Double warning for legal professionals: do not cut corners with disclosure

Further to a recent decision made by the Bar Tribunals and Adjudication Service, the Bar Standards Board has suspended a "top criminal silk" from practice on grounds of professional misconduct in respect of his failure to disclose material evidence during criminal proceedings in 2007. The decision, and the judgment made by the Court of Appeal in those proceedings, reiterates the importance of the ongoing obligation on legal professionals to give disclosure and comply with their duties to the court.

The facts 

In July 2006, five men were convicted of the murder of a 24-year old man in Coventry, who was shot on 4 April 2005. Maria Vervoort was a key prosecution witness. She gave evidence that two of the defendants, James Dunn and Gary Higgins, had participated in a plan to shoot the deceased. They both denied this, and strongly disputed her account of events. 

On appeal in June 2009, Dunn submitted that there was no case to answer against him. He argued that, in light of "significant further material" concerning Vervoort, she could not be accepted as an honest and reliable witness. Said material related, in part, to evidence given by Vervoort during the 2007 trial of a sixth man, Conrad Jones, for perverting the course of justice. Jones had allegedly pressurised Vervoort into not giving evidence at the trial in 2006. At Jones' trial, Vervoort testified that Jones had threatened her outside Nottingham railway station on 1 or 2 June 2006. This led to his conviction, in August 2007. 

The trial judge dismissed Dunn's appeal. He found that there was evidence that Dunn had actively participated in threats made to the deceased on the morning of the shooting, which came most clearly from Vervoort's testimony.

The appeals

Conrad Jones 

In 2014, Jones appealed on the basis of fresh evidence relating to Vervoort. When investigating an unrelated offence in 2013 (of which Jones was acquitted), his legal team discovered that the prosecution had been in possession of surveillance material, as at the time of the 2007 trial, which positively demonstrated that Jones could not have been at Nottingham railway station on 1 or 2 June 2006. Counsel for the prosecution had been made aware of said material by the end of 2006, but it was never disclosed to Jones' legal team. On that basis, the court allowed Jones' appeal. 

The Court of Appeal agreed with the trial judge's finding that Vervoort had lied about the meeting on 1 or 2 June 2006 when giving evidence at the 2007 trial. It described the prosecution's failure to disclose the surveillance material as "lamentable" and was highly critical of the approach taken by leading counsel, Timothy Raggatt QC. Jones' conviction was quashed and he was later paid more than £100,000 in compensation by the Crown Prosecution Service.

Dunn and Higgins

In 2016, a further appeal of Dunn's conviction was made on a reference by the Criminal Cases Review Commission. Dunn submitted that further evidence had come to light post-conviction that wholly undermined Vervoort's credibility and reliability, such that his conviction was rendered unsafe. That evidence included the surveillance material, as well as material deriving from the Criminal Justice Protection Unit (CJPU), which painted Vervoort in a very poor light in terms of her truthfulness and her tendency to manipulate. In addition, it transpired that notes taken by police during the initial interviews with Vervoort in 2005 had not been disclosed to the defence. Vervoort had testified, during the 2005 trial, that Dunn and Higgins had talked of shooting the deceased during a conversation in a car on the afternoon of 4 April 2005. However, when she was initially interviewed, Vervoort made no mention of any shooting having been discussed (which did not, therefore, appear in the police notes).  

Higgins also appealed in 2016, albeit many years out of time. However, the court allowed permission to appeal on account of the CJPU material. 

The Court of Appeal heard that none of the surveillance material, CJPU material or the initial police notes had been disclosed to the defence at any point, even though the prosecution had been aware of said material prior to Dunn and Higgins' 2006 trial (and, accordingly, Jones' 2007 trial and Dunn's 2009 appeal). Notably, the Crown had sought advice from counsel as to disclosure of the surveillance material and CJPU material, but disclosure was not given on the advice of leading counsel. In so doing, the Court of Appeal held that Mr Raggatt had committed a "regrettable and serious failure". Of the police notes, the Court of Appeal said that it was "difficult to credit that at trial leading counsel for each of Dunn and Higgins would simply have overlooked the point". The Court said that, whilst it had assumed in 2009 that prosecution counsel had given proper disclosure, such assumption could no longer safely be made.

The Court of Appeal allowed Dunn and Higgins' appeals and quashed their convictions. It said, "In many ways the failings in disclosure here also bear directly on the actual fairness of the trial and appeal process. This court cannot view such failings with equanimity".  

Mr Raggatt's subsequent suspension

On 7 June 2022, it was announced by the Bar Standards Board (BSB), which regulates barristers in England & Wales, that Mr Raggatt, who was called to the Bar in 1972, has been suspended from practice for one year by the Bar Tribunals and Adjudication Service, an independent disciplinary tribunal. 

The decision stems from charges of professional misconduct brought by the BSB in relation to Mr Raggatt's failure to disclose the existence of the surveillance material to Jones' legal team, in circumstances where he knew, or ought to have known, that the prosecution had in its possession such material that supported Jones' alibi evidence and undermined the evidence of Vervoort, one of the leading prosecution witnesses. The tribunal found that Mr Raggatt had engaged in conduct that was prejudicial to the interests of justice and failed to assist the court in the administration of justice. 

Mr Raggatt was ordered to pay the BSB's costs in the sum of £18,600. It is understood that he intends to appeal. 

Commentary 

Although the practitioner in this case is a barrister, the decision will be relevant to many other legal professionals, particularly those who appear in court, such as solicitor advocates. However, even for those who do not, the decision serves as a stark reminder of the obligations imposed on practitioners to properly consider their disclosure duties and the implications of failing to comply. 

In this case, the Court of Appeal found that the CJPU material and the earlier police notes were "potentially very important" as to the issue of Vervoort's credibility. The prosecution's failure to disclose them deprived the defence of the opportunity to "deploy [them] to advantage, or at all… in an area of sufficient sensitivity for prosecutors before trial to be wondering, in the light of concerns about Vervoort's entire credibility, whether there was a sustainable case against Dunn and Higgins at all". Clearly, the non-disclosed material was of the utmost importance to the defence, such that the Court of Appeal subsequently found that there was no case against Jones, Dunn or Higgins in light of it. 

It is important to note, however, that the disclosure obligations imposed on legal practitioners are far-reaching and apply to all categories of evidence, including evidence of lesser weight than in this case. In other words, evidence does not need to be crucial or earth-shattering to the other party's case in order to be disclosable. The duty to give disclosure is strict, and the courts will take it seriously. This stems from the overriding purpose of disclosure, which is to ensure that all evidence that either supports or undermines a party's case is made available to that party. That, in turn, arises from the underlying principle that the court can only deal with a case fairly and justly if all of the relevant material has been preserved and disclosed. For those who decide not to play ball, the BTAS' decision is a firm reminder of the wider implications of failing to comply.