disclosure has developed
substantially in recent years. The prosecution disclosure
obligation in 1992 was more uncertain than it now is.
ORDTEC CASE
The Ordtec case is different from that of Matrix Churchill in that it
was a smuggling case. The defendants exported a military fuse
assembly line out of the country misdescribed as gauge valve assembly
line not licensable at all. They did not export the goods by using a
licence obtained by deception.
With regard to documents not disclosed in the Ordtec case, PII
certificates were signed by the Home Secretary and the President of
the Board of Trade but not in the event deployed. Prosecuting counsel
took the view that none of the documents seen by him were disclosable
because they were not relevant. The judge accepted Counsel's views on
relevance albeit without himself viewing the documents. That was
consistent with the legal precedents at the time.
The Court of Appeal found in November 1995 that the documents
concerned should have been made available before the trial. They
would have helped the accused establish a line of defence. The
documents did not however establish innocence. The Lord Chief Justice
said:
"We cannot say that if all the material had been before them a jury
would necessarily have acquitted but we do consider that the
documents would have enabled the defendants to present an arguable
case....."
Sir Richard Scott endorses this point in his Report.
